Amendment and Restatement of Previous Charter
This Amended and Restated Charter (this “Charter”) of the Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Vivos Therapeutics, Inc. (the “Company”) is adopted by the Board as of the date first written above and is intended to amend, restate and supersede, in its entirety, any previous charter of the Committee. This Charter is effective as of the date of adoption.
The purpose of the Committee is to oversee the Company’s accounting and financial reporting processes and the audit of the Company’s financial statements.
The primary roles of the Committee are to (1) Oversee the financial reporting and disclosure process; (2) Oversee the Enterprise Risk Management program; and (3) Oversee the Compliance Committee. To fulfill these obligations, the Committee relies on: management for the preparation and accuracy of the Company’s financial statements; both management and the Company’s internal audit department for establishing effective internal controls and procedures to ensure the Company’s compliance with accounting standards, financial reporting procedures and applicable laws and regulations; and the Company’s independent auditors for an unbiased, diligent audit or review, as applicable, of the Company’s financial statements and the effectiveness of the Company’s internal controls. In addition, members of the Committee rely upon Management and outsourced law firm for the analysis of risks and risk mitigations. Members of the Committee rely on outside legal compliance experts as needed for interpretation and analysis of laws and regulations. The members of the Committee are not employees of the Company and are not responsible for conducting the audit or performing other accounting procedures.
The Committee shall consist of three (3) or more directors. Each member of the Committee shall be independent in accordance with the requirements of Rule 10A-3 of the Securities Exchange Act of 1934 and the rules of the NASDAQ Stock Market or any other securities exchange on which any of the Company’s securities are listed. No member of the Committee can have participated in the preparation of the Company’s or any of its subsidiaries’ financial statements at any time during the past three years.
Each member of the Committee must be able to read and understand fundamental financial statements, including the Company’s balance sheet, income statement and cash flow statement. At least one member of the Committee must have past employment experience in finance or accounting, requisite professional certification in accounting or other comparable experience or background that leads to financial sophistication. At least one member of the Committee must be an “Audit Committee Financial Expert” as defined in Item 407(d)(5)(ii) of Regulation S-K. A person who satisfies this definition of audit committee financial expert will also be presumed to have financial sophistication.
The members of the Committee shall be appointed by the nominating and corporate governance committee of the Board. The members of the Committee shall serve for such term or terms as the Board may determine or until earlier resignation or death. The Board may remove any member from the Committee at any time with or without cause.
Duties, Authority and Responsibilities
The Committee will fulfill its responsibilities primarily by carrying out the activities enumerated in this Charter. The Committee will, through its chairperson, report regularly to the Board regarding the execution of its duties, authority and responsibilities.
The Committee shall have the following duties, authority and responsibilities:
To obtain advice and assistance from outside legal, accounting, or other advisors as it deems appropriate to perform its duties and responsibilities.
To (1) select and retain an independent registered public accounting firm to act as the Company’s independent auditors for the purpose of auditing the Company’s annual financial statements, books, records, accounts and internal controls over financial reporting, (2) set the compensation of the Company’s independent auditors, (3) oversee the work done by the Company’s independent auditors, and (4) terminate the Company’s independent auditors, if necessary.
To select, retain, compensate, oversee and terminate, if necessary, any other registered public accounting firm engaged for the purpose of preparing or issuing an audit report or
performing other audit, review or attest services for the Company. This includes outsourced or co-sourced internal audits.
To authorize all audit and permitted non-audit and tax services that may be provided by the Company’s independent auditors or other registered public accounting firms, and establish policies and procedures for the Committee’s pre-approval of permitted services by the Company’s independent auditors or other registered public accounting firms on an ongoing basis.
At least annually, to obtain and review a report by the Company’s independent auditors that describes (1) the accounting firm’s internal quality control procedures, (2) any issues raised by the most recent internal quality control review, peer review or Public Company Accounting Oversight Board review or inspection of the firm or by any other inquiry or investigation by governmental or professional authorities in the past five years regarding one or more audits carried out by the firm and any steps taken to deal with any such issues, and (3) all relationships between the firm and the Company or any of its subsidiaries; and to discuss with the independent auditors this report and any relationships or services that may impact the objectivity and independence of the auditors.
To assure the regular rotation of the lead audit partner at the Company’s independent auditors and consider regular rotation of the accounting firm serving as the Company’s independent auditors.
To review and discuss with the Company’s independent auditors (1) the auditors’ responsibilities under generally accepted auditing standards and the responsibilities of management in the audit process, (2) the overall audit strategy, (3) the scope and timing of the annual audit, (4) any significant risks identified during the auditors’ risk assessment procedures and (5) when completed, the results, including significant findings, of the annual audit.
To review and discuss with the Company’s independent auditors (1) all critical accounting policies and practices to be used in the audit, (2) all alternative treatments of financial information within generally accepted accounting principles (“GAAP”) that have been discussed with management, the ramifications of the use of such alternative treatments and the treatment preferred by the auditors, and (3) other material written communications between the auditors and management.
