SETTLEMENT AGREEMENT
EXHIBIT
1
THIS
SETTLEMENT AGREEMENT (this “Agreement”), dated as
of April 20, 2010, is made by and between AVI BioPharma, Inc., an Oregon
corporation with its principal executive office located in Bothell, Washington
(“AVI” or the
“Company”), and
Xxxxxx X. Xxxxxxx (“Xx. Xxxxxxx”), Xxxxxx
Xxxxxxx (“Xx.
Xxxxxxx”), Rockall Emerging Markets Master Fund Limited (the “Fund”), Xxxxxxx Asset
Management, LLC (“Xxxxxxx”), Con Xxxx
(“Xx. Xxxx”)
and Xxxxx X’Xxxxxxxx (“Xx. X’Xxxxxxxx”)
(“Xx. Xxxxxxx”, “Xx. Xxxxxxx”, the “Fund”, “Xxxxxxx”, “Xx. Xxxx” and “Xx.
X’Xxxxxxxx” each a “Shareholder Party”
and, collectively, the “Shareholder Group”)
(each of the Company and the Shareholder Group, a “Party” to this
Agreement, and collectively, the “Parties”). Xxxxxx
Xxxxxx (“Xxxxxx”) is executing
this Agreement solely for the purpose of his agreement with the provisions set
forth in Section 3(a) and Section 8 and K. Xxxxxxx Xxxxxxx (“Xxxxxxx”) is
executing this Agreement solely for the purpose of his agreement with the
provisions set forth in Section 3(e).
WHEREAS,
the Shareholder Group may be deemed to beneficially own shares of common stock
of AVI (the “Common
Stock”) totaling, in the aggregate, 13,371,529 shares, or approximately
11.9% of the Common Stock issued and outstanding on the date
hereof;
WHEREAS,
on March 16, 2010, Xx. Xxxxxxx, Xx. Xxxxxxx and Xxxxxxx requested that the
Company call a special shareholders meeting to (i) remove certain members of the
Company’s board of directors (the “Board”) and (ii)
elect new directors to the Board to fill vacancies left by the removal of
directors; and
WHEREAS,
the Company and the Shareholder Group have agreed that it is in their mutual
interests to enter into this Agreement to set forth, among other things, the
parties’ mutual understanding relating to the 2010 annual meeting of
shareholders (the “2010 Annual Meeting”)
and other related personnel matters.
NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
and agreements contained herein, and other good and valuable consideration, the
Parties mutually agree as follows:
1. Representations
and Warranties of the Shareholder Group. The Shareholder Group
represents and warrants to the Company that (a) this Agreement has been duly
authorized, executed and delivered by the Shareholder Group, and is a valid and
binding obligation of the Shareholder Group, enforceable against the Shareholder
Group in accordance with its terms, except as enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws generally affecting the rights of creditors and
subject to general equity principles; and (b) the execution of this Agreement,
the consummation of any of the transactions contemplated hereby, and the
fulfillment of the terms hereof, in each case in accordance with the terms
hereof, will not conflict with, or result in a breach or violation of the
organizational documents of the Shareholder Group as currently in
effect.
2. Representations
and Warranties of the Company. The Company hereby
represents and warrants to the Shareholder Group that (a) this Agreement has
been duly authorized, executed and delivered by the Company, and is a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws generally affecting the rights of creditors and subject to general
equity principles; (b) the execution of this Agreement, the consummation of any
of the transactions contemplated hereby, and the fulfillment of the terms
hereof, in each case in accordance with the terms hereof, will not (1) conflict
with, result in a breach or violation of, constitute a default (or an event
which with notice or lapse of time or both could become a default) under or
pursuant to, result in the loss of a material benefit or give any right of
termination, amendment, acceleration or cancellation under, or result in the
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any law, any order of any court
or other agency of government, the Company’s Third Restated Articles of
Incorporation (as amended) (the “Restated Articles”),
the Company’s First Restated Bylaws (the “Restated Bylaws”), or the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company is a party or bound or to which its property or
assets is subject or (2) trigger any “change of control” provisions in any
agreement to which the Company is a party; and (c) no consent, approval,
authorization, license or clearance of, or filing or registration with, or
notification to, any court, legislative, executive or regulatory authority or
agency is required in order to permit the Company to perform its obligations
under this Agreement, except for such as have been obtained.
