Exhibit 10.71


 


EMPLOYMENT
AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made on this 26th day of January, 2009,
by and between AVI BioPharma, Inc.,
an Oregon corporation, with its principal office at 4575 SW Research Way, Suite 200,
Corvallis, Oregon, (“Company”), and Stephen Bevan Shrewsbury MD, 1100
Lincoln Village Circle, Apartment 248, Larkspur, CA  94939 (“Employee”).


 


RECITALS:


 


The
Company desires to hire the Employee as Senior Vice President — Preclinical,
Clinical and Regulatory Affairs and the Employee desires to accept such
position under the terms and conditions stated herein.


 


NOW,
THEREFORE, in consideration of the mutual benefits contained herein, the
sufficiency of which the parties acknowledge, the parties hereby agree as
follows:


 


AGREEMENT:


 


1.             Employment Term.  The term of employment (“Term”) shall
commence on the Effective Date and shall continue until the first anniversary
of the Effective Date, unless extended or terminated in accordance with Section 12.  This Agreement establishes an “at will”
employment relationship, as such term is defined and used under Oregon law,
between the Company and the Employee.  
Employee shall commence employment not later than January 26, 2009  (the “Effective Date”).  Failure to do so shall be grounds for
immediate termination for Cause, as such term is defined in Section 12
hereof.


 


2.             Duties.  Employee shall be employed as Senior Vice
President- Preclinical, Clinical and Regulatory Affairs and shall have such
duties as are customarily associated with that position, including overall
responsibility for pre-clinical, clinical and regulatory activities and
initiatives that will enable the Company to develop candidates for further
clinical activities, and such other duties as may be assigned to him from time
to time by the Company’s Chief Executive Officer (“CEO”) and the Board
of Directors of the Company (“Board”). Employee shall be a direct report
of the Company’s Chief Executive Officer. Employee shall devote substantially
all of his business time to the service of the Company throughout the
Term.  Employee and Company acknowledge
and agree that (i) Employee may hold certain offices within certain
entities as set forth on Exhibit A to this Agreement, (ii) Employee’s
devotion of reasonable amounts of time in such capacities, so long as it does
not interfere with his performance of services hereunder, shall not conflict
with the terms of this Agreement, and (iii) Exhibit A may be
amended from time to time by agreement of the parties.


 

















 


3.             Compensation.


 


(a)           Base Compensation.  During the Term the Company shall compensate
the Employee at an initial annual salary of Three Hundred Ten Thousand Dollars
($310,000.00), payable in accordance with the Company’s payroll practices in
effect from time to time, and less amounts required to be withheld under
applicable law and requested to be withheld by the Employee (as increased from
time to time, “Base Compensation”). The Employee’s Base Compensation
shall be subject to review for potential increase on an annual basis. Except as
otherwise provided in this Agreement, the Base Compensation shall be prorated
for any period of service less than a full month.


 


(b)           Bonus.  The Employee shall be eligible for an annual
bonus of up to 25% of Employee’s Base Compensation, which bonus shall be paid
in the normal cycle of payment of executive bonuses and upon achievement and
satisfaction of goals and objectives (“Goals and Objectives”)
established upon mutual agreement of the CEO, Employee and the Compensation
Committee of the Company’s Board.  Such
goals shall be established concurrently with the goals and objectives of the
Company’s other senior executives. 
Employee shall be eligible for consideration for an award of a full
12-month bonus based on achievement of 2009 Goals and Objectives.


 


(c)           Equity Compensation.