To review and discuss with management and the Company’s independent auditors: any major issues regarding accounting principles and financial statement presentation, including any significant changes in the Company’s selection or application of accounting principles, any significant financial reporting issues and judgments made in connection with the preparation of the Company’s financial statements, including the effects of alternative GAAP methods, and the effect of regulatory and accounting initiatives and off-balance sheet structures on the Company’s financial statements.
To review with management, the internal audit department and the Company’s independent auditors the adequacy and effectiveness of the Company’s financial reporting processes, internal control over financial reporting and disclosure controls and procedures, including any significant deficiencies or material weaknesses in the design or operation of, and any material changes in, the Company’s processes, controls and procedures and any special audit steps adopted in light of any material control deficiencies, and any fraud involving management or other employees with a significant role in such processes, controls and procedures, and review and discuss with management and the Company’s independent auditors disclosure relating to the Company’s financial reporting processes, internal control over financial reporting and disclosure controls and procedures, the independent auditors’ report on the effectiveness of the Company’s internal control over financial reporting and the required management certifications to be included in or attached as exhibits to the Company’s annual report on Form 10-K or quarterly report on Form 10-Q, as applicable.
To review and discuss with the Company’s independent auditors any other matters required to be discussed by PCAOB Auditing Standards No. 16, Communications with Audit Committees, including, without limitation, the auditors’ valuation of the quality of the company’s financial reporting, information relating to significant unusual transactions and the business rationale for such transactions and the auditors’ evaluation of the company’s ability to continue as a going concern.
To review and discuss with the Company’s independent auditors and management the Company’s annual audited financial statements (including the related notes), the form of audit opinion to be issued by the auditors on the financial statements and the disclosure under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” to be included in the Company’s annual report on Form 10-K before the Form 10-K is filed.
To approve and recommend to the Board that the audited financial statements and the MD&A section be included in the Company’s Form 10-K and produce the audit committee report required to be included in the Company’s proxy statement. To review and approve all SEC financial filings, including 10K, 10Q, Proxy and the S-1, in advance of filings with the SEC.
To review and approve the functions of the Company’s Internal Accounting Department, including its purpose, organization, responsibilities, budget and performance; to review the scope, performance and results of such department’s internal audit plans, including any reports to management and management’s response to those reports; and to review and approve the hiring or dismissal of the Chief Financial Officer, or such person as may, from time to time, be delegated such internal audit function by the Board.
To review and discuss with management and the Internal Audit policies and guidelines to govern the process by which management assesses and manages the Company’s risks,
including the Company’s major financial risk exposures and the steps management has taken to monitor and control such exposures.
To establish and oversee procedures for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and the confidential, anonymous submission by Company employees of concerns regarding questionable accounting or auditing matters.
To review, approve and oversee any transaction between the Company and any related person (as defined in Item 404 of Regulation S-K) and any other potential conflict of interest situations on an ongoing basis, at least annually, in accordance with Company policies and procedures, and to develop policies and procedures for the Committee’s approval of related party transactions.
The Committee shall have the authority, in its sole discretion, to retain and obtain the advice and assistance of independent outside counsel, and such other advisors as it deems necessary and advisable, to fulfill its duties and responsibilities under this Charter and under applicable Statute and Regulation from time to time in effect. The Committee shall set the compensation, and oversee the work, of any outside counsel and other advisors.
The Committee shall receive appropriate funding from the Company, as determined by the Committee in its capacity as a committee of the Board, for the payment of compensation to the Company’s independent auditors, any other accounting firm engaged to perform services for the Company, any outside counsel and any other advisors to the Committee.
Legal, Compliance and Risk Management
The Committee shall review with the Company’s counsel any legal matter that could have a significant impact on the Company’s financial statements. Legal counsel will have a dotted line relationship to the Audit Committee.
The Company shall appoint a Compliance Officer, who will have a dotted line relationship to the Audit Committee.
Management will designate a Risk Officer, who will have a dotted line relationship to the Audit Committee.
The Committee shall oversee the risk management program, which shall be reported to the board.
The Committee shall develop a risk tolerance matrix and review and update as needed, on an annual basis. Such risks include the Company’s major financial and accounting risk exposures; regulatory risk; people/HR risk; strategic and execution risk; patent/intellectual
property and innovation risk; and reputation risk. The overall risk matrices will be developed by management and presented to the Committee at least quarterly, a summary of which will be presented to the Board. The Risk Matrices will show risks, priority, mitigations and accountabilities.
The Committee shall receive appropriate funding from the Company, as determined by the Committee, for the payment of compensation to the Company’s Risk and Compliance consultants engaged to perform Risk Management services to the Company.
Structure and Operations
The Board shall designate a member of the Committee as the Chairperson. The Committee shall meet at least two (2) times a year at such times and places as it deems necessary to fulfill its responsibilities. The Committee shall report regularly to the Board regarding its actions and make recommendations to the Board as appropriate. The Committee is governed by the same rules regarding meetings (including meetings in person or by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board.
The Committee shall review this Charter at least annually and recommend any proposed changes to the Board for approval.
Delegation of Authority
The Committee shall have the authority to delegate any of its responsibilities, along with the authority to take action in relation to such responsibilities, to one or more subcommittees as the Committee may deem appropriate in its sole discretion.
ADOPTED: This 20th day of February 2020.