CEMTREX INC 10-K/A

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A Amendment No. 2 ☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF 1934 For the fiscal year ended September 30 , 2021 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF 1934 Commission File Number 001-37464 CEMTREX, INC. (Exact name of registrant as specified in its charter) Delaware 30-0399914 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 276 Greenpoint Ave. Suite 208 , Brooklyn , NY 11222 (Address of principal executive offices) (Zip code) Registrant telephone number, including area code: 631 - 756-9116 Securities registered pursuant to Section 12(b) of the Act: Title of Each Class Trading Symbol Name of Each Exchange on Which Registered Common Stock, $0.001 par value per share CETX The NASDAQ Capital Market Preferred Stock, Series 1 $0.001 par value per share CETXP The NASDAQ Capital Market Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.001 par value per share Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒ Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ☐ No ☒ Indicate by check mark whether the registrant (has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐ Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer ☐ Accelerated filer ☐ Non-accelerated filer ☒ Smaller reporting company ☒ Emerging growth company ☐ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐ Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒ As of March 31, 2021, the number of the registrant’s common stock held by non-affiliates of the registrant was 18,141,241 and the aggregate market value $34,105,533 based on the average bid and asked price of $1.88 on March 31, 2021. As of February 24, 2022, the registrant had 24,673,210 shares of common stock outstanding. Explanatory Note Cemtrex, Inc. (the “Company,” “we,” “us,” or “our”) is filing this Amendment No. 2 on Form 10-K/A (the “Amendment”) to our Annual Report on Form 10-K for the fiscal year ended September 30, 2021 filed with the Securities and Exchange Commission (the “SEC”) on January 21, 2022, as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on January 27, 2022 (the “Annual Report”) to amend and restate Item 9A of Part II, “Controls and Procedures,” with respect to our conclusions regarding the effectiveness of our disclosure controls and procedures and our internal control over financial reporting. The Amendment was prompted by correspondence we received from the SEC in February 2022 relating to a review by the SEC of the Annual Report. This review identified that the Company did not conclude on the effectiveness of our disclosure controls and procedures as of September 30, 2021. Consequently, we are filing this Amendment to state that, as of September 30, 2021, our evaluation of our disclosure controls and procedures identified material weaknesses and that therefore the Company’s disclosure controls and procedures during the fiscal year were not effective. Similarly, as also stated in this Amendment, these material weaknesses resulted in management’s assessment that the Company’s internal control over financial reporting was also not effective. These material weaknesses are described in the amended and restated Item 9A filed herewith. As required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the certifications required by Rule 13a-14(a) under the Exchange Act are also being filed as exhibits to this Amendment. This Amendment should be read in conjunction with the Annual Report, which continues to speak as of the date of the Annual Report. Except as specifically noted above, this Amendment does not modify or update disclosures in the Annual Report. Accordingly, this Amendment does not reflect events occurring after the filing of the Annual Report or modify or update any related or other disclosures, other than those discussed herein. PART II ITEM 9A. CONTROLS AND PROCEDURES Disclosure Controls and Procedures We maintain “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”), that are designed to ensure that information required to be disclosed by us in reports we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating our disclosure controls and procedures, management recognized that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable assurance of achieving the desired control objectives, and we necessarily are required to apply our judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures. Based on an evaluation under the supervision and with the participation of our management, our principal executive officer and principal financial officer have concluded that our disclosure controls and procedures were not effective as of September 30, 2021 due to the material weaknesses described below. 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 such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act. Our internal control system was designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes, in accordance with GAAP. Because of inherent limitations, a system of internal control over financial reporting may not prevent or detect misstatements. Additionally, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate due to change in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Our management, including our principal executive officer and principal accounting officer, conducted an evaluation of the effectiveness of our internal control over financial reporting using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control—Integrated Framework (2013). Based on its evaluation, our management concluded that as of September 30, 2021, that our internal control over financial reporting were not effective and there are material weaknesses in our internal control over financial reporting. The material weaknesses relate to the Company lacking sufficient, qualified, accounting personnel. The shortage of qualified accounting personal resulted in the Company lacking entity level controls around the review of period-end reporting processes, accounting policies and public disclosures. Additionally, the Company’s current processes and systems do not provide for necessary, timely reconciliation of certain accounts and sufficient consideration regarding recoverability of certain assets. These deficiencies are common in small companies, similar to us, with limited personnel. In order to mitigate the material weaknesses, the Board of Directors has assigned a priority to the short-term and long-term improvement of our internal control over financial reporting. Our Board of Directors