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Brainsway Ltd. – ‘20-F’ for 12/31/23 – ‘EX-97.1’

On:  Thursday, 3/28/24, at 5:30pm ET   ·   For:  12/31/23   ·   Accession #:  1171843-24-1696   ·   File #:  1-35165

Previous ‘20-F’:  ‘20-F’ on 3/27/23 for 12/31/22   ·   Latest ‘20-F’:  This Filing   ·   5 References:   

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/28/24  Brainsway Ltd.                    20-F       12/31/23  110:9.4M                                   Globenewswire Inc./FA

Annual or Annual-Transition Report by a Foreign Non-Canadian Issuer   —   Form 20-F   —   SEA’34

Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 20-F        Annual or Annual-Transition Report by a Foreign     HTML   2.47M 
                Non-Canadian Issuer                                              
 2: EX-2.3      Plan of Acquisition, Reorganization, Arrangement,   HTML     84K 
                Liquidation or Succession                                        
 5: EX-13       Annual or Quarterly Report to Security Holders      HTML     29K 
 7: EX-97.1     Clawback Policy re: Recovery of Erroneously         HTML     51K 
                Awarded Compensation                                             
 3: EX-12.1     Statement re: the Computation of Ratios             HTML     32K 
 4: EX-12.2     Statement re: the Computation of Ratios             HTML     32K 
 6: EX-15.1     Letter re: Unaudited Interim Financial Info         HTML     27K 
13: R1          Cover                                               HTML    112K 
14: R2          Consolidated Statements of Financial Position       HTML     96K 
15: R3          Consolidated Statements of Comprehensive Loss       HTML     65K 
16: R4          Consolidated Statements of Comprehensive Loss       HTML     33K 
                (Parenthetical)                                                  
17: R5          Consolidated Statements of Changes in Equity        HTML     53K 
18: R6          Consolidated Statements of Cash Flows               HTML    111K 
19: R7          General                                             HTML     34K 
20: R8          Accounting Policies                                 HTML     84K 
21: R9          Significant Accounting Judgments, Estimates and     HTML     37K 
                Assumptions Used in the Preparation of the                       
                Financial Statements                                             
22: R10         Cash and Cash Equivalents and Restricted Cash       HTML     39K 
23: R11         Short-Term Deposits                                 HTML     35K 
24: R12         Trade Receivables, Net                              HTML     73K 
25: R13         Inventory                                           HTML     38K 
26: R14         Other Current Assets                                HTML     36K 
27: R15         System Components, Leased Systems, Other Property   HTML    186K 
                and Equipment, Net                                               
28: R16         Other Long-Term Assets                              HTML     36K 
29: R17         Other Accounts Payable                              HTML     39K 
30: R18         Deferred Revenues and Other Liabilities             HTML     51K 
31: R19         Financial Instruments                               HTML    120K 
32: R20         Employee Benefits and Liabilities                   HTML     33K 
33: R21         Taxes on Income                                     HTML     77K 
34: R22         Contingent Liabilities, Commitments and Charges     HTML     47K 
35: R23         Equity                                              HTML     46K 
36: R24         Share-Based Payment                                 HTML     86K 
37: R25         Additional Information to the Statements of         HTML    136K 
                Comprehensive Loss                                               
38: R26         Net Loss Per Share                                  HTML     41K 
39: R27         Balances and Transactions With Related Parties      HTML     82K 
40: R28         Accounting Policies (Policies)                      HTML    112K 
41: R29         Accounting Policies (Tables)                        HTML     41K 
42: R30         Cash and Cash Equivalents and Restricted Cash       HTML     39K 
                (Tables)                                                         
43: R31         Short-Term Deposits (Tables)                        HTML     33K 
44: R32         Trade Receivables, Net (Tables)                     HTML     75K 
45: R33         Inventory (Tables)                                  HTML     37K 
46: R34         Other Current Assets (Tables)                       HTML     35K 
47: R35         System Components, Leased Systems, Other Property   HTML    185K 
                and Equipment, Net (Tables)                                      
48: R36         Other Long-Term Assets (Tables)                     HTML     35K 
49: R37         Other Accounts Payable (Tables)                     HTML     39K 
50: R38         Deferred Revenues and Other Liabilities (Tables)    HTML     51K 
51: R39         Financial Instruments (Tables)                      HTML    114K 
52: R40         Taxes on Income (Tables)                            HTML     72K 
53: R41         Equity (Tables)                                     HTML     44K 
54: R42         Share-Based Payment (Tables)                        HTML     88K 
55: R43         Additional Information to the Statements of         HTML    142K 
                Comprehensive Loss (Tables)                                      
56: R44         Net Loss Per Share (Tables)                         HTML     40K 
57: R45         Balances and Transactions With Related Parties      HTML     83K 
                (Tables)                                                         
58: R46         General (Details Narrative)                         HTML     30K 
59: R47         Accounting Policies (Details)                       HTML     39K 