 


(i)                                     On the
Effective Date, the Employee will be granted options to purchase Four Hundred
Fifty Thousand (450,000) shares of the Company’s common stock (the “Options”)
under the Company’s 2002 Equity Incentive Plan (the “Plan”) (a copy of
which is attached as Exhibit B, with an exercise price at the fair
market value of the Company common stock on the date Effective Date;


 


(ii)                                  In addition, Employee will
be issued 60,000 shares of restricted stock under the Plan (the “Restricted
Shares”).  In the event Employee
remains employed on the 181st day following the Effective
Date, vesting shall commence with respect to such Restricted Shares as of the
Effective Date; and


 


(iii)                               The exercise price of the
Options and the issuance price of the Restricted Shares and all other terms and
conditions associated with the Options and Restricted Shares be determined in
accordance with the Plan. To the maximum extent possible, the Options shall be
Incentive Stock Options. Subject to accelerated vesting or termination as set
forth herein, the Standard Options and Restricted Shares shall vest in equal
annual installments over three (3) years


 

















 


4.             Expenses.  The Company will reimburse Employee for all
expenses reasonably incurred by him in discharging his duties for the Company,
conditioned upon Employee’s submission of written documentation in support of
claimed reimbursement of such expenses, and consistent with the Company’s
expense reimbursement policies in effect from time to time. The Company will
reimburse the Employee up to One Hundred Thousand Dollars ($100,000) for
reasonable expenses incurred in 2009 to relocate Employee and parts of Employee’s
household in a manner compatible with Employee’s duties hereunder to the city
where the Company’s headquarters are located (“Facility Location”),
including the shipment of personal effects to the Facility Location, and the
customary closing costs associated with the purchase of a residence in the
Facility Location.  In addition, Company
shall reimburse Employee (or pay on Employee’s behalf) rent and related living
expenses, not to exceed $2,500 per month in the aggregate and up to six (6) months
in duration for temporary living arrangements. 
In addition, the Company shall reimburse Employee for reasonable
attorneys fees incurred in connection with the review and negotiation of this
Agreement in an amount not to exceed $3,000.


 


5.             Benefits.  Subject to eligibility requirements, Employee
shall be entitled to participate in such benefits plans and programs as adopted
by the Company from time to time and shall be eligible for paid vacation of
four (4) business weeks (20 business days) annually; provided,
however, if Employee does not use all available vacation in any
given year, Employee may roll-over up to one business week (5 business days) to
the following year, the parties intending that Employee shall have a maximum of
five (5) business weeks (25 business days) of paid vacation in any year
following 2009.


 


6.             Confidentiality.


 


(a)           In the course of his
employment with the Company, it is anticipated that Employee may acquire
knowledge (both orally and in writing) regarding confidential affairs of the
Company and confidential or proprietary information including: (i) matters
of a technical nature, such as know-how, inventions, processes, products,
designs, chemicals, compounds, materials, drawings, concepts, formulas, trade
secrets, secret processes or machines, inventions or research projects; (ii) matters
of a business nature, such as information about costs, profits and pricing
policies; (iii)  markets, sales, suppliers, customers, plans for future
development, plans for future products, marketing plans or strategies; and (iv) other
information of a similar nature which is not generally disclosed by the Company
to the public, referred to collectively hereafter as “Confidential Information.”
“Confidential Information” shall not include information generally available to
the public. Employee agrees that during the term of this Agreement and
thereafter, he (1) will keep secret and retain in the strictest confidence
all Confidential Information, (2) not disclose Confidential Information to
anyone except employees of the Company authorized to receive it and third
parties to whom such disclosure is specifically authorized, and (3) not
use any Confidential Information for any purpose other than performance of
services under this Agreement without prior written permission from the
Company.


 


(b)           If Employee is served with
any subpoena or other compulsory judicial or administrative process calling for
production or disclosure of Confidential Information or if Employee is
otherwise required by law or regulation to disclose Confidential Information,
Employee will immediately, and prior to production or disclosure, notify the
Company and 


 

















 


provide
it with such information as may be necessary in order that the Company may take
such action as it deems necessary to protect its interest.


 


(c)           The provisions of this Section 6
shall survive termination of this Agreement.


 


7.             Non-competition and
Non-solicitation.


 


(a)           For a period of one (1) year
in the case of the payment of severance equal to 12 months Base Compensation
and for a period of two (2) years in the case of the payment of severance
equal to 24 months Base Compensation, in both instances as provided in Section 13(c) below,
Employee shall not directly or indirectly engage in or have any ownership
interest in, or participate in the financing, operation, management or control
of, any person, firm, corporation or business that engages in any activity
customarily associated with the Company’s ordinary course of business at the
time of such termination anywhere in the world; provided, however, that
this provision shall not prohibit Employee from owning up to five percent (5%)
of any class of outstanding bonds, preferred stock or shares of common stock of
any such entity or from employment with any institute of higher learning.