will work with management to continuously review controls and procedures to identified deficiencies and implement remediation within our internal controls over financial reporting and our disclosure controls and procedures. This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to Commission rules that permit the Company to provide only management’s report in this annual report. This report shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing. Changes in Internal Control Over Financial Reporting There was no change in our internal control over financial reporting that occurred in the year ended September 30, 2021, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. PART IV ITEM 15 EXHIBITS AND FINANCIAL STATEMENTS (a) Financial Statements and Notes to the Consolidated Financial Statements See Index to Consolidated Financial Statements on page F-1 at beginning of attached financial statements. (b) Exhibits Exhibit No. Description 2.2 Stock Purchase Agreement regarding the stock of Advanced Industrial Services, Inc., AIS Leasing Company, AIS Graphic Services, Inc., and AIS Energy Services, LLC, Dated December 15, 2015. (8) 2.3 Asset Purchase agreement between Periscope GmbH and ROB Centrex Assets UG, ROB Cemtrex Automotive GmbH, and ROB Cemtrex Logistics GmbH. (7) 3.1 Certificate of Incorporation of the Company.(1) 3.2 By Laws of the Company.(1) 3.3 Certificate of Amendment of Certificate of Incorporation, dated September 29, 2006.(1) 3.4 Certificate of Amendment of Certificate of Incorporation, dated March 30, 2007.(1) 3.5 Certificate of Amendment of Certificate of Incorporation, dated May 16, 2007.(1) 3.6 Certificate of Amendment of Certificate of Incorporation, dated August 21, 2007.(1) 3.7 Certificate of Amendment of Certificate of Incorporation, dated April 3, 2015.(3) 3.8 Certificate of Designation of the Series A Preferred Shares, dated September 8, 2009.(2) 3.9 Certificate of Designation of the Series 1 Preferred Stock.(11) 3.10 Certificate of Amendment of Certificate of Incorporation, dated September 7, 2017 (12) 3.11 Certificate of Correction to the Certificate of Amendment to the Amended and Restated Certificate of Incorporation, as amended, of Cemtrex, Inc (6) 3.12 Amended Certificate of Designation of the Series 1 Preferred Shares, dated March 30, 2020.(16) 3.13 Certificate of Amendment of Certificate of Incorporation, dated July 29, 2020 (20) 3.14 Certificate of Correction of Certificate of Incorporation, dated July 29, 2021, filed October 7, 2020 (9) 4.1 Form of Subscription Rights Certificate. (10) 4.2 Form of Series 1 Preferred Stock Certificate. (10) 4.3 Form of Series 1 Warrant. (10) 4.4 Form of Common Stock Purchase Warrant, dated March 22, 2019. (14) 10.1 Amendment of the Term Loan Agreement between Vicon and NIL Funding, dated March 4, 2020.(17) 10.2 Consulting Agreement, dated April 22, 2020 between Centrex, Inc. and Adtron, Inc. (5) 10.3 Securities Purchase Agreement dated June 1, 2020 (18) 10.4 Securities Purchase Agreement dated June 9, 2020 (19) 10.5 Settlement Agreement and Release between Cemtrex, Inc. and Aron Govil dated February 26, 2021 (13) 14.1 Corporate Code of Business Ethics.(4) 21.1 Subsidiaries of the Registrant (15) 23.1* Consent of Grassi & Co, CPAs, P.C., Independent Registered Public Accounting Firm (15) 31.1* Certification of Chief Executive Officer as required by Rule 13a-14 or 15d-14 of the Exchange Act, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2* Certification of Vice President of Finance and Principal Financial Officer as required by Rule 13a-14 or 15d-14 of the Exchange Act, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1* Certification of Chief Executive Officer Pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act 0f of 2002. 32.2* Certification of Vice President of Finance and Principal Financial Officer Pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act 0f of 2002. 101.INS* XBRL Instance Document 101.SCH* XBRL Taxonomy Extension Schema 101.CAL* XBRL Taxonomy Extension Calculation Linkbase 101.DEF* XBRL Taxonomy Extension Definition Linkbase 101.LAB* XBRL Taxonomy Extension Label Linkbase 101.PRE* XBRL Taxonomy Extension Presentation Linkbase * Filed herewith 1 Incorporated by reference from Form 10-12G filed on May 22, 2008. 2 Incorporated by reference from Form 8-K filed on September 10, 2009. 3 Incorporated by reference from Form 8-K filed on August 22, 2016. 4 Incorporated by reference from Form 8-K filed on July 1, 2016. 5 Incorporated by reference from Form S-8 filed on May 1, 20120 6 Incorporated by reference from Form 8-K filed on June 12, 2019. 7 Incorporated by reference from Form 8-K/A filed on November 24, 2017. 8 Incorporated by reference from Form 8-K/A filed on September 26, 2016. 9 Incorporated by reference from Form 10-Q filed on May 28, 2021. 10 Incorporated by reference from Form S-1 filed on August 29, 2016 and as amended on November 4, 2016, November 23, 2016, and December 7, 2016. 11 Incorporated by reference from Form 8-K filed on January 24, 2017. 12 Incorporated by reference from Form 8-K filed on September 8, 2017. 13 Incorporated by reference from Form 8-K filed on February 26, 2021. 14 Incorporated by reference from Form 8-K filed on March 22, 2019. 15 Intentionally left blank 16 Incorporated by reference from Form 8-K filed on April 1, 2020. 17 Incorporated by reference from Form 8-K filed on March 9, 2020. 18 Incorporated by reference from Form 8-K filed on June 4, 2020. 19 Incorporated by reference from Form 8-K filed on June 12, 2020. 20 Incorporated by reference from Form 10-K filed on January 5, 2021. 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. CEMTREX, INC. February 28, 2022 By: /s/ Saagar Govil . Saagar Govil, Chairman of the Board, CEO, President & Secretary (Principal Executive Officer) February 28, 2022 By: /s/ Paul J. Wyckoff . Paul J. Wyckoff, Interim CFO (Principal Financial and Accounting Officer) Pursuant to the requirements of the Securities and 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. February 28, 2022 By: /s/ Saagar Govil . Saagar Govil, Chairman of the Board, CEO, President & Secretary (Principal Executive Officer) February 28, 2022 By: /s/ Paul J. Wyckoff . Paul J. Wyckoff, Interim CFO (Principal Financial and Accounting Officer) February 28, 2022 By: /s/ Brian Kwon Brian Kwon, Director February 28, 2022 By: /s/ Manpreet Singh Manpreet Singh, Director February 28, 2022 By: /s/ Metodi Filipov Metodi Filipov, Director February 28, 2022 By: /s/ Chris Wagner Chris Wagner, Director