UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
For the fiscal year ended December 31 , 2023
or
For the transition period from ______ to ______
Commission File Number: 001-36612
(Exact name of registrant as specified in charter)
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Not applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. employer
identification no.)
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: +972 .4.959.0123
Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange on Which Registered
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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 a check mark whether the registrant (1) has filed all reports required to be filed by Section 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.
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).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or 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.
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Large accelerated filer ☐
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Accelerated filer ☐
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Smaller reporting company
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Emerging growth company
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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. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 USC. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
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 Ordinary Shares held by non-affiliates of the Registrant based upon the closing price of the Ordinary Shares as reported by The Nasdaq Capital Market on June 30, 2023 (the last business day of the Registrant’s most recently completed second fiscal quarter) was $35,050,478 .
As of February 27, 2024, the Registrant had outstanding 60,131,815 Ordinary Shares, par value NIS 0.25 per share (8,590,259 Ordinary Shares, par value NIS 1.75 per share, as adjusted for a reverse split effected by the Company on March 15, 2024).
The registrant’s auditor is
EXPLANATORY NOTE TO AMENDMENT NO. 1
ReWalk Robotics Ltd. (doing business as “Lifeward”) (the “Company,” “we,” “us,” “our”) is filing this Amendment No. 1 on Form 10-K/A (“Amendment No. 1”) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2023, which was originally filed with the Securities and Exchange Commission (the “SEC”) on February 27, 2024 (the “Original Form 10-K” and together with Amendment No. 1, the “2023 Annual Report”), for the sole purpose of including the information required by Part III of Form 10-K. This information was previously omitted from the Original Form 10-K in reliance on General Instruction G(3) to Form 10-K, which permits the information in Part III to be incorporated in the Form 10-K by reference from our definitive proxy statement if such definitive proxy statement is filed no later than 120 days after our fiscal year-end. We are filing this Amendment No. 1 to include the Part III information in our 2023 Annual Report because we will not file a definitive proxy statement containing such information within 120 days after the end of the fiscal year covered by the Original Form 10-K. This Amendment No. 1 amends and restates in their entirety Items 10, 11, 12, 13 and 14 of Part III of the Original Form 10-K.
In addition, in accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Item 15 of Part IV of the Original Form 10-K is hereby amended to include as Exhibit 3.1 the Company’s Fifth Amended and Restated Articles of Association and as Exhibits 31.3 and 31.4, the certifications required under Section 302 of the Sarbanes-Oxley Act of 2002. Except as described herein, this Amendment No. 1 does not modify or update the disclosures in, or exhibits to, the Original Form 10-K or update the Original Form 10-K to reflect events occurring after the date of such filing. Among other things, forward-looking statements made in the Original Form 10-K have not been revised to reflect events that occurred or facts that became known to us after the filing of the Original Form 10-K, and such forward-looking statements should be read in their historical context. Accordingly, this Amendment No. 1 should be read in conjunction with the Company's other filings made with the SEC subsequent to the filing of the Original Form 10-K. Unless otherwise defined herein, each capitalized term included in this Amendment No. 1 but not otherwise defined herein shall have the meaning ascribed to such term in the Original Form 10-K.
REWALK ROBOTICS LTD.
FORM 10-K/A FOR THE YEAR ENDED DECEMBER 31, 2023
FORM 10-K/A FOR THE YEAR ENDED DECEMBER 31, 2023
TABLE OF CONTENTS
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Information About Our Directors
The following table sets forth the names and ages of the directors
of the Company as of April 26, 2024 and their principal occupations at present and for the past five years. Our Board of Directors (the
“Board”) currently consists of seven members and is divided into three classes. One class is elected each year at the annual
meeting of stockholders for a term of three years. The term of the Class I directors expires at the 2024 Annual Meeting of Stockholders.
No family relationships exist between any directors or executive officers, as such term is defined in Item 401 of Regulation S-K promulgated
under the Exchange Act.
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Name |
Age |
Current Position with the Company |
Director Since | ||
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Jeff Dykan* (1)(2) |
65 |
Class I Director, Chairman |
2009 | ||
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Joesph Turk* (2)(3) |
56 |
Class I Director |
2022 | ||
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Hadar Levy* (1) |
51 |
Class I Director |
2022 | ||
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Larry Jasinski |
66 |
Class II Director, Chief Executive Officer |
2012 | ||
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Dr. John William Poduska* (1)(3) |
86 |
Class II Director |
2014 | ||
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Randel E. Richner* (3) |
68 |
Class II Director |
2020 | ||
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Michael Swinford* |
54 |
Class III Director |
2024 |
_________________________
* Independent
(1) Member of Audit Committee.
(2) Member of Nominating and Corporate Governance Committee.
(3) Member of Compensation Committee.
Class I Directors Continuing
in Office Until the 2024 Annual General Meeting of Shareholders
Set forth below is a list of our directors continuing in office
until the 2024 annual general meeting of shareholders, together with certain biographical information, including their ages as of the
date of this Amendment No. 1
Jeff Dykan, 65, has served on our Board
since 2006 and has been the Chairman of our Board since 2009. He was appointed by our shareholder SCP Vitalife. Since 2002 Mr. Dykan has
been a director of Vitalife Partners Management LP, the general partner of Vitalife, and since 2007 has been a director of its successor
fund, SCP Vitalife GP, the corporate general partner of the common general partner of SCP Vitalife Partners II L.P. and its affiliate
SCP Vitalife Partners (Israel) II L.P. He has also served as a managing member of SCP Vitalife Management Company, LLC and SCP Vitalife
Management Israel Ltd., which by contract provides certain management services to the common general partner of SCP Vitalife. Prior to
joining Vitalife, from 2001 to 2002, Mr. Dykan was the Chairman and Chief Executive Officer of BitBand Inc., formerly a provider of content
management and delivery systems, specializing in video on demand for IPTV. Mr. Dykan holds a B.Sc. in accounting and management and an
M.B.A. in computer applications, both from New York University. We believe that Mr. Dykan’s extensive knowledge of corporate finance,
securities and investments and his years of acting in management roles provide him the qualifications and skills to serve as a member
of our Board.
Joseph Turk, 56, has served
on our Board since April 2022. Mr. Turk has served as an Executive Vice President of Fresenius Medical Care North America since 2019,
during which he has served as the Global Head of Home Therapies since January 2022, President of its North American Renal Therapies Group
from July 2021 through December 2021, and as the President of its U.S. Home and Critical Care Therapies group from February 2019 until
July 2021. Previously he served in a number of roles at NxStage Medical, Inc. from 2000 to 2019, including President, Senior Vice President,
and Vice President of Marketing. Prior to this, Mr. Turk held roles at Boston Scientific Corporation and McKinsey and Company. Mr. Turk
holds a B.A. from Wabash College and an M.A from the Kellogg Graduate School of Management. We believe that Mr. Turk’s management
leadership and experience in successfully achieving favorable Medicare reimbursement, building an organization for implementation
of commercialization with a novel breakthrough medical device, and completing multiple new business development transactions provide him
the qualifications and skills to serve as a member of our Board.
1
Hadar Levy, 51,
has served on our Board since August 2022. Mr. Levy has more than 20 years of experience in management and finance. Mr. Levy
has served as the Chief Executive Officer of Brainsway Ltd., a commercial stage medical device company developing advanced noninvasive
neurostimulation treatments for mental health disorders, since February 2023, and prior to that, held several senior management roles
at Brainsway since joining in July 2014, including as Senior Vice President and Chief Operating Officer since May 2020, and as Chief Financial
Officer from September 2014 to May 2020. Prior to joining Brainsway, Mr. Levy served as a finance manager in the Latin America Division
at Amdocs Ltd., where he was responsible for accounting, financial reporting, treasury, portfolio management and finance support for Mergers
& Acquisitions. Prior to Amdocs, he served as Chief Financial Officer & Business Development of Notal Vision, a healthcare company
that researches and develops medical technologies for detecting retinal malfunction and deterioration, where he was responsible for all
financial functions and led financial rounds of equity including M&A activities with strategic partners. Prior to this position, he
served as Controller of GE Healthcare Israel. Mr. Levy began his career at Deloitte LLP. He holds a BA in Accounting and Economics, an
LLM degree from Bar-Ilan University (Tel Aviv, Israel), and is a Certified Public Accountant. We believe that Mr. Levy’s finance
and senior management experience in the medical device industry experience provide him with the qualifications and skills to serve as
a member of our Board.
Class II Directors Continuing
in Office Until the 2025 Annual General Meeting of Shareholders
Set forth below is a list of our directors continuing in office
until the 2025 annual general meeting of shareholders, together with certain biographical information, including their ages as of the
date of this Amendment No. 1:
Larry Jasinski, 66, has
served as our Chief Executive Officer (“CEO”) and as a member of our Board since February 2012. From 2005 until 2012, Mr.
Jasinski served as the President and Chief Executive Officer of Soteira, Inc., a company engaged in development and commercialization
of products used to treat individuals with vertebral compression fractures, which was acquired by Globus Medical in 2012. From 2001 to
2005, Mr. Jasinski was President and Chief Executive Officer of Cortek, Inc., a company that developed next-generation treatments for
degenerative disc disease, which was acquired by Alphatec in 2005. From 1985 until 2001, Mr. Jasinski served in multiple sales, research
and development, and general management roles at Boston Scientific Corporation. Mr. Jasinski has served on the board of directors of Massachusetts
Bay Lines since 2015 and of LeMaitre Vascular, Inc. since 2003. Mr. Jasinski holds a B.Sc. in marketing from Providence College and an
MBA from the University of Bridgeport. We believe
that Mr. Jasinski’s successful leadership and executive experience, along with his extensive knowledge of the medical devices industry
and research and development, provide him the qualifications and skills to act as a member of our Board.
Dr. John William Poduska, 86, has
served on our Board since 2014. He also serves as
a director on the boards of a number of privately-held companies. Dr. Poduska also served as a director of EXA Corporation (Nasdaq: EXA),
where he served as chairman of the company and a member of the nominating and corporate governance committee, until 2018, Novell, Inc.
until 2011 and of Anadarko Petroleum Corporation and Safeguard Scientifics, Inc. until 2009. Dr. Poduska was the Chairman of Advanced
Visual Systems Inc., a provider of visualization software, from January 1992 to December 2001. From December 1989 until December 1991,
Dr. Poduska was President and Chief Executive Officer of Stardent Computer Inc., a computer manufacturer. From December 1985 until December
1989, Dr. Poduska served as Chairman and Chief Executive Officer of Stellar Computer Inc., a computer manufacturer he founded which is
the predecessor of Stardent Computer Inc. Prior to founding Stellar Computer, Inc., Dr. Poduska founded Apollo Computer Inc. and Prime
Computer, Inc. Dr. Poduska holds a Sc.D. from MIT and an Honorary Doctorate of Humane Letters from Lowell University. We believe that
Dr. Poduska’s varied director experience, both in private and public companies, his expertise in computer engineering and his familiarity
with developing companies equip him with the qualifications and skills to serve as a member of our Board.
Randel E. Richner, 68,
has served on our Board since November 2020. Ms. Richner has over 30 years’ experience in health policy, reimbursement and economics.
From 2013 to 2015, Ms. Richner served as Executive Vice President of Intralign Health, LLC. From 2006 to 2012, she was President
and Founder of Neocure Group, data analytics, health economics and reimbursement strategic services, acquired by Intralign Health, LLC
in 2013. From 1997 to 2006, Ms. Richner was Vice President of Global Government Affairs and Reimbursement, Boston Scientific
Corporation. Ms. Richner has engaged with U.S. Congress and CMS, appointed as first industry representative, Executive Committee
(EC) Medicare Coverage Advisory Committee (MCAC). She has served on the Executive Dean’s Advisory Board, University of Michigan’s
School of Public Health, since 2007, and has served on multiple boards including MassMedic (founding Women in MedTech), Executive
Advisory Board Center for Evaluation Value, Risk Tufts New England Medical Center, International Society of Pharmacoeconomics and Research
(ISPOR), founding the U.S. Medical Device Council. Ms. Richner has been an invited executive lecturer at Dartmouth, Tuck School of Business;
University of Michigan School of Engineering and University of Michigan School of Public Health. She has a Master of Public Health
in Health Policy and Administration and a Bachelor of Science in Nursing from University of Michigan. We
believe that Ms. Richner’s extensive leadership and board membership experience in the healthcare industry, as well as her familiarity
with health economics and reimbursement procedures, provides her with a unique perspective of our market and the qualifications and skills
to serve as a member of our Board.
2
Class III Director Continuing in Office until
the 2026 Annual General Meeting of Shareholders
Set forth below is our director continuing in office until the 2026 annual general meeting
of shareholders, together with certain biographical information, including his age as of the date of this Amendment No. 1:
Michael Swinford, 54, has
served on our Board since April 2024. Mr. Swinford has been Chief Executive Officer of Numotion since July 2014, where he has
grown the company to become the largest provider of mobility and independence solutions in the United States – serving over 400,000
individuals annually with Spinal Cord Injuries, Traumatic Brain Injuries, ALS, Muscular Dystrophy, Cerebral Palsy, Multiple Sclerosis,
Spinal Muscular Atrophy, Amputees and many other mobility related disabilities. As CEO at Numotion, Mr. Swinford has expanded commercial
coverage with over 5000 health plans, rehab hospitals, specialty and multi-disciplinary clinics, skilled nursing facilities, primary care,
and home health providers. Mr. Swinford has led efforts for benefit coverage determination for Power Wheelchair Seat Elevation systems
in 2023 and is actively leading efforts for Power Standing Wheelchairs and reform of Service and Repair regulations and reimbursement
levels. Prior to Numotion, Mr. Swinford had a highly successful 22-year career at GE Healthcare, including serving as the President
and CEO of GE Healthcare Services and as an officer of General Electric Company. Mr. Swinford held various operational and commercial
roles throughout his career leading through various business cycles from start-ups to turnarounds. Mr. Swinford also serves as a director
of CareATC, a technology enabled population health primary care provider, as well as a director of Aspen Surgical, a global surgical supply
manufacturer. We believe that Mr. Swinford’s extensive experience with health and rehabilitation products, as well as his knowledge
of the reimbursement process, provide him the qualifications and skills to serve as a member of our Board.
Information About Our Executive Officers
The following table sets forth the name, age and position of each
of our executive officers as of April 26, 2024:
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Name |
Age |
Position | ||
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Larry Jasinski |
66 |
Chief Executive Officer and Director | ||
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Michael Lawless |
56 |
Chief Financial Officer | ||
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Charles Remsberg |
62 |
Chief Sales Officer | ||
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Jeannine Lynch |
59 |
Vice President of Market Access | ||
|
Almog Adar |
40 |
Vice President of Finance and Chief Accounting Officer |
Larry Jasinski has served
as our Chief Executive Officer and as a member of our board since February 2012. From 2005 until 2012, Mr. Jasinski served as the
President and Chief Executive Officer of Soteira, Inc., a company engaged in development and commercialization of products used to
treat individuals with vertebral compression fractures, which was acquired by Globus Medical in 2012. From 2001 to 2005, Mr. Jasinski
was President and Chief Executive Officer of Cortek, Inc., a company that developed next-generation treatments for degenerative disc disease,
which was acquired by Alphatec in 2005. From 1985 until 2001, Mr. Jasinski served in multiple sales, research and development, and
general management roles at Boston Scientific Corporation. Mr. Jasinski has served on the board of directors of Massachusetts Bay Lines
since 2015 and of LeMaitre Vascular, Inc. since 2003. Mr. Jasinski holds a B.Sc. in marketing from Providence College and an MBA
from the University of Bridgeport.
3
Michael Lawless has served
as our Chief Financial Officer since September 2022. Prior to Lifeward, Mr. Lawless served as a CFO consultant for Danforth Advisors,
LLC, a provider of financial consulting services to the life sciences industry. From 2015 to 2020, Mr. Lawless held several financial
leadership positions including Division CFO at Azenta, Inc. (formerly Brooks Automation, Inc.), a worldwide provider of management solutions
for biological samples. Previously, Mr. Lawless also held financial leadership roles for AECOM Technology, Inc., PerkinElmer, Inc., Momenta
Pharmaceuticals, Inc. and CTI Molecular Imaging, Inc. Mr. Lawless has a Bachelor of Arts degree in Economics from Swarthmore College,
a Master of Business Administration degree from the Tuck School of Business at Dartmouth College and is a Certified Public Accountant.
Charles Remsberg has served
as our Chief Sales Officer since August 2023. Prior to Lifeward, Mr. Remsberg served as CEO of AlterG from March 2017 until our
acquisition of AlterG in August 2023. An industry veteran of over 30 years, Mr. Remsberg has been responsible for bringing innovative
rehabilitation technology to physical therapy, neuro-rehabilitation, sports medicine, and wellness customers. Prior to serving at AlterG,
Mr. Remsberg served in both executive and commercial leadership roles for Tibion (for which he served as the CEO from December 2009 to
April 2013, when it was acquired by AlterG), Hocoma (for which he served as the U.S. CEO and Global Head of Sales from September 2003
to November 2009), and Biodex Medical Systems (for which he served as the Head of Worldwide Sales from January 1997 to October 2002).
Mr. Remsberg holds an AS in Business Administration from Suffolk County Community College.
Jeannine Lynch has served
as our Vice President of Market Access and Strategy since August 2021. Prior to Lifeward, Ms. Lynch served as Senior Director of Patient
Access Services at BioMarin Pharmaceuticals from April 2009 to September 2021. In addition to her work with BioMarin, Ms. Lynch has worked
for industry leaders such as Genentech and Pfizer/Agouron. She has held leadership roles in commercial management, product launches and
built customized patient services to address several different rare and ultrarare medical conditions. Ms. Lynch also sits on the Board
of Directors for MVP, a non-profit organization to help young people of color prepare, perform, progress, and prosper in their education,
leadership and early professional careers. Ms. Lynch is a graduate of the University of California Berkeley and holds a Master of Public
Health from the University of Michigan.
Almog Adar has served as
our Vice President of Finance since December 2022 and as our Chief Accounting Officer since March 2022. From 2020 to December 2022, Mr.
Adar served as our Director of Finance and Corporate Financial Controller. Prior to Lifeward, Mr. Adar served as Controller of Infinya
Recycling Ltd. (previously Amnir Recycling) from January 2018 until December 2019. From January 2016 until December 2017, Mr. Adar served
as Assistant Controller of Delta Galil Industries. Mr. Adar has a Bachelor of Arts degree in Accounting and Economics from the Open University
of Israel and is a Certified Public Accountant licensed by the Israeli Ministry of Justice.
Board Leadership Structure
Although the Board does not currently have a formal policy requiring
the offices of Chairman of the Board and CEO to be separate, the Israel Companies Law provides that one individual cannot serve as both
Chairman and CEO, unless the shareholders approve such dual role, with each such approval to be valid for not more than three years. Currently,
we have separated the positions of CEO and Chairman of the Board in recognition of the differences between the two roles. The CEO is responsible
for the day-to-day leadership and performance of the Company, while the Chairman of the Board (in collaboration with other members of
the Board) sets the strategic direction of the Company, provides guidance to the management, sets the agenda for the Board meetings (in
collaboration with the other members of the Board) and presides over meetings of the Board. We believe that the current separation between
Chairman and CEO allows each of them to better focus on their designated responsibilities. In addition, we believe that the current separation
provides a more effective monitoring and objective evaluation of the performance of the CEO. The Board believes it is important that the
Company retain organizational flexibility to determine whether the roles of CEO and Chairman of the Board should be separated or combined.
