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AVITA Medical, Inc. – ‘10-K’ for 12/31/23 – ‘EX-97.1’

On:  Thursday, 2/22/24, at 4:05pm ET   ·   For:  12/31/23   ·   Accession #:  950170-24-18748   ·   File #:  1-39059

Previous ‘10-K’:  ‘10-K’ on 2/23/23 for 12/31/22   ·   Latest ‘10-K’:  This Filing   ·   13 References:   

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/22/24  AVITA Medical, Inc.               10-K       12/31/23  116:22M                                    Donnelley … Solutions/FA

Annual Report   —   Form 10-K   —   SEA’34

Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                       HTML   3.73M 
 2: EX-10.30    Material Contract                                   HTML    361K 
 3: EX-10.31    Material Contract                                   HTML     42K 
 4: EX-10.32    Material Contract                                   HTML     41K 
 5: EX-10.33    Material Contract                                   HTML     37K 
 6: EX-10.34    Material Contract                                   HTML     69K 
 7: EX-10.35    Material Contract                                   HTML    545K 
 8: EX-10.36    Material Contract                                   HTML     46K 
 9: EX-10.37    Material Contract                                   HTML   1.10M 
10: EX-10.38    Material Contract                                   HTML   1.96M 
11: EX-10.39    Material Contract                                   HTML    681K 
12: EX-10.40    Material Contract                                   HTML    475K 
13: EX-10.41    Material Contract                                   HTML    852K 
14: EX-10.42    Material Contract                                   HTML    189K 
15: EX-23.1     Consent of Expert or Counsel                        HTML     32K 
19: EX-97.1     Clawback Policy re: Recovery of Erroneously         HTML     57K 
                Awarded Compensation                                             
16: EX-31.1     Certification -- §302 - SOA'02                      HTML     37K 
17: EX-31.2     Certification -- §302 - SOA'02                      HTML     37K 
18: EX-32.1     Certification -- §906 - SOA'02                      HTML     35K 
21: R1          Document and Entity Information                     HTML    107K 
22: R2          Consolidated Balance Sheets                         HTML    144K 
23: R3          Consolidated Balance Sheets (Parenthetical)         HTML     52K 
24: R4          Consolidated Statements of Operations               HTML    115K 
25: R5          Consolidated Statements of Comprehensive Loss       HTML     58K 
26: R6          Consolidated Statements of Stockholders' Equity     HTML     96K 
27: R7          Consolidated Statement of Cash Flows                HTML    166K 
28: R8          The Company                                         HTML     44K 
29: R9          Summary of Significant Accounting Policies          HTML    182K 
30: R10         Marketable Securities                               HTML    157K 
31: R11         Fair Value Measurements                             HTML    219K 
32: R12         Revenues                                            HTML     65K 
33: R13         Long-term Debt                                      HTML     50K 
34: R14         Leases                                              HTML     92K 
35: R15         Inventory                                           HTML     46K 
36: R16         Intangible Assets                                   HTML    156K 
37: R17         Property and Equipment, net                         HTML     64K 
38: R18         Prepaids and Other Current Assets and Other         HTML     75K 
                Long-Term Assets                                                 
39: R19         Reporting Segment and Geographic Information        HTML     86K 
40: R20         Contingencies                                       HTML     37K 
41: R21         Common and Preferred Stock                          HTML     42K 
42: R22         Share-Based Payment Plans                           HTML    197K 
43: R23         Income Taxes                                        HTML    133K 
44: R24         Loss Per Share                                      HTML     58K 
45: R25         Retirement Plans                                    HTML     71K 
46: R26         Deed of Cross Guarantee                             HTML     72K 
47: R27         Subsequent Events                                   HTML     43K 
48: R28         Summary of Significant Accounting Policies          HTML    251K 
                (Policies)                                                       
49: R29         Summary of Significant Accounting Policies          HTML     57K 
