UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
☐ |
Preliminary
Proxy Statement |
☐ |
Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
☒ |
Definitive
Proxy Statement |
☐ |
Definitive
Additional Materials |
☐ |
Soliciting
Material Pursuant to §240.14a-12 |
NanoVibronix,
Inc. |
(Name
of Registrant as Specified In Its Charter) |
|
|
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant) |
Payment
of Filing Fee (Check all boxes that apply): |
|
☒ |
No
fee required. |
|
|
☐ |
Fee paid previously with preliminary materials. |
|
|
☐ |
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
525
Executive Blvd
Elmsford,
NY 10523
(914)
233-3004
November
1, 2022
Dear
Stockholder:
You
are cordially invited to attend the 2022 Annual Meeting of Stockholders (the “Annual Meeting”) of NanoVibronix, Inc., a Delaware
corporation (“we,” “us,” “our” or the “Company”), which will be held on December 15,
2022, at 10:00 a.m. Eastern Time at www.virtualshareholdermeeting.com/NAOV2022. To provide access to our stockholders regardless of geographic
location, the Company has determined that the Annual Meeting will be a virtual meeting conducted exclusively via live webcast. You or
your proxyholder will be able to attend the virtual Annual Meeting online, vote, and submit questions during the Annual Meeting by visiting
www.virtualshareholdermeeting.com/NAOV2022 and entering the 16-digit control number included on your proxy card or voting instruction
form, as applicable. To receive access to the virtual Annual Meeting, registered stockholders and beneficial stockholders (those holding
shares through a stock brokerage account or by a bank or other holder of record) will need to follow the instructions applicable to them
provided in the accompanying proxy statement. Details regarding the Annual Meeting and the business to be conducted at the Annual Meeting
are more fully described in the accompanying Notice of Annual Stockholders Meeting and proxy statement. You are entitled to vote at our
Annual Meeting and any adjournments, continuations or postponements thereof only if you were a stockholder as of October 17, 2022.
We
are distributing our proxy materials to certain stockholders via the Internet under the U.S. Securities and Exchange Commission (the
“SEC”) “Notice and Access” rules. We believe this approach allows us to provide stockholders with a timely and
convenient way to receive proxy materials and vote, while lowering the costs of delivery and reducing the environmental impact of our
Annual Meeting. We are mailing to our stockholders a Notice of Internet Availability of Proxy Materials (the “Notice of Internet
Availability”) beginning on or about November 1, 2022, rather than a paper copy of the proxy statement, the proxy card and our
2021 Annual Report, which includes our annual report on Form 10-K for the fiscal year ended December 31, 2021. The Notice of Internet
Availability contains instructions on how to access the proxy materials, vote and obtain, if desired, a paper copy of the proxy materials.
Your
vote is very important, regardless of the number of shares of our voting securities that you own. Whether or not you expect to attend
the Annual Meeting online, after receiving the Notice of Internet Availability please vote as promptly as possible to ensure your representation
and the presence of a quorum at the Annual Meeting. As an alternative to voting online during the Annual Meeting, you may vote via the
Internet, by telephone, or by signing, dating and returning the proxy card that is mailed to those that request paper copies of the proxy
statement and the other proxy materials.
If
your shares are held in the name of a broker, trust, bank or other nominee, and you receive these materials through your broker or through
another intermediary, please complete and return the materials in accordance with the instructions provided to you by such broker or
such other intermediary, or contact your broker directly in order to obtain a proxy issued to you by your nominee holder to virtually
attend the meeting and vote online during the meeting. Failure to do so may result in your shares not being eligible to be voted by proxy
at the meeting.
On
behalf of the board of directors, I urge you to submit your vote as soon as possible, even if you currently plan to attend the Annual
Meeting online.
Thank
you for your support of our company. I look forward to seeing you online at the Annual Meeting via remote communication.
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Sincerely, |
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/s/
Brian Murphy |
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Brian Murphy |
|
Chief Executive Officer and Director |
NanoVibronix,
Inc.
525
Executive Blvd
Elmsford,
NY 10523
(914)
233-3004
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
Be Held on December 15, 2022
The
2022 Annual Meeting of Stockholders (the “Annual Meeting”) of NanoVibronix, Inc., a Delaware corporation (“we,”
“us,” “our” or the “Company”), will be held on December 15, 2022, at 10:00 a.m. Eastern Time, via
a live webcast on the Internet. You will be able to virtually attend the Annual Meeting online, vote and submit questions during the
Annual Meeting by visiting www.virtualshareholdermeeting.com/NAOV2022. Only stockholders of record of our common stock
and Series F Preferred Stock, par value, $0.001 per share (“Series F Preferred Stock”), as of the close of business on October
17, 2022 (the “Record Date”) will be entitled to vote at the Annual Meeting and any adjournments, continuations or postponements
thereof that may take place.
We
will consider and act on the following items of business at the Annual Meeting:
(1) |
Election of the eight nominees
to serve on the Company’s board of directors for a term of one year or until their respective successors are elected and qualified,
for which the following are nominees: Aurora Cassirer, Christopher Fashek, Michael Ferguson, Martin Goldstein, M.D., Harold Jacob,
M.D., Thomas Mika, Brian Murphy, and Maria Schroeder. |
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|
(2) |
Approval of an amendment
to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”),
to classify the structure of the Board to be designated Class I, Class II, and Class III with directors in each class to be elected
for three-year terms (the “Proposed Staggered Board Amendment”). |
|
|
(3) |
Approval
of an amendment to the Company’s Certificate
of Incorporation to effect, at the discretion of the Company’s Board but prior to the six-month anniversary of the date on
which the reverse stock split is approved by the Company’s stockholders at the Annual Meeting, a reverse stock split of all
of the outstanding shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a
ratio in the range of 1-for-2 to 1-for-50, with such ratio to be determined by the Board in its discretion and included in a public
announcement (the “Reverse Stock Split Proposal”). |
|
|
(4) |
Approval of an amendment
to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock of the Company from
40,000,000 to 45,000,000 shares (the “Share Increase Proposal”). |
|
|
(5) |
Approval
of an amendment to the NanoVibronix Inc. 2014 Long-Term Incentive Plan, as amended (the “2014 Plan”), to increase
the aggregate number of shares of common stock of the Company reserved for issuance under the 2014 Plan by 1,518,000 shares
to a total of 4,864,286 shares (the “Plan Amendment Proposal”). |
|
|
(6) |
Ratification of the appointment
of Marcum LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022. |
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(7) |
Approval of an adjournment
of the Annual Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event there
are not sufficient votes in favor of Proposals 1-5. |
|
|
(8) |
Such other business as
may arise and that may properly be conducted at the Annual Meeting or any adjournment or postponement thereof. |
Stockholders
are referred to the proxy statement accompanying this notice for more detailed information with respect to the matters to be considered
at the Annual Meeting. After careful consideration, the board of directors (the “Board”) has determined that each proposal
listed above is in the best interests of the Company and its stockholders and has approved each proposal. The Board recommends a vote
FOR the election of each of the nominees for director listed in Proposal 1 and FOR Proposals 2-7.
The
Board has fixed the close of business on October 17, 2022 as the record date (the “Record Date”) for the Annual Meeting.
Only stockholders of record of our Common Stock and Series F Preferred on the Record Date are entitled to receive notice of the Annual
Meeting and vote at the Annual Meeting on any postponement(s) or adjournment(s) of the Annual Meeting. As a result of the dividend of
the shares of Series F Preferred Stock to be distributed on October 17, 2022, each holder of shares of our Common Stock will also
hold a number of one one-thousandths of a share of our Series F Preferred Stock equal to the whole number of shares of Common Stock held
by such holder. Because any one one-thousandths of a share of Series F Preferred Stock that are not present in person or by proxy at
the Annual Meeting as of immediately prior to the opening of the polls at the Annual Meeting will be automatically redeemed, if you fail
to submit a proxy to vote your shares or attend the Annual Meeting in order to do so, your shares of Series F Preferred Stock will be
redeemed immediately prior to the opening of the polls at the Annual Meeting and will not be entitled to vote at the Annual Meeting.
A complete list of registered stockholders entitled to vote at the Annual Meeting will be available for inspection at the principal executive
offices of the Company (upon request to us by mail at NanoVibronix, Inc., 525 Executive Blvd, Elmsford, NY 10523, Attn: Stephen Brown
or by calling 914-233-3004 and asking for Stephen Brown) during regular business hours for the 10 calendar days prior to the Annual Meeting.
YOUR
VOTE AND PARTICIPATION IN THE COMPANY’S AFFAIRS ARE IMPORTANT.
Whether
or not you plan to attend the Annual Meeting online, we urge you to vote your shares as promptly as possible by Internet, telephone or
mail. For specific instructions on how to vote your shares, please see the section entitled “About the Annual Meeting” beginning
on page 7 of the proxy statement.
If
your shares are registered in your name, even if you plan to attend the Annual Meeting (or any postponement or adjournment of the
Annual Meeting) online, we request that you complete, date, sign and mail the enclosed form of proxy in accordance with the instructions
set out in the form of proxy and in the proxy statement to ensure that your shares will be represented at the Annual Meeting.
If
your shares are held in the name of a broker, trust, bank or other nominee, and you receive these materials through your broker or
through another intermediary, please complete and return the materials in accordance with the instructions provided to you by such broker
or such other intermediary or contact your broker directly in order to obtain a proxy issued to you by your nominee holder to virtually
attend the Annual Meeting and vote online. Failure to do so may result in your shares not being eligible to be voted by proxy at the
Annual Meeting online.
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By Order of
the Board, |
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/s/ Brian Murphy |
|
Brian Murphy |
|
Chief Executive Officer and Director |
|
November
1, 2022 |
TABLE
OF CONTENTS
|
Page |
ABOUT THE ANNUAL MEETING |
7 |
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PROPOSAL 1: ELECTION OF DIRECTORS |
14 |
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Directors and Company Nominees |
14 |
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CORPORATE GOVERNANCE |
17 |
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Code of Business and Ethics |
17 |
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Board Composition |
17 |
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Director Independence |
18 |
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Board Committees, Meetings, and Attendance |
19 |
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Family Relationships and Involvement in Certain Legal Proceedings |
20 |
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Director Nominations |
20 |
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Board Leadership Structure and Role in Risk Oversight |
21 |
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Role in Risk Oversight |
21 |
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Communications with Directors |
22 |
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DIRECTOR COMPENSATION |
23 |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS |
24 |
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EXECUTIVE OFFICERS |
26 |
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EXECUTIVE COMPENSATION |
26 |
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STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNER AND MANAGEMENT |
33 |
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REPORT OF THE AUDIT COMMITTEE |
34 |
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PROPOSAL 2: APPROVAL OF AN AMENDMENT TO CLASSIFY THE BOARD |
35 |
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PROPOSAL 3: APPROVAL OF THE REVERSE STOCK SPLIT PROPOSAL |
37 |
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PROPOSAL 4: APPROVAL OF THE AMENDMENT TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK FROM 40,000,000 TO 45,000,000 |
46 |
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PROPOSAL 5: APPROVAL OF AN AMENDMENT TO THE NANOVIBRONIX 2014 LONG-TERM INCENTIVE PLAN TO INCREASE THE NUMBER OF SHARES FOR ISSUANCE BY 1,518,000 TO A TOTAL OF 4,864,286 |
48 |
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PROPOSAL 6: RATIFICATION OF MARCUM LLP AS OUR INDEPENDENT AUDITING FORM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022 |
58 |
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PROPOSAL 7: APPROVAL OF ADJOURNMENT OF THE MEETING |
60 |
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APPENDIX A: PROPOSED STAGGERED BOARD AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF NANOVIBRONIX |
A-1 |
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APPENDIX B: PROPOSED REVERSE STOCK SPLIT AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF NANOVIBRONIX |
B-1 |
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APPENDIX C: PROPOSED AMENDMENT TO THE NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN |
C-1 |
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APPENDIX D: NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN, AND THE FIRST, SECOND, AND THIRD AMENDMENTS TO THE PLAN |
D-1 |
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APPENDIX E: PROPOSED AUTHORIZED SHARE INCREASE AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF NANOVIBRONIX |
E-1 |
NanoVibronix,
Inc.
525
Executive Blvd
Elmsford,
NY 10523
(914)
233-3004
PROXY
STATEMENT
FOR
ANNUAL
MEETING OF STOCKHOLDERS
To
Be Held on December 15, 2022
Unless
the context otherwise requires, references in this proxy statement to “we,” “us,” “our,” “the
Company,” or “NanoVibronix” refer to NanoVibronix, Inc., a Delaware corporation, and its consolidated subsidiary as
a whole. In addition, unless the context otherwise requires, references to “stockholders” are to the holders of our Common
Stock and Series F Preferred Stock.
The
accompanying proxy is solicited by the Board of Directors (the “Board”) on behalf of NanoVibronix, Inc. to be voted at the
2022 annual meeting of stockholders of the Company (the “Annual Meeting”) to be held virtually via a live webcast on the
Internet on December 15, 2022 at 10:00 a.m. Eastern Time, at the Internet address and for the purposes set forth in the accompanying
Notice of Annual Meeting of Stockholders (the “Notice”) and at any adjournment(s) or postponement(s) of the Annual Meeting.
This proxy statement and accompanying form of proxy are dated November 1, 2022, and are expected to be first sent, given or made
available to stockholders on or about November 1, 2022.
If
you held shares of our Common Stock and Series F Preferred Stock at the close of business on October 17, 2022 (the “Record Date”),
you are invited to attend the Annual Meeting virtually at www.virtualshareholdermeeting.com/NAOV2022 and vote on the proposals described
in this proxy statement.
The
Company will pay the costs of soliciting proxies from stockholders. Our directors, officers and employees will solicit proxies on behalf
of the Company, without additional compensation, by telephone, facsimile, mail, on the Internet or in person.
The
executive offices of the Company are located at, and the mailing address of the Company, is 525 Executive Blvd, Elmsford, NY 10523.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS
FOR
THE STOCKHOLDER MEETING TO BE HELD ON December 15, 2022:
As
permitted by the “Notice and Access” rules of the U.S. Securities and Exchange Commission (the “SEC”), we are
making this proxy statement, the proxy card and our 2021 Annual Report, which includes our annual report on Form 10-K for the fiscal
year ended December 31, 2021 available to stockholders electronically via the Internet at the following website: www.proxyvote.com. On
or about November 1, 2022, we will begin mailing to our stockholders a Notice of Internet Availability of Proxy Materials (the “Notice
of Internet Availability”) that contains instructions on how stockholders may access and review all of the proxy materials and
how to vote. Also on or about November 1, 2022, we will begin mailing printed copies of the proxy materials to stockholders that previously
requested printed copies. If you received a Notice of Internet Availability by mail, you will not receive a printed copy of the proxy
materials in the mail unless you request a copy. If you received a Notice of Internet Availability by mail and would like to receive
a printed copy of our proxy materials, you should follow the instructions for requesting such materials included in the Notice of Internet
Availability.
ABOUT
THE ANNUAL MEETING
What
is a proxy?
A
proxy is another person that you legally designate to vote your stock. If you designate someone as your proxy in a written document,
that document is also called a “proxy” or a “proxy card.”
What
is a proxy statement?
A
proxy statement is a document that regulations of the SEC require that we give to you when we ask you to sign a proxy card to vote your
stock at the Annual Meeting.
Why
did I receive a Notice of Internet Availability of Proxy Materials instead of paper copies of the proxy materials?
We
are using the SEC’s Notice and Access model, which allows us to deliver proxy materials over the Internet, as the primary means
of furnishing proxy materials. We believe Notice and Access provides stockholders with a convenient method to access the proxy materials
and vote, while allowing us to conserve natural resources and reduce the costs of printing and distributing the proxy materials. On or
about November 1, 2022, we expect to begin mailing to stockholders a Notice of Internet Availability containing instructions on how to
access our proxy materials on the Internet and how to vote online. The Notice of Internet Availability is not a proxy card and cannot
be used to vote your shares. If you received a Notice of Internet Availability this year, you will not receive paper copies of the
proxy materials unless you request the materials by following the instructions on the Notice of Internet Availability.
What
is the purpose of the Annual Meeting?
At
our Annual Meeting, stockholders will act upon the matters outlined in the Notice, which include the following:
(1) |
Election of the eight nominees
to serve on the Company’s Board for a term of one year or until their respective successors are elected and qualified, for
which the following are nominees: Aurora Cassirer, Christopher Fashek, Michael Ferguson, Martin Goldstein, M.D., Harold Jacob, M.D.,
Thomas Mika, Brian Murphy, and Maria Schroeder. |
|
|
(2) |
Approval of an amendment
to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”),
to classify the structure of the Board to be designated Class I, Class II, and Class III with directors in each class to be elected
for three-year terms (the “Proposed Staggered Board Amendment”). |
|
|
(3) |
Approval
of an amendment to the Company’s Certificate
of Incorporation to effect, at the discretion of the Company’s Board but prior to the six-month anniversary of the date on
which the reverse stock split is approved by the Company’s stockholders at the Annual Meeting, a reverse stock split of all
of the outstanding shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a
ratio in the range of 1-for-2 to 1-for-50, with such ratio to be determined by the Board in its discretion and included in a public
announcement (the “Reverse Stock Split Proposal”). |
|
|
(4) |
Approval of an amendment
to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock of the Company from
40,000,000 to 45,000,000 shares (the “Share Increase Proposal”). |
|
|
(5) |
Approval
of an amendment to the NanoVibronix Inc. 2014 Long-Term Incentive Plan, as amended (the “2014 Plan”), to increase
the aggregate number of shares of common stock of the Company reserved for issuance under the 2014 Plan by 1,518,000 shares
to a total of 4,864,286 shares (the “Plan Amendment Proposal”). |
|
|
(6) |
Ratification of the appointment
of Marcum LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022. |
|
|
(7) |
Approval of an adjournment
of the Annual Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event there
are not sufficient votes in favor of Proposals 1-5. |
|
|
(8) |
Such other business as
may arise and that may properly be conducted at the Annual Meeting or any adjournment or postponement thereof. |
What
should I do if I receive more than one set of voting materials?
