What changed in this filing

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Item 1A. Risk Factors

2024-08-14 compared with 2024-05-15 · 26 added, 14 removed, 41 unchanged (49% of the section changed)

7 unchanged sentences

That dismissal is being appealed, and there is no assurance that the decision to dismiss these claims will be upheld.

The remaining claims in that action went to trial in May 2024 and, on May 17, 2024, the jury found Mr.

Garg liable for breach of fiduciary duty and conversion.

It awarded the plaintiff, Education Investment Finance Corporation, $4.5 million in compensatory damages and $1 million in punitive damages.

Garg is seeking to overturn the verdict, as well as appealing it.

In another action, plaintiff-investors in a prior business venture alleged that they did not receive required accounting documentation, that our CEO misappropriated funds that should have been distributed to the plaintiff-investors, and that such funds could have been invested in Better.

1 unchanged sentence

Garg’s attention from our business regardless of the outcome of such litigations.

In addition, following her separation from the Company in February 2022, Sarah Pierce, Better’s former Head of Sales and Operations, filed litigation against Better, Mr.

Garg, and Nicholas Calamari, our Chief Administrative Officer and Senior Counsel.

Pierce has since voluntarily dismissed her claims against the Company and Messrs.

Garg and Calamari with prejudice and withdrawn her appeal of a separate judgment obtained by the Company against her.

There has been and will likely continue to be publicity regarding the litigations discussed above, which could negatively affect our reputation.

5 unchanged sentences

Since the Class A common stock is currently trading under $1.00, Nasdaq may delist our securities from trading on its exchange, which would limit investors’ ability to make transactions in our securities, subject us to additional trading restrictions and require us to redeem the Convertible Note.

On October 12, 2023, the Company received a letter (the “Notice”) from Nasdaq notifying the Company that it is not in compliance with the Bid Price Rule for continued listing.

On October 12, 2023, the Company received a letter (the “Notice”) from Nasdaq notifying the Company that it was not in compliance with the Bid Price Rule for continued listing.

The Bid Price Rule requires listed securities to maintain a minimum bid price of $1.00 per share, and Compliance Period Rule provides that a failure to meet the minimum bid price requirement exists if the deficiency continues for a period of 30 consecutive business days.

In accordance with the Compliance Period Rule, the Company has 180 calendar days, or until April 9, 2024, to regain compliance with the Bid Price Rule.

In accordance with the Compliance Period Rule, the Company initially had 180 calendar days, or until April 9, 2024, to regain compliance with the Bid Price Rule.

In addition, Nasdaq Listing Rules permit the Company to transfer to The Nasdaq Capital Market and Nasdaq may grant the Company a second 180 calendar day period to regain compliance pursuant to the Compliance Period Rule, provided the Company meets the continued listing requirement for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, with the exception of the bid price requirement.

3 unchanged sentences

On April 9, 2024, the Company received formal notice that Nasdaq granted the Company’s request for an additional 180-day period, or until October 7, 2024 (the “Extension Notice”), to evidence compliance with the Bid Price Rule.

May 9, 2024, Class A common stock has been trading below $1.00 for two hundred ten days.

If at any time before October 7, 2024, the bid price of the Company’s Class A common stock closes at $1.00 per share or more for a minimum of ten consecutive business days, Nasdaq will provide the Company with written confirmation of compliance with the Bid Price Rule.

The Company will continue to monitor the closing bid price of Class A common stock and seek to regain compliance with all applicable Nasdaq requirements within the allotted compliance periods.

The Company is evaluating options for regaining compliance with the Minimum Bid Rule, including seeking stockholder approval at its annual meeting of stockholders to declare and effect a reverse stock split.

If the Company fails to regain compliance during such additional compliance period, the Staff will provide notice that the Class A common stock will be subject to delisting.

On June 4, 2024, at the 2024 annual meeting of the Company’s stockholders, the Company’s stockholders approved amendments to the Company’s Certificate of Incorporation to effect the Reverse Stock Split Authorization.

On August 1, 2024, pursuant to the Reverse Stock Split Authorization, the Company’s board of directors approved the Reverse Stock Split and set a split ratio of 1-for-50 of our Common Stock, provided that the Company’s board of directors reserved the right to modify or abandon the amendment prior to filing with the Secretary of State of the State of Delaware.

