MIMEDX GROUP, INC. 10-K

Item 9A. Controls and Procedures REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Stockholders and the Board of Directors of MiMedx Group, Inc. Opinion on Internal Control over Financial Reporting We have audited the internal control over financial reporting of MiMedx Group, Inc. and subsidiaries (the “Company”) as of December 31, 2022, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended December 31, 2022, of the Company and our report dated February 28, 2023, expressed an unqualified opinion on those financial statements. 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 Item 9A Managements 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/ Deloitte & Touche LLP Atlanta, Georgia February 28, 2023 79 Evaluation of Disclosure Controls and Procedures Management maintains a set of disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), designed to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC's rules and forms, and that such information is accumulated and communicated to management, including our CEO and CFO, to allow for timely decisions regarding required disclosure. An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures was performed under the supervision and with the participation of our management, including our CEO and CFO. As a result of this evaluation, our CEO and CFO concluded that our disclosure controls and procedures were effective as of December 31, 2022. Management's Report on Internal Control Over Financial Reporting Management, including our CEO and CFO, is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act and based upon the criteria established in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the " COSO framework "). The Company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our financial statements for external purposes in accordance with United States Generally Accepted Accounting Principles (“ GAAP ”). An effective internal control system, no matter how well designed, has inherent limitations, including the possibility of human error or overriding of controls, and therefore can provide only reasonable assurance with respect to reliable financial reporting. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. In addition, 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 demonstrate. Under the supervision and with the participation of our management, including our CEO and CFO, we have conducted an evaluation of the effectiveness of our internal control over financial reporting based on the COSO framework. Based on evaluation under these criteria, management determined that we did maintain effective internal control over financial reporting as of December 31, 2022. Our independent registered public accounting firm, Deloitte & Touche LLP, has audited the effectiveness of our internal control over financial reporting as of December 31, 2022, as stated in their report which appears on page 79 of this Form 10-K. Changes in Internal Control Over Financial Reporting There were no changes during the quarter ended December 31, 2022 in our internal control over financial reporting (as such term is defined in the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. Item 9B. Other Information None. Item 9C. Disclosures Regarding Foreign Jurisdictions that Prevent Inspections Not applicable. PART III Item 10. Directors, Executive Officers and Corporate Governance Information required by this Item will be contained in our definitive proxy statement relating to our 2023 Annual Meeting of Shareholders under the captions “Executive Officers,” “Election of Directors” and similar captions which are incorporated herein by reference. 80 Item 11. Executive Compensation Information required by this Item will be contained in our definitive proxy statement relating to our 2023 Annual Meeting of Shareholders under the caption “Executive Compensation Discussion and Analysis,” “Summary Compensation Table (2022, 2021 and 2020,” “Grants of Plan Based Awards for 2022,” “Outstanding Equity Awards on December 31, 2022,” “2022 Options Exercised and Stock Vested Table,” “2022 Potential Payments Upon Termination or Change in Control,” “2022 Director Compensation,” “Compensation Committee Report” and “Compensation Committee Interlocks and Insider Participation” or similar captions which are incorporated herein by reference. Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters Information required by this Item will be contained in our definitive proxy statement relating to our 2023 Annual Meeting of Shareholders under the captions “Security Ownership of Certain Beneficial Owners and Management,” and “Equity Compensation Plan Information,” or similar captions which are incorporated herein by reference. Item 13. Certain Relationships and Related Transactions, and Director Independence Information required by this Item will be contained in our definitive proxy statement relating to our 2023 Annual Meeting of Shareholders under the captions “Policies and Procedures for Approval of Related Party Transactions,” “Related Party Transactions,” and "Director Independence" or similar captions which are incorporated herein by reference. Item 14. Principal Accounting Fees and Services Information required by this Item will be contained in our definitive proxy statement relating to our 2023 Annual Meeting of Shareholders under the captions “Audit Matters,” or a similar caption which is incorporated herein by reference. 