Item 9A. Controls and Procedures
Item 9A. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
Our management, under the supervision and with the participation of our Chief Executive Officer and our Chief Financial Officer, our principal executive and principal financial officers, respectively, conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act of 1934, as amended, as of the end of the period covered by this Annual Report on Form 10-K. Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that, as of December 31, 2023, our disclosure controls and procedures were effective (a) to ensure that information that we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and (b) to include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act 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.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act. Under the supervision and with the participation of senior management, including our Chief Executive Officer and Chief Financial Officer, we evaluated the effectiveness of our internal control over financial reporting based on the framework in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on the evaluation under that framework and applicable SEC rules, our management concluded that our internal control over financial reporting was effective as of December 31, 2023.
The Company’s independent registered public accounting firm, Ernst & Young LLP, has issued an attestation report on the effectiveness of our internal control over financial reporting as of December 31, 2023, which is included in this Item 9A under the caption "Report of Independent Registered Public Accounting Firm."
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the quarter ended December 31, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations of Internal Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal controls over financial reporting will prevent or detect all errors and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of a simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management overriding of the controls. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
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Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Evolus, Inc.
Opinion on Internal Control Over Financial Reporting
We have audited Evolus, Inc.’s internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Evolus, Inc. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2023 and 2022, the related consolidated statements of operations and comprehensive loss, stockholders’ equity (deficit) and cash flows for each of the two years in the period ended December 31, 2023, and the related notes and our report dated March 7, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s 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 generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young LLP
Irvine, California
March 7, 2024
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Item 9B. Other Information.
Insider Trading Arrangements
None .
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
Part III
Item 10. Directors, Executive Officers and Corporate Governance.
Except as disclosed below with respect to our Code of Conduct, the information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2024 Annual Meeting of Stockholders.
We have a Code of Conduct applicable to all directors, officers and employees of the Company. We have posted the Code of Business Conduct on our website at www.evolus.com. We will post any amendments to the Code of Conduct on our website. In accordance with the requirements of the SEC and Nasdaq, we will also post waivers applicable to any of our officers or directors from provisions of the Code of Conduct on our website.
Item 11. Executive Compensation.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2024 Annual Meeting of Stockholders.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2024 Annual Meeting of Stockholders.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2024 Annual Meeting of Stockholders.
Item 14. Principal Accounting Fees and Services.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2024 Annual Meeting of Stockholders.
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Part IV
Item 15. Exhibits, Financial Statement Schedules.
(a) The following documents are filed as part of this Annual Report on Form 10-K:
(1) Financial Statements. See Item 8 “Consolidated Financial Statements and Supplementary Data” elsewhere in this Annual Report on Form 10-K.
(2) Financial Statement Schedules. None. Financial statement schedules have been omitted because they are not applicable.
(3) Exhibits. The following exhibits are filed (or incorporated by reference herein) as part of this Annual Report on Form 10-K:
EXHIBIT INDEX
Incorporated by Reference
Exhibit Number Exhibit Title Form File No. Exhibit Filing Date Filed Herewith
(x)
3.1 Amended and Restated Certificate of Incorporation.
8-K 001-38381 3.1 2/12/18
3.2 Certificate of Amendment to Amended and Restated Certificate of Incorporation, dated June 12, 2023
8-K 001-38381 3.1 6/14/23
3.3 Amended and Restated Bylaws.
8-K 001-38381 3.2 2/12/18
4.1 Specimen certificate evidencing shares of common stock of the Registrant.
S-1/A 333-222478 4.1 1/25/18
4.3 Description of Securities
X
10.1‡
Stock Purchase Agreement, dated as of September 30, 2014, by and between Strathspey Crown Holdings, LLC and ALPHAEON Corporation.
X
10.2‡
Amendment to Stock Purchase Agreement, dated as of September 30, 2014, by and between Strathspey Crown Holdings, LLC and ALPHAEON Corporation.
X
10.3‡ License and Supply Agreement, dated as of September 30, 2013, by and between Daewoong Pharmaceutical Co., Ltd. and the Registrant.
10-K
001-38381 10.3
3/8/23
10.4‡
First Amendment to License and Supply Agreement, dated as of February 26, 2014, by and between Daewoong Pharmaceutical Co., Ltd. and the Registrant.
X
10.5‡
Second Amendment to License and Supply Agreement, dated as of July 15, 2014, by and between Daewoong Pharmaceutical Co., Ltd. and the Registrant.
