As filed
with the Securities and Exchange Commission on May 16, 2008
Registration
No. 333-150021
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment
No.1
to
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
AVI BIOPHARMA, INC.
(Exact name of registrant as specified in its
charter)
Oregon
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93-0797222
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(State or other
jurisdiction of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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One S.W. Columbia St.,
Suite 1105
Portland, OR 97258
(503) 227-0554
(Address, including zip code, and telephone
number, including area code,
of registrants principal executive offices)
Alan P. Timmins
President and Chief Operating Officer
AVI BioPharma, Inc.
One S.W. Columbia, Suite 1105, Portland, OR 97258
(503) 227-0554
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies
to:
Michael C. Phillips, Esq.
Davis Wright Tremaine LLP
23
rd
Floor
1300 S.W. Fifth Avenue
Portland, Oregon 97201
(503) 241-2300
Approximate
date of proposed sale to the public:
From time to time after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following
box.
x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
If this Form is filed as a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, check the following box.
o
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company
in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
o
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Accelerated
filer
x
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Non-accelerated filer
o
(Do not check if a smaller reporting
company)
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Smaller
reporting company
o
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CALCULATION OF REGISTRATION FEE
Title of Class of
Securities to be
Registered
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Amount to be
Registered (1),(2)
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Proposed Maximum
Aggregate Offering
Price per share (3)
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Proposed Maximum
Aggregate Offering
Price (3)
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Amount of
Registration
Fee (3),(4)
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Common Stock, par value
$.0001 per share
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5,647,016
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$
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1.5325
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$
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18,254
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$
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1
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(1) Pursuant to Rule 416 under the
Securities Act, includes such indeterminate amounts and numbers of common stock
as may be issued upon a stock split, stock dividend or similar transaction
(2) 5,635,105 shares of common stock were covered by the
Registration Statement on Form S-3 (File No. 333-150021) of AVI BioPharma, Inc.,
which was filed with the Securities and Exchange Commission on April 1, 2008.
Under Amendment No. 1 to the Registration Statement, filed May 16, 2008, an
additional 11,911 shares were registered, for a total of 5,647,016 shares.
(3) Estimated solely for purposes of
calculating the additional registration fee payable on account of the 11,911
additional shares to be registered under this Amendment No.1 pursuant to Rule 457(c) and
Section 6(b) of the Securities Act of 1933 using the average of the
high and low prices of the registrants common stock as reported on The Nasdaq
Global Market on May 15, 2008.
(4) Represents the fee payable on the additional number of
shares to be registered. Fee of $407 was previously paid when the Registration
Statement on Form S-3 (File No. 333-150021) of AVI BioPharma, Inc., was initially
filed with the Securities and Exchange Commission on April 1, 2008.
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not
complete and may be changed. The selling shareholders named in this prospectus
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission becomes effective. This prospectus is not an
offer to sell these securities and the selling shareholders named in this prospectus
are not soliciting offers to buy these securities in any jurisdiction where the
offer and sale is not permitted.
SUBJECT TO COMPLETION, DATED May 16, 2008
PROSPECTUS
AVI BIOPHARMA, INC.
5,647,016
Shares
of Common Stock
This prospectus relates
to the offer and sale from time to time by the selling shareholders identified
in this prospectus, and their pledgees, assignees and successors-in-interest,
of 5,647,016 shares of our common stock. We are filing the registration
statement of which this prospectus is a part in order to fulfill contractual
obligations with the selling shareholders.
The prices at which such
selling shareholders may sell the shares in this offering will be determined by
the prevailing market price for the shares or in negotiated transactions. We
will not receive any of the proceeds from the sale of the shares. See Plan of
Distribution beginning on page
6
.
Our common stock is
quoted on the Nasdaq Global Market under the symbol AVII. The closing sales
price of our common stock on the Nasdaq Global Market on May 15, 2008 was $1.53
per share.
Investing in our common stock involves
a high degree of risk. See
Risk Factors
beginning on page 3.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date
of this prospectus is May 16, 2008.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus,
including information incorporated by reference in this prospectus, or any
supplement to which we have referred you. We have not authorized anyone else to
provide you with different information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents or that any document
incorporated by reference is accurate as of any date other than its filing
date. You should not consider this prospectus to be an offer or solicitation relating
to the securities in any jurisdiction in which such an offer or solicitation
relating to the securities is not authorized. Furthermore, you should not
consider this prospectus to be an offer or solicitation relating to the
securities if the person making the offer or solicitation is not qualified to
do so, or if it is unlawful for you to receive such an offer or solicitation.
