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Item 3. Legal Proceedings

2023-03-30 compared with 2022-03-31 · 115 added, 59 removed, 25 unchanged (87% of the section changed)

Legal Proceedings.

time to time, we are involved in various claims and legal actions arising in the ordinary course of business.

time to time, we may become involved in various lawsuits and legal proceedings which arise in the ordinary course of business.

is a description of our outstanding pending litigation matters.

Litigation is subject to inherent uncertainties and an adverse result

in the below described or other matters may arise from time to time that may harm our business.

April 13, 2021, the Washington State Department of Financial Institutions (“WSDFI”) sent a letter and subpoena requesting

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we have not been made aware of any developments with the investigation.

June 5, 2020, we filed suit against Ortho-Tain, Inc.(“Ortho-Tain”) in the United States District Court for the District of

Colorado seeking relief from certain false, threatening, and defamatory statements to our business affiliate, Benco Dental (“Benco”).

On June 5, 2020, we filed suit against Ortho-Tain, Inc.

(“Ortho-Tain”) in the United States District Court for the District

of Colorado seeking relief from certain false, threatening, and defamatory statements to our business affiliate, Benco Dental (“Benco”).

We believe such statements have interfered with our business relationship and contract, causing harm to our reputation, loss of goodwill,

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us in the fall of 2020.

Our amended complaint seeks permanent injunctive relief to prevent what we believe are defamatory statements

and interference with our business relationships by Ortho-Tain.

We further seek declaratory relief to refute the defendant’s false

allegations, as well as monetary damages.

Prior to filing suit, we worked collaboratively with legal counsel at Benco to address and

resolve this matter.

Our amended complaint seeks permanent injunctive relief to prevent what we believe are defamatory statements and

interference with our business relationships by Ortho-Tain.

We further seek declaratory relief to refute the defendant’s false allegations,

as well as monetary damages.

Prior to filing suit, we worked collaboratively with legal counsel at Benco to address and resolve this matter.

Such efforts were unsuccessful.

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filed a motion to dismiss the amended complaint.

We opposed the motion.

On September 3, 2021, the District Court denied the motion to dismiss on all grounds and lifted the stay of discovery.

On September 7, 2021, Ortho-Tain filed a notice of appeal of the District Court’s order to the United States Court of Appeals for

the Tenth Circuit.

On September 21, 2021, we filed a motion to dismiss the appeal for lack of jurisdiction.

On October 12, 2021, the

Court of Appeals referred the motion to dismiss the appeal to the merits panel for decision along with the merits.

The appeal is now

fully briefed and awaiting decision form the Tenth Circuit.

July 22, 2020 Ortho-Tain, Inc.

filed a complaint in the United States District Court for the Northern District of Illinois naming our

company, along with our Chairman and Chief Executive Officer, R.

We opposed the

On June 21, 2022, the Tenth Circuit entered an order and judgment.

Pursuant to such order, the appeal was terminated and the case

remanded to the U.S.

District Court for the District of Colorado for further proceedings.

On July 13, 2022, the Clerk of Court for the

Tenth Circuit transferred jurisdiction back to the District Court.

On February 1, 2023, Ortho-Tain filed a motion to re-open the district

court case and set a status conference.

On February 22, 2023, Vivos filed a notice of non-opposition joining that request.

are currently awaiting further action from the district court, including a new decision on Ortho-Tain’s motion to dismiss.

On July 22, 2020 Ortho-Tain, Inc.

filed a Complaint at Law in the United States District Court for the Northern District of Illinois naming

Vivos, along with the Company’s Chief Executive Officer, R.

Kirk Huntsman, Benco Dental Supply Co., Dr.

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Ben Miraglia,

Mark Musso (the “Illinois Ortho-Tain Case”).

The complaint in the Illinois Ortho-Tain Case addresses the same events

as the suit we filed against Ortho-Tain, Inc.

in June 2020 as described above.

The complaint in the Illinois Ortho-Tain Case alleges

violation of the Lanham Act and an alleged civil conspiracy among the defendants to violate the Lanham Act by an alleged false designation

of origin related to a presentation given by Dr.

Brian Kraft at an event sponsored by us and Benco Dental.

Ortho-Tain also alleges that

the actions of the defendants, including our company, diverted sales from Ortho-Tain, deprived Ortho-Tain of advertising value and resulted

in a loss of goodwill to Ortho-Tain.

Ortho-Tain also alleges two separate breach of contract actions against Dr.

Brian Kraft and Mr.

Ortho-Tain’s allegation of breach of contract against Mr.

Huntsman, relates to a Non-Disclosure Agreement entered into

in October 2013 with Mr.

Huntsman’s prior entity, Xenith Practices, LLC, which Non-Disclosure Agreement expired pursuant to its

terms in October 2016.

We continue to evaluate the allegations, although we believe they lack merit and think Ortho-Tain will be unable

to establish actionable damages.

On September 9, 2020, we moved to dismiss the claims against us in the Illinois Ortho-Tain Case.

October 23, 2020, we filed a motion requesting, in the alternative, that if the case is not dismissed, it be transferred to the Colorado

action described above or stayed.

On May 14, 2021, the Court granted our motion to stay the Illinois Ortho-Tain Case, pending resolution

of the Colorado action described above.

On September 3, 2021 and again on December 2, 2021., the Court extended the stay.

The case remains

May 17, 2021, plaintiff Steven Rospond (“Rospond”) filed a lawsuit against Proceed Finance asserting claims for breach of

contract and violation of the Kansas Consumer Protection Act against Defendants Proceed Finance and Security First Bank regarding a $50,000

loan Rospond took to pay for services provided by our company.