3. CEO
Resignation; Board Matters; Nominations at 2010 Annual Meeting.
(a) Simultaneously
with the execution of this Agreement and the Separation and Mutual Release
Agreement by and between Xxxxxx and the Company attached as Exhibit A hereto,
Xxxxxx hereby irrevocably resigns as the Chief Executive Officer and director of
the Company. The Parties hereto agree and acknowledge that the
preceding sentence shall serve as Xxxxxx’x formal irrevocable resignation
delivered to the Company and upon execution of this Agreement and the Separation
and Mutual Release Agreement, which agreement shall be executed concurrently
with the execution of this Agreement, no additional agreement, notice or action
shall be necessary to immediately effectuate such resignation in accordance
herewith. Xxxxxx agrees that he shall not contest or seek to contest
the validity or effectiveness of such resignation.
(b) As
set forth in the Separation and Mutual Release Agreement attached as Exhibit A,
the Company hereby acknowledges that Xxxxxx will be due certain severance
payments under Section 13(d) of the Employment Agreement with the Company, dated
February 8, 2008 and the Company shall pay such amounts promptly in accordance
with the terms of such agreement.
(c) Contemporaneous
with the resignation of Xxxxxx as the Chief Executive Officer, the Company will
appoint J. Xxxxx Xxxxx II, the Company’s current Senior Vice President and Chief
Financial Officer as the Company’s interim Chief Executive
Officer. The Company agrees that a permanent replacement Chief
Executive Officer will not be made or approved by the Board until after the 2010
Annual Meeting, provided that the Company may conduct a search for a permanent
Chief Executive Officer prior to such time.
(d) The
Parties acknowledge that the Board has amended, subject to the execution of this
Agreement by the Parties, (i) Section 3.2 of the Restated Bylaws to provide that
the number of directors of the Company shall be a minimum of one (1) and a
maximum of seven (7) as determined from time to time by the Board and that the
Board has determined to set the number at seven (7), and (ii) Section 3.10 of
the Restated Bylaws to clarify that a director appointed by the directors to
fill a vacancy shall fill the term of the director whose seat he or she is
succeeding.
(e) Simultaneously
with the execution of this Agreement and immediately prior to the effectiveness
of the amendment to Section 3.2 of the Restated Bylaws, Xxxxxxx hereby
irrevocably resigns as a director of the Company. The Parties hereto
agree and acknowledge that the preceding sentence shall serve as Xxxxxxx’x
formal irrevocable resignation delivered to the Company and no additional
agreement, notice or action shall be necessary to immediately effectuate such
resignation in accordance herewith. Xxxxxxx agrees that he shall not
contest or seek to contest the validity or effectiveness of such
resignation.
(f) Simultaneously
with the execution of this Agreement, the Board and the Nominating and Corporate
Governance Committee of the Board (the “Nominating
Committee”) shall appoint Xxxxxxx Xxxxx (the “New Director”) to
serve as a director of the Company to fill the vacancy created by the Xxxxxx
resignation and to serve in such capacity for the remainder of Xxxxxx’x term or
until his successor is duly elected and qualified, subject to the terms of this
Agreement. The Parties acknowledge that each of the Nominating
Committee and the Board has in good faith, reviewed and approved the credentials
of Xxxxxxx Xxxxx and in the exercise of its fiduciary duties, concluded that
such candidate has business experience in such areas as would reasonably be
expected to enhance the Board, and the Nominating Committee recommended to the
Board that it appoint, and the Board appointed, the New Director to fill the
vacancy on the Board created by Xxxxxx’x resignation and the Board has appointed
the New Director to serve as a member of the Nominating Committee immediately
upon his appointment to the Board. The New Director also shall be
eligible to be a member of any other committee of the Board (as the Board may
determine) if he meets any independence or other requirements under applicable
law and the rules and regulations of the Nasdaq Stock Market or other securities
exchange that the Company’s securities may then be traded for service on such
committee.
