UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-K/A

(Amendment No. 1)

☒	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2023

☐	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For The Transition Period FromTo

Commission file number: 001-41567

PROSOMNUS, INC.

(Exact name of registrant as specified in its charter)


Delaware	88-2978216
(State of Other Jurisdiction of incorporation or Organization)	(I.R.S. Employer Identification No.)
5675 Gibraltar Drive, Pleasanton, CA	94588
(Address of principal executive offices)	(Zip code)

Registrant's telephone number, including area code: (844) 537-5337

Securities registered pursuant to Section 12(b) of the Act:




		Name Of Each Exchange
Title of Each Class	Trading Symbol(s)	On Which Registered
Common Stock, $0.0001 Par Value per Share Warrants, each whole warrant exercisable for one share of Common Stock for $11.50 per share	OSA OSAAW	The Nasdaq Stock Market LLC (1) The Nasdaq Stock Market LLC (1)

(1)On April 24, 2024, the Nasdaq Stock Market LLC filed a Form 25 to delist the Company’s common stock and warrants and remove such securities from registration under Section 12(b) of the Securities Exchange Act of 1934, as amended. Effective April 18, 2024, the Company’s common stock and warrants have been traded on the over-the-counter market under the symbols “OSAP” and “OSAPW”, respectively.

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 Section 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 such files). Yes ☒ No ☐

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 232.405 of this chapter) is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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. ☐

Indicate 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. ☐

If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐

Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐

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 held by non-affiliates of the registrant, based on the last sale price for such stock on June 30, 2023, was $25.7 million. This determination of affiliate status is not necessarily a conclusive determination for other purposes. As of April 26, 2024, there were 17,394,064 shares of Registrant's Common Stock outstanding.


		Page
PART III

Item 10. Directors, Executive Officers and Corporate Governance		4

Item 11. Executive Compensation		10

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters		13

Item 13. Certain Relationships and Related Transactions, and Director Independence		15

Item 14. Principal Accounting Fees and Services		17

PART IV

Item 15. Exhibits and Financial Statement Schedules		21

Signatures		23



Name	Age	Position
Executive Officers
Leonard Liptak	50	Chief Executive Officer and Director
Brian Dow	54	Chief Financial Officer
Sung Kim	42	Chief Technology Officer


				Current Term
Name	Class	Age	Position	Expires
Non-Executive Directors
Laing Rikkers	B	53	Chair of the Board	2024
Leonard Hedge(2)(3)	A	67	Director	2026
Heather Rider(2)(3)	B	64	Director	2024
William Johnson(1)(3)	C	66	Lead Independent Director	2025
Steven Pacelli(1)(2)	A	52	Director	2026
Jason Orchard(1)	B	47	Director	2024


Board Diversity Matrix (as of March 31, 2024)
Total Number of Directors #	7
Part I: Gender Identity	Female	Male	Non-Binary	Did Not Disclose Gender
Directors	2	5	-	-
Part II: Demographic Background
White	2	5	-	-



			Performance	Non-Equity
			Plan	Incentive Plan
		Salary	Compensation	Compensation	Total
Name and Position	Year	($)	($)⁽³⁾	($) ⁽²⁾	($)
Leonard Liptak	2023	500,000	956,182	242,813	1,698,995
Chief Executive Officer	2022	333,750	480,570	631,597	1,445,917
Brian Dow	2023	315,404	512,591	131,863	959,858
Chief Financial Officer ₍₁₎	2022	—	—	—	—
Sung Kim	2023	300,000	892,057	106,125	1,298,182
Chief Technology Officer	2022	205,006	108,199	249,625	562,830

