- Current report filing (8-K)
January 30 2009 - 4:11PM
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):
January 28, 2009
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.
On January 28, 2009, AVI BioPharma, Inc.
(the Company) entered into a engagement letter (the Engagement Letter),
with Rodman & Renshaw, LLC, as placement agent (Rodman), relating to
the proposed placement of certain registered securities of the Company with
targeted aggregate proceeds of $16.0 million.
A copy of the Engagement Letter is attached as Exhibit 1.3 to this
Current Report on Form 8-K, and is incorporated herein by reference.
On January 29, 2009, the Company entered into a
Securities Purchase Agreement (the Securities Purchase Agreement) with each
investor signatory thereto relating to the issuance and sale by the Company of 14,224,202
units at a price of $1.16 per unit (each a Unit, and, collectively, the Units). Assuming all 14,224,202 Units are sold, the
Company anticipates it will raise approximately $16.5 million before placement
agent fees and other expenses. The
Securities Purchase Agreement is attached as Exhibit 10.67 to this Current
Report on Form 8-K, and is incorporated herein by reference.
Each Unit sold under the terms of the Securities
Purchase Agreement consists of one share of common stock (the Common Shares)
and a warrant to purchase one share of the Companys common stock (the Warrants)
at a price of $1.16 per Unit. The
exercise price of the Warrants is $1.16 per share. The Warrants may be exercised beginning on or
about July 30, 2009 and thereafter for five years. The form of Common Stock Purchase Warrant is
attached as Exhibit 4.4 to this Current Report on Form 8-K, and is
incorporated herein by reference.
The Company has also entered into a letter agreement
regarding Board of Director representation (the Letter Agreement) with Eastbourne
Capital Management, LLC (Eastbourne), who has agreed to purchase
approximately $8.25 million of the offered Units pursuant to the terms of the
Securities Purchase Agreement. Under the
terms of the Letter Agreement, subject to certain conditions, the Company has
agreed to appoint a nominee of Eastbourne to its Board of Directors in
connection with the closing of the transaction contemplated by the Securities
Purchase Agreement. The Letter Agreement
terminates at such time funds managed by Eastbourne own less than 25% of the
Common Shares purchased by Eastbourne under the Securities Purchase Agreement,
including Common Shares, if any, acquired upon exercise of the Warrants. A copy of the Letter Agreement is attached
hereto as Exhibit 10.68 to this Current Report on Form 8-K, and is
incorporated herein by reference.
Rodman, as placement agent, is obligated to act on a
reasonable best efforts basis for the offering and will receive a placement fee
equal to 5.5% of the aggregate proceeds raised through investors introduced to
the Company by Rodman and 2% of the aggregate proceeds raised through investors
introduced to Rodman by the Company. The
aggregate amount of such placement fee is estimated to be $601,254. Assuming all 14,224,202 Units are sold,
Rodman will also receive a warrant to purchase 426,726 shares of our common
stock at an exercise price of $1.45 per share until January 30, 2014.
In addition to the fees to be paid to Rodman and
other offering expenses, the Company has agreed to pay JMP Securities LLC, 2%
of the aggregate gross proceeds, or $330,002, as compensation for financial
advisory services rendered prior to and other than in connection with the
offering.
The description of the offering provided herein does
not purport to be complete and is qualified in its entirety by reference to the
Engagement Letter and the Securities Purchase Agreement. The Company has
filed with the Securities and Exchange Commission the Engagement Letter,
Securities Purchase Agreement, Form of Common Stock Purchase Warrant, and
Letter Agreement in order to provide investors and the Companys shareholders
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 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 shareholders 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 January 30,
2009, filed with the Securities and Exchange Commission pursuant to Rule 424(b)(2) of
the Securities Act. The issuance of the units is
2
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 Units in the offering is attached
hereto as Exhibit 5.1.
On January 30, 2009, the Company issued a press release announcing
the execution of the Engagement Letter, entry into the Securities Purchase
Agreement and the general terms of the units to be offered. The text of
the press release is included as Exhibit 99.1 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:
1.3
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Engagement
Letter dated January 28, 2009 between the Company and Rodman &
Renshaw, LLC
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4.4
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Form of
Common Stock Purchase Warrant
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5.1
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Opinion
of Davis Wright Tremaine LLP
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10.67
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Securities
Purchase Agreement dated January 29, 2009 between the Company and the
Purchasers
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10.68
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Letter
Agreement Regarding Board of Director Representation between the Company and
Eastbourne Capital Management, LLC
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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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Press
Release dated January 30, 2009
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3
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 January 30, 2009.
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AVI
BioPharma, Inc.
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By:
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/s/ Leslie
Hudson, Ph.D.
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Leslie
Hudson, Ph.D.
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President and Chief Exectuive Officer
(Principal Operating Officer)
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4
Exhibit Index
1.3
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Engagement
Letter dated January 28, 2009 between the Company and Rodman &
Renshaw, LLC
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4.4
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Form of
Common Stock Purchase Warrant
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5.1
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Opinion
of Davis Wright Tremaine LLP
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10.67
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Securities
Purchase Agreement dated January 29, 2009 between the Company and the
Purchasers
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10.68
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Letter
Agreement Regarding Board of Director Representation between the Company and
Eastbourne Capital Management, LLC
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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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Press
Release dated January 30, 2009
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5
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