Tempest Therapeutics, Inc. 10-K/A

10-K/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 10-K/A (Amendment No. 1) (Mark One) ☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31 , 2021 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission File Number: 001-35890 Tempest Therapeutics, Inc. (Exact Name of Registrant as Specified in its Charter) Delaware 45-1472564 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 7000 Shoreline Court, Suite 275 South San Francisco, California 94080 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code: ( 415 ) 798-8589 Securities registered pursuant to Section 12(b) of the Act: Title of Each Class Trading Symbol(s) Name of Each Exchange on which Registered Common Stock, $0.001 par value TPST The Nasdaq Stock Market Securities registered pursuant to Section 12(g) of the Act: None 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 15(d) of the Act. Yes ☐ No ☒ Indicate by check mark whether the registrant (1) 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). Yes ☒ No ☐ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth 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. 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. ☐ Indicated 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. Yes ☐ No ☒ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒ The aggregate market value of the voting and non-voting common equity of the registrant held by non-affiliates as of June 30, 2021 (the last business day of the registrant’s most recently completed second fiscal quarter), based on a closing price of $11.18 per share of the registrant’s common stock as reported on The Nasdaq Stock Market on June 30, 2021, was approximately $ 74.2 million. For purposes of this computation, all officers, directors, and stockholders that the registrant has concluded are affiliates of the registrant are deemed to be affiliates. This calculation does not reflect a determination that certain holders are affiliates of the Registrant for any other purpose. As of March 15, 2022, the registrant had 7,173,094 shares of common stock, $0.001 par value per share, outstanding. DOCUMENTS INCORPORATED BY REFERENCE Portions of the registrant’s definitive Proxy Statement for its 2022 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by the Annual Report on Form 10-K which is being amended hereby, are incorporated by reference into Part III of the Annual Report on Form 10-K. ​​​​​​​ Auditor Firm ID: 42 Auditor Firm ID: 34 Auditor Name: Ernst & Young LLP Auditor Name: Deloitte & Touche LLP Auditor Location: Grand Rapids, Michigan Auditor Location: San Francisco, California EXPLANATORY NOTE Tempest Therapeutics, Inc. (the “Company,” “our,” “us” or “we”) is filing this Amendment No. 1 on Form 10-K/A (this “Amendment No. 1”) to our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (the “Form 10-K”), which was filed with the Securities and Exchange Commission (the “SEC”) on March 29, 2022, to file Exhibits 4.1 and 21.1 to the Form 10-K, which were unintentionally omitted from the Form 10-K. As required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the registrant’s principal executive officer and principal financial officer are filed as exhibits to this Amendment No. 1. Item 15 of Part IV is also being amended to reflect the filing of these new certifications, the filing of Exhibits 4.1 and 21.1, the sequential renumbering of certain exhibits, the removal of inapplicable legends and the addition of Exhibit 104. No other changes have been made to the Form 10-K other than those described above. This Amendment No. 1 does not reflect subsequent events occurring after the original filing date of the Form 10-K or modify or update in any way the financial statements, consents or any other items or disclosures made in the Form 10-K in any way other than as required to reflect the amendments discussed above. Accordingly, this Amendment No. 1 should be read in conjunction with the Form 10-K. 1 PART IV ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a)(1) Financial Statements The financial statements are included in Item 8. “Financial Statements and Supplementary Data” of the Form 10-K. (a)(2) Financial Statement Schedules All schedules are omitted as information required is inapplicable or the information is presented in the financial statements and the related notes included in the Form 10-K. (a)(3) Exhibits Incorporation by Reference Exhibit Number Description of Exhibit Form File Number Exhibit Filing Date Filed or Furnished Herewith 2.1 Agreement and Plan of Merger, dated as of March 29, 2021, by and among Tempest Therapeutics, Inc., Mars Merger Corp. and Tempest Therapeutics, Inc. 8-K 001-35890 2.1 3/29/2021 3.1 Restated Certificate of Incorporation of