	Option Awards					Stock Awards
Name	Number of securities underlying unexercised options (#) exercisable	Number of securities underlying unexercised options(#) unexercisable	Equity incentive plan awards: Number of securities underlying unexercised unearned options	Option exercise price ($)	Option expiration date	Number of shares or units of stock that have not vested (#)	Market value of shares or units of stock that have not vested ($) (1)	Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#)	Equity incentive plan awards: Market or payout value of unearned shares, units or other rights that have not vested ($)
Len Liptak	-	278,323	278,323	$5.20	1/30/2033	168,750	$165,375	168,750	-
Brian Dow	-	147,390	147,390	$5.23	3/1/2033	93,750	$91,875	93,750	-
Sung Kim		278,323	278,323	$5.20	1/30/2033	93,750	$91,875	93,750	-


	Board	Audit	Compensation	Nominating
Chair	$85,000	$20,000	$15,000	$10,000
Member	$40,000	$10,000	$7,500	$5,000


Name	Fees earned or paid in cash ($)	Stock awards ($)	Option awards ($)	Non-equity incentive plan compensation ($)	Nonqualified deferred compensation earnings ($)	All other compensation ($)	Total ($)
Laing Rikkers (1)	-	-	-	-	-	17,074	17,074
Leonard Hedge	39,375	-	66,406	-	-	-	105,781
William Johnson	50,625	-	66,406	-	-	-	117,031
Jason Orchard	37,500	-	66,406	-	-	-	103,906
Heather Rider	45,000	-	66,406	-	-	-	111,406
Steven Pacelli	45,000	-	66,406	-	-	-	111,406


Name of Beneficial Owner	Number of Shares Beneficially Owned	Percentage of Class of Shares Beneficially Owned
Directors and Named Executive Officers:
Leonard Liptak (1)	635,291	3.7	%
Laing Rikkers (2)	1,044,923	6.0	%
Sung Kim	176,897	1.0
Brian Dow	136,848	*
William Johnson	82,526	*
Leonard Hedge	76,255	*
Jason Orchard	6,000	*
Steven Pacelli	24,200	*
Heather Rider	15,100	*
All executive officers and directors as a group (9 individuals)₍₃₎	2,198,039	12.6	%
Greater than Five Percent Holders:
HealthpointCapital, LLC(4)	6,553,664	37.7	%
SMC Holdings II, LP(5)	5,774,552	33.2	%



			Number of
			Securities
			Remaining
			Available for
	Number of		Future Issuance
	Securities to be		Under Equity
	Issued Upon	Weighted-Average	Compensation
	Exercise of	Exercise Price of	Plans (Excluding
	Outstanding	Outstanding	Securities
	Options, Warrants,	Options, Warrants,	Reflected in
	Rights and RSUs	Rights and RSUs	Column (A))
Plan Category
Equity compensation plans approved by security holders:			5,889,525
Options	1,562,496	$4.67	N/A
RSUs	543,750	$0.86	N/A
Equity compensation plans not approved by security holders	—	N/A	—
Total	2,106,247		5,889,525


	Fiscal Year Ended December 31, 2023			Fiscal Year Ended December 31, 2022
Audit Fees paid to Marcum LLP		$	380,070		$	196,000
Audit-Related Fees paid to Marcum LLP			—			97,000
Tax Fees paid to Marcum LLP			—			—
All Other Fees paid to Marcum LLP			—			8,093
TOTAL FEES PAID TO MARCUM LLP		$	380,070		$	301,093

	Fiscal Year				Fiscal Year
				Ended				Ended
				December 31,				December 31,
				2023				2022
Audit Fees paid to SingerLewak		$	—					$	—

Audit-Related Fees paid to SingerLewak			—						83,479

Tax Fees paid to SingerLewak			—				—

All Other Fees paid to SingerLewak			—				2,549

TOTAL FEES PAID TO SINGERLEWAK		$	—			$	86,028



Exhibit No.	Description
2.1	Merger Agreement dated May 9, 2022 (previously filed as Exhibit 2.1 of Form 8-K filed by Lakeshore with the SEC on May 10, 2022).
3.1	Amended and Restated Certificate of Incorporation of ProSomnus, Inc. (previously filed as Exhibit 3.1 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
3.2	Amended and Restated Bylaws of ProSomnus, Inc. (previously filed as Exhibit 3.2 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
3.3	Certificate of Designations (previously filed as Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2023).
4.1	Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (previously filed as Exhibit 4.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
4.2	Specimen Common Stock Certificate (previously filed as Exhibit 4.1 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
4.3	Specimen Warrant Certificate (incorporated by reference to Exhibit 4.3 of the Registration Statement on Form S-1/A filed by Lakeshore with the SEC on April 22, 2021).
4.4	Warrant Agreement, dated June 10, 2021, by and between Continental Stock Transfer & Trust Company and the Registrant (previously filed as Exhibit 4.1 of Form 8-K filed by Lakeshore with the SEC on June 16, 2021).