4
Risk Management
The Board is actively involved in the oversight and management
of risks that could affect the Company. This oversight and management is conducted primarily through committees of the Board, as disclosed
in the descriptions of each of the committees above and in the charters of each of the committees, but the full Board has retained responsibility
for general oversight of risks. The Board regularly receives reports from members of senior management on areas of material risk to the
Company, including operational (which itself includes cybersecurity matters), financial, regulatory and legal. The audit committee oversees
management of financial risks (including liquidity and credit), approves all transactions with related persons and is primarily responsible
for oversight of the Company’s financial reporting process and internal control over financial reporting. The compensation committee
is responsible for overseeing the management of risks relating to the Company’s executive compensation plans and arrangements. The
nominating and corporate governance committee oversees the Company’s corporate governance programs, including the administration
of the Code of Business Conduct and Ethics. The Board discharges its oversight responsibility through full reports by each committee chair
regarding the relevant committee’s actions, as well as through regular reports directly from officers responsible for oversight
of particular risks within the Company.
Opt-Out of Certain Israel Companies Law Requirements
As an Israeli company, we are required to comply with the requirements
of the Israel Companies Law and the regulations promulgated thereunder. Until early 2018, our Board was required to include at least two
“external directors” as defined under the Israel Companies Law. In addition, we were required to comply with certain requirements
under the Israel Companies Law regarding the composition of our audit committee and compensation committee, including requirements relating
to the inclusion and role of the external directors on such committees. Pursuant to regulations then promulgated under the Israel Companies
Law, however, we — as a company that does not have a controlling shareholder, and that complies with the U.S. securities laws and
the corporate governance rules of the Nasdaq Stock Market (“Nasdaq”) — were permitted to “opt out” of the
requirement to appoint external directors as well as the above requirements related to the composition of the audit committee and the
compensation committee.
In February 2018, our Board determined that opting out of the requirements
under the Israel Companies Law regarding the appointment of external directors and the composition of our audit committee and compensation
committee would reduce our administrative and financial burden and provide greater flexibility in attracting highly-qualified directors,
while maintaining appropriate corporate governance standards. Accordingly, we opted out of such requirements. As a result, our Board is
no longer required to include two external directors, and our audit committee and compensation committee do not need to comply with certain
committee composition requirements under the Israel Companies Law.
Director Independence
Our Board has determined that, other than Larry Jasinski, our CEO,
all of our current directors are independent under Nasdaq listing standards. Furthermore, our Board also determined that all current members
of the audit committee, compensation committee, and nominating and corporate governance committee are independent under the applicable
Nasdaq listing standards and rules and regulations of the SEC. In making its determinations regarding independence, the Board carefully
reviewed the categorical tests enumerated in the Nasdaq independence definition, as well as the individual circumstances of each director
with regard to each director’s business and personal activities as they may relate to the Company and our management.
Nasdaq Listing Standards
The Nasdaq definition of “independent director” includes
a series of objective tests. Specifically, a director is deemed independent under the Nasdaq rules if such director is not an executive
officer or employee of the Company or any other individual having a relationship which, in the opinion of the company’s Board, would
interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Generally, the following persons
are not considered independent, among others:
| • |
a director who is, or at any time during the past three years was, employed by the company; |
| • |
a director who accepted or who has a family member who accepted any compensation from the company in excess of $120,000 during any
period of twelve consecutive months within the three years preceding the determination of independence, other than compensation for board
or board committee service, compensation paid to a family member who is an employee (other than an executive officer) of the company,
or benefits under a tax-qualified retirement plan, or non-discretionary compensation; |
5
| • |
a director who is a family member of an individual who is, or at any time during the past three years was, employed by the company
as an executive officer; |
| • |
a director who is, or has a family member who is, a partner in, or a controlling shareholder or an executive officer of, any organization
to which the company made, or from which the company received, payments for property or services in the current or any of the past three
fiscal years that exceed 5% of the recipient’s consolidated gross revenues for that year, or $200,000, whichever is more, other
than the following: (i) payments arising solely from investments in the company’s securities; or (ii) payments under non-discretionary
charitable contribution matching programs; |
| • |
a director who is, or has a family member who is, employed as an executive officer of another entity where at any time during the
past three years any of the executive officers of the company serve on the compensation committee of such other entity; and |
| • |
a director who is, or has a family member who is, a current partner of the company’s outside auditor, or was a partner or employee
of the company’s outside auditor who worked on the company’s audit at any time during any of the past three years. |
Audit Committee
We have a separately designated standing audit committee. The audit
committee currently consists of Mr. Jeff Dykan, Dr. John William Poduska and Mr. Hadar Levy. Mr. Dykan serves as the chairman of the audit
committee. The audit committee holds a minimum of four meetings per year and will meet more frequently as circumstances require. The audit
committee met seven times during the fiscal year ended December 31, 2023.
Israel Companies Law Requirements
Under the Israel Companies Law, we are required to appoint an audit
committee. As discussed above under “Opt-Out of Certain Israel Companies Law Requirements,” in February 2018 we opted out
of certain additional Israel Companies Law requirements relating to the audit committee, including certain requirements as to the composition
of our audit committee.
Nasdaq Listing Standards
and SEC Requirements
Under the Nasdaq corporate governance rules, we are required to
maintain an audit committee consisting of at least three independent directors, each of whom is financially literate and one of whom has
accounting or related financial management expertise. Additionally, we must state whether any members of the audit committee qualifies
as an “audit committee financial expert” under Item 407(d) of Regulation S-K as promulgated by the SEC.
All members of the audit committee meet the requirements for financial
literacy under the applicable rules and regulations of the SEC and the Nasdaq corporate governance rules. Our Board has determined that
Hadar Levy is an “audit committee financial expert” as defined by the SEC rules and has the requisite financial sophistication
as defined by the Nasdaq corporate governance rules.
Each of the current audit committee members is “independent”
as such term is defined under the Nasdaq corporate governance rules and under Rule 10A-3(b)(1) under the Exchange Act, which is different
from the general test for independence of board members and members of other committees.
Audit Committee Role
Our Board has adopted an audit committee charter that sets forth
the responsibilities of the audit committee consistent with the rules of the SEC and the Nasdaq corporate governance rules, as well as
the requirements for such committee under the Israel Companies Law, including the following:
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overseeing our independent registered public accounting firm and recommending the engagement, compensation or termination of engagement
of our independent registered public accounting firm to the Board in accordance with Israeli law; |
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reviewing regularly the senior members of the independent auditor’s team, including the lead audit partner and reviewing partner;
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6
| • |
pre-approving the terms of audit, audit-related and permitted non-audit services provided by the independent registered public accounting
firm; |
| • |
recommending the engagement or termination of the person filling the office of our internal auditor; |
| • |
reviewing periodically with management, the internal auditor and the independent registered public accounting firm the adequacy and
effectiveness of the Company’s internal control over financial reporting; and |
| • |
reviewing with management and the independent registered public accounting firm the annual and quarterly financial statements of
the Company prior to filing with the SEC. |
The charter of the audit committee is available at https://ir.golifeward.com/corporate-governance/charters-and-policies.
Information contained on, or that can be accessed through, our website does not constitute a part of this Amendment No. 1 and is not incorporated
by reference herein.
The audit committee provides assistance to our Board in fulfilling
its legal and fiduciary obligations in matters involving our accounting, auditing, financial reporting, internal control over financial
reporting and legal compliance. Specifically, the audit committee pre-approves the services performed by our independent registered public
accounting firm and reviews the firm’s reports regarding our accounting practices and systems of internal control over financial
reporting. The audit committee also oversees the audit efforts of our independent registered public accounting firm and takes those actions
that it deems necessary to satisfy itself that such accountants are in fact independent of management.
Under the Israel Companies Law, the audit committee is responsible
for:
| • |
determining whether there are deficiencies in the business management practices of the Company and making recommendations to our
Board to improve such practices; |
| • |
determining whether to approve certain related party transactions, and classifying transactions in which a controlling shareholder
has a personal benefit or other interest as significant or insignificant (which affects the required approvals) (see “—Approval
of Related Party Transactions under Israeli Law” below); |
| • |
examining our internal controls and internal auditor’s performance, including whether the internal auditor has sufficient resources
and tools to dispose of its responsibilities, and in certain cases approving the annual work plan of our internal auditor; |
| • |
examining the scope of our auditor’s work and compensation and submitting a recommendation with respect thereto to our Board
or shareholders, depending on which of them is considering the appointment of our auditor; and |
| • |
establishing procedures for the handling of employees’ complaints as to the deficiencies in the management of our business
and the protection to be provided to such employees. |
The audit committee may not approve any actions requiring its approval unless at the
time of the approval a majority of the committee’s members are present. See “—Approval of Related Party Transactions
under Israeli Law” below.
Compensation Committee
We have a separately designated standing compensation committee.
The compensation committee currently consists of Ms. Randel E. Richner, Mr. Joseph Turk, and Dr. John William Poduska. Dr. Poduska serves
as the chairman of the compensation committee. The compensation committee meets as circumstances require and held five meetings during
the year ended December 31, 2023.
7
Israel Companies Law Requirements
Under the Israel Companies Law, the board of directors of a public
company must appoint a compensation committee. As discussed above under “Opt-Out of Certain Israel Companies Law Requirements,”
in February 2018 we opted out of certain additional Israel Companies Law requirements relating to the compensation committee, including
certain requirements as to the composition of our compensation committee.
The duties of the compensation committee include the recommendation
to the company’s board of directors of a compensation policy regarding the terms of engagement of directors and of specified members
of senior management. That compensation policy must be adopted by the company’s board of directors, after considering the recommendations
of the compensation committee, and must then be approved by the company’s shareholders, which approval requires a Special Approval
for Compensation (as defined below under “—Approval of Related Party Transactions under Israeli Law— Disclosure of Personal
Benefits or Other Interests of an Office Holder and Approval of Certain Transactions”). Our Board adopted a compensation policy,
which our shareholders approved at the annual general meeting of our shareholders held on September 13, 2023 (the “Compensation
Policy”).
The compensation policy of an Israeli company must serve as the
basis for decisions concerning the financial terms of employment or engagement of office holders, including compensation, benefits, exculpation,
insurance and indemnification. The compensation policy must take into account certain factors, including advancement of the company’s
objectives, the company’s business plan and its long-term strategy, and creation of appropriate incentives. It must also consider,
among other things, the company’s risk management, size and the nature of its operations. The compensation policy must include certain
principles, such as: a link between variable compensation and long-term performance and measurable criteria; the relationship between
variable and fixed compensation; and the minimum holding or vesting period for variable, equity-based compensation. We believe that the
Compensation Policy satisfies these requirements.
The compensation committee is responsible for (a) recommending
the Compensation Policy to our Board for its approval (and subsequent approval by our shareholders) and (b) carrying out duties related
to the Compensation Policy and to the compensation of our directors and senior management, including:
| • |
reviewing and making recommendations regarding our Compensation Policy at least every three years; |
| • |
recommending to the Board periodic updates to the Compensation Policy; |
| • |
assessing implementation of the Compensation Policy; |
| • |
approving compensation terms of executive officers, directors and employees affiliated with controlling shareholders; and |
| • |
exempting certain compensation arrangements from the requirement to obtain shareholder approval under the Israel Companies Law.
|
Nasdaq Listing Standards
and Section 16 of the Exchange Act
Under the Nasdaq corporate governance rules, we are required to
maintain a compensation committee consisting of at least two independent directors. Each of the members of the compensation committee
is required to be independent under the Nasdaq listing standards relating to compensation committee members, which are different from
the general test for independence of the Board and members of other committees. In assessing independence, the Board considered all factors
specifically relevant to determining whether a director has a relationship to the Company which is material to that director’s ability
to be independent from management in connection with the duties of a compensation committee member and determined that each of the members
of the compensation committee satisfies those requirements. Additionally, transactions between us and our directors and executive officers
will be considered exempt from short-swing liability under Section 16(b) of the Exchange Act if approved by our Board or a committee composed
solely of two or more “non-employee directors,” as defined in Rule 16b-3 under the Exchange Act (“Rule 16b-3”).
Our Board has determined that each of the members of the compensation committee is a “non-employee director,” as defined in
Rule 16b-3.
8
Compensation Committee Role
Our Board has adopted a compensation committee charter setting
forth the responsibilities of the committee, which include:
| • |
reviewing and approving the granting of options and other incentive awards under the Company’s equity compensation plans to
the extent such authority is delegated by our Board; |
| • |
recommending the Company’s compensation policy and reviewing that policy from time to time both with respect to the CEO and
other office holders and generally, including to assess the need for periodic updates; |
| • |
reviewing and approving corporate goals relevant to the compensation of the CEO and other officers and evaluating the performance
of the CEO and other officers; and |
| • |
reviewing, evaluating and making recommendations regarding the compensation and benefits for our non-employee directors. |
The charter of the compensation committee is available at https://ir.golifeward.com/corporate-governance/charters-and-policies.
Information contained on, or that can be accessed through, our website does not constitute a part of this Amendment No. 1 and is not incorporated
by reference herein.
Subject to applicable law, the compensation committee may delegate
its authority to subcommittees established from time to time by the committee. Such subcommittees shall consist of one or more members
of the committee or the board and shall report to the committee. The compensation committee is authorized to retain and terminate compensation
consultants, legal counsel or other advisors to the committee and to approve the engagement of any such consultant, counsel or advisor,
to the extent it deems necessary or appropriate after specifically analyzing the independence of any such consultant retained by the compensation
committee.
Compensation Consultant
The compensation committee has authority to retain compensation
consulting firms to assist it in the evaluation of executive officer and employee compensation and benefit programs. The compensation
committee has retained Aon Hewitt (“Aon”) as its independent compensation advisor. Aon provides an objective perspective as
to the reasonableness of our executive compensation programs and practices and their effectiveness in supporting our business and compensation
objectives, as well as our equity compensation plans and number of shares available for grants.
Although Aon regularly
consults with management in performing work requested by the compensation committee, it did not perform any separate additional services
for management. The compensation committee has assessed the independence of Aon pursuant to applicable SEC rules and concluded that no
conflict of interest exists that would prevent Aon from independently representing the compensation committee.
Nominating and Corporate Governance Committee
The nominating and corporate governance committee currently consists
of Messrs. Jeff Dykan and Joseph Turk. Mr. Dykan serves as the chairman of the nominating and corporate governance committee. The nominating
and corporate governance committee meets as circumstances require, with no meetings having taken place during the fiscal year ended December
31, 2023. Our Board has adopted a nominating and corporate governance committee charter that sets forth the responsibilities of the nominating
and corporate governance committee, which include:
| • |
overseeing and assisting our Board in reviewing and recommending nominees for election as directors; |
| • |
reviewing and evaluating recommendations regarding management succession; |
| • |
assessing the performance of the members of our Board; and |
| • |
establishing and maintaining effective corporate governance policies and practices, including, but not limited to, developing and
recommending to our Board a code of conduct. |
9
The nominating and corporate governance committee considers proposals
from a number of sources, including recommendations for nominees from shareholders submitted upon written notice to the chairman of the
nominating and corporate governance committee, c/o ReWalk Robotics Ltd., 3 Hatnufa Street, Floor 6, Yokneam Illit 2069203, Israel. Other
sources include referrals from other directors, members of management and the Company’s advisors. When considering a person to be
recommended for nomination as a director, the nomination and governance committee evaluates, whether sourced by a shareholder or otherwise,
among other factors, experience, accomplishments, education, skills, personal and professional integrity, diversity of the Board and the
candidate’s ability to devote the necessary time for service as a director (including directorships and other positions held at
other corporations and organizations). The nominating and governance committee does not use different standards to evaluate nominees
depending on whether they are proposed by our directors and management or by our shareholders.
The nominating and corporate governance committee has no specific
policy on director diversity. However, the Board reviews diversity of viewpoints, background, experience, accomplishments, education and
skills when evaluating nominees. The Board believes that such diversity is important because it provides varied perspectives and promotes
active and constructive discussion among directors and between the Board and management, resulting in more effective oversight of management’s
formulation and implementation of strategic initiatives. In addition, in the Board’s executive sessions and in annual performance
evaluations conducted by the Board and its committees, the Board from time to time considers whether the Board’s composition promotes
a constructive and collegial environment. In determining whether an incumbent director should stand for reelection, the nominating and
corporate governance committee considers the above factors, as well as that director’s personal and professional integrity, attendance,
preparedness, participation and candor and other relevant factors as determined by the Board. Additionally, under Israeli law, if at the
time of election of a director, all of the members of the Board are of the same gender, the director to be elected must be of the other
gender. Further, the recently adopted listing requirements of Nasdaq require each listed smaller reporting company to have, or explain
why it does not have, at least two diverse directors on the board, including at least one diverse director who self-identifies as female.
Nasdaq permits the second diverse director to include an individual who self-identifies as one or more of the following: female, LGBTQ+
or an underrepresented minority. Our current board composition is in compliance with these requirements. Each term used above, and in
the matrix below, has the meaning given to it in Nasdaq Listing Rule 5605(f). The Board believes its diversity is demonstrated in the
range of experiences, qualifications and skills of the current members of the Board, as well as gender identities, reflected in the membership
of Ms. Richner.
10
The matrix below provides certain highlights of the composition
of our Board members based on self-identification.
|
Board Diversity Matrix
(As of April 26, 2024) | ||||
|
Total Number of Directors |
7 | |||
|
|
Female
|
Male
|
Non-Binary
|
Did
Not Disclose Gender |
|
Part I: Gender Identity | ||||
|
Directors |
1 |
6 |
— |
— |
|
Part II: Demographic Background |
|
|
|
|
|
African American or Black |
— |
— |
— |
— |
|
Alaskan Native or Native American |
— |
— |
— |
— |
|
Asian |
— |
_ |
— |
— |
|
Hispanic or Latinx |
— |
— |
— |
— |
|
Native Hawaiian or Pacific Islander |
— |
— |
— |
— |
|
White |
1 |
6 |
— |
— |
|
Two or More Races or Ethnicities |
— |
— |
— |
— |
|
LGBTQ+ |
— |
— |
— |
— |
|
Did Not Disclose Demographic Background |
— |
- |
— |
— |
The charter of the nominating and corporate governance committee
is available at https://ir.golifeward.com/corporate-governance/charters-and-policies.
Information contained on, or that can be accessed through, our website does not constitute a part of this Amendment No. 1 and is not incorporated
by reference herein.
11
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires that the Company’s
directors, executive officers and persons who own more than 10% of our outstanding ordinary shares file with the SEC initial reports
of ownership in our ordinary shares and reports of changes in ownership in our ordinary shares. Based solely on a review of reports filed
during the fiscal year ended December 31, 2023 and certain of our internal records, we believe that all Section 16(a) filing requirements
applicable to our directors, officers and greater than 10% beneficial owners were satisfied on a timely basis, except for: (i) two Form
4’s filed late by Larry Jasinski on each of April 3, 2024 and September 19, 2023, each such report relating to one transaction not
reported in the time period specified by rule; (ii) two Form 4’s filed late by Randel Richner on each of March 17, 2023 and September
19, 2023, each such report relating to one transaction not reported in the time period specified by rule; (iii) two Form 4’s filed
late by Jeannine Lynch on each of August 4, 2023 and August 31, 2023, each such report relating to one transaction not reported in the
time period specified by rule; (iv) one Form 4 filed late by Jeff Dykan on September 19, 2023, such report relating to one transaction
not reported in the time period specified by rule; (v) one Form 4 filed late by Dr. John William Poduska on September 19, 2023, such report
relating to one transaction not reported in the time period specified by rule; (vi) one Form 4 filed late by Hadar Levy on September 19,
2023, such report relating to one transaction not reported in the time period specified by rule; (vii) one Form 4 filed late by Joseph
Turk on September 19, 2023, such report relating to one transaction not reported in the time period specified by rule; and (viii) two
Form 4’s filed late by Lind Global Fund II LP on each of July 6, 2023 and September 6, 2023, each such report relating to one transaction
not reported in the time period specified by rule.
