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Item 9A. Controls and Procedures

2023-03-15 compared with 2022-03-14 · 91 added, 102 removed, 130 unchanged (60% of the section changed)

4 unchanged sentences

Evaluation of Disclosure Controls and Procedures

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

Our management, with the participation of our co-Chief Executive Officers and Chief Financial Officer, evaluated, as of the end of the period covered by this Annual Report, 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, or the Exchange Act) as required by paragraph (b) of Rule 13a-15 or Rule 15d-15 of the Exchange Act.

Based on this evaluation and as a result of the material weaknesses described below, our co-Chief Executive Officers and Chief Financial Officer concluded that, as of December 31, 2021, our disclosure controls and procedures were not effective at the reasonable assurance level.

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated, as of the end of the period covered by this Annual Report, 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 (the “Exchange Act”)) as required by Rules 13a-15(b) and 15d-15(b) of the Exchange Act.

Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2022, our disclosure controls and procedures were ineffective, due to the material weaknesses described below.

However, after giving full consideration to these material weaknesses, and the additional analyses and other procedures that we performed to ensure that our consolidated financial statements included in this Annual Report were prepared in accordance with U.S.

GAAP, our management has concluded that our consolidated financial statements included in this Annual Report fairly present, in all material respects, our financial position, results of operations, and cash flows for the periods presented.

Management’s Report on Internal Control over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act).

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, conducted an assessment of the effectiveness of our internal control over financial reporting based on the criteria set forth in the Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Based on the assessment, management concluded that our internal control over financial reporting was ineffective as of December 31, 2022, due to the material weaknesses described below.

Material Weaknesses in Internal Control over Financial Reporting

A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of a company’s annual and interim financial statements will not be detected or prevented on a timely basis.

In connection with the preparation and audit of our financial statements, we identified certain control deficiencies in the design and operation of our internal control over financial reporting that constituted material weaknesses.

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

In connection with the preparation and audit of our financial statements for the year ended December 31, 2020, we identified certain control deficiencies in the design and operation of our internal control over financial reporting that constituted material weaknesses.

The material weaknesses are:

▪ We did not design and maintain an effective control environment commensurate with our financial reporting requirements.

We lack a sufficient number of trained professionals with (i) an appropriate level of accounting knowledge, training and experience to appropriately analyze, record and disclose accounting matters timely and accurately, and (ii) an appropriate level of knowledge and experience to establish effective processes and controls.

Additionally, the limited personnel also resulted in an inability to consistently establish appropriate authorities and responsibilities in pursuit of financial reporting objectives, as demonstrated by, among other things, insufficient segregation of duties in our finance and accounting functions.

We lacked a sufficient number of trained professionals with (i) an appropriate level of accounting knowledge, training and experience to appropriately analyze, record and disclose accounting matters timely and accurately, and (ii) an appropriate level of knowledge and experience to establish effective processes and controls.

Additionally, the limited personnel resulted in an inability to consistently establish appropriate authorities and responsibilities in pursuit of financial reporting objectives, as demonstrated by, among other things, insufficient segregation of duties in our finance and accounting functions.

The material weakness in the control environment contributed to the following additional material weaknesses:

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• computer operations controls to ensure that data backups are authorized and monitored.

These material weaknesses resulted in immaterial audit adjustments to the research and development expense and property and equipment line items in our financial statements and related disclosures for the years ended December 31, 2020 and 2019, the general and administrative expense line item and within current liabilities in our consolidated financial statements and related disclosures for the year ended December 31, 2021, and a revision to our consolidated condensed financial statements for the period ended March 31, 2021 to reclassify certain costs within operating expenses from research and development expense to other warrant expense.

These material weaknesses resulted in a revision to our consolidated condensed financial statements for the period ended March 31, 2021 to reclassify certain costs within operating expenses from research and development expense to other warrant expense and immaterial errors to our previously issued consolidated financial statements which were corrected in the consolidated financial statements as of and for the year ended December 31, 2022.