                (Tables)                                                         
50: R30         Marketable Securities (Tables)                      HTML    155K 
51: R31         Fair Value Measurements (Tables)                    HTML    210K 
52: R32         Leases (Tables)                                     HTML     91K 
53: R33         Inventory (Tables)                                  HTML     45K 
54: R34         Intangible Assets (Tables)                          HTML    155K 
55: R35         Property and Equipment, net (Tables)                HTML     61K 
56: R36         Prepaids and Other Current Assets and Other         HTML     77K 
                Long-Term Assets (Tables)                                        
57: R37         Reporting Segment and Geographic Information        HTML     80K 
                (Tables)                                                         
58: R38         Share-Based Payment Plans (Tables)                  HTML    166K 
59: R39         Income Taxes (Tables)                               HTML    128K 
60: R40         Loss Per Share (Tables)                             HTML     55K 
61: R41         Retirement Plans (Tables)                           HTML     53K 
62: R42         Deed of Cross Guarantee (Tables)                    HTML     61K 
63: R43         Summary of Significant Accounting Policies -        HTML    148K 
                Additional Information (Detail)                                  
64: R44         Summary of Significant Accounting Policies -        HTML     36K 
                Summary of Other Receivables (Detail)                            
65: R45         Summary of Significant Accounting Policies -        HTML     39K 
                Summary of Allowance for Doubtful Account (Detail)               
66: R46         Marketable Securities - Summary of Amortized Cost   HTML     81K 
                and Estimates Fair Values of Debt Securities                     
                Available for Sale (Detail)                                      
67: R47         Marketable Securities - Summary of Maturities of    HTML     48K 
                Debt Securities Available for Sale (Detail)                      
68: R48         Marketable Securities - Additional Information      HTML     48K 
                (Detail)                                                         
69: R49         Fair Value Measurements - Summary of Financial      HTML     93K 
                Assets Measured at Fair Value on Recurring Basis                 
                (Detail)                                                         
70: R50         Fair Value Measurements - Summary Of Changes In     HTML     48K 
                The Fair Value Of Our Level 3 Financial                          
                Instruments (Details)                                            
71: R51         Revenues - Additional Information (Detail)          HTML     83K 
72: R52         Long-term Debt - Additional Information) (Details)  HTML     98K 
73: R53         Leases - Additional Information (Detail)            HTML     44K 
74: R54         Leases - Summary Of Lease Cost (Detail)             HTML     38K 
75: R55         Leases - Summary Of Supplemental Cash Flow          HTML     34K 
                Information Related To Operating Leases (Detail)                 
76: R56         Leases - Summary Of Supplemental Balance Sheet      HTML     48K 
                Information Related To Operating Leases (Detail)                 
77: R57         Leases - Summary Of Maturities Of The Company's     HTML     48K 
                Operating Lease Liabilities (Detail)                             
78: R58         Inventory - Summary Of Composition Of Inventories   HTML     41K 
                (Detail)                                                         
79: R59         Inventory - Additional Information (Detail)         HTML     33K 
80: R60         Intangible Assets - Summary Of Composition Of       HTML     80K 
                Intangible Assets (Detail)                                       
81: R61         Intangible Assets - Additional Information          HTML     36K 
                (Details)                                                        
82: R62         Intangible Assets - Summary of Future Amortization  HTML     47K 
                of Amortizable Intangible assets held (Detail)                   
83: R63         Property and Equipment, net - Summary of            HTML     67K 
                Composition of Property and Equipment (Detail)                   
84: R64         Property and Equipment, net - Additional            HTML     40K 
                Information (Detail)                                             
85: R65         Prepaids and Other Current Assets and Other         HTML     45K 
