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Item 9A. Controls and Procedures

2023-03-27 compared with 2022-03-28 · 57 added, 97 removed, 67 unchanged (70% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

We maintain “disclosure controls and procedures,” as defined in Rule

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.

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)

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

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

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.

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, 2022.

Based on the evaluation of our disclosure controls and procedures, our management concluded that, as of December 31, 2022, 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 Annual Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting.

Internal control over financial reporting is defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act, as a process designed by, or under the supervision of, our principal executive and principal financial and accounting officers and effected by our board of directors and management to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets;

(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S.

GAAP, and that receipts and expenditures are being made only in accordance with authorizations of our management and directors;

and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.

Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with policies or procedures may deteriorate.

Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2022.

In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO, in the original Internal Control—Integrated Framework updated in 2013.

Based on that assessment, our management concluded that our internal control over financial reporting was effective as of December 31, 2022.

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

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

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.

There were no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the fiscal quarter ended December 31, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Attestation Report on Internal Control over Financial Reporting

This Annual Report on Form 10-K does not include an attestation report of our independent registered public accounting firm on internal control over financial reporting as we are not subject to section 404(b) of the Sarbanes-Oxley Act of 2022 due to our status as a “smaller reporting company” and “Non-accelerated filer.”

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.

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.

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.

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.

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 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.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

1 unchanged sentence

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.

The information required by this item will be contained in our 2023 Proxy Statement, to be filed with the SEC not later than 120 days after the end of our fiscal year ended December 31, 2022, 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.

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.

The information required by this item will be set forth in the 2023 Proxy Statement under the captions “Executive Compensation” and “Non-Employee Director Compensation” and is incorporated herein by reference.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

11 unchanged sentences

(a)(3) Exhibits

Description of 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.

4 unchanged sentences

333-256945), filed with the Securities and Exchange Commission on June 9, 2021) .

Description of the Company’s Common Stock

4.2 Description of the Company’s Common Stock (incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K (File No.

001-40551), filed with the Securities and Exchange Commission on March 28, 2022).

10.1*† License Agreement, by and between the Registrant and Lonza Sales AG, dated November 2, 2022.

10.2† 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.

2 unchanged sentences

333-256945), filed with the Securities and Exchange Commission on June 24, 2021).

Non-Employee Director Compensation Policy

10.4+ Non-Employee Director Compensation Policy (incorp orated by reference to Exhibit 10.3 to the Company's Annual Report on Form 10-K (File No.

001-40551), filed with the Securities and Exchange Commission on March 28, 2022) .

10.5+ 2021 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-1 (File No.

2 unchanged sentences

333-256945), filed with the Securities and Exchange Commission on June 9, 2021) .

Number Description of Exhibit

10.7+ 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) .

Executive Employment Agreement, by and between the Registrant and Daniel O’Connell

Executive Employment Agreement, by and between the Registrant and Matthew Zuga

Description of Exhibit

Employment Agreement by and between the Registrant and Eric Siemers, M.D.

Employment Agreement by and between the Registrant and Russell Barton

10.8+ Amended and Restated Executive Employment Agreement, by and between the Registrant and Daniel O’Connell (incorporated by reference to Exhibit 10.7 to the Company’s Annual Report on Form 10-K (File No.

001-40551), filed with the Securities and Exchange Commission on March 28, 2022).

10.9+ Amended and Restated Executive Employment Agreement, by and between the Registrant and Matthew Zuga (incorporated by reference to Exhibit 10.8 to the Company’s Annual Report on Form 10-K (File No.

001-40551), filed with the Securities and Exchange Commission on March 28, 2022).

10.10+ Amended and Restated Employment Agreement, by and between the Registrant and Eric Siemers, M.D.

(incorporated by reference to Exhibit 10.9 to the Company’s Annual Report on Form 10-K (File No.

001-40551), filed with the Securities and Exchange Commission on March 28, 2022).

10.11* Lease Agreement, by and between the Registrant and Price-Poore House, LLC, dated September 28, 2022.

10.12* Lease Agreement, by and between the Registrant and Price-Poore House, LLC, dated December 1, 2022.

23.1* Consent of Ernst & Young LLP, independent registered accounting firm.

6 unchanged sentences

Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

Inline XBRL Instance Document

Inline XBRL Taxonomy Extension Schema Document

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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.

† 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.

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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.

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniel O’Connell, William Matthew Zuga and Derek Meisner, 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.

/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)

Signature Title Date

/s/ Daniel O’Connell Chief Executive Officer and Director March 27, 2023

Daniel O’Connell (Principal Executive Officer)

/s/ William Matthew Zuga Chief Financial Officer and Chief Business Officer March 27, 2023

William Matthew Zuga (Principal Financial Officer and Principal Accounting

/s/ Kimberlee C.

Drapkin Director March 27, 2023

/s/ Nathan B.

March 28, 2022

Fountain Director March 27, 2023

Fountain, M.D.

/s/ Jeffrey L.

March 28, 2022

/s/ Sean Stalfort

March 28, 2022

Ives Director March 27, 2023

/s/ Derrell D.

Porter Director March 27, 2023

/s/ Sean Stalfort Director March 27, 2023

Sean Stalfort

/s/ Laura Stoppel

March 28, 2022

/s/ Laura Stoppel Director March 27, 2023

Laura Stoppel, PhD

/s/ Jeffrey Sevigny

March 28, 2022

Jeffrey Sevigny, M.D.

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures