Atomera Inc 10-K

Item 9A. Controls and Procedures (a) Evaluation of Disclosure Controls and Procedures . Our management maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in our periodic and current reports that we file with the SEC is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer (principal executive officer) and Chief Financial Officer) principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. 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. Our management, with the participation of our chief executive officer and chief financial officer, evaluated the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15(e) under the Exchange Act. Based upon that evaluation, our management, including our chief executive officer and chief financial officer, concluded that our disclosure controls and procedures were not effective as of December 31, 2024 because of the material weakness described below. Notwithstanding the identified material weakness, our management, including our Chief Executive Officer and Chief Financial Officer, has concluded that our consolidated financial statements included in this Annual Report on Form 10-K present fairly, in all material respects, our financial condition, results of operations and cash flows for the periods presented in conformity with generally accepted accounting principles. (b) Changes in internal control over financial reporting. There were no changes to our internal control over financial reporting, as defined in Rules 13a-15(f) under the Exchange Act that occurred during the quarter ended December 31, 2024 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. (c) Management’s report on internal controls over financial reporting. Our management is responsible for establishing and maintaining adequate internal controls over financial reporting, as defined under Rule 13a-15(f) under the Exchange Act. Our management has assessed the effectiveness of our internal controls over financial reporting (“ICFR”) as of December 31, 2024 based on the framework established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework) (“COSO”). Based on this assessment, management has identified a material weakness in our internal controls because we did not design and implement effective controls over the review and approval of journal entries into our general ledger. As a result of our identification of this material weakness, we have concluded that our ICFR was not effective as of December 31, 2024. We attribute this material weakness primarily due to an insufficient number of resources that would allow us to segregate duties in our accounting department. We intend to remediate the material weakness by designing and implementing controls related to the review and approval of journal entries. Our Audit Committee has reviewed our findings and proposed remediation. With the oversight of senior management and our Audit Committee, we will continue to assess, implement and redesign our ICFR. We will determine that our material weakness has been fully remediated only after we have (i) implemented and tested the necessary changes and (ii) observed the remediated controls operate for a sufficient period of time for us to determine that such controls are operating effectively. This report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to the rules of the Securities and Exchange Commission that permit us to provide only management’s report in this Annual Report. 48 Item 9B. Other Information (a) Entry into Material Definitive Agreements On March 3, 2025, we entered into employment agreements with Scott Bibaud for the position of President and Chief Executive Officer, Francis B. Laurencio for the position of Chief Financial Officer and Robert Mears for the position of Chief Technology Officer. We previously entered into employment agreements with Mr. Bibaud, Mr. Laurencio and Dr. Mears, however, all of those agreements expired on December 30, 2024. Bibaud Employment Agreement. Pursuant to our employment agreement with Mr. Bibaud, we will compensate Mr. Bibaud at the annual rate of $462,800. Mr. Bibaud is eligible to receive an annual bonus of up to 100% of his base salary based on performance criteria set by the compensation committee of our board of directors (the “Committee”). Mr. Bibaud is eligible for participation in all other plans that we may establish from time to time. The employment agreement entitles Mr. Bibaud to reasonable and customary health insurance and other benefits, at our expense. In the event of Mr. Bibaud’s termination without cause or resignation for good reason, as such terms are defined in the employment agreement (each, an “involuntary termination”), Mr. Bibaud will be entitled to: (i) a lump sum severance payment in the amount of eighteen (18) months of his base salary, (ii) , reimbursement of his costs for health insurance for up to twelve (12) months and (iii) have all outstanding and unvested equity awards will undergo 18 months of accelerated vesting. The employment agreement further provides that in the event of a change of control of the Company, all of Mr. Bibaud’s outstanding and unvested equity awards will become fully vested. Laurencio Employment Agreement Pursuant to our employment agreement with Mr. Laurencio, we will compensate Mr. Laurencio with an annual salary of $355,000. Mr. Laurencio is eligible to receive an annual bonus of up to 55% of his salary. Mr. Laurencio is also eligible to participate in all other plans that we may establish from time to time. The employment agreement entitles Mr. Laurencio to reasonable and customary health insurance and other benefits, at our expense, and a lump sum severance payment in the amount of twelve (12) months of his base salary and reimbursement for up to twelve (12) months of health insurance in the event of his involuntary termination. The employment agreement further provides that in the event of a change of control of the Company, all of Mr. Laurencio’s outstanding and unvested equity awards will become fully vested. Mears Employment Agreement Pursuant to our employment agreement with Dr. Mears, we will compensate Dr. Mears with an annual salary of $360,000. Dr. Mears is eligible to receive an annual bonus of up to 50% of his salary. Dr. Mears is entitled to reasonable and customary health insurance and other benefits, at our expense, and a lump sum severance payment in the amount of twelve (12) months of his base salary and reimbursement for up to twelve (12) months of health insurance in the event of his involuntary termination. The employment agreement further provides that in the event of a change of control of the Company, all of Dr. Mears’ outstanding and unvested equity awards will become fully vested. (b) Insider Trading Arrangements During the quarter ended December 31, 2024, no director or officer adopted or terminated (i) any contract, instruction or written plan for the purchase or sale of securities of the Company intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) or (ii) any “non-Rule 10b5-1 trading arrangement” as defined in paragraph (c) of item 408 of Regulation S-K. Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections Not applicable. 49 PART III The information required by Part III is omitted from this report because we will file a definitive proxy statement within 120 days after the end of our 2024 fiscal year pursuant to Regulation 14A for our 2025 Annual Meeting of Stockholders, or the 2025 Proxy Statement, and the information to be included in the 2025 Proxy Statement is incorporated herein by reference. Item 10. Directors, Executive Officers and Corporate Governance The information required under this item will be contained in the 2025 Proxy Statement and is hereby incorporated by reference. Item 11. Executive Compensation The information required under this item will be contained in the 2025 Proxy Statement and is hereby incorporated by reference. Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholders Matters The information required under this item will be contained in the 2025 Proxy Statement and is hereby incorporated by reference. Item 13. Certain Relationships and Related Transactions, and Director Independence The information required under this item will be contained in the 2025 Proxy Statement and is hereby incorporated by reference. Item 14. Principal Accountant Fees and Services The information required under this item will be contained in the 2025 Proxy Statement and is hereby incorporated by reference. 50 PART IV Item 15. Exhibits and Financial Statement Schedules (a) Financial Statements (1) Financial statements for our company are listed in the index under Item 8 of this document (2) All financial statement schedules are omitted because they are not applicable, not material or the required information is shown in the financial statements or notes thereto. Exhibit No. Description Method of Filing 3.1 Amended and Restated Certificate of Incorporation of the Registrant Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 3.2 Amended and Restated Bylaws of the Registrant Incorporated by reference from the Registrant’s Registration Form 8-K filed on October 27, 2021. 3.3 Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 3.4 Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 4.1 Description of Capital Stock Incorporated by reference from the Registrant’s Annual Report on Form 10-K filed on February 19, 2021. 10.1 Assignment of Patent Rights dated April 3, 2009 between Dr. Robert Mears and the Registrant Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 10.2+ 2007 Stock Incentive Plan Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 10.3 Lease Agreement dated January 19, 2016 between 750 University, LLC and the Registrant Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 10.4+ Form of Restricted Stock Agreement Incorporated by reference from the Registrant’s Amendment No. 1 to Registration Statement on Form S-1 filed on July 29, 2016. 10.5+ 2017 Stock Incentive Plan Incorporated by reference from the Registrant’s Definitive Proxy Statement filed on April 10, 2017. 10.6 First Amendment to Lease Agreement dated January 19, 2016 between 750 University, LLC and the Registrant Incorporated by reference from the Registrant’s Form 10-K filed on March 6, 2018. 51 10.7 Second Amendment to Lease Agreement dated January 19, 2016 between 750 University, LLC and the Registrant Incorporated by reference from the Registrant’s Annual Report on Form 10-K filed on February 19, 2021. 10.8 Equity Distribution Agreement dated May 31, 2022 between the Company and Oppenheimer & Co. Inc. and Craig-Hallum Capital Group LLC Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 31, 2022. 10.9+ 2023 Stock Incentive Plan Incorporated by reference from Registrant’s Definitive Additional Materials on Schedule 14A filed on April 18, 2023. 10.10+ Employment Agreement dated March 3, 2025 between Scott Bibaud and the Registrant Filed electronically herewith 10.11+ Employment Agreement dated March 3, 2025 between Francis Laurencio and the Registrant Filed electronically herewith 10.12+ Employment Agreement dated March 3, 2025 between Dr. Robert Mears and the Registrant Filed electronically herewith 19.1 Insider Trading Policy Filed electronically herewith 21.1 List of Subsidiaries Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on June 30, 2016. 23.1 Consent of Marcum LLP, Independent Registered Public Accounting Firm Filed electronically herewith 31.1 Certifications Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Filed electronically herewith 31.2 Certifications Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Filed electronically herewith 32.1 Certification of Principal Executive Officer and Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350) Filed electronically herewith 97.1 Atomera, Incorporated Executive Officer Clawback Policy Incorporated by reference from the Registrant’s Form 10-K filed on February 15, 2024. 101.INS XBRL Instance Document Filed electronically herewith 101.SCH XBRL Taxonomy Extension Schema Document Filed electronically herewith 101.CAL XBRL Taxonomy Extension Calculation Linkbase Document Filed electronically herewith 101.LAB XBRL Taxonomy Extension Label Linkbase Document Filed electronically herewith 101.PRE XBRL Taxonomy Extension Presentation Linkbase Document Filed electronically herewith 101.DEF XBRL Taxonomy Extension Definition Linkbase Document Filed electronically herewith 104 Cover Page Interactive Data File (formatted in IXBRL, and included in exhibit 11 Files electronically herewith + Indicated management compensatory plan, contract or arrangement. Item 16 . Form 10-K Summary None provided. 52 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. ATOMERA INCORPORATED. Date: March 4, 2025 By: /s/ Scott A. Bibaud Scott A. Bibaud Chief Executive Officer, (Principal Executive Officer) and Director Date: March 4, 2025 By: /s/ Francis B. Laurencio Francis B. Laurencio Chief Financial Officer (Principal Financial and Accounting Officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signature Title Date /s/ Scott A. Bibaud Chief Executive Officer and Director March 4, 2025 Scott A. Bibaud (Principal Executive Officer) /s/ John D. Gerber Director and Chairman March 4, 2025 John Gerber /s/ Steven K. Shevick Director March 4, 2025 Steven K. Shevick /s/ Duy-Loan Le Director March 4, 2025 Duy-Loan Le /s/ Suja Ramnath Director March 4, 2025 Suja Ramnath 53