NAOV NanoVibronix Inc

SELLING STOCKHOLDERS

On June 21, 2019, we entered into the June SPA with entities controlled by Mr. Packer and entities controlled by Mr. Hirshman, each of whom was a beneficial owner of more than 5.0% of our common stock, relating to the sale to such stockholders in a private placement of 1,600,000 shares of our Series E Preferred Stock, and seven year warrants to purchase 1,600,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “June Offering”), for aggregate gross proceeds of $3,200,000 (excluding the exercise of the warrants issued in the June Offering). The June Offering closed on June 21, 2019.

On July 31, 2019, we entered into the July Preferred SPA with an entity controlled by Mr. Packer relating to the sale to such stockholder of 210,000 shares of our Series E Preferred Stock and seven year warrants to purchase 210,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “July Preferred Offering”), for gross proceeds of $420,000 (excluding the exercise of the warrants issued in the July Preferred Offering). The July Preferred Offering closed on July 31, 2019.

On July 31, 2019, we entered into the July Common SPA with certain investors (selling stockholders other than Mr. Packer, Mr. Hirshman and Mr. Fashek) relating to the sale of 290,000 shares of our common stock and seven year warrants to purchase 290,000 shares of our common stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “July Common Offering”), for gross proceeds of $580,000 (excluding the exercise of the warrants issued in the July Common Offering). The July Common Offering closed on July 31, 2019.

On August 27, 2019, we entered into the Affiliate SPA with Christopher Fashek, one of our directors, relating to the sale of 25,000 shares of our common stock, and seven year warrants to purchase 25,000 shares of our common stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “Affiliated Offering”) for gross proceeds of $50,000 (excluding the exercise of the warrants issued in the Affiliated Offering). The Affilaited Offering closed on August 27, 2019. The shares of common stock and the common stock warrants sold to Mr. Fashek were not released until after the Affiliate Offering Approval was obtained from our stockholders.

Up to 4,250,000 shares of our common stock are currently being offered by the selling stockholders under this prospectus. This reflects the sum of (i) 1,600,000 shares of common stock issuable upon conversion of the Series E Preferred Stock issued in the June Offering, (ii) 1,600,000 shares of common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of the warrants to purchase Series E Preferred Stock issued in the June Offering, (iii) 210,000 shares of common stock issuable upon conversion of the Series E Preferred Stock issued in the July Preferred Offering, (iv) 210,000 shares of common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of the warrants to purchase Series E Preferred Stock issued in the July Preferred Offering, (v) 290,000 shares of common stock issued in the July Common Offering, (vi) 290,000 shares of common stock issuable upon exercise of the common stock warrants issued in the July Common Offering, (vii) 25,000 shares of common stock issued in the Affiliated Offering, and (viii) 25,000 shares of common stock issuable upon exercise of the warrants issued in the Affiliated Offering.

Terms of the Series E Preferred Stock

On June 21, 2019, we filed a Certificate of Designation of the Series E Preferred Stock (the “Original Certificate of Designation”) with the Secretary of State of the State of Delaware (the “Secretary of State”). The Original Certificate of Designation was effective upon filing with the Secretary of State and designated the Series E Preferred Stock. On July 31, 2019 and November 18, 2019, we filed with the Secretary of State an Amended and Restated Certificates of Designation (as amended and restated on November 15, 2019, the “Amended Certificate of Designation”) which were effective upon filing with the Secretary of State. Pursuant to the Amended Certificate of Designation, 1,999,494 shares are designated as Series E Preferred Stock. As of January 8, 2020, we have 1,825,000 shares of Series E Preferred Stock outstanding.

The Amended Certificate of Designation provided that, among other things, the Series E Preferred Stock is not convertible into our common stock until we receive Stockholder Approval at a special meeting of resolutions providing for the issuance of all of the shares of common stock issuable upon conversion of the Series E Preferred Stock in accordance with applicable law and the rules and regulations of the Nasdaq Stock Market. On November 18, 2019, we obtained the Stockholder Approval.