60: R48         Accounting Policies (Details 1)                     HTML     44K 
61: R49         Cash and Cash Equivalents and Restricted Cash       HTML     33K 
                (Details)                                                        
62: R50         Cash and Cash Equivalents and Restricted Cash       HTML     30K 
                (Details 1)                                                      
63: R51         Short-Term Deposits (Details)                       HTML     30K 
64: R52         Short-Term Deposits (Details Narrative)             HTML     30K 
65: R53         Trade Receivables, Net (Details)                    HTML     34K 
66: R54         Trade Receivables, Net (Details1)                   HTML     34K 
67: R55         Trade Receivables, Net (Details 2)                  HTML     52K 
68: R56         Inventory (Details)                                 HTML     42K 
69: R57         Other Current Assets (Details)                      HTML     34K 
70: R58         System Components, Leased Systems, Other Property   HTML     97K 
                and Equipment, Net (Details)                                     
71: R59         Other Long-Term Assets (Details)                    HTML     34K 
72: R60         Other Accounts Payable (Details)                    HTML     42K 
73: R61         Deferred Revenues and Other Liabilities (Details)   HTML     34K 
74: R62         Deferred Revenues and Other Liabilities (Details    HTML     44K 
                1)                                                               
75: R63         Financial Instruments (Details)                     HTML     63K 
76: R64         Financial Instruments (Details 1)                   HTML     81K 
77: R65         Financial Instruments (Details 2)                   HTML     33K 
78: R66         Financial Instruments (Details Narrative)           HTML     32K 
79: R67         Employee Benefits and Liabilities (Details          HTML     31K 
                Narrative)                                                       
80: R68         Taxes on Income (Details)                           HTML     45K 
81: R69         Taxes on Income (Details 1)                         HTML     47K 
82: R70         Taxes on Income (Details 2)                         HTML     38K 
83: R71         Taxes on Income (Details Narrative)                 HTML     34K 
84: R72         Contingent Liabilities, Commitments and Charges     HTML     46K 
                (Details Narrative)                                              
85: R73         Equity (Details)                                    HTML     32K 
86: R74         Equity (Details 1)                                  HTML     35K 
87: R75         Share-Based Payment (Details)                       HTML     31K 
88: R76         Share-Based Payment (Details 1)                     HTML     42K 
89: R77         Share-Based Payment (Details 2)                     HTML     39K 
90: R78         Share-Based Payment (Details 3)                     HTML     49K 
91: R79         Share-Based Payment (Details 4)                     HTML     35K 
92: R80         Share-Based Payment (Details Narrative)             HTML     34K 
93: R81         Additional Information to the Statements of         HTML     40K 
                Comprehensive Loss (Details)                                     
94: R82         Additional Information to the Statements of         HTML     33K 
                Comprehensive Loss (Details 1)                                   
95: R83         Additional Information to the Statements of         HTML     41K 
                Comprehensive Loss (Details 2)                                   
96: R84         Additional Information to the Statements of         HTML     37K 
                Comprehensive Loss (Details 3)                                   
97: R85         Additional Information to the Statements of         HTML     49K 
                Comprehensive Loss (Details 4)                                   
98: R86         Additional Information to the Statements of         HTML     44K 
                Comprehensive Loss (Details 5)                                   
99: R87         Additional Information to the Statements of         HTML     44K 
                Comprehensive Loss (Details 6)                                   
100: R88         Additional Information to the Statements of         HTML     47K  
                Comprehensive Loss (Details 7)                                   
101: R89         Net Loss Per Share (Details)                        HTML     36K  
102: R90         Balances and Transactions With Related Parties      HTML     35K  
                (Details)                                                        
103: R91         Balances and Transactions With Related Parties      HTML     39K  
                (Details 1)                                                      
104: R92         Balances and Transactions With Related Parties      HTML     32K  
                (Details 2)                                                      
105: R93         Balances and Transactions With Related Parties      HTML     41K  
                (Details 3)                                                      
107: XML         IDEA XML File -- Filing Summary                      XML    207K  
110: XML         XBRL Instance -- f20f_031424_htm                     XML   2.38M  
106: EXCEL       IDEA Workbook of Financial Report Info              XLSX    171K  
 9: EX-101.CAL  XBRL Calculations -- bway-20231231_cal               XML    204K 
10: EX-101.DEF  XBRL Definitions -- bway-20231231_def                XML    424K 
11: EX-101.LAB  XBRL Labels -- bway-20231231_lab                     XML    922K 
12: EX-101.PRE  XBRL Presentations -- bway-20231231_pre              XML    799K 
 8: EX-101.SCH  XBRL Schema -- bway-20231231                         XSD    269K 
108: JSON        XBRL Instance as JSON Data -- MetaLinks              321±   438K  
109: ZIP         XBRL Zipped Folder -- 0001171843-24-001696-xbrl      Zip    749K  


