Item
1.01 Entry into a Material Definitive Agreement.
On August 24, 2020, NanoVibronix, Inc. (the
“Company”) entered into an underwriting agreement with H.C. Wainwright & Co., LLC (“Wainwright”) (as
amended and restated, the “Underwriting Agreement”). Pursuant to the Underwriting Agreement, the Company agreed to
sell, in an upsized firm commitment offering, 4,333,334 shares (the “Shares”) of the Company’s common
stock, $0.001 par value per share (the “Common Stock”), to Wainwright at an offering price to the public of $0.75
per share, less underwriting discounts and commissions. In addition, pursuant to the Underwriting Agreement, the Company has granted
Wainwright a 30-day option to purchase up to an additional 650,000 shares of Common Stock at the same offering price to the public,
less underwriting discounts and commissions. Wainwright partially exercised its option to purchase an additional 198,100 shares
of Common Stock, for an aggregate of 4,531,434 shares of Common Stock.
The Company expects to receive net proceeds
from the sale of the Shares, after deducting underwriting discounts and commissions and other estimated offering expenses payable
by the Company, of approximately $2.7 million, which includes proceeds from the additional shares of Common Stock to be sold
pursuant to Wainwright’s partial exercise of its option to purchase additional shares. The Company intends to use the
net proceeds from the offering for working capital and other general corporate purposes, including for the transition of manufacturing
of the Company’s products from China to the United States.
The offering, including the shares to be
issued and sold pursuant to the partial exercise of Wainwright’s option to purchase additional shares, is expected to
close on August 27, 2020, subject to satisfaction of customary closing conditions.
Wainwright is acting as the sole book-running
manager for the offering. The Company will pay Wainwright an underwriting discount equal to 7.5% of the gross proceeds of the
offering and a management fee equal to 1% of the gross proceeds of the offering, and reimburse Wainwright for a non-accountable
expense allowance of $50,000, up to $100,000 in legal fees and $12,900 for clearing expenses. Additionally, as partial compensation
for Wainwright’s services as underwriter in the offering, the Company has agreed to issue to Wainwright warrants to purchase
339,858 shares of Common Stock (or if Wainwright exercises its remaining option to purchase additional shares of
Common Stock in full, 373,750 shares of Common Stock), equal to 7.5% of the aggregate number of shares of Common Stock placed
in the offering (the “Wainwright Warrants”). The Wainwright Warrants have a term of five (5) years from the date of
the Underwriting Agreement and an exercise price of $0.9375 per share (equal to 125% of the offering price per share).
Neither
the issuance of the Wainwright Warrants nor the shares of Common Stock issuable upon the exercise of the Wainwright Warrants
(the “Wainwright Warrant Shares”) are registered under the Securities Act of 1933, as amended (the
“Securities Act”) or any state securities laws. The Wainwright Warrants and the Wainwright Warrant Shares
will be issued in reliance on the exemptions from registration provided by Section 4(a)(2) under the Securities Act and
Regulation D promulgated thereunder.
The
sale of the Shares, including shares sold pursuant to Wainwright’s partial exercise of its option to purchase additional
shares of Common Stock, will be made pursuant to the Company’s effective Registration Statement on Form S-3 (Registration
No. 333-239965), including a prospectus contained therein dated August 11, 2020, as supplemented by a prospectus supplement, dated
August 24, 2020, relating to the offering.
The
Underwriting Agreement contains customary representations, warranties, and covenants of the Company and also provides for customary
indemnification by each of the Company and Wainwright against certain liabilities and customary contribution provisions in respect
of those liabilities.
A
copy of the opinion of Haynes and Boone, LLP relating to the legality of the issuance and sale of the Shares is attached as Exhibit
5.1 hereto.
The
foregoing descriptions of the terms and conditions of the Underwriting Agreement and the form of Wainwright Warrant are qualified
in their entirety by reference to the full text of the Underwriting Agreement and the form of Wainwright Warrant, copies of which
are attached hereto as Exhibits 1.1 and 4.1, respectively, and which are incorporated herein by reference.