Additionally, each of these material weaknesses could result in a misstatement of substantially all of our accounts or disclosures that would result in a material misstatement to the annual or interim financial statements that would not be prevented or detected.

Remediation Measures

We are taking the necessary steps to remediate the material weaknesses to comply with Section 404(a) of Sarbanes-Oxley Act.

Management, with the participation of the Audit Committee and the Board of Directors, is engaged in remedial activities to address the material weaknesses described above.

We are taking the steps we believe are necessary to remediate these material weaknesses to comply with the rules and regulations of the SEC regarding compliance with Section 404(a) of the Sarbanes-Oxley Act.

Management, with the participation of the Audit Committee and the Board of Directors, is engaged in remediation activities to address the material weaknesses described above.

Those remediation measures are ongoing and include the following:

▪ We have prepared a remediation plan for each of the material weaknesses and intend to train process owners, develop new controls, enhance existing controls, evaluate process adoption, and monitor results;

▪ We have recently hired and plan to continue to hire in 2022, additional accounting, human resources and payroll, and IT personnel to bolster our accounting and IT capabilities and capacity, and to establish and maintain our internal controls;

▪ We designed and continue to implement controls to formalize roles and review responsibilities that align with our team’s skills and experience and designing and implementing formal controls over segregation of duties;

▪ We have engaged third-party professionals to assist management in designing and implementing a formal risk assessment process to identify and evaluate changes in our business and the impact on our internal controls;

▪ We are implementing formal processes, policies, and procedures supporting our financial close process, including establishing and reviewing thresholds for business performance reviews, formalizing procedures over the review of financial statements, and creation of standard balance sheet reconciliation templates and journal entry controls;

▪ We prepared a remediation plan for each of the material weaknesses and trained process owners, developed new controls, enhanced existing controls and evaluated process adoption, and are monitoring results;

▪ We hired a new Chief Financial Officer in February 2022 and have hired and plan to continue to hire additional accounting, human resources and payroll, and IT personnel to bolster our accounting and IT capabilities and capacity, and to establish and maintain our internal controls;

▪ We have implemented and continue to implement controls to formalize roles and review responsibilities that align with our team’s skills and experience and to ensure segregation of duties;

▪ We engaged third-party professionals to design and implement a formal risk assessment process and identified and evaluated changes in our internal controls;

▪ We have implemented formal processes, policies, and procedures supporting our financial close process, including establishing and reviewing thresholds for business performance reviews, formalizing procedures over the review of financial statements, and creation of standard balance sheet reconciliation templates and journal entry controls;

▪ We continue to design and implement IT general controls, including controls over the review and updating of user access rights and privileges and implementing more robust IT policies and procedures over change management, data backup authorization and computer operations;

▪ We implemented a new enterprise resource planning (“ERP”) system in February 2023 that is expected to be capable of automating some of our manual financial reporting processes, enhancing our information technology control environment, and mitigating some of the internal control gaps and limitations that cannot be addressed by our current system.

We believe we are making progress toward achieving the effectiveness of our internal control over financial reporting and disclosure controls and procedures.

The actions that we are taking are subject to ongoing senior management review, as well as Audit Committee oversight.

We will not be able to conclude whether the steps we are taking will fully remediate these material weaknesses in our internal control over financial reporting until we have completed our remediation efforts and subsequent evaluation of their effectiveness.

We may also conclude that additional measures may be required to remediate the material weaknesses in our internal control over financial reporting, which may necessitate additional implementation and evaluation time.

We will continue to assess the effectiveness of our internal control over financial reporting and take steps to remediate the known material weaknesses expeditiously.

Management’s Report on Internal Control over Financial Reporting

This Annual Report does not include a report of management’s assessment regarding our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) as allowed by the SEC for reverse acquisitions between an issuer and a private operating company when it is not possible to conduct an assessment of the private operating company’s internal control over financial reporting in the period between the consummation date of the reverse acquisition and the date of management’s assessment of internal control over financial reporting (pursuant to Section 215.02 of the SEC Division of Corporation Finance’s Regulation S-K Compliance & Disclosure Interpretations).

