Exhibit 10.48


 


ADDITIONAL FUNDING
AGREEMENT


 


This Agreement
(this “Agreement”) is dated as of May 6, 2003, by and among AVI
BioPharma, Inc., an Oregon corporation (the “Company”) and Riverview
Group, LLC, Cranshire Capital L.P., Smithfield Fiduciary LLC, Omicron Master
Trust, The Tail Wind Fund Limited, Solomon Strategic Holdings, Inc., MRT, L.P.
and Rodman & Renshaw, Inc. (collectively referred to as the “Purchasers”).


 


WHEREAS, the
Company and the Purchasers are parties to that certain Securities Purchase
Agreement dated as of May 5, 2003 (the “Purchase Agreement”);


 


WHEREAS,
defined terms not otherwise defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement; and


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and the
Purchase Agreement, the Company desires to issue and sell to the Purchasers,
and the Purchasers, severally and not jointly, desire to purchase from the
Company, up to, but not to exceed, in the aggregate, an additional 1,500,000
shares of Common Stock and Warrants to purchase up to, in the aggregate,
750,000 shares of Common Stock, as more fully described in this Agreement.


 


NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers
hereto agree as follows:


 


1.             Investment.  Within two (2) Trading Days from the date
hereof, each Purchaser shall deliver to the Company via wire transfer their
respective amounts of the amount set forth on the signature pages hereto and
labeled as the subscription amount, and the Company shall deliver to such
Purchaser shares of Common Stock in accordance with Section 2.3(a)(i) of the
Purchase Agreement and Warrants in accordance with Section 2.3(a)(ii) of the
Purchase Agreement.


 


2.             Documents.  The rights and obligations of the Purchasers
and of the Company with respect to the shares of Common Stock and the Warrants
issued hereunder shall be identical in all respects to the rights and
obligations of the Purchasers and of the Company with respect to the shares of
Common Stock and the Warrants issued pursuant to the Purchase Agreement.  Any rights of a Purchaser or covenants of
the Company which are dependant on a Purchaser holding securities of the
Company or which are determined in magnitude by such Purchaser’s purchase of
securities pursuant to the Purchase Agreement shall be deemed to include any
securities purchased hereunder. The Purchase Agreement is hereby amended to the extent that the term
“Shares” includes the shares of Common Stock issued hereunder, “Warrants”
includes the warrants issued hereunder and “Underlying Shares” includes the
shares of common stock issued hereunder and the shares of Common Stock issuable
upon exercise of the warrants issued hereunder.  Additionally, the Registration Rights Agreement is hereby amended
to the extent that the term “Registrable Securities” includes the shares of
Common Stock issuable hereunder and the shares of Common Stock issuable upon
exercise of the warrants issued hereunder and “Warrants” includes the warrants
issued hereunder.


 


3.             Representations and Warranties
of the Company.  Except as set forth
under the corresponding section of the disclosure schedules attached to the
Purchase Agreement, if any, all representations and warranties of the Company
contained in Section 3.1 of the Purchase Agreement were true and correct as of
May 5, 2003, and remain true and correct as of the date hereof, as though made
at and as of the
date hereof.  The Company has performed
all of the covenants of the Company contained in the Purchase Agreement to be
performed by the Company through the date hereof.  The Company shall, by the close of business, on the business day
following the date of this Agreement, issue a press release


 


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reasonably acceptable to the Purchasers or
file a Form 8-K disclosing all material terms of the transactions contemplated
hereby otherwise in compliance with Section 4.8 of the Purchase Agreement.


 


4.             Representations and Warranties
of the Purchasers.   Each Purchaser
hereby represents and warrants to the Company, severally and not jointly, that
its representations and warranties listed in Section 3.2 of the Purchase
Agreement are true and correct with respect to such Purchaser as of the date
hereof.


 


5.             Incorporation by Reference.  Except as set forth in this Agreement, each
of the Purchase Agreement and the Registration Rights Agreement (with all exhibits
attached thereto) are hereby incorporated by reference and made a part
hereof.  Execution of the signature page
to this Agreement shall constitute the execution of each of the Purchase
Agreement and the Registration Rights Agreement, and each Purchaser shall be
bound to their terms and conditions as set forth in this Agreement. 
Except as specifically amended by the terms of this Agreement, the
Purchase Agreement and all exhibits attached thereto shall remain unmodified
and in full force and effect, and shall not be in any way changed, modified or
superseded by the terms set forth herein.


