Exhibit 10.47


 


REGISTRATION
RIGHTS AGREEMENT


 


This Registration Rights Agreement
(this “Agreement”) is made and entered into as of May 5, 2003, by and
among AVI BioPharma, Inc. an Oregon corporation (the “Company”), and
each of the purchasers identified on the signature pages hereto (each a “Purchaser”
and collectively, the “Purchasers”).


 


This Agreement is made pursuant to the
Securities Purchase Agreement, dated as of the date hereof among the Company
and the Purchasers (the “Purchase Agreement”).


 


The Company and the Purchasers hereby agree
as follows:


 


1.                                       Definitions.  Capitalized terms used and not
otherwise defined herein that are defined in the Purchase Agreement shall have
the meanings given such terms in the Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


“Effectiveness Date” means the earlier of (a) the 50th
day following the Closing Date (unless the Registration Statement is reviewed
by the Commission, in which case the 80th day) and (b) the fifth
Trading Day following the date on which the Company is notified by the
Commission that such Registration Statement will not be reviewed or is no
longer subject to further review and comments.


 


“Effectiveness Period” shall have the
meaning set forth in Section 2(a).


 


“Filing Date” means, with respect to
the initial Registration Statement required to be filed hereunder, the 20th
day following the Closing Date.


 


“Holder” or “Holders” means the
holder or holders, as the case may be, from time to time of Registrable
Securities.


 


“Indemnified Party” shall have the
meaning set forth in Section 5(c).


 


“Indemnifying Party” shall have the
meaning set forth in Section 5(c).


 


“Losses” shall have the meaning set
forth in Section 5(a).


 


“Proceeding” means an action, claim,
suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced
or threatened.


 


“Prospectus” means the prospectus
included in a Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement, and all other
amendments and supplements to the


 


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Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.


 


“Registrable Securities” means the
shares of Common Stock issued pursuant to the Purchase Agreement and issuable
upon exercise of the Warrants.


 


“Registration Statement” means the
initial registration statement required to be filed hereunder and any
additional registration statements contemplated by Section 2(d),
including (in each case) the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.


 


“Rule 144” means Rule 144 promulgated
by the Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.


 


“Rule 415” means Rule 415 promulgated
by the Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.


 


“Rule 424” means Rule 424 promulgated
by the Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.


 


“Warrants” means the Common Stock
purchase warrants issued pursuant to the Purchase Agreement.


 


2.                                       Registration.


 


(a)                                  On
or prior to the Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415.  The Registration Statement shall be on Form
S-3 (except if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall
be on another appropriate form in accordance herewith) and shall contain
(except if otherwise required by the Commission) the “Plan of Distribution”
attached hereto as Annex A.  The
Company shall cause the Registration Statement to become effective and remain
effective as provided herein. The Company shall use its best efforts to cause
the Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event prior to its Effectiveness
Date, and shall use its best efforts to keep the Registration Statement
continuously effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities have been sold or (ii) all
Registrable Securities may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule 144(k), as
determined by the counsel to the Company pursuant to an unqualified written
opinion letter to such effect, addressed and acceptable to the Company’s
transfer agent and the affected Holders (the “Effectiveness Period”).


 


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(b)                                 If:
(a) any Registration Statement is not filed on or prior to the Filing Date; (b)
a Registration Statement filed hereunder is not declared effective by the
Commission by the Effectiveness Date; (c) after a Registration Statement is
filed with and declared effective by the Commission, such Registration
Statement ceases to be effective (by suspension or otherwise) as to all
Registrable Securities to which it is required to relate at any time prior to
the expiration of the Effectiveness Period without being succeeded within
fifteen (15) Trading Days by an amendment to such Registration Statement or by
a subsequent Registration Statement filed with and declared effective by the
Commission; (d) the Common Stock is not listed or quoted, or is suspended from
trading on the Nasdaq National Market for a period of three (3) Trading Days
(which need not be consecutive Trading Days); or (e) the exercise rights of the
Holders pursuant to the Warrants are suspended for any reason (any such failure
or breach being referred to as an “Event,” and for purposes of clause
(a), (b) or (e) the date on which such Event occurs, or for purposes of clause
(c) the date which such fifteen (15) Trading Day-period is exceeded, or for
purposes of clause (d) the date on which such three (3)  Trading Day period is exceeded, being
referred to as “Event Date”), then until the applicable Event is cured,
the Company shall pay to each Holder an amount in cash, as liquidated damages
and not as a penalty, equal to 1.0% for the first, and 2.0% for each
subsequent, thirty (30) day period (prorated for partial periods) on a daily
basis of the aggregate purchase price paid by such Holder pursuant to the
Purchase Agreement.  Such liquidated
damages shall be paid not less than each thirty (30) days during an Event and
within three (3) days following the date on which such Event has been cured by
the Company.  If the Company fails to
pay any liquidated damages pursuant to this Section in full within seven days
after the date payable, the Company will pay interest thereon at a rate of 18%
per annum (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such liquidated
damages are due until such amounts, plus all such interest thereon, are paid in
full.


