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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM 10-K/A

(Amendment No. 1)

 

 

 

(Mark One)

 

☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended: December 31, 2024

 

☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from _______________________ to ____________________________________

 

Commission File Number: 001-42103

 

KINDLY MD, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Utah   84-3829824

(State or Other Jurisdiction of

Incorporation or Organization)

  

(I.R.S. Employer

Identification No.)

 

5097 South 900 East Suite 100, Salt Lake City, UT 84117

(Address of Principal Executive Offices)

 

(385) 388-8220

(Registrant’s telephone number, including area code)

 

SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock, par value $0.001 per share   KDLY   The Nasdaq Stock Market LLC
Tradeable Warrants to purchase shares of Common Stock, par value $0.001 per share   KDLYW   The Nasdaq Stock Market LLC

 

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

 

☐ Yes ☒ No

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

 

☐ Yes ☒ No

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

☒ Yes ☐ No

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).

 

☒ Yes ☐ No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.:

 

Large accelerated filer ☐ Accelerated filer ☐
Non-accelerated filer ☒ Smaller reporting company ☒
    Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐

 

Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

☐ Yes ☒ No

 

The aggregate market value of the voting and non-voting stock held by non-affiliates was approximately $8.1 million as of June 30, 2024, based upon a bid price of $2.75 per share for the registrant’s common stock on such date. Shares of the registrant’s common stock held by each executive officer and director and by each person who beneficially owns 10 percent or more of the registrant’s outstanding common stock have been excluded in that such persons may be deemed to be “affiliates” of the registrant for purposes of the above calculation. This determination of affiliate status is not a conclusive determination for other purposes.

 

On March 27, 2025, a total of 6,029,648 shares of our common stock were outstanding. 

 

DOCUMENTS INCORPORATED BY REFERENCE

 

The Annual Report on Form 10-K filed by Kindly MD, Inc., filed with the United States Securities and Exchange Commission on March 28, 2025, is hereby incorporated by reference in its entirety (including into Parts I, II, and III).

 

 

 

 
 

 

EXPLANATORY NOTE

 

Kindly MD, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-K/A for the year ended December 31, 2024, solely to file the Company’s Clawback Policy adopted by the Company’s Board of Directors on or about April 16, 2025, as Exhibit 97.1, and update the Exhibit Index. No other changes have been made to the Company’s Annual Report on Form 10-K that was originally filed with the United States Securities and Exchange Commission on April 14, 2025 (the “Original 10-K”), and the Original 10-K is incorporated by reference herein.

 

Item 15. Exhibits, Financial Statement Schedules.

 

(a)(3) Exhibits:

 

The exhibits listed on the Exhibit Index (following the signatures section of this report) are included, or incorporated by reference, in this annual report.

 

(b) Exhibits:

 

See Item 15(a)(3) above.

 

 
 

 

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.

 

REGISTRANT  
     
KINDLY MD, INC.  
     
By: /s/ Timothy Pickett  
  Timothy Pickett  
  Chief Executive Officer  
     
Date: April 17, 2025  

 

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 date indicated.

 

Signature   Title
       
/s/ Timothy Pickett   Chief Executive Officer and Director
By: Timothy Pickett   (principal executive officer)
Date: April 17, 2025    
       
/s/ Jared Barrera   Chief Financial Officer
By: Jared Barrera   (principal financial and accounting officer)
Date: April 17, 2025    
       
/s/ Adam Cox   Director
By: Adam Cox    
Date: April 17, 2025    
       
/s/ Amy Powell   Director
By: Amy Powell    
Date: April 17, 2025    
       
/s/ Christian Robinson   Director
By: Christian Robinson    
Date: April 17, 2025    

 

/s/ Gary Seelhorst   Director
By: Christian Robinson    
Date: April 17, 2025    

 

 
 

 

EXHIBIT INDEX

 