Each share of Series E Preferred Stock is convertible at any time and from time to time after the Stockholder Approval Date at the option of a holder of Series E Preferred Stock into one share of our common stock, provided that each holder would be prohibited from converting Series E Preferred Stock into shares of our common stock if, as a result of such conversion, any such holder, together with its affiliates, would own more than 9.99% of the total number of shares of our common stock then issued and outstanding. This limitation may be waived with respect to a holder upon such holder’s provision of not less than 61 days’ prior written notice to us.

Upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, each holder of the Series E Preferred Stock shall be entitled to receive the amount of cash, securities or other property to which such holder would be entitled to receive with respect to such shares of Series E Preferred Stock if such shares had been converted to our common stock immediately prior to such liquidation.

Shares of Series E Preferred Stock are not entitled to receive any dividends, unless and until specifically declared by the board of directors. However, holders of Series E Preferred Stock are entitled to receive dividends on shares of Series E Preferred stock equal (on an as-if-converted-to-common-stock basis) to and in the same form as dividends actually paid on shares of the common stock when such dividends are specifically declared by the board of directors. We are not obligated to redeem or repurchase any shares of Series E Preferred Stock. Shares of Series E Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous fund provisions.

Subject to the beneficial ownership limitations, each holder of Series E Preferred Stock are entitled to the number of votes equal to the number of shares of our common stock equal to the voting ratio set forth in the Amended Certificate of Designation. The current voting ratio, for each share of Series E Preferred Stock is equal to $2.00 divided by $3.53. Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series E Preferred Stock held by each Series E Holder could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward).

Terms of the Warrants to Purchase Series E Preferred Stock

As of January 8, 2020, we have warrants to purchase 1,810,000 shares of Series E Preferred Stock outstanding.

The warrants to purchase Series E Preferred Stock issued in the June Offering and the July Preferred Offering are immediately exercisable and can be exercised at any time from time to time for seven years following the date of issuance, at an exercise price of $2.50 per share of Series E Preferred Stock, subject to certain adjustments as set forth in the warrants. If at any time after the six month anniversary of the date of issuance of the warrants, there is no effective registration statement under the Securities Act registering the resale of the common stock underlying the Series E Preferred Stock by the selling shareholders, then the warrants may also be exercised, in whole or in part, by means of a cashless exercise.

Terms of the Warrants to Purchase Common Stock Sold in the July Common Offering and the Affiliated Offering

As of January 8, 2020, warrants to purchase 290,000 shares of common stock sold in the July Common Offering and warrants to purchase 25,000 shares of common stock sold in the Affiliated Offering are outstanding.

The warrants to purchase common stock issued in the July Common Offering and the Affiliated Offering are exercisable and can be exercised at any time from time to time from the sixth month anniversary of the date of issuance until seven years following the date of issuance, at an exercise price of $2.50 per share of common stock, subject to certain adjustments as set forth in the warrants; provided that each holder would be prohibited from exercising the common stock warrant if, as a result of such conversion, any such holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding. This limitation may be increased or decreased, but in no event exceed 4.99%, with respect to a holder upon such holder’s provision of not less than 61 days’ prior written notice to us. If at any time after the six month anniversary of the date of issuance of the warrants, there is no effective registration statement under the Securities Act registering the resale of the common stock underlying the Series E Preferred Stock by the selling shareholders, then the warrants may also be exercised, in whole or in part, by means of a cashless exercise.

Registration Rights

June SPA and July Preferred SPA

In the June SPA and the July Preferred SPA, we agreed to prepare and file with the Securities and Exchange Commission within 60 days of the Stockholder Approval Date a registration statement covering the resale of the shares of common stock issuable upon conversion of the Series E Preferred Stock and the shares of common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of the warrants, and cause such registration statement to become effective under the Securities Act, within 120 days of the Stockholder Approval Date if there is no review of the registration statement by the Securities and Exchange Commission or within 150 days of the Stockholder Approval Date if there is a review of the registration statement by the Securities and Exchange Commission. We obtained the Stockholder Approval on November 18, 2019.

