Amendment and Restatement of Previous Charter
This Amended and Restated Charter (this “Charter”) of the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Vivos Therapeutics, Inc. (collectively with its subsidiaries, the “Company”) is adopted by the Board as of the date indicated below and amends, restates and supersedes, 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 carry out the Company’s responsibilities delegated by the Board relating to the review and determination of executive compensation.
The Committee shall consist of three (3) or more directors. Each member of the Committee shall be independent in accordance with the provisions of Rule 10C-1(b)(1) under The Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules of the Nasdaq Capital Market or any other securities exchange on which any of the Company’s securities are listed or quoted.
The members of the Committee shall be appointed by the Board based on recommendations from the Board’s Nominating and Corporate Governance Committee. The members of the Committee shall serve for such term or terms as the Board may determine or until earlier resignation, removal or death. The Board may remove any member from the Committee at any time with or without cause.
Duties, Authority and Responsibilities
The Committee shall have the following duties, authority and responsibilities:
To review and approve annually the corporate goals and objectives applicable to the compensation of the Chief Executive Officer (“CEO”).
To review and approve the compensation of the CEO. In evaluating and determining CEO compensation, the Committee shall consider the results of the most recent stockholder advisory vote on executive compensation (“Say on Pay Vote”) required by Section 14A of the Exchange Act. The CEO cannot be present during any voting or deliberations by the Committee on his or her compensation.
To review and approve incentive compensation plans and equity-based plans, which includes the ability to adopt, amend, and terminate such plans. To review and approve incentive bonus structures and payments in conjunction with the incentive compensation plans.
To approve the compensation of all executive officers and managers holding the title of Vice President and above. In evaluating and determining executive compensation, the Committee shall consider the results of the most recent Say on Pay Vote.
To review, and approve and, when appropriate, recommend to the Board for approval, any employment agreements and any severance arrangements or plans, including any benefits to be provided in connection with a change in control, for the CEO and other senior officers holding the title of Vice President and above, which includes the ability to adopt, amend and terminate such agreements, arrangements or plans.
To review and approve the Company’s incentive and commission compensation arrangements to determine whether they encourage excessive risk-taking, to review and discuss at least annually the relationship between risk management policies and practices and compensation, and to evaluate compensation policies and practices that could mitigate any such risk.
To review and recommend to the Board for approval the frequency with which the Company will conduct Say on Pay Votes, taking into account the results of the most recent stockholder advisory vote on frequency of Say on Pay Votes required by Section 14A of the Exchange Act, and review and approve the proposals regarding the Say on Pay Vote and the frequency of the Say on Pay Vote to be included in the Company’s proxy statement.
To review director compensation for service on the Board and Board committees at least once a year and to recommend any changes to the Board.
The Committee shall have the authority, in its sole discretion, to select, retain and obtain the advice of a compensation consultant as necessary to assist with the execution of its duties and responsibilities as set forth in this Charter. The Committee shall set the compensation, and oversee the work, of the compensation consultant. The Committee shall have the authority, in its sole discretion, to retain and obtain the advice and assistance of outside legal counsel and such other advisors as it deems necessary to fulfill its duties and responsibilities under this Charter. The Committee shall set the compensation, and oversee the work, of its outside legal 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 its compensation consultants, outside legal counsel and any other advisors. However, the Committee shall not be required to implement or act consistently with the advice or recommendations of its compensation consultant, legal counsel or other advisor to the compensation committee, and the authority granted in this Charter shall not affect the ability or obligation of the Committee to exercise its own judgment in fulfillment of its duties under this Charter.
The Committee is not required to assess the independence of any compensation consultant or other advisor that acts in a role limited to consulting on any broad-based plan that does not discriminate in scope, terms or operation in favor of executive officers or directors and that is generally available to all salaried employees or providing information that is not customized for a particular company or that is customized based on parameters that are not developed by the consultant or advisor, and about which the consultant or advisor does not provide advice.
Structure and Operations
The Board shall designate a member of the Committee as the Chairperson. The Committee shall meet at least four (4) 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 may invite such members of management to its meetings as it deems appropriate. However, the Committee shall meet regularly without such members present, and in all cases the CEO and any other such officers shall not be present at meetings at which their compensation or performance is discussed or determined.
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 29th day of March, 2022.