 


6.             Consent to Agreement.  To the extent required pursuant to Section 4.7 of the Purchase
Agreement, each Purchaser for itself, consents to the issuance of the Common
Stock and Warrants pursuant to this Agreement.


 


7.             Successors and Assigns.  Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.


 


8.             Amendment and Waiver.  Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated, except by a written
instrument signed by all the parties hereto.


 


9.             Counterparts. 
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and shall
become effective when counterparts have been signed by each party and delivered
to the other parties hereto, it being understood that all parties need not sign
the same counterpart.  Execution of this
amendment may be made by delivery by facsimile.


 


10.           Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be delivered as
set forth in the Purchase Agreement.


 


**************************


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized signatories as of the date first indicated above.


 


	
   

  	
  AVI BIOPHARMA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Alan P. Timmins

  	
   

  
	
   

  	
  Name:

  	
  Alan P. Timmins

  
	
   

  	
  Title:

  	
  President & Chief Operating Officer

  



 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 


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[ADDITIONAL FUNDING SIGNATURE PAGE]


 


	
  SMITHFIELD FIDUCIARY LLC

  	
   

  
	
   

  
	
  By:

  	
   

  	
  /s/ Adam J. Chill

  	
   

  
	
  Name:

  	
  Adam J. Chill

  
	
  Title:

  	
  Authorized Signatory

  
					



 


Shares of Common Stock:  200,000


Warrant Shares:  100,000


Aggregate Subscription Amount: 
$1,000,000


 


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OMICRON MASTER TRUST


By:  Omicron Capital L.P., as subadvisor


By:  Omicron Capital Inc., its general partner


 


	
  By:  

  	
   

  	
  /s/ Olivier Morali

  	
   

  
	
  Name:

  	
  Olivier
  Morali

  
	
   Title:

  	
  President

  



 


Shares of Common Stock:  150,000


Warrant Shares:  75,000


Aggregate Subscription Amount: 
$750,000


 


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  RIVERVIEW GROUP, LLC

  
	
   

  
	
   

  
	
  By:

  	
   

  	
  /s/ Terry
  Feeney

  	
   

  
	
  Name:

  	
  Terry Feeney

  
	
  Title:

  	
  Chief
  Operating Officer

  



 


Shares of Common Stock:  600,000


Warrant Shares:  300,000


Aggregate Subscription Amount: 
$3,000,000


 


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  THE TAIL WIND FUND LIMITED

  
	
  By: Tail
  Wind Advisory & Management Ltd.

  
	
   

  
	
  By:

  	
   

  	
  /s/ David
  Crook

  	
   

  
	
  Name:

  	
  David Crook

  
	
  Title:

  	
  Chief
  Executive Officer

  



 


Shares of Common Stock:  50,000


Warrant Shares:  25,000


Aggregate Subscription Amount: 
$250,000


 


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  CRANSHIRE CAPITAL L.P.

  
	
   

  
	
  By:

  	
   

  	
  /s/ Mitchell
  P. Kopin

  	
   

  
	
  Name:

  	
  Mitchell P.
  Kopin

  
	
  Title:

  	
  President –
  Downsview Capital

  
	
   

  	
  The General
  Partner

  



 


Shares of Common Stock:  400,000


Warrant Shares:  200,000


Aggregate Subscription Amount: 
$2,000,000


 


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  MRT, LP

  
	
   

  
	
  By:

  	
   

  	
  /s/ Ian
  Estepan

  	
   

  
	
  Name:

  	
  Ian Estepan

  
	
  Title:

  	
  Research
  Analyst

  



 


Shares of Common Stock: 100,000


Warrant Shares: 50,000


Aggregate Purchase Price: 
$500,000


 


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  RODMAN & RENSHAW, INC.

  
	
   

  
	
  By:

  	
   

  	
  /s/ John J. Borer, III

  	
   

  
	
  Name:

  	
  John J.
  Borer, III

  
	
  Title:

  	
  Senior
  Managing Director

  



 


Shares of Common Stock: 0


Warrant Shares: 0


Aggregate Subscription Amount: 
$0


 


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  SOLOMON STRATEGIC HOLDINGS, INC.

  
	
   

  
	
  By:

  	
   

  	
  /s/ Andrew
  P. MacKellar

  	
   

  
	
  Name:

  	
  Andrew P.
  MacKellar

  
	
  Title:

  	
  Director

  



 


Shares
of Common Stock: 0


Warrant
Shares: 0


Aggregate
Subscription Amount: $0


 


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