As discussed elsewhere in this report, we completed a business combination of Archer Aviation, Inc., Atlas, and Artemis Acquisition Sub Inc.

on September 16, 2021, pursuant to which was effected by the merger of Archer Aviation, Inc.

and Artemis Acquisition Sub, Inc.

Prior to the merger, we were a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses.

As a result, previously existing internal controls are no longer applicable or comprehensive enough as of the assessment date as our operations prior to the merger were insignificant compared to those of the consolidated entity post-merger.

The design of our internal control over financial reporting following the merger has required and will continue to require significant time and resources from management and other personnel.

If management were to conduct an assessment regarding our internal control over financial reporting, however, its scope would include the criteria set forth by the Internal Control Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Changes in Internal Control Over Financial Reporting

We are taking actions to remediate the material weaknesses relating to our internal control over financial reporting.

Except as otherwise described above, 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) during the quarter ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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) during the quarter ended December 31, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Other Information

Lease Agreement with SIR Properties Trust

On March 9, 2022, we entered into a lease agreement with SIR Properties Trust.

The lease is for approximately 68,000 rentable square feet of building space in the building located at 77 Rio Robles, San Jose, California.

Archer intends that the premises will be used for lab space and a low rate initial production facility.

The term of the lease commences 210 days after the landlord delivers possession of the premises to us, subject to certain demolition work being completed, and will expire 90 months thereafter, with an option for us to extend the term for one additional five-year period.

Base rent payments due under the lease are expected to be approximately $15 million in the aggregate over the term of the lease.

We are also responsible for certain other costs under the lease, such as certain build-out expenses, operating expenses, taxes, assessments, insurance, and utilities.

However, the lease does require that the landlord shall provide us with an allowance that may be applied against certain of our build-out and moving expenses.

The foregoing summary of key terms of the lease does not purport to be complete and is subject to, and qualified in its entirety by, the complete text of the lease, a copy of which we expect to file with our Quarterly Report on Form 10-Q for the quarterly period ending March 31, 2022.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

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Directors, Executive Officers and Corporate Governance

The information required by this item is incorporated herein by reference to our Proxy Statement with respect to our 2022 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the end of the fiscal year covered by this Annual Report.

The information required by this item is incorporated herein by reference to our Proxy Statement with respect to our 2023 Annual Meeting of Stockholders (the “2023 Proxy Statement”) to be filed with the SEC within 120 days of the end of the fiscal year covered by this Annual Report.

Executive Compensation

The information required by this item is incorporated herein by reference to our 2023 Proxy Statement, and is incorporated herein by reference.

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

The information required by this item is incorporated herein by reference to our 2023 Proxy Statement, and is incorporated herein by reference.

Certain Relationships and Related Transactions, and Director Independence

The information required by this item is incorporated herein by reference to our 2023 Proxy Statement, and is incorporated herein by reference.

Principal Accountant Fees and Services

The information required by this item is incorporated herein by reference to our 2023 Proxy Statement, and is incorporated herein by reference.

Exhibits and Financial Statement Schedules

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2.1†† Amended and Restated Business Combination Agreement, dated as of July 29, 2021, by and among Atlas Crest Investment Corp., Artemis Acquisition Sub Inc.

and Archer Aviation Inc.

(incorporated by reference to Exhibit 2.1 to Form 8-K (File No.

and Archer (incorporated by reference to Exhibit 2.1 to Form 8-K (File No.

001-39668), filed July 29, 2021)

3.1 Amended and Restated Certificate of Incorporation of Archer Aviation Inc.

( incorporated by reference to Exhibit 3.1 to Form 8-K (File No.

001-39668), filed September 22, 2021 )

3.2 Amended and Restated Bylaws of Archer Aviation Inc.

( incorporated by reference to Exhibit 3.2 to Form 8-K (File No.

