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Item 9A. Controls and Procedures

2024-04-16 compared with 2023-03-30 · 56 added, 41 removed, 130 unchanged (43% of the section changed)

Controls and Procedures.

This Item 9A includes information concerning the controls and controls evaluation referred to in the certifications of our Chief Executive Officer and Interim Chief Financial Officer required by Rule 13a-14 of the Exchange Act included in this Annual Report as Exhibits 31.1 and 31.2.

This Item 9A includes information concerning the controls and controls evaluation referred to in the certifications of our Chief Executive Officer and Chief Financial Officer required by Rule 13a-14 of the Exchange Act included in this Annual Report as Exhibits 31.1 and 31.2.

Evaluation of Disclosure Controls and Procedures

Our management, including our Chief Executive Officer and Interim Chief Financial Officer, have conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) as of December 31, 2022 and based on this evaluation, have concluded that, as a result of the material weaknesses in internal control over financial reporting as described below, our disclosure controls and procedures were not effective as of December 31, 2022.

Pursuant to Rule 13a-15(e), the term “disclosure controls and procedures”

means controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Exchange Act is accumulated and communicated to the issuer’s management, including its Chief Executive Officer and Chief Financial Officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

Our management, including our Chief Executive Officer and Chief Financial Officer, have conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) as of December 31, 2023 and based on this evaluation, have concluded that, as a result of the material weaknesses in internal control over financial reporting as described below, our disclosure controls and procedures were not effective as of December 31, 2023.

Pursuant to Rule 13a-15(e), the term “disclosure controls and procedures” means controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

Management's Annual Report on Internal Control Over Financial Reporting

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As discussed elsewhere in this report, we completed the Business Combination on October 28, 2022.

Prior to the Business Combination, SeaStar Medical, Inc.

was a private company and therefore its controls were not required to be designed or maintained in accordance with Rules 13a-15 and 15d-15 under the Exchange Act.

The design and implementation of internal control over financial reporting for the Company post-Business Combination has required and will continue to require significant time and resources from management and other personnel.

Prior to the Business Combination, the Predecessor was a private company and therefore its controls were not required to be designed or maintained in accordance with Rules 13a-15 and 15d-15 under the Exchange Act.

The design and implementation of internal control over financial reporting for the Company post-Business Combination has required

and will continue to require significant time and resources from management and other personnel.

Because of this, the design and ongoing development of our framework for implementation and evaluation of internal control over financial reporting is in its preliminary stages.

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, 2023.

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.

Identification of Material Weaknesses

In the course of preparing the consolidated financial statements that are included in this Annual Report, the Company has identified material weaknesses in its internal controls over financial reporting as of December 31, 2022, which relates to a deficiency in the design and operation of its financial accounting and reporting controls.

In the course of preparing the consolidated financial statements that are included in this Annual Report, the Company has identified material weaknesses in its internal controls over financial reporting as of December 31, 2023, which relates to a deficiency in the design and operation of its financial accounting and reporting controls (See Note 3 and Note 19).

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 our annual or interim financial statements will not be prevented or detected on a timely basis.

Specifically, the Company identified deficiencies in internal controls over financial reporting which were determined to rise to the level of material weakness.

The Company has identified that additional headcount will be addressed in the near term to allow for further research and internal dialogue on complex accounting transactions prior to final conclusion.

The Company has strengthened its accounting team with the addition of an experienced Controller and Chief Financial Officer, and has identified additional accounting resources that are expected to help to remediate the material weaknesses.

The Company will also continue to review the overall internal control environment as we develop the requisite internal control framework.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) during the period ended December 31, 2022 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Except as noted above, there were no changes in our internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) during the period ended December 31, 2023 and 2022, respectively, that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Other Information .

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Directors, Executive Officers and Corporate Governance .

The information required under this item is incorporated herein by reference to the Company’s definitive proxy statement pursuant to Regulation 14A, which proxy statement will be filed with the Securities and Exchange Commission no later than 120 days after the close of the Company’s fiscal year ended December 31, 2022.

We have adopted a Code of Ethics that applies to all officers, directors, and employees in connection with their work for us.

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Security Ownership of Certain Beneficial Owners a nd Management and Related Stockholder Matters.

