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Item 1A. Risk Factors

2026-05-15 compared with 2025-11-14 · 31 added, 57 removed, 12 unchanged (88% of the section changed)

For information regarding other risk factors pertinent to the Company’s business please refer to Part I Item 1A of the Company’s 2024 Annual Report on Form 10-K, which was filed with the SEC on March 28, 2025 and is incorporated by reference herein, as further updated and supplemented by the risk factors set forth below.

We have a substantial amount of indebtedness maturing December 31, 2025.

We do not anticipate being able to repay such indebtedness by such date.

We have a significant amount of indebtedness.

As September 30, 2025, we owed $36.7 million to the lender under our credit agreement, all of which is secured.

The loans mature on December 31, 2025.

As of September 30, 2025, our cash and cash equivalents were approximately $11.8 million.

We do not expect to be in a position to be able to repay the loans by December 31, 2025.

While the Company is actively working to refinance its debt, there can be no assurance that these efforts will be successful prior to the maturity date, at which time all amounts under the credit agreement will become due.

If the lender forecloses on the loan, it is unlikely that the Company will able to continued as a going concern, and the Company would be insolvent, and common stockholders could lose most or all of their investment.

Our substantial amount of indebtedness could have other important consequences.

For example, it could:

• increase our vulnerability to adverse economic, industry or competitive developments;

• require a substantial portion of cash flow from operations to be dedicated to the payment of principal and interest on our indebtedness, therefore reducing our ability to use cash flow to fund our operations, capital expenditures and future business opportunities;

• limit our ability to service our indebtedness;

• limit our ability to obtain additional financing for working capital, capital expenditures, debt service requirements, or general corporate purposes.

The occurrence of any one of these events could have a material adverse effect on our business, financial condition, results of operations or prospects.

In addition, borrowings under the credit agreement bear interest at variable rates.

If these rates were to increase significantly, the risk related to our substantial indebtedness would intensify.

While we may enter into agreements limiting our exposure to higher interest rates, any such agreements may not offer complete protection for this risk.

We have not complied with certain covenants, including minimum liquidity and borrowing base requirements, under the credit agreement and, if the lender declared an event of default and accelerated the loans, this could cause us to be unable to continue to operate as a going concern.

As of September 30, 2025, we owed $36.7 million to the lender under our credit agreement.

As previously disclosed, we have been unable to comply with certain covenants under our credit agreement with the lender.

Although, to date, we have been successful in obtaining forbearance agreements with respect to these matters and avoid defaults under the agreement, there can be no assurance that the lender will not declare an event of default and accelerate all of our obligations under the credit agreement in the event that we are unable to get into full compliance with these covenants in the future.

Recently, the Company was not in compliance with the senior leverage ratio financial covenant under its credit agreement at June 30, 2024, September 30, 2024, December 31, 2024, March 31, 2025, June 30, 2025 and September 30, 2025.

In addition, the Company was also not in compliance with its borrowing base covenant under the credit agreement at December 31, 2024, January 31, 2025, February 28, 2025, March, 31, 2025, April 30, 2025, May 31, 2025, June 30, 2025, July 31, 2025, August 31, 2025 or September 30, 2025.

On March 24, 2025, the Company entered into an eighth amendment to the credit agreement with the collateral agent and lender to (i) provide the Company with an additional $2.5 million working capital bridge loan in March 2025 and (ii) waive any events of default that may have arisen directly as a result of (1) the financial covenant event of default (as defined in the eighth amendment) for the periods ended December 31, 2024 and March 31, 2025 and (2) the borrowing base defaults described in the eighth amendment for the months ended December 31, 2024, January 31, 2025 and February 28, 2025.

The bridge loan, including the related fee, was due and payable in full on August 31, 2025.

In conjunction with obtaining the waiver, the Company also was required to comply with the following covenants:

• Initiate recapitalization efforts and/or other financing arrangements with target completion milestones starting on March 21, 2025 through an expected completion of the recapitalization and/or repayment of the debt by June 16, 2025.

Not meeting these dates was an event of default under the credit facility.

The Company did not meet this requirement.

• Provide budgets to the lender with variances in excess of specified thresholds resulting in an event of default at the discretion of the lender.

The Company is also required to meet with a financial advisor, as designated by the lender, if requested.

In addition, the eighth amendment prohibited the Company from paying dividends or distributions to the preferred stockholders and reduced the borrowing base calculations by reducing the value assigned to its intellectual property to $11.2 million.

As noted above, the Company was not in compliance with its financial covenant related to the borrowing base under the credit agreement at March 31, 2025.

However, the noncompliance was cured by the payment of approximately $1.3 million under the credit agreement in April and May 2025.