 


3.                                       Registration Procedures


 


In connection with the Company’s registration
obligations hereunder, the Company shall:


 


(a)                                  Not
less than three (3) Trading Days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or supplement thereto, the
Company shall, (i) furnish to the Holders copies of all such documents proposed
to be filed (including documents incorporated or deemed incorporated by
reference) which documents will be subject to the review of such Holders, and
(ii) cause its officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of respective counsel to conduct a reasonable investigation
within the meaning of the Securities Act. 
The Company shall not file the Registration Statement or any such Prospectus
or any amendments or supplements thereto to which the Holders of a majority of
the Registrable Securities shall reasonably object in good faith.


 


(b)                                 (i)  Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
and the Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale


 


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under the Securities Act all of
the Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably possible, and in any event within ten (10) days, to any comments
received from the Commission with respect to the Registration Statement or any
amendment thereto and, as promptly as reasonably possible provide the Holders
true and complete copies of all correspondence from and to the Commission
relating to the Registration Statement; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Holders thereof set forth in the
Registration Statement as so amended or in such Prospectus as so supplemented.


 


(c)                                  Notify
the Holders of Registrable Securities to be sold as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than three (3) Trading
Days prior to such filing) and (if requested by any such Person) confirm such
notice in writing no later than one (1) Trading Day following the day (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment to
the Registration Statement is proposed to be filed; (B) when the Commission
notifies the Company whether there will be a “review” of such Registration
Statement and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders); and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction, or the initiation or threatening of any Proceeding for
such purpose; and (v) of the occurrence of any event or passage of time that
makes the financial statements included in the Registration Statement
ineligible for inclusion therein or any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires
any revisions to the Registration Statement, Prospectus or other documents so
that, in the case of the Registration Statement or the Prospectus, as the case
may be, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.


 


(d)                                 Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of (i) any order suspending the effectiveness of the Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.


 


(e)                                  Furnish
to each Holder, without charge, at least one conformed copy of the Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference,


 


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and all exhibits to the extent requested by
such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.


 


(f)                                    Promptly
deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request.  The Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto.


 


(g)                                 Use
its best efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from such
registration or qualification) of all applicable Registrable Securities for
offer and sale under the securities or Blue Sky laws of all applicable
jurisdictions within the United States as any Holder requests in writing, to
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by a Registration Statement; provided,
that the Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or subject the Company to
any material tax in any such jurisdiction where it is not then so subject.


 


(h)                                 Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a
transferee pursuant to a Registration Statement, which certificates shall be
free, to the extent permitted by the Purchase Agreement, of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such Holders may request.


 


(i)                                     Upon
the occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.


 


(j)                                     Comply
with all applicable rules and regulations of the Commission.


 


(k)                                  The
Company may require each selling Holder to furnish to the Company a certified
statement as to the number of shares of Common Stock beneficially owned by such
Holder and such other reasonable information as the Company is required to
obtain for inclusion in the Registration Statement.


 


4.                                       Registration Expenses.  All fees
and expenses incident to the performance of or compliance with this Agreement
by the Company shall be borne by the Company whether or not any Registrable
Securities are sold pursuant to the Registration Statement.  The fees and 


 


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expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading, and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing
prospectuses, (iii) messenger, telephone and delivery expenses, (iv) Securities
Act liability insurance, if the Company so desires such insurance, and (v) fees
and expenses of all other Persons retained by the Company in connection with
the consummation of the transactions contemplated by this Agreement.  In addition, the Company shall be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder.