3.1 Amended and Restated Certificate of Incorporation of Archer ( incorporated by reference to Exhibit 3.1 to Form 8-K (File No.

001-39668), filed September 22, 2021 )

4.1* Description of Archer Aviation Inc.’s Securities

4.2 Warrant Agreement, dated October 27, 2020, by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent (incorporated by reference to Exhibit 4.1 to Form 8-K (File No.

3.2 Amended and Restated Bylaws of Archer ( incorporated by reference to Exhibit 3.

1 to Form 8-K (File No.

001-39668), filed February 7, 2023 )

4.1* Description of Archer’s Securities

4.2 Warrant Agreement, dated October 27, 2020, by and between Legacy Archer and Continental Stock Transfer & Trust Company, as warrant agent (incorporated by reference to Exhibit 4.1 to Form 8-K (File No.

001-39668), filed November 2, 202 0 )

1 unchanged sentence

001-39668), filed February 10, 2021)

10.2 Amended and Restated Sponsor Letter Agreement, dated as of July 29, 2021, by and among Atlas Crest Investment Corp., Atlas Crest Investment LLC, Archer Aviation Inc., and the individuals named therein (incorporated by reference to Exhibit 10.1B to Registration Statement on Form S-4 (File No.

10.2 Amended and Restated Sponsor Letter Agreement, dated as of July 29, 2021, by and among Atlas Crest Investment Corp., Atlas Crest Investment LLC, Leg acy Archer , and the individuals named therein (incorporated by reference to Annex D-2 to Registration Statement on Form S-4 (File No.

333-254007), filed August 3, 2021)

5 unchanged sentences

001-39668), filed September 22, 2021)

10.6† Archer 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.8 to Form 8-K (File No.

001-39668), filed September 22, 2021)

10.6† Archer Amended and Restated 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to Form 8-K (File No.

001-39668), filed June 15, 2022)

10.7† Form of Stock Option Grant Package under Archer 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.9 to Form 8-K (File No.

4 unchanged sentences

001-39668), filed September 22, 2021 )

10.10† Offer Letter, dated September 16, 2021, by and between the Company and Brett Adcock (incorporated by reference to Exhibit 10.12 to Form 8-K (File No.

001-39668), filed September 22, 2021)

Exhibit Description

10.11† Offer Letter, dated September 16, 2021, by and between the Company and Adam Goldstein (incorporated by reference to Exhibit 10.13 to Form 8-K (File No.

001-39668), filed September 22, 2021)

10.12† Offer Letter, dated November 19, 2019, by and between the Company and Tom Muniz (incorporated by reference to Exhibit 10.19 to Registration Statement on Form S-4 (File No.

10.10† Archer Director Equity Deferral Plan (incorporated by reference to Exhibit 10.2 to Form 10-Q (File No.

001-39668), filed August 10, 2022)

10.13† Offer Letter, dated June 24, 2021, by and between the Company and Ben Lu (incorporated by reference to Exhibit 10.18 to Registration Statement on Form S-4 (File No.

Exhibit Description

10.11† Form of Irrevocable Deferral Election under Archer Director Equity Deferral Plan (incorporated by reference to Exhibit 10.

3 to Form 10-Q (File No.

001-39668), filed August 10, 2022)

10.14† Offer Letter, dated May 5.

2021, by and between the Company and Andy Missan (incorporated by reference to Exhibit 10.17 to Registration Statement on Form S-4 (File No.

10.12† Offer Letter, dated September 16, 2021, by and between Archer and Brett Adcock (incorporated by reference to Exhibit 10.12 to Form 8-K (File No.

001-39668), filed September 22, 2021)

10.13† Separation Agreement of Brett Adcock, dated April 28, 2022 (incorporated by reference to Exhibit 10.1 to Form 8-K (File No.

001-39668) filed April 29, 2022)

10.14† Offer Letter, dated September 16, 2021, by and between Archer and Adam Goldstein (incorporated by reference to Exhibit 10.13 to Form 8-K (File No.

