Item 9A. Controls and Procedures
Item 9A. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
We maintain “disclosure controls and procedures,” as defined in Rule
13a-15(e)
and Rule
15d-15(e)
under the Exchange Act that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure.
Our management, with the participation of our principal executive officer and principal financial officer, evaluated the effectiveness of our disclosure controls and procedures (as defined in
Rules 13a-15(e)
and
15d-15(e)
under the Securities Exchange Act of 1934, as amended) as of December 31, 2021. Based on the evaluation of our disclosure controls and procedures, our management concluded that, as of December 31, 2021, our disclosure controls and procedures were effective to provide reasonable assurance that the information required to be disclosed by us in this Annual Report on Form
10-K
was (a) reported within the time periods specified by SEC rules and regulations, and (b) communicated to our management, including our Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding any required disclosure.
Management’s Report on Internal Control Over Financial Reporting
This Annual Report on Form
10-K
does not include a report of management’s assessment regarding internal control over financial reporting or an attestation report of our independent registered public accounting firm as allowed by the SEC during the transition period for newly public companies.
Remediation of Material Weakness
Our board of directors and management take internal control over financial reporting and the integrity of our financial statements seriously. In the second half of 2021, we remediated the previously disclosed material weakness in our controls addressing segregation of duties related to roles and responsibilities in our accounting department by hiring additional accounting staff and upgrading our accounting systems.
Changes in Internal Control Over Financial Reporting
Except for the changes noted above regarding the remediation of a material weakness that existed as of September 30, 2021, there have been no other changes in our internal control over financial reporting, as such term is defined in Rules
13a-15(f)
and
15d-15(f)
promulgated under the Securities Exchange Act of 1934, as amended, that occurred during the fiscal quarter ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations on Effectiveness of Internal Controls
In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply judgment in
141
Table of Contents
evaluating the benefits of possible controls and procedures relative to their costs. Our management, including our Chief Executive Officer and Chief Financial Officer, believes that our disclosure controls and procedures and internal control over financial reporting are designed to provide reasonable assurance of achieving their objectives and are effective at the reasonable assurance level. However, our management does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud.
Item 9B. Other Information.
Because this Annual Report on Form 10-K is being filed within four business days from the date of the reportable events, we have elected to make the following disclosures in this Annual Report on Form 10-K instead of in a Current Report on Form 8-K under Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers:
Approval of Amendment to Non-Employee Director Compensation Policy
On March 24, 2022, our board of directors approved an amendment to the Company’s non-employee director compensation policy, or the Policy, effective immediately. The Policy applies to each non-employee who serves on the board of directors. The amendment increases the Initial Grant, as defined in the Policy, from 34,000 shares of the Company’s common stock to 50,000 shares of the Company’s common stock and increases the Annual Grant, as defined in the Policy, from 17,000 to 25,000 shares of Common Stock. The full text of the Policy is included as Exhibit 10.3 to this Annual Report on Form 10-K and is incorporated herein by reference.
Election of Kim C. Drapkin to Board of Directors
On March 24, 2022, upon the recommendation of its nominating and corporate governance committee, our board of directors voted to increase the size of the board to seven directors from six directors and to appoint Kim C. Drapkin to fill the vacancy created by the expansion, effective April 1, 2022. Ms. Drapkin will join the board as a Class I director, to serve the remainder of the full term of such Class I directorship until the Company’s 2022 annual meeting of stockholders and until her successor has been duly elected and qualified. The board of directors also appointed Ms. Drapkin to serve as chair of the audit committee of the board of directors, effective April 1, 2022.
Ms. Drapkin serves as the chief financial officer and treasurer of Jounce Therapeutics, Inc., a publicly traded clinical-stage immunotherapy company, roles she has held since August 2015 and February 2013, respectively. Ms. Drapkin serves on the board of directors of Yumanity Therapeutics, Inc., a publicly traded clinical-stage biopharmaceutical company, a role she has had since its merger with Proteostasis Therapeutics, Inc., in December 2020. From February 2019 through this merger, Ms. Drapkin served as a member of the board of directors of Proteostasis Therapeutics, Inc., a clinical-stage biopharmaceutical company. Ms. Drapkin began her career at PricewaterhouseCoopers LLP, is a certified public accountant and holds a B.S. in accounting from Babson College. Our board of directors believes Ms. Drapkin is qualified to serve as a director based on her extensive financial expertise within the pharmaceutical industry.
In accordance with the Policy, as amended on March 24, 2022 and filed as Exhibit 10.3 to this Annual Report on Form 10-K, Ms. Drapkin’s compensation for her services as a non-employee director will be consistent with that of the Company’s other non-employee directors. In accordance with the Policy, on April 1, 2022, Ms. Drapkin will be granted an initial stock option to purchase 50,000 shares of the Company’s common stock with an exercise price equal to the closing price of the Company’s common stock on the date of grant. The option will have a ten-year term, and will vest in equal monthly installments over a three-year period, such that the option will be fully vested on the third anniversary of the date of grant, subject to Ms. Drapkin’s continuous service through each such vesting date.
The Company also expects to enter into its standard indemnification agreement for directors with Ms. Drapkin.
142
Table of Contents
Ms. Drapkin was not selected as a director pursuant to any arrangements or understandings with the Company or with any other person, and there are no related party transactions between the Company and Ms. Drapkin that would require disclosure under Item 404(a) of Regulation S-K.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not applicable.
