What changed in this filing

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Item 9A. Controls and Procedures

2024-03-07 compared with 2023-03-16 · 56 added, 93 removed, 162 unchanged (48% of the section changed)

1 unchanged sentence

(a) Evaluation of Disclosure Controls and Procedures .

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports that we file or submit under the Securities Exchange Act of 1934, as amended, or the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to our management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

As of December 31, 2023, 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 Exchange Act).

Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives, and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

In May 2022, we began the implementation of a new enterprise resource planning, or the ERP system.

As part of the implementation plan, management has considered the impact of the new ERP system on its operations and internal controls structure.

During the quarter ended September 30, 2022, management performed assessments of the conversion, including an analysis to determine if the access and privileges granted to users were appropriately segregated.

As a result of these assessments, we identified the following control deficiencies:

we did not design and implement effective user access controls to adequately restrict user access and the ability to modify financial data within the ERP system;

we did not design and implement effective change management controls to monitor the appropriateness of changes made to the configurations of automated controls during the implementation period and the initial launch support.

These control deficiencies did not result in a known misstatement of the Company’s interim financial statements.

However, these control deficiencies could have resulted in material misstatements in our interim financial statements and disclosures, which then may not have been prevented or detected.

Therefore, management has concluded that these control deficiencies in aggregate constituted a material weakness in our control over financial reporting.

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 order to remediate the identified material weakness and enhance our internal controls, during the year ended December 31, 2022, we adjusted access and privileges to provide for appropriate segregation of duties in the performance of internal controls over financial reporting.

We also designed and implemented monitoring controls to detect changes within the system, which would impact financial reporting.

As a result of these steps, management concluded that the material weakness was remediated as of December 31, 2022.

Consequently, management, including our principal executive officer and principal financial officer, concluded that the Consolidated Financial Statements included in this Annual Report on Form 10-K were prepared in accordance with U.S.

GAAP and fairly present in all material respects the Company’s financial condition, results of operations and cash flow for the periods presented.

Based on such evaluation and the remediation of the material weakness, our principal executive officer and principal financial officer have concluded that, as of December 31, 2022, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to our management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

(b) Management’s Report on Internal Control over Financial Reporting .

The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting.

Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, as a process designed by, or under the supervision of, the Company’s principal executive and principal financial officers and effected by the Company’s board of directors, management and other personnel 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.

The Company’s internal control over financial reporting includes those policies and procedures that:

Based on such evaluation, our principal executive officer and principal financial officer have concluded, that, as of December 31, 2023, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to our management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

(b) Management’s Report on Internal Control over Financial Reporting .

The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting.

Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, as a process designed by, or under the supervision of, the Company’s principal executive and principal financial officers and effected by the Company’s Board of Directors, management and other personnel 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.

The Company’s internal control over financial reporting includes those policies and procedures that:

• pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;

• provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company;

provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.

• provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.

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

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 the policies or procedures may deteriorate.

The Company’s management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2022.

The Company’s management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023.

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

Based on our assessment, management believes that, as of December 31, 2022, the Company’s internal control over financial reporting is effective based on those criteria.

Based on our assessment, management believes that, as of December 31, 2023, the Company’s internal control over financial reporting is effective based on those criteria.

Our independent registered public accounting firm has issued an audit report on our assessment of our internal control over financial reporting.

1 unchanged sentence

There were no changes in our internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15(d)-15(f) promulgated under the Exchange Act, identified in connection with the evaluation of such internal control that occurred during the fourth quarter of the last fiscal year that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting, other than those discussed in this Item 9A.

OTHER INFORMATION

Not applicable.

Rule 10b5-1 Trading Plans

During the fiscal quarter ended December 31, 2023 , none of our directors or executive officers adopted , modified or terminated any contract, instruction or written plan for the purchase or sale of our securities that was intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) or any “non-Rule 10b5-1 trading arrangement” as defined in Item 408(c) of Regulation S-K.

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS

1 unchanged sentence

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Management and Corporate Governance,”

“Delinquent Section 16(a) Reports,”

and “Code of Business Conduct and Ethics”

in the Company’s Proxy Statement for the 2023 Annual Meeting of Stockholders.

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Management and Corporate Governance,” “Delinquent Section 16(a) Reports,” and “Code of Business Conduct and Ethics” in the Company’s Proxy Statement for the 2024 Annual Meeting of Stockholders.