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(g) The
Parties acknowledge that the Nominating Committee has recommended to the Board,
and the Board, in good faith after exercising its fiduciary duties has
determined that, in connection with the 2010 Annual Meeting, the following
persons to be included in the Company’s slate of nominees for director shall (i)
not include current directors Xxxxxxx X. Xxxxx (“Xxxxx”) and
Xxxxxxxxxxx X. Xxxxxx (“Xxxxxx”), both of
whom have previously notified the Company of their decision not to stand for
re-election of directors at the end of their current term and (ii) shall include
current directors Xxxxxxx Xxxxxxxx (“Goolsbee”) and Xxx
Xxxxx (“Price”);
(h) The
New Director will be governed by the same protections and obligations regarding
confidentiality, conflicts of interests, fiduciary duties, trading and
disclosure policies and other governance guidelines, and shall have the same
rights and benefits, including (but not limited to) with respect to insurance,
indemnification, compensation and fees, as are generally applicable to any
non-employee directors of the Company.
(i) The
Company agrees that prior to the 2010 Annual Meeting, the Board and all
applicable committees of the Board shall not (i) increase the size of the Board
to more than seven (7) directors, (ii) make any change in the composition of the
Nominating Committee other than due to death or resignation of a member of such
committee, in which case any replacement member of such committee shall be
approved in writing by each member of the Shareholder Group, which consent shall
not be unreasonably withheld, (iii) make any change in the Restated Bylaws or
Restated Articles that adversely affects the right and ability of shareholders
to act by written consent, call for special meetings, or remove and replace
directors, or (iv) take any action that would otherwise adversely affect the
benefits to be received by the Shareholder Group from this
Agreement.
(j) The
Company agrees that the 2010 Annual Meeting will take place no later than June
15, 2010, and assuming a quorum is present at such meeting, such meeting shall
not be adjourned prior to the valid election of directors in accordance with the
terms of this Agreement without the written consent of each Shareholder
Party.
4. Standstill
Restrictions.
(a) Subject
to applicable law, including Section 13(d) and (g) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), the
Shareholder Group (and each member of the Shareholder Group, acting alone or
together with any other person or group) shall not, and shall cause their
Affiliates and Associates (as defined below) under its control or direction not
to, in any manner, directly or indirectly:
(i) for
a period of one (1) year from the date of this Agreement, solicit (as such term
is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or
consents to vote any securities of the Company, or make, or in any way
participate in, any “solicitation” of any “proxy” within the meaning of Rule
14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common
Stock with respect to any matter, or become a “participant” in any “contested
solicitation” for the election of directors with respect to the Company (as such
terms are defined or used in the Exchange Act and the rules promulgated
thereunder), other than solicitations or acting as a participant in support of
all of the Company’s nominees and proposals;
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(ii) for
a period of one (1) year from the date of this Agreement, deposit any Common
Stock in any voting trust or subject any Common Stock to any arrangement or
agreement with respect to the voting of any Common Stock, other than any such
voting trust, arrangement or agreement solely among the Shareholder
Group;
(iii) for
a period of one (1) year from the date of this Agreement, otherwise act, alone
or in concert with others to control or seek to control of the Board, or to
control, or seek to control or influence the management or the policies of the
Company, other than through non-public communications with the
Board;
(iv) for
a period of one (1) year from the date of this Agreement, otherwise act, alone
or in concert with others to control or seek to remove any director from the
Board, other than through non public communications with the Board;
or
(v) for
a period of one (1) year from the date of this Agreement, alone or in concert
with others, (1) seek to call a meeting of shareholders, (2) seek representation
on the Board, or (3) initiate, propose or otherwise solicit shareholders of the
Company for the approval of shareholder proposals, or cause, encourage, or
attempt to cause or encourage any other person to initiate any shareholder
proposal, except as specifically contemplated in this Agreement.
(b) Subject
to applicable law, including Section 13(d) and (g) of the Exchange Act and Rules
10b-5, 10b5-1 and 10b5-2 under the Exchange Act, for a period of six (6) months
from the date of this Agreement:
(i) Xx.
