SEC Comment Letter for Avinger Inc (AVGR) (CIK 0001506928) — Apr 16, 2020
Avinger Inc (AVGR) (CIK 0001506928)
Date: April 16, 2020 · CIK: 0001506928 · Accession: 0000000000-20-003290
AI Filing Summary & Sentiment
File numbers found in text: 333-237596
Letter
April 15, 2020 Jeffrey M. Soinski Chief Executive Officer Avinger, Inc 400 Chesapeake Drive Redwood City, CA 94063 Re:Avinger, Inc Registration Statement on Form S-1 Filed April 8, 2020 File No. 333-237596 Dear Mr. Soinski: We have limited our review of your registration statement to those issues we have addressed in our comment. In our comment, we may ask you to provide us with information so we may better understand your disclosure. Please respond to this letter by amending your registration statement and providing the requested information. If you do not believe our comment applies to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response. After reviewing any amendment to your registration statement and the information you provide in response to the comment, we may have additional comments. Registration Statement on Form S-1 filed on April 8, 2020 Description of Securities Description of Capital Stock, page 26 1.Refer to Section 7.4 of your Amended and Restated Certificate of Incorporation, which identifies the Court of Chancery of the State of Delaware as the exclusive forum for certain litigation, including any "derivative action." Please describe here the exclusive forum provision and disclose whether this provision applies to actions arising under the Securities Act or Exchange Act. We note in this regard that Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules or regulations thereunder, and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and
FirstName LastNameJeffrey M. Soinski Comapany NameAvinger, Inc April 15, 2020 Page 2 FirstName LastName Jeffrey M. Soinski Avinger, Inc April 15, 2020 Page 2 regulations thereunder. If this provision applies to Securities Act claims, please also revise your prospectus to state that there is uncertainty as to whether a court would enforce such provision and that investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder. If this provision does not apply to actions arising under the Securities Act or Exchange Act, please also ensure that the exclusive forum provision in the governing documents states this clearly, or tell us how you will inform investors in future filings that the provision does not apply to any actions arising under the Securities Act or Exchange Act. We remind you that the company and its management are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff. Refer to Rules 460 and 461 regarding requests for acceleration. Please allow adequate time for us to review any amendment prior to the requested effective date of the registration statement. Please contact Christine Westbrook at 202-551-5019 or Celeste Murphy at 202-551- 3257 with any questions. Sincerely, Division of Corporation Finance Office of Life Sciences cc: David F. Marx, Esq.
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April 15, 2020
Jeffrey M. Soinski
Chief Executive Officer
Avinger, Inc
400 Chesapeake Drive
Redwood City, CA 94063
Re:Avinger, Inc
Registration Statement on Form S-1
Filed April 8, 2020
File No. 333-237596
Dear Mr. Soinski:
We have limited our review of your registration statement to those issues we have
addressed in our comment. In our comment, we may ask you to provide us with information so
we may better understand your disclosure.
Please respond to this letter by amending your registration statement and providing the
requested information. If you do not believe our comment applies to your facts and
circumstances or do not believe an amendment is appropriate, please tell us why in your
response.
After reviewing any amendment to your registration statement and the information you
provide in response to the comment, we may have additional comments.
Registration Statement on Form S-1 filed on April 8, 2020
Description of Securities
Description of Capital Stock, page 26
1.Refer to Section 7.4 of your Amended and Restated Certificate of Incorporation, which
identifies the Court of Chancery of the State of Delaware as the exclusive forum for
certain litigation, including any "derivative action." Please describe here the exclusive
forum provision and disclose whether this provision applies to actions arising under the
Securities Act or Exchange Act. We note in this regard that Section 27 of the Exchange
Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or
liability created by the Exchange Act or the rules or regulations thereunder, and Section
22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all
suits brought to enforce any duty or liability created by the Securities Act or the rules and
FirstName LastNameJeffrey M. Soinski
Comapany NameAvinger, Inc
April 15, 2020 Page 2
FirstName LastName
Jeffrey M. Soinski
Avinger, Inc
April 15, 2020
Page 2
regulations thereunder. If this provision applies to Securities Act claims, please also revise
your prospectus to state that there is uncertainty as to whether a court would enforce such
provision and that investors cannot waive compliance with the federal securities laws and
the rules and regulations thereunder. If this provision does not apply to actions arising
under the Securities Act or Exchange Act, please also ensure that the exclusive forum
provision in the governing documents states this clearly, or tell us how you will inform
investors in future filings that the provision does not apply to any actions arising under the
Securities Act or Exchange Act.
We remind you that the company and its management are responsible for the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please allow adequate
time for us to review any amendment prior to the requested effective date of the registration
statement.
Please contact Christine Westbrook at 202-551-5019 or Celeste Murphy at 202-551-
3257 with any questions.
Sincerely,
Division of Corporation Finance
Office of Life Sciences
cc: David F. Marx, Esq.