 


(b)           For a period of two (2) years
following termination of employment with the Company for any reason, except
with the express written consent of the Company, Employee agrees to refrain
from directly or indirectly recruiting, hiring or assisting anyone else to
hire, or otherwise counseling to discontinue employment with the Company, any
person then employed by the Company or its subsidiaries or affiliates.


 


(c)           In the event that the
provisions of this Section 7 should ever be deemed to exceed the
duration or geographic limitations or scope permitted by applicable law, then
such provisions shall be reformed to the maximum time or geographic limitations
or scope, as the case may be, permitted by applicable laws.


 


(d)           The provisions of this Section 7
shall survive termination of this Agreement and the term of employment.


 


8.             Covered Work.


 


(a)           All rights, title and
interest to any Covered Work that Employee makes or conceives (whether alone or
with others) while employed by the Company, belong to the Company. This
Agreement operates as an actual assignment of all rights in Covered Work to the
Company. “Covered Work” means products and Inventions that relate to the
actual or anticipated business of the Company or any of its subsidiaries or
affiliates, or that result from or are suggested by a task assigned to Employee
or work performed by Employee on behalf of the Company or any of its
subsidiaries or affiliates, or that were developed in whole or in part on the
Company time or using the Company’s equipment, supplies or facilities. “Inventions”
mean ideas, improvements, designs, computer software, technologies, techniques,
processes, products, chemicals, compounds, materials, concepts, drawings,
authored works or discoveries, whether or not patentable or copyrightable, as
well as other newly discovered or newly applied information or concepts.
Attached hereto as Exhibit D is a description of any product or
Invention in which 


 

















 


Employee
had or has any right, title or interest, which is not included within the
definition of Covered Work or which is otherwise excluded from the restrictions
set forth in this Section 8.


 


(b)           Employee shall promptly
reveal all information relating to Covered Work and Confidential Information to
an appropriate officer of the Company and shall cooperate with the Company, and
execute such documents as may be necessary, in the event that the Company
desires to seek copyright, patent or trademark protection thereafter relating
to same.


 


(c)           In the event that the
Company requests that Employee assist in efforts to defend any legal claims to
patents or other right, the Company agrees to reimburse Employee for any
reasonable expenses Employee may incur in connection with such assistance. This
obligation to reimburse shall survive termination of this Agreement and the
term of employment.


 


(d)           The provisions of this Section 8
shall survive termination of this Agreement and the term of employment.


 


9.             Return of Inventions,
Products and Documents.  Employee acknowledges and agrees that all
Inventions, all products of the Company and all originals and copies of
records, reports, documents, lists, drawings, memoranda, notes, proposals,
contracts and other documentation related to the business of the Company or
containing any information described in this Section 9  shall be the sole and exclusive property of
the Company and shall be returned to the Company immediately upon termination
of Employee’s employment with the Company or upon the written request of the
Company. The provisions of this Section 9 shall survive termination
of this Agreement and the term of employment


 


10.          Injunction.  Employee agrees that it would be difficult to
measure damages to the Company from any breach by Employee of Sections 6, 7,
8 and/or 9 of this Agreement, and that monetary damages would be an
inadequate remedy for any such breach. Accordingly, Employee agrees that if
Employee shall breach Sections 6, 7, 8 and/or 9 of this
Agreement, the Company shall be entitled, in addition to all other remedies it
may have at law or in equity, to an injunction or other appropriate orders to
restrain any demonstrated breach without showing or proving any actual damage
sustained by the Company. The provisions of this Section 10 shall
survive termination of this Agreement and the term of employment.


 


11.          Obligations
to Others.  Except for
items fully disclosed in writing to the Company, Employee represents and
warrants to the Company that (i) Employee’s employment by the Company does
not violate any agreement with any prior employer or other person or entity,
and (ii) Employee is not subject to any existing confidentiality or
non-competition agreement or obligation, or any agreement relating to the
assignment of Inventions except as has been fully disclosed in writing to the
Company.


