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Item 1A. Risk Factors

2026-08-14 compared with 2026-05-15 · 44 added, 6 removed, 15 unchanged (77% of the section changed)

The risk factors under the heading “Risks Relating to our Business” set forth in Part I, Item 1A of the our Annual Report on Form 10-K for the year ended December 31, 2025 as filed with the SEC on March 31, 2026 are hereby supplemented with the following additional risk factors:

We are at risk for being delisted from the NASDAQ Capital Market for noncompliance with Nasdaq’s Continued Listing Standards

On April 7, 2026, we received a letter from Nasdaq informing us that we are not in compliance with the continued listing standards under Nasdaq Marketplace Rule 5550(b).

We have 45 calendar days (until May 22, 2026) to submit a compliance plan.

If we are unable to regain compliance with Nasdaq's continued listing standards within any applicable cure period, our common stock could be subject to delisting from the Nasdaq Capital Market.

There have been no material changes to the risk factors set forth in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2025.

The following risk factors supplement and highlight certain risks that are particularly material to the Company in light of events occurring during the quarter ended June 30, 2026 and certain subsequent events.

If we fail to meet all applicable Nasdaq requirements, Nasdaq could delist our common stock, which could adversely affect the market liquidity of our common stock and the market price of our common stock could decrease.

On April 7, 2026, we received a letter from the Nasdaq Listing Qualifications staff notifying us that we were not in compliance with the continued listing requirement under Nasdaq Listing Rule 5550(b)(1), which requires a minimum of $2,500,000 in stockholders' equity.

We submitted a compliance plan on May 22, 2026.

Separately, on July 8, 2026, the Nasdaq staff determined that our proposed Merger with Cortigent constitutes a change of control under Listing Rule 5110(a), such that the post-transaction entity must satisfy all of Nasdaq's initial listing requirements and complete the initial listing process prior to consummation of the Merger (see Note 14 — Subsequent Events).

If we are unable to regain compliance with the continued listing standards, or if the post-transaction entity is unable to satisfy Nasdaq's initial listing requirements, our common stock could be delisted from the Nasdaq Capital Market.

Delisting of our common stock from Nasdaq could significantly reduce the liquidity and market price of our common stock and could make it more difficult for us to access the capital markets on acceptable terms, if at all.

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Alternative markets, such as the over-the-counter markets, generally have less liquidity and visibility than Nasdaq, and trading on such markets could adversely affect the ability of stockholders to sell their shares at a desired price.

The risk factors under the heading “Risks Relating to Share Ownership” set forth in Part I, Item 1A of the our Annual Report on Form 10-K for the year ended December 31, 2025 as filed with the SEC on March 31, 2026 are hereby supplemented with the following additional risk factors:

Our Nevada Reincorporation may affect the rights of our stockholders with respect to certain corporation actions.

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A discussion of these differences and related risks is set forth in our definitive information statement on Schedule 14C filed with the SEC on March 31, 2026 under the Heading “What Changes After Nevada Reincorporation?”.

The Merger and the Financing may not be completed, which would have a material adverse effect on us.

On July 1, 2026, we entered into the Merger Agreement.

Completion of the Merger is subject to conditions that are largely outside our control, including, among others, approval by our stockholders and Vivani's, completion of the Financing, effectiveness of a registration statement on Form S-1, and Nasdaq's approval of an initial listing application required as a result of the change-of-control determination described in Note 14.

There can be no assurance these conditions will be satisfied.

The Merger Agreement may be terminated if the transaction is not completed within 180 days of signing and contains a break-up fee.

If the Merger or the Financing is not completed, we would have incurred substantial costs without an operating business to absorb them, we would have limited strategic alternatives, and the substantial doubt about our ability to continue as a going concern would remain unresolved, which could force us to wind down or liquidate.

Following the disposition of certain operating assets, we have limited continuing activities that are not expected to generate revenue at levels sufficient to fund ongoing operating costs.

Our continuing activities are not expected to generate material revenue at levels sufficient to fund ongoing operating costs.

As a result, our ability to sustain operations depends on numerous factors, including the successful completion of the Merger, successful completion of one or more Strategic Transactions, our ability to obtain additional financing, the successful development and commercialization of acquired technologies and products, market acceptance of such products, our ability to attract and retain qualified personnel, competitive conditions and general economic and capital markets conditions.

Many of these factors are beyond our control.

If we are unable to obtain additional capital or complete the Merger or a Strategic Transaction on acceptable terms or at all, we may be required to significantly curtail operations or pursue an orderly wind-down of the Company, which could result in reduced recoveries for stockholders.

We expect to continue to incur expenses associated with operating as a public company, pursuing Strategic Transactions, integrating acquired businesses, raising capital and complying with applicable legal and regulatory requirements.

There can be no assurance that our operations will generate sufficient revenues to offset these expenses or that we will achieve profitability in the future.

If we are unable to generate sufficient revenue or obtain additional financing when needed, our business, financial condition, results of operations and prospects could be materially adversely affected.

Combining the two companies may be more difficult, costly or time consuming than expected, and the combined company may not realize all of the anticipated benefits of the Merger.

The Company and Cortigent have operated and, until the consummation of the Merger, will continue to operate, independently.

The combined company may not be able to successfully achieve the anticipated benefits of the Merger at all or they may take longer to realize than expected.

The difficulties of operating the combined company may include, among others:

the diversion of management attention to integration matters;

difficulties in integrating functions, personnel and systems;

potential unknown liabilities, adverse consequences and unforeseen increased expenses associated with the Merger;

declines in results of operations, financial condition or cash flows.

Many of these factors are outside the control of the Company and Cortigent, and any one of them could result in increased costs, decreased expected revenues and diversion of management time and energy, which could materially impact the business, financial condition, results of operations and cash flows of the combined company.

These factors could cause dilution to the earnings per share of the combined company, decrease or delay the expected benefits of the Merger and negatively impact the price of our common stock.

As a result, it cannot be assured that the combined company will realize the full benefits anticipated from the Merger within the anticipated time frames, or at all.

In addition, following the Merger, we will become responsible for Cortigent’s liabilities and obligations, including with respect to legal, financial, regulatory, and compliance matters.

These obligations will result in additional cost and investment by the Company and, if we have underestimated the amount of these costs and investments or if we fail to satisfy any such obligations, we and Cortigent may not realize the anticipated benefits of the Merger.

Further, it is possible that there may be unknown, contingent or other liabilities or problems that may arise in the future, the existence and/or magnitude of which we and Cortigent were previously unaware.

Any such liabilities or problems could have an adverse effect on the combined company’s business, financial condition, results of operations or cash flows.

Further, following completion of the Merger, the combined company will be susceptible to many of the risks described herein and risks related to Cortigent’s business.

To the extent any of the events in the risks occur, those events could cause the potential benefits of the Merger not to be realized and the market price of the combined company’s common stock to decline.

The Merger and related issuances will substantially dilute existing stockholders and will result in a change of control of the Company.

The Consideration Shares of 12,500,000 shares, together with up to 855,000 shares to be issued to certain advisors pursuant to agreements with the Company in connection with past advisory services provided to the Company and to be provided on an ongoing basis, would represent approximately 82% of our common stock on a pro forma basis before the Financing;

the units offered in the Financing, and up to 1,400,000 stock options to be granted at closing would cause further dilution.

Following the Merger, Vivani will hold a majority of the combined company's voting power and will designate the Chief Executive Officer, Chief Financial Officer, and four of five directors, and existing stockholders will have limited ability to influence the combined company.

Stockholders holding at least 50.1% of our common stock have entered into voting support agreements, and our largest stockholder and its affiliates, holding approximately 61%, already approved the share issuance by written consent, so remaining stockholders have no ability to affect these matters.

For 12 months following closing, we will be subject to an equity issuance moratorium, subject to limited exceptions, which could constrain our ability to raise additional capital.

UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

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What changed 10-Q

Item 1A. Risk Factors