Xxxxxxx and Xx. Xxxxxxx shall not, and shall cause their Affiliates and
Associates (as defined below) under their control or direction not to, in any
manner, directly or indirectly, purchase or cause to be purchased or otherwise
acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3
promulgated under the Exchange Act) of any Common Stock or other securities
issued by the Company, if in any such case, immediately after the taking of such
action, Xx. Xxxxxxx and Xx. Xxxxxxx would, in the aggregate, collectively
beneficially own more than 12% of the then outstanding shares of Common Stock;
provided that the foregoing percentage of beneficially owned Common Stock shall
not include any unexercised outstanding warrants, or shares acquired upon
exercise of such warrants, held by either Xx. Xxxxxxx or Xx. Xxxxxxx;
or
(ii) the
Fund, Xxxxxxx, Xx. Xxxx and Xx. X’Xxxxxxxx shall not, and shall cause their
Affiliates and Associates (as defined below) under their control or direction
not to, in any manner, directly or indirectly, purchase or cause to be purchased
or otherwise acquire or agree to acquire beneficial ownership (as determined
under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or
other securities issued by the Company, if in any such case, immediately after
the taking of such action, the Fund, Xxxxxxx, Xx. Xxxx and Xx. X’Xxxxxxxx would,
in the aggregate, collectively beneficially own more than 6% of the then
outstanding shares of Common Stock; provided that the foregoing percentage of
beneficially owned Common Stock shall not include any unexercised outstanding
warrants, or shares acquired upon exercise of such warrants, held by either the
Fund, Xxxxxxx, Xx. Xxxx and Xx. X’Xxxxxxxx.
(c) Notwithstanding
anything contained herein to the contrary, any member of the Shareholder Group,
and any Affiliate or Associate of any such member, shall be entitled
to:
(i) subject
to Section 5, vote their shares on any proposal duly brought before the 2010
Annual Meeting, or otherwise vote as the Shareholder Group or each individual
member of the Shareholder Group determines in its sole discretion;
4
(ii) disclose,
publicly or otherwise, how it intends to vote or act with respect to any
securities of the Company, any shareholder proposal or other matter to be voted
on by the shareholders of the Company (other than the election of directors) and
the reasons therefor; or
(iii) propose
a slate of nominees for election as directors and/or one or more proposal(s) for
consideration or approval by shareholders at the 2011 annual meeting of
shareholders (the “2011 Annual Meeting”)
to comply with the advance notice provisions or other requirements of the
Restated Articles or the Restated Bylaws.
(d) As
used in this Agreement, the terms “Affiliate” and “Associate” shall have
the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the
Exchange Act.
5. Actions
by the Shareholder Group.
(a) At
the 2010 Annual Meeting, the Shareholder Group shall vote, and cause their
respective officers, directors, employees and agents to vote, all of the shares
of Common Stock beneficially owned by him or them for (i) each of the Company’s
nominees (which nominees have been made in compliance with the terms of this
Agreement) for election to the Board and (ii) the ratification of the
appointment of the Company’s independent auditors.
(b) Following
execution of this Agreement by the Parties, the Shareholder Group shall not
submit any proposals or nominations for election to the Board at the 2010 Annual
Meeting and shall revoke its prior demand for a special meeting of the
shareholders and revoke all other demands previously made to the
Board.
(c) Following
execution of this Agreement by the Parties, the Shareholder Group shall amend
its Schedule 13D to indicate the termination of the demand for a special meeting
of shareholders and the execution of this Agreement.
6. Termination. This Agreement shall
terminate and the obligations of the Parties under this Agreement shall cease on
the earlier of the following (the “Termination
Date”):
(a) at
the option of the Company, upon a material breach by the Shareholder Group of
any obligation hereunder which has not been cured within 14 days after the
Shareholder Group receives written notice of such breach from the
Company;
(b) at
the option of the Shareholder Group, upon a material breach by the Company of
any obligation hereunder which has not been cured within 14 days after the
Company receives written notice of such breach from the Shareholder
Group;
(c) seven
days prior to the date that a Company shareholder may first submit a nomination
for the election of directors at the 2011 Annual Meeting pursuant to the
Restated Bylaws;
(d) on
the day that the Board publicly announces its nominees for election as directors
at the 2011 Annual Meeting; or
(e) at
any time, upon the written consent of all of the Parties.
7. Public
Announcement.
The Company and the Shareholder Group shall promptly disclose the
existence of this Agreement after its execution pursuant to a joint press
release that is mutually acceptable to the parties, including a description of
the material terms of this Agreement. Subject to applicable law, none
of the Parties shall disclose the existence of this Agreement until the joint
press release is issued.
