What changed in this filing

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Item 9A. Controls and Procedures

2023-03-27 compared with 2022-03-25 · 36 added, 102 removed, 163 unchanged (46% of the section changed)

10 unchanged sentences

Attestation Report of the Registered Public Accounting Firm

This Annual Report on Form 10-K does not include an attestation report of our independent registered public accounting firm as we are a smaller reporting company and an “emerging growth company” as of December 31, 2021, as defined in the Jumpstart Our Business Startups Act of 2012.

This Annual Report on Form 10-K does not include an attestation report of our independent registered public accounting firm as we are a non-accelerated filer and an “emerging growth company” as of December 31, 2022, as defined in the Jumpstart Our Business Startups Act of 2012.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting during the fiscal quarter ended December 31, 2021 that have materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

There were no changes in our internal control over financial reporting during the fiscal quarter ended December 31, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Inherent Limitations on Effectiveness of Controls

11 unchanged sentences

Other Information.

Repricing of Outstanding and Unexercised Options

On March 24, 2022, the Board unanimously approved the repricing of all outstanding and unexercised stock options granted under the 2015 Plan and 2017 Plan (the “Plans”) and held by current employees, executive officers, and directors of the Company (the “Eligible Stock Options”).

The exercise price of the Eligible Stock Options will be reduced to the closing price of the Company’s common stock on April 1, 2022.

Except for the modification to the exercise price of the Eligible Stock Options, all other terms and conditions of each of the Eligible Stock Options will remain in full force and effect.

Pursuant to the Plans, the Board, as the administrator of the Plans, has discretionary authority, exercisable on such terms and conditions that it deems appropriate under the circumstances, to reduce the exercise price in effect for outstanding options under the Plans.

In approving the repricing, the Board considered the impact of the current exercise prices of outstanding stock options on the incentives provided to employees and directors, the lack of retention value provided by the outstanding stock options to employees and directors, and the impact of such options on the capital structure of the Company.

As of March 24, 2022, there are currently 6,996,741 stock options outstanding under the Plans, and all of the Company’s outstanding stock options have exercise prices in excess of the current fair market value of the Company’s common stock, which is why the Board made the determination to deem all outstanding and unexercised stock options held by current employees, executive officers, and directors as Eligible Stock Options.

Matthias Schroff, the Company’s Chief Executive Officer, and Elias Papadimas, the Company’s Chief Financial Officer, hold Eligible Stock Options exercisable into an aggregate of 881,200 and 375,417 shares of the Company’s common stock, respectively.

Non-employee directors Jeffrey Cleland, Elizabeth Garofalo, Bali Muralidhar and James Sulat hold Eligible Stock Options exercisable into an aggregate of 115,079, 150,000, 115,079 and 93,386 shares of the Company’s common stock, respectively.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

Not applicable.

We will file a definitive proxy statement for our 2022 Annual Meeting of Stockholders, or the Proxy Statement, with the SEC, pursuant to Regulation 14A, not later than 120 days after the end of our fiscal year.

We expect to file a definitive proxy statement for our 2023 Annual Meeting of Stockholders, or the Proxy Statement, with the SEC, pursuant to Regulation 14A, not later than 120 days after the end of our fiscal year.

Accordingly, certain information required by Part III has been omitted under General Instruction G(3) to Form 10-K.

18 unchanged sentences

Exhibit Number Exhibit Description Filed with this Report Incorporated by Reference herein from Form or Schedule Filing Date SEC File/Reg.

2.1† Agreement and Plan of Merger and Reorganization, dated September 26, 2017, by and among Max-1 Acquisition Corporation, Max-1 Acquisition Sub, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, and Exicure OpCo, a Delaware corporation.

8-K (Exhibit 2.1) 10/2/2017 000-55764

3.1 Certificate of Merger relating to the merger of Max-1 Acquisition Sub., Inc.

with and into Exicure OpCo, filed with the Secretary of State of the State of Delaware on September 26, 2017.

8-K (Exhibit 3.1) 10/2/2017 000-55764

3.2 Certificate of Amendment to Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on September 26, 2017.

8-K (Exhibit 3.2) 10/2/2017 000-55764

3.1 Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on November 15, 2017.

10-K (Exhibit 3.3) 3/11/2021 001-39011

3.4 Amended and Restated Bylaws, as currently in effect.

8-K (Exhibit 3.4) 10/2/2017 000-55764

4.1 Form of Warrant to Purchase Shares of Common Stock issued to Placement Agent.

8-K (Exhibit 4.1) 10/2/2017 000-55764

4.2 Form of Registration Rights Agreement by and among the Company and the persons named therein.

3.2 Certificate of Amendment to Amended and Restated Certificate of Incorporation of Exicure, Inc., effective June 29, 2022.

