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Item 1A. RISK FACTORS
The risk factors under the heading Rre have been no material changes to the risks Relating to our Business factors 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 t. The following risk factors supplement and highlight certain risks that are particularly material to the SEC on March 31Company in light of events occurring during the quarter ended June 30, 2026 are herebynd certain supplembsequented with the following additional risk factors:
We are at risk for being events.
If we fail to meet all applicable Nasdaq requirements, Nasdaq could delisted from the NASDAQ Capital Ma our common stock, which could adversely affect the market for nonliquidity of our compliance with Nasdaqs Continued Listing Standards
mon stock and the market price of our common stock could decrease.
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On April 7, 2026, we received a letter from the Nasdaq informiListing Qualifications staff notifying us that we awere not in compliance with the continued listing standardsrequirement under Nasdaq MarketplaceListing Rule 5550(b). We have 45 calendar days (until (1), which requires a minimum of $2,500,000 in stockholders' equity. We submitted a compliance plan on May 22, 2026) to submit a. 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 compliance planete the initial listing process prior to consummation of the Merger (see Note 14 Subsequent Events). If we are unable to regain compliance with Nasdaq'sthe continued listing standards within any applic, or if the post-transaction entity is unable cure periodto satisfy Nasdaq's initial listing requirements, our common stock could be subject to delistinged 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. Even after we receive a notice of non-compliance, we may not be able to regain compliance within the timeframe provided by Nasdaq. 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.
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Our Nevada Reincorporation may affect the risk factors under the heaghts of our stockholders with respect to certain corporation actions.
On April 22, 2026, we completed our reincorporation from Delaware to Nevada by conversion. As a Nevada corporation, we are subject to Nevada corporate law, which differs from Delaware law in certain respects, including Risks Relating to Share Ownership set forth in Part I, Item 1A owith respect to stockholder rights, fiduciary duties of directors and officers, and the ability to adopt certain anti-takeover provisions. These differences could affect the rights of our stockholders and the governance of the Company. 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 our Annual Report 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 10-K for tS-1, and Nasdaq's approval of an initial listing application required as a result of the year ended December 31, 2025 as filechange-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 with tin 180 days of signing and contains a break-up fee. If the SEC on March 31, 2026 are hereby supplemented with theMerger 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 follrce us to wind down or liquidate.
Following addithe dispositional risk factors: 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 Nevada Reincorporation May Affect tcontinuing 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 Rights successful development and commercialization of acquired technologies and products, market acceptance of our Stockholders with Respect to Certsuch 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 Corporatiadditional capital or complete the Merger or a Strategic Transaction Actions
Oon 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.
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We expect to con April 22, 2026, we ctinue to incur expenses associated with operating as a public company, pursuing Strategic Transactions, integrating acquired businesses, raising capital and completed ourying with applicable legal and regulatory reincorporquirements. There can be no assurance that our operation from Delaws will generate sufficient revenues to offset these expenses or that we will achieve profitability in the future. If we are unable to Nevada by conversgenerate sufficient revenue or obtain additional financing when needed, our business, financial condition, results of operation. As a Nevada corporation, we are subject s 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 Nevada corporatsuccessfully achieve the anticipated benefits of the Merger at all or they may take law, whichonger to realize than expected. The differs from Delaware law in certain iculties of operating the combined company may include, among others:
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, fiduciary duties nancial condition, results of operations and cash flows of the combined company. These factors could cause dilution to the earnings per share of directors and officers, anthe 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 the ability to adopt certaat the combined company will realize the full benefits anticipated from the Merger within the anti-takeover provisionscipated time frames, or at all.
In addition, following the Merger, we will become responsible for Cortigents liabilities and obligations, including with respect to legal, financial, regulatory, and compliance matters. These differencesobligations will result in additional cost and investment by the Company and, if we have underestimated the amount of these could affect tsts and investments or if we fail to satisfy any such obligations, we and Cortigent may not realize the anticipated benefits of the rightMerger. Further, it is possible that there may be unknown, contingent or other liabilities of our stockholders and tr 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 governancecombined companys business, financial condition, results of operations or cash flows.
Further, following completion of the ComMerger, the combined company. A discussion will be susceptible to many of the risks described herein and risks related to Cortigents business. To the extent any of these differences 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 companys common stock to decline.
The Merger and related risks is set forth in our definitive informatiissuances 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 statementan ongoing basis, would represent approximately 82% of our common stock on Schedule 14C filed with ta 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 SEC on March 31, 2026 under tcombined 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 Headcombined company. Stockholders holding What Changes After Nevada Reincorporation?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.
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