You
may receive more than one Notice of Internet Availability (or, if you requested a printed copy of the proxy materials, this proxy statement
and the proxy card) or voting instruction card. For example, if you hold your shares in more than one brokerage account, you will receive
a separate voting instruction card for each brokerage account in which you hold shares. Similarly, if you are a stockholder of record
and hold shares in a brokerage account, you will receive a Notice of Internet Availability (or, if you requested a printed copy of the
proxy materials, a proxy card) for shares held in your name and a voting instruction card for shares held in “street name.”
Please follow the separate voting instructions that you received for your shares of Common stock held in each of your different accounts
to ensure that all your shares are voted.
What
is the record date and what does it mean?
The
record date to determine the stockholders entitled to notice of and to vote at the Annual Meeting is the close of business on October
17, 2022 (the “Record Date”). The Record Date is established by the Board as required by Delaware law. On the Record Date,
27,997,793 shares of Common Stock and 27,997.793 shares of Series F Preferred Stock were issued and outstanding. See “What
are the voting rights of the stockholders?” below.
Who
is entitled to vote at the Annual Meeting and how many votes do they have?
Holders
of Common Stock and Series F Preferred Stock, at the close of business on the Record Date, may vote at the Annual Meeting. Notwithstanding
the foregoing, holders of outstanding shares of Series F Preferred Stock will only be entitled to vote such shares on the Reverse Stock
Split Proposal and the Adjournment Proposal to the extent that such shares have not been automatically redeemed in the Initial Redemption
(defined below). There were 27,997,793 shares of Common Stock, 27,997.793 shares of Series F Preferred Stock, and no shares
of any other series of preferred stock, respectively, outstanding on the Record Date. A complete list of registered stockholders entitled
to vote at the Annual Meeting will be available for inspection at the principal executive offices of the Company during regular business
hours for the 10 calendar days prior to the Annual Meeting.
Pursuant
to the rights of our stockholders contained in our charter documents, each share of our Common Stock is entitled to one vote on all matters
listed in this proxy statement. There is no cumulative voting. As previously announced on September 13, 2022, the Board declared a dividend
of one one-thousandth (1/1,000th) of a share of Series F Preferred Stock for each outstanding share of Common Stock to stockholders of
record of Common Stock as of 5:00 p.m. Eastern Time on October 14, 2022. The holders of Series F Preferred Stock have 1,000,000 votes
per whole share of Series F Preferred Stock (i.e., 1,000 votes per one one-thousandth of a share of Series F Preferred Stock)
and are entitled to vote with the Common Stock, together as a single class, on the Reverse Stock Split Proposal and Adjournment Proposal,
but are not otherwise entitled to vote on the other proposals to be presented at the Annual Meeting. Notwithstanding the foregoing, each
share of Series F Preferred Stock redeemed pursuant to the Initial Redemption will have no voting power with respect to the Reverse Stock
Split, the Adjournment Proposal or any other matter. Unless otherwise provided on any applicable proxy or ballot with respect to the
voting on the Reverse Stock Split or the Adjournment Proposal, when a holder of Common Stock submits a vote on the Reverse Stock Split
Proposal and the Adjournment Proposal, the corresponding number of shares of Series F Preferred Stock (or fraction thereof) held by such
holder will be automatically cast in the same manner as the vote of the share of Common Stock (or fraction thereof) in respect of which
such share of Series F Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Reverse Stock Split and the Adjournment
Proposal, and the proxy or ballot with respect to shares of Common Stock held by any holder on whose behalf such proxy or ballot is submitted
will be deemed to include all shares of Series F Preferred Stock (or fraction thereof) held by such holder. Holders of Series F Preferred
Stock will not receive a separate ballot or proxy to cast votes with respect to the Series F Preferred Stock on the Reverse Stock Split,
the Adjournment Proposal or any other matter brought before the Annual Meeting. For example, if a stockholder holds 10 shares of Common
Stock (entitled to one vote per share) and votes in favor of the Reverse Stock Split Proposal, then 10,010 votes will be recorded in
favor of the Reverse Stock Split Proposal, because the stockholder’s shares of Series F Preferred Stock will automatically be voted
in favor of the Reverse Stock Split Proposal alongside such stockholder’s shares of Common Stock, unless otherwise provided on
any applicable proxy or ballot with respect to voting on such proposals.
All
shares of Series F Preferred Stock that are not present in person or by proxy at the Annual Meeting as of immediately prior to the opening
of the polls at the Annual Meeting will be automatically redeemed (the “Initial Redemption”). Any outstanding shares of Series
F Preferred Stock that have not been redeemed pursuant to the Initial Redemption will be redeemed in whole, but not in part, (i) if and
when ordered by our Board or (ii) automatically upon the approval by the Company’s stockholders of the Reverse Stock Split at any
meeting of the stockholders held for the purpose of voting on such proposal.
What
is the difference between a stockholder of record and a “street name” holder?
If
your shares are registered directly in your name with VStock Transfer, LLC, the Company’s stock transfer agent, you are considered
the stockholder of record with respect to those shares. The Notice of Internet Availability has been sent directly to you by the Company.
If
your shares are held in a stock brokerage account or by a bank or other nominee, the nominee is considered the record holder of those
shares. You are considered the beneficial owner of these shares, and your shares are held in “street name.” The Notice of
Internet Availability have been forwarded to you by your nominee. As the beneficial owner, you have the right to direct your nominee
concerning how to vote your shares by using the voting instructions the nominee included in the mailing or by following such nominee’s
instructions for voting.
What
is a broker non-vote?
Broker
non-votes occur when shares are held indirectly through a broker, bank or other intermediary on behalf of a beneficial owner (referred
to as held in “street name”) and the broker submits a proxy but does not vote for a matter because the broker has not received
voting instructions from the beneficial owner and (i) the broker does not have discretionary voting authority on the matter or (ii) the
broker chooses not to vote on a matter for which it has discretionary voting authority.
With
respect to the Reverse Stock Split Proposal (Proposal 3), Share Increase Proposal (Proposal 4), the ratification of the independent registered
public accounting firm (Proposal 6) and the adjournment of the Annual Meeting (Proposal 7), your broker will have the discretion to vote
your shares and, therefore, will be able to vote your shares with respect to such proposals even if you do not provide your broker with
instructions on those proposals
If
I am a beneficial owner of shares, can my brokerage firm vote my shares?
If
you are a beneficial owner and do not vote via the Internet or telephone or by returning a signed voting instruction card to your broker,
your shares may be voted only with respect to so-called “routine” matters where your broker has discretionary voting authority
over your shares. Under the rules of the New York Stock Exchange (the “NYSE”) that govern how brokers may vote shares for
which they have not received voting instructions from the beneficial owner, brokers will have such discretionary authority to vote on
the Reverse Stock Split Proposal (Proposal 3), Share Increase Proposal (Proposal 4), the ratification of the independent registered public
accounting firm (Proposal 6) and the adjournment of the Annual Meeting (Proposal 7) and may vote “FOR” such proposal.
In the absence of specific instructions from you, your broker does not have discretionary authority to vote your shares with respect
to, the election of directors (Proposal 1), the Proposed Staggered Board Amendment (Proposal 2), or the Plan Amendment Proposal (Proposal
5).
We
encourage you to provide instructions to your brokerage firm via the Internet or telephone or by returning your signed voting instruction
card. This ensures that your shares will be voted at the Annual Meeting with respect to all of the proposals described in this proxy
statement.
When
and where is the Annual Meeting and what do I need to be able to attend online?
The
Annual Meeting will be held on December 15, 2022, at 10:00 a.m. Eastern Time at www.virtualshareholdermeeting.com/NAOV2022. Any stockholder
who owns our Common Stock or Series F Preferred Stock on the Record Date can attend the Annual Meeting online.
You
will be able to attend the Annual Meeting online, vote, , and submit your questions during the Annual Meeting by visiting www.virtualshareholdermeeting.com/NAOV2022.
To participate in the virtual meeting, you will need the 16-digit control number included on your proxy card or voting instruction form,
as applicable. The meeting webcast will begin promptly at 10:00 a.m. Eastern Time. We encourage you to access the meeting prior to the
start time and you should allow ample time for the check-in procedures. Because the Annual Meeting will be a completely virtual meeting,
there will be no physical location for stockholders to attend.
How
do I vote my shares?
If
you are a record holder, you may choose one of the following methods to vote your shares:
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Via Internet: as
prompted by the menu found at www.proxyvote.com, follow the instructions to obtain your records and submit an electronic ballot.
Please have your Stockholder Control Number, which can be found on your proxy card, when you access this voting site. You may vote
via the Internet until 11:59 p.m., Eastern Time on December 14, 2022. |
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Via telephone: call
1-800-690-6903 and then follow the voice instructions. Please have your Stockholder Control Number, which can be found on your proxy
card, when you call. You may vote by telephone until 11:59 p.m., Eastern Time on December 14, 2022. |
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Via mail: You may
vote by proxy by completing, signing, dating and promptly returning the enclosed proxy card in the postage-paid envelope. If you
submit a signed proxy without indicating your vote, the person voting the proxy will vote your shares according to the Board’s
recommendation. |
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Online: Online during
the Annual Meeting at www.virtualshareholdermeeting.com/NAOV2022. You will need your Stockholder Control Number, which can be found
on your proxy card, in hand when you vote online during the Annual Meeting. |
The
proxy is fairly simple to complete, with specific instructions on the electronic ballot, telephone or card. By completing and submitting
it, you will direct the designated persons (known as “proxies”) to vote your stock at the Annual Meeting in accordance with
your instructions. The Board has appointed Brian Murphy, our chief executive officer and director and Stephen Brown, our chief financial
officer, to serve as the proxies for the Annual Meeting. Your proxy will be valid only if you complete and return it before the Annual
Meeting. If you properly complete and transmit your proxy but do not provide voting instructions with respect to a proposal, then the
designated proxies will vote your shares “FOR” the election of each of the nominees for director listed in Proposal
1 and “FOR” each of the Proposals 2-7 in each case as to which you provided no voting instructions. We do not anticipate
that any other matters will come before the Annual Meeting, but if any other matters properly come before the meeting, then the proxies
will vote your shares in accordance with applicable law and their judgment.
If
you hold your shares in “street name,” your bank, broker or other nominee should provide to you a request for voting instructions
along with the Company’s proxy solicitation materials. By completing the voting instruction card, you may direct your nominee how
to vote your shares. If you partially complete the voting instruction but fail to complete one or more of the voting instructions, then
your nominee may be unable to vote your shares with respect to the proposal as to which you provided no voting instructions. See “What
is a broker non-vote?” Alternatively, if you want to vote your shares during the virtual Annual Meeting, you must contact your
nominee directly in order to obtain a proxy issued to you by your nominee holder. Note that a broker letter that identifies you as a
stockholder is not the same as a nominee-issued proxy. If you fail to obtain a nominee-issued proxy prior to the Annual Meeting, you
will not be able to vote your nominee-held shares during the Annual Meeting.
Who
counts the votes?
All
votes will be tabulated by the Inspector of Election appointed for the Annual Meeting. Each proposal will be tabulated separately.
Can
I vote my shares at the Annual Meeting?
Yes.
If you are a stockholder of record, you may vote your shares during the meeting by submitting your vote electronically at the Annual
Meeting.
If
you hold your shares in “street name,” you may vote your shares during the Annual Meeting only if you obtain a proxy issued
by your bank, broker or other nominee giving you the right to vote the shares.
Even
if you currently plan to attend the virtual Annual Meeting, we recommend that you also return your proxy or voting instructions as described
above so that your votes will be counted if you later decide not to attend the Annual Meeting or are unable to attend.
What
are my choices when voting?
When
you cast your vote on:
Proposal 1: |
You may vote for all director
nominees or may withhold your vote as to one or more director nominees. |
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Proposal 2: |
You may vote for the proposal,
against the proposal or abstain from voting on the proposal. |
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Proposal 3: |
You may vote for the proposal,
against the proposal or abstain from voting on the proposal. |
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Proposal 4: |
You may vote for the proposal,
against the proposal or abstain from voting on the proposal. |
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Proposal 5: |
You may vote for the proposal,
against the proposal or abstain from voting on the proposal. |
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Proposal 6: |
You may vote for the proposal, against the proposal
or abstain from voting on the proposal. |
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Proposal 7: |
You may vote for the proposal, against the proposal
or abstain from voting on the proposal. |
What
are the Board’s recommendations on how I should vote my shares?
The
Board recommends that you vote your shares as follows:
“FOR”
the election of each of the nominees listed in Proposal 1.
“FOR”
Proposals 2-7.
What
if I do not specify how I want my shares voted?
If
you are a record holder who returns a completed proxy that does not specify how you want to vote your shares on one or more proposals,
the proxies will vote your shares for each proposal as to which you provided no voting instructions, and such shares will be voted in
the following manner:
“FOR”
the election of each of the nominees listed in Proposal 1.
“FOR”
Proposals 2-7.
If
you are a “street name” holder and do not provide voting instructions on one or more proposals, your bank, broker or other
nominee will be unable to vote those shares with respect to the election of directors (Proposal 1), The Proposed Staggered Board Amendment
(Proposal 2), and the Plan Amendment Proposal (Proposal 5). See “What is a broker
non-vote?”
Can
I change my vote?
Yes.
If you are a record holder, you may revoke your proxy at any time by any of the following means:
● |
Attending the virtual Annual
Meeting and submitting your vote electronically. Your attendance at the Annual Meeting will not by itself revoke a proxy. You must
vote your shares by ballot at the virtual Annual Meeting to revoke your proxy. |
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Completing and submitting
a new valid proxy bearing a later date. |
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Giving written notice of
revocation to the Company addressed to Brian Murphy, our Chief Executive Officer and a director, at the Company’s address above,
which notice must be received before 6:00 p.m., Eastern Time on December 14, 2022. |
If
you are a “street name” holder, your bank, broker or other nominee should provide instructions explaining how you may change
or revoke your voting instructions.
What
votes are required to approve each proposal?
Assuming
the presence of a quorum, the following sets forth the voting requirement with respect to each Proposal:
Proposal 1 – Election of Directors |
The affirmative
“FOR” vote of the holders of a plurality of the votes cast at the Annual Meeting is required for the election of the
director nominees, i.e., the eight director nominees who receive the most votes will be elected. |
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Proposal 2 – Proposed Staggered Board Amendment |
The affirmative “FOR”
vote of a majority of the shares outstanding entitled to vote. |
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Proposal 3 – Reverse Stock Split Proposal |
The affirmative “FOR”
vote of a majority of the outstanding shares of our Common Stock and Series F Preferred Stock entitled to vote at the Annual Meeting
on the Reverse Stock Split Proposal, voting together as a single class, is required for approval of the Reverse Stock Split Proposal. |
Please
refer to the discussion above under “Who is entitled to vote at the Annual Meeting, and how many votes do they have?”
for a description of the Series F Preferred Stock, which is entitled to be voted together with the Common Stock as a single class
on the Reverse Stock Split Proposal and the Adjournment Proposal. Shares of Series F Preferred Stock that are not present in person
or by proxy as of immediately prior to the opening of the polls will be automatically redeemed in the Initial Redemption and, therefore,
will not be outstanding or entitled to vote on either the Reverse Stock Split Proposal or the Adjournment Proposal and will be excluded
from the calculation as to whether such proposals pass at the Annual Meeting. Due to the voting power of the shares of Series F Preferred
Stock that are not redeemed pursuant to the Initial Redemption on the Reverse Stock Split Proposal and the Adjournment Proposal,
the holders of Common Stock that submit a proxy to vote their shares at the Annual Meeting or attend the Annual Meeting will effectively
have enhanced voting power on the two proposals over holders of Common Stock that are not represented in person or by proxy at the
Annual Meeting. This means that the Reverse Stock Split Proposal and the Adjournment Proposal could each be approved by the affirmative
vote of the holders of less than a majority of the outstanding shares of our Common Stock.
The
principal terms of the Reverse Stock Split Amendment have been approved by the Board. Because the vote is based on the total number
of shares outstanding rather than the votes cast at the Annual Meeting, your failure to vote or marking “ABSTAIN” on
your proxy or ballot with respect to the Reverse Stock Split Proposal has the same effect as a vote against this proposal. We expect
that the directors and executive officers will vote all their shares in favor of the Reverse Stock Split Proposal.
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Proposal 4 — Share Increase Proposal |
The affirmative “FOR”
vote of a majority of the shares outstanding entitled to vote. |
Proposal 5 — Plan Amendment
Proposal |
The affirmative
“FOR” vote of a majority of the votes cast “FOR” or “AGAINST” the proposal. |
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Proposal 6 — Ratification of Appointment of Auditor |
The affirmative “FOR”
vote of a majority of the votes cast “FOR” or “AGAINST” the proposal. |
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Proposal 7 — Adjournment Proposal |
The affirmative vote of
the holders of shares of our Common Stock and Series F Preferred Stock, voting as a single class, representing a majority of the votes cast by holders of all of the shares of Common Stock and Series F Preferred Stock present or represented at the
Annual Meeting and voting on the Adjournment Proposal is required for approval of the Adjournment Proposal. |
How
are abstentions and broker non-votes treated?
Abstentions
are included in the determination of the number of shares present at the Annual Meeting for determining a quorum at the meeting. Abstentions
and votes withheld from director nominees (Proposal 1) will not be counted with respect to the vote, and abstentions
will have no effect on the Plan Amendment Proposal (Proposal 5), the ratification of the independent registered public accounting firm
(Proposal 6), and the approval of an adjournment of the Annual Meeting (Proposal 7). Abstentions will have the same practical effect
as a vote against the Proposed Staggered Board Amendment (Proposal 2), Reverse Stock Split Proposal (Proposal 3), and the Share Increase
Proposal (Proposal 4).
Broker
non-votes are included in the determination of the number of shares present at the Annual Meeting for determining a quorum at the meeting.