‘EX-97.1’   —   Clawback Policy re: Recovery of Erroneously Awarded Compensation


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



Exhibit 97.1

 

BRAINSWAY LTD.

POLICY FOR RECOVERY OF ERRONEOUSLY AWARDED COMPENSATION

 

BrainsWay LTD. (the “Company”) has adopted this Policy for Recovery of Erroneously Awarded Compensation (the “Policy”), effective as of December 1, 2023 (the “Effective Date”). Capitalized terms used in this Policy but not otherwise defined herein are defined in Section 112.

 

1.Persons Subject to Policy

 

This Policy shall apply to and be binding and enforceable on current and former Officers. In addition, the Committee and the Board may apply this Policy to persons who are not Officers, and such application shall apply in the manner determined by the Committee and the Board in their sole discretion.

 

2.Compensation Subject to Policy

 

This Policy shall apply to Incentive-Based Compensation received on or after the Effective Date. For purposes of this Policy, the date on which Incentive-Based Compensation is “received” shall be determined under the Applicable Rules, which generally provide that Incentive-Based Compensation is “received” in the Company’s fiscal period during which the relevant Financial Reporting Measure is attained or satisfied, without regard to whether the grant, vesting or payment of the Incentive-Based Compensation occurs after the end of that period.

 

3.Recovery of Compensation

 

In the event that the Company is required to prepare a Restatement, the Company shall recover, reasonably promptly and in accordance with Section 4 below, the portion of any Incentive- Based Compensation that is Erroneously Awarded Compensation, unless the Committee and the Board have determined that recovery from the relevant current or former Officer would be Impracticable. Recovery shall be required in accordance with the preceding sentence regardless of whether the applicable Officer engaged in misconduct or otherwise caused or contributed to the requirement for the Restatement and regardless of whether or when restated financial statements are filed by the Company. For clarity, the recovery of Erroneously Awarded Compensation under this Policy will not give rise to any Officer’s right to voluntarily terminate employment for “good reason” or due to a “constructive termination” (or any similar term of like effect) under any plan, program or policy of or agreement with the Company or any of its affiliates.

 

4.Manner of Recovery; Limitation on Duplicative Recovery

 

The Committee and the Board shall, in its sole discretion, determine the manner of recovery of any Erroneously Awarded Compensation, which may include, without limitation, reduction or cancellation by the Company or an affiliate of the Company of Incentive-Based Compensation or Erroneously Awarded Compensation, reimbursement or repayment by any person subject to this Policy, and, to the extent permitted by law, an offset of the Erroneously Awarded Compensation against other compensation payable by the Company or an affiliate of the Company to such person. Notwithstanding the foregoing, unless otherwise prohibited by the Applicable Rules, to the extent this Policy provides for recovery of Erroneously Awarded Compensation already recovered by the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 or Other Recovery Arrangements, the amount of Erroneously Awarded Compensation already recovered by the Company from the recipient of such Erroneously Awarded Compensation may be credited to the amount of Erroneously Awarded Compensation required to be recovered pursuant to this Policy from such person.

