Exhibit 97
Innoviz
Technologies Ltd.
Clawback
Policy
In accordance with the applicable rules of the Nasdaq Stock Market (the “Nasdaq”), Section 10D and Rule 10D-1 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 10D-1”), the Board of Directors (the “Board”) of Innoviz Technologies Ltd., a company organized under the laws of the State of
Israel (the “Company”), has adopted this Policy (the “Policy”) to provide for the recovery of erroneously awarded Incentive-based
Compensation from Executive Officers. Each capitalized term used and not defined shall have the meaning set forth in Section VIII below.
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II. |
Recovery of Erroneously Awarded Compensation
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(1) In the event of an Accounting Restatement, the Company will reasonably promptly recover the Erroneously Awarded Compensation Received in accordance with the
applicable rules of Nasdaq (“Nasdaq Rules”) and Rule 10D-1 as follows:
(i) After an Accounting Restatement, the Compensation Committee of the Board of Directors (the “Committee”)
shall determine the amount of any Erroneously Awarded Compensation Received by each Executive Officer, if any, and shall promptly notify each Executive Officer with a written notice containing the amount of any Erroneously Awarded Compensation
and a demand for repayment or return of such compensation, as applicable.
(a) For Incentive-based Compensation based on (or derived from) the Company’s share price or total shareholder return, where the amount of Erroneously Awarded
Compensation is not subject to mathematical recalculation directly from the information in the applicable Accounting Restatement:
(x) The amount to be repaid or returned shall be determined by the Committee based on a reasonable estimate of the effect of the Accounting Restatement on the
Company’s share price or total shareholder return upon which the Incentive-based Compensation was Received; and
(y) The Company shall maintain documentation of the determination of such reasonable estimate and provide the relevant documentation as required to the Nasdaq.
(ii) The Committee shall have discretion to determine the appropriate means of recovering Erroneously Awarded Compensation based on the particular facts and
circumstances, which may include, without limitation, reduction or cancellation by the Company or an affiliate of the Company of Incentive-Based Compensation or Erroneously Awarded Compensation, reimbursement or repayment by any person subject to
this Policy of the Erroneously Awarded Compensation, and, to the extent permitted by law, an offset of the Erroneously Awarded Compensation against other compensation payable by the Company or an affiliate of the Company to such person.
Notwithstanding the foregoing, except as set forth in Subsection (2) below, in no event may the Company accept an amount that is less than the amount of Erroneously Awarded Compensation in satisfaction of an Executive Officer’s obligations
hereunder.
(iii) To the extent that the Executive Officer has already reimbursed the Company for any Erroneously Awarded Compensation Received under any duplicative recovery
obligations established by the Company or applicable law, including, without limitation, the Company’s Executive Compensation Policy adopted in accordance with Israeli law, it shall be appropriate for any such reimbursed amount to be credited to
the amount of Erroneously Awarded Compensation that is subject to recovery under this Policy.
(iv) To the extent that an Executive Officer fails to repay all Erroneously Awarded Compensation to the Company when due, the Company shall take all actions
reasonable and appropriate to recover such Erroneously Awarded Compensation from the applicable Executive Officer. The applicable Executive Officer shall be required to reimburse the Company for any and all expenses reasonably incurred (including
reasonable legal fees) by the Company in recovering such Erroneously Awarded Compensation in accordance with the immediately preceding sentence.
(2) Notwithstanding anything herein to the contrary, the Company shall not be required to take the actions contemplated by Subsection (1) above if the Committee
determines that recovery would be impracticable and any of the following three conditions are met:
(i) The Committee has determined that the direct expenses paid to a third party to assist in enforcing the Policy would exceed the amount to be recovered. Before
making this determination, the Company must make a reasonable attempt to recover the Erroneously Awarded Compensation, documented such attempt(s) and provided such documentation to the Nasdaq;
(ii) Recovery would violate the Israeli law, provided that, before determining that it would be impracticable to recover any amount of Erroneously Awarded
Compensation based on violation of the Israeli law, the Company has obtained an opinion of Israeli counsel, acceptable to Nasdaq, that recovery would result in such a violation and a copy of the opinion is provided to Nasdaq; or
(iii) Recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet
the requirements of Section 401(a)(13) or Section 411(a) of the Internal Revenue Code of 1986, as amended, and regulations thereunder.