1
PROSPECTUS
SUMMARY
This summary highlights important
features of this offering and the information included or incorporated by
reference in this prospectus. This summary does not contain all of the
information that you should consider before investing in our common stock. You
should read this prospectus and the information and documents incorporated by
reference carefully. Such documents contain important information you should
consider when making your investment decision. See Incorporation of Certain
Documents by Reference on page .
Unless the context otherwise
requires, all references to we, our, our company, or the Company in this
prospectus refer to AVI BioPharma, Inc., an Oregon corporation.
About AVI BioPharma, Inc.
We are a
biopharmaceutical company developing therapeutic products principally based on
third-generation NEUGENE® antisense technology. Our principal products in
development target life-threatening diseases, including cardiovascular,
infectious, and genetic diseases. Currently approved drugs or other therapies
for these diseases often prove to be ineffective or produce undesirable side
effects. Our pre-clinical and clinical studies indicate that our technology may
lead to development of drugs that we believe offer more effective treatment
options with fewer side effects than currently approved products. A patent
estate including 186 patents (foreign and domestic) issued or licensed to us
and 192 pending patent applications (domestic and foreign) protects our
technologies. Our lead product candidate, Resten-NG®, which is targeted at
cardiovascular disease, addresses a market we believe may exceed $3 billion
worldwide.
Our executive offices are
located at One S.W. Columbia, Suite 1105, Portland, OR 97258. Our
telephone number is (503) 227-0554, fax number is (503) 227-0751, and our
website address is www.avibio.com. The information on our website is not
incorporated by reference into this prospectus.
This prospectus
includes our trademarks and registered trademarks, including NeuGene®,
Avicine®, Resten-NG®, Resten-CP, and Oncomyc-NG. Each other trademark, trade
name or service mark appearing in this annual report belongs to its holder.
The Offering
Common stock offered by selling shareholders
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5,647,016 shares
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Use of proceeds
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We will not
receive any proceeds from the sale of shares in this offering. See Selling
Shareholders.
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Nasdaq National Market
symbol
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AVII
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2
RISK
FACTORS
Investment in our
securities involves a high degree of risk. You should carefully consider the
risks described in the section entitled Risk Factors in any prospectus as
well as in the section entitled Risk Factors contained in our most recent
annual report on Form 10-K, which has been filed with the SEC and are
incorporated herein by reference in their entirety, as well as other
information in this prospectus and any other documents or reports incorporated
by reference herein before purchasing any of our securities. Each of the risks
described in these sections and documents could materially and adversely affect
our business, financial condition, results of operations and prospects, and
could result in a loss of your investment.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus
and the information incorporated by reference herein and therein contain
forward-looking statements regarding our plans, expectations, estimates and
beliefs. Our actual results could differ materially from those discussed in, or
implied by, these forward-looking statements. Forward-looking statements are
identified by words such as believe, anticipate, expect, intend,
plan, will, may, and other similar expressions. In addition, any
statements that refer to expectations, projections or other characterizations
of future events or circumstances are forward-looking statements. We have based
these forward-looking statements largely on our expectations. Forward-looking
statements in this report include, but are not necessarily limited to, those
relating to:
·
our intention to introduce new products;
·
receipt of any required FDA or other
regulatory approval for our products;
·
our expectations about the markets for
our products;
·
acceptance of our products, when
introduced, in the marketplace;
·
our future capital needs;
·
results of our research and development
efforts, and
·
success of our patent applications.
Forward-looking
statements are subject to risks and uncertainties, certain of which are beyond
our control. Actual results could differ materially from those anticipated as a
result of the factors described in the Risk Factors and detailed herein and
in our other Securities and Exchange Commission filings, including among
others:
·
the effect of regulation by the FDA and
other governmental agencies;
·
delays in obtaining, or our inability to obtain, approval by the FDA or
other regulatory authorities for our products;
·
research and development efforts, including delays in developing, or
the failure to develop, our products;
·
the development of competing or more
effective products by other parties;
·
the results of pre-clinical and clinical
testing;
·
uncertainty of market acceptance of our products;
·
problems that we may face in
manufacturing, marketing, and distributing our products;
·
our inability to raise additional capital when needed;
·
delays in the issuance of, or the failure to obtain, patents for
certain of our products and technologies; and
·
problems with important suppliers and
business partners.