143
Table of Contents
PART III
Item 10. Directors, Executive Officers and Corporate Governance.
The information required by this item will be contained in our definitive proxy statement to be filed with the SEC in connection with our 2022 annual meeting of stockholders, or the Proxy Statement, which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 2021, under the captions “Information Regarding the Board of Directors and Corporate Governance,” “Election of Directors” and “Executive Officers” and is incorporated in this report by reference.
Item 11. Executive Compensation.
The information required by this item will be set forth in the Proxy Statement under the captions “Executive Compensation” and “Non-Employee
Director Compensation” and is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item will be set forth in the Proxy Statement under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Securities Authorized for Issuance under Equity Compensation Plans” and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this item will be set forth in the Proxy Statement under the captions “Transactions with Related Persons” and “Independence of the Board of Directors” and is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services.
The information required by this item will be set forth in the Proxy Statement under the caption “Ratification of Selection of Independent Registered Public Accounting Firm” and is incorporated herein by reference.
144
Table of Contents
PART IV
Item 15. Exhibit and Financial Statement Schedules.
(a)(1) Financial Statements
The financial statements are included in Item 8. “Financial Statements and Supplementary Data.”
(a)(2) Financial Statement Schedules
All schedules are omitted as information required is inapplicable or the information is presented in the financial statements and the related notes.
(a)(3) Exhibits
Exhibit
Number
Description of Exhibit
3.1
Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-40551), filed with the Securities and Exchange Commission on July 7, 2021).
3.2
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K (File No. 001-40551), filed with the Securities and Exchange Commission on July 7, 2021).
4.1
Amended and Restated Investors’ Rights Agreement, by and among the Registrant and certain of its stockholders, dated November 20, 2020 (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 9, 2021)
4.2*
Description of the Company’s Common Stock
10.1†
Collaboration Agreement, by and between the Registrant and Merck & Co., Inc., dated December 22, 2003, as amended and restated as of October 18, 2006 (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 24, 2021)
10.2+
2021 Equity Incentive Plan and Forms of Option Grant Notice and Agreement, Exercise Notice, Early Exercise Notice and Restricted Stock Award Notice (incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 24, 2021).
10.3*+
Non-Employee Director Compensation Policy
10.4+
2021 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 24, 2021)
10.5+
2013 Amended and Restated Stock Performance Plan (as amended through November 20, 2020) (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 9, 2021)
10.6+
Form of Indemnification Agreement with Executive Officers and Directors (incorporated by reference to Exhibit 10.6 to the Company’s Registration Statement on Form S-1 (File No. 333-256945), filed with the Securities and Exchange Commission on June 24, 2021)
10.7*+
Executive Employment Agreement, by and between the Registrant and Daniel O’Connell
10.8*+
Executive Employment Agreement, by and between the Registrant and Matthew Zuga
145
Table of Contents
Exhibit
Number
Description of Exhibit
10.9*+
Employment Agreement by and between the Registrant and Eric Siemers, M.D.
10.10*+
Employment Agreement by and between the Registrant and Russell Barton
23.1*
Consent of Ernst & Young LLP, independent registered accounting firm
24.1*
Power of Attorney (included on signature page)
31.1*
Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*
Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1#
Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2#
Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS*
Inline XBRL Instance Document
101.SCH*
Inline XBRL Taxonomy Extension Schema Document
101.CAL*
Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*
Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*
Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE*
Inline XBRL Taxonomy Extension Presentation Linkbase Document
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
*
Filed herewith.
†
Pursuant to Item 601(b)(10) of Regulation S-K,
certain confidential portions of this exhibit have been omitted by means of marking such portions with asterisks [***] as the identified confidential portions (i) are not material and (ii) the Registrant customarily and actually treats that information as private or confidential.
+
Indicates management contract or compensatory plan.
#
These certifications are being furnished solely to accompany this annual report pursuant to 18 U.S.C. Section 1350, and are not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and are not to be incorporated by reference into any filing of the registrant, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
Item 16. Form 10–K Summary.
None.
146
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ACUMEN PHARMACEUTICALS, INC.
Date: March 28, 2022
By:
/s/ Daniel O’Connell
Daniel O’Connell
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniel O’Connell and William Matthew Zuga, and each of them, as his or her true and lawful agents, proxies and attorneys-in-fact,
with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign this Annual Report on Form 10-K
of Acumen Pharmaceuticals, Inc., and any or all amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises hereby ratifying and confirming all that such agent, proxy and attorney-in-fact
or any of his substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Daniel O’Connell
Chief Executive Officer and Director
(Principal Executive Officer)
March 28, 2022
Daniel O’Connell
/s/ William Matthew Zuga
Chief Financial Officer and Chief
Business Officer
March 28, 2022
William Matthew Zuga
(Principal Financial Officer and Principal Accounting Officer)
/s/ Nathan B. Fountain
Director
March 28, 2022
Nathan B. Fountain, M.D.
/s/ Jeffrey L. Ives
Director
March 28, 2022
Jeffrey L. Ives, PhD
/s/ Sean Stalfort
Director
March 28, 2022
Sean Stalfort
/s/ Laura Stoppel
Director
March 28, 2022
Laura Stoppel, PhD
/s/ Jeffrey Sevigny
Director
March 28, 2022
Jeffrey Sevigny, M.D.
147