                Long-Term Assets - Summary of Prepaids and Other                 
                Current Assets (Detail)                                          
86: R66         Prepaids and Other Current Assets and Other         HTML     38K 
                Long-Term Assets - Summary of Other Long Term                    
                Assets (Detail)                                                  
87: R67         Prepaids and Other Current Assets and Other         HTML     41K 
                Long-Term Assets - Summary of Other Current                      
                Liabilities (Detail)                                             
88: R68         Reporting Segment and Geographic Information -      HTML     33K 
                Additional Information (Details)                                 
89: R69         Reporting Segment and Geographic Information -      HTML     70K 
                Schedule Of Revenues By Region And Customer                      
                Location And Customer Type/Cost of Sales By                      
                Customer Type (Details)                                          
90: R70         Contingencies - Additional Information (Detail)     HTML     33K 
91: R71         Common and Preferred Stock - Additional             HTML     59K 
                Information (Detail)                                             
92: R72         Share-Based Payment Plans - Additional Information  HTML    211K 
                (Detail)                                                         
93: R73         Share-Based Payment Plans - Summary Of Company      HTML     50K 
                Stock Based Award Plans (Detail)                                 
94: R74         Share-Based Payment Plans - Summary Of Stock-based  HTML     41K 
                Compensation Is Reflected In The Statements Of                   
                Operations (Detail)                                              
95: R75         Share-Based Payment Plans - Summary Of Share        HTML     99K 
                Option Activity (Detail)                                         
96: R76         Share-Based Payment Plans - Summary Of Company      HTML     67K 
                Unvested RSUs (Detail)                                           
97: R77         Share-based Payment Plans - Summary of Valuation    HTML     58K 
                Assumptions Used in Share Options (Detail)                       
98: R78         Income Taxes - Geographic Sources of Loss Before    HTML     41K 
                Income Taxes (Detail)                                            
99: R79         Income Taxes - Summary Of Income Tax Expense        HTML     42K 
                (Detail)                                                         
100: R80         Income Taxes - Summary of Provision For Income      HTML     34K  
                Taxes (Parenthetical) (Detail)                                   
101: R81         Income Taxes - Summary of Provision For Income      HTML     57K  
                Taxes (Detail)                                                   
102: R82         Income Taxes - Summary of Deferred Income Tax       HTML     67K  
                (Detail)                                                         
103: R83         Income Taxes - Additional Information (Detail)      HTML     57K  
104: R84         Loss per Share - Summary of Reconciliation of The   HTML     61K  
                Basic And Diluted Loss Per Share (Detail)                        
105: R85         Loss per Share - Summary Of Anti-dilutive Shares    HTML     43K  
                Excluded From Diluted Net Loss Per Common Share                  
                (Details)                                                        
106: R86         Loss per Share - Additional Information (Detail)    HTML     33K  
107: R87         Retirement Plans - Additional Information (Detail)  HTML     65K  
108: R88         Retirement Plans - Summary of Eligible Share Award  HTML     64K  
                Activity (Detail)                                                
109: R89         Deed of Cross Guarantee - Consolidated Income       HTML     83K  
                Statement Of The Parties To The Deed (Detail)                    
110: R90         Deed of Cross Guarantee - Consolidated Balance      HTML     81K  
                Sheet Of The Parties To The Deed (Detail)                        
111: R91         Subsequent Events - Additional Information          HTML     65K  
                (Detail)                                                         
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‘EX-97.1’   —   Clawback Policy re: Recovery of Erroneously Awarded Compensation


