Exhibit 10.64
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made on this 10th day of April, 2008
(the “Effective Date”), by and between AVI
BioPharma, Inc., an Oregon corporation, with its principal
office at 1 SW Columbia Street, Suite 1105, Portland, OR
97258 (“Company”), and Ryszard Kole, 203 Longwood
Drive, Chapel Hill, NC 27514 (“Employee”).
RECITALS:
The Company desires to hire the
Employee as Senior Vice President of Discovery Research 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 terminated in accordance with Section 12
. This Agreement establishes an “at will”
employment relationship between the Company and the Employee as
such term is defined and used under Oregon law.
2.
Duties. Employee shall be employed as Senior Vice
President of Discovery Research and shall have such duties as are
customarily associated with that position, including oversight as
line manager of all biology research personnel 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 President or CEO.
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 two
hundred thirty-five thousand dollars ($235,000.00), 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 (but not decrease) 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 upon achievement and satisfaction of
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.
(c)
Equity Compensation
. On the Effective Date, the
Employee will be granted options to purchase one hundred fifty
thousand (150,000) shares of the Company’s common stock (the
“Options”) under the Company’s 2002 Equity
Incentive Plan (the “Plan”), with an exercise price at
the fair market value of the Company common stock on the Effective
Date. Subject to accelerated vesting or termination as set
forth herein, the Options shall vest in equal annual installments
over four (4) years. The exercise price of the Options
and all other terms and conditions associated with the Options
shall be determined in accordance with the Plan and grants (the
forms of which are annexed hereto as Exhibit B and
Exhibit C , respectively). To the maximum extent
possible, the Options shall be Incentive Stock Options.
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 sixty-five thousand dollars
($65,000) for reasonable expenses incurred in 2008 to relocate
Employee, Employee spouse and parts of Employee’s and
Employee Spouse’s household in a manner compatible with
Employee’s duties hereunder to the city where the
Company’s primary research facility is located
(“Facility Location”), including the reasonable and
customary costs of selling his North Carolina residence (but not
vacant home carrying costs), shipment of personal effects to the
Facility Location, and the customary closing costs associated with
the purchase of a residence in the Facility Location.
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 an
aggregate of five (5) business weeks (25 business days) of
paid vacation in any year following 2008.
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)
Employee agrees that for a two-year
period from the effective date of the termination of
Employee’s employment with the Company, 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 such 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. Notwithstanding the foregoing, the
Company and Employee do not intend for any provision of this
Agreement to conflict with any obligations or rights the parties
may have under any NIH grant. If any provision of such
provision is found to conflict with any obligations or rights the
parties may have under any NIH grant, the parties agree that any
such conflicting provision shall be deemed modified to the minimum
extent required to bring it in compliance with the NIH grant and
the parties agree to comply with all requirements reasonably
imposed by any applicable NIH grant; provided, however , in
the event such NIH requirements are deemed by the Company, in its
reasonable discretion, to impose unreasonable or otherwise onerous
burdens on the Company, the parties agree to terminate the NIH
grant upon request of 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 t
