Agrify Corporation, on October 17, 2023, received a letter from the Listing Qualifications Department of The Nasdaq Stock Market LLC notifying Agrify that Nasdaq has initiated a process that could result in the delisting of Agrify’s securities from Nasdaq as a result of Agrify not being in compliance with Nasdaq Listing Rule 5250(c)(1), which requires listed companies to timely file all required periodic financial reports with the Securities and Exchange Commission (the “SEC”). The Staff Determination has no immediate effect and will not immediately result in the suspension of trading or delisting of Agrify’s shares of common stock.
Agrify intends to request a hearing before a Nasdaq Hearings Panel (the “Panel”). The hearing request will automatically stay any suspension or delisting action for an additional 15 calendar days following the date of the request; however, Nasdaq has a procedure to request an extension of the stay through the hearing date, and the expiration of any extension period granted by the Panel following the hearing. In connection with the hearing request, Agrify will request that the stay be extended through the hearing and the expiration of any additional extension period granted by the Panel following the hearing. In that regard, pursuant to the Nasdaq Listing Rules, the Panel may grant an additional extension period. However, there can be no assurance that the Panel will grant Agrify an additional extension, or that the Panel will grant Agrify’s request for an extended stay, or that Agrify will be able to regain compliance by the end of any additional extension period.
The Staff Determination was issued because Agrify has not filed its Annual Report on Form 10-K for the fiscal year ended December 31, 2022, and the Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, and June 30, 2023 (collectively, the “Delinquent Reports”) by the Extension Deadline (defined below).
As disclosed in the Current Report on Form 8-K filed by Agrify on April 17, 2023, Agrify’s audit committee concluded that, as a result of errors in the accounting for warrants issued by Agrify, it was appropriate to restate Agrify’s previously issued unaudited condensed consolidated financial statements as of and for the fiscal periods ended March 31, 2022, June 30, 2022 and September 30, 2022 in amended quarterly reports for the affected periods. Agrify filed amended Forms 10-Q on October 2, 2023, with the required restated financial statements. However, given the scope of the process for preparing the amended quarterly reports, Agrify was unable to complete and file the Delinquent Reports by their respective due dates.
Nasdaq had granted Agrify a period of 180 calendar days from the prescribed due date of the Second Quarter Form 10-Q, or until October 16, 2023 (the “Extension Deadline”), to file the Delinquent Reports to regain compliance with the Listing Rule. Agrify previously disclosed the delay in and circumstances behind the late filing of each of the Delinquent Reports in Notifications of Late Filing on Form 12b-25, filed with the SEC on March 31, 2023, May 15, 2023, and August 21, 2023, respectively.
Agrify intends to complete the Delinquent Reports, after which the financial statements contained in the Delinquent Reports will be subject to audit and/or review by Agrify’s independent registered public accounting firm. Following completion of the audit or review, as applicable, of the Delinquent Reports, Agrify plans to file the Delinquent Reports. There can be no assurance that Agrify will be able to file the Delinquent Reports within the extension period granted by the Panel, if any.
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