Item 9A. Controls and Procedures
ITEM 9A. CONTROLS AND PROCEDURES.
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that the information required to be disclosed in the reports that we file or submit under the Securities Exchange Act of 1934 (“Exchange Act”) 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 and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
In connection with the preparation of this Annual Report on Form 10-K, our management carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, as of December 31, 2022, of the effectiveness of the design and operation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and 15d-15(e) under the Exchange Act. Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2022.
Management’s Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) or 15d-15(f) under the Exchange Act of 1934. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. All internal control systems, no matter how well designed, have inherent limitations. Even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Management is committed to continue monitoring our internal controls over financial reporting and will modify or implement additional controls and procedures that may be required to ensure the ongoing integrity of our consolidated financial statements.
With the participation of our Chief Executive Officer and Chief Financial Officer, management conducted an evaluation of the effectiveness of internal control over financial reporting as of December 31, 2021. In making this assessment, the Company used the framework established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, management has concluded that internal control over financial reporting was effective as of December 31, 2022 based on those criteria.
This annual report does not include an attestation report of the company’s registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for smaller reporting companies.
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting that occurred during the quarter ended December 31, 2022, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B. OTHER INFORMATION.
Not applicable.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS.
Not applicable.
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
The information required by this Item relating to our directors and corporate governance is incorporated herein by reference to the definitive Proxy Statement to be filed pursuant to Regulation 14A of the Exchange Act for our 2023 Annual Meeting of Stockholders.
ITEM 11. EXECUTIVE COMPENSATION.
The information required by this Item relating to our directors and corporate governance is incorporated herein by reference to the definitive Proxy Statement to be filed pursuant to Regulation 14A of the Exchange Act for our 2023 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
The information required by this Item relating to our directors and corporate governance is incorporated herein by reference to the definitive Proxy Statement to be filed pursuant to Regulation 14A of the Exchange Act for our 2023 Annual Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, DIRECTOR INDEPENDENCE.
The information required by this Item relating to our directors and corporate governance is incorporated herein by reference to the definitive Proxy Statement to be filed pursuant to Regulation 14A of the Exchange Act for our 2023 Annual Meeting of Stockholders.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.
The information required by this Item relating to our directors and corporate governance is incorporated herein by reference to the definitive Proxy Statement to be filed pursuant to Regulation 14A of the Exchange Act for our 2023 Annual Meeting of Stockholders.
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PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
(a) Financial Statements and Schedules
1. Financial Statements are listed in the Index to Financial Statements on page F-1 of this report.
2. All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission have been omitted because of the absence of the conditions under which they are required or because the information required is shown in the financial statements or notes above.
(b) Exhibit Listing
Exhibit
Number Description
(3) Articles of Incorporation and Bylaws
3.1* Amended and Restated Certificate of Incorporation, as amended by the Certificate of Amendment to the Amended and Restated Certificate of Incorporation ( Form 10-K filed March 17, 2020 , Exhibit 3. 1 (File no. 001-37941 ) ) .
3.1(a)* Certificate of Designation of the Series C Preferred Stock of the Registrant (Form 8-K filed August 26, 2022, Exhibit 3.1(a) (File no. 001-37941)).
3.1(b)* Certificate of Amendment to Amended and Restated Certificate of Incorporation of SenesTech, Inc. (Form 8-K filed November 15, 2022, Exhibit 3.1(a) (File no. 001-37941)).
3.2* Amended and Restated Bylaws ( Form S- 1 filed September 21, 2016 , Exhibit 3.5 (File no. 333-213736 ) ) .
3.2(a)* Amendment No. 1 to the Amended and Restated Bylaws of SenesTech, Inc. , dated June 16, 2021 (Form 8-K filed June 17, 2021, Exhibit 3.2 (File no. 001-37941)).
(4) Instruments defining the rights of security holders, including indentures
4.1* Description of Securities ( Form 10-K/A filed April 21, 2020 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.2* Form of the Registrant’s Common Stock certificate ( Form S-1 file d October 7, 2016 , Exhibit 4.1 (File no. 333-213736 ) ) .
4.3* Form of Restricted Stock Unit Agreement ( Form 8-K filed December 21, 2016 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.4* Form of Warrant ( Form S-1 filed November 16, 2017 , Exhibit 4.2 (File no. 333-221433 ) ) .
4.5* Form of Underwriter’s Warrant, as amended ( Form 8-K filed November 21, 2017 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.6* Form of New Warrant ( Form 8-K filed June 20, 2018 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.7* Form of Warrant issued to investors in Rights Offering ( Form 10-Q filed August 14, 2018 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.8* Form of Warrant issued to dealer-manager in Rights Offering ( Form 10-Q filed August 14, 2018 , Exhibit 4.2 (File no. 001-37941 ) ) .