Failure to instruct your broker how to vote with respect to the election of directors (Proposal 1), the Plan Amendment Proposal
(Proposal 5), the ratification of the independent registered public accounting firm (Proposal 6), and the adjournment of the Annual
Meeting (Proposal 7), will have no effect on the outcome of the votes because broker non-votes are not considered shares entitled
to vote. However, if you do not give your broker specific instructions on how to vote your shares with respect to the Reverse Stock Split
Proposal (Proposal 3),the Share Increase Proposal (Proposal 4), the ratification of the independent registered public accounting firm
(Proposal 5) or the adjournment of the Annual Meeting (Proposal 7), your broker may vote your shares at its discretion. A failure to
instruct your broker on how to vote your shares with respect to the election of directors (Proposal 1), the Plan Amendment Proposal
(Proposal 5), the ratification of the independent registered public accounting firm (Proposal 6) or the adjournment of the
Annual Meeting (Proposal 7) will not necessarily count as a vote against any such proposal. However, a failure to instruct your broker
how to vote with respect to the Proposed Staggered Board Amendment (Proposal 2) or a broker non-vote on the Reverse Stock Split Proposal
(Proposal 3) and Share Increase Proposal (Proposal 4) will have the same practical effect as a voting against each such proposal.
Do
I have any dissenters’ or appraisal rights with respect to any of the matters to be voted on at the Annual Meeting?
No.
None of our stockholders has any dissenters’ or appraisal rights with respect to the matters to be voted on at the Annual Meeting.
What
are the solicitation expenses and who pays the cost of this proxy solicitation?
Our
Board is asking for your proxy and we will pay all of the costs of asking for stockholder proxies. The Company will pay the costs of
soliciting proxies from stockholders. Our directors, officers and employees will solicit proxies on behalf of the Company, without additional
compensation, by telephone, facsimile, mail, on the Internet or in person. We will reimburse brokerage houses and other custodians, nominees
and fiduciaries for their reasonable out-of-pocket expenses for forwarding solicitation material to the beneficial owners of Common Stock
and collecting voting instructions.
Is
this proxy statement the only way that proxies are being solicited?
No.
In addition to the solicitation of proxies by use of the Notice of Internet Availability, officers and employees of the Company may solicit
the return of proxies, either by mail, telephone, telecopy, e-mail or through personal contact. Our officers and employees will not receive
additional compensation for their efforts but will be reimbursed for out-of-pocket expenses. Brokerage houses and other custodians, nominees
and fiduciaries, in connection with shares of the Common Stock registered in their names, will be requested to forward solicitation material
to the beneficial owners of shares of Common Stock.
Are
there any other matters to be acted upon at the Annual Meeting?
Management
does not intend to present any business at the Annual Meeting for a vote other than the matters set forth in the Notice and has no information
that others will do so. If other matters requiring a vote of the stockholders properly come before the Annual Meeting, it is the intention
of the persons named in the form of proxy to vote the shares represented by the proxies held by them in accordance with applicable law
and their judgment on such matters.
Where
can I find voting results?
We
expect to publish the voting results in a current report on Form 8-K, which we expect to file with the SEC within four business days
after the Annual Meeting.
Who
can help answer my questions?
The
information provided above in this “Question and Answer” format is for your convenience only and is merely a summary of the
information contained in this proxy statement. We urge you to carefully read this entire proxy statement, including the documents we
refer to in this proxy statement. If you have any questions, or need additional materials, please feel free to contact Stephen Brown
by email at steve@nanovibronix.com or phone at 914-233-3004.
What
is “householding” and how does it affect me?
With
respect to eligible stockholders who share a single address, we may send a single copy of the proxy materials to that address unless
we received instructions to the contrary from any stockholder at that address. This practice, known as “householding,” is
designed to reduce our printing and postage costs. However, if a stockholder of record residing at such address wishes to receive a separate
proxy statement and other proxy materials in the future, he or she may contact us by mail at NanoVibronix, Inc., 525 Executive Blvd,
Elmsford, NY 10523, Attn: Brian Murphy or by calling 914-233-3004 and asking for Brian Murphy. Eligible stockholders of record receiving
multiple copies of our proxy materials can request householding by contacting us in the same manner. Stockholders who own shares through
a bank, broker or other nominee can request householding by contacting such nominee.
We
hereby undertake to deliver promptly, upon written or oral request, a copy of the proxy materials to a stockholder at a shared address
to which a single copy of the document was delivered. Requests should be directed to Brian Murphy at the address or phone number set
forth above.
PROPOSAL
1: ELECTION OF DIRECTORS
The
Board has nominated eight directors for election at the Annual Meeting by the stockholders (each referred to herein as a “Company
Nominee” and, collectively as the “Company Nominees”). The Board manages our company’s business and affairs,
exercises all corporate powers and establishes corporate policies. Our Certificate of Incorporation and Bylaws provide that the Board
will consist of such number of directors as may be determined from time to time by resolution of the majority of the whole Board. Proxies
cannot be voted for a greater number of persons than the number of Company Nominees named in the proxy statement.
Each
member of our Board is elected for a one-year term and is elected at each annual meeting of stockholders. If a quorum is present, the
Company Nominees will be elected by a plurality of the voting power of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. Abstentions and broker non-votes have no effect on the vote. The eight Company Nominees
receiving the highest number of affirmative votes will be elected directors of the Company. Shares of Common Stock entitled to vote at
the Annual Meeting represented by executed proxies will be voted, if authority to do so is not withheld, for the election of the eight
nominees named below. Should any Company Nominee become unable or unwilling to accept nomination or election, the proxy holders may vote
the proxies for the election, in his or her stead, of any other person the Board may nominate or designate. Each Company Nominee has
agreed to serve, if elected, and the Board has no reason to believe that any Company Nominee will be unable to serve.
If
the stockholders approve the Proposed Staggered Board Amendment (Proposal 2), our Board will be divided into three classes for future
elections, beginning at our 2023 Annual Meeting of Stockholders. Each class will consist as nearly equal in number as possible with each
class to serve for staggered three-year terms. To further understand how this change would impact future elections or for more information,
please see Proposal 2: APPROVAL OF AN AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF THE COMPANY TO CLASSIFY THE
BOARD INTO THREE CLASSES, WITH DIRECTORS IN EACH CLASS TO SERVE STAGGERED THREE-YEAR TERMS below.
Nominee
Biographies and Qualifications
The
following table sets forth the name, age and position of each director currently serving on the Board and each Company Nominee for election
as a director as of October 17, 2022:
The
biographies for the Company Nominees are as follows:
Name |
|
Age |
|
Position |
Aurora Cassirer |
|
70 |
|
Director |
Christopher Fashek |
|
72 |
|
Chairman of the Board |
Michael Ferguson |
|
51 |
|
Director |
Martin Goldstein, M.D. |
|
54 |
|
Director |
Harold Jacob, M.D. |
|
67 |
|
Chief Medical Officer and Director |
Thomas R. Mika |
|
70 |
|
Director |
Brian Murphy |
|
65 |
|
Chief Executive Officer and Director |
Maria Schroeder |
|
63 |
|
Director |
Aurora
Cassirer, Director. Ms. Cassirer has served as our director since January 2022 and is on our corporate governance and our compensation
committees. She is a highly experienced attorney, currently practicing at Fisher Broyles LLP in the Business Litigation Section. She
has previously served as a partner in other prominent law firms for more than 30 years, including at Troutman Pepper, where she served
on the Executive and Compensation Committee and managed the New York office for a number of years. Ms. Cassirer has a sophisticated practice
focusing on business litigation and corporate governance issues. She has developed a particular niche in dealing with publicly and privately
held biotech/healthtech and biopharma companies. Ms. Cassirer has been listed as AV Preeminent by Martindale-Hubbell consistently for
the last 20 years as well as being listed in Law & Politics’ New York Super Lawyers for excellence in Business Litigation every
year since 2008. Previously, she served as Chair of the Advisory Board of ReferWell, f/k/a Urgent Consult, LLC, a start-up in the health
tech business, and currently serves on the Advisory Board of Live Care LLC , a start-up engaged in the remote monitoring of patients.
She also serves on the Board of Directors of Kids in Need of Defense (KIND), a not-for-profit organization where she is on its Compensation
Committee. She is also a member of the Board of Friends of Jerusalem College of Technology and serves on its Development Committee. She
currently serves as co-chair of the New York State Bar Association International Corporate Compliance Committee . Ms. Cassirer received
her JD from New York University. Ms. Cassirer’s extensive legal experience and deep knowledge of corporate governance make her
well-qualified to serve on our Board.
Christopher
Fashek, Chairman of the Board. Mr. Fashek has served as our director and Chairman of the Board since November 2016. Mr. Fashek is
an accomplished healthcare executive with a record of leading global medical-device and pharmaceutical businesses. Mr. Fashek led the
team that introduced V.A.C.® therapy, a negative pressure wound therapy, to both, the clinical community, and patients with serious
or complex wounds. From June 2018, to 2020, Mr. Fashek has served as Chief Executive Officer and Director of Brain Sentinel, Inc. Mr.
Fashek currently serves as a Director of World Craniofacial Foundation (WCF), the Wound Healing Foundation (WHF), and the American College
of Wound Healing and Tissue Repair (ACWHTR). From 1995 to 2007, he was at KCI as the Vice Chairman, Chief Executive Officer, and President
of KCI USA. From 2008 to 2011, he was the Chairman of the Board of Directors at Systagenix, Ltd. From 2014 to 2015, he was the Chairman
of the Board of Directors and Chief Executive Officer of Spiracur, Inc. He currently serves as Chairman of MedTech Solutions Group, LLC,
a startup in San Antonio, Texas. He has a Bachelor of Arts degree from Upsala College and Master of Business Administration from Fairleigh
Dickinson University. Mr. Fashek’s extensive experience as an executive and leadership positions in the global medical device and
pharmaceutical businesses, as well as his network of industry partners, provide him the appropriate experience to serve on our Board.
Mr. Fashek is recognized as developing highly productive and profitable leadership teams and corporate cultures, while taking multiple
healthcare products from idealization to commercialization, as well as turning around under-performing corporations to profitability.
Michael
Ferguson, Director. The Honorable Mr. Ferguson has served as our director since April 27, 2015. Mr. Ferguson is currently a senior
advisor at BakerHostetler, serving as the leader of their Federal Policy team. In January 2009, Mr. Ferguson founded Ferguson Strategies,
LLC, a government affairs and strategic business consulting firm, where he served as the chief executive officer and chairman. From 2001
to January 2009, he served in the U.S. House of Representatives, representing New Jersey’s 7th congressional district. While in
Congress, he was a member of the House Energy and Commerce Committee, which has wide jurisdiction over the healthcare, telecommunications
and energy industries. He served as vice chairman of the panel’s Health Subcommittee, where he became a key member on health care
issues and helped to ensure passage of the Medicare Part D prescription drug benefit in 2003. In addition, he served as a member of the
Telecommunications and Internet Subcommittee as well as the Oversight and Investigations Subcommittee. Mr. Ferguson was also a member
of the House Financial Services Committee, where he cosponsored the Sarbanes-Oxley Act of 2002 and helped enact the initial terrorism
risk insurance law. Mr. Ferguson was the former chairman of the Board of Commissioners of the New Jersey Sports and Exhibition Authority
and also serves as a senior fellow of the Center for Medicine in the Public Interest’s Odyssey Initiative for Biomedical Innovation
and Human Health. He has also served on various corporate advisory boards and committees, including for Pfizer, Inc., the National Italian
American Foundation and the United States Golf Association. Mr. Ferguson received a bachelor’s degree in government from the University
of Notre Dame and a master’s of public policy degree with a specialization in education policy from Georgetown University. Mr.
Ferguson also formerly served as the Chairman of the Board of Ohr Pharmaceutical Inc. and brings to the Board his extensive background
in government affairs, health care policy, and business strategy gained from his experiences in Congress and business consulting, which
we believe will assist in strengthening and advancing our strategic focus and regulatory compliance.
Martin
Goldstein, M.D., Director. Dr. Goldstein has served as our director since March 25, 2015 and has been a practicing urologist for
more than 20 years with particular expertise in the management of stone disease. Dr. Goldstein is an accomplished healthcare entrepreneur.
He is the President of New Jersey Urology, the largest urology group practice in the country. He also serves as Senior Vice President
of Corporate Development and Acquisitions of Urology Management Associates, a private equity backed entity providing administrative practice
management services to independent urology groups. Dr. Goldstein is a co-founder and executive board member of Metropolitan Surgery Center,
a large multispecialty ambulatory surgery center. Dr. Goldstein brings to our Board his medical practice expertise. He is expected to
make a valuable contribution in connection with marketing and facilitating the acceptance of our product offerings within the medical
community. He has provided assistance with the U.S. Food and Drug Administration regulatory approval process of our products, particularly
our urology offerings, and will continue to advise on new product development and innovations.
Harold
Jacob, M.D., Chief Medical Officer and Director. Dr. Jacob has served as our chief medical officer since March 1, 2014, and as our
director since September 2003. From September 2003 to February 4, 2014, Dr. Jacob served as chairman of our Board and from September
2003 to March 1, 2014, Dr. Jacob served as our chief executive officer. Dr. Jacob also performed the functions of a principal financial
officer until April 1, 2014. Dr. Jacob is our co-founder and has worked extensively in medical device development. Dr. Jacob also served
part-time as an attending gastroenterologist at Shaare Zedek Medical Center in Jerusalem, Israel from 2004 to March 2011. Since April
2011, he has been an attending physician in Gastroenterology at Hadassah University Hospital in Jerusalem, Israel. From 1999 to the present,
Dr. Jacob has served as the president of Medical Instrument Development Inc., which provides consulting services to start-up and early
stage companies and patents its own proprietary medical devices. From 1997 to 2003, Dr. Jacob served as director of medical affairs at
Given Imaging Ltd., a company that developed the first swallowable wireless pill camera for inspection of the intestines. Dr. Jacob also
formerly served as a director for Oramed Pharmaceuticals Inc. a pharmaceutical company focused on the development of innovative orally
ingestible capsule medication. We believe that Dr. Jacob’s qualifications to serve on our Board include his years of experience
in the biomedical industry and with us and his experience serving in management roles of various companies.
Thomas
R. Mika, Director. Mr. Mika has served as our director since April 27, 2015. Mr. Mika has over 30 years of senior management, finance
and consulting experience. Mr. Mika is currently executive vice president and chief financial officer of POET Technologies, Inc. (TSX
Venture: PTK, NASDAQ:POET) and previously served as chairman of the board of Rennova Health, Inc. (NASDAQ: RNVA) and as chief executive
officer of its wholly owned subsidiary, CollabRx, Inc. (NASDAQ: CLRX). Rennova Health is a vertically integrated public healthcare holding
company that merged with CollabRx in November 2015 and became listed on the NASDAQ. CollabRx, formerly known as Tegal Corporation (NASDAQ:
TGAL), is a clinical decision-support company that delivers expert solutions in precision oncology and genomic medicine. Mr. Mika was
the chairman and chief executive officer of CollabRx and its predecessor company since March 2005. From 1992 to 2002, Mr. Mika served
on the company’s Board, which included periods of service as the chairman of the compensation committee and a member of the audit
committee. Previously, Mr. Mika co-founded IMTEC, a boutique investment and consulting firm whose areas of focus included health care,
pharmaceuticals, media and information technology. As a partner of IMTEC, Mr. Mika served clients in the United States, Europe and Japan
over a period of 20 years, taking on the role of chief executive officer in several ventures. Earlier in his career, Mr. Mika was a managing
consultant with Cresap, McCormick & Paget and a policy analyst for the National Science Foundation. Mr. Mika holds a bachelor of
science degree in Microbiology from the University of Illinois at Urbana-Champaign and a master of business administration degree from
the Harvard Graduate School of Business. Mr. Mika’s qualifications to serve on our Board include his significant strategic and
business insight from his prior service on the Board of other publicly held companies, as well as his substantial senior management,
finance and consulting experience.
Brian
Murphy, Chief Executive Officer and Director. Mr. Murphy has served as our chief executive officer and director since October 2016.
Mr. Murphy has over 25 years of senior sales, operations and general management experience in medical device and medical technology companies,
including ATI Medical Equipment Corporation, Mountain Medical Equipment Inc. and Healthdyne Technologies Inc. From 2012 to 2016, Mr.
Murphy served in various roles at MiMedx Group, Inc., where he initiated and managed the commercial sales and national accounts efforts
within the advanced wound care segment. From 2010 to 2012, Mr. Murphy was the chief executive officer of O2 Insights, Inc., a start-up
wound care diagnostics company, and led the sale of the company to Systagenix Ltd. in June 2012. From 2008 to 2010, Mr. Murphy served
as vice president of sales for ConvaTec and led the negative pressure wound therapy business. From 1992 to 2008, Mr. Murphy served a
total of 17 years at Kinetic Concepts, Inc. (KCI) in various positions overseeing sales, operations and general management. Mr. Murphy
holds a bachelor of arts degree in communications from Southern Illinois University. Mr. Murphy’s qualifications to serve on our
Board include his significant sales, operations and general management experience in medical device and medical technology companies.
Maria
Schroeder, Director. Ms. Schroeder has served as our director since January 2022. Ms. Schroeder has been a key Financial Executive
at a number of public and privately-held companies including CST Brands, KCI and Brain Sentinel, where she recently served as Chief Financial
Officer. Prior to Brain Sentinel, Ms. Schroeder served as Vice President, Global Tax of CST Brands, a Fortune 250 retail Oil and Gas
company. Prior to that, she served as Vice President and Treasurer & Head of Tax at Kinetic Concepts, Inc. (“KCI”) a
$1.5 billion MedTech company, which was recently purchased by 3M for $6.7 billion. At KCI, she held key roles in a number of strategic
transactions, including two leveraged buyouts and an initial public offering. Ms. Schroeder began her career at Ernst & Whinney before
joining Deloitte Haskins & Sells. Ms. Schroeder is an alumnus of San Antonio Leadership, a premier leadership program of the San
Antonio Chamber of Commerce and has served on the Audit Committee for The University of Texas at San Antonio, as Treasurer of Girls,
Inc. of San Antonio and as a board member of KLRN, San Antonio’s public television station. Ms. Schroeder is a Certified Public
Accountant and Chartered Global Management Accountant with a B.B.A. in Accounting from the University of Texas at San Antonio. Ms. Schroeder’s
financial expertise and leadership experience make her well-qualified to serve on our Board.