Exhibit Number   Description
     
1.1   Underwriting Agreement dated May 31, 2024 by and between the Registrant and WallachBeth Capital, LLC (incorporated by reference to Exhibit 1.1 to Current Report on Form 8-K filed on June 5, 2024)
3.1   Certificate of Organization of Utah Therapeutic Health Center, PLLC (incorporated by reference to Exhibit 3.1 to Registration Statement on Form S-1 filed on May 9, 2024)
3.2   Certificate of Conversion to Utah Therapeutic Health Center, LLC (incorporated by reference to Exhibit 3.2 to Registration Statement on Form S-1 filed on May 9, 2024)
3.3   Certificate of Conversion to Kindly MD, Inc. (incorporated by reference to Exhibit 3.3 to Registration Statement on Form S-1 filed on May 9, 2024)
3.4   Amended and Restated Articles of Incorporation of Kindly MD, Inc. (incorporated by reference to Exhibit 3.4 to Registration Statement on Form S-1 filed on May 9, 2024)
3.5   Bylaws (incorporated by reference to Exhibit 3.5 to Registration Statement on Form S-1 filed on May 9, 2024)
3.6   Amended and Restated Bylaws (incorporated by reference to Exhibit 3.6 to Registration Statement on Form S-1 filed on May 9, 2024
4.1   Description of Securities (incorporated by reference to Exhibit 4.1 to the Annual Report on 10-K filed on March 28, 2025)
10.1   Incentive Stock Plan (incorporated by reference to Exhibit 10.1 to Registration Statement on Form S-1 filed on May 9, 2024)
10.2+   Employment Agreement by and between the Company and Timothy Pickett dated May 1, 2022 (incorporated by reference to Exhibit 10.2 to Registration Statement on Form S-1 filed on May 9, 2024)
10.3+   Consulting Agreement by and between the Company and Wade Rivers, LLC dated January 1, 2021 (incorporated by reference to Exhibit 10.3 to Registration Statement on Form S-1 filed on May 9, 2024)
10.4+   Employment Agreement by and between the Company and Adam Cox dated May 1, 2022 (incorporated by reference to Exhibit 10.4 to Registration Statement on Form S-1 filed on May 9, 2024)
10.5+   Compensation Agreement by and between the Company and Jared Barrera dated September 28, 2022 (incorporated by reference to Exhibit 10.5 to Registration Statement on Form S-1 filed on May 9, 2024)
10.6   Form of Business Associate Agreement  (incorporated by reference to Exhibit 10.6 to Registration Statement on Form S-1 filed on May 9, 2024)
10.7   Securities Purchase Agreement and Note dated December 28, 2023 issued by the Registrant to Steel Anderson  (incorporated by reference to Exhibit 10.7 to Registration Statement on Form S-1 filed on May 9, 2024)
10.8   Securities Purchase Agreement and Note dated December 28, 2023 issued by the Registrant to Abdullah Rasool  (incorporated by reference to Exhibit 10.8 to Registration Statement on Form S-1 filed on May 9, 2024)
10.9   Securities Purchase Agreement and Note dated December 28, 2023 issued by the Registrant to Brianna Moylan  (incorporated by reference to Exhibit 10.9 to Registration Statement on Form S-1 filed on May 9, 2024)
10.10   Securities Purchase Agreement and Note dated December 28, 2023 issued by the Registrant to Jacob Dorfman  (incorporated by reference to Exhibit 10.10 to Registration Statement on Form S-1 filed on May 9, 2024)
10.11   Securities Purchase Agreement and Note dated January 24, 2024 issued by the Registrant to Nowell Sheinwald (incorporated by reference to Exhibit 10.11 to Registration Statement on Form S-1 filed on May 9, 2024)
10.12   Loan Agreement dated December 26, 2023 between the Registrant and Square Financial Services, Inc. and Bloc, Inc. (incorporated by reference to Exhibit 10.12 to Registration Statement on Form S-1 filed on May 9, 2024)

 

 
 

 

10.13+   Independent Director Agreement dated May 24, 2024 by and between the Registrant and Amy Powell (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed on May 31, 2024)
10.14+   Independent Director Agreement dated May 24, 2024 by and between the Registrant and Christian Robinson (incorporated by reference to Exhibit 10.2 to Current Report on Form 8-K filed on May 31, 2024)
10.15+   Independent Director Agreement dated May 24, 2024 by and between the Registrant and Gary Seelhorst (incorporated by reference to Exhibit 10.3 to Current Report on Form 8-K filed on May 31, 2024)
10.16+   Indemnification Agreement dated May 31, 2024 by and between the Registrant and Amy Powell (incorporated by reference to Exhibit 10.4 to Current Report on Form 8-K filed on May 31, 2024)
10.17+   Indemnification Agreement dated May 31, 2024 by and between the Registrant and Christian Robinson (incorporated by reference to Exhibit 10.5 to Current Report on Form 8-K filed on May 31, 2024)
10.18+   Indemnification Agreement dated May 31, 2024 by and between the Registrant and Gary Seelhorst (incorporated by reference to Exhibit 10.6 to Current Report on Form 8-K filed on May 31, 2024)
10.19   Warrant Agent Agreement dated June 3, 2024 by and between the Registrant and VStock Transfer, LLC (incorporated by reference to Exhibit 10.1 on the Current Report on Form 8-K filed on June 5, 2024)
19.1   Insider Trading Policy (incorporated by reference to Exhibit 19.1 to the Annual Report on 10-K filed on March 28, 2025)
21.1   Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 to the Annual Report on 10-K filed on March 28, 2025)
31.1*   Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*   Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1*   Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