81 PART IV Item 15. Exhibits, Financial Statement Schedules (a) Documents filed as part of this report: (i) Financial Statements (ii) Financial Statement Schedule: The following Financial Statement Schedule is filed as part of this Report: Schedule II Valuation and Qualifying Accounts for the years ended December 31, 2022, 2021 and 2020 (iii) Exhibits See Item 15(b) below. Each management contract or compensation plan has been identified with an asterisk. (b) Exhibits Notes * Indicates a management contract or compensatory plan or arrangement # Filed herewith ## Certain exhibits and schedules have been omitted pursuant to Item 601(b)(10) of Regulation S-K, but a copy will be furnished supplementally to the Securities and Exchange Commission upon request. Exhibit Number Description 3.1 Restated Articles of Incorporation, adopted March 4, 2021, effective March 5, 2021 ( incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on March 8, 2021 ). 3.2 Articles of Amendment to Restated Articles of Incorporation, effective June 3, 2021 ( incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 10, 2021 ). 3.3 Articles of Amendment to Restated Articles of Incorporation, effective June 3, 2021 ( incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on June 10, 2021 ). 3.4 Amended and Restated Bylaws of MiMedx Group, Inc., as amended and restated as of February 16, 2023 ( incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on February 23, 2023 ). 4.1 The description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 ( incorporated by reference to the Registra nt ’ s Registration Statement on Form 8-A filed on November 2, 2020 ). 10.1## Loan Agreement dated as of June 30, 2020 by and among MiMedx Group, Inc., certain subsidiaries of MiMedx Group, Inc. parties thereto, the Lenders from time to time party hereto, Hayfin Services LLP, as administrative agent for the Lenders and as collateral agent for the Secured Parties ( incorporated by reference to Exhibit 10.36 to Registrant ’ s Annual Report on Form 10-K filed on July 6, 2020 ) . 10.2## Securities Purchase Agreement, dated as of June 30, 2020, by and between MiMedx Group, Inc., Falcon Fund 2 Holding Company, L.P. and certain other investors ( incorporated by reference to Exhibit 10.38 to the Regist rant ’ s Annual Report on Form 10-K filed July 6, 2020 ). 10.3 Registration Rights Agreement dated as of July 2, 2020, by and between MiMedx Group, Inc. and Falcon Fund 2 Holding Company, L.P. ( incorporated by reference to Exhibit 10.39 t o the Registr a nt ’ s Annual Report on Form 10-K filed on July 6, 2020 ). 10.4 Lease effective May 1, 2013 between Hub Properties of GA, LLC and MiMedx Group, Inc. ( incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 10, 2013 ). 10.5 First Amendment to Lease dated March 7, 2017 between CPVF II West Oak LLC (as successor in interest to HUB Properties of GA, LLC) and MiMedx Group, Inc. ( incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on March 13, 2017 ). 82 Exhibit Number Description 10.6 Third Amendment to Lease made as of November 30, 2021 for real property and improvements located at 1775 West Oak Commons Court, Marietta, Georgia between RE Fields, LLC, successor in interest to HUB Properties GA, LLC, and CPVF II West Oak LLC, and MiMedx Group, Inc., dated January 25, 2013, as amended March 7, 2017 ( incorporated by reference to Exhibit 10. 6 to the Registrant’s Annual R e port on Form 10-K filed on February 28, 2022 ). 10.7* MiMedx Group, Inc. Assumed 2006 Stock Incentive Plan, as amended and restated effective February 25, 2014 ( incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on March 3, 2014 ). 10.8* Form of Incentive Stock Option Agreement under the MiMedx Group, Inc. Assumed 2006 Stock Incentive Plan ( incorporated by reference to Exhibit 10.4 to the Registrant’ s Annual Report o n Form 10-K filed on March 4, 2014) . 10.9* Form of Nonqualified Stock Option Agreement under the MiMedx Group, Inc. Assumed 2006 Stock Incentive Plan ( incorporated by reference to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2014 ). 10.10* Form of Restricted Stock Agreement for Non-Employee Directors under the MiMedx Group, Inc. 2006 Assumed Stock Incentive Plan ( incorporated by reference to Exhibit 10.66 to the Registrant’s Quarterly Report on Form 10-Q filed on August 8, 2013 ). 10.11* Form of Restricted Stock Agreement under the MiMedx Group, Inc. 2006 Assumed Stock Incentive Plan ( incorporated by reference to Exhibit 10.3 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2014 ). 