Avi Biopharma Inc - Current report filing (8-K)
October 24 2007 - 4:15PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of
Earliest Event Reported):
October 22, 2007
AVI BioPharma, Inc.
(Exact name of Company as
specified in its charter)
Oregon
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0-22613
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93-0797222
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(State or
other
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(Commission
File No.)
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(I.R.S.
Employer
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jurisdiction
of
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Identification
No.)
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incorporation)
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One S.W.
Columbia, Suite 1105
Portland,
OR 97258
(Address of principal
executive offices)
(503)
227-0554
Registrants telephone
number, including area code
Not
Applicable
(Former name or former
address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
4 - Matters Related to Accountants and Financial Statements
Item
4.02(a) - Non-Reliance on Previously Issued Financial Statements or a Related
Audit Report or Completed Interim Review
On
October 22, 2007, the Audit Committee and Board of Directors of AVI BioPharma,
Inc. concluded that the Companys previously issued financial statements for
the fiscal years 2004 through 2006 contained in the Companys Annual Report on
Form 10-K for the year ended December 31, 2006 and the financial statements for
the for the periods ended March 31, 2007 and June 30, 2007 contained in its
Quarterly Reports on Form 10-Q should be restated. Such prior financial
statements should no longer be relied upon. This conclusion came in response to
a comment raised by the Securities and Exchange Commission regarding the
Companys treatment of warrants issued by the Company in December 2003, January
2004 and January and November, 2005. Previously, the Company had classified these
warrants in the shareholders equity section of the Companys balance sheet. Under
the accounting literature, if a financial instrument requires settlement in
registered shares, the financial instrument cannot be classified within equity,
as the companys ability to maintain an effective registration statement is outside
that companys control. The warrants issued by the Company require settlement
in registered shares and accordingly should be recorded as a liability at fair
value at the date of grant, and marked to market at each reporting period. The
Company has discussed the matters disclosed in this Current Report on Form 8-K
with the Companys independent registered public accounting firm, KPMG LLP.
The
Company has evaluated the financial statement impact in each of the previously
filed reporting periods effected, and concluded that the changes are
quantitatively material to its previously filed financial statements. The amounts
previously recorded in each of the three years ended December 31, 2006 will be
adjusted to reduce equity and increase liabilities for the issued warrants, and
changes in fair value will be recorded on their own line item. There is no
effect on cash flows as a result of this change as the mark to market
adjustment would have been reflected as a non-cash charge within the Companys
Statements of Operations.
The
Company will amend its previously filed Form 10-K for 2006, including quarterly
data within that filing, and its Form 10-Q for the first and second quarters of
2007, as soon as practicable. The Companys independent registered accounting
firm has not yet completed its audit procedures relating to the restatement,
but the Company currently expects the impact to the Statements of Operations to
be as follows:
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Quarter ended
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Year ended December 31,
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March 31,
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June 30,
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$ in millions
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2004
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2005
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2006
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2007
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2007
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Gain
(loss) on warrants
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2.8
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(1.5)
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2.4
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1.5
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0.8
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As
part of the restatement process, the Company is re-evaluating the effectiveness
of the design and operation of its disclosure controls and procedures in
accordance with Exchange Act Rules 13a-15 and 15d-15.
Section 9
Financial
Statements and Exhibits
Item 9.01
Financial Statements and
Exhibits.
(d)
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Exhibits
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99.1
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Press
Release
dated October 24, 2007
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2
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Portland, State of Oregon, on October 24, 2007.
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AVI
BioPharma, Inc.
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By:
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/s/ ALAN
P. TIMMINS
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Alan
P. Timmins
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President and Chief Operating Officer
(Principal Operating Officer)
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3
Exhibit Index
Exhibit
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Description
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Exhibit
99.1
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Press
Release dated October 24, 2007
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4
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