Form 8-K - Current report

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):

September 29, 2023

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 (§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 1.01. Entry into a Material Definitive Agreement.

On September 29, 2023, Avinger, Inc. (the “Company”), entered into a Waiver Agreement (the “Waiver Agreement”) with CRG Partners III L.P., CRG Partners III — Parallel Fund “A” L.P., CRG Partners III — Parallel Fund “B” (Cayman) L.P. CRG Partners III (Cayman) Unlev AIV I L.P., and CRG Partners III (Cayman) Lev AIV I L.P. (together the “Purchasers”). The Purchasers collectively hold all of the outstanding shares of the Company’s Series A preferred stock and Series E preferred stock (collectively, the “Preferred Stock”). The holders of the Preferred Stock are entitled to receive annual dividends (the “Preferred Dividend”) at a rate of 8% of the original issue price of the Preferred Stock. The Company has the right to issue additional shares of Preferred Stock in lieu of the payment in cash of the Preferred Dividend.

Pursuant to the Waiver Agreement, the Purchasers waived their rights to receive the Preferred Dividend for the year ending December 31, 2023. Such waived Preferred Dividends will not be cumulative or accrued.

The foregoing description of the Waiver Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Waiver Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

The representations, warranties and covenants contained in the Waiver Agreement were made solely for the benefit of the parties to the Waiver Agreement and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Waiver Agreement is incorporated herein by reference only to provide investors with information regarding the terms of the Waiver Agreement, and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the Securities and Exchange Commission.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits:

Exhibit No.		Description
10.1		Waiver Agreement dated September 29, 2023 between the Company and the Purchasers
104		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.

		AVINGER, INC.


Date: September 29, 2023	By:	/s/ Jeffrey M. Soinski
		Jeffrey M. Soinski Chief Executive Officer

Exhibit 10.1

WAIVER AGREEMENT

This WAIVER AGREEMENT (this “Agreement”), effective as of September 29, 2023, is executed by and between Avinger, Inc., a Delaware corporation (the “Company”) and CRG Partners III L.P., CRG Partners III — Parallel Fund “A” L.P., CRG Partners III — Parallel Fund “B” (Cayman) L.P. CRG Partners III (Cayman) Unlev AIV I L.P., and CRG Partners III (Cayman) Lev AIV I L.P. (together the “Purchasers”).

WHEREAS, certain of the Purchasers own Series A Convertible Preferred Stock and/or Series E Convertible Preferred Stock (collectively, the “Preferred Stock”) issued pursuant to the Certificates of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock and Series E Convertible Preferred Stock (the “Certificates of Designation”);

WHEREAS, the Purchasers that own Preferred Stock are entitled to receive Preferred Dividends; and

WHEREAS, the Purchasers have agreed to waive any Preferred Dividends they are entitled to receive for the Preferred Dividend Period ending December 31, 2023.

NOW, THEREFORE, in consideration of the foregoing premises and the benefits contained therein, the parties agree as follows:

SECTION 1 Definitions; Interpretation. All capitalized terms used in this Agreement (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Certificates of Designation.

SECTION 2 Waiver. Subject to Section 3, each Purchaser hereby waives all of its rights to receive Preferred Dividends they are entitled to receive for the Preferred Dividend Period ending December 31, 2023, and such Preferred Dividends will not be cumulative or accrued for such period.

SECTION 3 Conditions of Effectiveness.

The effectiveness of Section 2 shall be subject to the following conditions precedent:

(a) Holders of a majority of the shares of Series A Convertible Preferred Stock and Series E Convertible Preferred Stock shall have executed this Agreement pursuant to Section 9 of each Certificate of Designation.

(b) The Company shall have paid or reimbursed Purchasers for Purchasers’ reasonable out of pocket costs and expenses incurred in connection with this Agreement, including Purchasers’ reasonable out of pocket legal fees and costs, and as requested by Purchasers.

SECTION 4 Representations and Warranties.

(a) The Company hereby represents and warrants to each Purchase as follows:

(i) The Company has full power, authority and legal right to make and perform this Agreement. This Agreement is within the Company’s corporate powers and has been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Agreement has been duly executed and delivered by the Company and constitutes legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). This Agreement (x) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any third party, except for such as have been obtained or made and are in full force and effect and the filing of a copy of this Agreement with the SEC following its effectiveness, (y) will not violate any applicable law or regulation or the charter, bylaws or other organizational documents of the Company and its Subsidiaries or any order of any Governmental Authority, (z) will not violate or result in an event of default under any material indenture, agreement or other instrument binding upon the Company and its Subsidiaries or assets, or give rise to a right thereunder to require any payment to be made by any such Person.