001-39668), filed September 22, 2021)

10.15† Offer Letter, dated November 19, 2019, by and between Legacy Archer and Tom Muniz (incorporated by reference to Exhibit 10.19 to Registration Statement on Form S-4 (File No.

333-254007) filed August 10, 2021)

10.16† Offer Letter, dated January 16, 2022, by and between Mark Mesler and Archer (incorporated by reference to Exhibit 10.4 to Form 10-Q (File No.

001-39668) filed May 12, 2022)

10.17†* Offer Letter, dated May 28, 2021, by and between Tosha Perkins and Archer

10.18 Sublease Agreement, dated July 1, 2020, by and between Aurora Innovation, Inc.

and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.12 to Registration Statement on S-4 (File No.

and Le gacy Arc her (incorporated by reference to Exhibit 10.12 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.19 Lease Agreement, dated December 11, 2020, by and between Jack Dymond Lathing Co.

and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.13 to Registration Statement on S-4 (File No.

and Legacy Archer (incorporated by reference to Exhibit 10.13 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.17 Sublease Agreement, dated March 1, 2020, by and between Delta Mike Enterprises, LLC and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.14 to Registration Statement on S-4 (File No.

10.20 Sublease Agreement, dated March 1, 2020, by and between Delta Mike Enterprises, LLC and Legacy Archer (incorporated by reference to Exhibit 10.14 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.18 Lease Agreement, dated April 14, 2021, by and between NC Investments, LLC and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.15 to Registration Statement on S-4 (File No.

10.21 Lease Agreement, dated April 14, 2021, by and between NC Investments, LLC and Legacy Archer (incorporated by reference to Exhibit 10.15 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.22†† Sublease Agreement, dated January 14, 2022, between Fo r e scout Technologies, Inc.

and Archer (incorporated by reference to Exhibit 10.2 to Form 10-Q (File No.

001-39668) filed May 12, 2022)

10.23†† Lease Agreement, dated March 9, 2022, between SIR Properties Trust and Archer (incorporated by reference to Exhibit 10.5 to Form 10-Q (File No.

001-39668) filed May 12, 2022)

10.24 Storage/R&D Space License Agreement, dated March 15, 2021, by and between J.V.

Lewis Enterprises, Inc.

and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.16 to Registration Statement on S-4 (File No.

and Legacy Archer (incorporated by reference to Exhibit 10.16 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.20 Warrant to Purchase Shares, dated as of November 6, 2020, by and among FCA US LLC and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.8 to Registration Statement on S-4 (File No.

10.25 Warrant to Purchase Shares, dated as of November 6, 2020, by and among FCA US LLC and Legacy Archer (incorporated by reference to Exhibit 10.8 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.26 Warrant to Purchase Shares, dated as of January 29, 2021, by and among United Airlines, Inc.

and Archer Aviation Inc.

and Archer ( incorporated by reference to Exhibit 10.21 to Form 10-K (File No.

001-39668), filed March 14, 2022)

10.27 Amendment No.

1 to Warrant to Purchase Shares, dated August 9, 2022, by and among United Airlines, Inc.

and Archer (incorporated by reference to Exhibit 10.1 to form 10-Q (File No.

001-39668), filed November 10, 202 2 )

10.28 Warrant to Purchase Shares, dated as of February 26, 2021, by and among Mesa Air Group, Inc.

and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.9 to Registration Statement on S-4 (File No.

and Legacy Archer (incorporated by reference to Exhibit 10.

11 to Registration Statement on S-4 (File No.

333-254007), filed August 10, 2021)

10.29 Warrant to Purchase Shares, dated as of July 19, 2021, by and between FCA Italy, S.p.A.

and Archer Aviation Inc.

and Legacy Archer (in corporated by reference to Exhibit 10.23 to Form 10-K (File No.

