Avi Biopharma Inc - Current report filing (8-K)
December 13 2007 - 9:05AM
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):
December 12,
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
jurisdiction of
incorporation)
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(Commission File No.)
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(I.R.S. Employer
Identification No.)
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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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Item
1.01 Entry Into a Material
Definitive Agreement.
Item 7.01 Regulation FD Disclosure.
Item 8.01 Other Events.
On December 12,
2007,
AVI BioPharma, Inc.
(the Company) entered into a Placement
Agency Agreement with Citigroup Global Markets Inc., Oppenheimer & Co.
Inc., and Maxim Group, LLC (collectively, the Placement Agents) who are
acting as exclusive placement agents for a proposed registered direct offering
of 10,696,616 units at a price of $1.90 per unit (the Offering). Each unit consists of one share of common
stock and a warrant to purchase
0.5 shares of
the Companys common stock. The warrants
have an exercise price of $2.45 per share and are exercisable at any time after
the six-month anniversary of the closing of the transaction and before the
fifth anniversary of the closing of the transaction. The form of warrant to be issued to the
purchasers of units in connection with the Offering is included as Exhibit 4.5
to this Form 8-K and is incorporated herein by reference.
The Company has agreed to
pay the Placement Agents an aggregate fee of 7.00% of the gross proceeds from
the Offering, and will reimburse the Placement Agents for certain reasonable
expenses incurred by them in connection with the Offering. The closing of the offering is expected to
take place on December 18, 2007, subject to the satisfaction of customary
closing conditions. The Company expects
to receive approximately $20.3 million in gross proceeds. The Placement Agents have no commitment to
purchase any of the units and are acting only as agents in obtaining
indications of interest for the units from investors who will purchase the
units directly from the Company. The
Placement Agency Agreement requires us to indemnify the Placement Agents and
certain of their affiliates against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the Securities Act) and the
Securities Exchange Act of 1934, as amended, or to contribute to payments the
Placement Agents may be required to make because of any of those liabilities.
Prior to the transaction, there were no material relationships between the
Company and the Placement Agents. The
Placement Agency Agreement is included as Exhibit 1.01 to this Form 8-K
and is incorporated herein by reference.
The Company also entered
into subscription agreements (the Subscription Agreements) with select
institutional investors in connection with the Offering. The form of Subscription Agreement is
included as Exhibit 99.1 to this Form 8-K and is incorporated herein
by reference.
The description of the
offering provided herein does not purport to be complete and is qualified in
its entirety by reference to the Placement Agency Agreement and the form of
Subscription Agreement. The Company has
filed with the Securities and Exchange Commission both the Placement Agency
Agreement and the form of Subscription Agreement in order to provide investors
and the Companys stockholders with information regarding their respective
terms and in accordance with applicable rules and regulations of the
Securities and Exchange Commission. Each
agreement contains representations and warranties that the parties made to, and
solely for the benefit of, the other and expressly intended third party
beneficiaries in the context of all of the terms and conditions of the
agreement and in the context of the specific relationship between the
parties. Accordingly, investors and
shareholders should not rely on the representations and warranties. Furthermore, investors and stockholders
should not rely on the representations and warranties as characterizations of
the actual state of facts, since they were only made as of the date of the respective
agreements. Information concerning the
subject matter of such representations and warranties may change after the date
of the respective agreements, which subsequent information may or may not be
fully reflected in the Companys reports or other filings with the Securities
and Exchange Commission.
The units will be issued pursuant to a prospectus
supplement dated December 12, 2007, filed with the Securities and Exchange
Commission pursuant to Rule 424(b)(2) of the Securities Act. The issuance of the units is pursuant to a
shelf takedown from the Companys registration statement on Form S-3 (File
No. 333-138299), including
a related prospectus, which was declared effective by the Securities and
Exchange Commission on November 22, 2006.
A copy of the opinion of Davis Wright Tremaine LLP relating to the
legality of the issuance and sale of the shares and warrants in the offering is
attached hereto as Exhibit 5.1.
2
On December 12, 2007, the Company issued a press release announcing the execution of the Placement Agency Agreement, entry into the Subscription Agreements and the general terms of the units to be offered. The text of the press release is included as Exhibit 99.2 to this Form 8-K and is incorporated herein by reference.
Item
9.01 Financial Statements
and Exhibits.
(d)
Exhibits
The following exhibits are filed herewith:
1.01
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Placement Agency
Agreement dated December 12, 2007 between the Company and the Placement
Agents
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4.5
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Form of Warrant
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5.1
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Opinion of Davis Wright
Tremaine LLP
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23.1
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Consent of Davis Wright
Tremaine LLP (contained in Exhibit 5.1)
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99.1
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Form of
Subscription Agreement
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99.2
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Press Release dated
December 12, 2007 announcing the execution of the Placement Agency Agreement
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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 December 13, 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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Exhibit Index
Exhibit
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Description
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1.01
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Placement Agency
Agreement dated December 12, 2007 between the Company and the Placement
Agents
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4.5
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Form of Warrant
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5.1
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Opinion of Davis Wright
Tremaine LLP
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23.1
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Consent of Davis Wright
Tremaine LLP (contained in Exhibit 5.1)
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99.1
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Form of
Subscription Agreement
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99.2
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Press Release dated
December 12, 2007 announcing the execution of the Placement Agency
Agreement
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