Because of these
risks and uncertainties, the forward-looking events and circumstances discussed
in this prospectus or incorporated by reference might not occur. Factors that
cause actual results or conditions to differ from those anticipated by these
and other forward-looking statements
3
include
those more fully described in the Risk Factors section and elsewhere in this
prospectus. Except for our ongoing obligations to disclose material information
as required by the federal securities laws, we undertake no obligation to
release publicly any revisions to any forward-looking statements to reflect
events or circumstances after the date hereof or to reflect the occurrence of
unanticipated events. All of the above factors are difficult to predict,
contain uncertainties that may materially affect our actual results and may be
beyond our control. New factors emerge from time to time, and it is not
possible for our management to predict all of such factors or to assess the
effect of each factor on our business.
USE OF PROCEEDS
The proceeds from the sale of the selling
shareholders shares of common stock will belong to the selling
shareholders. We will not receive any
proceeds from the sale by the selling shareholders of these shares of common
stock. See Selling Shareholders.
DESCRIPTION OF TRANSACTION
On
March
12, 2008, we entered into an Agreement and Plan
of Merger (the Merger Agreement) with Ercole Biotech, Inc., a privately
held Delaware corporation (Ercole). Under the terms of the Merger Agreement,
a wholly-owned subsidiary of AVI merged with and into Ercole, with Ercole
surviving the merger as a wholly-owned subsidiary of the Company (the
Merger). Under the terms of the Merger Agreement, AVI issued 5,647,016 shares
of AVI Common Stock to shareholders of Ercole other than AVI in exchange for
all of the issued and outstanding shares of Ercoles common stock and preferred
stock held by such holders, and, subject to receipt of information required by
applicable law from each such holder, we agreed to register those 5,647,016
shares of AVI Common Stock for resale by the Ercole shareholders. AVI also held
shares of Ercole preferred stock, but received no portion of the merger
consideration for the shares it held.
SELLING SHAREHOLDERS
This prospectus relates to the resale from
time to time of up to a total of 5,647,016 shares of our common stock by the
selling shareholders. The shares were
issued in a private placement exempt from registration requirements under the
Securities Act of 1933, as amended (the Securities Act). Under the Merger
Agreement, we agreed to file a registration statement, of which this prospectus
is a part, with the SEC to register the resale of these shares and to keep the
registration statement effective until September 20, 2009.
The following table, based upon information
currently known by us, sets forth as of
May 16, 2008: (i) the
number of shares held of record or beneficially by each selling shareholder as
of such date and (ii) the number of shares that may be offered under this
prospectus. Beneficial ownership is determined in accordance with the rules of
the SEC, and includes voting or investment power with respect to shares, and
includes shares of common stock plus any securities held by the holder
exercisable for or convertible into shares of common stock within sixty (60)
days after May 16, 2008, in
accordance with Rule 13d-3(d)(1) under the Securities Exchange Act of
1934, as amended. None of the selling shareholders are a broker-dealer or an
affiliate of a broker-dealer.
Name of Selling
Shareholder
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Common Stock
Beneficially owned
prior to the offering
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Common stock
owned upon
completion of the
offering (2)
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Percentage of
common stock
owned upon
completion of this
offering
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Altman, Sidney
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4,270
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0
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*
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ARBA Partners, LP (3)
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20,118
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0
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*
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Bebenek, Tadeusz
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500,279
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0
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*
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Blass, Josef and Ewa, JTROS
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85,631
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0
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*
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Bocckino, Stephen B.
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74,446
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0
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*
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Brostoff, Steven W.
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29,778
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0
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*
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4
Buckley,
Brian
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15,484
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0
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*
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Dominski,
Zbigniew
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6,321
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0
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*
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Duncan,
Clayton I.
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997,138
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229,846
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*
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Gorlach,
Jorn and Jenifer, JTROS
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104,224
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0
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*
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Graziewicz,
Maria
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74,446
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0
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*
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H&M
Holdings, LLC (4)
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62,019
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33,432
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*
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Juliano,
Rudolph L.
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5,878
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0
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*
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Kenan -
Flagler Business School Foundation (5)
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11,911
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0
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*
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Kole,
Ryszard
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94,919
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0
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*
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Kole,
Ryszard and Jolanta, JTROS
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1,865,623
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0
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*
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Kopczynski,
Casey
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14,889
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0
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*
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Kouri,
Richard E.