10.12* 2016 Equity and Cash Incentive Plan, as amended and restated through October 2, 2020 ( incorporated by reference to Exhibit 4.6 to the Registra nt ’ s Registration Statement on Form S-8 filed on December 17, 202 0 ). 10.13* Form of Incentive Stock Option Agreement under the MiMedx Group, Inc. 2016 Equity and Cash Incentive Plan ( incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on August 2, 2016 ). 10.14* Form of Restricted Stock Agreement under the MiMedx Group, Inc. 2016 Equity and Cash Incentive Plan (for shares not registered under the Securities Act of 1933) ( incorporated by reference to Exhibit 10.9 to the Registrant’s Current Report on Form 8-K filed on May 30, 2019 ). 10.15* Form of Restricted Stock Agreement under the MiMedx Group, Inc. 2016 Equity and Cash Incentive Plan ( incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed on August 2, 2016 ). 10.16* Form of Restricted Stock Agreement for Non-Employee Directors under the MiMedx Group, Inc. 2016 Equity and Cash Incentive Plan ( incorporated by reference to Exhibit 10.11 to the Registrant’s Current Report on Form 8-K filed on May 30, 2019 ). 10.17* Form of Nonqualified Stock Option Agreement under the MiMedx Group, Inc. 2016 Equity and Cash Incentive Plan ( incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed on August 2, 2016 ). 10.18* Form of Director Restricted Stock Unit Award Agreement ( incorporated by reference to Exhibit 10.16 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2020 ). 10.19* Form of Employee (Time-Vested) Restricted Stock Unit Award Agreement ( incorporated by reference to Exhibit 10.33 to the Registrant ’ s Annual Report on Form 10-K filed on July 6, 2020 ) . 10.20* Form of Employee (Performance-Vested, uncertain number of shares) Restricted Stock Unit Award Agreement ( incorporated by reference to Exhibit 10.34 to th e Regis trant ’ s Annual Report on Form 10-K filed on July 6, 2020 ). 10.21* Form of Employee (Performance-Vested, certain number of shares) Restricted Stock Unit Award Agreement ( incorporated by reference to Exhibit 10.35 to the Registrant ’ s Annual Report on Form 10-K filed on July 6, 2020 ). 10.22* Form of Non-Employee Restricted Stock Award Agreement (vest into retirement) ( incorporated by reference to Exhibit 10.4 to the Registrant ’ s Quarterly Report on Form 10-Q filed on August 4, 2020 ). 10.23* Form of Employee (Time-Vested) Restricted Stock Unit Award Agreement ( incorporated by reference to Exhibit 10.25 to the Registran t ’ s Annual Report on F orm 10-K file d on March 8, 2021 ). 10.24* Letter Agreement dated April 10, 2019 between MiMedx Group, Inc. and Timothy R. Wright ( incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 9, 2019 ). 10.25* Employment Offer Letter between MiMedx Group, Inc. and Peter M. Carlson, as amended and restated on June 30, 2021 ( incorporated by reference to Exhibit 10.1 to the Registran t ’ s Quarterly Report on Form 10-Q filed on August 3, 2021 ). 10.26* Employment Offer Letter between MiMedx Group, Inc. and William F. Hulse IV dated November 4, 2019, (i ncorporated by reference to Exhibit 10.30 to the Registra nt ’ s Annual Report on Form 10-K filed on July 6, 2020 ). 83 Exhibit Number Description 10.27* Employment Offer Letter between MiMedx Group, Inc. and Rohit Kashyap dated as of July 23, 2020 ( incorporated by reference to Exhibit 10.2 to the Registrant ’ s Quarterly Report on Form 10-Q filed on November 20 , 2020 ). 10.28* Employment Offer Letter between MiMedx Group, Inc. and Robert B. Stein effective August 1, 2020 ( incorporated by reference to Exhibit 10.3 to the Registrant ’ s Quarterly Report on Form 10-Q filed on November 20 , 2020 ). 10.29* Form of Key Employee Retention and Restrictive Covenant Agreement ( incorporated by reference to Exhibit 10.1 to the Registrant ’ s Current Report on Form 8-K filed on December 21, 2020 ) . 10.30* Form of Indemnification Agreement ( incorporated by reference to Exhibit 10.65 to the Registrant’s Current Report on Form 8-K filed on July 15, 2008 ). 10.31* Form of Director Restricted Stock Unit Award Agreement (Type I - Initial Grant, Full Amount) ( incorporated by reference to Exhibit 10.2 to the Registrant ’ s Quarterly Report on Form 10-Q filed on August 3, 2021 ). 10.32* Form of Director Restricted Stock Unit Award Agreement (Type II - Initial Grant, Pro Rata Amount) ( incorporated by reference to Exhibit 10.3 to the Registra nt ’ s Quarterly Report on Form 10-Q filed on August 3, 2021 ). 10.33* Form of Director Restricted Stock Unit Award Agreement (Type III - Annual Grant) ( incorporated by reference to Exhibit 10.4 to the Registrant ’ s Quarterly Report on Form 10-Q filed on August 3, 2021 ). 10.34 Technology License Agreement dated January 29, 2007 between MiMedx, Inc., Shriner's Hospitals for Children and University of South Florida Research Foundation ( incorporated by reference to Exhibit 10.32 to the Registrant’s Current Report on Form 8-K filed on February 8, 2008 ). 