Exhibit 99.1
SUBSCRIPTION
AGREEMENT
AVI
BioPharma, Inc.
One SW Columbia, Suite 1105
Portland, OR
97258
The undersigned (the
“Investor”) hereby confirms its agreement with you as
follows:
This Subscription Agreement (this
“Agreement”) is made as of the date set forth below
between AVI BioPharma, Inc. an Oregon corporation (the
“Company”), and the Investor.
The
Company has authorized the sale and issuance to certain investors
of up to 10,696,616 shares (the “Shares”) of its Common
Stock, par value $0.0001 per share (the “Common Stock”)
and warrants to purchase 5,348,308 shares of Common Stock (the
“Warrants” and together with the Shares, the
“Securities”) , for a purchase price of $1.90 per
Security (the “Purchase Price”).
The
offering and sale of the Securities, including the
shares of Common Stock
underlying the Warrants (the “Warrant Shares”)
(the
“Offering”) are being made pursuant to (i) an
effective Registration Statement on Form S-3 (including the
Prospectus contained therein (the “Base Prospectus”),
the “Registration Statement”) filed by the Company with
the Securities and Exchange Commission (the
“Commission”), (ii) if applicable, certain
“free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended (the
“Act”)), that have been or will be filed with the
Commission and delivered to the Investor on or prior to the date
hereof, and (iii) a Prospectus Supplement (the
“Prospectus Supplement”), containing certain
supplemental information regarding the Securities, including the
Warrant Shares, the Company and the terms of the Offering that will
be filed with the Commission and delivered to the Investor along
with the Company’s counterpart to this Agreement (or made
available to the Investor by the filing by the Company of an
electronic version thereof with the Commission).
The
Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor the
Securities set forth below for the aggregate purchase price set
forth below. The Securities shall be purchased pursuant to
the Terms and Conditions for Purchase of Securities attached hereto
as Annex I and incorporated herein by this reference as if
fully set forth herein. The Company shall deliver to the Investor
the Warrants being purchased by the Investor at the Closing in
physical form.
The
manner of settlement of the Shares purchased by the Investor shall
be determined by such Investor as follows ( check one
):
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A.
Delivery by crediting the account of the Investor’s prime
broker (as specified by the Investor on Exhibit A annexed
hereto) with the Depository Trust Company (“DTC”)
through its Deposit/Withdrawal At Custodian (“DWAC”)
system, whereby the Investor’s prime broker shall initiate a
DWAC transaction on the Closing Date (as defined in Annex I
) using its DTC participant identification number and released by
Mellon Investors Services LLC, the Company’s transfer agent
(the “Transfer Agent”),
at the
Company’s direction. NO LATER THAN ONE (1) BUSINESS
DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE
COMPANY, THE INVESTOR SHALL:
(I)
DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE
TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES,
AND
(II)
REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE INVESTOR
TO THE FOLLOWING ACCOUNT:
Mellon Bank
ABA
#: 043000261
Account Name: Mellon Investor Services
LLC
Account # : 1002331
F/C
AVI BioPharma
F/C/C # 28912
Attn: Mike Equia
Tel
: 201-680-3560
– OR –
[ ]
B.
Delivery versus payment (“DVP”) through DTC (i.e., the
Company shall deliver Shares registered in the Investor’s
name and address as set forth below and released by the Transfer
Agent to the Investor through DTC at the Closing (as defined in
Annex I ) directly to the account(s) at Citigroup
Global Markets Inc. (“Citigroup”) identified by the
Investor and simultaneously therewith payment shall be made by
Citigroup by wire transfer to the Company). NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
(I)
NOTIFY
CITIGROUP OF THE ACCOUNT OR ACCOUNTS AT CITIGROUP TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR,
AND
(II)
CONFIRM THAT THE ACCOUNT OR
ACCOUNTS AT CITIGROUP TO BE CREDITED WITH THE SHARES BEING
PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE
INVESTOR.
– OR –
B-2
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C.
Delivery of physical stock certificates, in no event later than one
business day after the Closing, to the Investor at the address set
forth on the signature page to this agreement. NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS
AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE INVESTOR
TO THE FOLLOWING ACCOUNT:
Mellon Bank
ABA
#: 043000261
Account Name: Mellon Investor Services
LLC
Account # : 1002331
F/C
AVI BioPharma
F/C/C # 28912
Attn: Mike Equia
Tel
: 201-680-3560
IT IS THE INVESTOR’S
RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND
(B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC, DVP OR PHYSICAL
DELIVERY IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER
THE AGGREGATE PURCHASE PRICE FOR THE SECURITIES OR DOES NOT MAKE
PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE
SECURITIES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR
THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER .
The
Investor represents that, except as set forth below, (a) it
has had no position, office or other material relationship within
the past three years with the Company or any of its affiliates,
(b) it is not a NASD member or an Associated Person (as such
term is defined under the NASD Membership and Registration
Rules Section 1011) as of the Closing, and
(c) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which
the Investor is a part in connection with the Offering of the
Securities, acquired, or obtained the right to acquire, 20% or more
of the Common Stock (or securities convertible into or exercisable
for Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
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(If no exceptions,
write “none.” If left blank, response will be deemed to
be “none.”)
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The
Investor represents that it has received (or otherwise had made
available to it by the filing by the Company of an electronic
version thereof with the Commission) the Base Prospectus, dated
November 22, 2006, which is a part of the Company’s
Registration Statement, and the documents incorporated by reference
therein, prior to or in connection with the receipt of this
Agreement. The Investor acknowledges that, prior to the delivery of
this Agreement to the Company, the Investor will receive certain
additional information regarding the Offering,
B-3
including pricing information (the
“Offering Information”). The Offering Information may
be provided to the Investor by any means permitted under the Act,
including in the Prospectus Supplement (delivered to the Investor
or made available to it by the filing of an electronic version
thereof with the Commission), a free writing prospectus or oral
communications.
No
offer by the Investor to buy Securities will be accepted and no
part of the Purchase Price will be delivered to the Company until
the Investor has received the Offering Information and the Company
has accepted such offer by countersigning a copy of this Agreement,
and any such offer may be withdrawn or revoked, without obligation
or commitment of any kind, at any time prior to the Company (or the
Placement Agents on behalf of the Company) sending (orally, in
writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the
Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
[ The remainder of
this page has been intentionally left blank. ]
B-4
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Number of
Shares:
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Number of
Warrants:
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Purchase Price Per
Share: $
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Purchase Price Per
Warrant: $
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Aggregate Purchase
Price: $
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Please confirm
that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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Dated as of:
December
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, 2007
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INVESTOR
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By:
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Print Name:
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Title:
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Address:
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Agreed and
Accepted
this th day of
December, 2007:
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AVI BIOPHARMA,
INC.
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By:
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Title:
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B-5
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF SECURITIES
1.
Authorization and Sale of the Securities.
Subject to the terms and
conditions of this Agreement, the Company has authorized the sale
of the Securities.
2.
Agreement to Sell and Purchase the Securities; Placement
Agents.
2.1
At the Closing (as defined in Section 3.1 ), the
Company will sell to the Investor, and the Investor will purchase
from the Company, upon the terms and conditions set forth herein,
the number of Securities set forth on the last page of the
Agreement to which these Terms and Conditions for Purchase of
Securities are attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on
the Signature Page.
2.2
The Company proposes to enter into substantially this same form of
Subscription Agreement with certain other investors (the
“Other Investors”) and expects to complete sales of
Securities to them. The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the
“Investors,” and this Agreement and the Subscription
Agreements executed by the Other Investors are hereinafter
sometimes collectively referred to as the
“Agreements.”
2.3
Investor acknowledges that the Company intends to pay Citigroup
Global Markets Inc., Oppenheimer & Co. Inc. and Maxim
Group, LLC (the
“Placement Agents”) a fee (the “Agency
Fee”) in respect of the sale of Securities to the
Investor.
2.4
The Company has entered into a Placement Agency Agreement (the
“Agency Agreement”) with the Placement Agents that
contains certain representations, warranties, covenants and
agreements of the Company that may be relied upon by the Investor,
which shall be a third party beneficiary thereof. A copy of
the Agency Agreement is available upon request.
3.
Closings and Delivery of the Securities and Funds.
3.1
Closing . The completion of the purchase and sale of the
Securities (the “Closing”) will occur at a place and
time (the “Closing Date”) to be specified by the
Company and Citigroup Global Markets Inc.
(“Citigroup”), and of which the Investors will be
notified in advance by Citigroup, in accordance with
Rule 15c6-1 promulgated under the Securities Exchange Act of
1934. At the Closing, (a) the Company will cause the
Transfer Agent to deliver to the Investor the number of Shares set
forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Invest
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