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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

--12-31

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):

 

December 20, 2022

 

 

Avinger, Inc.

(Exact name of registrant as specified in its charter)

 

 

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:

 

 

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

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 3.02. Unregistered Sales of Equity Securities

 

The Certificate of Designation of Preferences, Rights and Limitations (the “Certificate of Designation”) of Series A Convertible Preferred Stock (the “Series A Preferred Stock”) of Avinger, Inc. (the “Company”) entitles the holders of Series A Preferred Stock to dividends (the “Preferred Dividend”) at a rate of 8% of $1,000 per annum, compounded annually. The Certificate of Designation allows the Company to pay the Preferred Dividends by issuing and delivering fully paid and nonassessable shares of Series A Preferred Stock. Accordingly, on December 21, 2022, the Board of Directors of the Company declared a Preferred Dividend on the Series A Preferred Stock of an aggregate of 4,510 shares of Series A Preferred Stock to pay the Preferred Dividend to the holders of record of Series A Preferred Stock as of December 23, 2022. The Company expects that the Preferred Dividend will be paid on or before December 29, 2022.

 

The Series A preferred stock will only be convertible into common stock following such time as the Company’s stockholders have approved an amended and restated certificate of incorporation that authorizes at least 125 million shares of common stock. Unless and until such an approval is received, the Series A preferred stock will not be convertible into common stock. If the Series A Preferred Stock becomes convertible into common stock, it will be convertible into that number of shares of common stock of the Company determined by dividing $1,000 by the conversion price of $400.00, subject to certain anti-dilution protections and beneficial ownership limitations.

 

The Company relied on the exemption from registration available under Section 4(a)(2) and Rule 506 of Regulation D of the Securities Act of 1933, as amended, in connection with the distribution.

 

Item 3.03. Material Modification to Rights of Securityholders.

 

On December 22, 2022, the Company filed a Certificate of Amendment to the Designated Number of Shares of Series A Convertible Preferred Stock (the “Amendment”) with the Secretary of State of the State of Delaware to increase the number of designated shares of Series A Preferred Stock from 60,000 to 100,000.

 

The Amendment was approved by the Company’s board of directors and the requisite holders of outstanding shares of Series A Preferred Stock. No approval of the holders of the Company’s common stock was required to effectuate the Amendment.

 

The Amendment became effective upon filing. Other than the Amendment described above, the rights, preferences and privileges of the Series A Preferred Stock remain unchanged, and the description of such stock is qualified in its entirety by the copy of the Certificate of Designation filed as Exhibit 3.4 to the Company’s Annual Report on Form 10-K filed March 22, 2022, and the Certificate of Amendment to the Certificate of Designation filed as Exhibit 3.7 to the Company’s Annual Report on Form 10-K filed March 22, 2022. The foregoing description of the Amendment is not complete and is subject to and qualified in its entirety by reference to the Amendment, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

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

 

The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated herein by reference. 

 

Item 5.07. Submission of Matters to a Vote of Security Holders.

 

On December 20, 2022, the holders of all of the outstanding shares of the Series A Preferred Stock approved the Amendment by written consent, as set forth above.

 

The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated herein by reference. 

 

Item 9.01.  Financial Statements and Exhibits.

 

(d) Exhibits

 

 

 

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 hereunto duly authorized.