10.35 Cooperation Agreement dated as of May 29, 2019 among MiMedx Group, Inc., M. Kathleen Behrens Wilsey, K. Todd Newton, Richard J. Barry, Prescience Partners, LP, Prescience Point Special Opportunity LP, Prescience Capital LLC, Prescience Investment Group, LLC d/b/a Prescience Point Capital Management LLC and Eiad Asbahi ( incorporated by reference to Exhibit 10.32 to the Registrant’s Current Report on Form 8-K filed on May 30, 2019 ). 10.36## Amendment No. 1 to Loan Agreement dated as of February 28, 2022, which amends that certain Loan Agreement dated as of June 30, 2020 by and among MiMedx Group, Inc., certain subsidiaries of MiMedx Group, Inc. parties thereto, the Lenders from time to time party hereto, Hayfin Services LLP, as administrative agent for the Lenders and as collateral agent for the Secured Parties ( incorporated by reference to Exhibit 10.38 to the Registrant’s Annual Report on Form 10-K filed on February 28, 2022 ) 10.37* Separation Agreement and General Release between MiMedx Group, Inc. and Timothy R. Wright dated September 15, 2022 ( incorporated by reference to Exhibit 10. 3 to the Registrant’s Current Report on Form 8 -K filed on September 14 , 2022 ). 10.38* Interim Executive Employment Agreement between MiMedx Group, Inc. and K. Todd Newton dated September 14, 2022 ( incorporated by reference to Exhibit 10. 1 to the Registrant’s Current Report on Form 8-K filed on September 14, 2022 ). 10.39* Restricted Stock Unit Agreement between MiMedx Group, Inc. and K. Todd Newton dated September 15, 2022 ( incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on September 1 4 , 2022 ). 10.40* Employment Offer Letter between MiMedx Group, Inc. and Ricci S. Whitlow dated December 27, 2022 ( incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on January 3, 2023 ). 10.41* Letter Agreement between MiMedx Group, Inc. and Joseph H. Capper dated January 27, 2023 ( incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on January 27, 2023 ). 10.42* Performance Stock Unit Agreement between MiMedx Group, Inc. and Joseph H. Capper dated January 27, 2023 (i ncorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed on January 27, 2023 ). 10.43* Nonqualified Stock Option Agreement between MiMedx Group, Inc. and Joseph H. Capper dated January 27, 2023 ( incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed on January 27, 2023 ). 10.44# ## Platform Intellectual Property License Agreement by and between MiMedx Group, Inc. and Global Health Solutions, Inc. (d.b.a. Turn Therapeutics) , dated as of December 7, 2022. 16.1 Letter from BDO USA, LLP dated March 30, 2021 ( incorporated by reference to Exhibit 16.1 to the Registrant’s Current Report on Form 8-K filed on March 30, 2021 ). 21.1# Subsidiaries of MiMedx Group, Inc. 23.1# Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. 23.2# Consent of BDO USA, LLP, Independent Registered Public Accounting Firm. 24.1# Power of Attorney (included on the signature page to this Report). 31.1# Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 84 Exhibit Number Description 31.2# Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32.1# Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2# Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 101.INS# XBRL Instance Document 101.SCH# XBRL Taxonomy Extension Schema Document 101.CAL# XBRL Taxonomy Extension Calculation Linkbase Document 101.DEF# XBRL Taxonomy Extension Definition Linkbase Document 101.LAB# XBRL Taxonomy Extension Label Linkbase Document 101.PRE# XBRL Taxonomy Extension Presentation Linkbase Document Item 16. Form 10-K Summary Not applicable. 85 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. MIMEDX GROUP, INC. February 28, 2023 By: /s/ Peter M. Carlson Peter M. Carlson Chief Financial Officer and Principal Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints William F. Hulse IV and Sajid N. Ajmeri and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her in any and all capacities, to sign any and all amendments to this Annual Report for the year ended December 31, 2022, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to any and all amendments to said Annual Report. 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. 86 Signature / Name Title Date /s/ Joseph H. Capper Chief Executive Officer and Director February 28, 2023 Joseph H. Capper (Principal Executive Officer) /s/ Peter M. Carlson Chief Financial Officer February 28, 2023 Peter M. Carlson (Principal Financial Officer) /s/ William L. Phelan Senior Vice President and Chief Accounting Officer February 28, 2023 William L. Phelan (Principal Accounting Officer) /s/ M. Kathleen Behrens Chair of the Board (Director) February 28, 2023 M. Kathleen Behrens /s/ James L. Bierman Director February 28, 2023 James L. Bierman /s/ Michael J. Giuliani Director February 28, 2023 Michael J. Giuliani /s/ William A. Hawkins III Director February 28, 2023 William A. Hawkins III /s/ Cato T. Laurencin Director February 28, 2023 Cato T. Laurencin /s/ K. Todd Newton Director February 28, 2023 K. Todd Newton /s/ Martin P. Sutter Director February 28, 2023 Martin P. Sutter /s/ Phyllis I. Gardner Director February 28, 2023 Phyllis I. Gardner 87