Required
Vote and Board Recommendation
If
a quorum is present and voting, the eight Company Nominees receiving the highest number of votes will be elected as directors. If you
hold your shares in your own name and abstain from voting on the election of directors, your abstention will have no effect on the vote.
If you hold your shares through a broker and you do not instruct the broker on how to vote for the eight nominees, your broker will not
have the authority to vote your shares. Abstentions and broker non-votes will each be counted as present for purposes of determining
the presence of a quorum but will not have any effect on the outcome of the vote.
The
Board recommends that you vote “FOR” each Company Nominee (Proposal 1).
CORPORATE
GOVERNANCE
NanoVibronix,
Inc., with the oversight of the Board and its committees, operates within a comprehensive plan of corporate governance for the purpose
of defining independence, assigning responsibilities, setting high standards of professional and personal conduct and assuring compliance
with such responsibilities and standards. We regularly monitor developments in the area of corporate governance.
Code
of Business Conduct and Ethics
We
have adopted a code of business conduct and ethics that applies to all of our officers, directors and employees. The code of business
conduct and ethics addresses, among other things, competition and fair dealing, conflicts of interest, financial matters and external
reporting, our funds and assets, confidentiality and corporate opportunity requirements and the process for reporting violations of the
code of business conduct and ethics, employee misconduct, improper conflicts of interest or other violations. A copy of the code of ethics
was attached as Exhibit 14.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Securities
and Exchange Commission on March 31, 2017. If we amend or grant a waiver of one or more of the provisions of our code of business conduct
and ethics, we intend to satisfy the requirements under Item 5.05 of Form 8-K regarding the disclosure of amendments to, or waivers from,
provisions of our code of business conduct and ethics that apply to our principal executive, financial and accounting officers by posting
the required information on our website at www.nanovibronix.com within four business days following the date of such amendment or waiver.
Policy
on Trading, Pledging and Hedging of Company Stock
We
maintain a policy that, among other things, prohibits all officers, including our named executive officers, directors and employees
from engaging in “hedging” transactions with respect to our securities. This includes short sales, hedging of share ownership
positions, transactions in straddles, collars or other similar risk reduction or hedging devices, and transactions involving derivative
securities relating to our common stock. In addition, they are also prohibited from pledging the Company’s securities.
Board
Composition
Our
Certificate of Incorporation and Bylaws provide that our Board will consist of such number of directors as determined from time to time
by resolution adopted by our Board. The size of our Board is currently fixed at eight directors. Subject to any rights applicable to
any then outstanding preferred stock, any vacancies or newly created directorships resulting from an increase in the authorized number
of directors may be filled by a majority of the directors then in office. Each member of our Board is elected for a one-year term and
is elected at each annual meeting of stockholders. If the stockholders approve the Proposed Staggered Board Amendment (Proposal 2), our
Board will be divided into three classes for future elections, beginning at our 2023 Annual Meeting of Stockholders. Each class will
consist as nearly equal in number as possible with each class to serve for staggered three-year terms. To further understand how this
change would impact future elections or for more information, please see Proposal 2: APPROVAL OF AN AMENDMENT TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF THE COMPANY TO CLASSIFY THE BOARD INTO THREE CLASSES, WITH DIRECTORS IN EACH CLASS TO SERVE STAGGERED
THREE-YEAR TERMS below.
Board
Diversity and Board Diversity Matrix
We
have no formal policy regarding Board diversity. Our Board believes that each director should have a basic understanding of our principal
operational and financial objectives and plans and strategies, our results of operations and financial condition and relative standing
in relation to our competitors. We take into consideration the overall composition and diversity of the Board and areas of expertise
that director nominees may be able to offer, including business experience, knowledge, abilities and customer relationships. Generally,
we will strive to assemble a Board that brings to us a variety of perspectives and skills derived from business and professional experience
as we may deem are in our and our stockholders’ best interests. In doing so, we will also consider candidates with appropriate
non-business backgrounds.
Nasdaq’s
Board Diversity Rule, which was approved by the SEC on August 6, 2021, is a disclosure standard designed to encourage a minimum board
diversity objective for companies and provide stakeholders with consistent, comparable disclosures concerning a company’s current
board composition. This rule requires companies listed on the Nasdaq exchange to: (1) publicly disclose board-level diversity statistics
using a standardized template; and (2) have or explain why they do not have at least two diverse directors. In alignment with the Diversity
Objective described in section 5605(f) of the Nasdaq rule, as a Smaller Reporting Company (as defined in Rule 12b-2 under the Exchange
Act), we set an objective to have at least two members of the Board who self-identify as diverse (as defined in section 5605(f)(1) of
the Nasdaq rule), including at least one diverse director who self-identified as female. As per the Nasdaq rule, the second director
may include an individual who self-identifies as one or more of the following: female, LGBTQ+, or an underrepresented minority.
Our
current board composition is reflected in the following matrix:
As
a Smaller Reporting Company subject to the additional flexibility provided under Nasdaq’s Diversity Rule, we currently meet the
diversity objectives promulgated under this rule by having two female directors as well as a Hispanic or Latinx member as reflected in
the above matrix. The current two female directors are Company Nominees to serve as directors of the Company until the next Annual Meeting
or until the appointment or election and qualification of her successor.
Director
Independence
We
are currently listed on The Nasdaq Capital Market and therefore rely on the definition of independence set forth in the NASDAQ Listing
Rules (“Nasdaq Rules”). Under the Nasdaq Rules, a director only qualifies as an “independent director” if, in
the opinion of that company’s Board, that person does not have a relationship that would interfere with the exercise of independent
judgment in carrying out the responsibilities of a director.
In
order to be considered to be independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other
than in his or her capacity as a member of the audit committee, the Board, or any other board committee: (1) accept, directly or indirectly,
any consulting, advisory or other compensatory fee from the listed company or any of its subsidiaries or (2) be an affiliated person
of the listed company or any of its subsidiaries.
Our
Board undertook a review of its composition, the composition of its committees and the independence of each director. Based upon information
requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships,
our Board has determined that Aurora Cassirer, Christopher Fashek, Michael Ferguson, Martin Goldstein, M.D., Thomas R. Mika, and Maria
Schroeder or six of our eight directors, do not have a relationship (other than being a director and/or a stockholder) that would interfere
with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent”
as that term is defined under the Nasdaq Rules.
Our
Board also determined that (i) Messrs. Michael Ferguson and Thomas Mika and Ms. Maria Schroeder, who compose our audit committee, (ii)
Ms. Aurora Cassirer and Messrs. Michael Ferguson and Thomas Mika, who compose our compensation committee, and (iii) Ms. Aurora Cassirer
and Messrs. Christopher Fashek and Martin Goldstein, who compose our nominating and corporate governance committee, each satisfy the
independence standards for those committees established by the applicable rules and regulations of the SEC and the Nasdaq Rules. In making
this determination, our Board considered the relationships that each non-employee director has with us and all other facts and circumstances
our Board deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee
director. We intend to comply with all size and independence requirements for committees within the applicable time periods.
Board
Committees, Meetings and Attendance
During
the year ended December 31, 2021, the Board held seven meetings. We expect our directors to attend Board meetings, meetings of any committees
and subcommittees on which they serve and each annual meeting of stockholders, either in person or by teleconference. During the year
ended December 31, 2021, each director attended at least 75% of the total number of meetings held by the Board and Board committees of
which such director was a member. Last year’s annual meeting was not attended by any directors
Our
Board currently has three standing committees which consist of an audit committee, a nominating and corporate governance committee and
a compensation committee, each of which has the composition and responsibilities described below.
Each
of these committees operates under a charter that has been approved by our Board. The current charter of each of these committees is
available on our website at www.nanovibronix.com in the “Governance” section under “Investors.” The reference
to our website address does not constitute incorporation by reference of the information contained at or available through our website,
and you should not consider it to be a part of this proxy statement.
Audit
Committee. The audit committee consists of Messrs. Thomas Mika (chair) and Michael Ferguson and Ms. Maria Schroeder, each of whom
our Board has determined to be financially literate and qualify as an independent director under Sections 5605(a)(2) and 5605(c)(2) of
the Nasdaq Rules and Rule 10A-3(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In addition,
Mr. Thomas Mika qualifies as an “audit committee financial expert,” as defined in Item 407(d)(5)(ii) of Regulation S-K. Our
Board also determined that each member of our audit committee can read and understand fundamental financial statements in accordance
with applicable requirements. In arriving at these determinations, the Board examined each audit committee member’s scope of experience
and the nature of their employment in the corporate finance sector.
The
function of the audit committee is to assist the Board in its oversight of (1) the integrity of our financial statements, (2) our compliance
with legal and regulatory requirements, (3) the qualifications, independence and performance of our independent auditors and (4) audit
and non-audit fees and services.
The
audit committee met four times during the year ended December 31, 2021.
Nominating
and Corporate Governance Committee. The nominating and corporate governance committee consist of Messrs. Christopher Fashek (chair)
and Martin Goldstein, Ms. Aurora Cassirer and Ms. Maria Schroeder, each of whom our Board has determined qualifies as an independent
director under Section 5605(a)(2) of the Nasdaq Rules.
The
primary function of the nominating and corporate governance committee is to identify individuals qualified to become board members, consistent
with criteria approved by the Board, and select the director nominees for election at each annual meeting of stockholders.
The
nominating and corporate governance committee met one time during the year ended December 31, 2021.
Compensation
Committee. The compensation committee consists of Messrs. Michael Ferguson (chair) and Thomas Mika and Ms. Aurora Cassirer, each
of whom our Board has determined qualifies as an independent director under Sections 5605(a)(2) and 5605(d)(2) of the Nasdaq Rules, as
an “outside director” for purposes of Section 162(m) of the Internal Revenue Code and as a “non-employee director”
for purposes of Section 16b-3 under the Exchange Act. The function of the compensation committee will be to discharge the Board’s
responsibilities relating to compensation of our directors and executives and our overall compensation programs.
The
primary objective of the compensation committee will be to develop and implement compensation policies and plans that are appropriate
for us in light of all relevant circumstances and which provide incentives that further our long-term strategic plan and are consistent
with our culture and the overall goal of enhancing enduring stockholder value.
The
compensation committee met three times during the year ended December 31, 2021 and engaged an employment consulting firm in determining
and recommending the amount or form of executive and director compensation during the year ended December 31, 2021.
Family
Relationships and Involvement in Certain Legal Proceedings
There
are no family relationships among our directors and executive officers, or person nominated or chosen by the Company to become a director
or executive officer. To our knowledge, there have been no material legal proceedings as described in Item 401(f) of Regulation S-K that
are material to an evaluation of the ability or integrity of any of our directors or executive officers, or person nominated to become
a director or executive officer (in the last ten years) or our control persons (in the last year).
Director
Nominations
Our
nominating and corporate governance committee considers all qualified candidates identified by members of the Board, by senior management
and by stockholders. The nominating and corporate governance committee follows the same process and uses the same criteria for evaluating
candidates proposed by stockholders, members of the Board and members of senior management. We did not pay fees to any third party to
assist in the process of identifying or evaluating director candidates during the year ended December 31, 2021.
Our
Bylaws contain provisions that address the process by which a stockholder may nominate an individual to stand for election to the Board
at our Annual Meeting. To recommend a nominee for election to the Board, a stockholder must submit his or her recommendation to the Secretary
at our corporate offices at 525 Executive Blvd, Elmsford, NY 10523. Such nomination must satisfy the notice, information and consent
requirements set forth in our Bylaws and must be received by us prior to the date set forth under “Stockholder Proposals”
below. A stockholder’s recommendation must be accompanied by the information with respect to stockholder nominees as specified
in our Bylaws, including among other things, the name, age, address and occupation of the recommended person, the proposing stockholder’s
name and address, the ownership interests of the proposing stockholder and any beneficial owner on whose behalf the nomination is being
made (including the number of shares beneficially owned, any hedging, derivative, short or other economic interests and any rights to
vote any shares) and any material monetary or other relationships between the recommended person and the proposing stockholder and/or
the beneficial owners, if any, on whose behalf the nomination is being made.
In
evaluating director nominees, the nominating and corporate governance committee considers the following factors:
●
the appropriate size and diversity of our Board;
●
our needs with respect to the particular knowledge, skills and experience of nominees, including experience in corporate finance, technology,
business, administration and sales, in light of the prevailing business conditions and the knowledge, skills and experience already possessed
by other members of the Board;
●
experience with accounting rules and practices, and whether such a person qualifies as an “audit committee financial expert”
pursuant to SEC rules; and
●
balancing continuity of our Board with periodic injection of fresh perspectives provided by new Board members.
Our
Board believes that each director should have a basic understanding of our principal operational and financial objectives and plans and
strategies, our results of operations and financial condition and our relative standing in relation to our competitors.
In
identifying director nominees, the Board will first evaluate the current members of the Board willing to continue in service. Current
members of the Board with skills and experience that are relevant to our business and who are willing to continue in service will be
considered for re-nomination.
If
any member of the Board does not wish to continue in service or if the Board decides not to re-nominate a member for re-election, the
Board will identify another nominee with the desired skills and experience described above. The Board takes into consideration the overall
composition and diversity of the Board and areas of expertise that director nominees may be able to offer, including business experience,
knowledge, abilities and customer relationships. Generally, the Board will strive to assemble a Board that brings to us a variety of
perspectives and skills derived from business and professional experience as it may deem are in our and our stockholders’ best
interests. In doing so, the Board will also consider candidates with appropriate non-business backgrounds.
Board
Leadership Structure
The
Board is committed to promoting our effective, independent governance. Our Board believes it is in our best interests and the best interests
of our stockholders for the Board to have the flexibility to select the best director to serve as chairman at any given time, regardless
of whether that director is an independent director or the chief executive officer. Consequently, we do not have a policy governing whether
the roles of chairman of the Board and chief executive officer should be separate or combined. This decision is made by our Board, based
on our best interests considering the circumstances at the time.
Currently,
the offices of the chairman of the Board and the chief executive officer are held by two different people. Christopher Fashek is our
independent, non-executive chairman of the Board, and Brian Murphy is our chief executive officer. The chief executive officer will be
responsible for our day-to-day leadership and performance, while the chairman of the Board will provide guidance to the chief executive
officer and set the agenda for board meetings and preside over meetings of the Board. We believe that separation of the positions will
reinforce the independence of the Board in its oversight of our business and affairs, and create an environment that is more conducive
to objective evaluation and oversight of management’s performance, increasing management accountability and improving the ability
of the Board to monitor whether management’s actions are in our best interests and those of our stockholders.
Role
in Risk Oversight
Our
Board oversees an enterprise-wide approach to risk management, designed to support the achievement of business objectives, including
organizational and strategic objectives, to improve long-term organizational performance and enhance stockholder value. The involvement
of our Board in setting our business strategy is a key part of its assessment of management’s plans for risk management and its
determination of what constitutes an appropriate level of risk for the company. The participation of our Board in our risk oversight
process includes receiving regular reports from members of senior management on areas of material risk to our company, including operational,
financial, legal and regulatory, and strategic and reputational risks, including cybersecurity.
The
Board continually reviews the Company’s controls and procedures that involve cybersecurity matters to determine the potential material
impact to our financial results, operations, and/or reputation to insure such incidents are immediately reported by management to the
Board, or individual members or committees thereof, as appropriate, in accordance with our escalation framework.
While
our Board has the ultimate responsibility for the risk management process, senior management and various committees of our Board will
also have responsibility for certain areas of risk management.
Our
senior management team is responsible for day-to-day risk management and regularly reports on risks to our full Board or a relevant committee.
Our finance and regulatory personnel serve as the primary monitoring and evaluation function for company-wide policies and procedures,
and manage the day-to-day oversight of the risk management strategy for our ongoing business. This oversight includes identifying, evaluating,
and addressing potential risks that may exist at the enterprise, strategic, financial, operational, compliance and reporting levels.
The
audit committee will focus on monitoring and discussing our major financial risk exposures and the steps management has taken to monitor
and control such exposures, including our risk assessment and risk management policies. As appropriate, the audit committee will provide
reports to and receive direction from the full Board regarding our risk management policies and guidelines, as well as the audit committee’s
risk oversight activities.
In
addition, the compensation committee will assess our compensation policies to confirm that the compensation policies and practices do
not encourage unnecessary risk taking. The compensation committee will review and discuss the relationship between risk management policies
and practices, corporate strategy and senior executive compensation and, when appropriate, report on the findings from the discussions
to our Board. Our compensation committee intends to set performance metrics that will create incentives for our senior executives that
encourage an appropriate level of risk-taking that is commensurate with our short-term and long-term strategies.
Communications
with Directors
The
Board welcomes communication from our stockholders. Stockholders and other interested parties who wish to communicate with a member or
members of our Board or a committee thereof may do so by addressing correspondence to the Board member, members or committee, c/o NanoVibronix,
Inc., 525 Executive Blvd, Elmsford, NY 10523, ATTN: Brian Murphy, Chief Executive Officer. Our Chief Executive Officer will review and
forward correspondence to the appropriate person or persons.
All
communications received as set forth in the preceding paragraph will be opened by the Chief Executive Officer for the sole purpose of
determining whether the contents represent a message to our directors. Any contents that are not in the nature of advertising, promotions
of a product or service or patently offensive material will be forwarded promptly to the addressee(s). In the case of communications
to the Board or any group or committee of directors, the Chief Executive Officer will make sufficient copies of the contents to send
to each director who is a member of the group or committee to whom the communication is addressed. If the amount of correspondence received
through the foregoing process becomes excessive, our Board may consider approving a process for review, organization and screening of
the correspondence by the corporate secretary or another appropriate person.
DIRECTOR
COMPENSATION
The
following table shows the compensation earned by persons who served on our Board during the fiscal year ended December 31, 2021, who
are not one of our named executive officers. Other than as set forth in the table and described more fully below, we did not pay any
compensation, reimburse any expense of, make any equity awards or non-equity awards to, or pay any other compensation to any of the other
members of our Board for their services rendered in such period.
