Exhibit 10.68


 


SEVERANCE
AND RELEASE AGREEMENT


 


THIS SEVERANCE AND
RELEASE AGREEMENT (“Agreement”) is between Peter O’Hanley (“Employee”) and AVI
BioPharma, Inc. (“Employer”), and is effective on the eighth day after
Employee signs this Agreement (“Effective Date”).


 


The parties to this
Agreement wish to set forth clearly the terms and conditions of Employee’s
departure from his employment, and in consideration of the mutual covenants set
forth herein and for other valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree as follows:


 


1.   Employee will resign his position
effective January 9, 2009 (the “Resignation Date”). From October 20,
2008 through November 28, 2008, Employee will devote his full time and
attention to his duties for Employer, for which Employee will be paid
full-time, regular compensation (less lawful and required deductions) on the
Company’s regular pay dates. Beginning December 1, 2008 through and
including January 9, 2009, Employer and Employee expect Employee to work
no more than two days per week and his salary will be reduced accordingly.
Employee’s last date of work shall be no later than January 9, 2009, on
which date he will be paid all wages, including any accrued but unused vacation
earned through the Resignation date.


 


2.   Employee understands and agrees
that by signing this Agreement, the Employment Agreement between Employee and
Employer dated March 22, 2004 (“the Employment Agreement”) is terminated
and Employee and Employer mutually agree to waive all rights and benefits
contained therein. Employee and Employer agree that their mutual agreement to
waive their rights under the Employment Agreement constitutes valuable and
sufficient consideration for the promises contained herein. Employee
understands and agrees that effective immediately, Employer will be recruiting
for a new head of Clinical and Regulatory Affairs, and may, before Employee’s
Resignation Date, hire a person to fill that position. Nothing in Employer’s
immediate efforts to hire a new head of Clinical and Regulatory Affairs will
diminish or alter Employee’s obligations set forth in Paragraph 1 herein;
Employee shall devote his best efforts to assist in the smooth and successful
transition of knowledge and responsibilities to any new hire in this position.
In the event he fails to do so, Employer will have the right to immediately
terminate his employment without any further obligation.


 


3.   After the Effective Date of this
Agreement, Employee or his covered dependents may elect to pay for COBRA
medical and dental insurance continuation coverage for himself and/or his
covered dependents for the time period and under such conditions as are
provided by COBRA, and Employee may elect to convert any of his other group
insurance coverage to individual policies and self pay for such coverage
according to any individual conversion privileges contained in such plans.


 


4.   Employee shall receive whatever
accrued and vested benefits he is entitled to receive under the terms of
Employer’s Retirement /401(k) Plan, according to the terms of that Plan
and as soon as practicable after the effective date of this Agreement. Employer
shall, to the extent reasonably practicable, deliver such benefits to the
rollover account Employee designates. Employee may leave his current vested 401(k) benefits
in Employer’s Plan; however, Employee may not make any contributions to the 401(k) Plan
after the Resignation Date. Contributions will not be made to this Plan on
behalf of Employee based on the payments that are made under this Agreement.


 


5.   No later than the Resignation
Date, Employee will return all Employer property in his possession or under his
control, including but not limited to keys, credit cards, files, documents,
cellular phones, pagers and laptop computers.


 


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6.   If Employee files for unemployment
compensation benefits, Employer will inform the Oregon Employment Division that
Employee resigned at Employer’s request and Employer will not contest Employee’s
eligibility for unemployment compensation.


 


7.   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.


 


8.   Employee agrees not to make
disparaging or derogatory remarks about Employer, its products, employees,
officers, agents or any person or company related thereto. The officers of
Employer similarly agree that they will not make any disparaging or derogatory
comments about Employee.


 


9.   In exchange for the consideration
granted under this Agreement, which is in addition to the benefits Employee is
otherwise entitled to receive, Employee and his successors and assigns forever
release and discharge employer, any of Employer’s parent, subsidiary or related
companies, any 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, trustee,
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, 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 the Employment
Agreement, any local, state, or federal laws prohibiting discrimination in
employment, including without limitation the Civil Rights Acts, or the Oregon
State Law Against Discrimination, 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, tortuous
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, and that he will not do so at any time in the future
concerning Claims released in this Agreement.


 


10. By signing this Agreement, Employee
affirmatively represents that he has not filed any claim against Employer or
any of its Releasees, and is affirming that he will not file any claim released
in this Agreement in the future. Employee will not, however, be prohibited from
filing a claim to enforce the terms of this Agreement. In addition, to the
extent required by law, Employee is not prohibited from filing or participating
in an administrative claim with the Equal Employment Opportunity Commission (“EEOC”),
but because Employee is receiving severance under this Agreement he waives any
right to receive monetary relief as a result of any EEOC proceeding or
subsequent individual or EEOC lawsuits.


 


11. As a material
inducement for Employee to enter into this Agreement and in exchange for the
benefits Employee has given Employer under this Agreement, Employer and its
successors and assigns forever release and discharge Employee, and any of his
heirs, successors, and assigns (collectively, “Releasees”) from any and all
employment-related claims, actions, causes of action, rights, or damages,
including attorneys’ fees (collectively “Claims”) which Employer


 


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may have, known, unknown,
or later discovered, which arose prior to the date Employer signs this
Agreement. Employer represents that it has not filed any Claims against
Employee or his Releases, and that it will not do so at any time in the future
concerning Claims released in this Agreement, provided, however, that this will
not limit Employer from filing a Claim to enforce the terms of this Agreement.


 


12. 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 and seven days after signing it to revoke it (“the Consideration
Period”). Employee may revoke this Agreement seven (7) days after signing
it and forfeit all benefits described in paragraph 2 of this Agreement by
sending written notice of his intent to revoke to: Beth Chamblin at 4575 SW
Research Way, #200, Corvallis, OR 97333. Employee and Employer agree that any
changes made to this Agreement during the Consideration Period as a result of
negotiations between the parties does not restart the running of the
Consideration Period.


 


13. This Agreement shall not be construed as an
admission by Employer that it acted wrongfully with respect to Employee.


 


14. 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.


 


15. 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.


 


16. 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.


 


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


 


 


	
  DATED this 21 day of October, 2008.

  	
   

  	
  DATED this 19th day of October, 2008.

  
	
  AVI BioPharma Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Dr.L.Hudson

  	
   

  	
  /s/ Peter O’Hanley

  
	
  Its 

  	
  President &
  CEO

  	
   

  	
  Peter O’Hanley

  



 


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