(3) Recovery shall be required in accordance with this Section II regardless of whether the applicable Executive Officer engaged in misconduct or otherwise caused
or contributed to the requirement for the Accounting Restatement and regardless of whether or when restated financial statements are filed by the Company.
(4) For clarity, the recovery of Erroneously Awarded Compensation under this Policy will not give rise to any person’s right to voluntarily terminate employment for
“good reason,” or due to a “constructive termination” (or any similar term of like effect) under any plan, program or policy of or agreement with the Company or any of its affiliates.
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III. |
Disclosure Requirements
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The Company shall file all disclosures with respect to this Policy required by
applicable U.S. Securities and Exchange Commission (“SEC”) filings and rules.
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IV. |
Prohibition of Indemnification and Liability
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The Company shall not be permitted to insure or indemnify any Executive Officer
against (i) the loss of any Erroneously Awarded Compensation that is repaid, returned or recovered pursuant to the terms of this Policy, or (ii) any claims relating to the Company’s enforcement of its rights under this Policy. None of the Company, an
affiliate of the Company or any member of the Committee or the Board shall have any liability to any person as a result of actions taken under this Policy.
Further, the Company shall not enter into any agreement that exempts any
Incentive-based Compensation that is granted, paid or awarded to an Executive Officer from the application of this Policy or that waives the Company’s right to recovery of any Erroneously Awarded Compensation, and this Policy shall supersede any such
agreement (whether entered into before, on or after the Effective Date of this Policy).
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V. |
Administration and Interpretation
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This Policy shall be administered by the Committee, and, subject to any permitted review
by the Nasdaq pursuant to the Nasdaq Rules, any determinations made by the Committee shall be final and binding on all affected individuals. The Board of Directors of the Company (the “Board”) may re-vest in itself the authority to administer,
interpret and construe this Policy in accordance with applicable law, and in such event references herein to the “Committee” shall be deemed to be references to the Board.
The Committee is authorized to interpret and construe this Policy and to make all
determinations necessary, appropriate, or advisable for the administration of this Policy and for the Company’s compliance with Nasdaq Rules, Section 10D, Rule 10D-1 and any other applicable law, regulation, rule or interpretation of the SEC or
Nasdaq promulgated or issued in connection therewith (the “Applicable Rules”). The Committee may delegate administrative duties with respect to this Policy to one or more directors or
employees of the Company, as permitted under applicable law, including any Applicable Rules.
This Policy will be interpreted and applied in a manner that is consistent with the
requirements of the Applicable Rules, and to the extent this Policy is inconsistent with such Applicable Rules, it shall be deemed amended to the minimum extent necessary to ensure compliance therewith.
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VI. |
Amendment; Termination
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The Committee may amend this Policy from time to time in its discretion and shall
amend this Policy as it deems necessary. Notwithstanding anything in this Section VI to the contrary, no amendment or termination of this Policy shall be effective if such amendment or termination would (after taking into account any actions taken by
the Company contemporaneously with such amendment or termination) cause the Company to violate any federal securities laws, SEC rule, Nasdaq rule or Israeli law. This Policy will terminate automatically when the Company does not have a class of
securities listed on a national securities exchange or association in the United States.
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VII. |
Other Recovery Rights
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This Policy shall be binding and enforceable against all Executive Officers and, to
the extent required by applicable law or guidance from the SEC or Nasdaq, their beneficiaries, heirs, executors, administrators or other legal representatives. The Committee intends that this Policy will be applied to the fullest extent required by
applicable law. Any employment agreement, equity award agreement, compensatory plan or any other agreement or arrangement with an Executive Officer shall be deemed to include, as a condition to the grant of any benefit thereunder, an agreement by the
Executive Officer to abide by the terms of this Policy. Any right of recovery under this Policy is in addition to, and not in lieu of, any other remedies or rights of recovery that may be available to the Company under applicable law, regulation or
rule or pursuant to the terms of any policy of the Company, including, without limitation, the Company’s Executive Compensation Policy adopted in accordance with Israeli law, or any provision in any employment agreement, equity award agreement,
compensatory plan, agreement or other arrangement.
The provisions in this Policy are intended to be applied to the fullest extent of the
law; provided, however, to the extent that any provision of this Policy is found to be unenforceable or invalid under any applicable law, such provision will be applied to the maximum extent permitted, and shall automatically be deemed amended in a
manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law.
