|
OMB
APPROVAL
OMB
Number: 3235-0145
Expires:
February 28, 2009
Estimated
average burden
hours
per response 14.5
|
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 2)
(Name of
Issuer)
Common
Stock
(Title of
Class of Securities)
002346104
(CUSIP
Number)
Eric
M. Sippel
Eastbourne
Capital Management, L.L.C.
1101
Fifth Avenue, Suite 370
San
Rafael, CA 94901
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
October
1, 2009
(Date of
Event Which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of sections 240.13d-1(e), 240.13d-1(f) or 140.13d-1(g), check
the following box. [ ]
Note: Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See section 240.13d-7 for other
parties to whom copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The
information required in the remainder of this cover page shall not be deemed to
be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934
("Act") or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
Potential
persons who are to respond to the collection of information contained in this
form are not required to respond unless the form displays a currently valid OMB
control number.
CUSIP
No.
002346104
|
1.
|
Names
of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
|
|
Eastbourne
Capital Management, L.L.C.
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See
Instructions)
|
|
(a)
|
x
|
|
(b)
|
______
|
|
3.
|
SEC
Use Only
|
|
4.
|
Source
of Funds (See Instructions)
|
AF
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e) ____
|
|
6.
|
Citizenship
or Place of Organization
|
Delaware
|
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7. Sole
Voting
Power 0
|
|||
|
8. Shared
Voting
Power 14,224,138
|
||||
|
9. Sole
Dispositive
Power 0
|
||||
|
10. Shared
Dispositive
Power
14,224,138
|
||||
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
14,224,138
|
|
12.
|
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)______
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
12.14%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
IA,
OO
|
Page 2 of
9
CUSIP
No.
002346104
|
1.
|
Names
of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
|
|
Richard
Jon Barry
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See
Instructions)
|
|
(a)
|
x
|
|
(b)
|
______
|
|
3.
|
SEC
Use Only
|
|
4.
|
Source
of Funds (See Instructions)
|
AF
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e) ____
|
|
6.
|
Citizenship
or Place of Organization
|
U.S.A.
|
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7. Sole
Voting
Power 0
|
|||
|
8. Shared
Voting
Power 14,224,138
|
||||
|
9. Sole
Dispositive
Power 0
|
||||
|
10. Shared
Dispositive
Power
14,224,138
|
||||
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
14,224,138
|
|
12.
|
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)______
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
12.14%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
HC,
IN
|
Page 3 of 9
CUSIP
No.
002346104
|
1.
|
Names
of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
|
|
Black
Bear Offshore Master Fund, L.P.
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See
Instructions)
|
|
(a)
|
x
|
|
(b)
|
______
|
|
3.
|
SEC
Use Only
|
|
4.
|
Source
of Funds (See Instructions)
|
WC
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e) ____
|
|
6.
|
Citizenship
or Place of Organization
|
Cayman
Islands
|
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7. Sole
Voting
Power 0
|
|||
|
8. Shared
Voting
Power 3,954,658
|
||||
|
9. Sole
Dispositive
Power 0
|
||||
|
10. Shared
Dispositive
Power
3,954,658
|
||||
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
3,954,658
|
|
12.
|
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)______
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
3.53%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
PN
|
Page 4 of
9
CUSIP
No.
002346104
|
1.
|
Names
of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
|
|
Black
Bear Fund I, L.P.
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See
Instructions)
|
|
(a)
|
x
|
|
(b)
|
______
|
|
3.
|
SEC
Use Only
|
|
4.
|
Source
of Funds (See Instructions)
|
WC
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e) ____
|
|
6.
|
Citizenship
or Place of Organization
|
California
|
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7. Sole
Voting
Power 0
|
|||
|
8. Shared
Voting
Power 5,663,032
|
||||
|
9. Sole
Dispositive
Power 0
|
||||
|
10. Shared
Dispositive
Power
5,663,032
|
||||
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
5,663,032
|
|
12.
|
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)______
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
5.02%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
PN
|
Page 5 of
9
CUSIP
No.
002346104
|
1.
|
Names
of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
|
|
Black
Bear Fund II, L.L.C.
|
|
2.
|
Check
the Appropriate Box if a Member of a Group (See
Instructions)
|
|
(a)
|
x
|
|
(b)
|
______
|
|
3.
|
SEC
Use Only
|
|
4.
|
Source
of Funds (See Instructions)
|
WC
|
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e) ____
|
|
6.
|
Citizenship
or Place of Organization
|
California
|
|
Number
of
Shares
Beneficially
Owned
by
Each
Reporting
Person
With
|
7. Sole
Voting
Power 0
|
|||
|
8. Shared
Voting
Power 4,606,448
|
||||
|
9. Sole
Dispositive
Power 0
|
||||
|
10. Shared
Dispositive
Power
4,606,448
|
||||
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
4,606,448
|
|
12.
|
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)______
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
4.10%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
OO
|
Page 6
of 9
CUSIP
No.
002346104
Item
1. Security and Issuer
This
Amendment No. 2 (this “Amendment”) amends and supplements the Schedule 13D filed
on February 9, 2009, as previously amended (the “Schedule 13D”), by Eastbourne
Capital Management, L.L.C. (“Eastbourne”), Richard Jon Barry (“Barry”), Black
Bear Fund I, L.P. (“Fund I”), Black Bear Fund II, L.L.C. (“Fund II”) and Black
Bear Offshore Master Fund, L.P. (the “Offshore Fund,” together with Eastbourne,
Barry, Fund I and Fund II, the “Filers”), relating to shares of Common Stock
(the “Stock”) of AVI BioPharma, Inc. (the “Issuer”). The shares of Stock
reported hereon includes shares of Stock issuable on the exercise of the
Warrants (as defined below), which are exercisable less than sixty days after
the date hereof. The principal executive office of the Issuer is
located at One SW Columbia Street, Suite 1105, Portland, OR 97258 .