Code of Ethics
We have adopted a Code of Business Conduct and Ethics (the “Code of Ethics”),
which applies to all officers, directors and employees. The Code of Ethics is available on our website at [-]. Any amendments to the Code
of Ethics, or any waivers of its requirements, are expected to be disclosed on our website to the extent required by applicable rules
and exchange requirements, including in order to satisfy Item 5.05 of Form 8-K. The reference to our website address here and elsewhere
in this proxy statement does not constitute incorporation by reference of the information contained at or available through our website.
ITEM 11. EXECUTIVE COMPENSATION
As a smaller reporting company, we have opted to comply with
the executive compensation rules otherwise applicable to “smaller reporting companies,” as such term is defined in Rule 12b-2
under the Exchange Act.
This section provides
certain compensation-related information for (1) all individuals who served as our CEO during any part of the year ended December 31,
2023, and (2) our two most highly compensated executive officers (other than our CEO) who were serving as executive officers as of December
31, 2023 (together, our “Named Executive Officers”).
Named Executive Officers
Our Named Executive Officers for the year ended December 31, 2023, which consists of
our principal executive officer and our two other most highly compensated executive officers, are:
• Larry Jasinski, our CEO;
• Michael Lawless, our Chief Financial
Officer; and
• Jeannine Lynch, our Vice President
of Market Access and Strategy
12
2023 Summary Compensation Table
The following table provides information regarding the total compensation awarded to,
earned by, or paid to our Named Executive Officers for services rendered to us in all capacities for the fiscal years ended December 31,
2022, and 2023.
|
Name and Principal Position |
|
|
Year |
|
Salary ($) |
|
|
Stock Awards
($)(1)
|
|
|
Non-Equity Incentive Plan Compensation($)(2)
|
|
|
Total ($) |
| |||||
|
Larry Jasinski,
Chief Executive
Officer and Director |
|
|
2023 |
|
|
442,312 |
|
|
|
167,714 |
|
|
|
278,657 |
|
|
|
888,683 |
| |
|
2022 |
|
|
419,253 |
|
|
|
200,000 |
|
|
|
234,782 |
|
|
|
854,035 |
| ||||
|
Michael Lawless, Chief
Financial Officer |
|
|
2023 |
|
|
316,500 |
|
|
|
99,000 |
|
|
|
101,913 |
|
|
|
517,413 |
| |
|
2022(3)
|
|
|
86,538 |
|
|
|
201,375 |
|
|
|
23,704 |
|
|
|
311,617 |
| ||||
|
Jeannine Lynch,
Vice President of Market
Access and Strategy |
|
|
2023 |
|
|
351,104 |
|
|
|
82,500 |
|
|
|
113,058 |
|
|
|
546,662 |
| |
|
2022 |
|
|
332,800 |
|
|
|
137,500 |
|
|
|
93,184 |
|
|
|
563,484 |
| ||||
____________________
| (1) |
Amounts represent the aggregate grant date fair value of such awards computed in accordance with Financial Accounting Standards Board
Accounting Standards Codification Topic 718 (“FASB ASC Topic 718”). The fair value of restricted stock units (“RSUs”)
granted is determined based on the price of the Company’s ordinary shares on the date of grant. This amount does not correspond
to the actual value that may be recognized by the Named Executive Officer upon the vesting and subsequent settlement of the restricted
stock units. The valuation assumptions used in determining such amounts are described in Notes 2m and 9b to our consolidated financial
statements included in our 2023 Annual Report. |
| (2) |
Amounts represent the annual bonuses paid with respect to achievement of the Company and, if applicable, individual performance objectives
on account of fiscal year 2023. |
| (3) |
Mr. Lawless joined the Company as our Chief Financial Officer effective September 19, 2022 and was not a Named Executive Officer
in 2022. |
13
Pursuant to regulations promulgated under the Israel Companies
Law, we are required to disclose the total compensation earned during 2023 by our five most highly-compensated office holders (as defined
in the Israel Companies Law). Three of such individuals are our Named Executive Officers, as defined above, and their respective total
compensation for 2023 is set forth in the Summary Compensation Table. The other two individuals, and their respective total compensation
for 2023, is as follows:
|
Name and Principal Position |
|
|
Salary ($) |
|
|
Stock Awards
($)(1)
|
|
|
Non-Equity Incentive Plan Compensation($)(2)
|
|
|
All Other Compensation ($) |
|
|
Total ($) |
| |||||
|
Miri Pariente,
Vice President of Operations,
Regulatory and Quality(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
|
|
187,314 |
|
|
|
75,000 |
|
|
|
59,004 |
|
|
|
91,488(4)
|
|
412,806 |
| ||||
|
Almog Adar,
Vice President of Finance and Chief
Accounting Officer (3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
160,583 |
|
|
|
75,000 |
|
|
|
36,934 |
|
|
|
66,101(5)
|
|
|
|
338,618 |
| ||
______________
| (1) |
Amounts represent the aggregate grant date fair value of such awards computed in accordance with Financial Accounting Standards Board
Accounting Standards Codification Topic 718 (“FASB ASC Topic 718”). The fair value of RSUs granted is determined based on
the price of the Company’s ordinary shares on the date of grant. This amount does not correspond to the actual value that may be
recognized by the individuals listed in the table above upon the vesting and subsequent settlement of the restricted stock units. The
valuation assumptions used in determining such amounts are described in Notes 2l and 8b to our consolidated financial statements included
in our 2023 Annual Report. |
| (2) |
Amounts represent the annual bonuses paid with respect to achievement of the Company and, if applicable, individual performance objectives
on account of fiscal year 2023. |
| (3) |
The amounts set forth for each of Ms. Pariente and Mr. Adar in the columns “Salary,” “Non-Equity Incentive Plan,”
and “All Other Compensation” represent payments, contributions and/or allocations that were made in New Israel Shekels (“NIS”)
and have been translated to U.S. dollars according to the average exchange rate on the applicable period. |
| (4) |
Consists of $54,309 for payments, contributions and/or allocations for social benefits and the aggregate incremental cost to the
Company of $37,179 with respect to Ms. Pariente’s personal use of a Company-leased car. |
|
(5) |
Consists of $46,654 for payments, contributions
and/or allocations for social benefits and the aggregate incremental cost to the Company of $19,447 with respect to Mr. Adar’s personal
use of a Company-leased car. |
Narrative Disclosure to the 2023 Summary Compensation Table
Our compensation committee reviews and approves the compensation of our executive
officers and is primarily responsible for determining the compensation for the Named Executive Officers and office holders (within the
meaning of the Israeli Companies Law) consistent with our overall executive compensation philosophy. Our compensation committee reviews
and discusses the compensation of other officers with the chief executive officer and considers overall Company performance against goals,
individual executive performance, and internal and external equity as key factors in those decisions. We develop our compensation programs
after reviewing publicly available compensation data. Aon advises the compensation committee on all of the principal aspects of executive
compensation. Aon attends meetings of the compensation committee when requested to do so. Aon reports directly to the compensation committee
and not to management, although it meets with management for purposes of gathering information for its analyses and recommendations. The
compensation committee has assessed the independence of Aon consistent with SEC regulations and Nasdaq listing standards and has concluded
that the engagement of Aon does not raise any conflict of interest.
14
Base Salaries
At the beginning of 2023, our compensation committee reviewed and approved the base salaries of the Named
Executive Officers based on an analysis of external market conditions and individual performance against goals. The table below
sets forth the base salaries for each of the Named Executive Officers for 2023:
|
Name |
2023 Base Salary ($)
| |
|
Larry Jasinski |
442,312 | |
|
Michael Lawless |
316,500 | |
|
Jeannine Lynch |
351,104 |
2023 Non-Equity Incentive Plan
All employees who have bonus features in their employment agreements,
including our Named Executive Officers, were eligible to participate in a non-equity incentive plan for fiscal year 2023, pursuant to
which employees were eligible to receive a bonus with respect to their performance in such year. Each Named Executive Officer’s
target was equal to a specified percentage of his or her base salary, and the actual bonus is paid based on the achievement of certain
business and personal performance objectives for the 2023 fiscal year. Not all goals were required to be satisfied for a Named Executive
Officer to receive a portion of the bonus. The principal business performance objective under the non-equity incentive plan for 2023 was
based on achieving specified financial goals or milestones as set forth in the Compensation Policy as approved by our shareholders. These
objectives were allocated as 20% for revenue targets, 20% for market development targets, 20% for strategic targets, and 20% for net loss
targets. A personal performance objective, which is subjective in nature, made up the remaining 20%.
If the target was met in all categories of the business performance
objective, 100% of the Named Executive Officer’s bonus was to be paid. The percentage of the bonus to be paid varied depending on
the specific target and the level of achievement.
In February 2024, the compensation committee completed an evaluation
of the Company’s overall performance for 2023 and the Named Executive Officers’ respective contributions in achieving this
performance. The compensation committee’s review was based on Company performance against business objectives, as well as personal
performance against individual goals established by the compensation committee. Following such review, our Board (following the recommendation
of the compensation committee) approved the bonuses for the Named Executive Officers.
Equity Compensation
Our equity grant program is intended to align the interests of
our Named Executive Officers with those of our shareholders and to motivate them to make important contributions to our performance. In
2023, we granted RSUs to each of our Named Executive Officers, as reflected in the “Outstanding Equity Awards at 2023 Fiscal Year
End Table” below. The RSUs will vest pro-rata annually, with twenty-five percent (25%) of the RSUs vesting on each of the first
four (4) anniversaries of the grant date of such award, subject to the Named Executive Officers’ continued service with the Company
through each such vesting date.
Employee Benefits and Perquisites
We currently maintain the Lifeward, Inc. 401(k) Plan, a defined
contribution plan, or the 401(k) Plan, for the benefit of our employees, including our Named Executive Officers, who satisfy certain eligibility
requirements. Our Named Executive Officers were eligible to participate in the 401(k) Plan on the same terms as our other full-time employees.
We believe that providing a vehicle for retirement savings though our 401(k) Plan adds to the overall desirability of our executive compensation
package and further incentivizes our employees, including our Named Executive Officers.
Currently, we do not view perquisites or other personal benefits
as a significant component of our Compensation Policy.
15
Employment Agreements of Named Executive Officers
Each of Larry Jasinski, our CEO, Michael Lawless, our Chief Financial
Officer, and Jeannine Lynch, our Vice President of Market Access and Strategy, previously entered into an employment agreement with our
Subsidiary. These employment agreements set forth their respective terms of employment, which terms are generally applicable to all of
our executives, covering matters such as vacation, health and other benefits. The following are descriptions of the material terms of
our Named Executive Officers’ employment agreements.
Larry Jasinski
On January 17, 2011, we entered into an employment agreement with
Mr. Jasinski, pursuant to which he has served as the CEO of the Company since February 12, 2012 (as amended from time to time, the “Jasinski
Employment Agreement”). The Jasinski Employment Agreement provides for an annual base salary, subject to annual increases in the
discretion of, the Company, and an annual performance bonus. In accordance with previous shareholder approvals, and effective as of January
1, 2023, the annual base salary is currently $442,312. The annual performance bonus was originally set at up to 35% of annual base salary.
In 2020, this was increased to an annual performance bonus of up to 70% of annual base salary for achieving 100% of targets (with adjustment
upward or downward for performance exceeding or failing to meet such objectives, respectively).
In the event that Mr.
Jasinski’s employment is terminated by the Company without “Cause” (as defined in the Jasinski Employment Agreement
), or if Mr. Jasinski terminates his employment for “Good Reason” (as defined in the Jasinski Employment Agreement), he will
be entitled to certain severance payments and benefits, including: (i) a lump sum payment equal to 90 days of his base salary, (ii) an
annual performance bonus (calculated based on the assumption that to the extent performance objectives were achieved in the six-month
period preceding his termination, they will also be achieved in the six months following termination), (iii) reimbursement for any COBRA
or other medical, dental and vision premiums for six months following his termination and (iv) continued participation in any employee
and executive benefit programs in effect as of his termination and reimbursement for the premium or other fees associated with continuation
in any insurance program available to the Company’s employees as a non-employee or in a comparable program if participation as a
non-employee would be barred. The Jasinski Employment Agreement further provides that if Mr. Jasinski’s employment is terminated
without Cause or by Mr. Jasinski for Good Reason, any unvested portion of the options promised in the Jasinski Employment Agreement, which
would have vested during the six months following such termination had Mr. Jasinski remained employed by the Company, will automatically
vest. If Mr. Jasinski terminates his employment without Good Reason, he will be entitled to receive a pro-rated amount of his annual performance
bonus as determined in good faith by the Board. Mr. Jasinski is not entitled to any severance if he is terminated by the Company
for Cause.
The Jasinski Employment Agreement was amended in 2020 to provide
that if a “Change of Control” (as defined in the Jasinski Employment Agreement) occurs, and within one year following
such Change of Control Mr. Jasinski is terminated without Cause or he resigns for Good Reason, Mr. Jasinski will be entitled to severance
of 18 months’ salary as well as an annual bonus for the year in which the termination occurs (assuming achievement of 100% of milestones
and targets set by the board of directors).
The employment agreement is governed by the laws of the State of
Delaware and contains non-solicitation and non-competition covenants (each of which remains in effect during the term of employment and
for 12 months following termination of employment) and trade secrets and inventions clauses.
16
Michael Lawless
We entered into an employment agreement with Mr. Lawless, pursuant to which he has
served as our CFO since September 19, 2022 (as amended from time to time, the “Lawless Employment Agreement”). The Lawless
Employment Agreement provides for an annual base salary of $300,000, which was increased to $316,500 effective January 1, 2023 and is
subject to increases as may be determined from time to time by the compensation committee of the Board, and an annual performance bonus
up to 35% of annual base salary, subject to the achievement of objectives as determined by the compensation committee of the Board. The
Lawless Employment Agreement also provides that Mr. Lawless would receive, as an inducement grant, a restricted stock unit award covering
32,142 ordinary shares, as adjusted to reflect the 1-for-7 reverse share split of the ordinary shares effected by the Company on March
15, 2024 (the “Lawless Inducement Award”), which award vests in four equal annual instalments commencing as of the grant date.
The terms of the Lawless Inducement Award are generally consistent with the terms applicable to restricted stock unit awards set forth
in our 2014 Equity Incentive Plan (as amended from time to time, the “2014 Plan”); provided, however, that in the event Mr.
Lawless’s employment with the Company is terminated by the Company (or its successor) not for “Cause”, or if Mr. Lawless
terminates his employment for “Good Reason” within 90 days prior to a Change of Control (as all such terms are defined in
the Lawless Employment Agreement) or one year following a Change of Control, the Lawless Inducement Award will vest upon the effective
date of termination of employment.
The Lawless Employment Agreement was for an initial term through September 19, 2023,
and automatically renews for additional terms of twelve-months each, provided, however, that either party may terminate the Lawless Employment
Agreement, effective as of the last date of any renewal term by providing at least 90 days prior written notice. The Lawless Employment
Agreement also provides that the Company may terminate the Agreement immediately without providing prior notice in the event of death
or disability, or for cause. In the event that Mr. Lawless’ employment is terminated by the Company without cause or if Mr. Lawless
resigns for Good Reason not in connection with a Change of Control Event, Mr. Lawless will be entitled to a severance payment equal to
(i) six months of his then-current base salary, (ii) 50% of his annual bonus, representing a pro-rated six-month payment of the annual
target bonus, payable in equal instalments over a period of six months following such termination, and (iii) the replacement cost of his
benefits for six months following such termination.
The Lawless Employment Agreement provides that if a Change of Control occurs,
and within 90 days prior or one year following such Change of Control Mr. Lawless is terminated without Cause or he resigns for Good Reason
(a “Change of Control Event”), Mr. Lawless will be entitled to severance of 12 months of base salary, an amount equal
to Mr. Lawless's annual target bonus (assuming achievement of 100% of milestones and targets set by the board of directors), payable promptly
following such termination, and payment of the portion of COBRA premiums equal to the amount that we would have paid to provide health
insurance to Mr. Lawless had Mr. Lawless remained employed with us for twelve months following such termination. In addition, as
stated above, in the case of a Change of Control Event, the Lawless Inducement Award will vest upon the effective date of termination
of employment. The Lawless Employment Agreement is governed by the laws of the Commonwealth of Massachusetts and contains non-solicitation
and non-competition covenants (each of which remains in effect during the term of employment and for a period of 12 months following termination
of employment) and trade secrets and inventions clauses.
Jeannine Lynch
On July 22, 2021, we entered into an employment agreement with
Jeannine Lynch to serve as Vice President of Market Access and Strategy of the Company, effective August 31, 2021 (the “Lynch Employment
Agreement”). Pursuant to the terms of the Lynch Employment Agreement, Ms. Lynch is entitled to (i) an annual base salary of $320,000,
which was increased to $351,104 effective January 1, 2023, subject to increases as may be determined from time to time by the compensation
committee of the Board and (ii) an annual performance bonus up to 35% of annual base salary, subject to the achievement of objectives
as determined by the compensation committee of the Board. The Lynch Employment Agreement may be terminated by the Company upon prior written
notice.
In the event that (x) Ms. Lynch’s employment is terminated
for any reason other than for “cause” (as defined therein), death, or disability, (y) the Company moves its primary office
outside of the United States and/or reduces Ms. Lynch’s title or primary responsibilities, or (z) the Company moves Ms. Lynch’s
principal location of work, the Company shall pay monthly severance to Ms. Lynch at the rate per annum of her salary and bonus (and the
replacement cost of her benefits) at the time of such termination for a period from the date of such termination to the date which is
six months after such termination.
In the event that the Company is subject to a merger or acquisition where Ms. Lynch
is terminated during the 12-month period following the closing of the transaction, 100% of the then-unvested and outstanding equity awards
held by Ms. Lynch will vest upon such termination.
Ms. Lynch is not entitled to receive any termination or change in control benefits under
our Compensation Policy.
The Lynch Employment Agreement
is governed by the laws of the Commonwealth of Massachusetts and contains non-solicitation and non-competition covenants (each of which
remains in effect during the term of employment and for a period of 12 months following termination of employment) and trade secrets and
inventions clauses.