X
10.6+ 2017 Omnibus Incentive Plan.
S-1 333-222478 10.6 1/9/18
10.7+ Form of Option Award Agreement under 2017 Omnibus Incentive Plan.
S-1 333-222478 10.7 1/9/18
10.8+ Form of Dueling Option Award Agreement under 2017 Omnibus Incentive Plan.
S-1 333-222478 10.8 1/9/18
10.9+ Form of Restricted Shares Award Agreement under 2017 Omnibus Incentive Plan.
S-1 333-222478 10.9 1/9/18
10.10+ Form of RSU Award Agreement under 2017 Omnibus Incentive Plan.
S-1 333-222478 10.10 1/9/18
10.11+ Form of RSU Award Agreement under 2017 Omnibus Incentive Plan (Updated 2020)
10-K 001-38381 10.11 2/25/20
10.12+ Form of Inducement Stock Option Award Agreement
S-8 333-263325 99.2 3/4/22
10.13+ Form of Inducement Restricted Stock Unit Award Agreement
S-8 333-263325 99.3 3/4/22
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10.14+ Form of Performance Restricted Stock Unit Agreement
10-K
001-38381 10.14
3/8/23
10.15+
2023 Inducement Incentive Plan
S-8 333-274906 99.3 10/6/23
10.16+
Form of Indemnification Agreement by and between the Registrant and its directors and officers.
S-1/A 333-222478 10.11 1/25/18
10.17†
Second Amendment to Stock Purchase Agreement, dated as of December 14, 2017, by and among SCH-AEON, LLC (f/k/a Strathspey Crown Holdings, LLC), ALPHAEON Corporation, the Registrant and J. Christopher Marmo, as Contributors’ Representative, and acknowledged by the parties listed as Contributors on the signature pages thereto.
S-1 333-222478 10.20 1/9/18
10.18+
Employment Agreement, dated as of May 6, 2018, by and between David Moatazedi and the Registrant.
S-1 333-226186 10.29 7/16/18
10.19+
Amendment to Employment Agreement, dated August 1, 2022, by and between Evolus, Inc. and David Moatazedi
10-Q 001-38381 10.3 8/2/22
10.20+
Amended and Restated Employment Agreement, dated August 1, 2022, by and between Evolus, Inc. and Rui Avelar, M.D.
10-Q 001-38381 10.4 8/2/22
10.21+
Employment Agreement, dated September 5, 2022, by and between Sandra Beaver and the Registrant.
10-Q 001-38381 10.1 11/8/22
10.22
Lease, dated as of May 15, 2019, between the Registrant and 520 Newport Center Drive LLC
8-K 001-38381 10.1 5/21/19
10.23‡
Settlement and License Agreement, dated February 18, 2021, by and between Evolus, Inc. and Medytox, Inc.
10-Q 001-38381 10.3 5/12/21
10.24
Share Issuance Agreement, dated February 18, 2021, by and between Evolus Inc. and Medytox, Inc.
10-Q 001-38381 10.4 5/12/21
10.25‡
Confidential Settlement and Release Agreement, dated March 23, 2021, by and between Evolus, Inc. and Daewoong Pharmaceutical Co. Ltd.
10-Q 001-38381 10.5 5/12/21
10.26‡ Third Amendment to Supply Agreement, dated March 23, 2021, by and between Evolus, Inc. and Daewoong Pharmaceutical Co. Ltd.
10-Q 001-38381 10.7 5/12/21
10.27‡ Loan Agreement, dated as of December 14, 2021, by and among Evolus, Inc. (as Borrower and a Credit Party), BioPharma Credit PLC (as Collateral Agent), BPCR Limited Partnership (as a Lender), and BioPharma Credit Investments V (Master) LP (as a Lender).
8-K 001-38381 10.1 12/14/21
10.28 First Amendment to Loan Agreement, dated April 5, 2022, by and among Evolus, Inc. (as Borrower and a Credit Party), BioPharma Credit PLC (as Collateral Agent), BPCR Limited Partnership (as a Lender), and BioPharma Credit Investments V (Master) LP (as a Lender).
10-Q 001-38381 10.2 8/2/22
10.29 Second Amendment to Loan Agreement, dated as of December 5, 2022, by and among Evolus, Inc. (as Borrower and a Credit Party), BioPharma Credit PLC (as Collateral Agent), BPCR Limited Partnership (as a Lender), and BioPharma Credit Investments V (Master) LP (as a Lender).