 


5.                                       Indemnification


 


(a)                                  Indemnification
by the Company.  The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, brokers (including brokers who
offer and sell Registrable Securities as principal as a result of a pledge or
any failure to perform under a margin call of Common Stock), investment
advisors and employees of each of them, each Person who controls any such
Holder (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) and the officers, directors, agents and employees of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and reasonable attorneys’
fees) and expenses (collectively, “Losses”), as incurred, arising out of
or relating to any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except to the extent, but only to the extent, that (1)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to such Holder or
such Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in
any amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (2) in the case of an occurrence of
an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder
of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d).  The Company shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding of which the
Company is aware in connection with the transactions contemplated by this
Agreement.


 


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(b)                                 Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and
hold harmless the Company, its directors, officers, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to the fullest
extent permitted by applicable law, from and against all Losses, as incurred, arising
solely out of or based solely upon: (x) such Holder’s failure to comply with
the prospectus delivery requirements of the Securities Act or (y) any untrue
statement of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing
by such Holder to the Company specifically for inclusion in such Registration
Statement or such Prospectus or to the extent that (1) such untrue statements
or omissions are based solely upon information regarding such Holder furnished
in writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in the Registration
Statement (it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment
or supplement thereto or (2) in the case of an occurrence of an event of the
type specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated
or defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or 
defective and prior to the receipt by such Holder of the Advice
contemplated in Section 6(d).  In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the net proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.


 


(c)                                  Conduct
of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from whom
indemnity is sought (the “Indemnifying Party”) in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment of
all fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not subject to
appeal or further review) that such failure shall have proximately and
materially adversely prejudiced the Indemnifying Party.


 


An Indemnified Party shall have the right to
employ separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless:  (1) the Indemnifying Party has agreed in writing to pay such fees
and expenses; (2) the Indemnifying Party shall have failed promptly to assume
the defense of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding; or (3) the named parties to any
such Proceeding (including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a


 


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conflict of
interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense thereof and such counsel
shall be at the expense of the Indemnifying Party).  The Indemnifying Party shall not be liable for any settlement of
any such Proceeding effected without its written consent, which consent shall
not be unreasonably withheld.  No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.


 


All fees and expenses of the Indemnified
Party (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such Proceeding in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten (10) Trading Days of written notice thereof to
the Indemnifying Party (regardless of whether it is ultimately determined that
an Indemnified Party is not entitled to indemnification hereunder; provided,
that the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).


 


(d)                                 Contribution.  If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations.  The relative fault of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission.  The
amount paid or payable by a party as a result of any Losses shall be deemed to
include, subject to the limitations set forth in Section 5(c), any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its terms.


 


The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 5(d) were
determined by pro  rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the immediately preceding paragraph.  Notwithstanding the provisions of this Section 5(d), no Holder
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the proceeds actually received by such Holder from the sale of
the Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged 


 


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omission.  No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.


 


The indemnity and contribution agreements
contained in this Section are in addition to any liability that the
Indemnifying Parties may have to the Indemnified Parties.


 


6.                                       Miscellaneous


 


(a)                                  Remedies.  In the event of a breach by the Company or
by a Holder, of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this
Agreement.  The Company and each Holder
agree that monetary damages would not provide adequate compensation for any losses
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.


 


(b)                                 No
Piggyback on Registrations.  Except
as and to the extent specified in Schedule 6(b) hereto, neither the
Company nor any of its security holders (other than the Holders in such
capacity pursuant hereto) may include securities of the Company in the
Registration Statement other than the Registrable Securities, and the Company
shall not after the date hereof enter into any agreement providing any such
right for inclusion of shares in the Registration Statement to any of its
security holders.  Except as and to the
extent specified in Schedule 6(b) hereto, the Company has not previously
entered into any agreement granting any registration rights with respect to any
of its securities to any Person which has not been fully satisfied.


 


(c)                                  Compliance.  Each Holder covenants and agrees that it
will comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.


 


(d)                                 Discontinued
Disposition.  Each Holder agrees by
its acquisition of such Registrable Securities that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in
Section 3(c), such Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such Holder’s
receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus may be resumed, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement. 
The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.


 


(e)                                  Piggy-Back
Registrations.  If at any time
during the Effectiveness Period  there
is not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the Commission
a registration 


 


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statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen days after receipt of such notice, any
such Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
holder requests to be registered, subject to customary underwriter cutbacks
applicable to all holders of registration rights.


 


(f)                                    Amendments
and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and the Holders of the then
outstanding Registrable Securities. 
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of certain Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.


