As filed with the Securities and Exchange Commission on November , 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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AVI BIOPHARMA, INC.
(Exact name of registrant as specified in charter)
OREGON 93-0797222
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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ONE S.W. COLUMBIA STREET, SUITE 1105
PORTLAND, OREGON 97258
(503) 227-0554
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
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AVI BIOPHARMA, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
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DENIS R. BURGER, Ph.D.
CHIEF EXECUTIVE OFFICER
AVI BIOPHARMA, INC.
ONE S.W. COLUMBIA STREET, SUITE 1105
PORTLAND, OREGON 97258
(503) 227-0554
(Name, address, including zip code and telephone number,
including area code, of agent for service)
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with copies to:
MICHAEL S. GADD, ESQ.
ATER WYNNE LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
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Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price per Share Aggregate Offering Price Registration
(1) (1) Fee
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Common Stock, 250,000
.0001 par value shares $6.56 $1,640,625 $435
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(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the aggregate offering price is based on the
average of the high and low per share sales prices reported for the
Common Stock on November 10, 2000, for shares not yet sold.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement:
(a) Annual Report on Form 10-K of AVI BioPharma, Inc. (the
"Company") for the year ended December 31, 1999, filed with the
Securities and Exchange Commission (the "SEC") on February 29, 2000.
(b) Quarterly Report on Form 10-Q of the Company for the
quarter ended March 31, 2000, filed with the SEC on May 10, 2000,
Quarterly Report on Form 10-Q of the Company for the quarter ended June
30, 2000, filed with the SEC on August 9, 2000, Amendment to Quarterly
Report on Form 10-Q, filed with the SEC on August 14, 2000, and
Quarterly Report on Form 10-Q for the quarter ended September 30, 2000,
filed with the SEC on November 9, 2000.
(c) Registration Statement on Form 8-A of the Company filed
with the SEC on May 29, 1997.
(d) All documents filed by the Company with the SEC pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and before the date of filing of a
post-effective amendment to this Registration Statement stating that
all securities offered have been sold or which deregisters all
securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As an Oregon corporation, the Company is subject to the Oregon Business
Corporation Act ("OBCA") and the exculpation from liability and indemnification
provisions contained therein. Pursuant to Section 60.047(2)(d) of the OBCA,
Article V of the Company's Third Restated Articles of Incorporation (the
"Articles") eliminates the liability of the Company's directors to the Company
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or its shareholders, except for any liability related to breach of the duty of
loyalty, actions not in good faith and certain other liabilities. The Articles
require the Company to indemnify its directors and officers to the fullest
extent not prohibited by law.
Section 60.387, et seq., of the OBCA allows corporations to indemnify
their directors and officers against liability where the director or officer has
acted in good faith and with a reasonable belief that actions taken were in the
best interests of the corporation or at least not adverse to the corporation's
best interests and, if in a criminal proceeding, the individual had no
reasonable cause to believe the conduct in question was unlawful. Under the
OBCA, corporations may not indemnify against liability in connection with a
claim by or in the right of the corporation in which the director or officer was
adjudged liable to the corporation, but may indemnify against the reasonable
expenses associated with such claims. Corporations may not indemnify against
breaches of the duty of loyalty. The OBCA mandates indemnification against all
reasonable expenses incurred in the successful defense of any claim made or
threatened, whether or not such claim was by or in the right of the corporation.
Finally, a court may order indemnification if it determines that the director or
officer is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances whether or not the director or officer met the good faith
and reasonable belief standards of conduct set out in the statute.
The OBCA also provides that the statutory indemnification provisions
are not deemed exclusive of any other rights to which directors or officers may
be entitled under a corporation's articles of incorporation or bylaws, any
agreement, general or specific action of the board of directors, vote of
shareholders or otherwise.
In addition to the provisions contained in the Articles, the Amended
and Restated Bylaws of the Company (the "Bylaws") also require the Company to
indemnify its directors and officers to the fullest extent permitted by the
OBCA. In addition, the Bylaws deem that all rights to indemnification under the
Bylaws are deemed to be contractual rights and are to be effective to the same
extent as if provided for in a contact between the Company and the director or
officer who serves in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Number Description
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5.1 Opinion of Ater Wynne LLP as to the legality of the
securities being registered
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23.1 Consent of Ater Wynne LLP (included in legal opinion
filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included in signature page in
Part II of the Registration Statement)
99.1 AVI BioPharma, Inc. 2000 Employee Stock Purchase Plan
(incorporated by reference to Appendix A to
Registrant's Definitive Proxy Statement on Form 14-A
filed April 12, 2000 (Commission File No. 001-14895)
and Amendment to Definitive Proxy Statement on Form
14-A filed April 25, 2000 (Commission File No. 001-
14895))
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes 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;
(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 subparagraphs (i) and(ii) do not apply if the information
required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed 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.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining 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.
