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0001506928
0001506928
2024-12-11
2024-12-11
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):
December 11, 2024
Avinger, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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001-36817
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20-8873453
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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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):
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.001 per share
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AVGR
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The Nasdaq Capital Market
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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 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On December 11, 2024, in connection with a potential assignment for the benefit of creditors, followed by a voluntary dissolution and liquidation (the “Assignment and Dissolution”), as described in the preliminary proxy statement filed with the Securities and Exchange Commission on December 11, 2024, the Company’s named executive officers—Jeffrey M. Soinski, Himanshu Patel and Nabeel Subainati— executed waivers. These waivers relate to certain rights and benefits under their change of control and severance agreements, retention bonus agreements, and/or offer letter agreements, which might otherwise be triggered by the Assignment and Dissolution or related transactions.
Pursuant to the waivers:
The officers agreed that the transfer of the Company’s assets to a liquidating trust or assignee (the “Transfer”) for the purpose of liquidation and distribution shall not constitute a Change of Control as defined in the applicable agreements.
The officers expressly waived the applicability of provisions under their agreements that would otherwise provide for severance payments, COBRA reimbursements, accelerated vesting of unvested stock options and restricted stock, and extensions of the post-termination exercise period for any options in connection with the Transfer.
The officers waived any rights to retention bonus payments under their applicable retention bonus agreements.
The foregoing description of the waivers is qualified in its entirety by reference to the full text of the waivers, which are attached as Exhibits 10.1, 10.2, and 10.3 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
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Exhibit No.
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Description
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10.1
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10.2
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10.3
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
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AVINGER, INC.
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Date: December 13, 2024
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By:
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/s/ Jeffrey M. Soinski
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Jeffrey M. Soinski
Chief Executive Officer
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Exhibit 10.1
AVINGER, INC.
WAIVER
DECEMBER 11, 2024
Reference is hereby made to that certain change of control and severance agreement, dated as of March 29, 2018, by and between Avinger, Inc. (the “Company”) and Jeffrey M. Soinski (the “Officer”) (the “Severance Agreement”) pursuant to which the Company has agreed to provide the Officer with certain severance payments, reimbursements for COBRA premiums, accelerated vesting of outstanding unvested stock options and restricted stock, and an extension of the post-termination exercise period for any options in connection with a Change of Control (as defined in the Change of Control and Severance Agreement).
Reference is also hereby made to that certain retention bonus agreement, dated as of March 9, 2021, by and between the Company and the Officer (the “Retention Agreement”) pursuant to which the Company agreed to pay the Officer an amount equal to 50% of the Officer’s salary in cash, equity or both, if the Officer remains in good standing in service to the Company as of December 31, 2024 (the “2024 Retention Bonus Payment”).
Reference is also hereby made to that certain offer letter agreement, dated as of December 18, 2014, by and between the Company and the Officer (the “Offer Letter Agreement”) pursuant to which the Company has agreed to provide the Officer with accelerated vesting of outstanding unvested stock options and restricted stock in connection with a Change in Control or a Change of Control and certain severance payments and reimbursements for COBRA premiums in connection with a termination without Cause (each as defined in the Offer Letter Agreement).
WHEREAS: in connection with a potential liquidation and distribution, the Company may transfer all of its right, title, interest in, and custody and control of, its property to a liquidating trust or an assignee who will liquidate the property and distribute the proceeds to the Company’s creditors to satisfy its obligations (the “Transfer”);
WHEREAS: under Section 3(b) of the Severance Agreement, the Transfer may be deemed to be a Change of Control;
WHEREAS: Officer desires to waive and forego Officer’s right and interest in the 2024 Retention Bonus Payment;
WHEREAS: pursuant to Section 3 of Exhibit A to the Offer Letter Agreement, the Transfer may be deemed a Change in Control or a Change of Control (as defined in the Offer Letter Agreement).
NOW, THEREFORE, BE IT RESOLVED AND AGREED: that the Officer waives the applicability of Section 3(b) of the Severance Agreement as it relates to the Transfer and that the Officer and the Company hereby agree that the Transfer shall not constitute a Change of Control (as defined in the Severance Agreement).
RESOLVED AND AGREED FURTHER: that the Officer hereby waives his right and interest in the 2024 Retention Bonus Agreement and hereby acknowledges that, as a result, the Employee has no further rights under the Retention Agreement including in connection with a Change in Control as that term is defined the Retention Agreement.
RESOLVED AND AGREED FURTHER: that the Officer waives the applicability of Sections 5 and 6 of the Offer Letter Agreement and Section 3 of Exhibit A to the Offer Letter Agreement as they relate to the Transfer and that the Officer and the Company hereby agree that the Transfer and any termination of the Officer in connection therewith shall not constitute a termination for Cause, or a Change in Control or a Change of Control (as those terms are defined in the Offer Letter Agreement).
[Signature Page Follows]
This Waiver is hereby acknowledged and agreed on behalf of the undersigned:
| COMPANY: |
OFFICER: |
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| AVINGER, INC. |
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By:
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/s/ Nabeel P. Subainati |
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/s/ Jeffrey M. Soinski
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| Name: |
Nabeel P. Subainati |
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Jeffrey M. Soinski |
| Title: |
Vice President, Finance |
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Exhibit 10.2
AVINGER, INC.
WAIVER
DECEMBER 11, 2024
Reference is hereby made to that certain Change of Control and Severance Agreement dated as of October 10, 2013 (the “Severance Agreement”) between Avinger, Inc. (the “Company”) and Himanshu Patel (the “Employee”), and that certain Retention Bonus Agreement, dated as of March 9. 2021 (the “Retention Agreement”).