 


12.          Termination.


 


(a)           Employee may voluntarily
terminate his employment with the Company upon giving the Company sixty (60)  days written notice.


 

















 


(b)           The Company may terminate
Employee’s employment without Cause (as defined below) upon giving Employee
thirty (30) days written notice of termination.


 


(c)           Employee’s employment with
the Company shall terminate upon the occurrence of any one of the following:


 


(i)            Employee’s death;


 


(ii)           The effective date of a
notice sent to Employee stating the Board’s determination made in good faith
and after consultation with a qualified physician selected by the Board, that
Employee is incapable of performing his duties under this Agreement, with
reasonable accommodation, because of a physical or mental incapacity that has
prevented Employee from performing such full-time duties for a period of ninety
(90) consecutive calendar days and the determination that such incapacity is
likely to continue for at least another ninety (90) days; or


 


(iii)          The effective date of a
notice sent to Employee terminating Employee’s employment for Cause.


 


(d)           “Cause” means the
occurrence of one or more of the following events:


 


(i)            Employee’s willful and
repeated failure or refusal to comply in any material respect with the
reasonable lawful policies, standards or regulations from time to time
established by the Company, or to perform his duties in accordance with this
Agreement after notice to Employee of such failure and after Employee has been
given a reasonable period of time to cure such failure to comply; or


 


(ii)           Employee engages in criminal
conduct or demonstrably engages in misconduct that is materially detrimental to
the reputation, character or standing of the Company.


 


(e)                                  Notwithstanding anything to
the contrary herein, unless sooner terminated in accordance with the terms
hereof, this Agreement shall automatically renew for an additional one-year
term unless one party notifies the other party in accordance with Section 14
hereof of its intention not to renew, such notice to be delivered not less than
90 days before the term ends.


 


13.          Termination
Compensation.


 


(a)           Upon Employee’s voluntary
termination of employment, other than voluntary termination with Good Reason
(as defined below), the Company shall pay to Employee all compensation due to
the date of termination, but shall have no further obligation to Employee
hereunder in respect of any period following termination.


 


(b)           Upon the death of Employee,
the Company shall pay to Employee’s estate or such other party who shall be
legally entitled thereto, all compensation due at the date of death, and an 


 

















 


additional
amount equal to compensation at the rate set forth in this Agreement or then
current annual salary rate, whichever is greater, from the date of death to the
final day of the month following the month in which the death occurs.


 


(c)           (i)  Upon termination
of Employee’s employment by the Company other than for Cause and other than in
connection with a Change in Control, the Company shall pay to Employee twelve
(12) months of Base Compensation. In addition, all nonvested Options shall
immediately vest and be exercisable for a period of 180-days following the
effective date of termination.


 


(ii) 
Upon termination by the Company other than for Cause in connection with a
Change in Control or upon Employee’s voluntary termination of employment for
Good Reason in connection with a Change of Control, the Company shall pay to
Employee twenty-four (24) months of Base Compensation.  In addition, all nonvested Options shall
immediately vest and be exercisable for a period of 180-days following the
effective date of termination.


 


(d)           Amounts payable under this Section 13
shall be net of amounts required to be withheld under applicable law and
amounts requested to be withheld by Employee.


 


(e)           As used herein, “Good Reason” shall mean,
following a Change of Control (as such term is defined below), the termination
by Employee upon the occurrence of any of the below described events. The
Employee must provide notice to the Company of the existence of such event
within ninety (90) days of the first occurrence of such event, and the Company will
have thirty (30) days to remedy the condition, in which case no Good Reason
shall exist.  If the Company fails to
remedy the condition within such thirty (30) day period, the Employee must
terminate employment within two (2) years of the first occurrence of such
event.  The events which constitute a
Good Reason termination are:


 


(i)                    The assignment
of a different title or change that results in a material reduction in
Employees duties or responsibilities;


 


