Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
106
We maintain 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 principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable and not absolute assurance of achieving the desired control objectives. In reaching a reasonable level of assurance, management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. In addition, the design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
Our management, with the participation of our principal executive officer and our principal financial officer, have evaluated 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. Based on such evaluation, our principal executive officer and our principal financial officer have concluded that as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.
Management’s Annual Report on Internal Control Over Financial Reporting
This Annual Report does not include a report of management’s assessment regarding internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) or an audit report from our independent registered public accounting firm, Ernst & Young LLP, due to a transition period established by rules of the SEC for reverse acquisitions between an issuer and a private operating company when it is not possible to conduct an assessment of the private operating company’s internal control over financial reporting in the period between the consummation date of the reverse acquisition and the date of management’s assessment of internal control over financial reporting.
We completed a Business Combination on November 1, 2022, which was accounted for as a reverse recapitalization whereby APAC was treated as the acquired company and Legacy OmniAb was treated as the acquirer for financial reporting purposes. Prior to the Business Combination, APAC was 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 or entities. Accordingly, APAC’s previously existing internal controls are no longer applicable or comprehensive enough as of the assessment date, as APAC’s operations prior to the Business Combination were insignificant compared to those of the consolidated entity post-Business Combination. As a result, management was unable, without incurring unreasonable effort or expense, to complete an assessment of our internal control over financial reporting as of December 31, 2022.
Attestation Report of the Registered Public Accounting Firm
This Annual Report does not include an attestation report of our registered public accounting firm due to an exemption provided by the JOBS Act for “emerging growth companies” and our status as a non-accelerated filer under the Exchange Act.
Changes in Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting during the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
None
107
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Code of Conduct
The Board of Directors has adopted a Code of Business Conduct and Ethics (“Code of Conduct”) that applies to all officers, directors and employees. The Company will promptly disclose (1) the nature of any amendment to the Code of Conduct that applies to our principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions and (2) the nature of any waiver, including an implicit waiver, from a provision of our Code of Conduct that is granted to one of these specified officers, the name of such person who is granted the waiver and the date of the waiver on our website in the future. The Code of Conduct can be accessed via our website (http://www.omniab.com), Governance Documents page. You may also request a free copy by writing to: Investor Relations, OmniAb Inc., 5980 Horton Street, Suite 600, Emeryville, CA 94608.
The other information required by this item will be included in our definitive proxy statement to be filed with the SEC within 120 days of December 31, 2022 in connection with our 2023 annual meeting of stockholders (“Definitive Proxy Statement”), and is incorporated herein by reference.
Item 11. Executive Compensation
Information required by this item will be included in our Definitive Proxy Statement and is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Information required by this item will be included in our Definitive Proxy Statement and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Information required by this item will be included in our Definitive Proxy Statement and is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
Information required by this item will be included in our Definitive Proxy Statement and is incorporated herein by reference.
108
PART IV
Item 15. Exhibits and Financial Statement Schedule
The following documents are included as part of this Annual Report.
1. Financial Statements.
Index to Consolidated and Combined Financial Statements
73
Report of Independent Registered Public Accounting Firm
74
Consolidated and Combined Balance Sheets
75
Consolidated and Combined Statements of Operations and Comprehensive Loss
76
Consolidated and Combined Statements of Stockholders’ Equity
77
Consolidated and Combined Statements of Cash Flows
78
Notes to Consolidated and Combined Financial Statements
79
2. Financial Statements Schedules.
All schedules are omitted because they are not applicable or the required information is in the financial statements or notes thereto.
3. Exhibits.
A list of exhibits is set forth on the Exhibit Index immediately preceding the signature page of this Annual Report and is incorporated herein by reference.
