Amended Annual and Transition Report (foreign Private Issuer) (20-f/a)
June 17 2021 - 5:00PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F/A
(Amendment No. 1)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
OR
For the transition period from _____ to ______
☐ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of event requiring this shell company report ________________
Commission file number 001-35165
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BrainsWay Ltd.
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(Exact name of Registrant as specified in its charter)
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N/A
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(Translation of Registrant’s name into English)
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Israel
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(Jurisdiction of incorporation or organization)
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19 Hartum Street, Bynet Building, 3rd Floor, Har HaHotzvim, Jerusalem, 9777518, Israel
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(Address of principal executive offices)
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R. Scott Areglado, Senior Vice President and Chief Financial Officer
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300 Knickerbocker Road, Cresskill, New Jersey, 07626
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Tel: +1-844-386-7001
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(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
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Securities registered or to be registered pursuant to Section
12(b) of the Act.
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Title of class
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Trading Symbol(s)
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Name of each exchange on which registered
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American Depositary Shares, each representing two Ordinary Shares (1)
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BWAY
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NASDAQ Global Market
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Ordinary Shares, par value NIS 0.04 per share
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BWAY
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Tel Aviv Stock Exchange
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(1) Evidenced by American Depositary Receipts.
Securities registered or to be registered pursuant to Section
12(g) of the Act:
Securities for which there is a reporting obligation pursuant
to Section 15(d) of the Act:
Indicate the number of outstanding shares of each of the issuer’s classes of
capital or common stock as of the close of the period covered by the annual report: 22,250,534 Ordinary Shares.
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act.
Yes ☐ No ☒
If this report is an annual or transition report, indicate by
check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act 1934.
Yes ☐ No ☒
Indicate by 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.
Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically
every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during
the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated
filer," accelerated filer,” 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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Non-accelerated filer ☒
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Emerging growth company ☒
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If an emerging growth company that prepares its financial statements
in accordance with U.S. GAAP, 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 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its
audit report. ☐
Indicate by check mark which basis of accounting the registrant
has used to prepare the financial statements included in this filing:
U.S. GAAP ☐
International Financing Reporting Standards as issued by the International
Accounting Standards Board ☒ Other ☐
If “Other” has been checked in response to the previous
question, indicate by check mark which financial statement item the registrant has elected to follow.
Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the
registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
TABLE OF CONTENTS
EXPLANATORY NOTE
This Amendment No. 1 on Form 20-F/A (the “Amendment”)
amends Part II Item 15. Controls and Procedures of the Annual Report on Form 20-F for the year ended December 31, 2020, which was
originally filed with the Securities and Exchange Commission on April 19, 2021(the “Original Annual Report”). We have
modified Part II Item 15. Controls and Procedures in this Amendment in response to a comment letter received from the Securities
and Exchange Commission regarding management’s assessment on internal control over financial reporting for the fiscal year
ended December 31, 2020.
In addition, we are including current Exhibits 12.1 and 12.2, the
certifications of our Chief Executive Officer and Chief Financial Officer required by Sections 302 of the Sarbanes-Oxley Act of
2002 as of the date of this Amendment.
Except as described above, we have not modified or updated any disclosures
presented in the Original Annual Report. This Amendment does not reflect events occurring after the filing of the Original Annual
Report or modify or update those disclosures, including the exhibits to the Original Annual Report. Accordingly, this Amendment
should be read in conjunction with our filings with the Securities and Exchange Commission subsequent to the filing of the Original
Annual Report.
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ITEM 15.
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CONTROLS AND PROCEDURES
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(a) Disclosure Controls and Procedures
We performed an evaluation of the effectiveness of our disclosure
controls and procedures that are designed to ensure that information required to be disclosed on Form 20-F and filed with the SEC
is recorded, processed, summarized, and reported timely within the time period specified in the SEC’s rules and forms. Disclosure
controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be
disclosed by us in the reports that we file or submit under the Exchange Act, is accumulated and communicated to our management,
including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to
allow timely decisions regarding required disclosure. There can be no assurance that our disclosure controls and procedures will
detect or uncover all failures of persons within the company to disclose information otherwise required to be set forth in our
reports. Nevertheless, our disclosure controls and procedures are designed to provide reasonable assurance of achieving the desired
control objectives. Based on our evaluation, our management, including our Chief Executive Officer and Chief Financial Officer,
have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) as
of the end of the period covered by this report are effective at such reasonable assurance level.
(b) Management’s Annual Report on Internal Control over
Financial Reporting
Our management, under the supervision of our Chief Executive Officer
and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over our financial reporting,
as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act of 1934, as amended. The Company’s internal
control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Internal control over financial reporting includes policies and procedures that:
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pertain to the maintenance of records that in reasonable detail accurately and fairly reflect our
transactions and asset dispositions;
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provide reasonable assurance that transactions are recorded as necessary to permit the preparation
of our financial statements in accordance with generally accepted accounting principles;
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provide reasonable assurance that receipts and expenditures are made only in accordance with authorizations
of our management and board of directors (as appropriate); and
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provide reasonable assurance regarding the prevention or timely detection of unauthorized acquisition,
use or disposition of assets that could have a material effect on our financial statements.