32.2*

   Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
97.1* Clawback Policy
101 INS* Inline XBRL Instance Document
101 SCH* Inline XBRL Taxonomy Extension Schema Document
101 CAL* Inline XBRL Taxonomy Calculation Linkbase Document
101 DEF* Inline XBRL Taxonomy Extension Definition Linkbase Document
101 LAB* Inline XBRL Taxonomy Labels Linkbase Document
101 PRE* Inline XBRL Taxonomy Presentation Linkbase Document
104* Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

* Filed Herewith.

+ Indicates a management contract or any compensatory plan, contract or arrangement.

 

 

 

 

 

Exhibit 31.1

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Timothy Pickett, certify that:

 

1. I have reviewed this Annual Report on Form 10-K/A of Kindly MD, Inc. for the period ended December 31, 2024;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, 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;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

  KINDLY MD, INC.
     
Date: April 17, 2025 By: /s/ TIMOTHY PICKETT
   

Timothy Pickett

    Chief Executive Officer

 

 

 

 

 

Exhibit 31.2

 

CERTIFICATION OF CHIEF FINANCIAL OFFICER

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Jared Barrera, certify that:

 

1. I have reviewed this Annual Report on Form 10-K/A of Kindly MD, Inc. for the period ended December 31, 2024.

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, 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;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

  KINDLY MD, INC.
     
Date: April 17, 2025 By: /s/ JARED BARRERA
   

Jared Barrera

    Chief Financial Officer

 

 

 

 

 

EXHIBIT 32.1

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Kindly MD, Inc. (the “Company”) hereby certifies, to his knowledge, that:

 

(i) the accompanying Annual Report on Form 10-K/A of the Company for the year ended December 31, 2024 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

 

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

  KINDLY MD, INC.
     
Date: April 17, 2025 By: /s/ Timothy Pickett
   

Timothy Pickett

    Chief Executive Officer

 

 

  

 

 

EXHIBIT 32.2

 

CERTIFICATION OF CHIEF FINANCIAL OFFICER

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Kindly MD, Inc. (the “Company”) hereby certifies, to his knowledge, that:

 

(i) the accompanying Annual Report on Form 10-K/A of the Company for the year ended December 31, 2024 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

 

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

  KINDLY MD, INC.
     
Date: April 17, 2025 By: /s/ Jared Barrera
   

Jared Barrera

    Chief Financial Officer

 

 

 

 

 

 

Exhibit 97.1

 

KINDLY MD, INC.

 

CLAWBACK POLICY

 

Introduction

 

The Board of Directors (the “Board”) of Kindly MD, Inc. (the “Company”) believes that it is in the best interests of the Company and its stockholders to create and maintain a culture that emphasizes integrity and accountability and that reinforces the Company’s pay-for-performance compensation philosophy. The Board has therefore adopted this policy which provides for the recoupment of certain executive compensation received in the event of an accounting restatement resulting from material noncompliance with financial reporting requirements under the federal securities laws (the “Policy”). This Policy is designed to comply with Section 10D of the Securities Exchange Act of 1934 (the “Exchange Act”), the rules and amendments adopted by the Securities and Exchange Commission (the “SEC”) to implement the aforementioned legislation, and the listing standards of the national securities exchange on which the Company’s securities are listed.

 

Administration

 

This Policy shall be administered by the Board or, if so designated by the Board, the Compensation Committee, in which case references herein to the Board shall be deemed references to the Compensation Committee. Any determinations made by the Board shall be final and binding on all affected individuals.

 

Covered Executives

 

This Policy applies to the Company’s current and former executive officers, as determined by the Board in accordance with Section 10D of the Exchange Act and the listing standards of the national securities exchange on which the Company’s securities are listed, and such other senior executives/employees who may from time to time be deemed subject to the Policy by the Board (“Covered Executives”).