If the registration statement (i) is not filed within 60 days after the Stockholder Approval Date, (ii) is not declared effective within 120 days (or 150 days, as applicable) of the Stockholder Approval Date, or (iii) ceases for any reason to be effective at any time prior to the expiration of its effectiveness period (as defined in the June SPA and the July Preferred SPA, as applicable) for more than 20 consecutive trading days in any 12 month period, then we are required to pay to each investor who holds registrable securities (as defined in the June SPA and the July Preferred SPA, as applicable) an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the purchase price paid by such investor for the Series E Preferred Stock and the warrants to purchase shares of Series E Preferred Stock per month until the registration statement is filed or declared effective (as applicable); provided that the total amount of payments shall not exceed, when aggregated with all such payments paid to all investors party to the respective securities purchase agreement, 5% of the aggregate purchase price of the Series E Preferred Stock and warrants to purchase shares of Series E Preferred Stock sold under that securities purchase agreement.

We have also agreed that, upon this registration statement being declared effective, we will use our reasonable best efforts to maintain the effectiveness of this registration statement until the shares of common stock may be resold by the selling stockholders pursuant to Rule 144 of the Securities Act without volume limitations.

July Common SPA

In the July Common SPA, we agreed to prepare and file with the Securities and Exchange Commission within 60 days of the Stockholder Approval Date a registration statement covering the resale of the shares of common stock and the shares of common stock issuable upon exercise of the common stock warrants sold in the July Common Offering, and cause such registration statement to become effective under the Securities Act, within 120 days of the Stockholder Approval Date if there is no review of the registration statement by the Securities and Exchange Commission or within 150 days of the Stockholder Approval Date if there is a review of the registration statement by the Securities and Exchange Commission. We obtained the Stockholder Approval on November 18, 2019.

If the registration statement (i) is not filed within 60 days after the Stockholder Approval Date, (ii) is not declared effective within 120 days (or 150 days, as applicable) of the Stockholder Approval Date, or (iii) ceases for any reason to be effective at any time prior to the expiration of its effectiveness period (as defined in the July Common SPA) for more than 20 consecutive trading days in any 12 month period, then we are required to pay to each investor who holds registrable securities (as defined in the July Common SPA) an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the purchase price paid by such investor for the common stock and common stock warrants per month until the registration statement is filed or declared effective (as applicable); provided that the total amount of payments shall not exceed, when aggregated with all such payments paid to all investors party to the July Common SPA, 5% of the aggregate purchase price of the securities sold under the July Common SPA.

We have also agreed that, upon this registration statement being declared effective, we will use our reasonable best efforts to maintain the effectiveness of this registration statement until the shares of common stock may be resold by the selling stockholders pursuant to Rule 144 of the Securities Act without volume limitations.

Affiliate SPA

In the Affiliate SPA, we agreed to prepare and file with the Securities and Exchange Commission within 60 days of the Affiliate Offering Approval Date a registration statement covering the resale of the shares of common stock and the shares of common stock issuable upon exercise of the common stock warrants sold in the Affiliate Offering, and cause such registration statement to become effective under the Securities Act, within 120 days of the Affiliate Offering Approval Date if there is no review of the registration statement by the Securities and Exchange Commission or within 150 days of the Affiliate Offering Approval Date if there is a review of the registration statement by the Securities and Exchange Commission. We obtained the Affiliate Offering Approval on November 18, 2019.