17
Outstanding Equity Awards at 2023 Fiscal Year-End
The following table sets forth information concerning outstanding
equity awards as of December 31, 2023, for each Named Executive Officer. This information reflects the number of ordinary shares of the
Company after the 1-for-7 reverse share split of the ordinary shares effected by the Company on March 15, 2024.
|
|
|
|
|
|
Option Awards |
|
|
Stock Awards |
| ||||||||||||
|
Name |
|
Grant Date(1)
|
|
|
Number of Securities Underlying Unexercised Options Exercisable (#) |
|
|
Number of Securities Underlying Unexercised Options Unexercisable (#) |
|
|
Option
Exercise Price ($) |
|
|
Option Expiration Date |
|
|
Number of
Shares or Units of Stock that Have Not Vested
(#) |
|
|
Market
Value of Shares or Units of Stock that Have Not Vested(2) ($) |
|
|
Larry Jasinski |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/27/2017 |
(3) |
|
713 |
|
|
— |
|
|
367.50 |
|
|
6/27/2027 |
|
|
|
|
|
|
|
|
|
|
5/3/2018 |
(4) |
|
1,249 |
|
|
— |
|
|
188.13 |
|
|
5/3/2028 |
|
|
|
|
|
|
|
|
|
|
3/27/2019 |
(5) |
|
1,774 |
|
|
— |
|
|
37.56 |
|
|
3/27/2029 |
|
|
|
|
|
|
|
|
|
|
6/18/2020 |
(6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
10,715 |
|
|
58,354 |
|
|
|
|
5/21/2021 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
10,714 |
|
|
58,348 |
|
|
|
|
8/2/2022 |
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
21,428 |
|
|
116,697 |
|
|
|
|
9/13/2023 |
(9) |
|
|
|
|
|
|
|
|
|
|
|
|
|
28,571 |
|
|
155,598 |
|
|
Jeannine Lynch |
|
8/31/2021 |
(10) |
|
|
|
|
|
|
|
|
|
|
|
|
|
8,930 |
|
|
48,633 |
|
|
|
|
8/2/2022 |
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
14,732 |
|
|
80,230 |
|
|
6/30/2023 |
(12) |
19,642 |
106,970 |
||||||||||||||||||
|
Michael Lawless |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/19/2022 |
(13) |
24,107 |
131,287 |
||||||||||||||||||
|
|
|
6/30/2023 |
(14) |
23,571 |
128,368 |
| |||||||||||||||
__________________
| (1) |
Represents grant dates of the stock option and RSU awards. |
| (2) |
The amount listed in this column represents the product of the closing market price of the Company’s ordinary shares as of
December 31, 2023 $5.45 (after-split) multiplied by the number of shares subject to the award. |
| (3) |
This option award is fully vested. |
| (4) |
This option award is fully vested. |
| (5) |
This option award is full vested. |
| (6) |
¼th of the RSU award vests on an annual basis
commencing on June 18, 2021, and ending on June 18, 2024. |
| (7) |
¼th of the RSU award vests on an annual basis
commencing on May 21, 2022, and ending on May 21, 2025. |
| (8) |
¼th of the RSU award vests on an annual basis
commencing on August 2, 2023, and ending on August 2, 2026. |
| (9) |
¼th of the RSU award vests on an annual basis
commencing on September 13, 2024, and ending on September 13, 2027. |
| (10) |
¼th of the RSU award vests on an annual basis
commencing on August 31, 2022, and ending on August 31, 2025. |
| (11) |
¼th of the RSU award vests on an annual basis
commencing on August 2, 2023, and ending on August 2, 2026. |
| (12) |
¼th of the RSU award vests on an annual basis
commencing on June 30, 2024, and ending on June 30, 2027. |
| (13) |
¼th of the RSU award vests on an annual basis
commencing on September 19, 2023, and ending on September 19, 2026. |
| (14) |
¼th of the RSU award vests on an annual basis
commencing on June 30, 2024, and ending on June 30, 2027. |
18
Potential Payments Upon
Termination or Change in Control
We have adopted, pursuant to shareholder approval, our Compensation
Policy, which provides for certain benefits to our executive officers upon retirement or termination, whether or not in the event of a
change in control. We may memorialize any of these benefits in arrangements we enter into with individual executive officers. Under the
Compensation Policy, executive officers may be entitled to advance notice of termination of up to 12 months and to obtain up to 12 months
of post-termination health insurance. In addition to receiving severance pay as required or facilitated under the local laws of the relevant
jurisdiction, executive officers may have the right to receive up to 12 months of base salary (18 months in the case of the CEO), bonus
and benefits, taking into account the period of the officer’s service or employment, his or her performance during employment and
contribution to the Company’s targets and profits and the circumstances surrounding termination of his or her employment. These
benefits are designed to attract and motivate highly skilled professionals to join our Company and to enable us to retain key management.
To the extent our Named
Executive Officers are entitled to receive severance (except for any severance payments mandated by Israeli law for our Israeli employees)
or change in control benefits, such entitlements are contractually agreed upon between the Company and the applicable Named Executive
Officer. Accordingly, for further information regarding the payments and benefits our Named Executive Officers are entitled to receive
upon a termination or change in control, please see “Executive Compensation — Employment Agreements of Named Executive Officers.”
Compensation Committee Interlocks and Insider Participation
None of the members of the compensation committee is, or has ever
been, an officer or employee of the Company or any of its subsidiaries. In addition, during the last fiscal year, no executive officer
of the Company served as a member of the board of directors or the compensation committee of another entity that has one or more executive
officers serving on the Company’s compensation committee or the Board.
Policy for Recoupment of Incentive Compensation (Clawback Policy)
On September 13, 2023, we adopted an amended and restated policy
for recoupment of incentive compensation (the “Clawback Policy”) in compliance with the requirements of the Dodd-Frank Act,
final SEC rules and applicable Nasdaq listing standards (the “final clawback rules”), which covers our current and former
executive officers, including all of our named executive officers. Under the Clawback Policy, in the event that we are required to prepare
a restatement of our previously issued financial statements due to our material noncompliance with any financial reporting requirement
under securities laws, we are required to recover (subject to certain limited exceptions described in the Clawback Policy and permitted
under the final clawback rules) any cash or equity incentive-based compensation received by any current or former executive officer after
the effective date of the Clawback Policy and in the three years prior to the date we are required to restate our financial statements
that is in excess of the amount that would have been received based on the restated financial statements.
19
Director Compensation
The following table provides certain information concerning the
compensation for services rendered in all capacities by each non-employee director serving on our Board during the year ended December
31, 2023, other than Mr. Larry Jasinski, our CEO, who did not receive additional compensation for his services as director and whose compensation
is set forth in the Summary Compensation Table found elsewhere in this Amendment No. 1.
|
Name |
|
Fees Earned in Cash ($) |
|
Stock Awards
($)(1) |
|
Total ($) |
| |||
|
Jeff Dykan |
|
|
43,398 |
(2) |
|
50,000 |
|
|
93,398 |
|
|
Dr. John William Poduska |
|
|
48,826 |
(3) |
|
50,000 |
|
|
98,826 |
|
|
Randel Richner |
|
|
34,244 |
(4) |
|
50,000 |
|
|
84,244 |
|
|
Joseph Turk |
|
|
43,451 |
(5) |
|
50,000 |
|
|
93,451 |
|
|
Hadar Levy |
|
|
39,127 |
(6) |
|
50,000 |
|
|
89,127 |
|
|
Yohanan Engelhardt |
35,633 |
(7) |
50,000 |
85,633 |
||||||
|
Yasushi Ichiki |
21,938 |
(8) |
50,000 |
71,938 |
||||||
|
Aryeh (Arik) Dan |
25,508 |
(9) |
50,000 |
75,508 |
||||||
|
Wayne B. Weisman |
34,904 |
(10) |
50,000 |
84,904 |
||||||
| (1) |
Amounts represent the aggregate grant date fair value of such awards issued under the 2014 Plan as an annual award to the applicable
directors, computed in accordance with FASB ASC Topic 718, which for all directors represents an award of 50,000 RSUs. These amounts
reflect the number of ordinary shares of the Company after the 1-for-7 reverse share split of the ordinary shares effected by the Company
on March 15, 2024. The fair value of RSUs granted is determined based on the price of the Company’s ordinary shares on the date
of grant. This amount does not correspond to the actual value that may be recognized by the non-employee director upon the vesting of
the RSUs. All RSUs become vested and exercisable in four equal quarterly instalments starting three months following the grant date.
The valuation assumptions used in determining such amounts are described in Notes 2m and 9b to our consolidated financial statements included
in our 2023 Annual Report. |
| (2) |
Represents $22,625 earned by Mr. Dykan as an annual retainer for serving as our Chairman on the Board of Directors, $12,321 for attending
meetings of the Board of Directors, $4,970 for serving as a member of the mergers and acquisitions committee, $2,753 for serving as a
member of the audit committee and $729 for serving as a chairman of the Company’s finance committee. |
| (3) |
Represents $22,625 earned by Dr. Poduska as an annual retainer for serving as a non-employee director on the Board of Directors,
$13,400 for attending meetings of the Board of Directors, $7,565 for serving as a member of the audit committee, $4,507 for serving as
the chairman of the compensation committee and $729 for serving as a member of the Company’s finance committee. |
| (4) |
Represents $22,625 earned by Ms. Richner as an annual retainer for serving as a non-employee director on the Board of Directors,
and $11,619 for attending meetings of the Board of Directors. |
| (5) |
Represents $22,625 earned by Mr. Turk as an annual retainer for serving as a non-employee director on the Board of Directors, $13,291
for attending meetings of the Board of Directors, $2,565 for serving as a member of the compensation committee and $4,970 for serving
as a member of the mergers and acquisitions committee. |
| (6) |
Represents $22,625 earned by Mr. Levy as an annual retainer for serving as a non-employee director on the Board of Directors, $10,202
for attending meetings of the Board of Directors, $2,753 for serving as a member of the audit committee and $3,547 for serving as a member
of the mergers and acquisitions committee. |
| (7) |
Represents $15,852 earned by Mr. Engelhardt as a portion of the annual retainer for serving as a non-employee director on the Board
of Directors, $9,959 for attending meetings of the Board of Directors, $4,811 for serving as the chair of the audit committee, $4,282
for serving as a member of the mergers and acquisitions committee and $729 for serving as a member of the finance committee. Mr. Engelhardt’s
term of office expired on September 13, 2023. |
| (8) |
Represents $15,852earned by Mr. Ichiki as a portion of the annual retainer for serving as a non-employee director on the Board of
Directors and $6,086 for attending meetings of the Board of Directors. Mr. Ichiki’s term of office expired on September 13, 2023.
|
| (9) |
Represents $15,852 earned by Mr. Dan as a portion of the annual retainer for serving as a non-employee director on the Board
of Directors, $6,798 for attending meetings of the Board of Directors and $2,858 for serving as a member of the compensation committee.
Mr. Dan’s term of office expired on September 13, 2023. |
| (10) |
Represents $15,852 earned by Mr. Weisman as a portion of the annual retainer for serving as a non-employee director on the
Board of Directors, $9,959 for attending meetings of the Board of Directors, $4,811 for serving as a member of the audit committee and
$4,282 for serving as a member of the mergers and acquisitions committee. Mr. Weisman’s term of office expired on September 13,
2023. |
20
The aggregate number of ordinary shares subject to outstanding options and RSU awards for each of our non-employee directors as of December 31, 2023, is shown below. These amounts reflect the number of ordinary shares of the Company after the 1-for-7 reverse share split of the ordinary shares effected by the Company on March 15, 2024. Information regarding Mr. Jasinski’s outstanding equity awards as of December 31, 2023, is set forth in the Outstanding Equity Awards Table found elsewhere in this Amendment No. 1.
|
Name |
|
Number of Shares |
| |
|
Jeff Dykan |
|
|
6,453 |
(1) |
|
Dr. John William Poduska |
|
|
6,524 |
|
|
Randel Richner |
|
|
6,384 |
|
|
Joseph Turk |
|
|
6,385 |
|
|
Hadar Levy |
|
|
6,385 |
|
____________
| (1) |
See “Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” below for
further information on Mr. Dykan’s holdings in our ordinary shares. |
Cash compensation for our independent, non-employee directors’ services is governed
by previous decisions of our compensation committee, Board and shareholders, and is subject to terms and conditions of our Compensation
Policy. Additionally, each independent, non-employee director currently receives upon his or her appointment a restricted stock unit award
(the “Initial RSU Award”), with such Initial RSU Award having a value equal to $50,000 on the date of grant (as determined
based on the closing price of our ordinary shares on the date of grant). Each independent, non-employee director is also entitled to receive
an annual grant of RSUs (the “Annual RSU Award”), with such Annual RSU Award having a value equal to $50,000 on the date of
grant. The Initial RSU Award and Annual RSU Award each vest ratably in four equal quarterly instalments starting three months from the
date of grant (subject to the non-employee director’s continued service with the Company through each applicable vesting date),
with the vesting of such awards to be accelerated upon certain change of control events in accordance with the Compensation Policy. At
our 2020 annual general meeting, our shareholders approved an amendment to our then-current Compensation Policy whereby (x) all or a portion
of our non-directors’ cash compensation may be paid in equity, at the discretion of our compensation committee, in order to preserve
the Company’s cash, and (y) equity compensation of directors will be payable in the first instance in RSUs but such compensation
may also be payable, at the discretion of our compensation committee, in cash, based on a formula to be determined and with such payment
provisions as shall result in the equivalent effect of vesting of RSUs, in order to preserve the equity available for incentives.
In addition, each director is reimbursed for out-of-pocket expenses
in connection with attending meetings of the Board of Directors or committees. Directors are also indemnified and insured by us for actions
associated with being a director to the extent permitted under Israeli law. Further, none of our non-employee directors receive any benefits
upon termination of their directorship positions. The compensation committee reviews director compensation annually and makes recommendations
to the Board of Directors with respect to compensation and benefits provided to the members of the Board.
21
ITEM 12. SECURITY OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
As of April, 26, 2024, there were 8,602,626 ordinary shares
outstanding, excluding ordinary shares issuable in connection with the exercise of outstanding warrants or outstanding options or upon
the vesting of restricted stock units (“RSUs”). The voting rights of all shareholders are the same.
The following table sets forth certain information as of April
26, 2024, concerning the number of ordinary shares beneficially owned, directly or indirectly, by:
(1)
each person, or group of affiliated persons, known to us to beneficially own more than 5% of our outstanding ordinary shares;
(2) each
of our directors and director nominees;
(3) each
of our Named Executive Officers (as defined under “Summary Compensation Table” above); and
(4) all of our directors and executive officers
as a group.
Beneficial ownership is determined in accordance with the rules
of the SEC based on voting and investment power with respect to such shares. Shares subject to options or warrants that are currently
exercisable or exercisable within 60 days of April 26, 2024 and shares subject to RSUs that were vested as of or will vest within 60 days
of April 26, 2024 are deemed to be outstanding and to be beneficially owned by the person holding such options, RSUs or warrants for the
purpose of computing the percentage ownership of such person. However, such shares are not deemed to be outstanding and to be beneficially
owned for the purpose of computing the percentage ownership of any other person.
Under the terms of the terms of certain outstanding warrants, a
holder may not exercise the warrants to the extent that such shareholder, together with its affiliates, would beneficially own, after
such exercise, more than 4.99% or 9.99% of the ordinary shares then outstanding, as applicable (subject to the right of the shareholder
with a 4.99% ownership limitation to increase or decrease such beneficial ownership limitation upon notice to us, provided that such limitation
cannot exceed 9.99%), and provided that any increase in the beneficial ownership limitation shall not be effective until 61 days after
such notice is delivered. Consistent with beneficial ownership reporting principles under Section 13(d) of the Exchange Act, the below
table only shows ordinary shares underlying warrants that are deemed to be beneficially owned, assuming compliance with these ownership
limitations.
22
All information with respect
to the beneficial ownership of any principal shareholder has been furnished by such shareholder or is based on our filings with the SEC
and, unless otherwise indicated below, we believe that persons named in the table have sole voting and sole investment power with respect
to all the ordinary shares shown as beneficially owned, subject to community property laws, where applicable. The ordinary shares beneficially
owned by our directors and officers may include shares owned by their respective family members, as to which such directors and officers
disclaim beneficial ownership. Unless otherwise noted below, each shareholder’s address is c/o ReWalk Robotics Ltd., 3 Hatnufa Street,
Floor 6, Yokneam Illit 2069203, Israel.
|
Ordinary Shares Beneficially Owned |
|
|
|
|
|
| ||
|
Name |
|
Number of Shares |
|
|
Percentage |
| ||
|
5%-or-More Beneficial Owners:
|
|
|
|
|
|
| ||
|
Lind Global Funds(1)
|
|
|
1,431,106 |
|
|
|
16.6 |
% |
|
Named Executive Officers and Directors:
|
|
|
|
|
|
|
|
|
|
Larry Jasinski(2)
|
|
|
53,025 |
|
|
|
* |
|
|
Jeff Dykan(3)(4)
|
|
|
31,255 |
|
|
|
* |
|
|
Randel Richner(5)
|
|
|
23,724 |
|
|
|
* |
|
|
Dr. John William Poduska(6)
|
|
|
18,043 |
|
|
|
* |
|
|
Joseph Turk(7)
|
|
|
17,006 |
|
|
|
* |
|
|
Hadar Levy(8)
|
|
|
13,528 |
|
|
|
* |
|
|
Almog Adar(9)
|
|
|
7,142 |
|
|
|
* |
|
|
Jeannine Lynch(10)
|
|
|
9,596 |
|
|
|
* |
|
|
Michael A. Lawless (11)
|
|
|
10,185 |
|
|
|
* |
|
|
All directors and executive officers as a group (nine persons) (12)
|
|
|
183,504 |
|
|
|
2.1 |
% |
___________
| * |
Ownership of less than 1%. |
| (1) |
Based on a Schedule 13D/A filed on September 28, 2023, and subsequent Form 4 filings, by Lind Global Fund II LP (“Global
Fund II”), Lind Global Partners II LLC, Lind Global Macro Fund LP, Lind Global Partners LLC (together, the “Lind Global Funds”)
and Jeff Easton (together with the Lind Global Funds, the “Reporting Persons”). The foregoing excludes warrants to purchase
247,334 ordinary shares, because each of the warrants includes a provision limiting the holder’s ability to exercise the warrants
if such exercise would cause the holder to beneficially own greater than 9.99% of the ordinary shares then outstanding. Without such provisions,
the Reporting Persons may have been deemed to have beneficial ownership of the ordinary shares underlying such warrants. Jeff Easton,
the managing member of Lind Global Partners II LLC and Lind Global Partners LLC, may be deemed to have sole voting and dispositive power
with respect to the shares held by Lind Global Macro Fund, LP and Lind Global Fund II LP. The principal business address of the Reporting
Persons is 444 Madison Avenue, Floor 41, New York, N.Y. 10022. |
| (2) |
Consists of 49,289 ordinary shares, including 11,251 shares underlying RSUs vesting within 60 days, and exercisable options to purchase
3,736 ordinary shares. |
| (3) |
Based on Section 13(d) and 16 filings made with the SEC, consists of 5,814 ordinary shares beneficially owned by SCP Vitalife Partners
II, L.P., or SCP Vitalife Partners II, a limited partnership organized in the Cayman Islands, 1,942 ordinary shares beneficially owned
by SCP Vitalife Partners (Israel) II, L.P., or SCP Vitalife Partners Israel II, a limited partnership organized in Israel. SCP Vitalife
II Associates, L.P., or SCP Vitalife Associates, a limited partnership organized in the Cayman Islands, is the general partner of the
SCP Vitalife Partners II and SCP Vitalife Partners Israel II, and SCP Vitalife II GP, Ltd., or SCP Vitalife GP, organized in the Cayman
Islands, is the general partner of SCP Vitalife Associates. As such, SCP Vitalife GP may be deemed to beneficially own the 7,756 ordinary
shares beneficially owned by SCP Vitalife Partners II and SCP Vitalife Israel Partners II. Jeff Dykan and Wayne B. Weisman are the directors
of SCP Vitalife GP and, as such, share voting and dispositive power over the shares held by the foregoing entities. As such, they may
be deemed to beneficially own 7,756 ordinary shares, the ordinary shares beneficially owned by SCP Vitalife GP, as well as owned by each
of Vitalife Partners Overseas and Vitalife Partners Israel. The principal business address of SCP Vitalife Partners II, SCP Vitalife Associates,
SCP Vitalife GP, and Messrs. Churchill and Weisman is c/o SCP Vitalife Partners II, L.P., 5 Great Valley Parkway, Suite 210, Malvern,
Pennsylvania 19355. The principal business address of SCP Vitalife Partners Israel II, Vitalife Partners Israel, Vitalife Partners Overseas,
Vitalife Partners DCM, Mr. Dykan and Dr. Ludomirski is c/o SCP Vitalife Partners (Israel) II, L.P., Ben Gurion 26 Street, Ramat Gan 5257346,
Israel. |
| (4) |
Consists of 23,430 ordinary shares, including 2,127 shares underlying RSUs vesting within 60 days, and exercisable options to purchase
69 ordinary shares. |
| (5) |
Consists of 23,724 ordinary shares, including 2,128 shares underlying RSUs vesting within 60 days. |
| (6) |
Consists of 17,903 ordinary shares, including 2,126 shares underlying RSUs vesting within 60 days, and exercisable options to purchase
140 ordinary shares. |
| (7) |
Consists of 17,006 ordinary shares, including 2,129 shares underlying RSUs vesting within 60 days. |
| (8) |
Consists of 13,528 ordinary shares, including 2,129 shares underlying RSUs vesting within 60 days. |
| (9) |
Consists of 7,142 ordinary shares. |
| (10) |
Consists of 9,596 ordinary shares. |
| (11) |
Consists of 10,185 ordinary shares. |
| (12) |
Consists of (i) 157,669 ordinary shares directly or beneficially owned by our executive officers and our nine directors other
than Mr. Jasinski; (ii) 3,945 ordinary shares constituting the cumulative aggregate number of options granted to the executive officers
and directors; and (iii) 21,890 shares underlying RSUs vesting within 60 days of April 26, 2024. |
23
Equity Compensation
Plan Information
The following table provides certain aggregate information with
respect to our ordinary shares that may be issued under our equity compensation plans in effect as of December 31, 2023. This information
reflects a number of ordinary shares of the Company after the 1-for-7 reverse share split of the ordinary shares effected by the Company
on March 15, 2024.