4.9* Warrant Agency Agreement, dated August 13, 2018, between the Registrant and Transfer Online, Inc. ( Form 10-Q filed August 14, 2018 , Exhibit 4.3 (File no. 001-37941 ) ) .
4.10* Form of Placement Agent Warrant ( Form 8-K filed July 17, 2019 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.11* Form of Warrant ( Form 8-K filed January 28, 2020 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.12* Form of Placement Agent Warrant ( Form 8-K filed January 28, 2020 , Exhibit 4.2 (File no. 001-37941 ) ) .
4.13* Form of Warrant ( Form 8-K filed March 6, 2020 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.14* Form of Placement Agent Warrant ( Form 8-K filed March 6, 2020 , Exhibit 4.2 (File no. 001-37941 ) ) .
4.15* Form of Restricted Stock Unit Notice and Agreement (Form 10-K filed March 17, 2020, Exhibit 4.6 (File no. 001-37941)).
4.16* Form of New Warrant ( Form 8-K filed October 27, 2020 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.17* Form of Placement Agent Warrant ( Form 8-K filed October 27, 2020 , Exhibit 4.1 (File no. 001-37941 ) ) .
4.18* Form of Pre-Funded Warrant ( Form 8-K filed February 2, 2021 , Exhibit 4.1 (File no. 001-37941 ) ) .
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4.19* Form of Warrant ( Form 8-K filed February 2, 2021 , Exhibit 4.2 (File no. 001-37941 ) ) .
4.20* Form of Placement Agent Warrant ( Form 8-K filed February 2, 2021 , Exhibit 4.3 (File no. 001-37941 ) ) .
4.21* Form of Placement Agent Warrant (Form 8-K filed March 23, 2021, Exhibit 4.1 (File no. 001-37941)).
4.22* Form of Series A Warrant (Form S-1/A filed November 15, 2022, Exhibit 4.21 (File no. 333-267991)).
4.23* Form of Series B Warrant (Form S-1/A filed November 15, 2022, Exhibit 4.22 (File no. 333-267991)).
4.24* Form of Pre-Funded Warrant (Form S-1/A filed November 15, 2022, Exhibit 4.23 (File no. 333-267991)).
4.25* Form of Placement Agent Warrant (Form S-1/A filed November 15, 2022, Exhibit 4.24 (File no. 333-267991)).
4.26* Form of SenesTech, Inc. Stock Option Grant Notice and Stand-Alone Option Agreement (Form S-8 filed February 10, 2023, Exhibit 4.2 (File no. 333-269686)).
4.27* Form of SenesTech, Inc. Restricted Stock Unit Grant Notice and Stand-Alone Restricted Stock Unit Agreement (Form S-8 filed February 10, 2023, Exhibit 4.3 (File no. 333-269686)).
(10) Material Contracts
10.1* SenesTech, Inc. 2015 Equity Incentive Plan and forms of agreement thereunder (Form S-1 filed September 21, 2016, Exhibit 10.2 (File no. 333-213736)). +
10.2* Form of Indemnification Agreement (Form S-1 filed September 21, 2016, Exhibit 10.6 (File no. 333-213736 ) ). +
10.3* Employment Offer Letter by and between the Registrant and Thomas Chesterman dated November 20, 2015 (Form S-1 filed September 21, 2016, Exhibit 10.9 (File no. 333-213736 ) ). +
10.4* Employment Letter Agreement by and between the Registrant and Kim Wolin dated January 28, 2020 (Form S-1 filed February 13, 2020, Exhibit 10.7 (File no. 333-236302 ) ). +
10.5* Employment Letter Agreement by and between the Registrant and Steven Krause, dated January 12, 2020 (Form 10-K/A filed April 21, 2020, Exhibit 10.1 (File no. 001-37941 ) ). +
10.6* Promissory Note, dated April 15, 2020, by and between the Company and BMO Harris Bank National Association (Form 8-K filed April 21, 2020, Exhibit 10.1 (File no. 001-37941 ) ).
10.7* Employment Letter Agreement by and between SenesTech, Inc. and Kenneth Siegel dated May 16, 2019 (Form 8-K filed May 20, 2019, Exhibit 10.1 (File no. 001-37941)).+
10.8* Lease by and between the Registrant and Pinnacle Campus Office-Retail, LLC, dated as of November 18, 2019 (Form 10-K filed March 29, 2022, Exhibit 10.1 (File no. 333-236302 ) ).
10.9* Standard Industrial/Commercial Multi-Tenant Lease, between the Company and Duke Go PP, LLC, dated as of June 22, 2020 ( Form 10-Q filed August 13, 2020 , Exhibit 10.4 (File no. 001-37941 )).