If the registration statement (i) is not filed within 60 days after the Affiliate Offering Approval Date, (ii) is not declared effective within 120 days (or 150 days, as applicable) of the Affiliate Offering Approval Date, or (iii) ceases for any reason to be effective at any time prior to the expiration of its effectiveness period (as defined in the Affiliate SPA) for more than 20 consecutive trading days in any 12 month period, then we are required to pay to each investor who holds registrable securities (as defined in the Affiliate SPA) an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the purchase price paid by such investor for the common stock and common stock warrants per month until the registration statement is filed or declared effective (as applicable); provided that the total amount of payments shall not exceed, when aggregated with all such payments paid to all investors party to the Affiliate SPA, 5% of the aggregate purchase price of the securities sold under the Affiliate SPA.

We have also agreed that, upon this registration statement being declared effective, we will use our reasonable best efforts to maintain the effectiveness of this registration statement until the shares of common stock may be resold by the selling stockholders pursuant to Rule 144 of the Securities Act without volume limitations.

Relationships with the Selling Stockholders

Each of Mr. Packer and Mr. Hirschman currently beneficially owns 9.99% of our common stock. Mr. Fashek is one of our directors.

The selling stockholders that participated in the July Common Offering (selling stockholders other than Mr. Packer, Mr. Hirschman and Mr. Fashek) paid a price per share of common stock and a warrant to purchase common stock of $2.00 per unit.

Mr. Fashek has served as our director and chairman of the board since October 2016. On October 13, 2016, we entered into an agreement with Mr. Fashek to serve as the chairman of our board of directors. Under this agreement Mr. Fashek was paid $100,000 per year payable in semi-monthly installments. On November 1, 2017, the Compensation committee voted to increase Mr. Fashek’s consulting fee to $150,000 per year. Mr. Fashek has also received options to purchase an aggregate of 45,000 shares of our common stock during the past three years.

2017 Bridge Financings, Note Conversion and Warrant Amendments

Effective January 27, 2017, we amended certain two-year common stock warrants with an exercise price of either $3.00 or $6.00 previously issued in January and February 2015 (the “Two-Year Warrants”) to extend the expiration date of the Two-Year Warrants for two additional years. Pursuant to the warrant amendment,(i) the expiration date for the Two-Year Warrants to purchase 266,667 shares of common stock at $3.00 per share and the Two-Year Warrants to purchase 266,667 shares of common stock at $6.00 per share was extended to January 29, 2019, (ii) the expiration date for the Two-Year Warrants to purchase 140,000 shares of common stock at $3.00 per share and the Two-Year Warrants to purchase 140,000 shares of common stock at $6.00 per share was extended to February 10, 2019, and (iii) the expiration date for the Two-Year Warrants to purchase 13,333 shares of common stock at $3.00 per share and the Two-Year Warrants to purchase 13,333 shares of common stock at $6.00 per share was extended to February 23, 2019. The exercise price and all other terms of the original Two-Year Warrants remained the same. Holders of the Two-Year Warrants who entered into the warrant amendment with us included entities controlled by Mr. Packer and Mr. Packer, who at the time of the warrant amendment held Two-Year Warrants to purchase 66,666 shares of common stock at $3.00 per share and Two-Year Warrants to purchase 66,666 shares of common stock at $6.00 per share.

On March 1, 2017, we completed a bridge financing, pursuant to which we received from Mr. Packer and entities controlled by Mr. Packer $250,000 of loans and issued to Mr. Packer and entities controlled by Mr. Packer convertible promissory notes (“2017 Notes”) in an aggregate principal amount of $250,000 and seven-year warrants (“2017 Warrants”) to purchase an aggregate of 100,000 shares of common stock at an initial exercise price of $5.90 per share, subject to adjustment, and are immediately exercisable. The principal amount and all accrued but unpaid interest on the 2017 Notes were due and payable on the date that is the earlier of the (i) 5-year anniversary of the date of issuance, or (ii) the date the Company completes an equity financing pursuant to which the Company issues and sells shares of capital stock resulting in aggregate proceeds of at least $2,000,000. The 2017 Notes bore interest at a rate of 6% per annum, payable on the maturity date. The 2017 Warrants are immediately exercisable. The 2017 Warrants may be exercised on a cashless basis if there is no effective registration statement registering the resale of the shares underlying the 2017 Warrants after the six month anniversary of the issuance date of the 2017 Warrants. The exercise price is adjustable for certain events, such as distribution of stock dividends, stock splits or fundamental transactions including mergers or sales of assets. A holder of the 2017 Warrants will not have the right to exercise any portion of the 2017Warrant if the holder (together with its affiliates) would beneficially own in excess of 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the 2017 Warrants. However, any holder may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice to the Company.