 

 1 

 

5.Administration

 

This Policy shall be administered, interpreted and construed by the Board and Committee, which is authorized to make all determinations necessary, appropriate or advisable for such purpose. The Board may re-vest in itself the authority to administer, interpret and construe this Policy in accordance with applicable law, and in such event references herein to the “Committee” shall be deemed to be references to the Board. Subject to any permitted review by the applicable national securities exchange or association pursuant to the Applicable Rules, all determinations and decisions made by the Committee or the Board pursuant to the provisions of this Policy shall be final, conclusive and binding on all persons, including the Company and its affiliates, shareholders and employees. The Committee or the Board may delegate administrative duties with respect to this Policy to one or more directors or employees of the Company, as permitted under applicable law, including any Applicable Rules.

 

6.Interpretation

 

This Policy shall be interpreted and applied in a manner that is consistent with the requirements of the Applicable Rules, and to the extent this Policy is inconsistent with such Applicable Rules, it shall be deemed amended to the minimum extent necessary to ensure compliance therewith.

 

7.No Indemnification; No Liability

 

The Company shall not indemnify or insure any person against the loss of any Erroneously Awarded Compensation pursuant to this Policy, nor shall the Company directly or indirectly pay or reimburse any person for any premiums for third-party insurance policies that such person may elect to purchase to fund such person’s potential obligations under this Policy. None of the Company, an affiliate of the Company or any member of the Committee or the Board shall have any liability to any person as a result of actions taken under this Policy.

 

8.Application; Enforceability

 

Except as otherwise determined by the Committee or the Board, the adoption of this Policy does not limit, and is intended to apply in addition to, any Other Recovery Arrangements. Without limiting the foregoing, in the event of a conflict between this Policy and the Compensation Policy, the latter shall prevail, except with respect to the recovery of any portion of Incentive-Based Compensation that is Erroneously Awarded Compensation that would not be recoverable under the Compensation Policy, in which case this Policy shall prevail. Subject to Section 4, the remedy specified in this Policy shall not be exclusive and shall be in addition to every other right or remedy at law or in equity that may be available to the Company or an affiliate of the Company or is otherwise required by applicable law and regulations.

 

 2 

 

9.Severability

 

The provisions in this Policy are intended to be applied to the fullest extent of the law; provided, however, to the extent that any provision of this Policy is found to be unenforceable or invalid under any applicable law, such provision will be applied to the maximum extent permitted, and shall automatically be deemed amended in a manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law.

 

10.Amendment and Termination

 

The Board or the Committee may amend, modify or terminate this Policy in whole or in part at any time and from time to time in its sole discretion. This Policy will terminate automatically when the Company does not have a class of securities listed on a national securities exchange or association in the U.S.

 

11.Filing Requirement

 

The Company shall file this Policy as an exhibit to its annual report filed with the SEC and make such other disclosures with respect to this Policy in accordance with the requirements of the U.S. federal securities laws, including the disclosure required by applicable SEC filings.

 

12.Definitions

 

Applicable Rules” means Section 10D of the Exchange Act, Rule 10D-1 promulgated thereunder, the listing rules of the national securities exchange or association on which the Company’s securities are listed, and any applicable rules, standards or other guidance adopted by the Securities and Exchange Commission (the “SEC”) or any national securities exchange or association on which the Company’s securities are listed.

 

Board” means the Board of Directors of the Company.

 

Compensation Policy” means the Company’s compensation policy for officers and directors, as adopted in accordance with the Israeli Companies Law 5759-1999 and as in effect from time to time.

 

Committee” means the Compensation Committee of the Board or, in the absence of such a committee, a majority of the independent directors serving on the Board.

 

Erroneously Awarded Compensation” means the amount of Incentive-Based Compensation received by a current or former Officer that exceeds the amount of Incentive-Based Compensation that would have been received by such current or former Officer based on a restated Financial Reporting Measure, as determined on a pre-tax basis in accordance with the Applicable Rules. For Incentive-Based Compensation based on stock price or total shareholder return (“TSR”), where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in the Restatement, the Company shall: (i) base the calculation of the amount on a reasonable estimate of the effect of the Restatement on the stock price or TSR upon which the Incentive-Based Compensation received was based; and (ii) retain documentation of the determination of that reasonable estimate and provide such documentation to the national securities exchange or association on which the Company’s securities are listed.

 

 3 

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Financial Reporting Measure” means any measure determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures derived wholly or in part from such measures, including GAAP, IFRS and non- GAAP/IFRS financial measures, as well as stock price and total shareholder return.

 

GAAP” means United States generally accepted accounting principles.

 

IFRS” means international financial reporting standards as adopted by the International Accounting Standards Board.