EXECUTIVE COMPENSATION

The response to this item is incorporated by reference from the discussion responsive thereto under the caption “Executive Officer and Director Compensation,”

“Compensation Discussion and Analysis,”

“Pay Versus Performance,”

“Management and Corporate Governance –

Compensation Committee Interlocks and Insider Participation,”

“Compensation Committee Report”

and “Risks Related to Compensation Practices and Policies”

in the Company’s Proxy Statement for the 2023 Annual Meeting of Stockholders.

The response to this item is incorporated by reference from the discussion responsive thereto under the caption “Executive and Director Compensation,” “Compensation Discussion and Analysis,” “Management and Corporate Governance – Compensation Committee Interlocks and Insider Participation,” "Compensation Committee Report" and “Risks Related to Compensation Practices and Policies” in the Company’s Proxy Statement for the 2024 Annual Meeting of Stockholders.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OW NERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Security Ownership of Certain Beneficial Owners and Management”

and “Equity Compensation Plan Information”

in the Company’s Proxy Statement for the 2023 Annual Meeting of Stockholders.

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Equity Compensation Plan Information” in the Company’s Proxy Statement for the 2024 Annual Meeting of Stockholders.

CERTAIN RELATIONSHIPS AND RELATE D TRANSACTIONS, AND DIRECTOR INDEPENDENCE

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Certain Relationships and Related Person Transactions”

and “Management and Corporate Governance”

in the Company’s Proxy Statement for the 2023 Annual Meeting of Stockholders.

The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Certain Relationships and Related Person Transactions” and “Management and Corporate Governance” in the Company’s Proxy Statement for the 2024 Annual Meeting of Stockholders.

PRINCIPAL ACCOU NTING FEES AND SERVICES

The response to this item is incorporated by reference from the discussion responsive thereto under the caption “Independent Registered Public Accounting Firm”

in the Company’s Proxy Statement for the 2023 Annual Meeting of Stockholders.

The response to this item is incorporated by reference from the discussion responsive thereto under the caption “Independent Registered Public Accounting Firm” in the Company’s Proxy Statement for the 2024 Annual Meeting of Stockholders.

EXHIBITS, FINANCIAL STATEMENT SCHEDULES

5 unchanged sentences

Consolidated Statements of Operations for the Years Ended December 31, 2023, 2022, and 2021

Consolidated Statements of Stockholders’

Equity for the Years Ended December 31, 2022, 2021 and 2020

Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2023, 2022 and 2021

Consolidated Statements of Cash Flows for the Years Ended December 31, 2023, 2022 and 2021

2 unchanged sentences

The following financial statements schedule is included in Part II, Item 8:

Schedule II –

Valuation and Qualifying Accounts

Schedule II – Valuation and Qualifying Accounts

All other financial statement schedules have not been included because they are not applicable or the information is included in the financial statements or notes thereto.

6 unchanged sentences

(Exhibit 3.2)

Restated Bylaws of Aspen Aerogels, Inc.

Certificate of Amendment to Restated Certificate of Incorporation of Aspen Aerogels, Inc., dated June 1, 2023.

(Exhibit 3.1)

Amended and Restated Bylaws of Aspen Aerogels, Inc.

Form of common stock certificate.

16 unchanged sentences

SEC File/Reg.

Form of 2013 incentive stock option agreement for options issued in exchange for the forfeiture of options granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.3)

Form of 2013 performance-based incentive stock option agreement granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.4)

Form of non-qualified stock option agreement granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.5)

Form of 2013 non-qualified stock option agreement for options issued in exchange for the forfeiture of options granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.6)

Form of 2013 performance-based non-qualified stock option agreement granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.7)

Form of 2013 independent director stock option agreement for options issued in exchange for the forfeiture of options granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.8)

Form of 2013 performance-based independent director stock option agreement granted under 2001 equity incentive plan, as amended.+

(Exhibit 10.1.9)

2014 employee, director and consultant equity incentive plan.

10 unchanged sentences

(Exhibit 10.2.3)

Multi-tenant industrial net lease, dated August 20, 2001, by and between the Registrant and Cabot II —

MA1M03, LLC (as successor landlord to TMT290 Industrial Park, Inc.), as amended.

Aspen Aerogels 2023 Equity Incentive Plan.

(Exhibit 10.1)

Form of Stock Option Agreement under the Aspen Aerogels 2023 Equity Incentive Plan.

(Exhibit 10.2)

Form of Restricted Stock Unit Agreement for Executive Officers under the Aspen Aerogels 2023 Equity Incentive Plan.

(Exhibit 10.3)

Form of Restricted Stock Agreement for Directors under the Aspen Aerogels 2023 Equity Incentive Plan.