Each Executive Officer shall sign an acknowledgment pursuant to which such Executive
Officer will agree to be bound by the terms of, and comply with, this Policy; however, any Executive Officer’s failure to sign any such acknowledgment shall not negate the application of this Policy to the Executive Officer.
For purposes of this Policy, the following capitalized terms shall have the meanings
set forth below.
(1) “Accounting Restatement” means an accounting restatement to correct the material noncompliance of
the Company with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial
statements (a “Big R” restatement), or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period (a “little r” restatement).
(2) “Clawback Eligible Incentive Compensation” means all Incentive-based Compensation Received by an
Executive Officer (i) on or after the effective date of the applicable Nasdaq rules, (ii) after beginning service as an Executive Officer, (iii) who served as an Executive Officer at any time during the applicable performance period relating to
any Incentive-based Compensation (whether or not such Executive Officer is serving at the time the Erroneously Awarded Compensation is required to be repaid to the Company), (iv) while the Company has a class of securities listed on a national
securities exchange or a national securities association, and (v) during the applicable Clawback Period (as defined below).
(3) “Clawback Period” means, with respect to any Accounting Restatement, the three completed fiscal
years of the Company immediately preceding the Restatement Date (as defined below), and if the Company changes its fiscal year, any transition period of less than nine months within or immediately following those three completed fiscal years.
(4) “Erroneously Awarded Compensation” means, with respect to each Executive Officer in connection with
an Accounting Restatement, the amount of Clawback Eligible Incentive Compensation that exceeds the amount of Incentive-based Compensation that otherwise would have been Received based on a restated Financial Reporting Measure had it been
determined based on the restated amounts, determined on a pre-tax basis in accordance with the Applicable Rules.
(5) “Executive Officer” means each individual who is currently or was previously designated as the
Company’s principal executive officer, principal financial officer or principal accounting officer, or was otherwise identified by the Company in Item 6.A of the Company’s Annual Report on Form 20-F filed with the SEC as a member of the Company’s
senior management (as defined in Form 20-F).
(6) “Financial Reporting Measures” means measures that are determined and presented in accordance with
the accounting principles used in preparing the Company’s financial statements, and all other measures that are derived wholly or in part from such measures. Share price and total shareholder return (and any measures that are derived wholly or in
part from share price or total shareholder return) shall, for purposes of this Policy, be considered Financial Reporting Measures. For the avoidance of doubt, a Financial Reporting Measure need not be presented in the Company’s financial
statements or included in a filing with the SEC.
(7) “Incentive-based Compensation” means any compensation that is granted, earned or vested based wholly
or in part upon the attainment of a Financial Reporting Measure and Received by a person: (a) after beginning service as an Officer; (b) who served as an Officer at any time during the performance period for that compensation; (c) while the
issuer has a class of its securities listed on a national securities exchange or association; and (d) during the applicable Clawback Period.
(8) “Received” means, with respect to any Incentive-based Compensation, actual or deemed receipt, and
Incentive-based Compensation shall be deemed received in the Company’s fiscal period during which the Financial Reporting Measure specified in the Incentive-based Compensation award is attained, even if the grant, vesting or payment of the
Incentive-based Compensation to the Executive Officer occurs after the end of that period.
(9) “Restatement Date” means the earlier to occur of (i) the date the Board, a committee of the Board or
the officers of the Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement, or (ii) the date a court, regulator or
other legally authorized body directs the Company to prepare an Accounting Restatement.
Effective as of September 12, 2023.
Exhibit
Attestation
and Acknowledgment of Clawback Policy
By my signature below, I acknowledge and agree that:
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1. |
I have received and read the attached Clawback Policy (the “Policy”) of Innoviz technologies Ltd. (the “Company”).
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2. |
For good and valuable consideration, the receipt of which is acknowledged, I hereby agree to abide by all of the terms of this Policy both during and after my employment with the Company and any subsidiary of
the Company and agree that compensation I receive may be subject to reduction, cancellation, forfeiture and/or recoupment to the extent necessary to comply with the Policy, notwithstanding any other agreement to the contrary.
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3. |
I further acknowledge and agree that I am not entitled to indemnification in connection with any enforcement of the Policy against me and expressly waive any rights to such indemnification under the Company’s
organizational documents or otherwise.
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Signature: _______________________
Name:___________________________
Date: ___________________________
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