Name | |
Fees earned or paid in cash ($) | | |
Option Awards ($) (1) | | |
Total ($) | |
| |
| | |
| | |
| |
Christopher Fashek (2) | |
| 150,000 | | |
| 64,824 | | |
| 214,824 | |
| |
| | | |
| | | |
| | |
Thomas Mika (3) | |
| - | | |
| 48,618 | | |
| 48,618 | |
| |
| | | |
| | | |
| | |
Michael Ferguson (4) | |
| - | | |
| 46,055 | | |
| 46,055 | |
| |
| | | |
| | | |
| | |
Martin Goldstein (5) | |
| - | | |
| 34,070 | | |
| 34,070 | |
| |
| | | |
| | | |
| | |
Harold Jacob, M. D. (6) | |
| - | | |
| 8,288 | | |
| 8,288 | |
(1)
In accordance with SEC rules, the amounts in this column reflect the dollar amounts to be recognized for financial statement reporting
purposes with respect to the 2021 fiscal year in accordance with ASC Topic 718. Fair value is based on the Black-Scholes option pricing
model using the market price of the underlying shares at the grant date. For additional discussion of the valuation assumptions used
in determining stock-based compensation and the grant date fair value for stock options, see “Management’s Discussion and
Analysis of Financial Condition and Results of Operation - Critical Accounting Policies - Stock-based compensation” and Note 3-”Significant
Accounting Policies” and Note 6-”Stockholders’ Equity” to our audited consolidated financial statements for the
fiscal year ended December 31, 2021, included in the Form 10-K.
(2)
As of December 31, 2021, Mr. Fashek had outstanding options representing the right to purchase 292,000 shares of our common stock and
no outstanding stock awards of shares of common stock.
(3)
As of December 31, 2021, Mr. Mika had outstanding options representing the right to purchase 220,000 shares of our common stock and no
outstanding stock awards of shares of common stock.
(4)
As of December 31, 2021, Mr. Ferguson had outstanding options representing the right to purchase 205,000 shares of our common stock and
no outstanding stock awards of shares of common stock.
(5)
As of December 31, 2021, Mr. Goldstein had outstanding options representing the right to purchase 254,000 shares of our common stock
and no outstanding stock awards of shares of common stock.
(6)
As of December 31, 2021, Dr. Jacob had outstanding options representing the right to purchase 169,285 shares of our common stock and
no outstanding stock awards of shares of common stock.
On
October 13, 2016, we entered into an agreement with Christopher Fashek to serve as the chairman of our Board. Under this agreement Mr.
Fashek was paid $100,000 per year payable in semi-monthly installments. On November 1, 2018, the Compensation committee voted to increase
Mr. Fashek’s consulting fee to $150,000 per year. Mr. Fashek is also entitled to receive a year-end bonus of up to $25,000 to be
determined by the compensation committee.
On
November 2, 2020, the Company entered into an option cancellation and release agreement with each of Brian Murphy, Christopher Fashek,
Martin Goldstein, Michael Ferguson, Stephen Brown, and Thomas Mika (collectively, the “Option holders”), pursuant to which
the parties agreed to cancel options to purchase an aggregate of 804,788 shares of common stock of the Company at exercise prices ranging
from $2.57 to $6.00 (the “Options”) previously granted to each of the Optionholders. In exchange for the cancellation of
the Options, the Company paid $1.00 to each Optionholder.
Outside
of compensation to our chairman, Christopher Fashek, we paid no compensation to our non-employee directors for the one-year period ended
December 31, 2021.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
Review,
Approval or Ratification of Transactions with Related Parties
Generally,
we do not enter into related party transactions unless the members of the Board who do not have an interest in the potential transaction
have reviewed the transaction and determined that (i) we would not be able to obtain better terms by engaging in a transaction with a
non-related party and (ii) the transaction is in our best interest. In approving or rejecting any such proposal, our Board considers
all of the relevant facts and circumstances of the related party transaction and the related party’s relationship and interest
in the transaction. This policy applies generally to any transaction in which we are to be a participant and the amount involved exceeds
the lesser of $120,000 or one percent of the average of our total assets at year-end for the previous two completed fiscal years, and
in which any related person had or will have a direct or indirect material interest. This policy is not currently in writing.
The
audit committee is charged with reviewing, approving and overseeing any transaction between the Company and any related person (as defined
in Item 404 of Regulation S-K) and any other potential conflict of interest situations in accordance with Company policies and procedures.
All of the transactions described below were entered into prior to the establishment of our audit committee and were evaluated in accordance
with the policy described in the paragraph above. Prior to approving such transactions, the material facts as to a director’s or
officer’s relationship or interest as to the agreement or transaction were disclosed to our Board. Our Board took this information
into account when evaluating the transaction and in determining whether such transaction was fair to us and in the best interest of all
of our stockholders.
Transactions
with Related Parties
Other
than compensation agreements and other arrangements which are described as required under “Director Compensation” and “Executive
Compensation” and the transactions described below, since January 1, 2020, there has not been, and there is not currently proposed,
any transaction or series of similar transactions to which we were or will be a party in which the amount involved exceeded or will exceed
the lesser of $120,000 or one percent of the average of our total assets at year-end for the last two completed fiscal years and in which
any director, executive officer, holder of 5% or more of any class of our capital stock, or any member of their immediate family had
or will have a direct or indirect material interest.
MTSG
Agreement
On
January 1, 2022 we entered into an International Marketing, Sales and Clinical Management Agreement (the “MTSG Agreement”)
with MedTech Solutions Group, LLC (“MTSG”). Our Chairman of the Board, Christopher Fashek, is also the Chairman of MedTech.
We appointed MTSG to provide international marketing, sales and clinical management expertise for commercialization of our products in
certain countries in Europe (excluding England, Scotland, Wales, Rep. of Ireland, Northern Ireland, Malta and Turkey), Africa, Asia,
Central and South America, and North America (Excluding the United States and Canada) as well as Israel and Palestine.
As
compensation, the MTSG Agreement provides that during the first twelve months of the MTSG Agreement while the territory of the MTSG Agreement
is being built up, MTSG would receive a monthly management fee of $10,000 per month. After the first year and through the duration of
the term of the MTSG Agreement, compensation will be a double-digit percentage of the net product sales, except MTSG may receive $10,000
per month during the period of time product sales is affected by certain interruption in operations.
The
MTSG Agreement also provides an incentive and reward to MTSG for meeting revenue targets set forth in the MTSG Agreement by allowing
MTSG or its designees to be entitled to additional consideration in the form of annual grants of stock warrants at the Company’s
discretion. On June 14, 2022, MTSG was awarded warrants for up to 250,000 shares of common stock, with an exercise price of $1.00 per
share, that are exercisable at any time after the date that is six months from the date of issuance and expire at 5:00pm, New York time,
on June 14, 2029.
The
MTSG Agreement has a term of five years with an automatic renewal for an additional three-year term, unless either party provides at
least twelve-months notice. Either party may unilaterally terminate the MTSG Agreement at any time due to, among other things, a material
breach by a party of any provision of the MTSG Agreement, reorganization, liquidation, bankruptcy or other such proceedings by or against
us, our inability to timely or in good faith pursue or maintain an FDA Clearance or CE Mark in the territory, or either party undergoes
a change in control. MTSG’s failure to meet the annual performance objectives as agreed upon by the parties may be deemed a breach
of the MTSG Agreement, and the Company may unilaterally terminate the agreement. If the change of control of the Company occurs and gives
rise to termination of the MTSG Agreement within the first year of the MTSG Agreement, the Company will be required to pay the higher
of (a) the average of the highest three consecutive months of the MTSG management fee during the preceding 12 months or the length of
the term to date multiplied by 12, or (b) 125,000.
On
September 30, 2022, the MTSG Agreement was cancelled.
Warrant
Exercises
On
January 21, 2021, Company entered into letter agreements (the “Letter Agreements”) with certain existing accredited investors
to exercise certain outstanding warrants (the “Existing Warrants”) to purchase up to an aggregate of 1,205,967 shares of
the Company’s common stock at an exercise price per share of $1.165 (the “Exercise”). Certain of the Existing Warrants
(the “Registered Existing Warrants”) and the shares of common stock underlying the Registered Existing Warrants have been
registered pursuant to a registration statement on Form S-3 (File No. 333-251264) and a registration statement on Form S-1 (File No.
333-218871). In consideration for the exercise of the Existing Warrants for cash, the exercising holders will receive new unregistered
warrants to purchase up to an aggregate of 1,205,967 shares of common stock (the “New Warrants”) at an exercise price of
$1.04 per share and with an exercise period of seven years from the initial closing date of January 22, 2021. The gross proceeds to the
Company from the Exercise were approximately $1.4 million. The Company currently intends to use the net proceeds from the Exercise for
working capital and general corporate purposes.
Option
Cancellation
On
November 2, 2020, we entered into an option cancellation and release agreement with the several Option holders, pursuant to which the
parties agreed to cancel the Options previously granted to each of the Option holders. In exchange for the cancellation of the Options,
we paid $1.00 to each Option holder. See “Director Compensation.”
Board
members resignation and severance agreement
Dr.
Zumeris served as our director from September 2003 to July 2018. On July 4, 2018, we and Dr. Zumeris and his wife, Janina (Ina) Zumeris
entered into a Separation and Release Agreement (the “Separation Agreement”). Upon meeting certain milestones to our satisfaction
and fulfilling other obligations under the Separation Agreement, (i) Dr. Zumeris and Janina Zumeris, was entitled to receive as consulting
payments an aggregate of approximately $18,000 per month for 12 months, commencing 30 days after the Termination Date; (ii) our management,
beginning on November 4, 2018, was required to use our best efforts to allow the sale of the Company’s securities owned by Dr.
Zumeris, provided that such sale would be in compliance with the applicable U.S. securities laws and regulations, and provided further,
that, if our shares of common stock held by Dr. Zumeris had not been sold at a price lower than $4.45 during the fourteen month period
from July 4, 2018, and the value of the unsold securities Dr. Zumeris owned plus the value of cash received by Dr. Zumeris from the sale
of our securities during such fourteen month period (the “Aggregate Amount”), in aggregate, was less than $950,000, then
we were required to make up the difference between $950,000 and the Aggregate Amount by extending the term of engagement of Dr. Zumeris
and Janina Zumeris’s consulting services. In addition, if we (i) granted a license for the skin rejuvenation technology, then we
were required pay Dr. Zumeris 10% from the payments received by the Company until an aggregate amount of $100,000,000 was paid to Dr.
Zumeris, (ii) sold the skin rejuvenation technology and/or the rights to such as a standalone product, we were required to pay Dr. Zumeris
$100,000 from the proceeds of such sale, or (iii) sold the skin rejuvenation devices, we were required pay Dr. Zumeris $5,000 per unit
an aggregate amount of $100,000 has been paid to Dr. Zumeris.
As
of December 31, 2018, Dr. Zumeris exercised options under $4.45 a share; and the Company did not record a liability for this transaction
in 2019. During the year ended December 31, 2018, the Company incurred expenses of $108,000 associated with the Separation Agreement.
During the year ended December 31, 2019, the Company incurred expenses of $37,000 associated with the Separation Agreement.
On
December 17, 2019, a lawsuit was filed by a former officer and director, Jona Zumeris, in the Haifa Israel District Financial Court,
seeking damages of approximately $900,000 for breach of the Separation Agreement executed on July 4, 2018. In January 2021, the parties
reached a settlement in which the Company paid the plaintiff approximately $366,000 as settlement in full.
As
of October 17, 2022, there are no proposed transactions with related persons.
EXECUTIVE
OFFICERS
The
following table sets forth the names, ages and positions of our executive officers and certain significant employees as of October 17,
2022:
Name |
|
Age |
|
Position |
Brian Murphy |
|
65 |
|
Chief Executive Officer and Director |
|
Stephen Brown |
|
66 |
|
Chief Financial Officer |
Harold Jacob, M.D. |
|
67 |
|
Chief Medical Officer and Director |
Brian
Murphy Please see biography of Mr. Murphy on page 16 of this proxy statement .
Harold
Jacob, M.D. Please see biography of Dr. Jacob on page 15 of this proxy statement .
Stephen
Brown. Mr. Brown has served as our chief financial officer since October 5, 2020. Previously, Mr. Brown served as the Company’s
Chief Financial Officer from February 3, 2015 through April 30, 2019 and continued to serve as a financial consultant for the Company
until his appointment as Chief Financial Officer on October 5, 2020. Mr. Brown previously served as Chief Financial Officer for IDT Corporation
(NYSE: IDT) from April 1995 to January 2009, during which time he oversaw the initial public offering of a start-up telecommunications
company and guided it through the spin-offs of two subsidiaries, various public offerings and bank facilities. During his tenure at IDT,
Mr. Brown also served on IDT’s board of directors for six years and on the board of directors of Net2Phone Inc. for five years.
Mr. Brown was also the founder and chairman of IDT Entertainment Inc., a movie studio and media subsidiary of IDT. From 2009 to the present,
Mr. Brown has served as a managing partner of The Mcguffin Group Financial, a financial and business consulting firm concentrating on
advising early stage and micro-cap companies. He is also a partner in an accounting and tax practice, Brown, Brown and Associates. Mr.
Brown was formerly a certified public accountant, is a member of the Academy of Television Arts and Sciences and serves on the board
of directors for several educational institutions, including on the Board of Governors for Touro College.
EXECUTIVE
COMPENSATION
The
following table sets forth the names and positions of: (i) each person who served as our principal executive officer during the year
ended December 31, 2021; (ii) our most highly compensated executive officer, other than our principal executive officer, who was serving
as an executive officer, as determined in accordance with the rules and regulations promulgated by the SEC, as of December 31, 2021,
with compensation of $100,000 or more, and (iii) an additional individual for whom disclosure would have been provided pursuant to clause
(ii) but for the fact that the individual was not serving as our executive officer at December 31, 2021 (collectively our “Named
Executive Officers”):
Name |
|
Position |
Brian Murphy |
|
Chief Executive Officer |
Stephen Brown |
|
Chief Financial Officer |
Summary
Compensation Table
The
following table sets forth all compensation earned, in all capacities, during the fiscal years ended December 31, 2021 and 2020 by the
Company’s named executive officers.
Name and Principal Position | |
Year | | |
Salary ($) | | |
Bonus ($)(1) | | |
Option Awards ($)(2) | | |
All Other Compensation ($) | | |
Total ($)(2) | |
Brian Murphy | |
| 2021 | | |
| 231,000 | | |
| 88,000 | | |
| 85,939 | | |
| | | |
| 404,939 | |
| |
| 2020 | | |
| 231,000 | | |
| 90,000 | | |
| 43,599 | | |
| | | |
| 364,599 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Stephen Brown (3) | |
| 2021 | | |
| 200,000 | | |
| 50,000 | | |
| 21,485 | | |
| | | |
| 271,485 | |
| |
| 2020 | | |
| 49,500 | | |
| 20,000 | | |
| 27,485 | | |
| 138,000 | (4) | |
| 234,985 | |
(1) |
Represents incentive compensation
payments earned. |
(2) |
In
accordance with SEC rules, the amounts in this column reflect the dollar amounts to be recognized for financial statement reporting
purposes with respect to the twelve-month period ended December 31, 2021 in accordance with ASC Topic 718. Fair value is based on
the Black-Scholes option pricing model using the market price of the underlying shares at the grant date. For additional discussion
of the valuation assumptions used in determining stock-based compensation and the grant date fair value for stock options, see “Management’s
Discussion and Analysis of Financial Condition and Results of Operation - Critical Accounting Policies - Stock-based compensation”
and Note 3-”Significant Accounting Policies” and Note 7-”Stockholders’ Equity (Deficiency)” to our
audited consolidated financial statements for the fiscal year ended December 31, 2021, included in the 2020 Annual Report. |
(3) |
Mr.
Brown resigned as our chief financial officer on May 31, 2019 and continued to serve as a financial consultant for thereafter. Mr.
Brown was appointed again as our chief financial officer, effective October 5, 2020. |
(4) |
Includes
$138,000 paid pursuant to a consulting arrangement during 2020 before Mr. Brown’s employment by the Company on October 5, 2020. |
Narrative
Disclosure to Summary Compensation Table
Employment
Agreements
We
have entered into agreements with each of our Named Executive Officers. A description of each of these agreements follows.
Brian
Murphy
On
October 13, 2016, we entered into an employment agreement with Mr. Murphy, effective as of the same date. Under the terms of the employment
agreement, the term of Mr. Murphy’s employment as the chief executive officer of the Company is three years unless earlier terminated.
The employment agreement expired on October 13, 2019. After that date, Mr. Murphy became an employee at will.
Under
the employment agreement, Mr. Murphy was entitled to an annual base salary of $181,000 less applicable payroll deductions and tax withholdings
for all services rendered by him under the employment agreement. Notwithstanding the foregoing, his base salary was automatically increased
to: (i) $200,000, less applicable payroll deductions and tax withholdings, effective as of January 1 of the calendar year immediately
following any calendar year during which we generated gross sales (as determined in accordance with generally accepted accounting principles
consistently applied) exceeding $1,000,000; and (ii) $225,000, less applicable payroll deductions and tax withholdings, effective as
of January 1 of the calendar year immediately following any calendar year during which we generated gross sales (as determined in accordance
with generally accepted accounting principles consistently applied) exceeding $2,000,000.
Pursuant
to the employment agreement, commencing in 2017, Mr. Murphy was eligible to receive an annual bonus (“Performance Bonus”)
during each year of the term of the agreement. For 2019 and 2020, Mr. Murphy was eligible to receive a target bonus in an amount of up
to $100,000, less applicable payroll deductions and tax withholdings, based on the extent to which Mr. Murphy has met performance criteria
for the year, as determined in good faith by the Board, which shall be paid in the calendar year after the calendar year to which the
Performance Bonus relates within thirty (30) days of our issuance of our audited financial statements on Form 10-K. In 2019 and 2020,
Mr. Murphy received a target bonus in an amount of $57,231 and $90,000, respectively.
Mr.
Murphy’s employment agreement also contained certain noncompetition, non-solicitation, non-disparagement, confidentiality and assignment
of work product requirements for Mr. Murphy.
On
November 1, 2018, the compensation committee voted to increase Mr. Murphy’s annual base salary to $231,000 per year and a discretionary
annual bonus of $100,000 to be decided by the compensation committee annually.
