Washington, DC 20549







Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934


Date of Report (Date of earliest event reported):


August 21, 2019




Avinger, Inc.

(Exact name of registrant as specified in its charter)





(State or other jurisdiction of


(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


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 (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 8.01

Other Events.


As previously disclosed, on August 21, 2019, Avinger, Inc., (the “Company”) announced the pricing of an underwritten public offering of 3,813,559 shares of its common stock at a public offering price of $1.18 per share (the “Offering”), pursuant to an Underwriting Agreement (the “Underwriting Agreement”) with Aegis Capital Corp. (the “Underwriter”). Under the terms of the Underwriting Agreement, the Company granted the Underwriter a 45-day option to purchase up to an additional 572,033 shares of common stock solely to cover over-allotments, if any. The shares are being offered and sold pursuant to the Company’s effective registration statement on Form S-3 (Registration No. 333-230124), which was declared effective by the Securities Exchange Commission (the “SEC”) on March 29, 2019, and the base prospectus included therein, as amended and supplemented by the preliminary prospectus supplement filed with the SEC on August 21, 2019, and the final prospectus supplement filed with the SEC on August 22, 2019.


In connection with the Offering, Avinger is filing a legal opinion and consent as Exhibit 5.1 and Exhibit 23.1 to this report, which are incorporated by reference into the Registration Statement.


Item 9.01 Financial Statements and Exhibits.


Exhibit No.




Opinion of Dorsey & Whitney LLP



Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)







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.






August 22, 2019



/s/ Mark Weinswig


Mark Weinswig


Chief Financial Officer



Exhibit 5.1


August 22, 2019



Avinger, Inc.

400 Chesapeake Drive

Redwood City, CA 94063


Re:     Registration Statement on Form S-3 (File No. 333-230124)


Ladies and Gentlemen:


We have acted as counsel to Avinger, Inc. a Delaware corporation (the “Company”), in connection with the filing by the Company with the Securities and Exchange Commission (the “Commission”) of a Prospectus Supplement (the “Prospectus Supplement”), dated August 21, 2019, to the Prospectus, dated March 29, 2019 included in the Registration Statement on Form S-3 (File No. 333-230124) (the “Registration Statement”) filed by the Company with the Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale by the Company of up to 4,385,592 shares of common stock, par value $0.001 per share, of the Company (including 572,033 shares subject to the underwriter‘s over-allotment option) (the “Shares”). The Shares will be sold pursuant to an Underwriting Agreement (the “Underwriting Agreement”), dated August 21, 2019 among the Company and Aegis Capital Corp.


We have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to our opinions, we have relied upon certificates or comparable documents of officers and other representatives of the Company and of public officials.


Based on the foregoing, we are of the opinion that the Shares, when issued and delivered against payment of the consideration therefor specified in the Underwriting Agreement, will be validly issued, fully paid and non-assessable.


Our opinions expressed above are limited to the Delaware General Corporation Law.


We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company with the Commission on the date hereof, which Current Report on Form 8-K will be incorporated by reference into the Registration Statement, and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.





Avinger, Inc.

August 22, 2019

Page 2


Very truly yours,


/s/ Dorsey & Whitney LLP