As of the effective time of the Reverse Stock Split, one post-split share of our Common Stock will be issued in exchange for every 50 pre-split shares of our Common Stock.

The Reverse Stock Split is currently scheduled to become effective at 6:00 p.m.

New York time on August 16, 2024.

The ultimate effect of the Reverse Stock Split on the market price of our Common Stock cannot be predicted with any certainty, and we cannot assure you that the Reverse Stock Split will result in any or all of the expected benefits, including enabling the Company to regain compliance with the Nasdaq listing standards, for any meaningful period of time, or at all.

While the Reverse Stock Split is intended to increase the per share trading price of the Company’s Class A common stock to enable the Company to regain compliance with the minimum bid price requirement for continued listing on The Nasdaq Capital Market, we can provide no assurances that the Reverse Stock Split will increase the market price of our Class A common stock by a multiple of the Reverse Stock Split ratio or result in any permanent or sustained increase in the market price of our Class A common stock.

The market price of our Class A common stock depends on multiple factors, many of which are unrelated to the number of shares outstanding, including our business and financial performance, general market conditions and prospects for future success, any of which could have a counteracting effect to the Reverse Stock Split on the per share price.

In addition, the Reverse Stock Split will reduce the total number of outstanding shares of our Common Stock, which may lead to reduced trading for our Common Stock.

As a result of a lower number of shares outstanding, the market for our Common Stock may also become more volatile.

The Reverse Stock Split will also increase the number of stockholders who own “odd lots” of less than 100 shares of Common Stock.

A purchase or sale of less than 100 shares of Common Stock (an “odd lot” transaction) may result in incrementally higher trading costs through certain brokers, particularly “full service” brokers.

Therefore, those stockholders who own fewer than 100 shares of our Common Stock following the Reverse Stock Split may be required to pay higher transaction costs if they sell their shares of our Common Stock.

Finally, the decline in the per share price of our Common Stock and the decline in our overall market capitalization may be greater following the Reverse Stock Split than would have occurred in the absence of a Reverse Stock Split.

Any reduction in our market capitalization may be magnified as a result of the smaller number of total shares of the Company’s Common Stock outstanding following the Reverse Stock Split.

If the Company fails to regain compliance with the Bid Price Rule by October 7, 2024, the Staff will provide notice that the Class A common stock will be subject to delisting.

The Company would then be entitled to appeal that determination to a Nasdaq hearings panel.

There can be no assurance that the Company will regain compliance with the minimum bid price requirement during the second period of 180 days or maintain compliance with the other Nasdaq listing requirements.

There can be no assurance that the Company will regain compliance with the minimum bid price requirement by October 7, 2024, or maintain compliance with the other Nasdaq listing requirements.

If Nasdaq delists the Company’s securities from trading on its exchange for failure to meet the listing standards, the Company and its stockholders could face significant negative consequences including:

1 unchanged sentence

• reduced liquidity for our securities;

• a determination that the shares of Class A common stock are “penny stock” which will require brokers trading in Class A common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;

• a determination that the shares of Class A common stock are “penny stock” that will require brokers trading in Class A common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;

• a limited amount of news and analyst coverage;

1 unchanged sentence

Furthermore, if our Class A common stock ceases to be listed on the Nasdaq, such delisting would constitute a fundamental change under the indenture for the Convertible Note that would require the Company to redeem the Convertible Note prior to maturity for an amount in cash equal to the principal amount of such Convertible Note plus accrued and unpaid interest to the redemption date.

As of March 31, 2024, the Company had cash and cash equivalents, together with short-term investments and restricted cash, of $482.6 million, compared to $528.6 million principal amount outstanding under the Convertible Note.

As of June 30, 2024, the Company had cash and cash equivalents,

together with short-term investments, of $378.8 million, compared to $528.6 million principal amount outstanding under the Convertible Note.

If the Company is required to redeem the Convertible Note prior to maturity, the Company may not have sufficient available cash and cash equivalents or be able to obtain additional liquidity, on acceptable terms or at all, to enable the Company to redeem or refinance the Convertible Note.

9 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 1A. Risk Factors