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Item 9A. Controls and Procedures

2023-04-07 compared with 2022-03-23 · 627 added, 539 removed, 726 unchanged (62% of the section changed)

1 unchanged sentence

Evaluation of disclosure controls and procedures

Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures (as defined in the Securities Exchange Act of 1934 Rules 13a-15(e) or 15d-15(e)) as of the end of the period covered by this 2021 10-K Report.

Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2021, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is (i) recorded, processed, summarized, and reported within the time periods specified in the SEC rules and forms, and (ii) 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.

Our management evaluated the effectiveness of our disclosure controls and procedures (as defined in the Securities Exchange Act of 1934 Rules 13a-15(e) or 15d-15(e)) as of the end of the period covered by this 2022 10-K Report.

Based on that evaluation, our Principal Executive Officer and Principal Financial Officer concluded that, as of December 31, 2022, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is (i) recorded, processed, summarized, and reported within the time periods specified in the SEC rules and forms, and (ii) is accumulated and communicated to our management, including our Principal Executive Officer and Principal Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

Changes in internal control over financial reporting

1 unchanged sentence

Inherent limitations on effectiveness of 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 will prevent all error and all fraud.

Our management does not expect that our disclosure controls and procedures or our internal controls will prevent all error and all fraud.

A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.

16 unchanged sentences

Other information

2022 executive retention and performance bonus plan

On March 23, 2022, the Company entered into award agreements (the "Award Agreements") with each of Mr.

Walker, the General Counsel of the Company, and Mr.

Donegan, the Vice President – Finance and Chief Accounting Officer of the Company who will become Interim Chief Financial Officer of the Company, under the Company’s 2022 Executive Retention and Performance Bonus Plan (the “ERB Plan”).

Under the terms of the Award Agreements and the ERB Plan, each of Mr.

Walker and Mr.

Donegan was granted (i) a retention award of $207,500 and $87,000, respectively (each a “Retention Payment”), and (ii) a performance bonus award of $622,500 and $261,000, respectively (each a “Bonus Target”), based on the achievement of critical strategic, tactical and financial goals of the Company (each a “Performance Bonus Award”).

If the employment of a participant under the ERB Plan is terminated by the Company for “cause” or by the participant other than for “good reason” (i) on or before July 1, 2022, the participant will be required to pay back 100% of the after-tax value of the Retention Payment, or (ii) after July 1, 2022, the participant will be required to pay back 50% of the after-tax value of the Retention Payment.

The Performance Bonus Awards will be based on Company performance for four separate six-month performance periods from January 1, 2022 to December 31, 2023 based on performance targets approved by the Compensation Committee of the Board of Directors of the Company and will be payable at up to 150% of the Bonus Target.

The foregoing description of the ERB Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the ERB Plan, which is attached hereto as Exhibit 10.55 and is incorporated herein by reference.

Disclosure regarding foreign jurisdictions that prevent inspections

27 unchanged sentences

First Amendment to Bylaws of the Company, dated December 17, 2015 (8)

Second Amendment to Bylaws of the Company, adopted May 27, 2022 (36)

Third Amendment to Bylaws of the Company, dated July 29, 2022 (37)

Certificate of Change to Articles of Incorporation of the Company ( 38)

Certificate of Designation, Preferences and Rights of Series A Preferred Stock (37)

Form of Certificate of Common Stock ( 9)

Description of Securities of the Company

Form of Common Stock Purchase Warrant, dated ( 11)

Form of Common Stock Purchase Warrant ( 11)

Form of Non-Qualified Stock Option Agreement ( 11)

7 unchanged sentences

2020 Employee Stock Purchase Plan ( 15)

Common Stock Purchase Warrant to Lang Naturals, Inc., dated October 23, 2011 (16)

Form of Common Stock Purchase Warrant, dated February 24, 2012 (17)

9 unchanged sentences

Milligan, IV ( 20)

Financing Agreement, dated April 24, 2019, by and among TherapeuticsMD, Inc.

as the Borrower, vitaMedMD, LLC, BocaGreenMD, Inc.