5
8. Releases.
(a) The
Shareholder Group hereby agrees for the benefit of the Company, and, to the
extent acting in such capacity, each controlling person, officer, director,
shareholder, agent, affiliate, employee, partner, attorney, heir, assign,
executor, administrator, predecessor and successor, past and present, of the
Company (the Company and each such person being a “Company Released
Person”) as follows:
(i) The
Shareholder Group, for themselves and for their members, officers, directors,
assigns, agents and successors, past and present, hereby agrees and confirms
that, effective from and after the date of this Agreement, they hereby
acknowledge full and complete satisfaction of, and covenant not to xxx, and
forever fully release and discharge each Company Released Person of, and hold
each Company Released Person harmless from, any and all rights, claims,
warranties, demands, debts, obligations, liabilities, costs, attorneys’ fees,
expenses, suits, losses and causes of action of any nature whatsoever, whether
known or unknown, suspected or unsuspected, matured or unmatured, fixed or
contingent relating in any way to the affairs of the Company that the
Shareholder Group may have against the Company Released Persons, in each case
with respect to events occurring prior to the date of the execution of this
Agreement (collectively, “Shareholder Group Released
Claims”).
(ii) The
Shareholder Group understands and agrees that the Shareholder Group Released
Claims released by the Shareholder Group above include not only those claims
presently known but also include all unknown or unanticipated claims, rights,
demands, actions, obligations, liabilities, and causes of action of every kind
and character that would otherwise come within the scope of the Shareholder
Group Released Claims as described above and which if known by
the Shareholder Group would have materially affected this settlement with the
Company. The Shareholder Group understands that they may hereafter discover
facts different from or in addition to what they now believe to be true, which
if known, could have materially affected this release of the Shareholder Group
Released Claims, but they nevertheless waive any claims or rights based on
different or additional facts.
(iii) With
respect to the Shareholder Group Released Claims, the Shareholder Group, for
themselves and for their members, officers, directors, assigns, agents and
successors, past and present, expressly waives as of the date of the execution
of the Agreement all provisions, rights and benefits of California Civil Code
section 1542 and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to California Civil Code section
1542. California Civil Code section 1542 provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
(b) The
Company hereby agrees for the benefit of the Shareholder Group, and, to the
extent acting in such capacity, each controlling person, officer, director,
stockholder, agent, affiliate, employee, partner, attorney, heir, assign,
executor, administrator, predecessor and successor, past and present, thereof,
as well as the New Director, but does not include any member of the Board (the
Shareholder Group and each such person being a “Shareholder Released
Person”) as follows:
(i) The
Company, for itself and for its affiliates, directors, assigns, and successors,
past and present, hereby agrees and confirms that, effective from and after the
date of this Agreement, it hereby acknowledges full and complete satisfaction
of, and covenants not to xxx, and forever fully releases and discharges each
Shareholder Released Person of, and holds each Shareholder Released Person
harmless from, any and all rights, claims, warranties, demands, debts,
obligations, liabilities, costs, attorneys’ fees, expenses, suits, losses and
causes of action of any nature whatsoever, whether known or unknown, suspected
or unsuspected, matured or unmatured, fixed or contingent relating in any way to
the affairs of the Company that the Company may have against the Shareholder
Released Persons, in each case with respect to events occurring prior to the
date of the execution of this Agreement (collectively, “Company Released
Claims”).
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(ii) The
Company understands and agrees that the Company Released Claims released by the
Company above include not only those claims presently known but also include all
unknown or unanticipated claims, rights, demands, actions, obligations,
liabilities, and causes of action of every kind and character that would
otherwise come within the scope of the Company Released Claims as described
above and which if known by the Company would have materially affected this
settlement with the Shareholder Group. The Company understands that
it may hereafter discover facts different from or in addition to what it now
believes to be true, which if known, could have materially affected this release
of the Company Released Claims, but it nevertheless waives any claims or rights
based on different or additional facts.
(iii) With
respect to the Company Released Claims, the Company, for itself and for its
affiliates, directors, assigns, and successors, past and present, expressly
waives as of the date of the execution of the Agreement all provisions, rights
and benefits of California Civil Code section 1542 and all provisions, rights
and benefits conferred by any law of any state or territory of the United
States, or principle of common law, which is similar, comparable or equivalent
to California Civil Code section 1542. California Civil Code section
1542 provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
(c) The
Parties intend that the foregoing releases be broad with respect to the matters
released, provided, however, this release of the Shareholder Group Released
Claims and the Company Released Claims shall not include claims to enforce the
terms of this Agreement; and provided further that nothing in the foregoing
release shall be deemed or construed, now or hereafter, as limiting in any
manner any right of indemnification inuring to the benefit of any director or
former director of the Company arising under the Restated Articles, the Restated
Bylaws or otherwise.