Pursuant to the Severance Agreement, the Company agreed to provide the Employee with certain severance payments, reimbursement for COBRA premiums, accelerated vesting of unvested stock options and restricted stock, extension of the post-termination exercise period for any options and acceleration of any unpaid retention bonus payment in the event of a Change of Control.
Pursuant to the Retention Agreement, the Company agreed to pay the Employee an amount equal to 50% of the Employee’s salary in cash, equity or both, if the Employee remains in good standing in service to the Company as of December 31, 2024 (the “2024 Retention Bonus Payment”).
WHEREAS: in connection with a potential liquidation and distribution, the Company may transfer all of its right, title, interest in, and custody and control of, its property to a liquidating trust or an assignee who will liquidate the property and distribute the proceeds to the Company’s creditors to satisfy its obligations (the “Transfer”) and under Section 3(b) of each of the Severance Agreement, the Transfer may be deemed to be a Change of Control; and
WHEREAS: the Employee desires to waive and forego Employee’s right and interest in the 2024 Retention Bonus Payment.
NOW, THEREFORE, BE IT RESOLVED AND AGREED: that the Employee waives the applicability of Section 3(b) of each of the Severance Agreement as it relates to the Transfer and that the Employee and the Company hereby agree that the Transfer shall not constitute a Change of Control; and
RESOLVED AND AGREED FURTHER: that the Employee hereby waives his rights and interest in the 2024 Retention Bonus Agreement and hereby acknowledges that, as a result, the Employee has no further rights under the Retention Agreement including in connection with a Change in Control as that term is defined the Retention Agreement.
This Waiver is hereby acknowledged and agreed on behalf of the undersigned:
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COMPANY:
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EMPLOYEE:
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AVINGER, INC.
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By:
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/s/ Jeffrey M. Soinski
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/s/ Himanshu Patel
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Name:
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Jeffrey M. Soinski |
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Himanshu Patel |
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Title:
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President & CEO |
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[Signature Page to Waiver]
Exhibit 10.3
AVINGER, INC.
WAIVER
DECEMBER 11, 2024
Reference is hereby made to that certain Change of Control and Severance Agreement dated as of May 16, 2022 (the “Severance Agreement”) between Avinger, Inc. (the “Company”) and Nabeel Subainati (the “Employee”), and that certain Retention Bonus Agreement, dated as of October 24, 2023 (the “Retention Agreement”).
Pursuant to the Severance Agreement, the Company agreed to provide the Employee with certain severance payments, reimbursement for COBRA premiums, accelerated vesting of unvested stock options and restricted stock, extension of the post-termination exercise period for any options and acceleration of any unpaid retention bonus payment in the event of a Change of Control.
Pursuant to the Retention Agreement, the Company agreed to pay the Employee an amount equal to 50% of the Employee’s salary in cash, equity or both, if the Employee remains in good standing in service to the Company as of December 31, 2024 (the “2024 Retention Bonus Payment”).
WHEREAS: in connection with a potential liquidation and distribution, the Company may transfer all of its right, title, interest in, and custody and control of, its property to a liquidating trust or an assignee who will liquidate the property and distribute the proceeds to the Company’s creditors to satisfy its obligations (the “Transfer”) and under Section 3(b) of each of the Severance Agreement, the Transfer may be deemed to be a Change of Control; and
WHEREAS: the Employee desires to waive and forego Employee’s right and interest in the 2024 Retention Bonus Payment.
NOW, THEREFORE, BE IT RESOLVED AND AGREED: that the Employee waives the applicability of Section 3(b) of each of the Severance Agreement as it relates to the Transfer and that the Employee and the Company hereby agree that the Transfer shall not constitute a Change of Control; and
RESOLVED AND AGREED FURTHER: that the Employee hereby waives his rights and interest in the 2024 Retention Bonus Agreement and hereby acknowledges that, as a result, the Employee has no further rights under the Retention Agreement including in connection with a Change in Control as that term is defined the Retention Agreement.
This Waiver is hereby acknowledged and agreed on behalf of the undersigned:
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COMPANY:
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EMPLOYEE:
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AVINGER, INC.
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By:
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/s/ Jeffrey M. Soinski
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/s/ Nabeel P. Subainati
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Name:
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Jeffrey M. Soinski |
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Nabeel P. Subainati
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Title:
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President & Chief Executive Officer |
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[Signature Page to Waiver]
v3.24.3
Document And Entity Information
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Dec. 11, 2024 |
| Document Information [Line Items] |
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| Entity, Registrant Name |
Avinger, Inc.
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| Document, Type |
8-K
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| Document, Period End Date |
Dec. 11, 2024
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| Entity, Incorporation, State or Country Code |
DE
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| Entity, File Number |
001-36817
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| Entity, Tax Identification Number |
20-8873453
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| Entity, Address, Address Line One |
400 Chesapeake Drive
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| Entity, Address, City or Town |
Redwood City
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| Entity, Address, State or Province |
CA
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| Entity, Address, Postal Zip Code |
94063
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| City Area Code |
650
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| Local Phone Number |
241-7900
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| Written Communications |
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| Soliciting Material |
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| Pre-commencement Tender Offer |
false
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| Title of 12(b) Security |
Common Stock
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| Trading Symbol |
AVGR
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| Security Exchange Name |
NASDAQ
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| Entity, Emerging Growth Company |
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