|
Plan Category |
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights |
|
|
Weighted- average exercise price of outstanding options, warrants and rights |
|
|
Number of
securities remaining available for future issuance under equity compensation plans (excluding securities reflected in first column) |
| |||
|
Equity compensation plans approved by security holders |
|
|
490,930 |
(1) |
|
$ |
37.51 |
(2) |
|
|
145,560 |
(3) |
|
Equity compensation plans not approved by security holders |
|
|
52,678 |
(4) |
|
|
— |
|
|
|
— |
|
|
Total |
|
|
543,608 |
(4) |
|
$ |
37.51 |
|
|
|
145,560 |
|
___________
| (1) |
Represents shares issuable under our (i) 2014 Plan upon exercise of options outstanding to purchase 4,723 shares and upon the settlement
of outstanding RSUs with respect to 486,207 shares. |
| (2) |
The weighted-average exercise price is calculated based solely on the exercise prices of the outstanding options to purchase ordinary
shares. It does not reflect the ordinary shares that will be issued upon the vesting of outstanding awards of RSUs, which have no exercise
price. |
| (3) |
Represents shares available for future issuance under our 2014 Plan. |
| (4) |
Represents the Lawless Inducement Award and an inducement grant of RSUs, covering 28,571 ordinary shares, as adjusted to reflect
the 1-for-7 reverse share split of the ordinary shares effected by the Company on March 15, 2024, made to Charles Remsberg on August 11,
2023 (the “Remsberg Inducement Award”), which was granted outside of our 2014 Plan but is subject to the terms and conditions
applicable to RSUs granted under our 2014 Plan. The Remsberg Inducement Award vests in four equal annual instalments commencing on the
date of grant, provided, that, in the event Mr. Remsberg’s employment with us is terminated by us without Cause or by Mr. Remsberg
for Good Reason within 90 days prior to a Change of Control or one year following a Change of Control (each, as defined in Mr. Remsberg’s
employment agreement with us), the Remsberg Inducement Award will fully vest upon the later of the date of the termination or the date
of the change in control, in each case subject to Mr. Remsberg’s execution of a release of claims. |
24
ITEM 13. CERTAIN RELATIONSHIPS
AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Director Independence
The information required by Item 407(a) of Regulation S-K is incorporated
by reference herein from Item 10 above as set forth under the caption “Director Independence.”
Certain Relationships and Related Transactions
See “Item 11. Executive Compensation —Employment Agreements
of Named Executive Officers” above for a description of employment agreements between us and the Named Executive Officers.
We describe below transactions and series of similar transactions
which are currently proposed or to which we have been or were a party since January 1, 2022, in which (a) the amount involved exceeds
or exceeded the lesser of $120,000 or one percent of the average of the Company’s total assets at year-end for the last two completed
fiscal years and (b) any of our directors, executive officers, beneficial owners of more than 5% of our ordinary shares, or any affiliates
or members of the immediate family of any of the foregoing persons, had or will have a direct or indirect material interest. Although
we do not have a formal written policy as to the approval of related party transactions, all related party transactions for which disclosure
would be required under Item 404 of Regulation S-K are approved based on procedures under Israeli law, as is duly memorialized in the
minutes of the meetings of the Board and audit committee, as applicable.
Transactions with Current and/or Former 5%
Beneficial Owners
Since January 1, 2022, we entered into the following transactions
with other shareholders who are currently 5% beneficial owners or who we believe beneficially owned at the time of such transactions or
became as a result of such transactions more than 5% of our ordinary shares, based on a review of Schedule 13G filings made and Company
records during such period.
Agreements with Directors, Officers and Others
Employment Agreements
We have entered into written
employment agreements with each of our executive officers. These agreements provide for notice periods of varying duration for termination
of the agreement by us or by the relevant executive officer, during which time the executive officer will continue to receive base salary
and benefits. We have also entered into customary non-competition, confidentiality of information and ownership of inventions arrangements
with our executive officers. However, the enforceability of the noncompetition provisions may be limited under applicable law.
Options
Since our inception we have granted options to purchase our ordinary
shares to our officers and certain of our directors. Such option agreements may contain acceleration provisions upon certain merger, acquisition,
or change of control transactions.
Exculpation, Indemnification and Insurance
Our Articles of Association permit us to exculpate, indemnify and
insure certain of our office holders to the fullest extent permitted by the Israel Companies Law. We have entered into indemnification
agreements with our office holders, exculpating them from a breach of their duty of care to us to the fullest extent permitted by law
and undertaking to indemnify them to the fullest extent permitted by law, subject to certain exceptions, including with respect to liabilities
resulting from our IPO to the extent that these liabilities are not covered by insurance.
25
Consulting Agreement with Randel E. Richner
At our 2022 annual meeting of shareholders, our shareholders approved
the terms of a Consulting Agreement with Richner Consultants LLC, a Delaware company (the “Consultant”) owned by Randel E.
Richner, a member of our Board. Pursuant to the Consulting Agreement, the Consultant provided us with the following services during
2022: strategic advisory consultation on activities related to CMS, including reviewing Company submissions to CMS; reviewing the Company’s
dossier submitted to third-party insurers; coordinating and establishing lobbying efforts for the Company with U.S. government agencies;
review and support with respect to reimbursements from private payers and with on-going interactions with the U.S. Veterans Benefits Administration;
and other reimbursement-related matters as designated and agreed to with our CEO, including international reimbursement activities as
needed. The services to be provided under the Consulting Agreement by the Consultant were provided solely by Ms. Richner.
The services were provided on an hourly basis at a rate of $425
per hour, payable by us on a monthly basis subject to the Consultant providing monthly invoices for the review of both our Chairman of
the Board and our CEO. Under the Consulting Agreement, the aggregate total number of consulting hours provided by the Consultant could
not exceed 282 hours.
The initial term of the Consulting Agreement commenced January
1, 2022, and expired December 31, 2022. Approximately $119,850 was owed and paid to the Consultant for the initial term of the Consulting
Agreement.
At our 2023 annual meeting of shareholders, our shareholders approved
an extension of the Consulting Agreement until the earlier of December 31, 2023 or such time as we receive approval from CMS. The
extension term of the Consulting Agreement commenced January 1, 2023, and expired December 31, 2023. Approximately $119,999 was owed and
paid to the Consultant for the extension term of the Consulting Agreement.
Approval of Related Party Transactions Under Israeli Law
Disclosure of Personal Benefits
or Other Interests of an Office Holder and Approval of Certain Transactions
The Israel Companies Law requires that an office holder promptly
disclose to the board of directors any personal benefit or other interest that he or she may have, and all related material information
or documents, concerning any existing or proposed transaction with the company. A personal benefit or other interest includes the individual’s
own benefit or other interest and, in some cases, a personal benefit or other interest of such person’s relative or an entity in
which such individual, or his or her relative, is a 5% or greater shareholder, director or general manager, or in which he or she has
the right to appoint at least one director or the general manager, but does not include a personal benefit or other interest stemming
only from ownership of our shares.
If an office holder has a personal benefit or other interest in
a transaction, approval by the board of directors is required for the transaction. Once an office holder has disclosed his or her personal
benefit or other interest in a transaction, the board of directors may approve an action by the office holder that would otherwise be
deemed a breach of duty of loyalty. A company may not, however, approve a transaction or action unless it is in the best interests of
the company, or if the office holder is not acting in good faith.
26
Special approval is required for an extraordinary transaction,
which under the Israel Companies Law is defined as any of the following:
| • |
a transaction other than in the ordinary course of business; |
| • |
a transaction that is not on market terms; or |
| • |
a transaction that may have a material impact on a company’s profitability, assets or liabilities. |
An extraordinary transaction in which an office holder has a personal
benefit or other interest requires approval first by the company’s audit committee and subsequently by the board of directors. The
compensation of, or an undertaking to indemnify or insure, an office holder who is not a director requires approval first by the company’s
compensation committee, then by the company’s board of directors and, if such compensation arrangement or an undertaking to indemnify
or insure is inconsistent with the Company’s compensation policy or if the office holder is the Chief Executive Officer (apart from
a number of specific exceptions), then such arrangement is subject to shareholder approval by a simple majority, which must also include
at least a majority of the shares voted by all shareholders who are neither controlling shareholders nor have a personal benefit or other
interest in such compensation arrangement (alternatively, in addition to a simple majority, the total number of shares voted against the
compensation arrangement by non-controlling shareholders and shareholders who do not have a personal benefit or other interest in the
arrangement may not exceed 2% of our outstanding shares). We refer to this as the “Special Approval for Compensation”. Arrangements
regarding the compensation, indemnification or insurance of a director require the approval of the compensation committee, board of directors
and shareholders by a simple majority, in that order, and under certain circumstances, a Special Approval for Compensation.
Generally, a person who has a personal benefit or other interest
in a matter that is considered at a meeting of the board of directors or the audit committee may not be present at such a meeting or vote
on that matter unless the chairman of the board of directors or the audit committee (as applicable) determines that he or she should be
present in order to present the transaction that is subject to approval. If a majority of the members of the board of directors or the
audit committee (as applicable) have a personal benefit or other interest in the approval of a transaction, then all directors may participate
in discussions of the board of directors or the audit committee (as applicable) on such transaction and in the voting, but shareholder
approval is also required for such transaction.
Disclosure of Personal Benefits
or Other Interests of Controlling Shareholders and Approval of Certain Transactions
Pursuant to the Israel Companies Law, the disclosure requirements
regarding personal benefits or other interests that apply to directors and executive officers also apply to a controlling shareholder
of a public company. In this context, a controlling shareholder includes a shareholder who holds 25% or more of our outstanding shares
if no other shareholder holds more than 50% of our outstanding shares. For this purpose, the holdings of all shareholders who have a personal
benefit or other interest in the same transaction will be aggregated. The approval of the audit committee, the board of directors and
the shareholders of the company, in that order, is required for (a) extraordinary transactions with a controlling shareholder or in which
a controlling shareholder has a personal benefit or other interest, (b) our engagement with a controlling shareholder or his or her relative,
directly or indirectly, for the provision of services to us, (c) the terms of engagement and compensation of a controlling shareholder
or his or her relative who is not an office holder or (d) our employment of a controlling shareholder or his or her relative, other than
as an office holder. In addition to shareholder approval by a simple majority, the transaction must be approved by a Special Majority.
To the extent that any such transaction with a controlling shareholder
is for a period extending beyond three years, approval is required once every three years, unless, with respect to certain transactions,
the audit committee determines that the duration of the transaction is reasonable under the circumstances.
Arrangements regarding the compensation, indemnification or insurance
of a controlling shareholder in his or her capacity as an office holder require the approval of the compensation committee, board of directors
and shareholders, in that order, by a Special Majority, and the terms must be consistent with our Compensation Policy.
Pursuant to regulations promulgated under the Israel Companies
Law, certain transactions with a controlling shareholder or his or her relative, or with directors, that would otherwise require approval
of our shareholders may be exempt from shareholder approval upon certain determinations of the audit committee and board of directors.
Under these regulations, we must publish these determinations, and a shareholder holding at least 1% of our outstanding shares may, within
14 days of after publication, demand shareholder approval despite such determinations.
27
ITEM 14. PRINCIPAL ACCOUNTANT
FEES AND SERVICES
Principal Accounting Fees and Services
The following table sets forth, for each of the years indicated,
the fees expensed by Kost Forer Gabbay & Kasierer, our independent registered public accounting firm, in each such year.
|
|
2022 |
|
|
2023 |
| |||
|
|
|
($ in thousands) |
| |||||
|
Audit Fees(1) |
|
$ |
245 |
|
|
$ |
418 |
|
|
Audit-Related Fees(2)
|
|
$ |
6 |
|
|
$ |
95 |
|
|
Tax Fees(3) |
|
$ |
14 |
|
|
$ |
31 |
|
|
All Other Fees(4)
|
|
$ |
4 |
|
|
$ |
120 |
|
|
Total: |
|
$ |
269 |
|
|
$ |
664 |
|
____________
| (1) |
“Audit fees” include fees for services performed by our independent public accounting firm in connection with our annual
audit for 2022 and 2023, fees related to the review of quarterly financial statements, fees related to the pro forma financial information
and fees for consultation concerning financial accounting and reporting standards. Fees in 2023 also include services by our accounting
firm for the audit of AlterG, Inc. for the years 2021 and 2022 prior to our acquisition in August 2023. |
| (2) |
“Audit-related fees” relate to assurance and associated services that are traditionally performed by an independent auditor,
including accounting consultation and consultation concerning financial accounting, reporting standards and due diligence. |
| (3) |
“Tax fees” include fees for professional services rendered by our independent registered public accounting firm for tax
compliance, transfer pricing and tax advice on actual or contemplated transactions. |
| (4) |
“All other fees” include fees for services rendered by our independent registered public accounting firm with respect
to government incentives and other matters. |
Audit Committee’s Pre-Approval Policies and Procedures
The audit committee has adopted a pre-approval policy for the engagement
of our independent accountant to perform certain audit and non-audit services. Pursuant to this policy, which is designed to ensure that
such engagements do not impair the independence of our auditors, the audit committee pre-approves annually a catalog of specific audit
and non-audit services in the categories of audit service, audit-related service and tax services that may be performed by our independent
accountants.
All engagements by us of the auditors for 2022 and 2023 were pre-approved by the audit
committee.
28
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a)(3) Exhibits.
The exhibits listed in the Exhibit Index are filed, furnished,
or incorporated by reference in this Amendment No. 1.
EXHIBIT INDEX
29
30
| 10.14 | |
| 10.17 |
|
101.INS |
XBRL Instance Document. |
|
101.SCH |
XBRL Taxonomy Extension Schema Document. |
|
101.PRE |
XBRL Taxonomy Presentation Linkbase Document. |
|
101.CAL |
XBRL Taxonomy Calculation Linkbase Document. |
|
101.LAB |
XBRL Taxonomy Label Linkbase Document. |
|
101.DEF |
XBRL Taxonomy Extension Definition Linkbase Document. |
| + |
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. |
| * |
Certain identified information in the exhibit has been omitted because it is the type of information that (i) the Company customarily
and actually treats as private and confidential, and (ii) is not material. |
| ** |
Management contract or compensatory plan, contract or arrangement. |
| *** |
Furnished herewith. |
ITEM 16. FORM 10-K SUMMARY
Not applicable.
31
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized.
|
ReWalk Robotics Ltd. | ||
|
By: |
/s/ Larry Jasinski | |
|
Name: Larry Jasinski | ||
|
Title: Chief Executive Officer | ||
Date: April 29, 2024
Pursuant to the requirements of the Securities Exchange Act of
1934, this Amendment No. 1 has been signed by the following persons on behalf of the registrant and in the capacities and on the dates
indicated.
|
Signature |
Title |
Date | ||
|
Director and Chief Executive Officer |
April 29, 2024 | |||
|
Larry Jasinski |
(Principal Executive Officer) |
|||
|
Chief Financial Officer |
April 29, 2024 | |||
|
Mike Lawless |
(Principal Financial Officer) |
|||
|
Vice President of Finance |
April 29, 2024 | |||
|
Almog Adar |
(Principal Accounting Officer) |
|||
|
* |
Chairman of the Board |
April 29, 2024 | ||
|
Jeff Dykan |
||||
|
* |
Director |
April 29, 2024 | ||
|
Dr. John William Poduska |
||||
|
* |
Director |
April 29, 2024 | ||
|
Randel Richner |
||||
|
* |
Director |
April 29, 2024 | ||
|
Joseph Turk |
||||
|
* |
Director |
April 29, 2024 | ||
|
Hadar Levy
|
||||
|
/s/ Michael Swinford |
Director |
April 29, 2024 | ||
|
Michael Swinford |
*By /s/ Larry Jasinski
Larry Jasinski, Attorney-in-fact
32
Exhibit 3.1
THE ISRAELI COMPANIES LAW
A COMPANY LIMITED BY SHARES
FIFTH AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
ReWalk Robotics Ltd.
GENERAL PROVISIONS
| 1. |
Definitions
|
| a) |
In these Articles the following terms shall bear the meaning ascribed to them below:
|
“Alternate
Director” is defined in Article 41.
“Annual
General Meeting” shall have the meaning assigned to such term in the Companies Law.
The “Articles”
shall mean these Articles of Association of the Company, as amended from time to time.
“Audit
Committee” shall mean the Audit Committee of the Board of Directors.
“Board of
Directors” shall mean Board of Directors of the Company.
The “Company”
shall mean ReWalk Robotics Ltd.
The “Companies Law” shall mean the Israeli Companies Law, 1999, as amended from time to time.
A “Director”
shall mean a member of the Board of Directors.
“External
Director” shall have the meaning assigned to such term in the Companies Law.
“Extraordinary
General Meeting” shall mean any General Meeting other than the Annual General Meeting.
“General
Counsel” shall mean the General Counsel of the Company.
“General
Manager(s)” is defined in Article 46.
“General
Meeting” shall mean a general meeting of the shareholders of the Company, which may be an Annual General Meeting or an Extraordinary General Meeting.
“NIS”
shall mean New Israeli Shekel.
“Office”
means the registered office of the Company.
“Ordinary
Majority” shall mean a simple majority of the votes cast by shareholders at a General Meeting in person or by means of a proxy.
“Ordinary Shares” shall mean the ordinary shares of the Company, par value NIS 1.75 per share.
“Person”
shall mean any individual or firm, corporation, partnership, association, trust or other entity.
“Register
of Shareholders” shall mean a register of the shareholders of the Company.
The “Secretary”
shall mean the corporate secretary of the Company.
“Shareholders
Resolution” shall mean a resolution adopted by votes of shareholders of the Company at a General Meeting.
| b) |
The captions in these Articles are for convenience only and shall not be deemed a part hereof or affect the construction of any provision hereof.
|
| c) |
Unless the subject or the context otherwise requires, words and expressions not defined herein shall have the respective meanings set forth in the Companies Law in
force on the date when these Articles or any amendment thereto, as the case may be, first became effective; words and expressions importing the singular shall include the plural and vice versa; and words and expressions importing the
masculine gender shall include the feminine gender.
|
| 2. |
Object and Purpose of the Company
|
(a) The object and purpose of the Company shall be to engage in any lawful activity.
(b) In accordance with Section 11(a) of the Companies Law, the Company may donate reasonable amounts to
any cause it deems worthy. The Board of Directors or an authorized Committee of the Board of Directors may from time to time determine the policy and amounts within which such donations may be made by the Company, and the Person or Persons
authorized to approve any such specific donation.
| 3. |
Limitation of Liability
|
The liability of the shareholders is limited to the payment of the nominal value of the shares in the Company
issued to them and which remains unpaid, and only to that amount. If the Company’s share capital shall include at any time shares without a nominal value, the shareholders’ liability in respect of such shares shall be limited to the payment of up
to NIS 1.75 for each such share issued to them and which remains unpaid, and only to that amount.