(ii)                   A reduction by
the Company in Employee’s Base Compensation, other than a salary reduction that
is part of a general salary reduction affecting employees generally and
provided the reduction is not greater, percentage-wise, than the reduction
affecting other employees generally or failure to provide an annual increase in
Base Compensation commensurate with other Employees; provided,
however, in determining whether to provide an annual increase in
Base Compensation commensurate with an annual increase provided to other
Employees, the Company may take into
account factors such as market levels of compensation, Employee’s overall
performance, and other factors reasonably considered by the Company’s
compensation committee and/or Board of Directors, so long as such determination
is not made in bad faith with the intent to discriminate against Employee;
or


 


(iii)                  Relocation of
Employee’s principal place of business of greater than seventy-five (75) miles
from its then location; provided, however,
the first such 


 

















 


relocation in connection with the concurrent relocation of the Company’s
headquarters shall not constitute Good Reason hereunder.


 


(f)            As a condition of payment of
the amounts set forth in this Section 13, if requested by Company
Employee agrees to enter into a Separation and Release Agreement substantially
in the form attached hereto as Exhibit D.


 


(g)           As
used herein, “Change of Control” means the occurrence of any one of the
following events:  (i) any person
becomes the beneficial owner of twenty-five percent (25%) or more of the total
number of voting shares of the Company; (ii) any person (other than the
persons named as proxies solicited on behalf of the Board of Directors of the
Company) holds revocable or irrevocable proxies representing twenty-five
percent (25%) or more of the total number of voting shares of the Company; (iii) any
person has commenced a tender or exchange offer, or entered into an agreement
or received an option, to acquire beneficial ownership of twenty-five percent
(25%) or more of the total number of voting shares of the Company; and (iv) as
the result of, or in connection with, any cash tender or exchange offer,
merger, or other business combination, sale of assets, or any combination of
the foregoing transactions, the persons who were directors of the Company
before such transactions shall cease to constitute at least two-thirds (2/3) of
the Board of Directors of the Company or any successor entity.


 


14.          Notice.  Unless otherwise provided herein, any notice,
request, certificate or instrument required or permitted under this Agreement
shall be in writing and shall be deemed “given” upon personal delivery to the
party to be notified or three business days after deposit with the United
States Service, by registered or certified mail, addressed to the party to
receive notice at the address set forth above, postage prepaid. Either party
may change its address by notice to the other party given in the manner set
forth in this Section.


 


15.          Entire
Agreement.  This
Agreement constitutes the entire agreement between the parties and contains all
the agreements between them with respect to the subject matter hereof. It also
supersedes any and all other agreements or contracts, either oral or written,
between the parties with respect to the subject matter hereof;  provided, however,
in the event any of Sections 6, 7, 8, 9, or 10 of this Agreement
is found enforceable in any way, then such section shall be amended to the
extent necessary to conform to applicable law.


 


16.          Modification.  Except as otherwise specifically provided,
the terms and conditions of this Agreement may be amended at any time by mutual
agreement of the parties, provided that before any amendment shall be valid or
effective, it shall have been reduced to writing and signed by an authorized
representative of the Company and Employee.


 


17.          No Waiver.  The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations, shall not be a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand
compliance.


 
















 


18.          Severability.  In the event that any
section or provision of this Agreement shall be held to be illegal or
unenforceable, such section or provision shall be severed from this Agreement
and the entire Agreement shall not fail as a result, but shall otherwise remain
in full force and effect.


 


19.          Assignment.  This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns, and shall
be binding upon Employee, his administrators, executors, legatees, and heirs. In
that this Agreement is a personal services contract, it shall not be assigned
by Employee.


 


20.          Dispute
Resolution.  Except as
otherwise provided in Section 10, the Company and Employee agree
that any dispute between Employee and the Company or its officers, directors,
employees, or agents in their individual or Company capacity of this Agreement,
shall be submitted to a mediator for nonbinding, confidential mediation. If the
matter cannot be resolved with the aid of the mediator, the Company and Employee
mutually agree to arbitration of the dispute. The arbitration shall be in
accordance with the then-current Employment Dispute Resolution Rules of
the Arbitration Service of Portland (“ASP”) before an arbitrator who is
licensed to practice law in the State of Oregon. The arbitration shall take
place in or near Portland, Oregon. Employee and the Company will share bear the
cost of the arbitration equally, but each party will bear their own costs and
legal fees associated with the arbitration; provided, however,
if any party prevails on a statutory claim, which affords the prevailing party
attorneys’ fees, or if there is a written agreement providing for attorneys’
fees, the arbitrator may award reasonable attorneys’ fees.  The Company and Employee agree that the
procedures outlined in this provision are the exclusive method of dispute
resolution.