On May 3, 2017, we completed a bridge financing, pursuant to which we received from Mr. Packer $30,000 of loans and issued to Mr. Packer 2017 Notes in an aggregate principal amount of $30,000 and 2017 Warrants to purchase an aggregate of 12,000 shares of common stock at an initial exercise price of $5.90 per share, subject to adjustment, and are immediately exercisable.

On June 3, 2017, we completed a bridge financing, pursuant to which we received from an entity controlled by Mr. Packer $500,000 of loans and issued to an entity controlled by Mr. Packer 2017 Notes in an aggregate principal amount of $500,000 and 2017 Warrants to purchase an aggregate of 200,000 shares of common stock at an initial exercise price of $5.90 per share, subject to adjustment, and are immediately exercisable.

On November 6, 2017 Mr. Packer and entities controlled by Mr. Packer purchased approximately 51 shares of our Series D Convertible Preferred Stock as part of our underwritten public offering that closed on November 6, 2018 and also received warrants to purchase 38,265 additional shares of our common stock with an exercise price of $6.95 per share. Entities controlled by Mr. Hirshman participated in the same offering and purchased approximately 20 shares of our Series D Convertible Preferred Stock and 132,653 shares of common stock and received warrants to purchase 114,795 additional shares of our common stock with an exercise price of $.95 per share.

On November 8, 2017, the 2017 Notes owned by Mr. Packer and entities controlled by Mr. Packer were converted into 74,601 shares of our common stock and 130,782 shares of our Series D Convertible Preferred Stock. Mr. Packer and entities controlled by Mr. Packer also received seven-year warrants to purchase additional 154,037 shares of our common stock with an exercise price of $6.95 per share.

On February 5, 2019, we entered into amendments to our Two-Year Warrants, as previously amended (the “Warrant Amendment”) to purchase an aggregate of 420,000 shares of common stock at an exercise price of $3.00 per share and warrants to purchase an aggregate of 420,000 shares of common stock at an exercise price of $6.00 per share to further extend the expiration date of the warrants for two additional years. In addition, the Warrant Amendment amended the exercise price with respect to the $3.00 Warrants from $3.00 per share to $3.35 per share. The exercise price of the $6.00 Warrants was unchanged. Pursuant to the Warrant Amendment, warrants to purchase 266,667 shares of common stock at $3.35 per share and warrants to purchase 266,667 shares of common stock at $6.00 per share will expire on January 29, 2021, and the warrants to purchase 140,000 shares of common stock at $3.35 per share and warrants to purchase 140,000 shares of common stock at $6.00 per share will expire on February 10, 2021, and the warrants to purchase 13,333 shares of common stock at $3.35 per share and warrants to purchase 13,333 shares of common stock at $6.00 per share will expire on February 23, 2021. The Warrant Amendment is effective as of January 29, 2019. All other terms of the original warrants remain the same. Holders of the warrants who entered into the Warrant Amendment include entities controlled by Mr. Paul Packer and Mr. Packer, who at the time of the Warrant Amendment held warrants to purchase 66,666 shares of common stock at $3.35 per share and warrants to purchase 66,666 shares of common stock at $6.00 per share.