SECTION 5 Governing Law; Submission to Jurisdiction; Waiver Of Jury Trial.

(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of New York, both substantive and remedial, without regard to New York conflicts of law principles.

(b) Submission to Jurisdiction. Any judicial proceeding brought against either of the parties to this Agreement or any dispute arising out of this Agreement or any matter related hereto shall be brought in the courts of the State of New York, New York County, or in the United States District Court for the Southern District of New York and, by its execution and delivery of this Agreement, each party to this Agreement accepts the jurisdiction of such courts. The foregoing consent to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement. This Section 5 is for the benefit of the Purchasers only and, as a result, no Purchaser shall be prevented from taking proceedings in any other courts with jurisdiction. To the extent allowed by applicable Laws, the Purchasers may take concurrent proceedings in any number of jurisdictions.

(c) Waiver of Jury Trial. The Company and each Purchaser hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or thereby.

SECTION 6 Miscellaneous.

(a) No Waiver. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of any term or condition contained in the Certificates of Designation or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, the Purchasers reserve all rights, privileges and remedies under the Certificates of Designation.

(b) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

(c) Headings. Headings and captions used in this Agreement are included for convenience of reference only and shall not be given any substantive effect.

(d) Integration. This Agreement incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

(e) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart.

(f) Controlling Provisions. Except as expressly modified by this Agreement, the Certificates of Designation shall not be modified and shall remain in full force and effect.

(signature pages follow)

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

	COMPANY: AVINGER, INC., a Delaware corporation


	By	/s/ Jeffrey M. Soinski
		Name: Jeffrey M. Soinski Title: Chief Executive Officer

(Signature Page to Waiver Agreement)

PURCHASERS:

CRG PARTNERS III L.P. By CRG PARTNERS III GP L.P., its General Partner By CRG PARTNERS III GP LLC, its General Partner


By:	/s/ Nathan Hukill
Name:	Nathan Hukill
Title:	Authorized Signatory


CRG PARTNERS III – PARALLEL FUND “A” L.P. By CRG PARTNERS III – PARALLEL FUND “A” GP L.P., its General Partner By CRG PARTNERS III GP LLC, its General Partner


By:	/s/ Nathan Hukill
Name:	Nathan Hukill
Title:	Authorized Signatory


CRG PARTNERS III – PARALLEL FUND “B” (CAYMAN) L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III GP LLC, its General Partner


By:	/s/ Nathan Hukill
Name:	Nathan Hukill
Title:	Authorized Signatory

Witness:	/s/ Erica Palestrini
Name:	Erica Palestrini

(Signature Page to Waiver Agreement)

CRG PARTNERS III (CAYMAN) LEV AIV I L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner


By:	/s/ Nathan Hukill
Name:	Nathan Hukill
Title:	Authorized Signatory

Witness:		/s/ Erica Palestrini
Name:		Erica Palestrini

CRG PARTNERS III (CAYMAN) UNLEV AIV I L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner


By:	/s/ Nathan Hukill
Name:	Nathan Hukill
Title:	Authorized Signatory

Witness:		/s/ Erica Palestrini
Name:		Erica Palestrini

(Signature Page to Waiver Agreement)

Document And Entity Information	Sep. 29, 2023
Document Information [Line Items]
Entity, Registrant Name	Avinger, Inc.
Document, Type	8-K
Document, Period End Date	Sep. 29, 2023
Entity, Incorporation, State or Country Code	DE
Entity, File Number	001-36817
Entity, Tax Identification Number	20-8873453
Entity, Address, Address Line One	400 Chesapeake Drive
Entity, Address, City or Town	Redwood City
Entity, Address, State or Province	CA
Entity, Address, Postal Zip Code	94063
City Area Code	650
Local Phone Number	241-7900
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	AVGR
Security Exchange Name	NASDAQ
Entity, Emerging Growth Company	false
Amendment Flag	false
Entity, Central Index Key	0001506928