 


21.          Attorneys’
Fees.  In the event suit or action is
instituted pursuant to Section 10 or Section 20 of this
Agreement, the prevailing party in such proceeding, including any appeals
thereon, shall be awarded reasonable attorneys’ fees and costs.


 


22.          Applicable
Law.  This Agreement shall be
construed and enforced under and in accordance with the laws of the State of
Oregon.


 


23.          Section 409A;
Section 280G.


 


(a)       It is the intention of the
parties to this Agreement that no payment or entitlement pursuant to this
Agreement will give rise to any adverse tax consequences to Employee or the
Company with regard to Section 409A of the Internal Revenue Code of 1986 (“Section 409A”).
This Agreement shall be interpreted to that end and consistent with that
objective. The Company and the Employee shall, to the extent necessary to
comply with Section 409A and permitted thereunder, agree to act reasonably
and in good faith to mutually reform the provisions of this Agreement to avoid
the application of the additional tax and interest under Section 409A(a)(1)(B),
provided that any such reformation shall not negatively impact the economics of
the Company or the Employee hereunder. Notwithstanding any other provision
herein, if Employee is a “specified employee,” as defined in, and pursuant to,
Treasury Regulation Section 1.409A-1(i) or any successor regulation,
on the date of termination, no payment of any “deferred compensation”, as defined
under Treasury Regulation Section 1.409A or any successor regulation,
shall be made to 


 

















 


Employee during the period lasting until the earlier of six (6) months
from the date of termination or upon Employee’s death.  If any payment to Employee is delayed
pursuant to the foregoing sentence, such payment instead shall be made on the
first business day following the expiration of the six (6) month period
referred to in the prior sentence or, if in the case of Employee’s death,
promptly thereafter.


 


(b)      Except as otherwise
specifically provided in this Agreement, if any reimbursement to which the
Employee is entitled under this Agreement would constitute deferred
compensation subject to Section 409A of the Code, the following additional
rules shall apply:  (i) the
reimbursable expense must have been incurred, except as otherwise expressly
provided in this Agreement, during the term of this Agreement; (ii) the
amount of expenses eligible for reimbursement during any calendar year will not
affect the amount of expenses eligible for reimbursement in any other calendar
year; (iii) the reimbursement shall be made not later than December 31
of the calendar year following the calendar year in which the expense was
incurred; and (iv) the Employee’s entitlement to reimbursement shall not
be subject to liquidation or exchange for another benefit.


 


(c)       With regard to any
installment payment, each installment thereof shall be deemed a separate
payment for purposes of Section 409A of the Code.


 


(d)      Section 280G


 


(i)                    Except as
provided below, the payments or benefits to which Employee will be entitled
under Section 13 of the Agreement will be reduced to the extent
necessary so that Employee will not be liable for the federal excise tax levied
on certain “excess parachute payments” under section 4999 of the Internal
Revenue Code of 1986, as amended (“Code”).


 


(ii)                   The limitation
above will not apply if:


 


1.               the difference between


 


(A) the present value of all payments to which Employee is
entitled under Section 13 of the Agreement determined without regard to
the limitation above, less


 


(B) the present value of all federal, state, and other income and
excise taxes for which Employee is liable as a result of such payments; exceeds


 

















 


2.               the difference between


 


(A) the present value of all payments to which Employee is
entitled under Section 13 of the Agreement calculated as if the
limitation above applies, less


 


(B) the present value of all federal, state, and other income and
excise taxes for which Employee is liable as a result of such reduced payments.