9. Remedies.
(a) Each
of the Parties acknowledges and agrees that a breach or threatened breach by any
Party may give rise to irreparable injury inadequately compensable in damages,
and accordingly each Party shall be entitled to injunctive relief to prevent a
breach of the provisions hereof and to enforce specifically the terms and
provisions hereof in any state or federal court having jurisdiction, in addition
to any other remedy to which such aggrieved Party may be entitled to at law or
in equity.
(b) In
the event a Party institutes any legal action to enforce such Party’s rights
under, or recover damages for breach of this Agreement, the prevailing party or
parties in such action shall be entitled to recover from the other party or
parties all costs and expenses, including but not limited to reasonable
attorneys’ fees, court costs, witness fees, disbursements and any other expenses
of litigation or negotiation incurred by such prevailing party or
parties.
10. Notices.
Any notice or other communication required or permitted to be given under this
Agreement will be sufficient if it is in writing, sent to the applicable address
set forth below (or as otherwise specified by a Party by notice to the other
Parties in accordance with this Section 12) and delivered personally or sent by
recognized overnight courier, postage prepaid, and will be deemed given (a) when
so delivered personally, or (b) if sent by recognized overnight courier, one day
after the date of sending.
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If to the
Company:
AVI
BioPharma, Inc.
0000
Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Executive Officer
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
with
copies (which shall not constitute notice to the Company) to:
Xxxxx
Xxxxxx Xxxxxxxx LLP
0000 XX
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
and
Cooley
Godward Kronish LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
Attention: Xxxxx
X. Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
if to any
Shareholder Party:
c/o Xxxx
X. Xxxxxxxx, Esq.
Moomjian,
Waite, Wactlar & Xxxxxxx, LLP
000
Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with a
copy (which shall not constitute notice to any Shareholder Party)
to:
K&L
Gates LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
11. Entire
Agreement. This
Agreement constitutes the entire agreement between the Parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the Parties in connection with
the subject matter hereof.
12. Counterparts;
Facsimile. This
Agreement may be executed in any number of counterparts and by the Parties in
separate counterparts, and signature pages may be delivered by facsimile, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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13. Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
14. Governing
Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Washington, without regard to choice of law principles that
would compel the application of the laws of any other jurisdiction.
15. Severability. In the event one or more of
the provisions of this Agreement should, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
16. Successors and
Assigns. This
Agreement shall not be assignable by any of the Parties. This Agreement,
however, shall be binding on successors of the Parties.
17. Amendments. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by all of the Parties.
18. Further
Action. Each
Party agrees to execute such additional reasonable documents, and to do and
perform such reasonable acts and things necessary or proper to effectuate or
further evidence the terms and provisions of this Agreement.
[Signatures
are on the following page.]
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IN
WITNESS WHEREOF, the Parties have executed this Settlement Agreement as of the
day and year first above written.
|
Xx.
Xxxxxxx
|
|
|
COMPANY
|
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X. Xxxxxxx
|
|
AVI
BIOPHARMA, INC.
|
|
|
By:
J. Xxxxx Xxxxx
II
|
Xx.
Xxxxxxx
|
|
Its:
Interim President and
CEO
|
/s/
Xxxxxx Xxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
|
|
FUND
|
|
|
Rockall
Emerging Markets Master Fund Limited
|
|
|
Xx.
Xxxx
|
|
|
By: Xxxxxxx
Asset Management, LLC
|
/s/
Con Xxxx
|
|
Its: Investment
Manager
|
Con
Xxxx
|
|
By:
/s/ Con Xxxx
Name: Con
Xxxx
Title: Manager
|
|
|
Xx.
X’Xxxxxxxx
|
|
|
/s/
Xxxxx X’Xxxxxxxx
|
|
|
XXXXXXX
|
Xxxxx
X’Xxxxxxxx
|
|
Xxxxxxx
Asset Management, LLC
|
|
|
By:
/s/ Con Xxxx
Name: Con
Xxxx
Title: Manager
|
Only for
purposes of indicating agreement with Section 3(a) and Section 8 of this
Settlement Agreement
XXXXXX
/s/ Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
Only for
purposes of indicating agreement with Section 3(e) of this Settlement
Agreement
XXXXXXX
/s/
K. Xxxxxxx Xxxxxxx
K.
Xxxxxxx Xxxxxxx