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Due to its inherent limitations, internal control over financial
reporting may not prevent or detect misstatements. In addition, projections of any evaluation of effectiveness to future periods
are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
Under the supervision and with the participation of our management,
including our Chief Executive Officer and Chief Financial Officer, we assessed the effectiveness of our internal control over financial
reporting as of December 31, 2020, based on the framework for Internal Control-Integrated Framework set forth by The Committee
of Sponsoring Organizations of the Treadway Commission (COSO) (2013). Based on our assessment and this framework, our management
concluded that the Company’s internal control over financial reporting was effective as of December 31, 2020.
(c) Attestation Report of Registered Public Accounting Firm
This Annual Report does not include an attestation report of our
independent registered public accounting firm regarding internal control over financial reporting due to an exemption for emerging
growth companies provided in the JOBS Act.
(d) Changes in Internal Control Over Financial
Reporting
There were no changes in our internal control over financial reporting
that occurred during the year ended December 31, 2020, that have materially affected or are reasonably likely to materially affect
our internal control over financial reporting.
The following Exhibits are filed as part of this Form 20-F/A:
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Exhibit Number
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Exhibit Description
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1.1
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Articles of Association of the Registrant, as amended (unofficial English translation).
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2.1
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Form
of Deposit Agreement between BrainsWay Ltd., The Bank of New York Mellon as Depositary, and owners and holders from
time to time of ADSs issued thereunder (incorporated by reference).
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2.2
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Form
of American Depositary Receipt (incorporated by reference).
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2.3
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Description
of Share Capital (incorporated by reference).
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4.1
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BrainsWay Amended and Restated 2019 Share Incentive Plan
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4.2
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Form
of Letter of Exculpation and Indemnification (incorporated by reference).
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4.3
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BrainsWay
Compensation Policy (incorporated by reference).
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4.4
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Employment
Agreement, dated April 3, 2006, by and between Brain Research and Development Services Ltd. and Dr. Yiftach
Roth, as amended by First Amendment to Employment Agreement, dated May 9, 2006 (incorporated by reference).
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4.5
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Employment
Agreement, dated November 24, 2019, between BrainsWay Ltd. and Christopher Von Jako (incorporated by reference).
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4.6
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Employment
Agreement, dated July 25, 2019, between BrainsWay Inc. and Hadar Levy (incorporated by reference).
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4.7
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Patent
License Agreement, dated July 7, 2003, by and between BrainsWay, Inc. and the United States Public Health Service
(incorporated by reference).
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4.8
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Patent
License Amendment, dated August 24, 2005, by and between BrainsWay, Inc. and the United States Public Health Service
(incorporated by reference).
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4.9
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Second
Amendment to Patent License Agreement, dated April 17, 2008, by and between BrainsWay, Inc. and the United States
Public Health Service (incorporated by reference).
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4.10
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Research
and License Agreement, dated June 2, 2005, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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4.11
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First
Addendum Agreement, dated August 19, 2007, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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4.12
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Second
Addendum Agreement, dated January 18, 2009, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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4.13
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Third
Addendum Agreement, dated March 23, 2010, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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4.14
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Fourth
Addendum Agreement, dated November 12, 2009, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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4.15
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First
Amendment to Fourth Addendum Agreement, dated May 11, 2010, by and between BrainsWay, Inc. and Yeda Research and
Development Company Ltd. (incorporated by reference).
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4.16
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Fifth
Addendum Agreement, dated February 22, 2018, by and between BrainsWay, Inc. and Yeda Research and Development Company Ltd.
(incorporated by reference).
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8.1
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List
of Subsidiaries (incorporated by reference).
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12.1*
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Certification by Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
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12.2*
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Certification by Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
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13
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Certification by Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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15.1
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Consent of Kost Forer Gabbay & Kasierer, Member Firm of Ernst & Young Global.
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101
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The following financial statements from the Company’s
20-F for the fiscal year ended December 31, 2020 formatted in XBRL: (i) Consolidated Statements of Comprehensive Loss,
(ii) Consolidated Statements of Financial Position, (iii) Consolidated Statements of Changes in Equity, (iv) Consolidated
Statements of Cash Flows, and (v) Notes to the Consolidated Financial Statements.
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* Filed herewith.
SIGNATURE
The Registrant hereby certifies that it meets all of the requirements
for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
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BRAINSWAY LTD.
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By:
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/s/ Christopher R. von Jako, Ph.D.
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Name: Christopher R. von Jako, Ph.D.
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Title: Chief Executive Officer and President
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By:
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/s/ R. Scott Areglado
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Name: R. Scott Areglado
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Title: Senior Vice President and Chief Financial Officer
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Date: June 17, 2021
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