The Company applied these payments to the bridge loan and related fee, leaving a balance due on August 29, 2025 of $1.4 million, which the Company paid by the due date.

On August 13, 2025, the Company entered into a forbearance agreement and ninth amendment and waiver to the credit agreement with the collateral agent and lender to waive any events of default that may have arisen directly as a result of (1) the financial covenant event of default (as defined in the ninth amendment) for the period ended June 30, 2025, (2) the borrowing base defaults described in the ninth amendment for the months ended April 30, 2024, May 31, 2025, June 30, 2025, and July 31, 2025, and (3) the failure to comply with the recapitalization requirement set forth in the eighth amendment.

Pursuant to the ninth amendment, the Company agreed to increase its quarterly principal payment due on September 30, 2025 from the scheduled $0.7 million to $1.0 million and to change interest payments from being due quarterly to being due monthly beginning in August 2025.

Although prior defaults have been waived or cured as set forth above, the Company’s noncompliance with the borrowing base covenant at August 31, 2025 and September 30, 2025 and the Senior Leverage Ratio at September 30, 2025 remain open, as well as noncompliance with certain non-financial covenants.

Because of the significant decreases in the required senior leverage ratio that have occurred within the past 18 months, our current forecast projects that we may not be able to maintain compliance with this ratio.

These conditions raise substantial doubt about our ability to continue as a going concern within one year after the date that the financial statements are issued.

For information regarding other risk factors pertinent to the Company’s business please refer to Part I Item 1A of the Company’s 2025 Annual Report on Form 10-K, which was filed with the SEC on April 15, 2026 and is incorporated by reference herein, as further updated and supplemented by the risk factors set forth below.

We may not be able to maintain a listing of our Class A common stock on Nasdaq Capital Market, or Nasdaq

On April 20, 2026, we received an expected letter from the Listing Qualifications Department of The Nasdaq Stock Market LLC (“Nasdaq”), notifying us that our stockholders’ equity as reported in its Annual Report on Form 10-K for the period ending December 31, 2025 (the “Form 10-K”), did not meet the minimum stockholders’ equity requirement for continued listing on the Nasdaq Capital Market.

Nasdaq Listing Rule 5550(b)(1) requires companies listed on the Nasdaq Capital Market to maintain stockholders’ equity of at least $2,500,000.

In our Form 10-K, we reported stockholders’ equity of $1,255,000, which is below the minimum stockholders’ equity required for continued listing pursuant to Nasdaq Listing Rule 5550(b)(1).

Additionally, as of the date of this quarterly report, we did not meet the alternative Nasdaq continued listing standards under Nasdaq Listing Rules.

This notice of noncompliance has had no immediate impact on the continued listing or trading of our common stock on The Nasdaq Capital Market, which will continue to be listed and traded on Nasdaq, subject to our compliance with the other continued listing requirements.

Nasdaq has given us until June 4, 2026, to submit to Nasdaq a plan to regain compliance.

If our plan is accepted, Nasdaq may grant an extension of up to 180 calendar days from the date of Nasdaq’s letter to evidence compliance.

We are currently evaluating various courses of action to regain compliance, and plans to timely submit its plan to Nasdaq to regain compliance with the minimum stockholders’ equity requirement.

We are confident that we can regain compliance with Nasdaq’s minimum stockholders’ equity standard within the compliance period.

However, there can be no assurance that our plan will be accepted or that if it is, we will be able to regain compliance.

If our plan to regain compliance is not accepted, or if it is and we do not regain compliance within 180 days from the date of Nasdaq’s letter, or if we fail to satisfy another Nasdaq requirement for continued listing, Nasdaq could provide notice that our common stock will become subject to delisting.

In such an event, Nasdaq rules would permit us to appeal the decision to reject our proposed compliance plan or any delisting determination to a Nasdaq Hearings Panel.

A delisting of our Class A common stock from Nasdaq may materially impair our stockholders’ ability to buy and sell our Class A common stock and could have an adverse effect on the market price of, and the efficiency of the trading market for, our Class A common stock.

In the event our stock is delisted from Nasdaq, whether by choice or otherwise, the delisting of our Class A common stock could significantly impair our ability to raise capital and stockholder value.

We have not complied with certain covenants, minimum liquidity and borrowing base requirements under the Credit Agreement and this could cause us to be unable to continue to operate as a going concern.

As of March 31, 2026 we owed $32.2 million to the lender under our Credit Agreement.

During 2024 and 2025, we did not comply with certain financial covenants, minimum liquidity requirements, and borrowing base requirements under the Credit Agreement.

Although we have obtained waivers and amendments from the lender with respect to these instances of noncompliance, there can be no assurance that we will be able to maintain compliance with the Credit Agreement in the future or that additional waivers or amendments will be available on acceptable terms or at all.

