Avinger Inc. filed SEC Form 8-K: Unregistered Sales of Equity Securities, Material Modification to Rights of Security Holders, Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year, Submission of Matters to a Vote of Security Holders, Financial Statements and Exhibits

false 0001506928 0001506928 2024-12-29 2024-12-29

 

 

 

 

 

 

Date of Report (Date of earliest event reported):

 

 

 

(Exact name of registrant as specified in its charter)

 

 

(Address of principal executive offices, including zip code)

 

(650) 241-7900

(Registrant’s telephone number, including area code)

 

(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):

 

 

 

 

 

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. ☐

 

 

 

The Certificate of Designation of Preferences, Rights and Limitations (the “Series E Certificate of Designation”) of Series E Convertible Preferred Stock (the “Series E Preferred Stock”) of Avinger, Inc. (the “Company”) entitles the holders of Series E Preferred Stock to dividends (the “Series E Preferred Dividend”) on each share of Series E Preferred Stock at a rate of 8% of $1,000 per annum, compounded annually. The Series E Certificate of Designation allows the Company to pay the Series E Preferred Dividends by issuing and delivering fully paid and nonassessable shares of Series E Preferred Stock. Accordingly, on December 29, 2024, the Board of Directors of the Company declared a Series E Preferred Dividend on the Series E Preferred Stock of an aggregate of 156 shares of Series E Preferred Stock to pay the Series E Preferred Dividend to the holders of record of Series E Preferred Stock as of December 31, 2024.

 

The Certificate of Designation of Preferences, Rights and Limitations (the “Series F Certificate of Designation”) of Series F Convertible Preferred Stock (the “Series F Preferred Stock”) of Avinger, Inc. entitles the holders of Series F Preferred Stock to dividends (the “Series F Preferred Dividend”) on each share of Series F Preferred Stock at a rate of 5% of $1,000 per annum until the third anniversary of the issuance date of the Series F Preferred Stock, compounded annually. The Series F Certificate of Designation allows the Company to pay the Series F Preferred Dividends by issuing and delivering fully paid and nonassessable shares of Series F Preferred Stock. Accordingly, on December 29, 2024, the Board of Directors of the Company declared a Series F Preferred Dividend on the Series F Preferred Stock of an aggregate of 298 shares of Series F Preferred Stock to pay the Series F Preferred Dividend to the holders of record of Series F Preferred Stock as of December 31, 2024, subject to approval by the holders of the Series E Preferred Stock of the issuance of the shares of Series F Preferred Stock, which rank pari passu with the shares of Series E Preferred Stock, and the amendment of the Series F Certificate of Designation as described in Item 3.03 below.

 

The Certificate of Designation of Preferences, Rights and Limitations (the “Series H Certificate of Designation”) of Series H Convertible Preferred Stock (the “Series H Preferred Stock”) of Avinger, Inc. entitles the holders of Series H Preferred Stock to dividends (the “Series H Preferred Dividend,” together with the Series E Preferred Dividend and Series F Preferred Dividend, the “Preferred Dividends”) on each share of Series H Preferred Stock at a rate of 8% of $1,000 per annum, compounded annually. The Series H Certificate of Designation allows the Company to pay the Series H Preferred Dividends by issuing and delivering fully paid and nonassessable shares of Series H Preferred Stock. Accordingly, on December 29, 2024, the Board of Directors of the Company declared a Series H Preferred Dividend on the Series H Preferred Stock of an aggregate of 552 shares of Series H Preferred Stock to pay the Series H Preferred Dividend to the holders of record of Series H Preferred Stock as of December 31, 2024, subject to approval by the holders of the Series F Preferred Stock of the issuance of the shares of Series H Preferred Stock, which rank senior in preference to the Series F Preferred Stock.

 

The Company paid the Preferred Dividends on December 31, 2024.

 

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 distributions.

 

 

 

On December 31, 2024, the Company filed a Certificate of Amendment to the Designated Number of Shares of Series F Convertible Preferred Stock (the “Amendment”) with the Secretary of State of the State of Delaware to increase the number of designated shares of Series F Preferred Stock from 7,224 to 10,000.

 

The Amendment was approved by the Company’s board of directors and the requisite holders of outstanding shares of Series E Preferred Stock and Series F 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 F Preferred Stock remain unchanged, and the description of such stock is qualified in its entirety by the copy of the Series F Certificate of Designation filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed March 7, 2024. 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.

 

 

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

 

 

On December 31, 2024, the holders of all of the outstanding shares of the Series E Preferred Stock approved the issuance of shares of Series F Preferred Stock and the Amendment by written consent as described above, and the Series F Preferred Stock approved the issuance of the shares of Series H Preferred Stock and 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

 

 

 

 

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.