001-39668), filed March 14, 2022)

10.30 Form of Subscription Agreement ( incorporated by reference to Exhibit 10.2 to Form 8-K (File No.

001-39668), filed February 10, 2021 )

10.25 Amended and Restated Registration Rights Agreement, by and between the Company and certain stockholders, dated September 16, 2021 (incorporated by reference to Exhibit 10.2 to Form 8-K (File No.

10.31 Amended and Restated Registration Rights Agreement, by and between Archer and certain stockholders, dated September 16, 2021 (incorporated by reference to Exhibit 10.2 to Form 8-K (File No.

001-39668), filed September 22, 2021)

10.26 Loan and Security Agreement, dated July 9, 2021, by and among Silicon Valley Bank, in its capacity as administrative agent and collateral agent, Silicon Valley Bank and SVB Innovation Credit Fund VIII, L.P., as lenders, and Archer Aviation Inc.

(incorporated by reference to Exhibit 10.10 to Registration Statement on Form S-4 (File No.

Exhibit Description

10.32 Loan and Security Agreement, dated July 9, 2021, by and among Silicon Valley Bank, in its capacity as administrative agent and collateral agent, Silicon Valley Bank and SVB Innovation Credit Fund VIII, L.P., as lenders, and Legacy Archer (incorporated by reference to Exhibit 10.10 to Registration Statement on Form S-4 (File No.

333-254007), filed August 3, 2021)

1 unchanged sentence

001-39668), filed September 22, 2021)

10.28 Form of Transaction Support Agreement (incorporated by reference to Exhibit 10.2 to Registration Statement on Form S-4 (File No.

10.34† Form of Change in Control and Severance Agreement (incorporated by reference to Exhibit 10.1 to Form 10-Q (File No.

001-39668) filed May 12, 2022)

10.35 Form of Transaction Support Agreement (incorporated by reference to Annex E to Registration Statement on Form S-4 (File No.

333-254007), filed March 8, 2021)

21.1 List of Subsidiaries (incorporated by reference to Exhibit 21.1 to Form 8-K (File No.

001-39668), filed September 22, 2021)

21.1* List of Subsidiaries

23.1* Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm

1 unchanged sentence

31.1* Certification of Principal Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Exchange Act, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

Exhibit Description

31.2* Certification of Principal Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Exchange Act, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.3* Certification of Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Exchange Act, 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

31.2* Certification of Principal Finan cial Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Exchange Act, 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.

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Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

101.INS* XBRL Instance Document

101.SCH* XBRL Taxonomy Extension Schema Document

101.CAL* XBRL Taxonomy Extension Calculation Linkbase Document

101.DEF* XBRL Taxonomy Extension Definition Linkbase Document

101.LAB* XBRL Taxonomy Extension Label Linkbase Document

101.PRE* XBRL Taxonomy Extension Presentation Linkbase Document

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 (formatted as Inline XBRL and contained in Exhibit 101)

5 unchanged sentences

# This certification is deemed not filed for purpose of section 18 of the Exchange Act or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.

Reference is made to Item 15(a) 2 above.

Form 10-K Summary

Not applicable.

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized.

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below constitutes and appoints Brett Adcock, Adam Goldstein and Mark Mesler, and each of them, as his or her true and lawful attorneys-in-fact, proxies and agents, each 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 any and all amendments to this report and to file the same, with any exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact, proxies and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, proxies and agents, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof.

KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below constitutes and appoints Adam Goldstein and Mark Mesler, and each of them, as his or her true and lawful attorneys-in-fact, proxies and agents, each 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 any and all amendments to this report and to file the same, with any exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact, proxies and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, proxies and agents, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Annual Report has been signed by the following persons in the capacities and on the dates indicated:

/s/ Brett Adcock

Co-Chief Executive Officer and Co-Chairman of the Board of Directors

( Principal Co-Executive Officer )

March 14, 2022

/s/ Adam Goldstein Co-Chief Executive Officer and Co-Chairman of the Board of Directors

( Principal Co-Executive Officer )

/s/ Adam Goldstein Chief Executive Officer and Director

( Principal Executive Officer )

March 15, 2023

19 unchanged sentences

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