Business Context and Reporting Period
This Form 8-K was filed by Volcon, Inc. on March 25, 2024, covering events occurring on that date. The request metadata identifies Empery Digital Inc., but the filing names Volcon, Inc. as the registrant. Volcon’s common stock trades on Nasdaq under the symbol VLCN.
Material Corporate and Securityholder Changes
- Volcon amended the Certificate of Designation for its Series A Convertible Preferred Stock, with approval from a majority of preferred stockholders.
- Voting rights were modified so preferred stockholders’ as-converted voting power is based on an assumed conversion price equal to the greater of the applicable conversion price or $0.98 per share.
- For future conversion-price adjustments, the floor price was set at $0.98 per share before shareholder approval and $0.50 per share after shareholder approval.
- Preferred stockholders’ right to require redemption upon a change-of-control transaction was eliminated.
- The amendment is also reported under Item 3.03 as a material modification to the rights of security holders.
Financial Metrics, Liquidity, and Capitalization
The filing does not provide revenue, earnings, cash flow, margin, debt, cash balance, or other operating financial metrics. Volcon states that, following the exchange offer described in its March 4, 2024 Form 8-K, it believes stockholders’ equity exceeded Nasdaq’s $2.5 million alternative compliance requirement.
Nasdaq Listing Status and Risks
- Nasdaq had previously notified Volcon that the market value of its listed securities was below the $35 million minimum required under Listing Rule 5550(b)(2) for 30 consecutive trading days.
- The company had been granted 180 calendar days, through January 2, 2024, to regain compliance, including through the alternative requirement of at least $2.5 million in stockholders’ equity.
- Volcon believes it now satisfies the stockholders’ equity alternative, but Nasdaq has not yet made a final determination.
- There is no assurance that the company will satisfy all continued-listing requirements, and its common stock remains subject to potential delisting.
Important Facts to Verify
- Confirm that the filing applies to Volcon, Inc., not Empery Digital Inc.
- Review Exhibit 3.1 for the complete amended and restated Series A preferred-stock designation.
- Verify Nasdaq’s final determination regarding continued listing and the company’s stockholders’ equity.
- Review the March 4, 2024 Form 8-K for the exchange offer and its effect on capitalization.
- Assess the dilution, voting-power, redemption, and change-of-control implications of the amended preferred-stock terms.