The information required under this item is incorporated by reference to the Company’s definitive proxy statement pursuant to Regulation 14A, which proxy statement will be filed with the Securities and Exchange Commission no later than 120 days after the close of the Company’s fiscal year ended December 31, 2022.

Certain Relationships and Related Transactions, And Director Independence .

Principal Accounting Fees and Services .

Exhibits, Financial Statement Schedules .

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Exhibit Index

Placement Agency Agreement, dated January 26, 2024, by and among the Company and Maxim Group LLC (incorporated by reference to Exhibit 1.1 of Form 8-K dated January 30, 2024).

Agreement and Plan of Merger, dated as of April 21, 2022, by and among LMF Acquisition Opportunities, Inc.

(“LMAO”), LMF Merger Sub, Inc.

and SeaStar Medical, Inc.

1 unchanged sentence

Third Amended and Restated Certificate of Incorporation of SeaStar Medical Holding Corporation, filed with the Secretary of State of Delaware on October 28, 2022 (incorporated by reference to Exhibit 3.1 to Form 8-K filed by the registrant on November 4, 2022).

Certificate of Amendment to the Third Amended and Restated Certificate of Incorporation of SeaStar Medical Holding Corporation (incorporated by reference to Exhibit 3.1 to Form 8-K filed September 20, 2023).

Amended and Restated Bylaws of SeaStar Medical Holding Corporation (incorporated by reference to Exhibit 3.2 to Form 8-K filed by the registrant on November 4, 2022).

4 unchanged sentences

Description of Securities (included under "Description of Securities" in Form S-1 filed by the registrant on January 20, 2023.

Form of Pre-Funded Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.1 of Form 8-K dated January 30, 2024).

Form of Series A Common Stock Purchase Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.2 of Form 8-K dated January 30, 2024).

Form of Series B Common Stock Purchase Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.3 of Form 8-K dated January 30, 2024).

Amended and Restated Registration Rights Agreement, dated as of April 21, 2022, by and among LMAO, SeaStar Medical, Inc., and certain stockholders of SeaStar Medical, Inc.

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and certain investors (incorporated by reference to Exhibit 10.29 to Form S-4/A filed by the registrant on August 24, 2022).

Common Stock Purchase Agreement by and among Tumim Stone Capital LLC, LMAO, and SeaStar Medical, Inc., dated August 23, 2022 (incorporated by reference to Exhibit 10.30 to Form S-4/A filed by the registrant on August 24, 2022).

Registration Rights Agreement by and among Tumim Stone Capital LLC, LMAO and SeaStar Medical, Inc., dated August 23, 2022 (incorporated by reference to Exhibit 10.31 to Form S-4/A filed by the registrant on August 24, 2022).

Credit Agreement, between SeaStar Medical, Inc.

26 unchanged sentences

Confirmation for Prepaid Forward Transaction, dated October 17, 2022, by and among LMF Acquisition Opportunities, Inc., SeaStar Medical, Inc.

and Vellar Opportunity Fund SPV LLC—Series 4 (incorporated by reference to Exhibit 10.1 to Form 8-K filed by the registrant on October 17, 2022).

Amendment No.

1 to Common Stock Purchase Agreement, dated as of November 9, 2022, by and among Tumim Stone Capital, LLC, SeaStar Medical, Inc., and SeaStar Medical Holding Corporation (incorporated by reference to Exhibit 10.1 to Form 8-K filed by the registrant on November 10, 2022).

Amendment No.

1 to Registration Rights Agreement, dated as of November 9, 2022, by and among Tumim Stone Capital LLC, SeaStar Medical, Inc., and SeaStar Medical Holding Corporation (incorporated by reference to Exhibit 10.2 to Form 8-K filed by the registrant on November 10, 2022).

and Vellar Opportunity Fund SPV LLC—Series 4 (incorporated by reference to Exhibit 10.1 to Form 8-K filed by the registrant on October 17, 2022).

Securities Purchase Agreement, dated as of March 15, 2023, by and among SeaStar Medical Holding Corporation and 3i, LP (incorporated by reference to Exhibit 10.1 to Form 8-K filed by the registrant on March 16, 2023).

1 unchanged sentence

Form of Senior Unsecured Convertible Note (incorporated by reference to Exhibit 10.3 to Form 8-K filed by the registrant on March 16, 2023).