the Registrant, as amended 10-Q 001-35890 3.1 5/15/2019 3.2 Certificate of Amendment to the Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on June 24, 2021 8-K 001-35890 3.1 6/28/2021 3.3 Certificate of Amendment to the Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on June 25, 2021 8-K 001-35890 3.2 6/28/2021 3.4 Amended and Restated Bylaws of the Registrant 8-K 001-35890 3.1 9/24/2021 4.1 Description of Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 X 4.2 Form of Tempest Therapeutics, Inc. Warrant to Purchase Stock S-4/A 333-255198 4.2 5/4/2021 10.1+ 2011 Equity Incentive Plan S-8 333-257727 10.2 7/7/2021 10.2+ 2017 Equity Incentive Plan S-8 333-257727 10.1 7/7/2021 10.3+ Form of Stock Option Agreement under the 2017 Equity Incentive Plan 10-K 001-35890 10.3 3/29/22 10.4 + 2019 Equity Incentive Plan 8-K 001-35890 10.1 6/13/2019 10.5 + Form of Option Grant Package under 2019 Equity Incentive Plan 10-Q 001-35890 10.7 8/12/2019 10.6 + Form of RSU Grant Package under 2019 Equity Incentive Plan 10-Q 001-35890 10.8 8/12/2019 10.7 + Form of Stock Option Agreement under the Sub Plan for French Residents under 2019 Equity Incentive Plan 10-K 001-35890 10.16 3/11/2020 10.8 + Form of Inducement Nonqualified Stock Option Agreement subject to the terms of the 2019 Equity Incentive Plan 10-K 001-35890 10.17 3/11/2020 10.9 + 2019 Employee Stock Purchase Plan 8-K 001-35890 10.2 6/13/2019 10.10 Loan and Security Agreement, dated January 15, 2021, by and among Oxford Finance LLC, the Lenders party thereto, and Tempest S-4/A 333-255198 10.3 5/4/2021 10.11 + Form of Indemnification Agreement 8-K 001-35890 10.1 7/07/2021 10.12 + Employment Agreement, dated July 7, 2021, by and between the Company and Stephen Brady 8-K 001-35890 10.2 7/07/2021 10.13 + Employment Agreement, dated July 7, 2021, by and between the Company and Thomas Dubensky, Ph.D. 8-K 001-35890 10.3 7/07/2021 10.14 + Employment Agreement, dated July 7, 2021, by and between the Company and Samuel Whiting, M.D., Ph.D. 8-K 001-35890 10.4 7/07/2021 10.15 Lease Agreement, dated February 22, 2019, by and between ARE-San Francisco No. 17, LLC and Tempest Therapeutics, Inc. S-4/A 333-255198 10.1 5/4/2021 10.16 First Amendment to Lease, dated June 28, 2019, by and between ARE-San Francisco No. 17, LLC and Tempest Therapeutics, Inc. S-4/A 333-255198 10.2 5/4/2021 21.1 Subsidiaries of the Registrant X 23.1 Consent of Ernst & Young LLP, independent registered public accounting firm 10-K 001-35890 23.1 3/29/22 23.2 Consent of Deloitte & Touche LLP, independent registered public accounting firm 10-K 001-35890 23.2 3/29/22 24.1 Power of Attorney (included on signature page to the Form 10-K) 10-K 001-35890 24.1 3/29/22 31.1 Certification of Principal Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 10-K 001-35890 31.1 3/29/22 1 31.2 Certification of Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002 10-K 001-35890 31.2 3/29/22 31.3 Certification of Principal Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 X 31.4 Certification of Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934, as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002 X 32.1 ^ Certification of Principal Executive Officer and Principal Financial Officer pursuant to Rules 13a-14(b) and 15d-14(b) promulgated under the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350, as adopted pursuant to section 906 of The Sarbanes-Oxley Act of 2002 10-K 001-35890 32.1 3/29/22 101.INS Inline XBRL Instance Document 10-K 001-35890 101.INS 3/29/22 101.SCH Inline XBRL Taxonomy Extension Schema Document 10-K 001-35890 101.SCH 3/29/22 101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document 10-K 001-35890 101.CAL 3/29/22 101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document 10-K 001-35890 101.DEF 3/29/22 101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document 10-K 001-35890 101.LAB 3/29/22 101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document 10-K 001-35890 101.PRE 3/29/22 104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibits 101) + Indicates management contract or compensatory plan. ^ These certifications were furnished solely to accompany the Annual Report pursuant to 18 U.S.C. Section 1350, and were not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and are not to be incorporated by reference into any filing of the Registrant, whether made before or after the date hereof, regardless of any general incorporation language in such filing. 2 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to the report to be signed on its behalf by the undersigned, thereunto duly authorized. TEMPEST THERAPEUTICS, INC. By: /s/ Stephen Brady Stephen Brady Chief Executive Officer (Principal Executive Officer) Date: March 31, 2022 3