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Item 9A. Controls and Procedures

2024-03-28 compared with 2023-03-30 · 60 added, 35 removed, 160 unchanged (37% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

Our management, with the participation and supervision of our Chief Executive Officer and our Chief Financial Officer, have evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act as of the end of the period covered by this Annual Report on Form 10-K.

Our disclosure controls and procedures are designed to ensure that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Based on such evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that our disclosure controls and procedures were not effective because of the material weaknesses in internal controls over financial reporting identified during the year ended December 31, 2021 that have not been remediated as of December 31, 2022.

Based on additional procedures and post-closing review, management concluded that the financial statements included in this Annual Report on Form 10-K present fairly, in all material respects, our consolidated financial position, consolidated results of operations, and consolidated cash flows for the periods presented, in conformity with accounting principles generally accepted in the United States.

Remediation plan for material weaknesses

Our management identified material weaknesses in our internal controls over financial reporting during the years ended December 31, 2022 and 2021.

Those material weaknesses pertained to (i) inadequate design and maintenance of effective internal controls over our financial reporting and close process, which specifically relate to the inadequate controls on our review, analysis and approval of journal entries, and review of monthly financial statements;

and (ii) lack of segregation of duties.

Our management performed the following remediation efforts, which are in progress as of December 31, 2022:

• increased the size of our accounting team by hiring permanent employees for key roles to allow for improved segregation of duties;

• enhanced and improved our monthly close process, including establishing a close schedule and close checklists, implementing review and reconciliation processes including performing detailed review and validation of journal entries, and implementing software to assist with financial reporting;

• engaged an external specialist to assist in performing a risk assessment to identify key areas for improvement in accounting and financial reporting.

Our management believes that the remediation efforts described above will enable us to address the material weaknesses that were identified in a timely manner, maintain a properly designed and effective system of internal controls over financial reporting, and provide appropriate segregation of duties.

Our remediation efforts are in progress as of December 31, 2022.

Our management, with the participation and supervision of our Chief Executive Officer (“CEO”) and our Chief Financial Officer (“CFO”), have evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this Annual Report on Form 10-K.

Our disclosure controls and procedures are designed to ensure that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our CEO and our CFO, as appropriate, to allow timely decisions regarding required disclosure.

Based on such evaluation, our CEO and our CFO have concluded that our disclosure controls and procedures were not effective because of our previously identified material weaknesses in internal controls over financial reporting, as described further below, that have not been remediated as of December 31, 2023.

However, based on additional procedures and post-closing review that we performed, management concluded that the consolidated financial statements included in this Annual Report on Form 10-K present fairly, in all material respects, our consolidated financial position, consolidated results of operations, and consolidated cash flows as of and for the years presented, in conformity with U.S.

Management’s Annual 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-13(f) and 15d-15(f) under the Exchange Act.

Our management, with the participation of our CEO and CFO, had assessed the effectiveness of our internal control over financial reporting as of December 31, 2023 based on the 2013 framework established in the “Internal Control-Integrated Framework,” issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Based on such assessment, management has concluded that our internal control over financial reporting was not effective as of December 31, 2023 because of our previously identified material weaknesses that have not been remediated as of December 31, 2023.

Those previously identified material weaknesses pertained to (i) inadequate design and maintenance of internal controls over our financial reporting and close activities, and (ii) inadequate segregation of duties.

More specifically, the material weaknesses were attributed to our inadequate controls on our implementation, use and monitoring of certain new application systems that were implemented during the current year, which resulted in inadequate review of certain transactions.

This Annual Report on Form 10-K does not include an auditor attestation of our internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act because of our status as an “emerging growth company.”

Remediation Plan for Previously Identified Material Weaknesses

Our management is in the process of implementing the following:

• Enhancing our control activities on our application systems by removing any inappropriate level of access of our employees, periodically reviewing their access, documenting our review of their access, and ensuring that no one from the accounting and finance department can add or modify users in those application systems;

• Continuing to enhance our internal controls over the recording of transactions entered into our accounting system, whether automated or manually entered, by ensuring that they are properly reviewed and approved by the appropriate level of personnel;

• Engaging external specialists to assist us in reviewing, testing and monitoring our existing internal controls on a periodic basis, and assist us in designing and implementing new internal controls when a new process is implemented, such as an implementation of a relevant application system.

Our management believes that the remediation efforts described above will enable us to address the material weaknesses in a timely manner, maintain a properly designed and effective system of internal controls over financial reporting, and provide appropriate segregation of duties.

Our remediation efforts are in progress.

We will not be able to demonstrate that the material weaknesses have been fully remediated, or that our controls are operating effectively, until we complete our remediation efforts.

We will continue to evaluate the effectiveness of our internal control over financial reporting and will continue to make changes that we believe will strengthen our internal control over financial reporting to ensure that our financial statements continue to be fairly stated in all material respects.

Management’s report on internal control over financial reporting

As discussed elsewhere in this Annual Report on Form 10-K, we completed the Business Combination on September 14, 2022 pursuant to which we acquired Legacy Amprius.

Prior to the Business Combination, we were a special purpose acquisition company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses, and were not required to maintain an effective system of internal controls.

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 Business Combination were insignificant compared to those of the consolidated entity post-Business Combination.

The design of internal control over financial reporting for the

We will continue to evaluate the effectiveness of our internal control over financial

Index to Consolidated Financial Statements

Company post-Business Combination has required and will continue to require significant time and resources from management and other personnel.

As a result, management was unable, without incurring unreasonable effort or expense, to conduct an assessment of our internal control over financial reporting as of December 31, 2022.