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205,471
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0
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*
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Love, W.
Bennett
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745,960
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147,412
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*
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Maroglou,
Athanasios
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107,202
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0
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*
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Mitchell,
Beverly S.
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5,189
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0
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*
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North
Carolina Biotechnology Center (6)
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120,167
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0
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*
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Patterson,
Winston Campbell
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5,878
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0
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*
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Redick, Ann
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59,557
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0
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*
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Reichow,
Richard W.
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422,767
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118,158
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*
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Roberts,
Jennifer Dillman
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1,191
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0
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*
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Sazani,
Peter
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233,265
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0
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*
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Summerton,
James E.
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96,658
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0
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*
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University
of North Carolina at Chapel Hill Foundation, The (7)
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154,353
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0
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*
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Venuti,
Robert P.
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25,948
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0
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*
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Ward, David
P.
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12,973
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0
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*
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Woody, Jr.
W. Ruffin
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11,911
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0
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*
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(1) Of
the total shares of common stock listed as owned by the selling shareholders, a
total of 621,158 shares are held in an escrow account to secure certain
indemnification and other obligations of the former shareholders of Ercole in
connection with the Merger. It is
expected that these shares (less any shares that may be distributed from the
escrow account to us in satisfaction of indemnification claims) will be
released from escrow and distributed to the selling shareholders on or about March 20,
2009. The number of shares indicated as
owned by each selling shareholder includes those shares which such selling
shareholder is entitled to receive upon distribution of these shares from the escrow
account.
(2) We
do not know when or in what amounts a selling shareholder may offer shares for
sale. The selling shareholders may not
sell any or all of the shares offered by this prospectus. Because the selling stockholders may offer
all or some of the shares pursuant to this offering, we cannot estimate the
number of the shares that will be held by the selling shareholders after
completion of the offering. However, for
purposes of this table, we have assumed the sale by the selling shareholders of
all of the shares of common stock available for resale under this
prospectus. Percent calculations are
based on 70,429,110 shares of our common stock issued and outstanding as of March 20,
2008.
(3) C.D.M.
Properties LLC is the general partner of this selling shareholder. Clara
Markowicz, Martin Jaffe and Victor Markowicz are the managers of C.D.M.
Properties LLC and exercise the voting and dispositive powers with regard to
the registered shares.
(4) Fred
Hutchison, Allen Baum, John Fogg and William Wofford are the current managers
of this selling
5
shareholder
and exercise the voting and dispositive powers with regard to the registered
shares.
(5) W. Steven Jones, John C. OHara, Jr.,
William Hugh McLean, David W. Stevens, James W. Dean, David A. Hoffman, Gregory
W. Brown, Susan Cates, Robert C. Eubanks, Jr., J. Alston Gardner, Paul J.
Rizzo, William L. Rogers, and Thomas J. Ward are current members of the Board
of Directors of this selling shareholder, and exercise the voting and dispositive
powers with regard to the registered shares.
(6) E. Norris Tolson is President and CEO of this selling
shareholder and exercises the voting and dispositive powers with regard to the
registered shares.
(7) Richard L. Mann is Treasurer of this selling shareholder and
exercises the voting and dispositive powers with regard to the registered
shares.
* Less than one percent.
PLAN OF
DISTRIBUTION
The selling shareholders and their successors, which includes their
pledgees, donees, partnership distributees and other transferees receiving the
offered shares in non-sale transfers, may sell any or all of the offered shares
of common stock on the Nasdaq Global Market or any other stock exchange, market
or trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices. The selling shareholders may
use any one or more of the following methods when selling shares:
·
ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers,
·
block trades in which the broker-dealer will
attempt to sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction,
·
purchases by a broker-dealer as principal and
resale by the broker-dealer for its account,
·
an exchange distribution in accordance with
the rules of the applicable exchange,
·
privately- negotiated transactions,
·
settlement of short sales entered into after
the effective date of the registration statement of which this prospectus is a
part,
·
broker-dealers may agree with the selling
shareholder to sell a specified number of such shares at a stipulated price per
share,
·
through the writing or settlement of options
or other hedging transactions, whether through an options exchange or
otherwise,
·
a combination of any such methods of sale, or
·
any other method permitted pursuant to
applicable law.