Rospond sent us a subpoena seeking various

documents relating to the services provided by us to which it responded and provided documents on December 21, 2021.

In an Order dated

October 26, 2021, the court granted Rospond an extension of up to seven days after we delivered documents to Rospond within which to

amend his lawsuit, including to assert claims against us.

The Ortho-Tain complaint alleges violation of the Lanham Act and an alleged civil conspiracy among the defendants

to violate the Lanham Act by an alleged false designation of origin related to a presentation given by Dr.

Brian Kraft at an event sponsored

by the Company and Benco Dental.

Ortho-Tain also alleges that the actions of the defendants, including the Company, diverted sales from

Ortho-Tain, deprived Ortho-Tain of advertising value and resulted in a loss of goodwill to Ortho-Tain.

Ortho-Tain also alleges two separate

breach of contract actions against Dr.

Brian Kraft and the Company’s Chief Executive Officer, R.

Kirk Huntsman.

On September 9,

2020, the Company moved to dismiss the claims against it.

On May 14, 2021, the United States District Judge entered an order granting

the Company’s motion to stay this case pending the outcome of a substantially similar, first-filed suit by the Company pending in

the United States District Court for the District of Colorado.

In light of the stay, the Court denied, without prejudice, the Company’s

pending motion to dismiss.

On September 3, 2021, on December 2, 2021, on April 4, 2022, on July 5, 2022, on September 19, 2022, and on

November 22, 2022 the Court extended the stay.

On March 20, 2023, the Parties submitted their joint status report.

In their status report,

the Parties requested that the Court reconsider Defendants’ motions to dismiss and Plaintiff’s motion to strike which were

fully briefed at the time the case was stayed.

Defendants also requested a stay of discovery pending a ruling on the motions to dismiss.

The Parties are awaiting further direction from the Court.

May 17, 2021, plaintiff Steven Rospond (“Rospond”) filed a lawsuit against an entity called Proceed Finance asserting claims

for breach of contract and violation of the Kansas Consumer Protection Act against Defendants Proceed Finance and Security First Bank

regarding a $50,000 loan Rospond took to pay for services provided by our company.

Rospond sent us a subpoena seeking various documents

relating to the services provided by us to which it responded and provided documents on December 21, 2021.

In an Order dated October

26, 2021, the court granted Rospond an extension of up to seven days after we delivered documents to Rospond within which to amend his

lawsuit, including to assert claims against us.

To date, we have no knowledge of Rospond asserting any claims against us.

to the court’s docket, this lawsuit is still pending and has not been dismissed.

are no other legal proceedings currently pending against us, or known to be contemplated by any governmental agency, which we believe

would have a material effect on our business, financial position or results of operations.

the court’s docket, this lawsuit was dismissed for lack of prosecution on June 15, 2022.

May 23, 2022, Dr.

David Singh (“Dr.

Singh”), the founder and former director and Chief Medical Officer of our company,

through his legal counsel, sent a demand letter (the “Demand Letter”) to us.

The Demand Letter asserted certain allegations,

including an assertion that contested our decision to terminate Dr.

Singh’s employment for cause in March 2022.

As previously disclosed,

on March 1, 2022, with the unanimous approval of our Board of Directors, we provided notice of termination of Dr.

Singh’s employment

with our company “for cause” pursuant to the terms Dr.

Singh’s amended and restated employment agreement with us (the

“Employment Agreement”).

In the Demand Letter, Dr.

Singh also asserted certain potential claims against us and/or R.

Huntsman, our Chairman and Chief Executive Officer, including for breach of contract, breach of fiduciary duty, defamation and other

civil claims and remedies which could include severance payments to Dr.

Singh and other money relief if Dr.

Singh’s claims are

upheld in arbitration.

We believe that Dr.

Singh’s assertions completely lack merit in fact or law and further believes that Dr.

Singh will be unable to establish actionable damages.

Further, we believe that several provisions of Dr.

Singh’s Employment Agreement

limit or restrict claims Dr.

Singh is alleging, including a mandatory arbitration clause and exclusive remedy provisions.

assurances can be given that our positions regarding the Demand Letter or the Employment Agreement will be upheld by an arbitrator.

parties engaged in voluntary mediation, with no resolution reached.

On November 3, 2022, the Company initiated arbitration with the American Arbitration Association against Dr.

Gurdev Dave Singh.

The Company’s

Demand for Arbitration alleges that Dr.

Singh’s behaviors and actions constituted a breach of the Employment Agreement as well as

a breach of a fiduciary duty to which he owed the Company, and requests that the Arbitrator declare that Dr.

Singh’s sole remedy

or relief against the Company is what was agreed upon in the Employment Agreement.

On December 7, 2022, Dr.

Singh filed a Cross-Complaint

in the Arbitration alleging claims against the Company for breach of contract, employment discrimination, and violation of the Colorado

The Arbitrator has been selected and pursuant to a scheduling conference held on February 15, 2023, the case has been tentatively

set for a four-day Arbitration commencing on January 16, 2024.

On January 23, 2023, we filed a complaint against Dr.

Singh and Dr.

Rod Willey in the United States District Court for the District of

Colorado alleging that Dr.

Singh violated his employment agreement with Vivos when he and Dr.

Willey formed a competing venture, named

Additionally, we contend that both defendants violated state and federal trade secret laws when they formed this competing

business and attempted to unlawfully use our trade secrets to divert business away from Vivos.

We believe the defendants actions have

caused unspecified monetary damages.

Singh’s responsive pleading is due on March 31, 2023.

Willey failed to timely respond

and Vivos moved for a Clerk’s Entry of Default, which was granted on March 24, 2023.

Mine Safety Disclosures.

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 3. Legal Proceedings