2019 Bridge Financings

On March 29, 2019, we completed a bridge financing, pursuant to which we issued to entities controlled by Mr. Packer and entities controlled by Mr. Hirshman convertible notes on the aggregate principal amount of $125,000 and $100,000, respectively (collectively the “Notes”) and seven-year warrants (the “Warrant”) to purchase an aggregate of 50,000 shares and 40,000 shares, respectively, of our common stock or series C preferred stock at an exercise price of the lesser of: (a) 80% (i.e., a 20% discount) of the exercise price per share of the warrants to purchase shares of the Company’s capital stock issued in the first equity financing of the Company following the date of issuance, or (b) $4.80, with a stipulation that in no event will the exercise price be less than $3.00 per warrant share.

The principal amount and all accrued but unpaid interest on the Notes are due and payable on the date (the “Maturity Date”) that is the earlier of the (i) 5-year anniversary of the date of issuance, or (ii) the date the Company completes an equity financing pursuant to which the Company issues and sells shares of capital stock resulting in aggregate proceeds of at least $2,000,000 (a “Qualified Financing”). The Notes bear interest at a rate of 6% per annum, payable on the Maturity Date. To the extent not previously converted, on the Maturity Date, the investors will receive, at the option of each the investor, either (a) cash equal to the original principal amount of the Note and interest then accrued and unpaid thereon, or (b) shares of common stock or series C convertible preferred stock of the Company, at a price per share equal to the lesser of: (x) 80% of the amount equal to the quotient obtained by dividing (i) the estimated value of the Company as of the Maturity Date, as determined in good faith by the Company’s Board, by (ii) the aggregate number of outstanding shares of the Company’s common stock, as of the Maturity Date on a fully diluted basis, and (y) $4.00 per share, as such amount may be adjusted for any stock split, stock dividend, reclassification or similar events affecting the capital stock of the Company. Upon consummation of a Qualified Financing, each investor may elect to have the outstanding principal and accrued but unpaid interest thereon converted into (a) shares of the same class and series of equity securities sold in such Qualified Financing, (b) shares of series C convertible preferred stock or (c) common stock, at a price per share equal to the lesser of: (a) 80% of the price per share at which such securities are sold in such Qualified Financing and (b) $4.00 per share, as such amount may be adjusted for any stock split, stock dividend, reclassification or similar events affecting the Company’s capital stock.

In no event will the number of shares to be issued upon (i) exercise of this Warrants, (ii) conversion of the Notes exceed, in the aggregate, 9.9% of the total shares outstanding or the voting power outstanding on the date immediately preceding the date of issuance.

On April 5, 2019, we completed additional amounts of bridge financing with the same terms, pursuant to which we issued to entities controlled by Mr. Hirshman convertible notes on the aggregate principal amount of $25,000, respectively and seven-year warrants to purchase an aggregate of 10,000 shares.

On May 10, 2019, we completed additional amounts of bridge financing with the same terms, pursuant to which we issued to entities controlled by Mr. Packer and entities controlled by Mr. Hirshman convertible notes on the aggregate principal amount of $125,000 and $100,000, respectively and seven-year warrants to purchase an aggregate of 50,000 shares and 40,000 shares, respectively.

2019 June Offering

Entities controlled by Mr. Packer purchased an aggregate of 1,100,000 shares of Series E Preferred Stock and warrants to purchase 1,100,000 shares of Series E Preferred Stock in the June Offering, and an aggregate of 210,000 shares of Series E Preferred Stock.

Entities controlled by Mr. Hirschman purchased an aggregate of 500,000 shares of Series E Preferred Stock and warrants to purchase 500,000 shares of Series E Preferred Stock in the June Offering.

2019 July Preferred Offering

Entities controlled by Mr. Packer purchased an aggregate of 210,000 shares of Series E Preferred Stock and warrants to purchase 210,000 shares of Series E Preferred Stock in the July Preferred Offering.