Item 16. Form 10-K Summary
None
109
EXHIBIT INDEX
Incorporated by Reference
Exhibit
Number
Description of Exhibit Form File Number Date of Filing Exhibit
Number
Filed
Herewith
2. 1+
Agreement and Plan of Merger, dated March 23, 2022, by and among Avista Public Acquisition Corp. II, Orwell Merger Sub Inc., Ligand Pharmaceuticals Incorporated and OmniAb, Inc. S-4 333-264525 September 27, 2022 2.1
2 . 2 +
Separation and Distribution Agreement, dated March 23, 2022, by and among Avista Public Acquisition Corp. II, Ligand Pharmaceuticals Incorporated and OmniAb, Inc. S-4 333-264525 September 27, 2022 2.2
3.1
Certificate of Incorporation of the Registrant X
3.2
Bylaws of the Registrant 8-K 001-40720 November 7, 2022 3.2
4.1
Warrant Agreement, dated August 9, 2021, between Avista Public Acquisition Corp. II and Continental Stock Transfer & Trust Company, as warrant agent 8-K 001-40720 August 12, 2021 4.1
4.2
Assignment, Assumption and Amendment Agreement, dated November 1, 2022, by and among OmniAb, Inc., Continental Stock Transfer & Trust Company and Computershare Trust Company, N.A. 8-K 001-40720 November 7, 2022 4.2
4.3
Specimen Warrant Certificate S-1/A 333-257177 July 28, 2021 4.3
4.4
Specimen Common Stock Certificate of OmniAb, Inc. S-4 333-264525 September 27, 2022 4.5
4.5
Description of Registered Securities X
10.1
Private Placement Warrants Purchase Agreement, dated August 9, 2021, between Avista Public Acquisition Corp. II and Avista Acquisition LP II 8-K 001-40720 August 12, 2021 10.3
10. 2#
Form of Letter Agreements, dated August 9, 2021, by and among Avista Public Acquisition Corp. II, each of Avista Public Acquisition Corp. II’s officers and directors and Avista Acquisition LP II 8-K 001-40720 August 12, 2021 10.5
10.3#
Form of Indemnity Agreements, dated August 9, 2021, between Avista Public Acquisition Corp. II, each of its officers and directors and Avista Acquisition LP II 8-K 001-40720 August 12, 2021 10.6
10.4
Securities Subscription Agreement, dated February 12, 2021, between Avista Public Acquisition Corp. II and the Sponsor S-1/A 333-257177 July 28, 2021 10.7
10.5
Sponsor Insider Agreement, dated March 23, 2022, by and among OmniAb, Inc., Avista Public Acquisition Corp. II, Avista Acquisition LP II and the other parties signatory thereto S-4 333-264525 September 27, 2022 10.11
10.6†
Amended and Restated Registration and Stockholder Rights Agreement, dated November 1, 2022 by and among OmniAb, Inc., Avista Acquisition LP II and the other parties named therein 8-K 001-40720 November 7, 2022 10.7
10.7
Amended and Restated Forward Purchase Agreement, dated March 23, 2022, by and among Avista Public Acquisition Corp. II, Avista Acquisition LP II and OmniAb, Inc. S-4 333-264525 September 27, 2022 10.12
10.8 +
Amended and Restated Employee Matters Agreement, dated August 18, 2022, by and among Avista Public Acquisition Corp. II, Orwell Merger Sub Inc., Ligand Pharmaceuticals Incorporated and OmniAb, Inc. S-4 333-264525 September 27, 2022 10.13
110
10.9 † +
Tax Matters Agreement, dated November 1, 2022, by and among OmniAb, Inc., Ligand Pharmaceuticals Incorporated and OmniAb Operations, Inc. 8-K 001-40720 November 7, 2022 10.10
10.10+
Transition Services Agreement, dated November 1, 2022, by and between Ligand Pharmaceuticals Incorporated and OmniAb Operations, Inc., with respect to services provided by Ligand Pharmaceuticals Incorporated to OmniAb Operations, Inc. 8-K 001-40720 November 7, 2022 10.11
10.11+
Transition Services Agreement, dated November 1, by and between Ligand Pharmaceuticals Incorporated and OmniAb Operations, Inc., with respect to services provided by OmniAb Operations, Inc. to Ligand Pharmaceuticals Incorporated 8-K 001-40720 November 7, 2022 10.12
10.12#
OmniAb, Inc. 2022 Incentive Award Plan 8-K 001-40720 October 24, 2022 10.1
10.13#
Form of Stock Option Agreement under the OmniAb, Inc. 2022 Incentive Award Plan 8-K 001-40720 November 7, 2022 10.14
10.14#