4.5	Indenture for Senior Secured Convertible Notes due 2025, dated December 6, 2022 by and between ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, as guarantors, and Wilmington Trust, National Association, as trustee and collateral agent (incorporated by reference to Exhibit 10.9 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022).
4.6	First Supplemental Indenture, dated as of June 29, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2023).
4.7	Second Supplemental Indenture, dated as of September 20, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2023).
4.8	Indenture for Subordinated Secured Convertible Notes due 2026, dated December 6, 2022 by and between ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, as guarantors, and Wilmington Trust, National Association, as trustee and collateral agent (incorporated by reference to Exhibit 10.10 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022).
4.9	First Supplemental Indenture, dated as of June 29, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed on June 30, 2023).
4.10	Second Supplemental Indenture, dated as of September 20, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2023).
4.11	Indenture, dated as of October 11, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association, as trustee and collateral agent (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on October 12, 2023).
4.12	Form of Senior Secured Convertible Exchange Note due December 6, 2025 (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on October 12, 2023).
4.13	Indenture, dated as of October 11, 2023, by and among ProSomnus, Inc., ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors, and Wilmington Trust, National Association, as trustee and collateral agent (incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed with the SEC on October 12, 2023).
4.14	Form of Subordinated Secured Convertible Exchange Note due April 6, 2026 (incorporated by reference to Exhibit 4.4 of the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2023).
4.15	Form of Warrant (previously filed as exhibit 4.1 of Form 8-K filed by ProSomnus with the SEC on September 21, 2023)
10.1	Letter Agreement by and between the Registrant and each of the initial shareholders, officers and directors of the Registrant (previously filed as Exhibit 10.1 of Form 8-K filed by Lakeshore with the SEC on June 16, 2021).
10.2	Investment Management Trust Account Agreement, dated June 10, 2021, by and between Continental Stock Transfer & Trust Company and the Registrant (previously filed as Exhibit 10.2 of Form 8-K filed by Lakeshore with the SEC on June 16, 2021).
10.3	Registration Rights Agreement, dated June 10, 2021, among the Registrant, Continental Stock Transfer & Trust Company and the initial shareholders (previously filed as Exhibit 10.3 of Form 8-K filed by Lakeshore with the SEC on June 16, 2021).
10.4	Registration Rights Agreement, dated December 6, 2022, by and between ProSomnus, Inc. and parties thereto (previously filed as Exhibit 10.4 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.5	Registration Rights Agreement, dated December 6, 2022, by and between ProSomnus, Inc. and certain holders of Convertible Notes (previously filed as Exhibit 10.5 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.6	Form of Indemnification Agreement between ProSomnus, Inc. and certain of its officers and directors (previously filed as Exhibit 10.3 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.7	Private Placement Securities Subscription Agreements by and between the Company and the purchasers of the Company’s insider shares and private units (previously filed as Exhibit 10.5 of Form 8-K filed by Lakeshore with the SEC on June 10, 2021).
10.8	Form of Purchaser Support Agreement (previously filed as Exhibit 10.1 of Form 8-K filed by Lakeshore with the SEC on May 10, 2022).
10.9	Form of Voting and Support Agreement (previously filed as Exhibit 10.2 of Form 8-K filed by Lakeshore with the SEC on May 10, 2022).
10.10	Form of Lock-Up Agreement (previously filed as Exhibit 10.6 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.11	Form of Non-Competition and Non-Solicitation Agreement (previously filed as Exhibit 10.4 of Form 8-K filed by Lakeshore with the SEC on May 10, 2022).
10.12	Form of Amended and Restated Registration Rights Agreement (previously filed as Exhibit 10.5 of Form 8-K filed by Lakeshore with the SEC on May 10, 2022).
10.13+	2022 Amended Equity Incentive Plan and forms of equity agreements thereunder (previously filed as Exhibit 10.2 of Form 8-K filed by ProSomnus with the SEC on December 11, 2023).
10.14	Employment Agreement with Leonard Liptak (previously filed as Exhibit 10.11 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.15	Employment Agreement with Sung Kim (previously filed as Exhibit 10.14 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).