On
January 1, 2022, we entered into a new employment agreement with Mr. Murphy (the “2022 Murphy Employment Agreement”), with
an annual base salary of $300,000 less applicable payroll deductions and tax withholdings for all services rendered by him under the
2022 Murphy Employment Agreement and a target bonus in an amount of up to $100,000, less applicable payroll deductions and tax withholdings,
based on the extent to which Mr. Murphy has met performance criteria for the year, as determined in good faith by the Board.
In
addition, pursuant to the 2022 Murphy Employment Agreement, Mr. Murphy is eligible to receive certain stock options, restricted stock,
stock appreciation rights or similar stock-based rights granted to Mr. Murphy as set forth separately in applicable award agreements.
The
2022 Murphy Employment Agreement has a term of two years and also contains certain noncompetition, non-solicitation, non-disparagement,
confidentiality and assignment of work product requirements for Mr. Murphy.
For
the years ended December 31, 2021 and December 31, 2020, the compensation committee approved performance bonuses of $88,000 and $90,000,
respectively.
Stephen
Brown
Mr.
Brown resigned as our chief financial officer on May 31, 2019. On July 1, 2019, we entered into a consulting agreement with The Mcguffin
Group LLC, pursuant to which Mr. Brown was entitled to $12,500 per month, paid monthly, for his services as a finance consultant. He
was also entitled to an annual bonus consistent with bonuses received by consultant in previous years. This agreement was terminated
on October 5, 2020.
On
October 5, 2020, we entered into an Employment Agreement with Stephen Brown, pursuant to which we appointed Mr. Brown as Chief Financial
Officer, effective October 5, 2020, with a term to continue in effect until terminated by either party. As consideration for his services
as Chief Financial Officer, Mr. Brown is entitled to receive (i) an annual base salary of $200,000, less applicable payroll deductions
and tax; (ii) reimbursement of any reasonable and customary, documented out-of-pocket expenses actually incurred by Mr. Brown in connection
with the performance of his services under the Employment Agreement; and (iii) an annual bonus of $25,000, if earned, as determined by
us in our sole discretion. Mr. Brown is also eligible to receive certain grants of incentive stock options to purchase shares of our
common stock.
On
January 1, 2022, we entered into a new employment agreement with Mr. Brown (the “2022 Brown Employment Agreement”), with
an annual base salary of $250,000 less applicable payroll deductions and tax withholdings for all services rendered by him under the
employment agreement and a target bonus in an amount of up to $50,000, less applicable payroll deductions and tax withholdings, based
on the extent to which Mr. Brown has met performance criteria for the year, as determined in good faith by the Board.
The
2022 Brown Employment Agreement has a term of two years and also contains certain noncompetition, non-solicitation, non-disparagement,
confidentiality and assignment of work product requirements for Mr. Brown.
For
the years ended December 31, 2021 and December 31, 2020, the compensation committee approved performance bonus of $50,000 and $20,000,
respectively.
Retirement,
Health, Welfare and Additional Benefits
All
of our Named Executive Officers are eligible to participate in our employee benefit plans and programs, including medical benefits, to
the same extent as our other full-time employees, subject to the terms and eligibility requirements of those plans.
2004
Global Share Option Plan
In
November 2004, our Board adopted the 2004 Global Share Option Plan, pursuant to which 400,000 shares of our common stock are reserved
for issuance as awards to employees, directors, consultants and other service providers. The purpose of the 2004 Global Share Option
Plan is to provide an incentive to attract and retain directors, officers, consultants, advisors and employees, to encourage a sense
of proprietorship and stimulate an active interest of such persons in our development and financial success. The 2004 Global Share Option
Plan which was administered by our Board expired on February 28, 2014.
NanoVibronix,
Inc. 2014 Long-Term Incentive Plan
On
February 28, 2014, our stockholders approved the NanoVibronix, Inc. 2014 Long-Term Incentive Plan (the “2014 Plan”, and together
with the 2004 Global Share Option Plan referred to herein as the “Incentive Plans”), which was adopted by our Board on February
19, 2014.
Under
the 2014 Plan, we originally reserved a total of five million (5,000,000) shares of our common stock for issuance pursuant to awards
to key employees, key contractors, and non-employee directors, of which, the maximum number of shares of common stock covering awards
of stock options or stock appreciation rights that could be granted to certain of our executive officers during any calendar year was
one million (1,000,000) shares. On May 7, 2014, we effected a one-for-seven reverse stock split of our common stock. Consequently, the
number of shares of our common stock reserved for issuance pursuant to awards under the 2014 Plan was reduced to seven hundred fourteen
thousand two hundred eighty-six (714,286) shares, and the maximum number of shares of our common stock covered by awards of stock options
or stock appreciation rights that could be granted to certain of our executive officers during any calendar year was reduced to one hundred
forty-two thousand eight hundred fifty-seven (142,857) shares. On June 13, 2018, the stockholders approved an amendment to the 2014 Plan
to increase the number of shares of our common stock reserved for issuance pursuant to awards under the 2014 Plan by an additional seven
hundred and fifty thousand (750,000) shares of our common stock to one million four hundred sixty-four thousand two hundred eighty-six
(1,464,286) shares.
On
June 13, 2018, the stockholders approved an amendment to the 2014 Plan to increase (i) the number of shares of our Common Stock reserved
for issuance pursuant to awards under the 2014 Plan by an additional seven hundred and fifty thousand (750,000) shares of our Common
Stock, to a total of one million four hundred sixty-four thousand two hundred eighty-six (1,464,286) shares of our Common Stock, and
(ii) the maximum number of shares of our Common Stock covering awards of stock options or stock appreciation rights that could be granted
to certain of our executive officers during any calendar year to a total of two hundred seventy-five thousand (275,000) shares of our
Common Stock (the “First Amendment”). On June 13, 2019, the stockholders approved a second amendment to the 2014 Plan to
increase (i) the number of shares of our Common Stock available for issuance pursuant to awards under the 2014 Plan by four hundred thousand
(400,000) shares of our Common Stock, to a total of one million eight hundred and sixty-four thousand two-hundred eighty-six (1,864,286)
shares of our Common Stock, and (ii) the maximum number of shares of our Common Stock covering awards of stock options or stock appreciation
rights that could be granted to certain of our executive officers during any calendar year to a total of three hundred fifty four thousand
two-hundred fourteen (354,214) shares of our Common Stock (the “Second Amendment”). On December 29, 2021, the stockholders
approved a third amendment to the 2014 Plan that (i) intended to increase the number of shares of our Common Stock available for issuance
pursuant to awards under the 2014 Plan by one million five hundred thousand (1,500,000) shares of our Common Stock to a total of three
million three hundred sixty-four thousand two-hundred eighty-six (3,364,286) shares of our Common Stock, but a scrivener’s error
in this amendment only increased the number of shares of our Common Stock available for issuance pursuant to awards under the 2014 Plan
to a total of three million three hundred forty-six thousand two-hundred eighty-six (3,346,286) shares of our Common Stock (the “Third
Amendment Discrepancy”), and (ii) increased the maximum number of shares of our Common Stock covering awards of stock options or
stock appreciation rights that could be granted to certain of our executive officers during any calendar year to six hundred sixty-nine
thousand two-hundred fifty-seven (669,257) shares of our Common Stock (the “Third Amendment”).
The
2014 Plan provides for the granting of incentive stock options, nonqualified stock options, stock appreciation rights, restricted stock,
restricted stock units, performance awards, dividend equivalent rights, and other awards, which may be granted singly, in combination,
or in tandem, and which may be paid in cash, shares of our common stock, or a combination of cash and shares of our common stock. We
have reserved a total of 1,864,286 shares of our common stock for awards under the 2014 Plan, 100% of which may be delivered pursuant
to incentive stock options.
The
purpose of the 2014 Plan is to provide an incentive to attract and retain services of key employees, key contractors, and outside directors
whose services are considered valuable, to encourage a sense of proprietorship and to stimulate active interest of such persons in our
development and financial success. The 2014 Plan is intended to serve as an “umbrella” plan for us and our subsidiaries worldwide.
Therefore, if so required, appendices may be added to the 2014 Plan in order to accommodate local regulations in foreign countries that
do not correspond to the scope of the 2014 Plan. Unless terminated earlier by the Board, the 2014 Plan will expire on February 19, 2024.
As of December 31, 2021, there were 115,742 options available for future issuance under the 2014 Plan.
Description
of the 2014 Plan
Purpose.
The purpose of the 2014 Plan is to enable us to remain competitive and innovative in our ability to attract and retain the services of
key employees, key contractors, and non-employee directors. The 2014 Plan provides for the granting of incentive stock options, nonqualified
stock options, stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalent rights, and
other awards, which may be granted singly, in combination, or in tandem, and which may be paid in cash or shares of our Common Stock.
The 2014 Plan is expected to provide flexibility to our compensation methods in order to adapt the compensation of key employees, key
contractors, and non-employee directors to a changing business environment, after giving due consideration to competitive conditions
and the impact of applicable tax laws.
Effective
Date and Expiration. The 2014 Plan was originally approved by our Board on February 19, 2014 and became effective upon stockholder
approval on February 28, 2014. The 2014 Plan will terminate on February 19, 2024, unless sooner terminated by our Board. No award may
be made under the 2014 Plan after its termination date, but awards made prior to the termination date may extend beyond that date.
Share
Authorization. Subject to certain adjustments, the number of shares of our Common Stock that are reserved for issuance pursuant to
awards under the 2014 Plan, prior to the adoption of the Plan Amendment and after giving effect to a one-for-seven reverse stock split
that occurred on May 7, 2014 and the Prior Amendments (including the Third Amendment Discrepancy), is three million three hundred forty-six
thousand two hundred eighty-six (3,346,286) shares, of which 100% may be delivered pursuant to incentive stock options. If the Plan Amendment
is approved, the total number of shares that may be issued pursuant to awards under the 2014 Plan will be increased to four million eight
hundred sixty-four thousand two hundred eighty-six (4,864,286) shares. Subject to certain adjustments, with respect to any participant
who is an officer of our company and subject to Section 16 of the Securities Exchange Act of 1934, as amended, or a “covered employee”
as defined in Section 162(m)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), a maximum of six hundred sixty-nine
thousand two hundred fifty-seven (669,257) shares may be granted in any one year in the form of stock options or stock appreciation rights
to such participant.
Shares
to be issued may be made available from authorized but unissued shares of our Common Stock, shares held by us in our treasury, or shares
purchased by us on the open market or otherwise. During the term of the 2014 Plan, we will at all times reserve and keep enough shares
available to satisfy the requirements of the 2014 Plan. If an award under the 2014 Plan is cancelled, forfeited, or expires, in whole
or in part, the shares subject to such forfeited, expired, or cancelled award may again be awarded under the 2014 Plan. In the event
that previously acquired shares are delivered to us in full or partial payment of the option price for the exercise of a stock option
granted under the 2014 Plan, the number of shares available for future awards under the 2014 Plan shall be reduced only by the net number
of shares issued upon the exercise of the stock option or settlement of an award. Awards that may be satisfied either by the issuance
of Common Stock or by cash or other consideration shall be counted against the maximum number of shares that may be issued under the
2014 Plan only during the period that the award is outstanding or to the extent the award is ultimately satisfied by the issuance of
shares. An award will not reduce the number of shares that may be issued pursuant to the 2014 Plan if the settlement of the award will
not require the issuance of shares, as, for example, a stock appreciation right that can be satisfied only by the payment of cash. Only
shares forfeited back to us; shares cancelled on account of termination, expiration, or lapse of an award; shares surrendered in payment
of the option price of an option; or shares withheld for payment of applicable employment taxes and/or withholding obligations resulting
from the exercise of a stock option shall again be available for grant as incentive stock options under the 2014 Plan, but shall not
increase the maximum number of shares described above as the maximum number of shares that may be delivered pursuant to incentive stock
options.
Administration.
The 2014 Plan is administered by the compensation committee of our Board (the “Committee”). At any time there is no Committee
to administer the 2014 Plan, any reference to the Committee is a reference to the Board. The Committee will determine the persons to
whom awards are to be made; determine the type, size, and terms of awards; interpret the 2014 Plan; establish and revise rules and regulations
relating to the 2014 Plan and any sub-plans, including, without limitation, any sub-plans for awards made to participants who are not
residents of the United States; establish performance goals for awards and certify the extent of their achievement; and make any other
determinations that it believes necessary for the administration of the 2014 Plan. The Committee may delegate certain duties to one or
more of our officers as provided in the 2014 Plan.
Eligibility.
Employees (including any employee who is also a director or an officer), contractors, and non-employee directors of us or our subsidiaries
whose judgment, initiative, and efforts contributed to or may be expected to contribute to our successful performance are eligible to
participate in the 2014 Plan. As of the Record Date, we had 8 employees, 10 contractors, and 7 directors who would be eligible for awards
under the 2014 Plan.
Stock
Options. The Committee may grant either incentive stock options (“ISOs”) qualifying under Section 422 of the Code or
nonqualified stock options, provided that only employees of us and our subsidiaries (excluding subsidiaries that are not corporations)
are eligible to receive ISOs. Stock options may not be granted with an option price less than 100% of the fair market value of a share
of Common Stock on the date the stock option is granted. If an ISO is granted to an employee who owns or is deemed to own more than 10%
of the combined voting power of all classes of our stock (or any parent or subsidiary), the option price shall be at least 110% of the
fair market value of a share of Common Stock on the date of grant. The Committee will determine the terms of each stock option at the
time of grant, including, without limitation, the methods by or forms in which shares will be delivered to participants. The maximum
term of each option, the times at which each option will be exercisable, and provisions requiring forfeiture of unexercised options at
or following termination of employment or service generally are fixed by the Committee, except that the Committee may not grant stock
options with a term exceeding 10 years or, in the case of an ISO granted to an employee who owns or is deemed to own more than 10% of
the combined voting power of all classes of our stock (or any parent or subsidiary), a term exceeding five years.
Recipients
of stock options may pay the option price (i) in cash, check, bank draft, or money order payable to the order of the Company; (ii) by
delivering to us shares of Common Stock (included restricted stock) already owned by the participant having a fair market value equal
to the aggregate option price and that the participant has not acquired from us within six months prior to the exercise date; (iii) by
delivering to us or our designated agent an executed irrevocable option exercise form together with irrevocable instructions from the
participant to a broker or dealer, reasonably acceptable to us, to sell certain of the shares purchased upon the exercise of the option
or to pledge such shares to the broker as collateral for a loan from the broker and to deliver to us the amount of sale or loan proceeds
necessary to pay the purchase price; and (iv) by any other form of valid consideration that is acceptable to the Committee in its sole
discretion.
Outstanding
Equity Awards at Fiscal Year-End
The
following table provides information on the holdings of stock options of the Named Executive Officer at December 31, 2021. This table
includes unexercised and unvested options awards. Each outstanding award is shown separately.
| |
Option Awards |
| |
| |
| Number of | | |
| Number of | | |
| | | |
|
| |
| |
| Securities | | |
| Securities | | |
| | | |
|
| |
| |
| Underlying | | |
| Underlying | | |
| Option | | |
|
| |
| |
| Unexercised | | |
| Unexercised | | |
| Exercise | | |
Option |
| |
Date of | |
| Options (#) | | |
| Options (#) | | |
| Price | | |
Expiration |
Name | |
Grant | |
| Exercisable | | |
| Unexercisable | | |
| ($) | | |
Date |
| |
| |
| | | |
| | | |
| | | |
|
Brian Murphy (1) | |
October 1, 2020 | |
| 50,000 | | |
| 160,000 | (2) | |
| 0.72 | | |
October 2, 2030 |
| |
December 23, 2020 | |
| 40,000 | | |
| - | | |
| 0.84 | | |
December 24, 2030 |
(4) | |
December 29, 2021 | |
| | | |
| 300,000 | | |
| 1.01 | | |
December 29, 2031 |
Stephen Brown (1) | |
October 1, 2020 | |
| 50,000 | | |
| - | | |
| 0.72 | | |
October 2, 2030 |
| |
December 23, 2020 | |
| 10,000 | (3) | |
| 40,000 | (3) | |
| 0.84 | | |
December 24, 2030 |
(4) | |
December 29,2021 | |
| | | |
| 100,000 | | |
| 1.01 | | |
December 29, 2031 |
(1)
On November 2, 2020, we entered into an option cancellation and release agreement with Brian Murphy and Stephen Brown, pursuant to which
the parties agreed to cancel options to purchase an aggregate of 296,020 shares of our common stock at exercise prices ranging from $2.57
to $6.00 (the “Options”) previously granted to each of the Option holders. In exchange for the cancellation of the Options,
we paid $1.00 to each Option holder.
(2)
These options vest 20% on March 23, 2021, 20% on June 23, 2021, 20% on September 23, 2021 and 20% on December 23, 2021.
(3)
These options vest 20% on March 23, 2021, 20% on June 23, 2021, 20% on September 23, 2021 and 20% on December 23, 2021.
(4)
These options vest 8.3% on March 29, 2022 and 8.3% every subsequent three months.
Equity
Compensation Plan Information
The
following table provides certain information as of December 31, 2021 with respect to our equity compensation plans under which our equity
securities are authorized for issuance:
| |
(a) | | |
(b) | | |
(c) | |
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 column (a)) | |
Equity compensation plans approved by security holders (1) | |
| 2,539,999 | | |
$ | 1.05 | | |
| - | |
Equity compensation plans not approved by security holders | |
| - | | |
| - | | |
| - | |
Total | |
| 2,539,999 | | |
$ | 1.05 | | |
| - | |
(1) |
Represents
shares available for issuance under the 2014 Plan. |
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth information with respect to the beneficial ownership of our common stock as of November 1, 2022, by:
● |
each
person known by us to beneficially own more than 5.0% of our common stock; |
|
|
● |
each
of our directors; |
|
|
● |
each
of the Named Executive Officers; and |
|
|
● |
all
of our directors and executive officers as a group. |
The
percentages of common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial
ownership of securities. Under the rules of the SEC, a person is deemed to be a beneficial owner of a security if that person has or
shares voting power, which includes the power to vote or to direct the voting of the security, or investment power, which includes the
power to dispose of or to direct the disposition of the security.