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  EX-97.1  

 

 

Exhibit 97.1

AVITA MEDICAL, INC.

Incentive-BASED Compensation Recovery Policy

Adopted November 8, 2023

1.
Policy Purpose. The purpose of this AVITA Medical, Inc. (and its subsidiaries and affiliates) (the “Company”) Incentive-Based Compensation Recovery Policy (the “Policy”) is to enable the Company to recover Erroneously Awarded Compensation in the event that the Company is required to prepare an Accounting Restatement. This Policy is intended to comply with the requirements set forth in Listing Rule 5608 of the corporate governance rules of The Nasdaq Stock Market (the “Listing Rule”) and shall be construed and interpreted in accordance with such intent. Unless otherwise defined in this Policy, capitalized terms shall have the meaning ascribed to such terms in Section 7. This Policy shall become effective on December 1, 2023. Where the context requires, reference to the Company shall include the Company’s subsidiaries and affiliates (as determined by the Committee in its discretion).

 

2.
Policy Administration. This Policy shall be administered by the Compensation Committee of the Board (the “Committee”) unless the Board determines to administer this Policy itself. The Committee has full and final authority to make all determinations under this Policy. All determinations and decisions made by the Committee pursuant to the provisions of this Policy shall be final, conclusive and binding on all persons, including the Company, its affiliates, its stockholders and Executive Officers. Any action or inaction by the Committee with respect to an Executive Officer under this Policy in no way limits the Committee’s actions or decisions not to act with respect to any other Executive Officer under this Policy or under any similar policy, agreement or arrangement, nor shall any such action or inaction serve as a waiver of any rights the Company may have against any Executive Officer other than as set forth in this Policy.

 

3.
Policy Application. This Policy applies to all Incentive-Based Compensation received by a person: (a) after October 2, 2023, and beginning service as an Executive Officer; (b) who served as an Executive Officer at any time during the performance period for such Incentive-Based Compensation; (c) while the Company had a class of securities listed on a national securities exchange or a national securities association; and (d) during the three completed fiscal years immediately preceding the Accounting Restatement Date. In addition to such last three completed fiscal years, the immediately preceding clause (d) includes any transition period that results from a change in the Company’s fiscal year within or immediately following such three completed fiscal years; provided, however, that a transition period between the last day of the Company’s previous fiscal year end and the first day of its new fiscal year that comprises a period of nine to twelve months shall be deemed a completed fiscal year. For purposes of this Section 3, Incentive-Based Compensation is deemed received in the Company’s fiscal period during which the Financial Reporting Measure specified in the Incentive-Based Compensation award is attained, even if the payment or grant of the Incentive-Based Compensation occurs after the end of that period. For the avoidance of doubt, Incentive-Based Compensation that is subject to both a Financial Reporting Measure vesting condition and a service-based vesting condition shall be considered received when the relevant Financial Reporting Measure is achieved, even if the Incentive-Based Compensation continues to be subject to the service-based vesting condition.

 

4.
Policy Recovery Requirement. In the event of an Accounting Restatement, the Company must recover, reasonably promptly, Erroneously Awarded Compensation, in amounts determined pursuant to this Policy. The Company’s obligation to recover Erroneously Awarded Compensation is not dependent on if or when the Company files restated financial statements. Recovery under this Policy with respect to an Executive Officer shall not require the finding of any misconduct by such Executive Officer or such Executive Officer being found responsible for the accounting error leading to an Accounting Restatement. In the event of an Accounting Restatement, the Company shall satisfy the Company’s obligations under this Policy to recover any amount owed from any applicable Executive Officer by exercising its sole and absolute discretion in how to accomplish such recovery. The Company’s recovery obligation pursuant to this Section 4 shall not apply to the extent that the Committee, or in the absence of the Committee, a majority of the independent directors serving on the Board, determines that such recovery would be impracticable and:

 

a.
The direct expense paid to a third party to assist in enforcing this Policy would exceed the amount to be recovered. Before concluding that it would be impracticable to recover any amount of Erroneously

 

 

 


 

Awarded Compensation based on expense of enforcement, the Company must make a reasonable attempt to recover such Erroneously Awarded Compensation, document such reasonable attempt(s) to recover, and provide that documentation to the Stock Exchange; or

 

b.
Recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the registrant, to fail to meet the requirements of Section 401(a)(13) or Section 411(a) of the Code.

 

5.
Policy Prohibition on Indemnification and Insurance Reimbursement. The Company is prohibited from indemnifying any Executive Officer or former Executive Officer against the loss of Erroneously Awarded Compensation. Further, the Company is prohibited from paying or reimbursing an Executive Officer for purchasing insurance to cover any such loss.

 

6.
Required Policy-Related Filings. The Company shall file all disclosures with respect to this Policy in accordance with the requirements of the Federal securities laws, including disclosures required by U.S. Securities and Exchange Commission filings.

 

7.
Definitions.

 

a.
Accounting Restatement” means an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements, or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period.