Form of Restricted Stock Unit Agreement under the OmniAb, Inc. 2022 Incentive Award Plan 8-K 001-40720 November 7, 2022 10.15
10.15 #
Form of Performance Stock Unit Agreement under the OmniAb, Inc. 2022 Incentive Award Plan 8-K 001-40720 November 7, 2022 10.16
10.16#
OmniAb, Inc. 2022 Employee Stock Purchase Plan 8-K 001-40720 October 24, 2022 10.2
10.17#
OmniAb, Inc. 2022 Ligand Service Provider Assumed Award Plan 8-K 001-40720 November 7, 2022 10.18
10.18#
OmniAb, Inc. 2022 OmniAb Service Provider Assumed Award Plan 8-K 001-40720 November 7, 2022 10.19
10.19#
OmniAb, Inc. Director Compensation and Stock Ownership Policy (as amended and restated effective February 3, 2023) X
10.20#
OmniAb, Inc. Severance Plan 8-K 001-40720 November 7, 2022 10.21
10.21#
Change in Control Severance Agreement, effective November 1, 2022, between OmniAb, Inc. and Matthew W. Foehr X
10.22#
Change in Control Severance Agreement, effective November 1, 2022, between OmniAb, Inc. and Kurt A. Gustafson X
10.23#
Change in Control Severance Agreement, effective November 1, 2022, between OmniAb, Inc. and Charles S. Berkman X
10.2 4 #
Form of OmniAb, Inc. Indemnification Agreement for Directors and Officers S-4 333-264525 September 27, 2022 10.25
10.25 +
Office/Laboratory Lease between Emery Station Office II, LLC and Ligand Pharmaceuticals Incorporated, dated June 8, 2021 S-4 333-264525 September 27, 2022 10.26
10.26†
Assignment of Lease, Consent to Assignment of Lease and First Amendment to Lease, dated for reference purposes only as of October 26, 2022, by Emery Station Office II, LLC, Ligand Pharmaceuticals Incorporated and OmniAb, Inc. X
21.1
List of Subsidiaries of OmniAb, Inc. 8-K/A 001-40720 November 7, 2022 21.1
23.2
Consent of Ernst & Young LLP X
31.1
Certification of Chief Executive Officer, as required by Rule 13a-14(a) or Rule 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 X
31.2
Certification of Chief Financial Officer, as required by Rule 13a-14(a) or Rule 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 X
111
32.1*
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 X
32.2*
Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 X
101.INS Inline 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 X
101.SCH Inline XBRL Taxonomy Extension Schema Document X
101.CAL Inline XBRL Taxonomy Calculation Linkbase Document X
101.DEF Inline XBRL Taxonomy Definition Linkbase Document X
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document X
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document X
104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) X
_____________
+ Certain schedules and annexes have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or annex will be furnished as a supplement to the SEC upon request.
# Indicates management contract or compensatory plan.
† Pursuant to Item 601(b)(10) of Regulation S-K, certain confidential portions of this exhibit were omitted by means of marking such portions with an asterisk because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.
* This certification is deemed not filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.
112
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.
OMNIAB, INC.
By: /s/ MATTHEW W. FOEHR
Matthew W. Foehr
President and Chief Executive Officer
Date: March 30, 2023
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/ MATTHEW W. FOEHR
President and Chief Executive Officer and Director (Principal Executive Officer) March 30, 2023
Matthew W. Foehr
/s/ KURT GUSTAFSON Executive Vice President, Finance and Chief Financial Officer (Principal Financial and Accounting Officer) March 30, 2023
Kurt Gustafson
/s/ JOHN L. HIGGINS
Director and Chairman of the Board March 30, 2023
John L. Higgins
/s/ CAROLYN R. BERTOZZI, Ph.D. Director March 30, 2023
Carolyn R. Bertozzi, Ph.D.
/s/ SARAH BOYCE Director March 30, 2023
Sarah Boyce
/s/ JENNIFER COCHRAN, Ph.D. Director March 30, 2023
Jennifer Cochran, Ph.D.
/s/ SUNIL PATEL Director March 30, 2023
Sunil Patel
/s/ JOSHUA TAMAROFF Director March 30, 2023
Joshua Tamaroff
113