Except
as indicated in the footnotes to this table, each beneficial owner named in the table below has sole voting and sole investment power
with respect to all shares beneficially owned and each person’s address is c/o NanoVibronix, Inc., 525 Executive Blvd, Elmsford,
NY 10523. As of November 1, 2022, we had 27,997,793 shares of common stock, 0 shares of Series C Preferred Stock,
0 shares of Series D Preferred Stock and 0 shares of Series E Preferred Stock outstanding.
Name of Beneficial Owner | |
Number of Shares Beneficially Owned (1) | | |
Percentage of Shares Outstanding (1) | |
5% Owners | |
| | | |
| | |
None. | |
| | | |
| | |
| |
| | | |
| | |
Directors and Officers | |
| | | |
| | |
Stephen Brown | |
| 166,400 | (2) | |
| 1.0 | % |
Harold Jacob, M.D. | |
| 260,111 | (3) | |
| 1.0 | % |
Martin Goldstein, M.D. | |
| 279,000 | (4) | |
| 1.0 | % |
Michael Ferguson | |
| 233,750 | (5) | |
| 1.0 | % |
Thomas R. Mika | |
| 250,000 | (6) | |
| 1.0 | % |
Christopher Fashek | |
| 317,000 | (7) | |
| 1.1 | % |
Brian Murphy | |
| 449,200 | (8) | |
| 1.6 | % |
Aurora Cassirer | |
| 27,000 | (9) | |
| - | |
Maria Schroeder | |
| 25,000 | (10) | |
| - | |
All directors and executive officers as a group (9 persons) | |
| 2,011,461 | | |
| 6.73 | % |
|
(1) |
Shares
of Common Stock beneficially owned and the respective percentages of beneficial ownership of Common Stock assume the exercise of
all options, warrants and other securities convertible into Common Stock beneficially owned by such person or entity currently exercisable
or exercisable within 60 days of November 1, 2022. Shares issuable pursuant to the exercise of stock options and warrants
exercisable within 60 days are deemed outstanding and held by the holder of such options or warrants for computing the percentage
of outstanding Common Stock beneficially owned by such person, but are not deemed outstanding for computing the percentage of outstanding
Common Stock beneficially owned by any other person. |
|
|
|
|
(2) |
Comprised
of 4,000 shares of Common Stock held by Mr. Brown and 166,400 shares of stock that may be purchased by Mr. Brown upon exercise
of stock options that are currently exercisable or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(3) |
Comprised
of (i) 64,178 shares of Common Stock held by Medical Instrument Development Inc., an entity controlled by Dr. Jacob, (ii)
12,362 shares of Common Stock held by Dr. Jacob, and (iii) 183,571 shares of Common Stock that may be purchased by Dr.
Jacob upon the exercise of stock options. |
|
|
|
|
(4) |
Comprised
of 279,000 shares of stock that may be purchased by Dr. Goldstein upon exercise of stock options that are currently exercisable
or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(5) |
Comprised
of 233,750 shares of stock that may be purchased by Mr. Ferguson upon exercise of stock options that are currently exercisable
or exercisable within 60 days following November 1, 2022. |
|
(6) |
Comprised
of 250,000 shares of stock that may be purchased by Mr. Mika upon exercise of stock options that are currently exercisable
or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(7) |
Comprised
of 75,000 shares of Common Stock held by Mr. Fashek and 292,000 shares of stock that may be purchased by Mr. Fashek
upon exercise of stock options that are currently exercisable or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(8) |
Comprised
of 449,200 shares of stock that may be purchased by Mr. Murphy upon exercise of stock options that are currently exercisable
or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(9) |
Comprised
of 2,00 shares of Common Stock held by Ms. Cassirer and 25,000 shares of stock that may be purchased by Ms. Cassirer upon exercise
of stock options that are currently exercisable or exercisable within 60 days following November 1, 2022. |
|
|
|
|
(10) |
Comprised of 25,000 shares of stock that may be purchased
by Ms. Schroder upon exercise of stock options that are currently exercisable or exercisable within 60 days following November 1,
2022. |
REPORT
OF THE AUDIT COMMITTEE
The
audit committee assists the Board in its general oversight of the Company’s financial reporting processes. The audit committee
charter describes in greater detail the full responsibilities of the audit committee. During each fiscal year, the audit committee reviews
the Company’s financial statements, management reports, internal control over financial reporting and audit matters. In connection
with these reviews, the audit committee meets with management and independent public accountants at least once each quarter. The audit
committee schedules its meetings with a view to ensuring that it devotes appropriate attention to all of its tasks. These meetings include,
whenever appropriate, executive sessions in which the audit committee meets separately with the independent public accountants, financial
management personnel and legal counsel.
As
part of its review of audit matters, the audit committee supervises the relationship between the Company and its independent registered
public accountants, including: having direct responsibility for their appointment, compensation and retention; reviewing the scope of
their audit services; approving audit and non-audit services; and confirming the independence of the independent public accountants.
Together with senior members of the Company’s financial management team, the audit committee reviewed the overall audit scope and
plans of the independent public accountants, the results of external audit examinations, and evaluations by management of the Company’s
internal control over financial reporting and the quality of the Company’s financial reporting.
In
addition, the audit committee reviewed key initiatives and programs aimed at designing and maintaining an effective internal and disclosure
control structure. As part of this process, the audit committee continued to monitor the scope and adequacy of the steps taken to maintain
the effectiveness of internal procedures and controls.
In
performing all of these functions, the audit committee acts in an oversight capacity. The audit committee reviews and discusses the quarterly
and annual consolidated financial statements with management, and the Company’s independent public accountants prior to their issuance.
In its oversight role, the audit committee relies on the work and assurances of the Company’s management, which is responsible
for establishing and maintaining adequate internal control over financial reporting, preparing the financial statements and other reports
and maintaining policies relating to legal and regulatory compliance, ethics and conflicts of interest. Marcum LLP, is responsible for
performing an independent audit of the consolidated financial statements and expressing an opinion on the conformity of those financial
statements with accounting principles generally accepted in the United States of America. The audit committee has reviewed and discussed
the Company’s audited consolidated financial statements and related footnotes for the year ended December 31, 2021, and the independent
auditor’s report on those financial statements, with management and with our independent auditor, Marcum LLP.
The
audit committee has reviewed with the independent public accountants the matters required to be discussed by Statement on Auditing Standards
No. 16, as amended, “Communication with audit committees,” including a discussion with management and the independent public
accountants of the quality (and not merely the acceptability) of the Company’s accounting principles, the reasonableness of significant
estimates and judgments and the disclosures in the Company’s financial statements. In addition, the audit committee reviewed and
discussed with Marcum LLP matters related to its independence, including a review of audit and non-audit fees and the written disclosures
in the letter from Marcum LLP, to the audit committee required by applicable requirements of the Public Company Accounting Oversight
Board regarding the independent public accountant’s communication with the audit committee concerning independence. The audit committee
concluded that Marcum LLP is independent from the Company and its management.
Taking
all these reviews and discussions into account, the audit committee recommended to the Board that the audited financial statements be
included in NanoVibronix, Inc.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, for filing with the SEC.
AUDIT
COMMITTEE
Thomas
Mika, Chair
Michael
Ferguson
Maria
Schroeder
The
Report of the audit committee set forth in this proxy statement shall not be deemed to be “soliciting material” or to be
“filed” with the SEC or subject to Regulation 14A or 14C under the Exchange Act, or to the liabilities of Section 18 of the
Securities Exchange Act of 1934, as amended. In addition, it shall not be deemed incorporated by reference by any statement that incorporates
this proxy statement by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, as amended, except
to the extent that we specifically incorporate this information by reference.
PROPOSAL
2: Approval of an amendment to the amended and restated certificate of incorporation of the company to classify the board INTO THREE
CLASSES, WITH DIRECTORS IN EACH CLASS TO SERVE STAGGERED THREE-YEAR TERMS.
Upon
the recommendation of the Nominating and Corporate Governance Committee, the Company’s Board has approved and recommended that
the shareholders approve an amendment to the Company’s Certificate of Incorporation to provide for the classification of the Company’s
Board into three classes of directors with staggered three-year terms of office (the “Proposed Staggered Board Amendment”).
The description of the Proposed Staggered Board Amendment set forth below is qualified in its entirety by reference to the text of the
amendment to the Company’s Certificate of Incorporation creating such classified board as set forth in Appendix B,
attached hereto.
The
Company’s Certificate of Incorporation and Bylaws currently provide that all of the Company’s directors are to be elected
annually to serve until their successors have been elected and qualified. Delaware’s law provides that a Company’s Certificate
of Incorporation may provide for the staggering of the terms of its directors. If approved, the Proposed Staggered Board Amendment would
provide that the Company’s directors be classified into three classes, as nearly equal in number as possible, and with one class
being elected each year at the Annual Meeting of Stockholders to serve a staggered three-year term. However, for the initial terms immediately
following the division of the Board into three classes, directors would be assigned terms of one, two or three years, as described below.
If
the Proposed Staggered Board Amendment is approved by our stockholders, it will become effective upon the filing thereof with the Secretary
of State of the State of Delaware.
Our
Board of Directors also unanimously approved, subject to stockholder approval of the Proposed Staggered Board Amendment, an amendment
to our Bylaws in order to, among other things, implement a classified Board. No stockholder approval is being requested nor is required
with respect to such amendment of our Bylaws.
If
this Proposal 2 is approved, our Board has initially designated, if elected at the Annual Meeting, the three classes to initially contain
the following directors:
Class
I Directors (Term to Expire at the 2023 Annual Meeting)
Michael
Ferguson
Martin
Goldstein, M.D.
Class
II Directors (Term to Expire at 2024 Annual Meeting)
Harold
Jacob
Thomas
Mika
Brain
Murphy
Class
III Directors (Term to Expire at 2025 Annual Meeting)
Aurora
Cassirer
Christopher
Fashek
Maria
Schroeder
Any
additional directorships resulting from an increase in the number of directors will be distributed between the three classes so that,
as nearly as possible, each class will consist of one-third of the total number directors.
Advantages
and Disadvantages of a Classified Board of Directors
The
Proposed Staggered Board Amendment will significantly extend the time required to effect a change in control of the Company’s Board
and may discourage takeover bids for the Company. Further, it will limit the ability of any shareholder to make changes in the composition
of the Company’s Board because fewer board members will be subject to election in a given year.
The
Proposed Staggered Board Amendment is designed to assure continuity and stability in the Company’s Board and in the Company’s
management and policies since a majority of the Company’s directors at any given time will have prior experience with the Company.
The Board further believes that this continuity and stability will facilitate long-range planning.
The
Board also believes that its classification will enhance the Company’s ability to attract and retain well-qualified individuals
who are able to commit the time and resources to understand the Company, its business affairs and operations. The continuity and quality
of leadership that results from a classified Board should, in the opinion of the Board, promote the long-term value of the Company.
The
Board also believes that the Proposed Staggered Board Amendment will assist the Board in protecting the interests of the Company’s
shareholders in the event of an unsolicited offer for the Company. Because of the additional time required to change control of the Board,
the Proposed Staggered Board Amendment will tend to perpetuate present management. Without the ability to obtain immediate control of
the Board, a takeover bidder will not be able to take action to remove other impediments to an acquisition of the Company.
Because
the Proposed Staggered Board Amendment will increase the amount of time required for a takeover bidder to obtain control of the Company
without the cooperation of the Board, it will tend to discourage certain tender offers, perhaps including some tender offers that shareholders
may feel would be in their best interests. The Proposed Staggered Board Amendment is not being recommended in response to any pending
or threatened attempt to acquire control of the Company.
If
the number of directors is increased by the Board and the resultant vacancies are filled by the Board, those additional directors will
serve only until the next annual meeting of shareholders, at which time they will be subject to election and classification by the shareholders.
Required
Vote and Board Recommendation
If
a quorum is present and voting, the approval of this proposal requires the affirmative “FOR” vote of the holders of a majority
of the outstanding shares of our Common Stock. The failure to vote by proxy or to vote in person (which would include voting online at
the virtual Annual Meeting), an abstention and a failure to instruct your broker how to vote with respect to the Proposed Staggered Board
Amendment will have the same practical effect as shares voted against this proposal.
The Board recommends that you vote “FOR” the approval of the Proposed Staggered Board Proposal (Proposal 2).
PROPOSAL
3: APPROVAL OF THE REVERSE STOCK SPLIT PROPOSAL
Background
and Proposed Amendment
Our
amended and restated certificate of incorporation, as amended to date (collectively, our “restated certificate of incorporation”),
currently authorizes the Company to issue a total of 51,000,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock,
par value $0.001 per share, and 11,000,000 shares of preferred stock, par value $0.001 per share.
On
September 13, 2022 subject to stockholder approval, the Board approved an amendment to our restated certificate of incorporation to,
at the discretion of the Board, effect the Reverse Stock Split of the Common Stock at a ratio of 1-for-2 to 1-for-50, including shares
held by the Company as treasury shares, with the exact ratio within such range to be determined by the Board of the Company at its discretion.
The primary goal of the Reverse Stock Split is to increase the per share market price of our Common Stock to meet the minimum per share
bid price requirements for continued listing on Nasdaq. We believe that a range of Reverse Stock Split ratios provides us with the most
flexibility to achieve the desired results of the Reverse Stock Split. The Reverse Stock Split is not intended as, and will not have
the effect of, a “going private transaction” covered by Rule 13e-3 promulgated under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). The Reverse Stock Split is not intended to modify the rights of existing stockholders in
any material respect.
If
the Reverse Stock Split Proposal is approved by our stockholders and the Reverse Stock Split is effected, up to every 50 shares of our
outstanding Common Stock would be combined and reclassified into one share of Common Stock. The actual timing for implementation of the
Reverse Stock Split would be determined by the Board based upon its evaluation as to when such action would be most advantageous to the
Company and its stockholders. Notwithstanding approval of the Reverse Stock Split Proposal by our stockholders, the Board will have the
sole authority to elect whether or not and when to amend our restated certificate of incorporation to effect the Reverse Stock Split.
If the Reverse Stock Split Proposal is approved by our stockholders, the Board will make a determination as to whether effecting the
Reverse Stock Split is in the best interests of the Company and our stockholders in light of, among other things, the Company’s
ability to increase the trading price of our Common Stock to meet the minimum stock price standards of Nasdaq without effecting the Reverse
Stock Split, the per share price of the Common Stock immediately prior to the Reverse Stock Split and the expected stability of the per
share price of the Common Stock following the Reverse Stock Split. If the Board determines that it is in the best interests of the Company
and its stockholders to effect the Reverse Stock Split, it will hold a Board meeting to determine the ratio of the Reverse Stock Split.
For additional information concerning the factors the Board will consider in deciding whether to effect the Reverse Stock Split, see
“— Determination of the Reverse Stock Split Ratio” and “— Board Discretion to Effect the Reverse
Stock Split.”
The
text of the proposed amendment to the Company’s restated certificate of incorporation to effect the Reverse Stock Split is included
as Appendix A to this proxy statement. If the Reverse Stock Split Proposal is approved by the Company’s stockholders,
the Company will have the authority to file the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware, which
will become effective upon its filing; provided, however, that the Reverse Stock Split Amendment is subject to revision to include
such changes as may be required by the office of the Secretary of State of the State of Delaware and as the Board deems necessary and
advisable. The Board has determined that the amendment is advisable and in the best interests of the Company and its stockholders and
has submitted the amendment for consideration by our stockholders at the Annual Meeting.
Reasons
for the Reverse Stock Split Amendment
Maintain
Nasdaq Listing
On
the date of the mailing of this proxy statement, our Common Stock was listed on the Nasdaq Global Select Market under the symbol “NAOV.”
The continued listing requirements of Nasdaq, among other things, require that our Common Stock must maintain a closing bid price in
excess of $1.00 per share. We have in the past, and may in the future, be unable to comply with certain of the listing standards that
we are required to meet to maintain the listing of our Common Stock on Nasdaq.
On
March 2, 2022, we received a deficiency letter from Nasdaq notifying us that, for 30 consecutive business days, the bid price of our
Common Stock had closed below the $1.00 per share minimum bid price requirement for continued inclusion on Nasdaq pursuant to Nasdaq
Listing Rule 5550(a)(2) (the “Bid Price Requirement”). We were provided a period of 180 calendar days, or until August 29,
2022, to regain compliance with the Bid Price Requirement. The Company did not evidence compliance with the price requirement by that
date, which resulted in the issuance of the determination that the Company’s securities would be subject to delisting.
On
August 30, 2022, we received notice from Nasdaq indicating that the Company’s securities would be subject to delisting due to the
Company’s continued non-compliance with the minimum bid price requirement set forth in Nasdaq Listing Rule 5550(a) unless the Company
timely requests a hearing before Nasdaq. As previously disclosed on Form 8-K filed with the SEC on October 19, 2022, the Company
had a scheduled hearing with Nasdaq on October 6, 2022. On October 17, 2022, the Nasdaq Hearings Panel (the “Panel”),
granted the Company’s request for continued listing on the Nasdaq Capital Market until December 15, 2022, subject to the Company
providing a written update to the panel on December 15, 2022.
If
our Common Stock is delisted from Nasdaq, the Board believes that the trading market for our Common Stock could become significantly
less liquid, which could reduce the trading price of our Common Stock and increase the transaction costs of trading in shares of our
Common Stock.
If
the Reverse Stock Split Amendment is effected, it would cause a decrease in the total number of shares of our Common Stock outstanding
and increase the market price of our Common Stock. The Board intends to effect the Reverse Stock Split only if it believes that a decrease
in the number of shares outstanding is in the best interests of the Company and our stockholders and is likely to improve the trading
price of our Common Stock and improve the likelihood that we will be allowed to maintain our listing on Nasdaq. Accordingly, our Board
approved the Reverse Stock Split as being in the best interests of the Company.