 

Recoupment; Accounting Restatement

 

In the event the Company is required to prepare an accounting restatement of its financial statements due to the Company’s material noncompliance with any financial reporting requirement under the securities laws, the Board will require reimbursement or forfeiture of any excess Incentive Compensation (as defined below) received by any Covered Executive during the three completed fiscal years immediately preceding the date on which the Company is required to prepare an accounting restatement.

 

 
 

 

Incentive Compensation

 

For purposes of this Policy, Incentive Compensation means any of the following; provided that such compensation is granted, earned, or vested based wholly or in part on the attainment of a financial reporting measure:

 

  ● Annual cash bonuses and other short- and long-term cash incentives
     
  ● Stock options
     
  ● Stock appreciation rights
     
  ● Restricted stock
     
  ● Restricted stock units
     
  ● Performance shares
     
  ● Performance units

 

Financial reporting measures are measures that are determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures that are derived wholly or in part from such measures and may include, among other things, any of the following:

 

  ● Company stock price
     
  ● Total stockholder return
     
  ● Revenues
     
  ● Net income
     
  ● Earnings before interest, taxes, depreciation, and amortization (EBITDA)
     
  ● Liquidity measures such as working capital or operating cash flow
     
  ● Earnings measures such as earnings per share
     
  ● “Non-GAAP financial measures” for purposes of Exchange Act Regulation G and 17CFR 229.10

 

Excess Incentive Compensation: Amount Subject to Recovery

 

The amount to be recovered will be the excess of the Incentive Compensation paid to the Covered Executive based on the erroneous data over the Incentive Compensation that would have been paid to the Covered Executive had it been based on the restated results, as determined by the Board.

 

If the Board cannot determine the amount of excess Incentive Compensation received by the Covered Executive directly from the information in the accounting restatement, then it will make its determination based on a reasonable estimate of the effect of the accounting restatement on the applicable measure.

 

 
 

 

Method of Recoupment

 

The Board will determine, in its sole discretion, the method for recouping Incentive Compensation hereunder which may include, without limitation:

 

  ● requiring reimbursement of cash Incentive Compensation previously paid;
     
  ● seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition of any equity-based awards;
     
  ● offsetting the recouped amount from any compensation otherwise owed by the Company to the Covered Executive;
     
  ● cancelling outstanding vested or unvested equity awards; and/or
     
  ● taking any other remedial and recovery action permitted by law, as determined by the Board.

 

No Indemnification

 

The Company shall not indemnify any Covered Executives against the loss of any incorrectly awarded Incentive Compensation.

 

Interpretation

 

The Board is authorized to interpret and construe this Policy and to make all determinations necessary, appropriate, or advisable for the administration of this Policy. It is intended that this Policy be interpreted in a manner that is consistent with the requirements of Section 10D of the Exchange Act and applicable rules or standards adopted by the Securities and Exchange Commission or any national securities exchange on which the Company’s securities are listed.

 

Effective Date

 

This Policy shall be effective as of the date it is adopted by the Board (the “Effective Date”) and shall apply to Incentive Compensation that is approved, awarded or granted to Covered Executives on or after that date. This Policy shall apply to any excess Incentive Compensation received by Covered Executives during the three immediately completed fiscal years preceding the date on which a company is required to prepare an accounting restatement.

 

Amendment; Termination

 

The Board may amend this Policy from time to time in its discretion and shall amend this Policy as it deems necessary to reflect final regulations adopted by the Securities and Exchange Commission under Section 10D of the Exchange Act and to comply with the rules and standards adopted by the SEC and the listing standards of any national securities exchange on which the Company’s securities are listed. The Board may terminate this Policy at any time.

 

Other Recoupment Rights

 

The Board intends that this Policy will be applied to the fullest extent of the law. The Board may require that any employment agreement, equity award agreement, or similar agreement entered into on or after the Effective Date shall, as a condition to the grant of any benefit thereunder, require a Covered Executive to agree to abide by the terms of this Policy. Any right of recoupment under this Policy is in addition to, and not in lieu of, any other remedies or rights of recoupment that may be available to the Company pursuant to the terms of any similar policy in any employment agreement, equity award agreement, or similar agreement and any other legal remedies available to the Company.

 

Impracticability

 

The Board shall recover any excess Incentive Compensation in accordance with this Policy unless such recovery would be impracticable, as determined by the Board in accordance with Rule 10D-1 of the Exchange Act and any applicable rules or standards adopted by the SEC and the listing standards of any national securities exchange on which the Company’s securities are listed.

 

Successors

 

This Policy shall be binding and enforceable against all Covered Executives and their beneficiaries, heirs, executors, administrators or other legal representatives.