Affiliate Offering

Mr. Fashek purchased an aggregate of 25,000 shares of Series E Preferred Stock and warrants to purchase 25,000 shares of Series E Preferred Stock in the Affiliate Offering.

Information About Selling Stockholder Offering

The following table sets forth the number and percentage of our common stock beneficially owned by the selling stockholders as of December 31, 2019, taking into account number of shares that may be offered under this prospectus and the number and percentage of our common stock beneficially owned by the selling stockholders assuming all of the shares covered hereby are sold. Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and includes voting or investment power with respect to our common stock. Generally, a person “beneficially owns” shares of our common stock if the person has or shares with others the right to vote those shares or to dispose of them, or if the person has the right to acquire voting or disposition rights within 60 days.

The information in the table below and the footnotes thereto regarding shares of common stock to be beneficially owned after the offering assumes that the selling stockholders (i) have exercised their warrants to purchase Series E Preferred Stock in full, (ii) have converted the Series E Preferred Stock in full, without giving effect to the 9.99% beneficial ownership limitation as applicable for the conversion of the Series E Preferred Stock into common stock as set forth in the Amended Certificate of Designation, and (iii) have exercised their warrants to purchase common stock in full, without giving effect to the 4.99% beneficial ownership limitation as applicable for the exercise of the common stock warrants sold in the July Common Offering and the Affiliate Offering. The information in the table below and the footnotes thereto further assumes the sale of all shares being offered by the selling stockholders under this prospectus.

The percentage of shares owned prior to and after the offering is based on 4,203,764 shares of common stock outstanding as of December 31, 2019, and, with respect to the percentage of shares owned after the offering, on the assumption that (i) with respect to Mr. Packer and Mr. Hirshman, the selling stockholder has exercised the warrants to purchase the Series E Preferred Stock in full and converted the Series E Preferred Stock in full, and therefore that all shares of common stock issuable upon conversion of the Series E Preferred Stock and all shares of common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of the warrants to purchase Series E Preferred Stock were outstanding as of that date, and (ii) with respect to the selling stockholders other than Mr. Packer and Mr. Hirshman, the selling stockholder has exercised his or her common stock warrants purchased in the July Common Offering and the Affiliate Offering. Unless otherwise indicated in the footnotes to this table, we believe that the selling stockholders have sole voting and investment power with respect to the shares of common stock indicated as beneficially owned.

As used in this prospectus, the term “selling stockholders” includes the selling stockholders set forth below and any donees, pledgees, transferees or other successors-in-interest selling shares of common stock received after the date of this prospectus from the selling stockholders as a gift, pledge, or other non-sale related transfer.

The number of shares in the column “Maximum Number of Shares Offered” represents all of the shares of common stock that a selling stockholder may offer under this prospectus. Under the terms of the Series E Preferred Stock, a selling stockholder may not convert the Series E Preferred Stock to the extent such conversion would cause such selling stockholder, together with its affiliates, to beneficially own a number of shares of common stock which would exceed 9.99% of our then outstanding shares of common stock following such exercise. Under the terms of the common stock warrants sold in the July Common Offering and the Affiliate Offering, a selling stockholder may not exercise the common stock warrants to the extent such exercise would cause such selling stockholder, together with its affiliates, to beneficially own a number of shares of common stock which would exceed 4.99% of our then outstanding shares of common stock following such exercise. The number of shares in the second column does not reflect these limitations. The fourth column assumes the sale of all the shares offered by the selling stockholders pursuant to this prospectus and that the selling stockholders do not acquire any additional shares of common stock before the completion of this offering. However, because the selling stockholders may sell all or some of its shares under this prospectus from time to time, or in another permitted manner, we cannot assure you as to the actual number of shares that will be sold by the selling stockholder or that will be held by the selling stockholder after completion of any sales. The selling stockholders may sell some, all or none of their shares in this offering. We do not know how long the selling stockholders will hold the shares before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the sale of any of the shares.