10.16	Employment Agreement with Melinda Hungerman (previously filed as Exhibit 10.13 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.17	Employment Agreement with Laing Rikkers (previously filed as Exhibit 10.12 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
10.18	Employment Agreement with Brian Dow (incorporated by reference to Exhibit 10.1 of the Company’s Current Report Form 8-K with the SEC on March 1, 2023).
10.19	Form of Securities Purchase Agreement, dated as of September 20, 2023, by and among ProSomnus, Inc. and the investors named therein (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2023).
10.20	Senior Security Agreement, dated as of October 11, 2023, by and among ProSomnus, Inc., the subsidiaries of ProSomnus, Inc., from time to time party thereto, and Wilmington Trust, National Association, as collateral agent (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on October 12, 2023).
10.21	Subordinated Security Agreement, dated as of October 11, 2023, by and among ProSomnus, Inc., the subsidiaries of ProSomnus, Inc., from time to time party thereto, and Wilmington Trust, National Association, as collateral agent (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the SEC on October 12, 2023).
10.22+	Restated Employment Agreement by and between ProSomnus, Inc. and Dr. Mark Murphy, dated August 7, 2023 (previously filed as exhibit 10.1 on Form 10-Q with the SEC on August 9, 2023).
10.23	Form of Restricted Stock Unit Award (previously filed as Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023).
10.24	Form of executive employment agreement (previously filed as Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 11, 2023).
10.25+	2023 Employee Stock Purchase Plan (previously filed as Exhibit 10.25 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
14.1	Code of Ethics (previously filed as Exhibit 14.1 of Form S-1 - filed by ProSomnus with the SEC on January 9, 2023).
21.1	List of Subsidiaries of ProSomnus (previously filed as Exhibit 21.1 of Form 8-K filed by ProSomnus with the SEC on December 13, 2022).
23.1	Consent of Marcum LLP (previously filed as exhibit 23.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
24.1	Power of Attorney (previously filed as exhibit 24.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
31.1	Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (previously filed as Exhibit 31.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
31.2	Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (previously filed as Exhibit 31.2 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
31.3*	Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.4*	Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1	Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (previously furnished as Exhibit 32.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
97.1	Clawback Policy (previously filed as Exhibit 97.1 of the Company’s Annual Report on Form 10-K filed with the SEC on March 27, 2024).
101*	Inline XBRL data file.
104	Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).


		PROSOMNUS, INC.

		By:	/s/ Len Liptak
			Name: Len Liptak
			Chief Executive Officer



Signature		Title	Date

/s/ Len Liptak		Chief Executive Officer (Principal Executive Officer)	April 29, 2024
Name: Len Liptak

/s/ Brian Dow		Chief Financial Officer and Corporate Secretary (Principal Financial Officer and Principal Accounting Officer)	April 29, 2024

Name: Brian Dow

		Executive Chair	April 29, 2024
Name: Laing Rikkers

		Director	April 29, 2024
Name: Leonard Hedge

		Director	April 29, 2024
Name: William Johnson

		Director	April 29, 2024
Name: Jason Orchard

		Director	April 29, 2024
Name: Steven Pacelli

		Director	April 29, 2024
Name: Heather Rider
By:	/s/ Len Liptak
	Name: Len Liptak
	Attorney-in-Fact

SEC Form 10-K/A filed by ProSomnus Inc. (Amendment)