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(c) The undersigned registrant hereby undertakes 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.
(d) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the 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.
(e) 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 foregoing
provisions, 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 a director, officer or controlling person in
connection with 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.
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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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland, State of Oregon, on the 15th day of
November, 2000.
AVI BIOPHARMA, INC.
By: /s/ Denis R. Burger, Ph.D.
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Denis R. Burger, Ph.D.
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Denis R. Burger, Ph.D. and Alan P.
Timmins, and each of them singly, as true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities to sign the registration
statement filed herewith and any or all amendments to said registration
statement (including post-effective amendments), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said attorneys-in-fact and
agents and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agent or any of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Denis R. Burger, Ph.D. Chief Executive Officer and Chairman 11/15/00
- ------------------------------- of the Board (Principal Executive
Denis R. Burger, Ph.D. Officer)
/s/ Alan P. Timmins President, Chief Operating Officer and 11/15/00
- ------------------------------- Director
Alan P. Timmins
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SIGNATURE TITLE DATE
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/s/ Mark Webber Chief Financial Officer (Principal 11/15/00
- ------------------------------- Financial and Accounting Officer)
Mark Webber
/s/ Dwight D. Weller, Ph.D. Senior Vice President of Chemistry and 11/15/00
- ------------------------------- Manufacturing and Development and
Dwight D. Weller, Ph.D. Director
/s/ Patrick L. Iversen, Ph.D. Senior Vice President of Research and 11/15/00
- ------------------------------- Development and Director
Patrick L. Iversen, Ph.D.
/s/ Bruce L.A. Carter, Ph.D. Director 11/15/00
- -------------------------------
Bruce L.A. Carter, Ph.D.
/s/ Nick Bunick Director 11/15/00
- -------------------------------
Nick Bunick
/s/ Joseph Rubinfeld, Ph.D. Director 11/15/00
- -------------------------------
Joseph Rubinfeld, Ph.D.
/s/ John Fara, Ph.D. Director 11/15/00
- -------------------------------
John Fara, Ph.D.
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INDEX TO EXHIBITS
Exhibit Page
Number Exhibit No.
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5.1 Opinion of Ater Wynne LLP as to the legality of the securities being
registered
23.1 Consent of Ater Wynne LLP (included in legal opinion filed as
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included in signature page in Part II of
the Registration Statement)
99.1 AVI BioPharma, Inc. 2000 Employee Stock Purchase Plan
(incorporated by reference to Appendix A to Registrant's
Definitive Proxy Statement on Form 14-A filed April 12, 2000
(Commission File No. 001-14895) and Amendment to Definitive
Proxy Statement on Form 14-A filed April 25, 2000 (Commission
File No. 001-14895))
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Ater Wynne LLP
222 SW Columbia, Suite 1800
Portland, Oregon 97201
Phone: 503-226-1191
Fax: 503-226-0079
EXHIBIT 5.1
November 15, 2000
Board of Directors
AVI BioPharma, Inc.
One S.W. Columbia Street, Suite 1105
Portland, Oregon 97258
Gentlemen:
In connection with the registration of 250,000 shares of common stock,
.0001 par value (the "Common Stock"), of AVI BioPharma, Inc., an Oregon
corporation (the "Company"), under the Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission on November 15, 2000, and the
proposed offer and sale of the Common Stock pursuant to the terms of the
Company's 2000 Employee Stock Purchase Plan (the "2000 Plan"), we have examined
such corporate records, certificates of public officials and officers of the
Company and other documents as we have considered necessary or proper for the
purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the 2000 Plan, when such shares have been delivered against payment
therefor as contemplated by the 2000 Plan, will be validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
/s/ Ater Wynne LLP
ATER WYNNE LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 28, 2000,
included in AVI BioPharma, Inc.'s Form 10-K for the year ended December 31, 1999
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Portland, Oregon
November 14, 2000