10.10* Form of Securities Purchase Agreement ( Form 8-K filed July 17, 2019 , Exhibit 10.1 (File no. 001-37941 )).
10.11* Form of Securities Purchase Agreement ( Form 8-K filed January 28, 2020 , Exhibit 10.1 (File no. 001-37941 )).
10.12* Form of Securities Purchase Agreement ( Form 8-K filed March 6, 2020 , Exhibit 10.1 (File no. 001-37941 )).
10.13* Form of Securities Purchase Agreement (Form S-1/A filed February 13, 2020, Exhibit 10.19 (File no. 333-236302)).
10.14* Form of Securities Purchase Agreement ( Form 8-K file d April 2 1 , 2020 , Exhibit 10.1 (File no. 001-37941 )).
10.15* Form of Letter Agreement, dated as of October 23, 2020, between the Company and the purchaser thereto ( Form 8-K filed October 27, 2020 , Exhibit 10.1 (File no. 001-37941 )).
10.16* Form of Securities Purchase Agreement, dated as of January 27, 2021 ( Form 8-K filed February 2, 2021 , Exhibit 10.1 (File no. 001-37941 )).
10.17* Form of Registration Rights Agreement, dated as of January 27, 2021 ( Form 8-K filed February 2, 2021 , Exhibit 10.2 (File no. 001-37941 )).
10.18* Form of Securities Purchase Agreement (Form S-1 filed November 15, 2022, Exhibit 10.18 (File no. 333-267991)).
10.19* SenesTech, Inc. 2018 Equity Incentive Plan, as amended (Form 8-K filed October 14, 2022, Exhibit 10.23 (File no. 001-37941)). +
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10.19(a)* Form of SenesTech, Inc. Stock Option Grant Notice and Option Agreement (Form 8-K filed October 14, 2022, Exhibit 10.23A (File no. 001-37941)).
10.19(b)* Form of SenesTech, Inc. Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement (Form 8-K filed October 14, 2022, Exhibit 10.23B (File no. 001-37941)).
10.20* Form of Securities Purchase Agreement (Form 8-K filed March 19, 2021, Exhibit 10.1 (File no. 001-37941)).
10.21* Employment Offer Letter by and between the Registrant and Nicole Williams dated May 1, 2021 (Form 8-K filed January 5, 2022, Exhibit 10 .1 (File no.001-37941 ) ). +
10.22* Employment Letter Agreement between SenesTech, Inc. and Joel Freundt dated November 9, 2022 (Form 8-K filed November 14, 2022, Exhibit 10.24 (File no. 001-37941)). +
10.23* Separation Agreement, by and between SenesTech, Inc. and Kenneth Siegel, dated December 29, 2022 (Form 8-K filed January 5, 2023, Exhibit 10.25 (File no. 001-37941)).
(21)
21.1 List of Subsidiaries of the Registrant.
(23) Consents of Experts and Counsel
23.1 Consent of Independent Registered Public Accounting Firm M&K CPAS, PLLC.
(31) Rule 13a-14(a)/15d-14(a) Certifications
31.1 Certification of Chief Executive Officer.
31.2 Certification of Chief Financial Officer.
(32) Section 1350 Certifications
32.1 Certifications of Chief Executive Officer and Chief Financial Officer.
(101) Interactive Data File
101.INS Inline XBRL Instance Document.
101.SCH Inline XBRL Taxonomy Extension Schema Document.
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document.
101.LAB Inline XBRL Taxonomy Extension Labels Linkbase Document.
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document.
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document.
104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).
* Incorporated by reference as indicated.
+ Indicates a management contract or compensatory plan or arrangement.
ITEM 16. FORM 10-K SUMMARY.
Not applicable.
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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.
SENESTECH, INC.
Date: March 16, 2023
By: /s/ Joel Freundt
Joel Freundt
Chief Executive Officer
Date: March 16, 2023
By: /s/ Thomas C. Chesterman
Thomas C. Chesterman
Chief Financial Officer and Treasurer
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 on the dates indicated.
Signature Title Date
/s/ Joel Fruendt Chief Executive Officer March 16, 2023
Joel Fruendt (Principal Executive Officer)
/s/ Thomas C. Chesterman Chief Financial Officer and Treasurer March 16, 2023
Thomas C. Chesterman (Principal Financial and Accounting Officer)
/s/ Jamie Bechtel Chair of the Board March 16, 2023
Jamie Bechtel
/s/ Marc Dumont Director March 16, 2023
Marc Dumont
/s/ Delphine Francois Chiavarini Director March 16, 2023
Delphine Francois Chiavarini
/s/ Phil Grandinetti Director March 16, 2023
Phil Grandinetti
/s/ Jake Leach Director March 16, 2023
Jake Leach
/s/ Matthew K. Szot Director March 16, 2023
Matthew K. Szot
43
Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.