8-K 001-38381 10.1 12/8/22
10.30‡ Fourth Amendment to Supply Agreement, dated December 12, 2022, by and between Evolus, Inc. and Daewoong Pharmaceutical Co. Ltd.
8-K 001-38381 10.1 12/13/22
10.31‡
Fifth Amendment to Supply Agreement, dated as of April 20, 2023, by and between Daewoong Pharmaceutical Co. Ltd. and Evolus, Inc.
10-Q 001-38381 10.1 8/2/23
10.32‡ License, Supply, and Distribution Agreement, dated as of May 9, 2023 by and between Symatese S.A.S. and the Registrant
10-Q 001-38381 10.2 8/2/23
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10.33 Third Amendment to Loan Agreement, dated as of May 9, 2023, by and among Evolus, Inc. (as Borrower and a Credit Party), BioPharma Credit PLC (as Collateral Agent), BPCR Limited Partnership (as a Lender), and BioPharma Credit Investments V (Master) LP (as a Lender).
10-Q 001-38381 10.3 8/2/23
10.34+
Employment Agreement, dated August 21, 2023, by and between Tomoko Yamagishi-Dressler and the Registrant.
10-Q 001-38381 10.2 11/7/23
10.35‡
L icense , Sup ply , and Distribution Agreement (Europe), dated as of December 20, 2024, by and between Evolus Pharma B.V. and Sy matese Ae sthetics S.A.S
X
10.36
First Amendment to Lease, dated as of July 27, 2023, by and between the Registrant and 520 Newport Center Drive LLC
X
21.1 List of Subsidiaries.
X
23.1 Consent of independent registered public accounting firm.
X
24.1 Power of Attorney (included on signature page).
X
31.1 Certification of Principal Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.
X
31.2 Certification of Principal Financial Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.
X
32.1# Certifications of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
X
97 Policy Regarding the Recoupment of Certain Compensation Payments
X
101.INS* Inline XBRL Instance Document. X
101.SCH* Inline XBRL Taxonomy Extension Schema Document. X
101.DEF* Inline XBRL Taxonomy Extension Definition Linkbase Document. X
101.LAB* Inline XBRL Taxonomy Extension Label Linkbase Document. X
101.PRE* Inline XBRL Taxonomy Extension Presentation Linkbase Document. X
104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) X
_____________
+
Indicates management contract or compensatory plan.
†
The Registrant has omitted and filed separately with the Securities and Exchange Commission portions of the exhibit pursuant to a confidential treatment request under Rule 406 promulgated under the Securities Act of 1933, as amended, or the Securities Act.
‡ Portions of this exhibit have been omitted pursuant to Item 601(b)(10) of Regulation S-K.
# The information in Exhibit 32.1 shall not be deemed “filed” for purposes of Section 18 of the Exchange Act of 1934, as amended, or the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act (including this Annual Report on Form 10-K), unless the Registrant specifically incorporates the foregoing information into those documents by reference.
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Item 16. Form 10-K Summary.
None.
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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, on March 7, 2024.
EVOLUS, INC.
By: /s/ David Moatazedi
David Moatazedi
President and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Evolus, Inc. constitute and appoint David Moatazedi and Sandra Beaver, and each of them, as their true and lawful attorneys and agents with power of substitution, to do any and all acts and things in our name and behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents may deem necessary or advisable to enable said corporation to comply with the Securities Exchange Act of 1934, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Annual Report on Form 10-K, including specifically but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments hereto; and we do hereby ratify and confirm all that said attorneys and agents shall do or cause to be done by virtue hereof.
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 and on the dates indicated.
Signature Title Date
/s/ David Moatazedi President, Chief Executive Officer and
Member of the Board of Directors
(Principal Executive Officer)
March 7, 2024
David Moatazedi
/s/ Sandra Beaver Chief Financial Officer
(Principal Financial Officer) March 7, 2024
Sandra Beaver
/s/ Vikram Malik Chairman of the Board of Directors March 7, 2024
Vikram Malik
/s/ Simone Blank Director March 7, 2024
Simone Blank
/s/ Robert Hayman Director March 7, 2024
Robert Hayman
/s/ David Gill Director March 7, 2024
David Gill
/s/ Karah Parschauer Director March 7, 2024
Karah Parschauer
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Signature Title Date
/s/ Brady Stewart Director March 7, 2024
Brady Stewart