 


(iii)                  Present values
will be determined using the interest rate specified in section 280G of the
Code and will be the present values as of the date on which Employee’s
employment terminates (unless it is necessary to use a different date in order
to avoid adverse consequences under section 280G).


 


24.          Counterparts.  This Agreement may be signed in two
counterparts, each of which shall be deemed an original and both of which shall
together constitute one agreement.


 


 


IN
WITNESS WHEREOF, AVI BioPharma, Inc. has caused this Agreement to be
signed by its duly authorized representative, and Employee has hereunder set
his name as of the date of this Agreement.


 


 


	
   

  	
  COMPANY: AVI BioPharma, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Leslie Hudson, PhD

  
	
   

  	
  Leslie
  Hudson, PhD, Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
  /s/
  Stephen Bevan Shrewsbury

  
	
   

  	
  Stephen
  Bevan Shrewsbury, MD

  



 

















 


Exhibit A


 


List of
Offices Held


 


Shrewsbury Clinical Consulting: Founder -
providing limited, or ad hoc consulting advice to previous employer:


 


·                                          MAP Pharmaceuticals Inc., 2400 Bayshore Parkway, Mountain View, CA


 


and


·                                          Nektar Therapeutics, San Carlos, CA


 


provided:


 


1)  no
conflict of interest arises


 


2) total consulting hours not to exceed one
day per month


 


3) such consulting work does not interfere
with the full performance of duties for AVI.


 

















 


Exhibit B


 


2002 Equity
Incentive Plan


 

















 


Exhibit C


Inventions
Excluded from Covered Works


 

















 


Exhibit D


 


SEPARATION
AND RELEASE AGREEMENT


 


THIS SEPARATION AND RELEASE AGREEMENT (“Agreement”) is between Stephen
Bevan Shrewsbury (“Employee”) and AVI BioPharma, Inc. (“Employer”),
and is effective eight (8) days after Employee signs this Agreement (“Effective
Date”).


 


The parties agree as follows:


 


1.             Resignation.
Employee resigned his position as Employer’s [Title] effective
[effective date of termination] (the “Resignation Date”).  Employee has been paid his salary and other
compensation through the Resignation Date, less all lawful or required
deductions.


 


2.             Consideration.   In consideration of  Employee’s agreements hereunder, Employer shall pay to
Employee the amounts set forth and described in Section              of
that certain Employment Agreement dated effective the      day
of            , 2009.


 


3.             Return
of Employer Property. Employee represents that he has returned all
Employer property in his possession or under his control, including but not
limited to keys, credit cards, files, laptop computer and any and all Employer
documents.


 


4.             Confidentiality.
The parties will use reasonable efforts to keep the terms of this
Agreement confidential.  Employee may
disclose the terms of this Agreement to his immediate family.  Employer may disclose the terms of this
Agreement to its officers and managers. 
Either party may disclose the terms of this Agreement to their
respective attorneys, accountants, financial advisers, auditors, or similar
advisors, or in response to government requests.  Third persons informed of the terms of this
Agreement shall in turn be advised of this confidentiality provision and requested
to maintain such confidentiality.


 


5.             Release.


 


5.1           In exchange for the
consideration paid to Employee as set forth in this Agreement, Employee forever
releases and discharges Employer, any of Employer-sponsored employee benefit
plans in which Employee participates, or was participating in, (collectively
the “Plans”) and all of their respective officers, members, managers,
partners, directors, trustees, agents, employees, and all of their successors
and assigns (collectively “Releasees”) from any and all claims, actions,
causes of action, rights, or damages, including costs and attorneys’ fees
(collectively “Claims”) which Employee may have arising out of his
employment (including Claims that may arise out of Employee’s employment
agreement), on behalf of himself, known, unknown, or later discovered which
arose prior to the date Employee signs this Agreement.  This release includes but is not limited to,
any Claims under any local, state, or federal laws prohibiting discrimination
in employment, including without limitation the federal civil rights acts,
Oregon Revised Statutes Chapter 659A, the Americans with Disabilities Act, the
Age Discrimination in Employment Act, or Claims under the Employee Retirement
Income Security Act, or Claims alleging any legal restriction on Employer’s
right to terminate its employees, any Claims Employee has relating to his
rights to or against any of the Plans, or personal injury Claims, including
without limitation 