SHARE CAPITAL
| 4. |
Authorized Share Capital
|
The authorized share capital of the Company is Forty-Three Million Seven Hundred and Fifty Thousand New Israeli Shekels (NIS 43,750,000) divided into Twenty-Five Million (25,000,000) Ordinary Shares, par value NIS 1.75 per share.
| 5. |
Increase of Authorized Share Capital
|
(a) The Company may, from time to time, by Shareholders Resolution, whether or not all the shares then
authorized have been issued, and whether or not all the shares theretofore issued have been called up for payment, increase its authorized share capital by the creation of new shares through amending these Articles. Any such increase shall be in
such amount and shall be divided into shares of such nominal amounts (or no nominal amounts), and such shares shall confer such rights and preferences, and shall be subject to such restrictions, as such resolution shall provide.
(b) Except to the extent otherwise provided in such resolution, such new shares shall be subject to all
the provisions applicable to the shares prior to such resolution.
- 2 -
| 6. |
Rights of the Ordinary Shares
|
The Ordinary Shares confer upon the holders thereof all rights accruing to a shareholder of the Company, as
provided in these Articles, including, inter alia, the right to receive notices of, and to attend meetings of shareholders; for each share
held, the right to one vote at all meetings of shareholders; and to share equally, on a per share basis, in such dividend and other distributions to shareholders of the Company as may be declared by the Board of Directors in accordance with these
Articles and the Companies Law, and upon liquidation or dissolution of the Company, in the distribution of assets of the Company legally available for distribution to shareholders in accordance with the terms of applicable law and these Articles.
All Ordinary Shares rank pari passu in all respects with each other.
| 7. |
Special Rights; Modifications of Rights
|
(a) The Company may, from time to time, by Shareholders Resolution, provide for shares with such preferred
or deferred rights or rights of redemption or other special rights and/or such restrictions, whether in regard to dividends, voting, repayment of share capital or otherwise, as may be stipulated in such resolution.
(b) (i) If at any time the share capital is divided into different classes of shares, the rights
attached to any class, unless otherwise provided by these Articles and subject to applicable law, may be modified or abrogated by the Company, by Shareholders Resolution, subject to an approval by a resolution passed by the holders of a simple
majority of the shares of such class voting at a separate General Meeting of the holders of the shares of such class.
(ii) The provisions of these Articles relating to General Meetings shall, mutatis mutandis, apply to any separate General Meeting of the holders of the shares of a particular class.
(iii) Unless otherwise provided by these Articles, the enlargement of an existing class of shares, or the
issuance of additional shares thereof, shall not be deemed, for purposes of this Article 7(b), to modify or abrogate the rights attached to the previously issued shares of such class or of any other class.
| 8. |
Consolidation, Subdivision, Cancellation and Reduction of Share Capital
|
(a) The Company may, from time to time, by Shareholders Resolution (subject, however, to the provisions of
Article 7(b) hereof and to applicable law):
(i) consolidate and divide all or any of its issued or unissued share capital into shares of larger nominal
value than its existing shares;
(ii) subdivide its shares (issued or unissued) or any of them, into shares of smaller nominal value than is
fixed by these Articles (subject, however, to the provisions of the Companies Law), and the Shareholders Resolution whereby any share is subdivided may determine that, as among the holders of the shares resulting from such subdivision, one or more
of the shares may, as compared with the others, have any such preferred or deferred rights or rights of redemption or other special rights, or be subject to any such restrictions, as the Company has power to attach to unissued or new shares;
(iii) cancel any shares which, at the date of the adoption of such resolution, have not been taken or agreed
to be taken by any Person, and diminish the amount of its share capital by the amount of the shares so cancelled; or
(iv) reduce its share capital in any manner, and with and subject to any consent required by law.
(b) With respect to any consolidation of issued shares into shares of larger nominal value, and with
respect to any other action which may result in fractional shares, the Board of Directors may settle any difficulty which may arise with regard thereto, as it deems fit, including, inter alia, resort to one or more of the following actions:
(i) determine, as to the holder of shares so consolidated, which issued shares shall be consolidated into
each share of larger nominal value;
- 3 -
(ii) issue, in contemplation of or subsequent to such consolidation or other action, such shares or
fractional shares sufficient to preclude or remove fractional share holdings;
(iii) redeem, in the case of redeemable preference shares, and subject to applicable law, such shares or
fractional shares sufficient to preclude or remove fractional share holdings;
(iv) subject to applicable law, cause the transfer of fractional shares by certain shareholders of the
Company to other shareholders thereof so as to most expediently preclude or remove any fractional shareholdings, and cause the transferees to pay the transferors the fair value of fractional shares so transferred, and the Board of Directors is
hereby authorized to act as agent for the transferors and transferees with power of substitution for purposes of implementing the provisions of this sub-Article 8(b)(iv); or
(v) cause the aggregation of fractional shares and the sale thereof so as to most expediently preclude or
remove any fractional shareholding and cause the proceeds thereof, less expenses, to be paid to the former holders of the fractional shares.
(c) Notwithstanding the foregoing, if a class of shares has no nominal value, then any of the foregoing
actions may be taken with respect to such class without regard to nominal value.
SHARES
| 9. |
Issuance of Share Certificates; Replacement of Lost Certificates
|
(a) Share certificates shall be issued under the seal or stamp of the Company and shall bear the signature
of any two (2) Directors or any two (2) of the following: the General Manager, the Chief Financial Officer, the General Counsel, the Secretary, the Chairman of the Board of Directors, the Vice Chairman of the Board of Directors, or of any other
Person or Persons authorized thereto by the Board of Directors. For the avoidance of doubt, any transfer agent designated by the Company may issue share certificates on behalf of the Company even if the signatories on the share certificate no
longer serve in the relevant capacities at the time of such issuance.
(b) The Company may issue un-certificated shares, provided, however, that each holder of shares shall be
entitled to one numbered certificate for all the shares of any class registered in his name, and if reasonably requested by such holder, to several certificates, each for one or more of such shares.
(c) A share certificate registered in the names of two or more Persons shall be delivered to the Person
first named in the Register of Shareholders in respect of such co-ownership.
(d) If a share certificate is defaced, lost or destroyed, it may be replaced, upon payment of such fee,
and upon the furnishing of such evidence of ownership and such affidavit and indemnity or security, as the Company’s Secretary may deem fit.
| 10. |
Issuance of Shares; Registered Holders of Shares
|
(a) The unissued shares from time to time shall be under the control of the Board of Directors, who shall
have the power to issue shares or otherwise dispose of them to such Persons, on such terms and conditions (including inter alia terms relating
to calls as set forth in Article 11(f) hereof), and either at par or at a premium, or, subject to the provisions of the Companies Law, at a discount, and at such times, as the Board of Directors may deem fit, and the power to give to any Person the
option to acquire from the Company any shares, either at par or at a premium, or, subject to the provisions of the Companies Law, at a discount, during such time and for such consideration as the Board of Directors may deem fit.
(b) Except as otherwise provided in these Articles, the Company shall be entitled to treat the registered
holder of any share as the absolute owner thereof, and, accordingly, shall not, except as ordered by a court of competent jurisdiction, or as required by statute, be bound to recognize any trust or equitable or other claim to, or interest in such
share on the part of any other Person.
- 4 -
(c) Subject to and in accordance with the provisions of the Companies Law and to all orders and
regulations issued thereunder, the Board of Directors may elect to maintain one or more Registers of Shareholders outside of Israel in addition to its principal Register of Shareholders, and each such register shall be deemed a Register of
Shareholders for purposes of these Articles, and, subject to all applicable requirements of law, the Board of Directors may from time to time adopt such rules and procedures as it may think fit in connection with the keeping of such branch
registers.
| 11. |
Calls on Shares
|
(a) The Company may, from time to time, make such calls as the Board of Directors may determine upon
holders of shares in respect of any sum unpaid for shares held by such holders which is not, by the terms of issuance thereof or otherwise, payable at a fixed time, and each such holder shall pay the amount of every call so made upon him (and of
each installment thereof if the same is payable in installments), to the Person(s) and at the time(s) and place(s) designated by the Board of Directors, as any such time(s) may be thereafter extended and/or such Person(s) or place(s) changed.
Unless otherwise stipulated in the resolution of the Board of Directors (and in the notice hereafter referred to), each payment in response to a call shall be deemed to constitute a pro rata payment on account of all shares in respect of which such
call was made.
(b) Notice of any call shall be given in writing to the holder(s) in question not less than fourteen (14)
days prior to the time of payment, specifying the time and place of payment, and designating the Person to whom such payment shall be made, provided, however, that before the time for any such payment, the Company upon approval of the Board of
Directors may, by notice in writing to such holder(s), revoke such call in whole or in part, extend such time, or alter such Person and/or place. In the event of a call payable in installments, only one notice thereof need be given.
(c) If, by the terms of issuance of any share or otherwise, any amount is made payable at any fixed time,
every such amount shall be payable at such time as if it were a call duly made by the Company and of which due notice had been given, and all the provisions herein contained with respect to such calls shall apply to each such amount.
(d) The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof
and all interest payable thereon.
(e) Any amount unpaid in respect of a call shall bear interest from the date on which it is payable until
actual payment thereof, at such rate (not exceeding the then prevailing debitory rate charged by leading commercial banks in Israel), and at such time(s) as the Board of Directors may prescribe.
(f) Upon the issuance of shares, the Board of Directors may provide for differences among the holders of
such shares as to the amount of calls and/or the times of payment thereof.
(g) With the approval of the Board of Directors, any holder of shares may pay to the Company any amount
not yet payable in respect of his shares. The Board of Directors may at any time cause the Company to repay all or any part of the money so advanced, without premium or penalty.
| 12. |
Forfeiture and Surrender
|
(a) If any holder fails to pay any amount payable in respect of a call, or interest thereon as provided
for herein, on or before the day fixed for payment of the same, the Company, by resolution of the Board of Directors, may at any time thereafter, so long as the said amount or interest remains unpaid, forfeit all or any of the shares in respect of
which said call had been made. Any expense incurred by the Company in attempting to collect any such amount or interest, including, inter alia,
attorneys’ fees and costs of suit, shall be added to, and shall, for all purposes (including the accrual of interest thereon), constitute a part of the amount payable to the Company in respect of such call.
(b) Upon the adoption of a resolution of forfeiture, the Board of Directors shall cause notice thereof to
be given to such holder, which notice shall state that, in the event of the failure to pay the entire amount so payable within a period stipulated in the notice (which period shall not be less than fourteen (14) days and which may be extended by
the Company with the approval of the Board of Directors), such shares shall be ipso facto forfeited, provided, however, that, prior to the
expiration of such period, the Board of Directors may nullify such resolution of forfeiture, but no such nullification shall estop the Board of Directors from adopting a further resolution of forfeiture in respect of the non-payment of the same
amount.
- 5 -
(c) Whenever shares are forfeited as herein provided, all dividends theretofore declared in respect
thereof and not actually paid shall be deemed to have been forfeited at the same time.
(d) The Company, by resolution of the Board of Directors, may accept the voluntary surrender of any share.
(e) Any shares forfeited or surrendered as provided herein shall become Dormant Shares and the property of
the Company, and the same, subject to the provisions of these Articles, may be sold, re-issued or otherwise disposed of as the Board of Directors deems fit.
(f) Any holder whose shares have been forfeited or surrendered shall cease to be a holder in respect of
the forfeited or surrendered shares, but shall, notwithstanding, be liable to pay, and shall forthwith pay, to the Company, all calls, interest and expenses owing upon or in respect of such shares at the time of forfeiture or surrender, together
with interest thereon from the time of forfeiture or surrender until actual payment, at the rate prescribed in Article 11(e) above, and the Company, in its discretion, may enforce the payment of such moneys, or any part thereof, but shall not be
under any obligation to do so. In the event of such forfeiture or surrender, the Company, by resolution of the Board of Directors, may accelerate the date(s) of payment of any or all amounts then owing by the holder in question (but not yet due)
in respect of all shares owned by such holder, solely or jointly with another.
(g) The Board of Directors may at any time, before any share so forfeited or surrendered shall have been
sold, re-issued or otherwise disposed of, nullify the forfeiture or surrender on such conditions as it deems fit, but no such nullification shall estop the Board of Directors from re-exercising its powers of forfeiture pursuant to this Article 12.
| 13. |
Lien
|
(a) Except to the extent the same may be waived or subordinated in writing, to the extent permitted by
applicable law, the Company shall have a first and paramount lien upon all the shares (other than shares which are fully paid up) registered in the name of each holder (without regard to any equitable or other claim or interest in such shares on
the part of any other Person), and upon the proceeds of the sale thereof, for his debts and liabilities, solely or jointly with another, to the Company in respect of such shares, whether the period for the payment, fulfillment or discharge thereof
shall have actually arrived or not. Such lien shall extend to all dividends from time to time declared in respect of such share. Unless otherwise provided, the registration by the Company of a transfer of shares shall be deemed to be a waiver on
the part of the Company of the lien (if any) existing on such shares immediately prior to such transfer.
(b) The Board of Directors may cause the Company to sell any shares subject to such lien when any such
debt or liability has matured, in such manner as the Board of Directors may deem fit, but no such sale shall be made unless such debt or liability or has not been satisfied within fourteen (14) days after written notice of the intention to sell
shall have been served on such holder, his executors or administrators.
(c) The net proceeds of any such sale, after payment of the costs thereof, shall be applied in or toward
satisfaction of such debts or liabilities of such holder (whether or not the same have matured), or any specific part of the same (as the Company may determine), and the residue (if any) shall be paid to the holder, his executors, administrators or
assigns.
| 14. |
Sale after Forfeiture or Surrender or in Enforcement of Lien
|
Upon any sale of shares after forfeiture or surrender or for enforcing a lien, the Board of Directors may appoint
some Person to execute an instrument of transfer of the shares so sold and cause the purchaser’s name to be entered in the Register of Shareholders in respect of such shares, and the purchaser shall not be bound to see to the propriety of the
proceedings, or to the application of the purchase money, and after his name has been entered in the Register of Shareholders in respect of such shares, the validity of the sale shall not be impeached by any Person, and the remedy of any Person
aggrieved by the sale shall be in damages only and against the Company exclusively.
- 6 -
| 15. |
Redeemable Shares
|
The Company may, subject to applicable law, issue redeemable shares and redeem the same upon the conditions and
terms determined by the Board of Directors.
TRANSFER OF SHARES
| 16. |
Effectiveness and Registration
|
(a) No transfer of shares shall be registered in the Register of Shareholders unless a proper instrument
of transfer (in form and substance satisfactory to the Secretary) has been submitted to the Company or its agent, together with any share certificate(s) and such other evidence of title as the Secretary may reasonably require, and unless such
transfer complies with applicable law and these Articles. Until the transferee has been registered in the Register of Shareholders in respect of the shares so transferred, the Company may continue to treat the transferor as the owner thereof. The
Board of Directors may, from time to time, prescribe a fee for the registration of a transfer.
(b) The Company shall be entitled to refuse to recognize a transfer deed until the certificate of the
transferred share is attached to it together with any other evidence which the Board of Directors or the Secretary shall require as proof of the transferor’s right to transfer the share and payment of any transfer fee determined by the Board of
Directors. Registered transfer deeds shall remain with the Company, but any transfer deed which the Company refused to register shall be returned to the transferor upon demand.
(c) The Board of Directors may close the Register of Shareholders for a period of up to thirty (30) days
in each year.
TRANSMISSION OF SHARES
| 17. |
Decedents’ Shares
|
(a) In case of a share registered in the names of two or more holders, the Company may recognize the
survivor(s) as the sole owner(s) thereof unless and until the provisions of Article 17(b) have been effectively invoked.
(b) Any Person becoming entitled to a share in consequence of the death of any individual, upon producing
evidence of the grant of probate or letters of administration or declaration of succession (or such other evidence as the Board of Directors or the Secretary may reasonably deem sufficient of the capacity in which he proposes to act under this
Article), shall be registered as a holder in respect of such share, or may, subject to the regulations as to transfer herein contained, transfer such share.
| 18. |
Receivers and Liquidators
|
(a) The Company may recognize the receiver or liquidator or similar official of any corporate shareholder
in winding-up or dissolution, or the receiver or trustee or similar official in bankruptcy or in connection with the reorganization of any shareholder, as being entitled to the shares registered in the name of such shareholder.
(b) The receiver or liquidator or similar official of a corporate shareholder in winding-up or
dissolution, or the receiver or trustee or similar official in bankruptcy or in connection with the reorganization of any shareholder, upon producing such evidence as the Board of Directors or the Secretary may deem sufficient of the capacity in
which he proposes to act under this Article, shall with the consent of the Secretary, be registered as a shareholder in respect of such shares, or may, subject to the provisions as to transfer herein contained, transfer such shares.
- 7 -
RECORD DATE WITH RESPECT TO OWNERSHIP OF SHARES
| 19. |
Record Dates
|
(a) Notwithstanding any provision to the contrary in these Articles, for the determination of the holders
entitled to receive notice of and to participate in and vote at a General Meeting or to express consent to or dissent from any corporate action in writing, the Board of Directors may fix, in advance, a record date which shall neither be earlier nor
later than is permitted under applicable law. No Persons other than holders of record of Ordinary Shares as of such record date shall be entitled to notice of and to participate in and vote at such General Meeting, or to exercise such other right,
as the case may be. A determination of holders of record with respect to a General Meeting shall apply to any adjournment of such meeting, provided that the Board of Directors may fix a new record date for an adjourned meeting.
(b) Subject to the applicable law, the holders entitled to receive payment of any dividend or other
distribution or issuance of any rights, shall be the shareholders on the date upon which it was resolved to distribute the dividend or at such later date as shall be determined by, or pursuant to a resolution of, the Board of Directors.
GENERAL MEETINGS
| 20. |
Annual General Meeting
|
An Annual General Meeting shall be held once in every calendar year at such time (within a period of not more than
fifteen (15) months after the last preceding Annual General Meeting) and at such place either within or without the State of Israel as may be determined by the Board of Directors.
| 21. |
Extraordinary General Meetings
|
The Board of Directors may, whenever it deems fit, convene an Extraordinary General Meeting at such time and place,
within or without the State of Israel, as may be determined by the Board of Directors, and shall be obliged to do so upon a demand in writing in accordance with Section 63(b) of the Companies Law, if the proposed resolution is suitable for
determination by shareholders.
| 22. |
Notice of General Meetings
|
(a) The Company is required to give such prior notice of a General Meeting as required by applicable law,
but in any event not less than fourteen (14) days. The Company is not required to deliver personal notice to every shareholder except to the extent required by applicable law. In any event, the accidental omission to give notice of a meeting to any
shareholder or the non-receipt of notice by any of the shareholders shall not invalidate the proceedings at any meeting.
(b) The notice of the meeting shall set forth the agenda of the meeting.