(Exhibit 10.4)

Form of Director Stock Option Agreement under the Aspen Aerogels 2023 Equity Incentive Plan.

(Exhibit 10.5)

Multi-tenant industrial net lease, dated August 20, 2001, by and between the Registrant and Cabot II — MA1M03, LLC (as successor landlord to TMT290 Industrial Park, Inc.), as amended.

(Exhibit 10.3)

First Amendment to Lease, dated December 22, 2021, by and between the Registrant and G&I IX Forbes Whitney, LLC.

4 unchanged sentences

(Exhibit 10.1)

First Amendment, dated September 28, 2023, to the Loan Agreement, dated November 28, 2022, by and among the Company, Aspen Aerogels Georgia, LLC, Aspen Aerogels Rhode Island, LLC and General Motors Holdings LLC.

(Exhibit 10.2)

Executive Agreement, dated as of January 4, 2022, by and between the Registrant and Donald R.

(Exhibit 10.17.4)

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Ricardo C.

(Exhibit 10.18(3))

Exhibit Description

1 unchanged sentence

SEC File/Reg.

Form of executive agreement, dated as of January 4, 2022, by and between the Registrant and each of Messrs.

Fairbanks and Whitaker.

(Exhibit 10.18.1)

Separation Agreement, dated March 29, 2022, by and between the Registrant and John F.

(Exhibit 10.8)

Consulting Agreement, dated March 29, 2022, by and between the Registrant and John F.

(Exhibit 10.9)

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Ricardo C.

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Kelley Conte.+

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Gregg Landes.+

(Exhibit 10.18(5))

Executive Employment Agreement, dated March 25, 2022, by and between the Registrant and Virginia H.

(Exhibit 10.18(6))

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Keith Schilling.+

(Exhibit 10.18(7))

Executive Employment Agreement, dated January 1, 2023, by and between the Registrant and Corby Whitaker.+

Amendment No.

2 to Form S-1

(Exhibit 10.18(8))

Executive Employment Agreement, dated September 14, 2023, by and between the Registrant and Santhosh Daniel.+

(Exhibit 10.1)

Executive Employment Agreement, dated September 5, 2023, by and between the Registrant and Stephanie Pittman.+

(Exhibit 10.4)

Aspen Aerogels, Inc.

Bonus Plan (Amended and Restated Effective as of January 1, 2024).+

(Exhibit 10.3)

Form of participation letter of executive officers under bonus plan.

2 unchanged sentences

(Exhibit 10.13)

Compensation Recoupment Policy.

(Exhibit 10.25)

Cross license agreement dated as of April 1, 2006 by and between Cabot Corporation and the Registrant, as amended.*

10 unchanged sentences

(Exhibit 10.4)

Exhibit Description

Incorporated by

SEC File/Reg.

Securities Purchase Agreement, dated February 15, 2022, by and between the Registrant and Wood River Capital, LLC.

2 unchanged sentences

(Exhibit 10.2)

Sales Agreement, dated March 16, 2022, by and among the Registrant, Cowen and Company, LLC and Piper Sandler & Co.

(incorporated by reference to Exhibit 10.1 of the Registrant’s Form 8-K, filed on March 16, 2022).

Securities Purchase Agreement, dated as of December 19, 2023, by and among Aspen Aerogels, Inc.

and the investors identified on the signature pages thereto.

(Exhibit 10.1)

Exhibit Description

Incorporated by

SEC File/Reg.

Supply Agreement, dated February 3, 2021, by and between the registrant and Silbond Corporation.*

9 unchanged sentences

Code of Business Conduct and Ethics.

(Exhibit 14.1)

Subsidiaries of the Registrant.

3 unchanged sentences

Certifications of the principal executive officer and the principal financial officer under Section 906 of the Sarbanes-Oxley Act of 2002.

Compensation Recoupment Policy (Amended and Restated Effective June 1, 2023).

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

3 unchanged sentences

Inline XBRL Taxonomy Extension Label Linkbase Document.

Exhibit Description

Incorporated by

SEC File/Reg.

Inline XBRL Taxonomy Extension Presentation Linkbase Document.

17 unchanged sentences

Officer and Treasurer (principal

financial officer and principal

accounting officer)

financial officer)

March 7, 2024

/s/ Santhosh P.

Chief Accounting Officer (principal accounting officer)

March 7, 2024

/s/ William P.

9 unchanged sentences

March 7, 2024

/s/ Richard F.

March 16, 2023

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