Exhibit
10.59
EXECUTION
COPY
SEPARATION AND RELEASE
AGREEMENT
THIS
SEPARATION AND RELEASE AGREEMENT (“Agreement”) is
between Denis R. Burger, Ph.D (“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 Chief Executive Officer, effective March 27, 2007
(the “Resignation Date”). Employee has been paid his
salary and other compensation through March 27, 2007, less all
lawful or required deductions.
2.
Consideration.
2.1
Employer will pay Employee an amount
equivalent to eighteen (18) months base salary of $375,000, which
is equivalent to $562,500 (“Severance Funds”). The
Severance Funds will be paid in equal installments in accordance
with Employer’s the normal payroll policies over the life of
the severance period.
2.2
In addition to payment of the
Severance Funds, Employer will extend the exercise date to March
28, 2010 of all options to purchase shares of Employer’s
common stock previously granted to Employee, the terms of which are
set forth on attached Schedule I (the
“Options”). Employer and Employee note that the effect
of extending the exercise period of Incentive Stock Options will be
to convert such options to Non-Qualified Options under the Internal
Revenue Code of 1986, as amended.
2.3
In addition to the Severance Funds
and the treatment of Options as described above, for eighteen
months from the effective date hereof, at its option Employer shall
either (a) continue to provide the same health insurance coverage
it currently offers to Employee or (b) will reimburse Employee for
all COBRA payments.
3.
Return of Company
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 Company
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 Employee̵