8-K (Exhibit 3.1) 6/29/2022 001-39011

4.3 Form of Registration Rights Agreement by and among the Company and the persons named therein.

3.3 Amended and Restated Bylaws, as currently in effect.

8-K (Exhibit 3.4) 10/2/2017 000-55764

1 unchanged sentence

10-K (Exhibit 4.4) 3/10/2020 001-39011

4.5 Form of Indenture, between the Registrant and one or more trustees to be named.

S-3 (Exhibit 4.2) 12/21/2020 333-251555

4.6 Form of Common Stock Warrant Agreement and Warrant Certificate.

S-3 (Exhibit 4.4) 12/21/2020 333-251555

4.7 Form of Preferred Stock Warrant Agreement and Warrant Certificate.

S-3 (Exhibit 4.5) 12/21/2020 333-251555

4.8 Form of Debt Securities Warrant Agreement and Warrant Certificate .

S-3 (Exhibit 4.6) 12/21/2020 333-251555

10.1+ 2015 Equity Incentive Plan and forms of awards thereunder, assumed in the Merger.

6 unchanged sentences

8-K (Exhibit 10.4) 10/2/2017 000-55764

10.5+ Employment Agreement dated as of February 2, 2016 by and between Exicure OpCo and David A.

Giljohann, Ph.D.

8-K (Exhibit 10.7) 10/2/2017 000-55764

10.5+ Separation and Transition Agreement by and between Exicure Inc.

1 unchanged sentence

8-K (Exhibit 10.3) 2/4/2022 001-39011

10.7+ Amended and Restated Employment Agreement dated as of February 2, 2016 by and between Exicure OpCo and David S.

8-K (Exhibit 10.8) 10/2/2017 000-55764

10.8+ Amended and Restated Employment Agreement as of December 10, 2019 by and between Exicure, Inc.

and Matthias G.

Schroff, Ph.D.

10-K (Exhibit 10.9) 3/10/2020 001-39011

10.9+ Second Amendment to the Employment Agreement, by and between Exicure, Inc.

and Matthias Schroff, dated December 10, 2021

8-K (Exhibit 10.3) 12/10/2021 001-39011

10.6+ Second Amended and Restated Employment Agreement, by and between Exicure, Inc.

1 unchanged sentence

8-K (Exhibit 10.2) 2/4/2022 001-39011

10.11+ Amended and Restated Employment Agreement dated as of June 30, 2020 by and between Douglas E.

Feltner, M.D.

and Exicure, Inc.

10-Q (Exhibit 10.2) 8/12/2020 001-39011

10.12+ Form of Executive Employment Side Letter Agreement

8-K (Exhibit 10.1) 6/9/2020 001-39011

10.13+ Employment Agreement dated as of April 16, 2021 by and between Brian Bock and Exicure, Inc.

8-K (Exhibit 10.1) 5/13/2021 001-39011

10.14+ First Amendment to Employment Agreement dated as of December 10, 2021 by and between Brian Bock and Exicure, Inc.

8-K (Exhibit 10.2) 12/10/2021 001-39011

10.15+ Consulting Agreement dated as of October 1, 2011 by and between AuraSense Therapeutics, LLC and Chad A.

Mirkin, Ph.D.

8-K (Exhibit 10.11) 10/2/2017 000-55764

10.16+ Inducement Award Agreement dated as of May 13, 2021 by and between Brian Bock and Exicure, Inc.

10.7+ First Amendment to the Second Amended and Restated Employment Agreement, by and between Exicure, Inc.

and Matthias Schroff, dated September 23, 2022.

8-K (Exhibit 10.3) 9/27/2022 001-39011

7 unchanged sentences

8-K (Exhibit 10.2) 1/18/2022 001-39011

10.11+ Second Amendment to the Amended and Restated Employment Agreement, by and between Exicure, Inc.

and Elias Papadimas, dated September 23, 2022.

8-K (Exhibit 10.4) 9/27/2022 001-39011

10.12+ Retention Agreement by and between Exicure, Inc.

10-K (Exhibit 10.20) 3/25/2022 001-39011

10.14+ Employment Agreement by and between Exicure, Inc.

and Sarah Longoria, dated March 5, 2021

10.15+ First Amendment to Employment Agreement by and between Exicure, Inc.

and Sarah Longoria, dated December 10, 2021

10.16+ Second Amendment to Employment Agreement by and between Exicure, Inc.

and Sarah Longoria, dated September 23, 2022

10.17 Lease Agreement dated as of February 28, 2020 by and between 2430 N.

1 unchanged sentence

10-Q (Exhibit 10.1) 5/14/2020 001-39011

10.22 Credit and Security Agreement, dated as of September 25, 2020, by and among Exicure, Inc., Exicure Operating Company, the lenders party thereto from time to time and MidCap Financial Trust, as agent.

8-K (Exhibit 10.1) 10/1/2020 001-39011

10.23 Amendment No.

1 dated as of October 21, 2020 to Credit and Security Agreement, dated as of September 25, 2020 by and among Exicure, Inc., Exicure Operating Company, the lenders party thereto from time to time and MidCap Financial Trust, as agent.