Share Issuance and Settlement Agreement, dated as of June 6, 2023, by and between SeaStar Medical Holding Corporation and Vellar Opportunity Fund SPV LLC – Series 4 (incorporated by reference to Exhibit 10.1 to Form 10-Q filed August 14, 2023).

First Amendment to Securities Purchase Agreement, dated August 7, 2023, by and between the Company and 3i, LP (incorporated by reference to Exhibit 10.1 to Form 8-K filed August 7, 2023).

First Amendment to Registration Rights Agreement, dated August 7, 2023, by and between the Company and 3i, LP (incorporated by reference to Exhibit 10.2 to Form 8-K filed August 7, 2023).

Letter Agreement, dated August 7, 2023, by and between the Company and 3i, LP (incorporated by reference to Exhibit 10.3 to Form 8-K filed August 7, 2023).

Third Amendment, Consent and Waiver Agreement, dated August 7, 2023, by and between the Company and Maxim Group LLC (incorporated by reference to Exhibit 10.4 to Form 8-K filed August 7, 2023).

Third Amendment, Consent and Waiver Agreement, dated August 7, 2023, by and between the Company and LM Funding America, Inc.

(incorporated by reference to Exhibit 10.5 to Form 8-K filed August 7, 2023).

Third Amendment, Consent and Waiver Agreement, dated August 7, 2023, by and between the Company and LMFAO Sponsor, LLC (incorporated by reference to Exhibit 10.6 to Form 8-K filed August 7, 2023).

Letter Agreement, dated August 30, 2023, by and between the Company and 3i, LP (incorporated by reference to Exhibit 10.1 to Form 8-K filed August 30, 2023).

Employment Agreement, dated January 10, 2024, by and between the Company and David Green (incorporated by reference to Exhibit 10.1 to Form 8-K dated January 11, 2024).

Form of Securities Purchase Agreement, by and among the Company and the parties thereto (incorporated by reference to Exhibit 10.1 of Form 8-K filed January 30, 2024).

License and Distribution Agreement, dated December 27, 2022, by and between the Company and NuWellis, Inc.

(incorporated by reference to Exhibit 10.63 of Form 10-K filed by Nuwellis, Inc.

on March 3, 2023).

Amendment No.

1 to the License and Distribution Agreement, dated December 29, 2023, by and between the Company and Nuwellis, Inc.

List of Subsidiaries (incorporated by reference to Exhibit 21.1 to Form 8-K filed by the registrant on November 4, 2022).

Consent of Independent Registered Public Accounting Firm of SeaStar Medical Holding Corporation

Consent of Independent Registered Public Accounting Firm of SeaStar Medical Holding Corporation for fiscal year-ended December 31, 2022

Consent of Independent Registered Public Accounting Firm of SeaStar Medical Holding Corporation for fiscal year-ended December 31, 2023

Power of Attorney (included on the signature page hereto).

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Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

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Inline XBRL Taxonomy Extension Schema Document

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** Filed herewith

√ Portions of this exhibit (indicated by asterisks) have been omitted pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933.

FORM 10-K SUMMARY .

1 unchanged sentence

SeaStar Medical Holding Corporation

March 30, 2023

April 16, 2024

/s/ Eric Schlorff

2 unchanged sentences

(Principal Executive Officer)

March 30, 2023

/s/ Caryl Baron

Interim Chief Financial Officer

Date:April 16, 2024

/s/ David Green

Chief Financial Officer

(Principal Financial and Accounting Officer)

6 unchanged sentences

(Principal Executive Officer)

March 30, 2023

/s/ Caryl Baron

Interim Chief Financial Officer

April 16, 2024

/s/ David Green

Chief Financial Officer

(Principal Financial and Accounting Officer)

March 30, 2023

April 16, 2024

/s/ Rick Barnett

Chairman of the Board of Directors

March 30, 2023

April 16, 2024

/s/ Kenneth Van Heel

Kenneth Van Heel

March 30, 2023

April 16, 2024

/s/ Andres Lobo

March 30, 2023

April 16, 2024

/s/ Allan Collins

Allan Collins

March 30, 2023

April 16, 2024

/s/ Bruce Rodgers

Bruce Rodgers

March 30, 2023

April 16, 2024

/s/ Richard Russell

Richard Russell

March 30, 2023

April 16, 2024

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