- 8 -
(c) Any Shareholder or Shareholders of the Company holding at least one percent (1%) of the voting rights
of the Company (the “Proposing Shareholder(s)”) may request, subject to the Companies Law, that the Board of Directors include a matter on the agenda of a General Meeting, provided that the matter is appropriate to be considered in a General
Meeting (a “Proposal Request”). In order for the Board of Directors to consider a Proposal Request and whether to include the matter stated therein in the agenda of a General Meeting, notice of the Proposal Request must be timely delivered under
any applicable law and stock exchange rules and regulations and the Proposal Request must comply with the requirement of these Articles (including this Article 22) and any applicable law and stock exchange rules and regulations. The Proposal
Request must be in writing, signed by all of the Proposing Shareholder(s) making such request, delivered, either in person or by certified mail, postage prepaid, and received by the Secretary (or, in the absence thereof by the Chief Executive
Officer of the Company). The announcement of an adjournment or postponement of a General Meeting shall not commence a new time period (or extend any time period) for the delivery of a Proposal Request as described above. The Proposal Request must
include the following: (i) the name, address, telephone number, fax number and email address of the Proposing Shareholder (or each Proposing Shareholder, as the case may be) and, if an entity, the name(s) of the person(s) that controls or manages
such entity; (ii) the number of Ordinary Shares held by the Proposing Shareholder(s), directly or indirectly (and, if any of such Ordinary Shares are held indirectly, an explanation of how they are held and by whom), which shall be in such number
no less than as is required to qualify as a Proposing Shareholder, accompanied by evidence satisfactory to the Company of the record holding of such Ordinary Shares by the Proposing Shareholder(s) as of the date of the Proposal Request, and a
representation that the Proposing Shareholder(s) intends to appear in person or by proxy at the meeting; (iii) the matter requested to be included on the agenda of a General Meeting, all information related to such matter, the reason that such
matter is proposed to be brought before the General Meeting, the complete text of the resolution that the Proposing Shareholder proposes to be voted upon at the General Meeting and, if the Proposing Shareholder wishes to have a position statement
in support of the Proposal Request, a copy of such position statement that complies with the requirement of any applicable law; (iv) a description of all arrangements or understandings between the Proposing Shareholders and any other Person(s)
(naming such Person or Persons) in connection with the matter that is requested to be included on the agenda and a declaration signed by all Proposing Shareholder(s) of whether any of them has a personal interest in the matter and, if so, a
description in reasonable detail of such personal interest; (v) a description of all Derivative Transactions (as defined below) by each Proposing Shareholder(s) during the previous twelve (12) month period, including the date of the transactions
and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions; and (vi) a declaration that all of the information that is required under the Companies Law and any other applicable law
and stock exchange rules and regulations to be provided to the Company in connection with such matter, if any, has been provided to the Company. The Board of Directors, may, in its discretion, to the extent it deems necessary, request that the
Proposing Shareholder(s) provide additional information necessary so as to include a matter in the agenda of a General Meeting, as the Board of Directors may reasonably require. A “Derivative Transaction” means any agreement, arrangement, interest
or understanding entered into by, or on behalf or for the benefit of, any Proposing Shareholder or any of its affiliates or associates, whether of record or beneficial: (i) the value of which is derived in whole or in part from the value of any
class or series of shares or other securities of the Company, (ii) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Company, (iii) the effect or intent
of which is to mitigate loss, manage risk or benefit of security value or price changes, or (iv) which provides the right to vote or increase or decrease the voting power of, such Proposing Shareholder, or any of its affiliates or associates, with
respect to any shares or other securities of the Company, which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right,
short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and
any proportionate interest of such Proposing Shareholder in the securities of the Company held by any general or limited partnership, or any limited liability company, of which such Proposing Shareholder is, directly or indirectly, a general
partner or managing member.
The information required pursuant to this Article 22(c) shall be updated as of (i) the record date of the General
Meeting, (ii) five business days before the General Meeting, and (iii) as of the General Meeting, and any adjournment or postponement thereof.
(d) Notwithstanding anything to the contrary in these Articles, unless otherwise provided by applicable
law, notice by the Company of a General Meeting which is published in one (1) daily newspaper in the State of Israel, if at all, shall be deemed to have been duly given on the date of such publication to any shareholder whose address as registered
in the Register of Shareholders (or as designated in writing for the receipt of notices and other documents) is located in the State of Israel or whose shares of the Company are registered with a transfer agent, or listed for trade on a stock
exchange, that is located in the State of Israel.
(e) Notwithstanding anything to the contrary in these Articles, unless otherwise provided by applicable
law, notice by the Company of a General Meeting or any other matter which is published via one international wire service shall be deemed to have been duly given on the date of such publication to any shareholder whose address as registered in the
Register of Shareholders (or as designated in writing for the receipt of notices and other documents) is located outside the State of Israel or whose shares of the Company are registered with a transfer agent, or listed for trade on a stock
exchange that is located outside the State of Israel.
- 9 -
PROCEEDINGS AT GENERAL MEETINGS
| 23. |
Quorum
|
Two or more holders of Ordinary Shares (not in default in payment of any sum referred to in Article 12(a) hereof),
present in person or by proxy and holding shares conferring in the aggregate at least thirty-three-and-one-third percent (33-1/3%) of the voting power of the Company shall constitute a quorum at General Meetings. No business shall be transacted at
a General Meeting, or at any adjournment thereof, unless the requisite quorum is present when the meeting proceeds to business.
| 24. |
Chairman of Meetings
|
The Chairman, if any, of the Board of Directors shall preside as Chairman at every General Meeting of the Company.
If there is no such Chairman, or if at any meeting he is not present within fifteen (15) minutes after the time fixed for the meeting or is unwilling to act as Chairman or has notified the Company that he will not attend such meeting, the holders
of Ordinary Shares present (or their proxies) shall choose someone else to be Chairman. The office of Chairman shall not, by itself, entitle the holder thereof to vote at any General Meeting (without derogating, however, from the rights of such
Chairman to vote as a holder of Ordinary Shares or proxy of a shareholder if, in fact, he is also a shareholder or a proxy).
| 25. |
Adoption of Resolutions at General Meetings
|
(a) Subject
to Article 35(a), unless otherwise indicated herein or required by applicable law any Shareholders Resolution shall be deemed adopted if approved by an Ordinary Majority, including without limitation, a Merger of the Company or an amendment to
these Articles, to the extent permitted by applicable law.
(b) Every
question submitted to a General Meeting shall be decided by a show of hands, without derogating from voting by written ballot to the extent permitted, pursuant to applicable law.
(c) A
declaration by the Chairman of the meeting that a resolution has been carried unanimously, or carried by a particular majority, or defeated, and an entry to that effect in the minutes book of the Company, shall be conclusive evidence of the fact
without need of proof of the number or proportion of the votes recorded in favor of or against such resolution.
| 26. |
Power to Adjourn
|
The Chairman of a General Meeting at which a quorum is present may, with the consent of the holders of a majority
of the voting power represented in person or by proxy and voting on the question of adjournment (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any
adjourned meeting except business which might lawfully have been transacted at the meeting as originally called. In addition, the Chairman shall, if directed by the Board, adjourn a General Meeting (whether prior to or at the General Meeting) from
time to time and from place to place, but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting as originally called.
| 27. |
Voting Power
|
Subject to applicable law, and subject to any provision hereof conferring special rights as to voting, or
restricting the right to vote, every holder of Ordinary Shares shall have one vote for each share registered in his name in the Register of Shareholders upon any resolution put to a vote of the holders of Ordinary Shares.
| 28. |
Voting Rights
|
(a) The
shareholders entitled to vote at a General Meeting shall be the shareholders listed in the Company’s Register(s) of Shareholders on the record date, as specified in Article 19.
- 10 -
(b) A
company or other entity which is not an individual being a holder of Ordinary Shares of the Company may be represented by an authorized individual at any meeting of the Company. Such authorized individual shall be entitled to exercise on behalf
of such holder all the power, which the latter could have exercised if it were an individual shareholder. Upon the request of the Chairman of the meeting, written evidence of such authorization (in form acceptable to the Chairman in his sole
discretion) shall be delivered to him.
(c) Any
holder of Ordinary Shares entitled to vote at the General Meeting may vote thereat either personally or by proxy (who need not be a shareholder of the Company), or, if the shareholder is a company or other corporate body, by a representative
authorized pursuant to Article 28(b).
(d) If
two or more Persons are registered in the Register of Shareholders as joint holders of any Ordinary Share, the vote of the senior who tenders a vote, in person or by proxy, shall be accepted to the exclusion of the vote(s) of the other joint
holder(s); and for this purpose seniority shall be determined by the order in which the names stand in the Register of Shareholders, all subject to applicable law.
(e) No
shareholders shall be entitled to vote at any General Meeting (or be counted as a part of the quorum thereat), unless all calls and other sums then payable by him in respect of his shares in the Company have been paid.
(f) The
Board of Directors may determine, in its discretion, the matters, if any, that may be voted upon by written ballot delivered to the Company (without attendance in person or by proxy) at a General Meeting, in addition to the matters on which
shareholders are entitled to do so pursuant to applicable law.
(g) Subject
to the provisions of applicable law, the Secretary of the Company may, in his discretion, disqualify proxies, proxy cards, written ballots or any other similar instruments.
PROXIES
| 29. |
Instrument of Appointment
|
(a) The
instrument appointing a proxy shall be substantially in the form provided below or any other usual or customary form or such other form as may be approved by the Board of Directors from time to time. It shall be duly signed by the appointer or
his duly authorized attorney or, if such appointer is a company or other corporate body, under its common seal or stamp or the hand of its duly authorized agent(s) or attorney(s).
“I, the undersigned, _________________________________, being a
(name of shareholder )
shareholder of ReWalk Robotics Ltd. hereby appoint
________________________ of _____________________________
(name of proxy) (address of proxy)
as my proxy to attend and vote on my behalf at [any General Meeting of the Company] [the General Meeting of
the Company to be held on the _____ day of _______ , 2____ ] and at any adjournment thereof.
Signed this ______ day of ___________, 2___ .
__________________.”
(signature of shareholder)
(b) The
instrument appointing a proxy (and the power of attorney or other authority, if any, under which such instrument has been signed) shall be delivered to the Company (at its registered office, or at its principal place of business or at the offices
of its registrar and/or transfer agent or at such place as the Board of Directors may specify) not less than forty-eight (48) hours before the time fixed for the meeting at which the Person named in the instrument proposes to vote, unless
otherwise determined by the Chairman of the meeting.
- 11 -
(c) The
rights of a shareholder who is legally incapacitated to attend and/or vote at a General Meeting may be exercised by his guardian.
| 30. |
Effect of Death of Appointer or Revocation of Appointment
|
A vote cast pursuant to an instrument appointing a proxy shall be valid notwithstanding the previous death of the
appointing shareholder (or of his attorney-in-fact, if any, who signed such instrument) or the revocation of the appointment, provided that no written notice of such death or revocation shall have been received by the Company or by the Chairman of
the meeting before such vote is cast and provided, further, that the appointing shareholder, if present in person at said meeting, may revoke the authority granted by the execution of a proxy by filing with the Company a duly executed instrument
appointing another proxy, on or prior to the deadline for the delivery of proxies, or by voting in person at the General Meeting.
BOARD OF DIRECTORS
| 31. |
Powers of Board of Directors
|
(a) In
General
The oversight of the management of the business of the Company shall be vested in the Board of Directors, which may
exercise all such powers and do all such acts and things as the Company is authorized to exercise and do, and are not hereby or by law required to be exercised or done by the Company in a General Meeting. The authority conferred on the Board of
Directors by this Article 31 shall be subject to the provisions of the Companies Law, of these Articles and any resolution consistent with the Companies Law and these Articles adopted from time to time by a General Meeting, provided, however, that
no such resolution shall invalidate any prior act done by or pursuant to a decision of the Board of Directors which would have been valid if such resolution had not been adopted.
(b) Borrowing
Power
The Board of Directors may from time to time, in its discretion, cause the Company to borrow or secure the payment
of any sum or sums of money for the purposes of the Company, and also may cause the Company to secure or provide for the repayment of such sum or sums in such manner, at such times and upon such terms and conditions in all respects as it deems fit,
and, in particular, by the issuance of bonds, perpetual or redeemable debentures, debenture stock, or any mortgages, charges, or other securities on the undertaking or the whole or any part of the property of the Company, both present and future,
including its uncalled or called but unpaid share capital for the time being.
(c) Reserves
The Board of Directors may, from time to time, set aside any amount(s) out of the profits of the Company as a
reserve or reserves for any purpose(s) which the Board of Directors, in its absolute discretion, shall deem fit, and the Company may invest any sum so set aside in any manner and from time to time deal with and vary such investments, and dispose of
all or any part thereof, and employ any such reserve or any part thereof in the business of the Company without being bound to keep the same separate from other assets of the Company, and may subdivide or redesignate any reserve or cancel the same
or apply the funds therein for another purpose, all as the Board of Directors may from time to time deem fit.
| 32. |
Exercise of Powers of Directors
|
(a) A
meeting of the Board of Directors at which a quorum is present (in person, by means of a conference call or any other device allowing each director participating in such meeting to hear all the other directors participating in such meeting) shall
be competent to exercise all the authorities, powers and discretions vested in or exercisable by the Board of Directors.
- 12 -
(b) A
resolution proposed at any meeting of the Board of Directors shall be deemed adopted if approved by a simple majority of the Directors present and lawfully entitled to vote thereon (as conclusively determined by the Secretary or General Counsel,
and in the absence of such determination, by the Chairman of the Audit Committee) and voting thereon.
(c) A
resolution may be adopted by the Board of Directors without convening a meeting if all Directors then in office and lawfully entitled to participate in
the meeting and vote thereon (as conclusively determined by the Secretary or General Counsel, and in the absence of such determination, by the Chairman of the Audit Committee), have given their written consent (in any manner whatsoever) not to
convene a meeting to discuss such matter. Such resolution shall be adopted if approved by a majority of the Directors lawfully entitled to vote thereon (as determined as aforesaid). The Chairman of the Board of Directors shall sign the
instrument evidencing any resolutions so adopted, including the decision to adopt said resolutions without a meeting.
| 33. |
Delegation of Powers
|
(a) The
Board of Directors may, subject to the provisions of the Companies Law and these Articles, delegate any of its powers to committees, each consisting of two or more Persons (all of whose members must be Directors), and it may from time to time
revoke such delegation or alter the composition of any such committee. Any Committee so formed (in these Articles referred to as a “Committee of the Board of Directors”), shall, in the exercise of the powers so delegated, conform to any regulations imposed on it by the Board of Directors. The meetings and proceedings of any such Committee of the
Board of Directors shall, mutatis mutandis, be governed by the provisions herein contained for regulating the meetings of the Board of
Directors, so far as not superseded by the Companies Law or any regulations adopted by the Board of Directors under this Article. Notwithstanding the foregoing, the Chairman of a Committee of the Board of Directors shall not have a casting vote.
Unless otherwise expressly provided by the Board of Directors in delegating powers to a Committee of the Board of Directors, such Committee shall not be empowered to further delegate such powers.
(b) Without
derogating from the provisions of Article 46, the Board of Directors may, subject to the provisions of the Companies Law, from time to time appoint a Secretary to the Company, as well as any officers of the Company, and may terminate the service
of any such Person, and also may cause the Company to engage employees, agents and independent contractors and to terminate the service of any such Person, all as the Board of Directors may deem fit. Without derogating from the provisions of
Article 46, the Board of Directors may, subject to the provisions of the Companies Law, determine the powers and duties, as well as the compensation terms of all such Persons, and may require security in such cases and in such amounts as it deems
fit.
| 34. |
Number of Directors
|
(a) The
Board of Directors shall include at least five (5) Directors and cannot be more than thirteen (13) Directors, including two External Directors.
(b) The
requirements of the Companies Law applicable to an External Director shall prevail over the provisions of these Articles to the extent that these Articles are inconsistent with the Companies Law, and shall apply to the extent that these Articles
are silent.
| 35. |
Election and Removal of Directors
|
(a) Other
than External Directors, the directors will be elected in three staggered classes by the vote of a majority of the ordinary shares present and entitled to vote. The directors of only one class will be elected at each annual meeting for a three
year term, so that the regular term of only one class of directors expires annually. The directors serving as of the date these Articles become effective will be classified as shall be determined by a resolution of the Board. At the Company’s
Annual General Meeting to be held in 2015, the term of the first class, consisting of three (3) directors will expire, and the directors elected at that meeting will be elected for a three-year term. At the Company’s Annual General Meeting to be
held in 2016, the term of the second class, consisting of three (3) directors, will expire and the directors elected at that meeting will be elected for a three-year term. At the Company’s Annual General Meeting to be held in 2017, the term of
the third class, consisting of three (3) directors, will expire and the director elected at that meeting will be elected for a three-year term. The External Directors will not be assigned a class.
- 13 -
If the number of directors constituting the Board is changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case will a decrease in the number of directors constituting the Board shorten the term of any incumbent director.
The provisions of this Article 35(a) may not be amended without a resolution of the general meeting of the Company
approved by shareholders holding 65% or more of the voting power of the issued and outstanding share capital of the Company.
(b) Subject
to subsection (a), each Director shall be elected by a Shareholders Resolution at the Annual General Meeting by the vote of the holders of a simple majority of the voting power represented at such meeting in person or by proxy and voting on such
election. .
(c) Notwithstanding
the provisions of subsection (a), External Directors shall be elected in accordance with the Companies Law. An elected External Director shall commence his term from the date of, and shall serve for the period stated in, the resolution of the
General Meeting at which he was elected, unless his office becomes vacant earlier in accordance with the provisions of the Companies Law.
(d) A
Director may serve for multiple terms, provided, however, that the terms of an External Director shall be limited in accordance with applicable law.
(e) The
General Meeting shall be entitled to remove any Director(s) from office by a Shareholder Resolution approved by Shareholders holding 65% or more of the voting power of the issued and outstanding share capital of the Company, subject to applicable
law. The Board of Directors shall be entitled to remove from office any Director(s) appointed by the Board of Directors.
| 36. |
Qualification of Directors
|
No Person shall be disqualified to serve as a Director by reason of his not holding shares in the Company.
| 37. |
Vacancies in the Board of Directors
|
(a) Subject
to the provisions of Article 35(a), any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board of Directors by resolution of the Board of Directors or from the number of Directors
serving being less than the maximum permitted number, may be filled by resolution of the Board of Directors. A Director elected to fill a vacancy shall be elected to hold office until the Annual General Meeting at which the term for the other
directors of his class expires, unless his office becomes vacant earlier in accordance with the provisions of these Articles.
(b) In
the event of one or more vacancies in the Board of Directors, the continuing Directors may continue to act in every matter, provided, however, that if they number less than the minimum number set forth in Article 34(a) hereof, they may only act
in an emergency (as determined in their absolute discretion), may appoint one or more Directors and call one or more General Meetings for any purpose.
| 38. |
Vacation of Office
|
(a) The
office of a Director shall be vacated, ipso facto, upon his death, or if he be found mentally incapacitated, or upon the conviction of a
crime enumerated in the Companies Law or as otherwise provided by applicable law.
(b) The
office of a Director shall be vacated by his written resignation. Such resignation shall become effective on the date fixed therein, or upon the delivery thereof to the Company, whichever is later.
- 14 -
| 39. |
Remuneration of Directors
|
No Director shall be paid any remuneration by the Company for his services as Director except as may be approved
pursuant to the provisions of the Companies Law. Except as otherwise provided by applicable law, reimbursement of expenses incurred by a Director in carrying out his duties as such shall be made pursuant to the policy in this respect as determined
by the Board of Directors and in effect from time to time.
| 40. |
Conflict of Interests
|
(a) Subject
to the provisions of the Companies Law, the Company may enter into any contract or otherwise transact any business with any Director in which contract or business such Director has a Personal Interest, directly or indirectly; and may enter into
any contract of otherwise transact any business with any third party in which contract or business a Director has a Personal Interest, directly or indirectly.
(b) A
Transaction (other than an Extraordinary Transaction) between the Company and an Office Holder or Controlling Person of the Company, or in which an Office Holder or Controlling Person of the Company has a Personal Interest, may be approved by:
| (i) |
the Audit Committee – without any monetary limit; or
|
| (ii) |
the Board of Directors – without any monetary limit; or
|
| (iii) |
the Company’s authorized officer(s) or director(s) in accordance with the Company’s signatory rights (provided that no such approval may be given by any signatory who
has a Personal Interest in the transaction). Any such approval may relate to a specific Transaction or to a general category of Transactions.
|
| 41. |
Alternate Directors
|
(a) A
Director may, subject to the consent of a majority of the members of the Board of Directors excluding such Director, appoint an individual as an alternate for himself (“Alternate Director”), remove such Alternate Director and appoint another Alternate Director in place of any
Alternate Director appointed by him whose office has been vacated for any reason whatsoever. Unless the appointing Director, by the instrument appointing an Alternate Director or by written notice to the Company, limits such appointment to a
specified period of time or restricts it to a specified meeting or action of the Board of Directors, or otherwise restricts its scope, the appointment shall be for an indefinite period and for all purposes.