10-Q (Exhibit 10.2) 11/12/2020 001-39011

10.23.1 Amendment No.

2 dated as of July 30, 2021 to Credit and Security Agreement, dated as of September 25, 2020 by and among Exicure, Inc., Exicure Operating Company, the lenders party thereto from time to time and MidCap Financial Trust, as agent.

10-Q (Exhibit 10.4) 8/12/2021 001-39011

10.23.2 Amendment No.

3 dated as of September 30, 2021 to Credit and Security Agreement, dated as of September 25, 2020 by and among Exicure, Inc., Exicure Operating Company, the lenders party thereto from time to time and MidCap Financial Trust, as agent.

8-K (Exhibit 10.1) 10/6/2021 001-39011

10.23.3 Amendment No.

4 dated as of December 10, 2021 to Credit and Security Agreement, dated as of September 25, 2020 by and among Exicure, Inc., Exicure Operating Company, the lenders party thereto from time to time and MidCap Financial Trust, as agent.

8-K (Exhibit 10.1) 12/10/2021 001-39011

10.24 Loan and Security Agreement dated as of February 17, 2016 by and between Exicure OpCo and Hercules.

8-K (Exhibit 10.16) 10/2/2017 000-55764

10.25 Amendment No.

1 to Loan and Security Agreement dated as of October 10, 2016 by and between Exicure OpCo and Hercules.

8-K (Exhibit 10.17) 10/2/2017 000-55764

10.25.1 Amendment No.

2 to Loan and Security Agreement dated as of January 15, 2018 by and between Exicure OpCo and Hercules.

S-1/A (Exhibit 10.17.1) 1/26/2018 333-221791

10.25.2 Amendment No.

3 to Loan and Security Agreement dated as of December 28, 2018 by and between Exicure OpCo and Hercules.

10-K (Exhibit 10.18.2) 3/8/2019 000-55764

10.25.3 Amendment No.

4 to Loan and Security Agreement dated as of March 8, 2019 by and between Exicure OpCo and Hercules.

8-K (Exhibit 10.1) 3/14/2019 000-55764

10.18* Restated License Agreement between Exicure OpCo and Northwestern University dated as of August 15, 2015.

29 unchanged sentences

8-K/A (Exhibit 10.25) 11/7/2017 000-55764

10.28* Letter Agreement, dated December 13, 2022, by and between Exicure, Inc.

and Allergan Pharmaceuticals International Limited.

8-K (Exhibit 10.2) 12/14/2022 001-39011

10.29* Collaboration, Option and License Agreement between Exicure, Inc.

3 unchanged sentences

10-K (Exhibit 10.34) 3/10/2020 001-39011

10.31 Mutual Termination Agreement, dated December 12, 2022, by and between Exicure, Inc.

and Ipsen Biopharm Limited.

8-K (Exhibit 10.1) 12/14/2022 001-39011

10.32* Collaboration, Option and License Agreement between Exicure, Inc.

3 unchanged sentences

10- Q (Exhibit 10.4) 11/19/2021 001-39011

10.39 Form of Securities Purchase Agreement, dated December 14, 2021, by and among Exicure, Inc.

10.34 Form of Securities Purchase Agreement, dated May 9 , 202 2 , by and among Exicure, Inc.

and the purchaser parties thereto.

8-K (Exhibit 10.1) 5/13/2022 001-39011

10.40 Form of Subscription Agreement by and between the Company and each investor in the initial closing of the 2017 Private Placement.

10.35 Registration Rights Agreement, dated May 9, 2022, by and among Exicure, Inc.

and the purchasers party thereto.

8-K (Exhibit 10.2) 5/13/2022 001-39011

10.36 Securities Purchase Agreement, dated September 26, 2022, by and between Exicure, Inc.

8-K (Exhibit 10.1) 9/27/2022 001-39011

10.37 Registration Rights Agreement, dated September 26, 2022, by and between Exicure, Inc.

8-K (Exhibit 10.2) 9/27/2022 001-39011

21.1 Subsidiaries of Exicure, Inc.

12 unchanged sentences

104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) X

† Annexes, schedules and/or exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K.

We hereby undertake to furnish supplementally a copy of any of the omitted schedules and exhibits to the SEC on a confidential basis upon request.

+ Indicates a management contract or compensatory plan.

23 unchanged sentences

March 27, 2023

/s/ Elizabeth Garofalo, M.D.

Chair of the Board of Directors March 25, 2022

Elizabeth Garofalo, M.D.

/s/ Jeffrey L.

Cleland, Ph.D.

Director March 25, 2022

Cleland, Ph.D.

/s/ Bali Muralidhar, M.D., Ph.D.

Director March 25, 2022

Bali Muralidhar, M.D., Ph.D.

Sulat Director March 25, 2022

/s/ Seung Soo Shin Chair of the Board of Directors March 27, 2023

Seung Soo Shin

/s/ Changil Ahn Director March 27, 2023

/s/ Cheolho Jo Director March 27, 2023

/s/ Paul Kang Director March 27, 2023

/s/ Hyukku Lee Director March 27, 2023

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