Avinger,Inc. (NASDAQ:AVGR) Files An 8-K Entry into a Material Definitive AgreementItem 1.01. Entry into a Material Definitive Agreement.
On January24, 2018, Avinger,Inc. (the “Company”) entered into a waiver agreement (the “Waiver”) with CRG Partners III L.P. and certain of its affiliated funds, as lenders (the “Lenders”). The Waiver provided for the waiver of the $5,000,0000 minimum liquidity financial covenant and reduced it to $2,500,000 for the period beginning January1, 2018 through February28, 2018, as contained in Section10.01 of that certain Term Loan Agreement, dated as of September22, 2015 (the “Term Loan Agreement”), by and among the Company, certain of its subsidiaries from time to time party thereto as guarantors and the Lenders, and waived any Event of Default resulting from non-compliance with the $5,000,000 minimum liquidity financial covenant.
The foregoing description of the Waiver is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached hereto as Exhibit10.1, and which is incorporated herein in its entirety by reference.
Item5.07. Submission of Matters to a Vote of Security Holders.
On January29, 2018, the Company held a special meeting of stockholders (the “Special Meeting”). The primary purpose of the Special Meeting was to consider and vote on (1)a proposal to approve the issuance and sale by the Company of up to $15,000,000 in shares of its Common Stock, par value $0.001 per share (“Common Stock”), to Lincoln Park Capital Fund, LLC in accordance with NASDAQ Stock Market Rule5635(d); and (2)a proposal to amend the Company’s amended and restated certificate of incorporation, as amended (the “Certificate of Incorporation”) to effect a reverse stock split at a ratio not less than 1-for-20 and not greater than 1-for-40 (the “Reverse Stock Split”), with the exact ratio to be set within that range at the discretion of the Company’s board of directors (the “Board”) before the day prior to the 2018 Annual Meeting of stockholders and without further approval or authorization of the Company’s stockholders.
Proposals 1 and 2 set forth below were approved by the Company’s stockholders with the requisite vote. In light of the approval of Proposals 1 and 2, Proposal 3 was rendered moot and was not presented at the Special Meeting.
The following matters were acted upon at the Special Meeting:
Proposal 1: Approval of Issuance of Greater than 19.99% of Outstanding Common Stock to the Lincoln Park Transaction.
|
FOR |
AGAINST |
ABSTAIN |
BROKERNON-VOTE |
|
4,072,180 |
613,038 |
45,046 |
17,228,653 |
The proposal received the necessary votes to be approved.
Proposal 2: Reverse Stock Split.
|
FOR |
AGAINST |
ABSTAIN |
|
16,823,807 |
4,870,345 |
264,765 |
The proposal received the necessary votes to be approved.
Item 8.01. Other Events.
CRG Debt Conversion
On January23, 2018, the Company executed a non-binding term sheet with CRG that summarized the terms under which CRG has agreed to convert $30 million of the outstanding principal amount of the senior secured term loan (plus the back-end fee and prepayment premium applicable thereto) into a newly authorized series of non-voting convertible preferred stock (the “Preferred Stock”), which would be convertible into the Company’s common stock at a price per share equal to the public offering price of the Company’s common stock sold to the Company’s Registration Statement on FormS-1, filed by the Company with the Securities and Exchange Commission (the “SEC”) on January12, 2018 (File No.333-222517). Such conversion of debt is referred to herein as the “Conversion.” The Conversion is contingent upon the closing of an underwritten public equity offering of at least $15 million in gross equity proceeds (the “Equity Offering”).
Under the terms proposed by the non-binding term sheet, the holders of the Preferred Stock would be entitled to receive annual accruing dividends at a rate of 8%, payable in additional shares of Preferred Stock. The shares of Preferred Stock would have no voting rights and will rank senior to all other classes and series of the Company’s equity in terms of repayment and certain other rights. The Company would have the right to redeem for cash all or less than all of the Preferred Stock upon not less than 30 days and not more than 60 days prior written notice. The Company may force conversion of the Preferred Stock into the Company’s common stock, provided requisite stockholder approval has been received in advance and the Company’s market capitalization is at least $100 million at the time the Company elects the conversion option and for the Company’s most recent fiscal quarter. The Preferred Stock and any of the Company’s common stock issued upon conversion of the Preferred Stock would be subject to a lockup agreement for 180 days following the closing of the Equity Offering.