 

b.
Accounting Restatement Date” means the earlier to occur of: (i) the date the Board, a committee of the Board, or the officer or officers of the Company authorized to take such action if the Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement; and (ii) the date a court, regulator, or other legally authorized body directs the Company to prepare an Accounting Restatement.

 

c.
Board” means the board of directors of the Company.

 

d.
Code” means the U.S. Internal Revenue Code of 1986, as amended. Any reference to a section of the Code or regulation thereunder includes such section or regulation, any valid regulation or other official guidance promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing, or superseding such section or regulation.

 

e.
Erroneously Awarded Compensation” means, in the event of an Accounting Restatement, the amount of Incentive-Based Compensation previously received that exceeds the amount of Incentive-Based Compensation that otherwise would have been received had it been determined based on the restated amounts in such Accounting Restatement, and must be computed without regard to any taxes incurred or paid by the relevant Executive Officer; provided, however, that for Incentive-Based Compensation based on stock price or total stockholder return, where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in an Accounting Restatement: (i) the amount of Erroneously Awarded Compensation must be based on a reasonable estimate of the effect of the Accounting Restatement on the stock price or total stockholder return upon which the Incentive-Based Compensation was received; and (ii) the Company must maintain documentation of the determination of that reasonable estimate and provide such documentation to the Stock Exchange.

 

 

2

 

 


 

f.
Executive Officer” means the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller), any vice-president of the Company in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the Company. An executive officer of the Company’s parent or subsidiary is deemed an “Executive Officer” if the executive officer performs such policy making functions for the Company. For the avoidance of doubt, “Executive Officer” includes, but is not limited to, any person identified as an executive officer pursuant to Item 401(b) of Regulation S-K under the U.S. Securities Act of 1933, as amended.

 

g.
Financial Reporting Measure means any measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measure that is derived wholly or in part from such measure; provided, however, that a Financial Reporting Measure is not required to be presented within the Company’s financial statements or included in a filing with the U.S. Securities and Exchange Commission to qualify as a “Financial Reporting Measure.” For purposes of this Policy, “Financial Reporting Measure” includes, but is not limited to, stock price and total stockholder return.

 

h.
Incentive-Based Compensation” means any compensation that is granted, earned, or vested based wholly or in part upon the attainment of a Financial Reporting Measure.

 

i.
Stock Exchange” means the national stock exchange on which the Company’s common stock is listed.

 

8.
Acknowledgement. Each Executive Officer shall sign and return to the Company, within 30 calendar days following the later of (i) the effective date of this Policy first set forth above or (ii) the date the individual becomes an Executive Officer, the Acknowledgement Form attached hereto as Exhibit A, pursuant to which the Executive Officer agrees to be bound by, and to comply with, the terms and conditions of this Policy.

 

9.
Committee Indemnification. Any members of the Committee, and any other members of the Board who assist in the administration of this Policy, shall not be personally liable for any action, determination or interpretation made with respect to this Policy and shall be fully indemnified by the Company to the fullest extent under applicable law and Company policy with respect to any such action, determination or interpretation. The foregoing sentence shall not limit any other rights to indemnification of the members of the Board under applicable law or Company policy.

 

10.
Severability. The provisions in this Policy are intended to be applied to the fullest extent of the law. To the extent that any provision of this Policy is found to be unenforceable or invalid under any applicable law, such provision shall be applied to the maximum extent permitted, and shall automatically be deemed amended in a manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law.

 

11.
Amendment; Termination. The Board may amend this Policy from time to time in its sole and absolute discretion and shall amend this Policy as it deems necessary to reflect the Listing Rule. The Board may terminate this Policy at any time.

 

12.
Other Recovery Obligations; General Rights. To the extent that the application of this Policy would provide for recovery of Incentive-Based Compensation that the Company recovers pursuant to Section 304 of the Sarbanes-Oxley Act or other recovery obligations, the amount the relevant Executive Officer has already reimbursed the Company will be credited to the required recovery under this Policy. This Policy shall not limit the rights of the Company to take any other actions or pursue other remedies that the Company may deem appropriate under the circumstances and under applicable law. To the maximum extent permitted under the Listing Rule, this Policy shall be administered in compliance with (or pursuant to an exemption from the application of) Section 409A of the Code.