(b) Any
notice given to the Company pursuant to Article 41(a) shall become effective on the date fixed therein, or upon the delivery thereof to the Company, whichever is later.
(c) An
Alternate Director shall have all the rights and obligations of the Director who appointed him, provided, however, that he may not in turn appoint an alternate for himself, and provided further that an Alternate Director shall have no standing at
any meeting of the Board of Directors or any committee thereof while the Director who appointed him is present at such meeting.
(d) An
Alternate Director shall alone be responsible for his own acts and omissions, and he shall not be deemed the agent of the Director who appointed him.
(e) The
office of an Alternate Director shall be vacated under the circumstances, mutatis mutandis, set forth in Article 38, and such office shall ipso facto be vacated if the Director who appointed such Alternate Director ceases to be a Director.
(f) Notwithstanding
Article 41(a), (i) no Person shall be appointed as the Alternate Director for more than one Director and (ii) except as otherwise specifically permitted by the Companies Law, (A) no External Director may appoint an Alternate Director and (B) no
Director may serve as an Alternate Director.
- 15 -
PROCEEDINGS OF THE BOARD OF DIRECTORS
| 42. |
Meetings
|
(a) The
Board of Directors may meet and adjourn its meetings according to the Company’s needs but at least once in every three (3) months, and otherwise regulate such meetings and proceedings as the Directors think fit. Notice of the meetings of the
Board of Directors shall be sent to each Director at the last address that the Director provided to the Company, or via telephone, facsimile or e-mail message, to the last telephone number, fax number or e-mail address, as applicable, that the
Director provided to the Company.
(b) Any
two (2) Directors may, at any time, convene a meeting of the Board of Directors, but not less than seventy-two (72) hours’ notice shall be given of any meeting so convened, provided that the Chairman of the Board of Directors or the Vice Chairman
of the Board of Directors may convene a meeting of the Board of Directors upon not less than twenty-four (24) hours written notice, and further provided, that the Board of Directors may convene a meeting without such prior notice with the consent
of all of the Directors who are lawfully entitled to participate in and vote at such meeting (as conclusively determined by the Secretary or General Counsel, and in the absence of such determination, by the Chairman of the Audit Committee). The
notice of a meeting of the Board of Directors shall describe the agenda for such meeting in reasonable detail, as determined by those convening such meeting. The failure to give notice to a Director in the manner required hereby may be waived by
such Director. In urgent situations, a meeting of the Board of Directors can be convened without any prior notice with the consent of a majority of the Directors, including a majority of those who are lawfully entitled to participate in and vote
at such meeting (as conclusively determined by the Secretary or General Counsel, and in the absence of such determination, by the Chairman of the Audit Committee).
| 43. |
Quorum
|
Unless otherwise unanimously decided by the Board of Directors, a quorum at a meeting of the Board of Directors
shall be constituted by the presence in person or by any other means of communication by which the Directors may hear each other simultaneously, of at least a majority of the Directors then in office who are lawfully entitled to participate in the
meeting and vote thereon (as conclusively determined by the Secretary or General Counsel, and in the absence of such determination, by the Chairman of the Audit Committee). No business shall be transacted at a meeting of the Board of Directors
unless the requisite quorum is present as aforesaid.
| 44. |
Chairman of the Board of Directors
|
(a) The
Board of Directors may from time to time elect one of its members to be the Chairman of the Board of Directors, remove such Chairman from office and appoint another in his place.
(b) The
Chairman, if any, of the Board of Directors shall preside at every meeting of the Board of Directors, but if there is no such Chairman, or if at any meeting he is not present within fifteen (15) minutes after the time fixed for the meeting, or is
unwilling to act as Chairman or has notified the Company that he will not attend such meeting, the Directors present shall choose one of their number to be the Chairman of such meeting. The office of Chairman shall not, by itself, entitle the
holder thereof to vote at any meeting of the Board of Directors nor shall it entitle such holder to a second or casting vote (without derogating, however, from the rights of such Chairman to vote as a Director of the Company).
| 45. |
Validity of Acts Despite Defects
|
Subject to the provisions of the Companies Law, all acts done bona fide at any meeting of the Board of Directors,
or of a Committee of the Board of Directors, or by any Person(s) acting as Director(s), shall, notwithstanding that it may afterwards be discovered that there was some defect in the process or in the appointment of the participants in such meetings
or any of them or any Person(s) acting as aforesaid, or that they or any of them were disqualified, be as valid as if there were no such defect or disqualification.
- 16 -
GENERAL MANAGER
| 46. |
General Manager
|
(a) The
Board of Directors may from time to time appoint one or more Persons, whether or not Directors, as general managers (the “General Manager(s)”)
of the Company and may confer upon such Person(s), and from time to time modify or revoke, such title(s) (including Managing Director, President, Chief Executive Officer, Director General or any similar or dissimilar title) and such duties and
authorities of the Board of Directors as the Board of Directors may deem fit, subject to such limitations and restrictions as the Board of Directors may from time to time prescribe. Such appointment(s) may be either for a fixed term or without
any limitation of time, and the Board of Directors may from time to time (subject to the provisions of the Companies Law and of any contract between any such Person and the Company) fix his or their compensation terms, remove or dismiss him or
them from office, or assume his or their authorities with respect to a specific matter or period of time.
(b) The
General Manager shall have the authority, in his discretion, to appoint any Person to become an Office Holder (other than a Director) and fix his remuneration. The General Manager shall have the authority, in his discretion, to promote or
demote, or to increase or decrease any remuneration of, any other Office Holder (other than a Director) who reports directly or indirectly to the General Manager, provided that such matter is not considered an Extraordinary Transaction. Nothing
in this Article 46(b) shall derogate from the authority of the Board of Directors.
MINUTES
| 47. |
Minutes
|
(a) Minutes
of each General Meeting and of each meeting of the Board of Directors and any Committees thereof shall be recorded and duly entered in books provided for that purpose. Such minutes shall, in all events, set forth the names of the persons present
at the meeting and all resolutions adopted thereat.
(b) Any
minutes as aforesaid, if purporting to be signed by the Chairman of the meeting, shall constitute prima facie evidence of the matters
recorded therein.
DIVIDENDS
| 48. |
Declaration and Payment of Dividends
|
(a) Subject
to the Companies Law, the Board of Directors may from time to time declare, and cause the Company to pay, such dividend as may appear to the Board of Directors to be appropriate. Subject to the Companies Law, the Board of Directors shall
determine the time for payment of such dividends, and the record date for determining the shareholders entitled thereto.
(b) The
Company’s obligation to pay dividends or any other amount in respect of shares may be set-off by the Company against any indebtedness, however arising, liquidated or non-liquidated, of the Person entitled to receive the dividend. The provisions
contained in this Article shall not prejudice any other right or remedy vested with the Company pursuant to these Articles or otherwise.
| 49. |
Amount Payable by Way of Dividends
|
Subject to the rights of the holders of shares with special rights as to dividends, any dividend paid by the
Company shall be allocated among the shareholders entitled thereto in proportion to their respective holdings of the shares in respect of which such dividend is being paid.
|
50.
|
Interest
|
No dividend shall carry interest as against the Company.
- 17 -
|
51.
|
Form of Dividend
|
Upon the declaration of the Board of Directors, a dividend may be paid, wholly or partly, by the distribution of
cash or specific assets of the Company or by distribution of securities of the Company or of any other companies, or in any one or more of such ways.
| 52. |
Retention of Dividends
|
The Board of Directors may retain any dividend or other moneys payable or property distributable in respect of a
share in respect of which any Person is, under Articles 17 or 18, entitled to become a shareholder, or which any Person is, under said Articles, entitled to transfer, until such Person shall become a shareholder in respect of such share or shall
transfer the same.
| 53. |
Unclaimed Dividends
|
All unclaimed dividends or other moneys payable in respect of a share may be invested or otherwise made use of by
and for the benefit of the Company until claimed. The payment by the Company of any unclaimed dividend or such other moneys into a separate account shall not constitute the Company a trustee in respect thereof, and any dividend unclaimed after a
period of seven (7) years from the date of declaration of such dividend, and any such other moneys unclaimed after a like period from the date the same were payable, shall be forfeited and shall revert to the Company, provided, however, that the
Board of Directors may, at its discretion, cause the Company to pay any such dividend or such other moneys, or any part thereof, to a Person who would have been entitled thereto had the same not reverted to the Company.
FINANCIAL STATEMENTS
|
54.
|
Financial Statements
|
The Board of Directors shall cause accurate books of account to be kept in accordance with the provisions of
applicable law. Such books of account shall be kept at the Registered Office of the Company, or at such other place or places as the Board of Directors may think fit, and they shall always be open to inspection by all Directors. No shareholder,
not being a Director, shall have any right to inspect any account or book or other similar document of the Company, except as conferred by law or authorized by the Board of Directors or by a Shareholders Resolution. The Company shall not be
required to send copies of its financial statements to the shareholders.
AUDITORS
| 55. |
Outside Auditor
|
The outside auditor of the Company shall be recommended by the Audit Committee and elected by Shareholder
Resolution at each Annual General Meeting and shall serve until the next Annual General Meeting or its earlier removal or replacement by Shareholder Resolution. The Board of Directors shall have the authority to fix, in its discretion, the
remuneration of the auditor for audit and any other services, or to delegate such authority to the Audit Committee.
| 56. |
Internal Auditor
|
The internal auditor of the Company shall be subject to the administrative supervision of the Chairman of the Board
of Directors and shall present all its proposed work plans to the Audit Committee, which shall have the authority to approve them subject to any modifications in its discretion.
- 18 -
EXEMPTION, INSURANCE AND INDEMNITY
|
57.
|
Exemption, Insurance and Indemnity
|
| (a) |
Insurance of Office Holders:
|
| i. |
The Company may insure the liability of any Office Holder therein to the fullest extent permitted by law.
|
| ii. |
Without derogating from the aforesaid the Company may enter into a contract to insure the liability of an Office Holder therein for an obligation imposed on him in
consequence of an act done in his capacity as an Office Holder therein, in any of the following cases:
|
| 1. |
A breach of the duty of care vis-à-vis the Company or vis-à-vis another Person;
|
| 2. |
A breach of the duty of loyalty vis-à-vis the Company, provided that the Office Holder acted in good faith and had reasonable basis to believe that the act would not
harm the Company;
|
| 3. |
A monetary obligation imposed on him in favor of another Person;
|
| 4. |
Reasonable litigation expenses, including attorney fees, incurred by the Office Holder as a result of an administrative enforcement proceeding instituted against him.
Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the Office Holder in favor of an injured party as set forth in Section 52(54)(a)(1)(a) of the Israeli Securities Law, 1968, as amended
(the “Securities Law”) and expenses that the Office Holder incurred in connection with a proceeding under Chapters H’3, H’4 or I’1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees; or
|
| 5. |
Any other matter in respect of which it is permitted or will be permitted under applicable law to insure the liability of an Office Holder in the Company.
|
| (b) |
Indemnity of Office Holders:
|
| i. |
The Company may indemnify an Office Holder therein, retroactively or pursuant to an advance undertaking, to the fullest extent permitted by law. Without derogating
from the aforesaid the Company may indemnify an Office Holder in the Company for liability or expense imposed on him in consequence of an action made by him in the capacity of his position as an Office Holder in the Company, as follows:
|
| 1. |
Any financial liability he incurs or imposed on him in favor of another Person in accordance with a judgment, including a judgment given in a settlement or a judgment
of an arbitrator, approved by a court.
|
| 2. |
Reasonable litigation expenses, including legal fees, incurred by the Office Holder or which he was ordered to pay by a court, within the framework of proceedings
filed against him by or on behalf of the Company, or by a third party, or in a criminal proceeding in which he was acquitted, or in a criminal proceeding in which he was convicted of a criminal offense which does not require proof of
criminal intent.
|
| 3. |
Reasonable litigation expenses, including legal fees he incurs due to an investigation or proceeding conducted against him by an authority authorized to conduct such
an investigation or proceeding, and which was ended without filing an indictment against him and without being subject to a financial obligation as a substitute for a criminal proceeding, or that was ended without filing an indictment
against him, but with the imposition of a financial obligation, as a substitute for a criminal proceeding relating to an offence which does not require proof of criminal intent, within the meaning of the relevant terms in the Companies Law,
or in connection with an administrative enforcement proceeding or a financial sanction. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the Office Holder in favor of an injured party
as set forth in Section 52(54)(a)(1)(a) of the Securities Law, and expenses that the Office Holder incurred in connection with a proceeding under Chapters H’3, H’4 or I’1 of the Securities Law, including reasonable legal expenses, which
term includes attorney fees.
|
- 19 -
| ii. |
Advance Indemnity The Company may indemnify an Office Holder therein,
except as provided by applicable law. The Company may give an advance undertaking to indemnify an Office Holder therein in respect of the following matters:
|
| 1. |
Matters as detailed in Article 57(b)(i)(1), provided, however, that the undertaking is restricted to events, which in the opinion of the Board of Directors, are
foreseeable in light of the Company’s actual activity at the time of granting the obligation to indemnify and is limited to a sum or measurement determined by the Board of Directors as reasonable under the circumstances. The indemnification
undertaking shall specify the events that, in the opinion of the Board of Directors are foreseeable in light of the Company’s actual activity at the time of grant of the indemnification and the sum or measurement, which the Board of
Directors determined to be reasonable under the circumstances;
|
| 2. |
Matters as detailed in Article 57(b)(i)(2) and 57(b)(i)(3); and
|
| 3. |
Any matter permitted by applicable law.
|
| (c) |
Exemption of Office Holders. The Company may exempt an Office Holder
therein in advance and retroactively for all or any of his liability for damage in consequence of a breach of the duty of care vis-à-vis the Company, to the fullest extent permitted by law.
|
| (d) |
Insurance, Exemption and Indemnity – General.
|
| i. |
The provisions of this Article 57 with regard to insurance, exemption and indemnity are not and shall not limit the Company in any way with regard to its entering
into an insurance contract and/or with regard to the grant of indemnity and/or exemption in connection with a person who is not an Office Holder of the Company, including employees, contractors or consultants of the Company, all subject to
any applicable law.
|
| ii. |
Articles 57(a) through 57(d) shall apply mutatis mutandis in respect of the grant of insurance, exemption and/or indemnification for Persons serving on behalf of the
Company as Office Holders in companies controlled by the Company, or in which the Company has an interest.
|
| iii. |
An undertaking to insure, exempt and indemnify an Office Holder in the Company as set forth above shall remain in full force and effect even following the termination
of such Office Holder’s service with the Company.
|
| iv. |
Any amendment to the Companies Law, the Securities Law or any other applicable law adversely affecting the right of any Office Holder to be indemnified or insured
pursuant to this Article 57 shall be prospective in effect, and shall not affect the Company’s obligation or ability to indemnify or insure an Office Holder for any act or omission occurring prior to such amendment, unless otherwise
provided by the Companies Law, the Securities Law or such other applicable law.
|
NOTICES
| 58. |
Notices
|
(a) Any
written notice or other document may be served by the Company upon any shareholder either personally, or by facsimile transmission, or by sending it by prepaid mail (airmail or overnight air courier, if being sent from any country to a
destination outside such country) or electronic mail addressed to such shareholder at his address as set forth in the Register of Shareholders or such other address as he may have designated in writing for the receipt of notices and other
documents. Any written notice or other document may be served by any shareholder upon the Company by tendering the same in person to the Secretary or the General Manager of the Company at the principal office of the Company, or by facsimile
transmission, or by sending it by prepaid registered mail (airmail or overnight air courier if being sent from any country outside Israel) to the Company at its registered office. Any such notice or other document shall be deemed to have been
served (i) in the case of mailing, three (3) days after it has been posted, or when actually received by the addressee if sooner than three (3) days, after it has been posted; (ii) in the case of overnight air courier, on the second business day
following the day sent; (iii) in the case of personal delivery, on the date such notice was actually tendered in person to such shareholder (or to the Secretary or the General Manager); (iv) in the case of facsimile transmission, on the date on
which the sender receives automatic electronic confirmation that such notice was successfully transmitted; or (v) in the case of electronic mail, on the date on which the sender receives telephonic or written confirmation that such notice was
received. If a notice is, in fact, received by the addressee, it shall be deemed to have been duly served, when received, notwithstanding that it was defectively addressed or failed, in some respect, to comply with the provisions of this
Article 58(a).
- 20 -
(b) All
notices to be given to the shareholders shall, with respect to any share to which Persons are jointly entitled, be given to whichever of such Persons is named first in the Register of Shareholders, and any notice so given shall be sufficient
notice to the holders of such share.
(c) Any
shareholder whose address is not specified in the Register of Shareholders, and who shall not have designated in writing an address for the receipt of notices, shall not be entitled to receive any notice from the Company.
RIGHTS OF SIGNATURE
| 59. |
Rights of Signature
|
The Board of Directors shall be entitled to authorize any Person or Persons (who need not be officers or Directors) to act and sign on
behalf of the Company, and the acts and signature of such Person(s) on behalf of the Company with the Company’s stamp or printed name shall bind the Company insofar as such Person(s) acted and signed within the scope of his or their authority.
WINDING UP
|
60.
|
Winding Up
|
(a) Notwithstanding
anything to the contrary in these Articles, a Shareholders Resolution approved by 75% of the voting shares represented at such meeting in person or by proxy is required to approve the voluntary winding up of the Company.
(b) If
the Company be wound up, liquidated or dissolved, then, subject to applicable law and to the rights of the holders of shares with special rights upon winding up, if any, the assets of the Company legally available for distribution among the
shareholders, after payment of all debts and other liabilities of the Company, shall be distributed to the shareholders in proportion to the nominal value of their respective holdings of the shares in respect of which such distribution is being
made, provided, however, that if a class of shares has no nominal value, then the assets of the Company legally available for distribution among the holders of such class shall be distributed to them in proportion of their respective holdings of
the shares in respect of which such distribution is made.
JURISDICTION
|
61.
|
Jurisdiction
|
(a) Unless
the consent of the Company in writing has been received to the election of an alternative forum, and with the exception of all matters concerning a claimant or class of claimants having the right to file an action in the courts in Israel, in
relation to causes of action by virtue of the U.S. Securities Act of 1933 (as amended), the federal district courts of the United States of America shall be the exclusive forum for resolving any action the causes of which result from the U.S.
Securities Act of 1933 (as amended).
(b) Unless
the consent of the Company in writing has been received to the election of an alternative forum, the Tel-Aviv District Court will constitute the exclusive forum for: (a) a derivative action or derivative proceeding that is filed in the name of
the Company; (b) any action grounded in a breach of fiduciary duty of a director, officeholder or other employee of the Company towards the Company or towards the shareholders of the Company; or (c) any action the cause of which results from any
provision of the Companies Law or the Securities Law. Any person or entity purchasing or otherwise acquiring, or holding, any interest in the shares of the Company will be deemed to be parties to whom notice has been given of the provisions of
these clauses and as parties who have given their consent to the provisions of these clauses.
***
- 21 -
Exhibit 31.3
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO
EXCHANGE ACT RULE 13A-14(A)/15D-14(A)
AS ADOPTED PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Larry Jasinski, certify that:
| 1. |
I have reviewed this Amendment No. 1 on Form 10-K/A of ReWalk Robotics Ltd.;
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| 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.
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Date: April 29, 2024
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/s/ Larry Jasinski | ||
| Larry Jasinski | |||
| Chief Executive Officer |
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| (Principal Executive Officer) |
Exhibit 31.4
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO
EXCHANGE ACT RULE 13A-14(A)/15D-14(A)
AS ADOPTED PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Michael Lawless , certify that:
| 1. |
I have reviewed this Amendment No. 1 on Form 10-K/A of ReWalk Robotics Ltd.;
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| 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.
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| Date: April 29, 2024 | /s/ Michael Lawless | ||
| Michael Lawless | |||
| Chief Financial Officer |
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| (Principal Financial Officer) |