 


(g)                                 Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile telephone number specified in this Section prior to 6:30 p.m.
(New York City time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 6:30 p.m.
(New York City time) on any date and earlier than 11:59 p.m. (New York City
time) on such date, (iii) the Trading Day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.  The address for such notices and
communications shall be as follows:


 


	
  If to the Company:

  	
  AVI BioPharma, Inc.

  
	
   

  	
  One S.W. Columbia, Suite 1105

  
	
   

  	
  Portland, Oregon 97258

  
	
   

  	
  Facsimile:  (503) 227-0751

  
	
   

  	
   

  
	
  If to a Purchaser:

  	
  To the address set forth under such Purchaser name on the signature
  pages hereto.

  
	
   

  	
   

  
	
  If to any other Person who is then the registered Holder:

  
	
   

  	
   

  
	
   

  	
  To the address of such Holder as it appears in the stock transfer
  books of the Company

  



 


10

















 


or such other address as may be designated in writing hereafter, in the
same manner, by such Person.


 


(h)                                 Successors
and Assigns.  This Agreement shall
inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties and shall inure to the benefit of each
Holder.  The Company may not assign its
rights or obligations hereunder without the prior written consent of each
Holder.  Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under
the Purchase Agreement.


 


(i)                                     Execution
and Counterparts.  This Agreement
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and, all of which taken together shall
constitute one and the same Agreement. 
In the event that any signature is delivered by facsimile transmission,
such signature shall create a valid binding obligation of the party executing
(or on whose behalf such signature is executed) the same with the same force
and effect as if such facsimile signature were the original thereof.


 


(j)                                     Governing
Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof.  Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York, Borough of Manhattan.  Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the
City of New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of the any of
the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Proceeding is improper.  Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner
permitted by law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce any
provisions of a Transaction Document, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its reasonable attorneys
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Proceeding.


 


(k)                                  Cumulative
Remedies.  The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.


 


11

















 


(l)                                     Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction.  It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.


 


(m)                               Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES TO FOLLOW]


 


12

















 


IN WITNESS WHEREOF, the parties have executed
this Registration Rights Agreement as of the date first written above.


 


	
   

  	
  AVI BIOPHARMA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Denis R. Burger, Ph.D.

  
	
   

  	
  Name:

  	
  Denis R. Burger, Ph.D.

  
	
   

  	
  Title:

  	
  Chairman & Chief Executive Officer

  



 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES OF PURCHASERS TO FOLLOW]


 


13

















 


IN WITNESS WHEREOF, the parties have executed
this Registration Rights Agreement as of the date first written above.


 


 


	
   

  	
  SMITHFIELD FIDUCIARY LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Adam J. Chill

  	
   

  
	
   

  	
  Name:

  	
  Adam J. Chill

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  c/o Highbridge Capital Management, LLC

  9 West 57th Street, 27th Floor

  New York, NY  10019

  Fax:                           212-751-0755

  Tel:                            212-287-4720

  Attention:  Ari J. Storch / Adam J.
  Chill

  



 


14

















 


	
   

  	
  On behalf of

  THE TAIL WIND FUND LIMITED

  Tail Wind Advisory & Management Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Crook

  	
   

  
	
   

  	
  Name:

  	
  David Crook

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  David Crook, Esq.

  Chief Executive Officer

  Tail Wind Advisory & Management Ltd.

  1st Floor, No. 1 Regent Street

  London, SW1Y 4NS, UK

  Tel:                            +44
  20 7468 7691 Fax:                                7657

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Please copy all
  correspondence to:
Peter J. Weisman, P.C.

  110 East 59th Street

  New York, NY  10005

  Tel:  +212-418-4792  Fax: 
  212-317-8855

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Please send the
  common shares a.s.a.p.

  directly to:
Bishop Rosen & Co.

  Attn:  Mr. D. Freedman

  100 Broadway, 18th Floor

  New York, NY  10006

  Tel:  +212-602-0654  Fax: 
  +212-602-0697

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Please send the
  warrants to:
The Tail Wind Fund, Ltd.

  MecaPierson (Bahamas) Ltd.

  Attn:  Ngaire Rolle,

  Windermere House, 404 East Bay St.,

  PO Box SS 5539, Nassau, Bahamas

  Tel:  242-393-8777  Fax: 
  242-393-9021

  



 


15

















 


	
  OMICRON MASTER TRUST

  	
   

  	
  Address for Notice:

  
	
  By: 
  Omicron Capital L.P., as subadvisor

  	
   

  	
  c/o Omicron Capital L.P.