 

















 


wrongful discharge, breach of
contract, defamation, tortious interference with business expectancy,
constructive discharge, or infliction of emotional distress.  Employee represents that he has not filed any
Claim against Employer or its Releasees, he has no knowledge of any facts that
would support any Claim by Employee against Employer or by a third party
against Employer, and that he will not file a Claim at any time in the future
concerning Claims released in this Agreement; provided, however, that this will
not limit Employee from filing a Claim to enforce the terms of this
Agreement.  Notwithstanding the
foregoing, nothing herein shall constitute release of any of Employee’s rights
relating to vested options, vested benefits or vested entitlements under the
Company’s employee benefits plans, including equity incentive and retirement
plans.


 


5.2           In consideration of
the promises of Employee as set forth herein, Employer does hereby, and for its
successors and assigns, release, acquit and forever discharge Employee from any
and all actions, causes of action, obligations, costs, expenses, damages,
losses, claims, liabilities, suits, debts, and demands (including attorneys’
fees and costs actually incurred), of whatever character in law or in equity
known or unknown, suspected or unsuspected, from the beginning of time to the
date of execution hereof.


 


6.             Non-disparagement. Employee and Employer
each agree not to make disparaging statements about each other, except in the
case of Employer statements that are required under applicable federal or state
securities laws or applicable rules and regulations of any exchange on
which Employer’s stock is traded.


 


7.             Consideration
and Revocation Periods. Employee understands and acknowledges the
significance and consequences of this Agreement, that it is voluntary, that it
has not been given as a result of any coercion, and expressly confirms that it
is to be given full force and effect according to all of its terms, including
those relating to unknown Claims. 
Employee was hereby advised of his right to seek the advice of an
attorney prior to signing this Agreement. 
Employee acknowledges that he has signed this Agreement only after full
reflection and analysis. Although he is free to sign this Agreement before
then, Employee acknowledges he was given at least 21 days after receipt of this
document in which to consider it (the “Consideration Period”).  If Employee executes this Agreement prior to
the end of the Consideration Period, Employee hereby waives any rights
associated therewith. Employee may revoke this Agreement seven (7) days
after signing it and forfeit all benefits described in Section 13(c) of
the Employment Agreement. Employee and Employer agree that any changes made to
this Agreement during the Consideration Period as a result of negotiations
between the parties do not restart the running of the Consideration Period.


 


8.             No
Liability. This Agreement shall not be construed as an
admission by either party that it acted wrongfully with respect to the other.


 


9.             Severability. If any of the
provisions of this Agreement are held to be invalid or unenforceable, the
remaining provisions will nevertheless continue to be valid and enforceable.


 


10.           Entire
Agreement. This Agreement represents and contains the entire
understanding between the parties in connection with its subject matter.  All other prior written or oral agreements or
understandings are merged into and superseded by this Agreement.  Employee 


 

















 


acknowledges
that in signing this Agreement, he has not relied upon any representation or
statement not set forth in this Agreement made by Employer or any of its
representatives.


 


11.           Attorney Fees.
If any suit or action is filed by either party to enforce this Agreement
or otherwise with respect to the subject matter hereof, the prevailing party
shall be entitled to recover reasonable attorney fees incurred in preparation
or in prosecution or defense of such suit or action as fixed by the trial
court, and if any appeal is taken from the decision of the trial court,
reasonable attorney fees as fixed by the appellate court.


 


12.           Choice of Law. This Agreement is
made and shall be construed and performed under the laws of the State of
Oregon.


 


PLEASE READ CAREFULLY.  THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN
KNOWN OR UNKNOWN CLAIMS.


 


 


	
  DATED
  this     day of       ,
  20XX.

  	
   

  	
  DATED
  this     day of       ,
  20XX.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AVI
  BioPharma, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
   

  	
   

  	
   

  
	
  Name:
  

  	
   

  	
  Stephen
  Bevan Shrewsbury, MD

  
	
  Title: