8-K: Vivakor Faces Nasdaq Non-Compliance Over Share Issuances

Vivakor, Inc. received a Nasdaq notice for failing to comply with listing rules related to recent share and warrant issuances, while also converting a portion of its convertible promissory notes into common stock.

Summary

• Vivakor, Inc. received a notice from The Nasdaq Stock Market LLC on December 11, 2025, indicating non-compliance with Nasdaq Listing Rule 5635(d), the Shareholder Approval Rule.
• The non-compliance stems from two registered direct offerings conducted in October 2025, which collectively involved the issuance of more than 20% of the pre-transaction shares outstanding at a discount to the Minimum Price without prior shareholder approval.
• The October 24, 2025, offering included 10,909,090 shares of common stock and 5,000,000 pre-funded warrants at an offering price of $0.22 per share.
• The October 30, 2025, offering included 10,600,000 shares of common stock and 3,566,666 pre-funded warrants at an offering price of $0.18 per share.
• The company has 45 calendar days from the notice date to submit a plan to regain compliance and intends to seek shareholder approval for the issuances in the October offerings.
• Between December 10, 2025, and December 15, 2025, the company converted $507,172.86 of convertible promissory notes (Lender Notes) into 15,427,519 shares of common stock.
• The Lender Notes, with an aggregate principal amount of $5,117,647.06, were originally issued between June 6-9, 2025, with the company receiving $4,350,000 prior to deducting customary fees.

Sentiment

Score: 3

Explanation: The filing indicates significant regulatory non-compliance and substantial equity dilution, creating uncertainty around the company's Nasdaq listing status and future capital structure. While the company plans to address the issue, the lack of assurances and the nature of the violation are strongly negative.

Positives

• The company has a stated plan to address the Nasdaq non-compliance by submitting a plan and seeking shareholder approval for the contested issuances.
• The conversion of a portion of the convertible notes reduces the company's outstanding debt obligations, albeit through equity dilution.

Negatives

• Receipt of a Nasdaq non-compliance notice for violating Listing Rule 5635(d), which requires prior shareholder approval for significant equity issuances.
• The October 2025 offerings collectively exceeded 20% of outstanding shares at a discount without obtaining prior shareholder approval.
• Significant equity dilution occurred from the conversion of $507,172.86 in convertible notes into 15,427,519 shares of common stock.
• There are no assurances that the company will be able to regain or maintain compliance with Nasdaq listing standards in the future.

Risks

• Failure to regain compliance with Nasdaq Listing Rule 5635(d) could lead to the delisting of the company's common stock from the Nasdaq Capital Market.
• Inability to maintain compliance with all Nasdaq listing standards in the future, even if the current issue is resolved.
• Shareholder disapproval of the October 2025 offerings could complicate the company's efforts to regain compliance.
• Potential for further equity dilution from the conversion of the remaining balance of the Lender Notes.

Future Outlook

The company plans to timely submit a plan to Nasdaq within 45 calendar days to regain compliance with Listing Rule 5635(d) and is seeking shareholder approval for the October 2025 offerings. However, there are no assurances that the company will be able to regain compliance or maintain compliance with all Nasdaq listing standards in the future.

Management Comments

• "The Company plans to timely submit a Plan to Nasdaq in response to the Notice and is seeking approval of its shareholders for the issuance of the Company’s common stock in the October 24 Offering and the October 30 Offering."
• "However, there are no assurances that the Company will be able to regain compliance with the Shareholder Approval Rule, or, assuming the Company regains compliance with the Shareholder Approval Rule, that the Company will be able to continue to maintain compliance with all Nasdaq listing standards in the future."

Industry Context

This event highlights the critical importance of adhering to exchange listing rules, particularly those designed to protect shareholders from significant dilution without their consent. Non-compliance with such rules can lead to increased regulatory scrutiny, potential delisting, and a loss of investor confidence, which is a common challenge for smaller public companies navigating capital raises.

Comparison to Industry Standards

• Nasdaq Listing Rule 5635(d) is a standard corporate governance requirement across U.S. exchanges, mandating prior shareholder approval for substantial equity issuances (20% or more of outstanding shares) at a discount to the minimum price. Vivakor's failure to obtain this approval deviates from standard best practices.
• Companies typically ensure compliance by either structuring offerings to avoid the 20% threshold or by proactively seeking shareholder approval before such transactions. Vivakor's post-facto attempt to seek approval indicates a reactive rather than proactive approach to governance.
• Similar situations have occurred with other small-cap companies that have faced delisting threats due to non-compliance with listing rules (e.g., minimum bid price, shareholder approval). These companies often resort to measures like reverse stock splits or, as in Vivakor's case, seeking retroactive shareholder approval, which can be challenging and may not always succeed.

Corporate Governance

Stakeholder Impact

• Shareholders face potential significant dilution from the October offerings and convertible note conversions, along with the risk of stock price decline due to Nasdaq non-compliance and potential delisting.
• Institutional investors who participated in the October offerings may face scrutiny if shareholder approval is not obtained, and holders of convertible notes have seen a portion of their debt converted to equity.
• Management and the Board of Directors are under increased pressure to resolve the Nasdaq compliance issue and restore investor confidence.
• Nasdaq's reputation for market integrity is upheld by enforcing listing rules, impacting the broader market's perception of compliance.

Next Steps

• Submit a plan to Nasdaq within 45 calendar days from December 11, 2025, to regain compliance with Listing Rule 5635(d).
• Seek approval from shareholders for the issuance of common stock in the October 24 and October 30 offerings.
• If the compliance plan is accepted by Nasdaq, evidence compliance within 180 calendar days from December 11, 2025.

Key Dates

Recommendation

The company has received a notice of non-compliance from Nasdaq for a significant violation of shareholder approval rules related to substantial equity issuances at a discount. This creates a material risk of delisting and significant uncertainty for investors. The ongoing dilution from convertible note conversions further exacerbates concerns about shareholder value. While the company plans to address the issue, the lack of assurances regarding regaining and maintaining compliance, coupled with the nature of the governance failure, suggests a high level of risk and potential for further share price depreciation.

Keywords

Vivakor, VIVK, Nasdaq, listing rule, non-compliance, shareholder approval, common stock, pre-funded warrants, registered direct offering, convertible notes, equity dilution, SEC filing, 8-K