On December 18, 2025, the Company entered into the Eleventh Amendment to the Credit Agreement, which eliminated the Senior Leverage Ratio covenant and replaced it with a Minimum Consolidated Adjusted EBITDA covenant, commencing with the period ending March 31, 2026.

Pursuant to the May 2026 Forbearance Agreement, the Lenders granted a limited waiver of the borrowing base and Minimum Consolidated Adjusted EBITDA defaults for the periods ended March 31, 2026 and April 30, 2026.

These conditions, together with our historical operating losses and liquidity constraints, raise substantial doubt about our ability to continue as a going concern for a period of one year following the issuance of these financial statements.

Our ability to continue as a going concern is dependent upon our ability to generate sufficient cash flows from operations, obtain additional waivers or other relief under the Credit Agreement for any future covenant or borrowing base

noncompliance, or refinance our indebtedness with the existing lender or a new lender.

If the lender were to refuse to grant future waivers or declare an event of default, the lender could accelerate the maturity of our obligations under the Credit Agreement.

In the event of an acceleration, we would be required to refinance our indebtedness or obtain additional capital, which we may not be able to do on acceptable terms, on a timely basis, or at all.

Our ability to refinance existing debt or raise additional capital is dependent on market conditions and other factors beyond our control.

If we were required to pursue refinancing or capital raising in response to an imminent or declared default, we could be forced to do so on an expedited basis, which could further limit available options and adversely affect the terms of any such transaction.

If we are unable to successfully execute one or more of the foregoing plans, our business, financial condition, and results of operations could be materially adversely affected, and we may be required to significantly curtail or cease operations.

In view of these matters, continuation as a going concern is dependent upon our ability to continue to achieve positive cash flow from operations, obtain waivers or other relief under the Credit Agreement for any future non-compliance with the Senior Leverage Ratio, borrowing base requirements, or any other covenants or requirements under the Credit Agreement, or refinance our Credit Agreement with a different lender.

5 unchanged sentences

In the event we fail in any of the efforts described in the preceding sentences, our business may materially suffer or even cease operations.

We may not be able to maintain a listing of our Class A common stock on Nasdaq.

Because our Class A common stock is listed on the Nasdaq Capital Market, we must meet certain financial and liquidity criteria to maintain such listing.

From time to time, the Company has been out of compliance with Nasdaq’s listing standards.

On April 7, 2025, the Company received a letter from Nasdaq notifying the company that it did not satisfy the continued listing requirements under Nasdaq Listing Rule 5550(b), specifically the requirements that listed companies maintain stockholders’ equity of at least $2.5 million.

The Company subsequently submitted a compliance plan to Nasdaq and took steps to remedy the noncompliance, which resulted in Nasdaq confirming on October 8, 2025 that the Company was in compliance with the stockholders’ equity rule.

Nasdaq however indicated that it will continue to monitor the Company’s compliance with the minimum stockholders’ equity requirements and, if at the time of its next periodic report the Company does not comply, the Company may be subject to delisting.

T he Company also previously reported, due to director resignations, noncompliance with Nasdaq Rule 5605(c)(2)(A), which requires, among other things, that audit committees have at least three members, of which at least one member have past employment experience in finance or accounting, requisite professional certification in accounting, or any other comparable experience or background which results in the individual’s financial sophistication.

The resignations also resulted in the Company not being in compliance with Nasdaq Rule 5605(b)(1), which requires that a majority of the board of directors must be comprised of independent directors as defined in Nasdaq listing standards.

The Company was subsequently able to regain compliance with these requirements through election of new directors, as confirmed by Nasdaq on October 8, 2025.

In addition, the Company has previously not been compliant with Nasdaq Listing Rule 5550(a)(2), which requires that listed companies maintain a minimum closing bid price.

The Company resolved that issue with a reverse stock split of

its authorized, issued and outstanding shares of Class A common stock, at a ratio of 1-for-5 which became effective on February 14, 2025.

While the Company has resolved prior instances of Nasdaq listing noncompliance, and the Company believes, as of the date hereof, that it is in compliance with Nasdaq’s listing standards, the Company’s history of noncompliance could suggest that further incidents of noncompliance could occur in the future.

In particular, Nasdaq has informed the Company that it will review this Quarterly Report on Form 10-Q for compliance with the stockholders’ equity standard.

Additionally, as we have previously disclosed, there is substantial doubt about our ability to continue as a going concern.

UNREGISTERED SALES OF EQUITY SECURITIES, USE OF PROCEEDS AND ISSUER PURCHASE OF EQUITY SECURITIES

4 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