 

 

3

 

 


 

13.
Successors. This Policy is binding and enforceable against all Executive Officers and their beneficiaries, heirs, executors, administrators or other legal representatives.

 

14.
Governing Law; Venue. This Policy and all rights and obligations hereunder are governed by and construed in accordance with the internal laws of the State of Delaware, excluding any choice of law rules or principles that may direct the application of the laws of another jurisdiction. All actions arising out of or relating to this Policy shall be heard and determined exclusively in the Court of Chancery of the State of Delaware or, if such court declines to exercise jurisdiction or if subject matter jurisdiction over the matter that is the subject of any such legal action or proceeding is vested exclusively in the U.S. Federal courts, the U.S. District Court for the District of Delaware.

 

 

 

4

 

 


 

EXHIBIT A

 

AVITA MEDICAL, INC.

Incentive-BASED Compensation Recovery Policy

 

Acknowledgement Form

 

By signing below, the undersigned acknowledges and confirms that the undersigned has received and reviewed a copy of the AVITA Medical, Inc. (and its subsidiaries and affiliates) (the “Company”) Incentive-Based Compensation Recovery Policy (the “Policy”).

 

By signing this Acknowledgement Form, the undersigned acknowledges and agrees that the undersigned is and will continue to be subject to the Policy and that the Policy will apply both during and after the undersigned’s employment with the Company. Further, by signing below, the undersigned agrees to abide by the terms of the Policy, including, without limitation, by returning any Erroneously Awarded Compensation (as defined in the Policy) to the Company to the extent required by, and in a manner consistent with, the Policy. Further, by signing below, the undersigned agrees that the terms of the Policy shall govern in the event of any inconsistency between the Policy and the terms of any employment agreement to which the undersigned is a party, or the terms of any compensation plan, program or agreement under which any compensation has been granted, awarded, earned or paid.

 

 

EXECUTIVE OFFICER

 

 

Signature

 

 

Print Name

 

 

Date

 

 

5

 

 



Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-K’ Filing    Date    Other Filings
Filed on:2/22/248-K
For Period end:12/31/23
12/1/23
11/8/23
10/2/238-K
 List all Filings 


13 Previous Filings that this Filing References

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

10/18/23  AVITA Medical, Inc.               8-K:1,2,9  10/18/23   15:2.4M                                   Donnelley … Solutions/FA
 8/10/23  AVITA Medical, Inc.               10-Q        6/30/23   90:15M                                    Donnelley … Solutions/FA
 6/07/23  AVITA Medical, Inc.               8-K:5,9     6/06/23   12:260K                                   Donnelley … Solutions/FA
 5/11/23  AVITA Medical, Inc.               10-Q        3/31/23   92:14M                                    Donnelley … Solutions/FA
 3/27/23  AVITA Medical, Inc.               8-K:5,8,9   3/22/23   12:241K                                   Donnelley … Solutions/FA
 3/22/23  AVITA Medical, Inc.               8-K:5,9     3/16/23   11:170K                                   Donnelley … Solutions/FA
 3/21/23  AVITA Medical, Inc.               8-K:5,9     3/16/23   12:261K                                   Donnelley … Solutions/FA
 2/23/23  AVITA Medical, Inc.               10-K       12/31/22  108:20M                                    ActiveDisclosure/FA
11/10/22  AVITA Medical, Inc.               10-Q        9/30/22   92:16M                                    ActiveDisclosure/FA
 2/28/22  AVITA Medical, Inc.               10-KT      12/31/21  127:24M                                    ActiveDisclosure/FA
 6/30/20  AVITA Medical, Inc.               8-K12B:3,5, 6/30/20    7:829K                                   Donnelley … Solutions/FA
 4/20/20  AVITA Medical, Inc.               6-K         4/20/20    3:514K                                   Donnelley … Solutions/FA
 9/19/19  AVITA Medical, Inc.               20FR12B               14:11M                                    Donnelley … Solutions/FA
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