The selling shareholders may also sell shares under Rule 144 under
the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling shareholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling shareholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated, but, except as set forth in a supplement to this
prospectus, in the case of an agency transaction not in excess of a customary
brokerage commission in compliance with NASDAQ Marketplace Rule 2440; and
in the case of a principal transaction a markup or markdown in compliance with
NASDAQ Marketplace Rule IM-2440.
In connection with the sale of the common stock or interests therein,
the selling shareholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of the common stock in the course of hedging the positions they
assume. The selling shareholders may also sell shares of the common stock short
and deliver these securities to close out its short positions, or loan or
pledge the common stock to broker-dealers that in turn may sell these
securities. The selling shareholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such
6
broker-dealer
or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The selling shareholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be underwriters within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
We are required to pay certain fees and expenses incurred by us
incident to the registration of the shares. We have agreed to indemnify the
selling shareholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
Because the selling shareholders may, individually, be deemed to be an
underwriter within the meaning of the Securities Act, they will be subject to
the prospectus delivery requirements of the Securities Act including Rule 172
thereunder. In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than under this prospectus. There is no underwriter
or coordinating broker acting in connection with the proposed sale of the
resale shares by the selling shareholders.
We have agreed to keep this prospectus effective until September 20,
2009.
The
resale shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states, the resale shares may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Securities
Exchange Act of 1934, as amended (the Exchange Act), any person engaged in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the selling shareholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of shares of the common stock by the selling shareholders or any other
person. We will make copies of this prospectus available to the selling
shareholders and have informed it of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The validity of the shares of common stock being offered hereby has
been passed upon for AVI BioPharma, Inc. by Davis Wright Tremaine LLP of
Portland, Oregon.
EXPERTS
The financial statements of
AVI BioPharma, Inc. as of December 31, 2007 and 2006, and for each of
the years in the three-year period ended December 31, 2007, and
managements assessment of the effectiveness of internal control over financial
reporting as of December 31, 2007 have been incorporated by reference
herein and in the registration statement in reliance upon the reports of KPMG
LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
The audit
report covering the December 31, 2006 financial statements refers to a change
in the accounting for share-based payments.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company
and file annual, quarterly and current reports, proxy statements and other
information with the SEC. We have filed with the SEC a registration statement
on Form S-3 under the Securities Act with respect to the units we are
offering
7
under this prospectus. This prospectus does
not contain all of the information set forth in the registration statement, as
amended, and the exhibits to the registration statement. For further
information with respect to us and the securities we are offering under this
prospectus, we refer you to the registration statement, as amended, and the
exhibits and schedules filed as a part of the registration statement. You may
read and copy the registration statement, as amended, as well as our reports,
proxy statements and other information, at the SECs Public Reference Room at
Room 100 F Street N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the Public Reference
Room. The SEC maintains an Internet site at http://www.sec.gov that contains
reports, proxy and information statements, and other information regarding
issuers that file electronically with the SEC.
Most of our SEC filings are also accessed through our website at
www.avibio.com.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by
reference in this prospectus the information in other documents that we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information in documents that
we file later with the SEC will automatically update and supersede information
contained in documents filed earlier with the SEC or contained in this
prospectus or a prospectus supplement. We incorporate by reference in this
prospectus the documents listed below and any future filings that we may make
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the termination of the
offering under this prospectus:
·
Annual Report on Form 10-K for the year
ended December 31, 2007;
·
Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2008;
·
Definitive
Proxy Statement on Schedule 14A filed on April 15, 2008;
·
Current Reports on Form 8-K filed on April
16, 2008, March 28, 2008, March 25, 2008, March 13, 2008, March 3,
2008; February 13, 2008; and February 7, 2008; and
·
The description of our common stock contained
in our registration statement on Form 8-A filed on May 29, 1997.
Notwithstanding the
foregoing, we are not incorporating any document or information deemed to have
been furnished and not filed in accordance with SEC rules. You may obtain a
copy of any or all of the documents referred to above which may have been or
may be incorporated by reference into this prospectus (excluding certain
exhibits to the documents) at no cost to you by writing or telephoning us at
the following address:
AVI BioPharma, Inc.
Investor Relations
One S.W. Columbia
Suite 1105
Portland, OR 97258
Attn: Michael C. Hubbard
(503) 227-0554
The mailing address of our
principal executive offices is AVI BioPharma, Inc., One S.W. Columbia Suite 1105
Portland, OR 97258, and our telephone number at that location is
(503) 227-0554.
8
5,647,016
Shares
AVI BioPharma, Inc.