  
	
  By: 
  Omicron Capital Inc., its general partner

  	
   

  	
  810 Seventh Avenue, 39th Floor

  
	
   

  	
   

  	
  New York, New York 10019

  
	
  By:

  	
  /s/ Olivier
  Morali

  	
   

  	
   

  	
  Attn: Brian Daly

  
	
   

  	
  Olivier
  Morali, President

  	
   

  	
  Fax: (212) 803-5269

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Shares of Common Stock:

  	
  400,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Warrant Shares:

  	
  200,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price:

  	
  $2,000,000

  
						



 


16

















 


	
  RIVERVIEW GROUP, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Terry
  Feeney

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Terry Feeney

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief
  Operating Officer

  	
   

  	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  666 5th Avenue, 8th Floor

  New York, New York 10103

  Attn:  Daniel Cardella

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Shares of Common Stock:

  	
  650,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Warrant Shares:

  	
  325,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price:

  	
  $3,250,000

  
								



 


17

















 


	
  CRANSHIRE CAPITAL L.P.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Mitchell P. Kopin

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Mitchell P.
  Kopin

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President – Downsview Capital

  	
   

  	
   

  	
   

  
	
   

  	
  The General Partner

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn: Mitchell Kopin

  666 Dundee Road

  Suite 1901

  Northbrook, IL 60062

  Fax: 847-562-9031

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Shares of Common Stock:

  	
  700,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Warrant Shares:

  	
  350,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price:

  	
  $3,500,000

  
	
   

  	
   

  	
   

  
	
  RODMAN & RENSHAW, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ John J.
  Borer III

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   John J. Borer III

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   Senior Managing Director

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notice:

  330 Madison Avenue

  27th Floor

  New York, NY 10019

  Fax: 212-356-0536

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Shares of Common Stock:

  	
  200,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Warrant Shares:

  	
  100,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price:

  	
  $1,000,000

  
							



 


18

















 


	
  SOLOMON STRATEGIC HOLDINGS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Andrew P. MacKellar

  	
   

  	
   

  	
   

  
	
   

  	
  Andrew P.
  MacKellar

  	
   

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notice:

  c/o Andrew P. MacKellar

  Greenlands.

  The Red Gap

  Castletown, Isle of Man, IM9 1 HB, British Isles

  Fax: +44 1624 824191

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Please send the
  common shares

  a.s.a.p. directly to:
Bishop Rosen & Co.

  Attn:  Mr. D. Freedman

  100 Broadway, 18th Floor

  New York, NY 10006

  Tel: +212-602-0054 Fax: +212-

  602-0697

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Please send the
  warrants to:
Peter J. Weisman, P.C.

  110 East 59th Street

  New York, NY 10005

  Tel: +212-418-4792 Fax: 212-317-

  8855

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Shares of Common Stock:

  	
  50,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Warrant Shares:

  	
  25,000

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price:

  	
  $250,000

  
							



 


19

















 


Annex A


 


Plan of Distribution


 


The selling
stockholders and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock on any
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 stockholders 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;


 


•                  short sales


 


•                  broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share;


 


•                  a combination of
any such methods of sale; and


 


•                  any other method
permitted pursuant to applicable law.


 


The selling stockholders may also sell shares
under Rule 144 under the Securities Act, if available, rather than under this
prospectus.


 


Broker-dealers engaged by the selling
stockholders may arrange for other brokers-dealers to participate in
sales.  Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated.  The selling
stockholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.


 


The selling stockholders may from time to
time pledge or grant a security interest in some or all of the shares of common
stock or Warrants owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell
the shares of common stock from time to time under this prospectus, or under an
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act of 1933 amending the list of selling stockholders to
include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus.


 


1

















 


The selling stockholders also may transfer
the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.


 


The selling stockholders 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.  The
selling stockholders have informed the Company that it does not have any
agreement or understanding, directly or indirectly, with any person to
distribute the Common Stock.


 


The Company is required to pay all fees and
expenses incident to the registration of the shares.  The Company has agreed to indemnify the selling stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.


 


2

















 


SCHEDULE 6(b)


 


TO


 


REGISTRATION RIGHTS AGREEMENT

DATED MAY 5, 2003


 


The Company may include up to 50,000 shares of its Common Stock issued
to Thomas Jefferson University in the Registration Statement.


 


3