All capitalized terms used in this Amendment and not otherwise defined herein
have the meanings ascribed to such terms in the Schedule 13D.
Items 3,
4 and 5 of the Schedule 13D are hereby amended and supplemented to add the
following:
Item
3. Source and Amount of Funds or Other
Consideration
The
source and amount of funds used in purchasing the Stock were as
follows:
|
Purchaser
|
Source
of Funds
|
Amount
|
|
Fund
I
|
Working
Capital
|
$2,910,912.34
|
|
Fund
II
|
Working
Capital
|
$6,427,215.52
|
Item
4. Purpose of Transaction
On
October 1, 2009, the Offshore Fund, Fund I and Fund II effected a rebalancing
trade whereby Fund I purchased 887,577 shares and 974,845 warrants from the
Offshore Fund for cash consideration of $1,526,632.44 and $1,384,279.90,
respectively, and Fund II purchased 2,030,965 shares and 2,066,166 warrants from
the Offshore Fund for cash consideration of $3,493,259.80 and $2,933,955.72,
respectively.
Item
5. Interest in Securities of the Issuer
(a), (b)
and (d) the Filer’s beneficial ownership of Stock on the date of this report is
reflected on each Filer’s cover page. Eastbourne is an investment
adviser with the power to invest in, vote and dispose of the Stock on behalf of
its clients, including Fund I, Fund II and the Offshore Fund, and is deemed to
share beneficial ownership of and voting and dispositive power with respect to
the shares of Stock beneficially owned by its clients. Its clients have the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the Stock. Except for Fund I, no client
individually holds more than 5% of the outstanding Stock. By virtue
of its control of Fund I, Fund II and the Offshore Fund, Eastbourne is deemed to
share beneficial ownership of (and voting and dispositive power with respect to)
the shares of Stock beneficially owned by each of Fund I, Fund II and the
Offshore Fund. Mr. Barry is the controlling owner and managing member
of Eastbourne. By virtue of his control of Eastbourne, Mr. Barry is deemed to
share beneficial ownership of (and voting and dispositive power with respect to)
the shares of Stock beneficially owned by Eastbourne.
(c) On
October 1, 2009, the Offshore Fund, Fund I and Fund II effected a rebalancing
trade whereby Fund I purchased 887,577 shares and 974,845 warrants from the
Offshore Fund for cash consideration of $1,526,632.44 and $1,384,279.90,
respectively, and Fund II purchased 2,030,965 shares and 2,066,166 warrants from
the Offshore Fund for cash consideration of $3,493,259.80 and $2,933,955.72,
respectively.
Page 7 of 9
CUSIP
No.
002346104
SIGNATURES
After
reasonable inquiry and to the best of my knowledge, I certify that the
information set forth in this statement is true, complete and
correct.
Dated: October
9, 2009
|
EASTBOURNE
CAPITAL MANAGEMENT, L.L.C.
By: Eric
M. Sippel, Chief Operating Officer
|
BLACK
BEAR FUND I, L.P.
By: Eastbourne
Capital Management, L.L.C.,
its
general partner
By: Eric
M. Sippel, Chief Operating Officer
|
|
BLACK
BEAR FUND II, L.L.C.
By: Eastbourne
Capital Management, L.L.C.,
its
Managing Member
By: Eric
M. Sippel, Chief Operating Officer
|
BLACK
BEAR OFFSHORE MASTER FUND, L.P.
By: Eastbourne
Capital Management, L.L.C.,
its
general partner
By: Eric
M. Sippel, Chief Operating Officer
|
|
Richard
Jon Barry
|
Page 8 of 9
CUSIP
No.
002346104
EXHIBIT
A
AGREEMENT
REGARDING JOINT FILING
OF
STATEMENT ON SCHEDULE 13D OR 13G
The
undersigned agree to file jointly with the Securities and Exchange Commission
(the "SEC") any and all statements on Schedule 13D or Schedule 13G (and any
amendments or supplements thereto) required under section 13(d) of the
Securities Exchange Act of 1934, as amended, in connection with purchases by the
undersigned of the common stock of AVI BioPharma, Inc. For that
purpose, the undersigned hereby constitute and appoint Eastbourne Capital
Management, L.L.C., a Delaware limited liability company, as their true and
lawful agent and attorney-in-fact, with full power and authority for and on
behalf of the undersigned to prepare or cause to be prepared, sign, file with
the SEC and furnish to any other person all certificates, instruments,
agreements and documents necessary to comply with section 13(d) and section
16(a) of the Securities Exchange Act of 1934, as amended, in connection with
said purchases, and to do and perform every act necessary and proper to be done
incident to the exercise of the foregoing power, as fully as the undersigned
might or could do if personally present.
Dated: October
9, 2009
|
EASTBOURNE
CAPITAL MANAGEMENT, L.L.C.
By: Eric
M. Sippel, Chief Operating Officer
|
BLACK
BEAR FUND I, L.P.
By: Eastbourne
Capital Management, L.L.C.,
its
general partner
By: Eric
M. Sippel, Chief Operating Officer
|
|
BLACK
BEAR FUND II, L.L.C.
By: Eastbourne
Capital Management, L.L.C.,
its
Managing Member
By: Eric
M. Sippel, Chief Operating Officer
|
BLACK
BEAR OFFSHORE MASTER FUND, L.P.
By: Eastbourne
Capital Management, L.L.C.,
its
general partner
By: Eric
M. Sippel, Chief Operating Officer
|
|
Richard
Jon Barry
|
Page 9
of 9