Accordingly, we are excluding management's report on internal control over financial reporting pursuant to Section 215.02 of the SEC Division of Corporation Finance's Regulation S-K Compliance & Disclosure Interpretations.

reporting and will continue to make changes that we believe will strengthen our internal control over financial reporting to ensure that our financial statements continue to be fairly stated in all material respects.

Changes in Internal Control Over Financial Reporting

1 unchanged sentence

Inherent Limitation on the Effectiveness of Internal Control

Our management, including our Chief Executive Officer and our Chief Financial Officer, do not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud.

Our management, including our CEO and our CFO, do not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud.

A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.

7 unchanged sentences

Other Information

Rule 10b5-1 Trading Plans

On December 14, 2023 , Dr.

Constantin Ionel Stefan , our Chief Technology Officer , entered into a stock trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) (a “Rule 10b5-1 Plan”), which has an end date of February 20, 2025.

Stefan’s Rule 10b5-1 Plan provides for the potential sale of up to 617,949 shares of our common stock.

On September 15, 2023 , Dr.

Kang Sun , our Chief Executive Officer , entered into a Rule 10b5-1 Plan, which has an end date of December 19, 2024.

Sun’s Rule 10b5-1 Plan provides for the potential exercise of stock options and the associated sale of up to 1,078,475 shares of our common stock.

On May 12, 2023 , Jonathan Bornstein , our President of Amprius Lab , entered into a Rule 10b5-1 Plan, which has an end date of December 19, 2024.

Bornstein’s Rule 10b5-1 Plan provides for the potential exercise of stock options and the associated sale of up to 2,183,851 shares of our common stock.

During our last fiscal quarter, no other director or officer, as defined in Rule 16a-1(f), adopted or terminated a “Rule 10b5-1 trading arrangement” or a “non-Rule 10b5-1 trading arrangement,” each as defined in Regulation S-K Item 408.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

49 unchanged sentences

4.6 Description of Capital Stock

10.1 Registration Rights Agreement, dated as of September 14, 2022, by and among the Company and the persons named therein

10.1 Registration Rights Agreement, dated September 14, 2022, by and among Amprius Technologies, Inc., Amprius, Inc.

and the Original Holder

Form 8-K File No.

29 unchanged sentences

Index to Consolidated Financial Statements

Incorporated by Reference

Exhibit Number Description Form File No.

Exhibit Number Filing

Date Filed Herewith

10.10# Amprius Technologies, Inc.

6 unchanged sentences

001-41314 10.11 September 16, 2022

10.12 Registration Rights Agreement, dated September 27, 2022, by and between the Company and BRPC II

Form 8-K File No.

001-41314 10.2 September 27, 2022

10.13† Common Stock Purchase Agreement, dated September 27, 2022, by and between the Company and BRPC II

10.12 At Market Issuance Sales Agreement, dated October 2, 2023, by and among the registrant, B.

Riley Securities, Inc., Cantor Fitzgerald & Co.

Wainwright & Co., LLC

1.2 October 2, 2023

Exclusive Supply Agreement dated November 28, 2023, by and between the Company and Berzelius (Nanjing) Co.

Form 8-K File No.

001-41314 10.1 September 27, 2022

001-41314 10.1 January 16, 2024

Lease, dated January 30, 2019, by and between Los Altos Fields, LLC and Amprius, Inc.

6 unchanged sentences

10.16 First Amendment to Lease Agreement, dated January 4, 2023, between the Company and Los Altos Fields, LLC

Form10-K File No.

001-41314 10.16 March 30, 2023

10.17 Lease Agreement, dated April 15, 2023, by and between Amprius Technologies, Inc.

and Starboard Platform Brighton JV LLC

Form 8-K File No.

001-41314 10.1 April 19, 2023

10.18 Form of PIPE Subscription Agreement

4 unchanged sentences

001-41314 16.1 September 16, 2022

16.2 Letter from SingerLewak LLP to the Securities and Exchange Commission, dated September 16, 2022

16.2 Letter from SingerLewak LLP to the Securities and Exchange Commission

Form 8-K File No.

001-41314 16.2 September 16, 2022

21.1 List of Subsidiaries

23.1 Consent of BDO USA, LLP

23.2 Consent of SingerLewak LLP

21.1 List of Significant Subsidiaries

23.1 Consent of BDO USA, P.C.

24.1 Power of Attorney (included in the signature page to this Annual Report on Form 10-K)

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

4 unchanged sentences

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

97.1 C ompensation Recovery Policy

101.INS Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document.

5 unchanged sentences

104 Cover Page Interactive Data File (embedded within the Inline XBRL document) X

* These certifications furnished in Exhibit 32.1 and 32.2 hereto are deemed to accompany this Annual Report on Form 10-K and are not deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, nor shall they be deemed incorporated by reference into any filing under the Securities Act of the Exchange Act.

* These certifications furnished in Exhibits 32.1 and 32.2 hereto are deemed to accompany this Annual Report on Form 10-K and are not deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, nor shall they be deemed incorporated by reference into any filing under the Securities Act of the Exchange Act.

† Certain schedules and exhibits have been omitted in accordance with Regulation S-K Item 601(a)(5).

A copy of any omitted schedule or exhibit will be finished to the SEC upon request.

Index to Consolidated Financial Statements

# Indicates management contract or compensatory plan.

17 unchanged sentences

Dixon Director March 28, 2024

/s/ Kathleen Ann Bayless Director March 28, 2024

Kathleen Ann Bayless

Steven Chu Director March 28, 2024

/s/ Mary Gustanski Director March 28, 2024

Mary Gustanski

Wen Hsieh Director March 28, 2024

1 unchanged sentence

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