Common Stock
P R O S P E
C T U S
May 16,
2008
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14.
Other expenses of issuance and distribution.
The following is a statement
of the estimated expenses (other than underwriting compensation) to be incurred
by the Registrant in connection with registration of 5,647,016 shares of its
common stock for resale hereunder.
SEC registration fee
|
|
$
|
408
|
|
Printing and engraving fees*
|
|
1,000
|
|
Legal expenses*
|
|
30,000
|
|
Accounting fees and expenses*
|
|
15,000
|
|
Transfer Agent fees and expenses*
|
|
2,875
|
|
Miscellaneous*
|
|
500
|
|
Total
|
|
$
|
49,783
|
|
(*) The amounts marked with
a * above are estimates.
Item 15.
Indemnification of directors and
officers.
Our
Amended and Restated Articles of Incorporation provide for indemnification by
us or our directors and former directors, and for advancement of reasonable
expenses incurred by each such person upon an undertaking by such person to
repay such amount if it is ultimately determined that he or she is not entitled
to indemnification. Our Bylaws also provide that we shall have the power to
indemnify our directors and officers pursuant to applicable law. Such
indemnification does not cover matters involving (i) the breach of a
directors duty of loyalty, (ii) actions or omissions not in good faith,
intentional misconduct or knowing violations of law, (iii) the unlawful
payment of dividends, stock purchases or redemptions or (iv) any
transaction from which a director derives an improper personal benefit.We have
entered into indemnification agreements with each of our directors. These
agreements, among other things, indemnify our directors and officers for
certain expenses (including attorneys fees), judgments, fines and settlement
amounts incurred by any such director or officer in any action or proceeding,
including any action by or in our right, arising out of such persons services
as one of our directors or officers, to any of our subsidiaries or to any other
company or enterprise to which the director or officer provides services at our
request. We believe that these provisions and agreements are necessary to
attract and retain qualified persons as directors and officers.
Item 16. Exhibits
|
|
Incorporated by
Reference to Filings Indicated
|
|
Exhibit
No
|
|
Exhibit Description
|
|
Form
|
|
File No.
|
|
Exhibit
|
|
Filing
Date
|
|
Filed
Herewith
|
2.1
|
|
Agreement
and Plan of Merger dated March 12, 2008 by and among AVI BioPharma, Inc., EB
Acquisition Corp., and Ercole Biotech, Inc. and Stockholder Representative
|
|
8-K
|
|
1-14895
|
|
2.1
|
|
March 13, 2008
|
|
|
3.1
|
|
Third
Restated Articles of Incorporation of AntiVirals Inc.
|
|
SB-2
|
|
333-20513
|
|
3.1
|
|
May 29, 2007
|
|
|
3.2
|
|
First
Restated Bylaws of AVI BioPharma, Inc.
|
|
8-K
|
|
1-14895
|
|
3.5
|
|
February 7, 2008
|
|
|
3.3
|
|
First
Amendment to Third Restated Articles of Incorporation
|
|
8-K
|
|
0-22613
|
|
3.3
|
|
September 30, 1998
|
|
|
3.4
|
|
Amendment
to Article 2 of the Companys Third Restated Articles of Incorporation
|
|
DEF 14A
|
|
1-14895
|
|
N/A
|
|
Apri 11, 2002
|
|
|
5.1
|
|
Opinion
of Davis Wright Tremaine LLP
|
|
|
|
|
|
|
|
|
|
X
|
23.1
|
|
Consent
of KPMG LLP, Independent Registered Public Accounting Firm.
|
|
|
|
|
|
|
|
|
|
X
|
23.2
|
|
Consent
of Davis Wright Tremaine LLP (contained in Exhibit 5.1).
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24.1
|
|
Power
of Attorney
|
|
S-3
|
|
333-150021
|
|
24.1
|
|
April 1, 2008
|
|
|
II-1
Item 17.
Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933; (ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective Registration Statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
provided, however
, that paragraphs (i), (ii) and (iii) do
not apply if the Registration Statement is on Form S-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the Registration Statement;
(2) that, for the
purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof;
(3) to remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering;
(4) that, for the
purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each prospectus
filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the Registration Statement as of the date the filed prospectus was
deemed part of and included in the Registration Statement; and
(B) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the Registration Statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities
in the Registration Statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however
,
that no statement made in a Registration
II-2
Statement or prospectus that is part of the
Registration Statement or made in a document incorporated or deemed
incorporated by reference into the Registration Statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any
statement that was made in the Registration Statement or prospectus that was
part of the Registration Statement or made in any such document immediately
prior to such effective date; and
(5) that, for the
purpose of determining liability of the Registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(A) Any preliminary
prospectus or prospectus of the undersigned Registrant relating to the offering
required to be filed pursuant to Rule 424;
(B) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned
Registrant or used or referred to by the undersigned Registrant;
(C) The portion of
any other free writing prospectus relating to the offering containing material
information about the undersigned Registrant or its securities provided by or
on behalf of the undersigned Registrant; and
(D) Any other
communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each
filing of Registrants annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the provisions
described under Item 15 above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
II-3
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Portland, Oregon on May 16, 2008.
|
AVI BIOPHARMA,
INC.
|
|
|
|
By:
|
|
/s/ LESLIE HUDSON, PH.D.
|
|
|
Leslie Hudson, Ph.D.
|
|
|
Chief Executive Officer and
|
|
|
Director
|
|
|
|
|
|
|
|
II-4
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
/s/ LESLIE
HUDSON, PH.D.
|
|
Chief Executive
Officer and Director
|
|
May 16, 2008
|
Leslie Hudson, Ph.D.
|
|
(
Principal Executive
Officer)
|
|
|
|
|
|
|
|
/s/ ALAN P.
TIMMINS
|
|
President and
Chief Operating Officer
|
|
May 16, 2008
|
Alan P. Timmins
|
|
|
|
|
|
|
|
|
|
/s/ MARK M.
WEBBER
|
|
Chief Financial
Officer and Chief
|
|
May 16, 2008
|
Mark M. Webber
|
|
Information
Officer
(Principal
|
|
|
|
|
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
*
|
|
Chairman of the
Board
|
|
May 16, 2008
|
Michael D. Casey
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May 16, 2008
|
John W. Fara, Ph.D.
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May 16, 2008
|
K. Michael Forrest
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May 16, 2008
|
William A. Goolsbee
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May 16, 2008
|
John C. Hodgman
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May 16, 2008
|
Gil Price, M.D.
|
|
|
|
|
|
|
|
|
|
*By: /s/ ALAN P.
TIMMINS
|
|
|
|
|
ALAN P. TIMMINS
|
|
|
|
|
Attorney-in-fact
|
|
|
|
|
II-5
INDEX TO
EXHIBITS
|
|
|
|
Incorporated by Reference to Filings Indicated
|
|
Exhibit
Number
|
|
Exhibit Description
|
|
Form
|
|
File No.
|
|
Exhibit
|
|
Filing
Date
|
|
Filed
Herewith
|
|
2.1
|
|
Agreement and Plan of
Merger dated March 12, 2008 by and among AVI BioPharma, Inc., EB Acquisition
Corp., and Ercole Biotech, Inc. and Stockholder Representative
|
|
8-K
|
|
1-14895
|
|
2.1
|
|
March 13, 2008
|
|
|
|
3.1
|
|
Third Restated Articles of
Incorporation of AntiVirals Inc.
|
|
SB-2
|
|
333-20513
|
|
3.1
|
|
May 29, 2007
|
|
|
|
3.2
|
|
First Restated Bylaws of
AVI BioPharma, Inc.
|
|
8-K
|
|
1-14895
|
|
3.5
|
|
February 7, 2008
|
|
|
|
3.3
|
|
First Amendment to Third
Restated Articles of Incorporation
|
|
8-K
|
|
0-22613
|
|
3.3
|
|
September 30,
1998
|
|
|
|
3.4
|
|
Amendment to Article 2 of
the Companys Third Restated Articles of Incorporation
|
|
DEF 14A
|
|
1-14895
|
|
N/A
|
|
Apri 11, 2002
|
|
|
|
5.1
|
|
Opinion of Davis Wright
Tremaine LLP
|
|
|
|
|
|
|
|
|
|
X
|
|
23.1
|
|
Consent of KPMG LLP,
Independent Registered Public Accounting Firm.
|
|
|
|
|
|
|
|
|
|
X
|
|
23.2
|
|
Consent of Davis Wright
Tremaine LLP (contained in Exhibit 5.1).
|
|
|
|
|
|
|
|
|
|
X
|
|
24.1
|
|
Power of Attorney
|
|
S-3
|
|
333-150011
|
|
24.1
|
|
April
1, 2008
|
|
|
|
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