 

Impracticable” means (a) the direct expense paid to third parties to assist in enforcing recovery would exceed the Erroneously Awarded Compensation; provided that the Company has (i) made reasonable attempt(s) to recover the Erroneously Awarded Compensation, (ii) documented such reasonable attempt(s) and (iii) provided such documentation to the relevant listing exchange or association, (b) the recovery would violate the Company’s home country laws adopted prior to November 28, 2022 pursuant to an opinion of home country counsel; provided that the Company has (i) obtained an opinion of home country counsel, acceptable to the relevant listing exchange or association, that recovery would result in such a violation and (ii) provided such opinion to the relevant listing exchange or association, or (c) recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of 26 U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and the regulations thereunder.

 

Incentive-Based Compensation” means, with respect to a Restatement, any compensation that is granted, earned, or vested based wholly or in part upon the attainment of one or more Financial Reporting Measures and received by a person: (a) after such person began service as an Officer; (b) who served as an Officer at any time during the performance period for that compensation; (c) while the Company has a class of securities listed on a national securities exchange or association; and (d) during the applicable Three-Year Period.

 

Officer” any current or former president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller), any vice-president of the Company in charge of a principal business unit, division, or function (such as sales, administration or finance), or any other person who performs similar significant policy-making functions for the Company (including executive officers of a parent or subsidiary), including any executive officers identified pursuant to Item 401(b) of Regulation S-K.

 

Other Recovery Arrangementsmeans any clawback, recoupment, forfeiture or similar policies or provisions of the Company or its affiliates, including any such policies or provisions of such effect contained in any employment agreement, bonus plan, incentive plan, equity-based plan or award agreement thereunder or similar plan, program or agreement of the Company or an affiliate or required under applicable law (including, without limitation, the Compensation Policy).

 

Restatement” means an accounting restatement to correct the Company’s material noncompliance with any financial reporting requirement under securities laws, including restatements that correct an error in previously issued financial statements (a) that is material to the previously issued financial statements or (b) that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period.

 

 4 

 

Three-Year Period” means, with respect to a Restatement, the three completed fiscal years immediately preceding the date that the Board, a committee of the Board, or the officer or officers of the Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare such Restatement, or, if earlier, the date on which a court, regulator or other legally authorized body directs the Company to prepare such Restatement. The “Three-Year Period” also includes any transition period (that results from a change in the Company’s fiscal year) within or immediately following the three completed fiscal years identified in the preceding sentence. However, a transition period between the last day of the Company’s previous fiscal year end and the first day of its new fiscal year that comprises a period of nine to 12 months shall be deemed a completed fiscal year.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 5 

 

ACKNOWLEDGMENT AND CONSENT TO

POLICY FOR RECOVERY OF ERRONEOUSLY AWARDED COMPENSATION

 

The undersigned has received a copy of the Policy for Recovery of Erroneously Awarded Compensation (the “Policy”) adopted by BrainsWay LTD. (the “Company”), and has read and understands the Policy. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Policy.

 

As a condition of receiving Incentive-Based Compensation from the Company, the undersigned agrees that any Incentive-Based Compensation received on or after the Effective Date is subject to recovery pursuant to the terms of the Policy. To the extent the Company’s recovery right conflicts with any other contractual rights the undersigned may have with the Company, the undersigned understands that the terms of the Policy shall supersede any such contractual rights. The terms of the Policy shall apply in addition to any right of recoupment against the undersigned under the Compensation Policy or applicable law and regulations.

 

 

 

 

 

       
Date   Signature  
       
       
    Name  
       
       
    Title  

 

 

 

 

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘20-F’ Filing    Date    Other Filings
Filed on:3/28/24
For Period end:12/31/23
12/1/23
11/28/226-K
 List all Filings 


5 Previous Filings that this Filing References

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 4/12/22  Brainsway Ltd.                    20-F       12/31/21  100:8.8M                                   Globenewswire Inc./FA
 4/19/21  Brainsway Ltd.                    20-F       12/31/20  110:7.9M                                   Globenewswire Inc./FA
 2/25/21  Brainsway Ltd.                    6-K         2/25/21    4:407K                                   Globenewswire Inc./FA
 2/01/19  Bank of New York/ADR Division     F-6                    3:352K Brainsway Ltd./ADR                Emmet Marvin & Mart… LLP
 1/14/19  Brainsway Ltd.                    F-1                   21:6.8M                                   Toppan Merrill-FA
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