UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):

 

January 14, 2022

 

 

Avinger, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

001-36817

 

20-8873453

(State or other jurisdiction of incorporation)

 

(Commission File Number)

 

(IRS Employer Identification No.)

 

400 Chesapeake Drive

Redwood City, California 94063

(Address of principal executive offices, including zip code)

 

(650) 241-7900

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☒ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, par value $0.001 per share

AVGR

The NASDAQ Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR § 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR § 240.12b-2).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 
 

 

Item 3.03. Material Modifications to Rights of Security Holders.

 

The disclosure required by this Item and included in Item 5.03 of this Current Report is incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

In connection with the previously announced offering by Avinger, Inc. (the “Company”) of shares of Series D Convertible Preferred Stock and warrants to purchase common stock of the Company, on January 14, 2022, the Company filed with the Secretary of State of the State of Delaware a certificate of designation (the “Certificate of Designation”) with the Secretary of State of Delaware designating the rights, preferences and limitations of the shares of Series D Convertible Preferred Stock. The Certificate of Designation became effective on January 14, 2022.

 

The foregoing description of the Certificate of Designation is qualified in its entirety by reference to the full text of the Certificate of Designation, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein.

 

Item 8.01. Other Events.

 

As previously reported, on January 12, 2021, the Company entered into a securities purchase agreement with certain institutional investors (the “Investors”), pursuant to which the Company agreed to issue and sell to the Investors in a registered direct offering (the “Offering”) (i) 7,600 shares of the Company’s Series D Convertible Preferred Stock, par value $0.001 per share (the “Preferred Stock”), and (ii) warrants (the “Common Warrants”) to purchase an aggregate of 16,150,000 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”). In connection with the Offering and pursuant to an engagement letter entered into on December 8, 2021, by and between the Company and H.C. Wainwright & Co., LLC (the “Placement Agent”), the Company also agreed to grant to the Placement Agent or its designees warrants to purchase up to 1,330,000 shares of Common Stock at an exercise price of $0.50 per share (the “Placement Agent Warrants”). The Offering closed on January 14, 2022.

 

On January 14, 2022, the Company issued a press release announcing the closing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference herein.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

The following exhibits are filed herewith:

 

3.1

 

Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock.

99.1     

 

Press release dated January 14, 2022.

104

 

Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

Additional Information and Where to Find It

 

The Reverse Split Amendment proposal described in the press release announcing the closing of the Offering will be submitted to the Company’s stockholders for their consideration. The Company intends to file a proxy statement (the “Proxy Statement”) that will be sent to all holders of record of the Company’s Common Stock and Series D Preferred Stock in connection with the Reverse Split Amendment. This current report and the press release do not contain all the information that should be considered concerning the Reverse Split Amendment and are not intended to form the basis of any investment decision or any other decision in respect of the Reverse Split Amendment. The Company’s stockholders and other interested persons are advised to read, when available, the preliminary Proxy Statement and the amendments thereto and the definitive Proxy Statement and other documents filed in connection with the Reverse Split Amendment, as these materials will contain important information about the Company and the Reverse Split Amendment. When available, the definitive Proxy Statement and other relevant materials for the proposed Reverse Split Amendment will be provided to stockholders of the Company as of a record date to be established for voting on the Reverse Split Amendment. The Company’s stockholders will also be able to obtain copies of the preliminary Proxy Statement, the definitive Proxy Statement and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to the Company at Avinger, Inc., Attention: Investors Relations, 400 Chesapeake Drive, Redwood City, California 94063.

 

Participants in Solicitation

 

The Company and its directors and executive officers may be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the proposed Reverse Split Amendment. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the Company’s definitive proxy statement for its 2021 Annual Meeting of Stockholders, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov. To the extent such holdings of the Company’s securities may have changed since that time, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of such participants will be contained in the Proxy Statement for the proposed Reverse Split Amendment when available.

 

 
 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Date: January 18, 2022

Avinger, Inc.

 

 

 

 

 

 

By:

/s/  Mark Weinswig

 

 

 

Name:       Mark Weinswig

 

 

 

Title:         Chief Financial Officer

 

 

 
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