Risks
Associated with the Reverse Stock Split
The
Reverse Stock Split May Not Increase the Price of our Common Stock over the Long-Term. As noted above, the principal purpose of the
Reverse Stock Split is to increase the trading price of our Common Stock to meet the minimum stock price standards of Nasdaq. However,
the effect of the Reverse Stock Split on the market price of our Common Stock cannot be predicted with any certainty, and we cannot assure
you that the Reverse Stock Split will accomplish this objective for any meaningful period of time, or at all. While we expect that the
reduction in the number of outstanding shares of Common Stock will proportionally increase the market price of our Common Stock, we cannot
assure you that the Reverse Stock Split will increase the market price of our Common Stock by a multiple of the Reverse Stock Split ratio,
or result in any permanent or sustained increase in the market price of our Common Stock. The market price of our Common Stock may be
affected by other factors which may be unrelated to the number of shares outstanding, including the Company’s business and financial
performance, general market conditions, and prospects for future success.
The
Reverse Stock Split May Decrease the Liquidity of our Common Stock. The Board believes that the Reverse Stock Split may result in
an increase in the market price of our Common Stock, which could lead to increased interest in our Common Stock and possibly promote
greater liquidity for our stockholders. However, the Reverse Stock Split will also reduce the total number of outstanding shares of Common
Stock, which may lead to reduced trading and a smaller number of market makers for our Common Stock, particularly if the price per share
of our Common Stock does not increase as a result of the Reverse Stock Split.
The
Reverse Stock Split May Result in Some Stockholders Owning “Odd Lots” That May Be More Difficult to Sell or Require Greater
Transaction Costs per Share to Sell. If the Reverse Stock Split is implemented, it will increase the number of stockholders who own
“odd lots” of less than 100 shares of Common Stock. A purchase or sale of less than 100 shares of Common Stock (an “odd
lot” transaction) may result in incrementally higher trading costs through certain brokers, particularly “full service”
brokers. Therefore, those stockholders who own fewer than 100 shares of Common Stock following the Reverse Stock Split may be required
to pay higher transaction costs if they sell their Common Stock.
The
Reverse Stock Split May Lead to a Decrease in our Overall Market Capitalization. The Reverse Stock Split may be viewed negatively
by the market and, consequently, could lead to a decrease in our overall market capitalization. If the per share market price of our
Common Stock does not increase in proportion to the Reverse Stock Split ratio, or following such increase does not maintain or exceed
such price, then the value of our Company, as measured by our market capitalization, will be reduced. Additionally, any reduction in
our market capitalization may be magnified as a result of the smaller number of total shares of Common Stock outstanding following the
Reverse Stock Split.
Potential
Consequences if the Reverse Stock Split Proposal is Not Approved
If
the Reverse Stock Split Proposal is not approved by our stockholders, our Board will not have the authority to effect the Reverse Stock
Split Amendment to, among other things, facilitate the continued listing of our Common Stock on Nasdaq by increasing the per share trading
price of our Common Stock to help ensure a share price high enough to satisfy the $1.00 per share minimum bid price requirement. Any
inability of our Board to effect the Reverse Stock Split could expose us to delisting from Nasdaq.
Determination
of the Reverse Stock Split Ratio
The
Board believes that stockholder approval of a range of potential Reverse Stock Split ratios is in the best interests of our Company and
stockholders because it is not possible to predict market conditions at the time the Reverse Stock Split would be implemented. We believe
that a range of Reverse Stock Split ratios provides us with the most flexibility to achieve the desired results of the Reverse Stock
Split. The Reverse Stock Split ratio to be selected by our Board will be not more than 1-for-50.
The
selection of the specific Reverse Stock Split ratio will be based on several factors, including, among other things:
|
● |
our
ability to maintain the listing of our Common Stock on The Nasdaq Capital Market; |
|
● |
the
per share price of our Common Stock immediately prior to the Reverse Stock Split; |
|
● |
the
expected stability of the per share price of our Common Stock following the Reverse Stock Split; |
|
● |
the
likelihood that the Reverse Stock Split will result in increased marketability and liquidity of our Common Stock; |
|
● |
prevailing
market conditions; |
|
● |
general
economic conditions in our industry; and |
|
● |
our
market capitalization before, and anticipated market capitalization after, the Reverse Stock Split. |
We
believe that granting our Board the authority to set the ratio for the Reverse Stock Split is essential because it allows us to take
these factors into consideration and to react to changing market conditions. If the Board chooses to implement the Reverse Stock Split,
the Company will make a public announcement regarding the determination of the Reverse Stock Split ratio.
Board
Discretion to Effect the Reverse Stock Split
If
the Reverse Stock Split proposal is approved by our stockholders, the Board will have the discretion to implement the Reverse Stock Split
or to not effect the Reverse Stock Split at all. The Board currently intends to effect the Reverse Stock Split. If the trading price
of our Common Stock increases without effecting the Reverse Stock Split, the Reverse Stock Split may not be necessary. Following the
Reverse Stock Split, if implemented, there can be no assurance that the market price of our Common Stock will rise in proportion to the
reduction in the number of outstanding shares resulting from the Reverse Stock Split or that the market price of the post-split Common
Stock can be maintained above $1.00. There also can be no assurance that our Common Stock will not be delisted from Nasdaq for other
reasons.
If
our stockholders approve the Reverse Stock Split proposal at the Annual Meeting, the Reverse Stock Split will be effected, if at all,
only upon a determination by the Board that the Reverse Stock Split is in the best interests of the Company and its stockholders at that
time. No further action on the part of the stockholders will be required to either effect or abandon the Reverse Stock Split. If our
Board does not implement the Reverse Stock Split prior to the six-month anniversary of the date on which the Reverse Stock Split is approved
by the Company’s stockholders at the Annual Meeting, the authority granted in this proposal to implement the Reverse Stock Split
will terminate and the Reverse Stock Split Amendment will be abandoned.
The
market price of our Common Stock is dependent upon our performance and other factors, some of which are unrelated to the number of shares
outstanding. If the Reverse Stock Split is effected and the market price of our Common Stock declines, the percentage decline as an absolute
number and as a percentage of our overall market capitalization may be greater than would occur in the absence of the Reverse Stock Split.
Furthermore, the reduced number of shares that will be outstanding after the Reverse Stock Split could significantly reduce the trading
volume and otherwise adversely affect the liquidity of our Common Stock.
We
have not proposed the Reverse Stock Split in response to any effort of which we are aware to accumulate our shares of Common Stock or
obtain control of the Company, nor is it a plan by management to recommend a series of similar actions to our Board or our stockholders.
Notwithstanding the decrease in the number of outstanding shares of Common Stock following the Reverse Stock Split, our Board does not
intend for this transaction to be the first step in a “going private transaction” within the meaning of Rule 13e-3 of the
Exchange Act.
Effectiveness
of the Reverse Stock Split
The
Reverse Stock Split, if approved by our stockholders, will become effective upon the filing with the Secretary of State of the State
of Delaware of a certificate of amendment to our restated certificate of incorporation in substantially the form of the Reverse Stock
Split Amendment attached to this proxy statement as Appendix A. The exact timing of the filing of the Reverse Stock
Split Amendment will be determined by the Board based upon its evaluation of when such action will be most advantageous to the Company
and our stockholders. The Board reserves the right, notwithstanding stockholder approval and without further action by our stockholders,
to elect not to proceed with the Reverse Stock Split if, at any time prior to filing such Reverse Stock Split Amendment, the Board, in
its sole discretion, determines that it is no longer in the best interests of the Company and our stockholders. The Board currently intends
to effect the Reverse Stock Split. If our Board does not implement the Reverse Stock Split prior to the six-month anniversary of the
date on which the Reverse Stock Split is approved by the Company’s stockholders at the Annual Meeting, the authority granted in
this proposal to implement the Reverse Stock Split will terminate and the Reverse Stock Split Amendment to effect the Reverse Stock Split
will be abandoned.
Effects
of the Reverse Stock Split on Common Stock and Preferred Stock
Pursuant
to the Reverse Stock Split Amendment, each holder of our Common Stock outstanding immediately prior to the effectiveness of the Reverse
Stock Split (“Old Common Stock”) will become the holder of fewer shares of our Common Stock (“New Common Stock”)
after consummation of the Reverse Stock Split.
Based
on 27,997,793 shares of our Common Stock outstanding as of the date hereof, the following table reflects the approximate number
of shares of our Common Stock that would be outstanding as a result of the Reverse Stock Split under certain possible exchange ratios.
Proposed Ratio (Old Common Stock: New Common Stock) | |
Percentage Reduction in Outstanding Common Stock | | |
Approximate Number of Shares of Common Stock
to be Outstanding after the Reverse Stock Split |
2:1 | |
| 50 | % | |
13,998,897 |
3:1 | |
| 66.67 | % | |
9,332,598 |
4:1 | |
| 75 | % | |
6,999,448 |
5:1 | |
| 80 | % | |
5,599,559 |
6:1 | |
| 83.33 | % | |
4,666,299 |
7:1 | |
| 85.71 | % | |
3,999,685 |
8:1 | |
| 87.5 | % | |
3,499,724 |
9:1 | |
| 88.89 | % | |
3,110,866 |
10:1 | |
| 90 | % | |
2,799,779 |
11:1 | |
| 90.91 | % | |
2,545,354 |
12:1 | |
| 91.67 | % | |
2,333,149 |
13:1 | |
| 92.31 | % | |
2,153,676 |
14:1 | |
| 92.86 | % | |
1,999,842 |
15:1 | |
| 93.33 | % | |
1,866,520 |
16:1 | |
| 93.75 | % | |
1,749,862 |
17:1 | |
| 94.12 | % | |
1,646,929 |
18:1 | |
| 94.44 | % | |
1,555,433 |
19:1 | |
| 94.74 | % | |
1,473,568 |
20:1 | |
| 95 | % | |
1,339,890 |
21:1 | |
| 95.24 | % | |
1,333,228 |
22:1 | |
| 95.45 | % | |
1,272,627 |
23:1 | |
| 95.65 | % | |
1,217,295 |
24:1 | |
| 95.83 | % | |
1,166,575 |
25:1 | |
| 96.00 | % | |
1,119,912 |
26:1 | |
| 96.15 | % | |
1,076,838 |
27:1 | |
| 96.30 | % | |
1,036,955 |
28:1 | |
| 96.43 | % | |
999,921 |
29:1 | |
| 96.55 | % | |
965,441 |
30:1 | |
| 96.67 | % | |
933,260 |
31:1 | |
| 96.77 | % | |
903,155 |
32:1 | |
| 96.88 | % | |
874,931 |
33:1 | |
| 96.97 | % | |
848,418 |
34:1 | |
| 97.06 | % | |
823,465 |
35:1 | |
| 97.14 | % | |
799,937 |
36:1 | |
| 97.22 | % | |
777,716 |
37:1 | |
| 97.30 | % | |
756,697 |
38:1 | |
| 97.37 | % | |
736,784 |
39:1 | |
| 97.44 | % | |
717,892 |
40:1 | |
| 97.50 | % | |
699,945 |
41:1 | |
| 97.56 | % | |
682,873 |
42:1 | |
| 97.62 | % | |
666,614 |
43:1 | |
| 97.67 | % | |
651,111 |
44:1 | |
| 97.73 | % | |
636,313 |
45:1 | |
| 97.78 | % | |
622,173 |
46:1 | |
| 97.83 | % | |
608,648 |
47:1 | |
| 97.87 | % | |
595,698 |
48:1 | |
| 97.92 | % | |
583,287 |
49:1 | |
| 97.96 | % | |
571,384 |
50:1 | |
| 98.00 | % | |
559,956 |
The
Reverse Stock Split will affect all stockholders equally and will not affect any stockholder’s proportionate equity interest in
the Company, except for those stockholders who receive an additional share of our Common Stock in lieu of a fractional share. None of
the rights currently accruing to holders of our Common Stock will be affected by the Reverse Stock Split. Following the Reverse Stock
Split, each share of New Common Stock will entitle the holder thereof to one vote per share and will otherwise be identical to Old Common
Stock. The Reverse Stock Split also will have no effect on the number of authorized shares of our Common Stock. The shares of New Common
Stock will be fully paid and non-assessable.
The
par value per share of the Common Stock will remain unchanged at $0.001 per share after the Reverse Stock Split. As a result, on the
effective date of the Reverse Stock Split, if any, the stated capital on our balance sheet attributable to the Common Stock will be reduced
proportionately based on the Reverse Stock Split ratio, from its present amount, and the additional paid-in capital account will be credited
with the amount by which the stated capital is reduced. After the Reverse Stock Split, net income or loss per share and other per share
amounts will be increased because there will be fewer shares of our Common Stock outstanding. In future financial statements, net income
or loss per share and other per share amounts for periods ending before the Reverse Stock Split would be recast to give retroactive effect
to the Reverse Stock Split. As described below under “Effects of the Reverse Stock Split on Outstanding Equity Awards and Warrants
to Purchase Common Stock,” the per share exercise price of outstanding option awards and warrants would increase proportionately,
and the number of shares of our Common Stock issuable upon the exercise of outstanding options and warrants, or that relate to other
equity awards (e.g., restricted stock awards) would decrease proportionately, in each case based on the Reverse Stock Split ratio selected
by the Board. The Company does not anticipate that any other accounting consequences would arise as a result of the Reverse Stock Split.
All
shares of Series F Preferred Stock that are not present in person or by proxy at the Annual Meeting as of immediately prior to the opening
of the polls at the Annual Meeting will be automatically redeemed in the Initial Redemption. Any outstanding shares of Series F Preferred
Stock that were not redeemed pursuant to the Initial Redemption will be redeemed in whole, but not in part, (i) if and when ordered by
our Board or (ii) automatically upon the approval of the Reverse Stock Split Amendment effecting the Reverse Stock Split. Please refer
to the discussion in the Questions and Answers About the Annual Meeting section under “Who is entitled to vote at the Annual
Meeting, and how many votes do they have?” and “What votes are required to approve each proposal” for a
description of the voting power of the Series F Preferred Stock.
Pursuant
to the Certificate of Designation of Series F Preferred Stock (the “Certificate of Designation”), each share of Series F
Preferred Stock redeemed in any redemption shall be redeemed in consideration for the right to receive an amount equal to $0.10 in cash
for each one hundred whole shares of Series F Preferred Stock that are “beneficially owned” by the “beneficial owner”
(as such terms are defined in the Certificate of Designation) thereof as of the applicable redemption time and redeemed pursuant to such
redemption, payable upon receipt by the Company of a written request submitted by the applicable holder to our corporate secretary (each
a “Redemption Payment Request”) following the applicable redemption time. Such Redemption Payment Request shall (i) be in
a form reasonably acceptable to the Company (ii) set forth in reasonable detail the number of shares of Series F Preferred Stock beneficially
owned by the holder at the applicable redemption time and include evidence reasonably satisfactory to the Company regarding the same,
and (iii) set forth a calculation specifying the amount in cash owed to such holder by the Company with respect to the shares of Series
F Preferred Stock that were redeemed at the applicable redemption time.
We
are currently authorized to issue a maximum of 40,000,000 shares of our Common Stock. As of the Record Date, there were 27,997,793
shares of our Common Stock issued and outstanding. Although the number of authorized shares of our Common Stock will not change as
a result of the Reverse Stock Split, the number of shares of our Common Stock issued and outstanding will be reduced in proportion to
the ratio selected by the Board. Thus, the Reverse Stock Split will effectively increase the number of authorized and unissued shares
of our Common Stock available for future issuance by the amount of the reduction effected by the Reverse Stock Split. Conversely, with
respect to the number of shares reserved for issuance under, for example, our 2014 Plan (as defined below), our Board will proportionately
reduce such reserve in accordance with the terms of the 2014 Plan. As of the Record Date, there were 3,364,286 shares of Common
Stock reserved for issuance under the 2014 Plan, of which 265,687 remained available for future awards, and following the Reverse
Stock Split, if any, such reserve will be reduced to between 1,682,143 to 67,286 shares of Common Stock, of which between approximately
132,843 to 5,314 shares will be available for future awards.
Following
the Reverse Stock Split, the Board will have the authority, subject to applicable securities laws, to issue all authorized and unissued
shares without further stockholder approval, upon such terms and conditions as the Board deems appropriate. We do not currently have
any plans, proposals or understandings to issue the additional shares that would be available if the Reverse Stock Split is approved
and effected, but some of the additional shares underlie warrants, which could be exercised or converted after the Reverse Stock Split
Amendment is effected.
Effects
of the Reverse Stock Split on Outstanding Equity Awards and Warrants to Purchase Common Stock
If
the Reverse Stock Split is effected, all outstanding options entitling their holders to purchase shares of our Common Stock, as well
as any other equity awards granted pursuant to, or available under, the 2014 Plan, will be proportionately reduced, in accordance with
the terms of the applicable 2014 Plan, in the same ratio as the reduction in the number of shares of outstanding Common Stock, except
that any fractional shares resulting from such reduction will be rounded down to the nearest whole share to comply with the requirements
of Code Sections 409A and 424. Correspondingly, the per share exercise price of any such options will be increased in direct proportion
to the Reverse Stock Split ratio (rounded up to the nearest whole cent), so that the aggregate dollar amount payable for the purchase
of the shares subject to the options will remain materially unchanged. For example, assuming that we effect the Reverse Stock Split at
a ratio of 1-for-5, and that an optionee holds options to purchase 1,033 shares of our Common Stock at an exercise price of $1.00 per
share, upon the effectiveness of the Reverse Stock Split at such ratio, the number of shares of the Common Stock subject to that option
would be reduced to 206 (rounded down from 206.6 to account for fractional shares) and the exercise price would be proportionately increased
to $5.00 per share.
As
of October 17, 2022, there are 2,309,347 warrants to purchase Common Stock outstanding, representing 2,309,347 shares
of Common Stock at a weighted average exercise price of $4.31 per share. If the Reverse Stock Split is effected, the outstanding
warrants will automatically be reduced in the same ratio as the reduction in the number of shares of outstanding Common Stock. Correspondingly,
the per share exercise price of such warrants will be increased in direct proportion to the Reverse Stock Split ratio, so that the aggregate
dollar amount payable for the purchase of the shares subject to the warrants will remain unchanged.
Effect
on Registered and Beneficial Stockholders
Upon
the Reverse Stock Split, the Company intends to treat stockholders holding shares of our Common Stock in “street name” (that
is, held through a bank, broker or other nominee) in the same manner as stockholders of record whose shares of Common Stock are registered
in their names. Banks, brokers or other nominees will be instructed to effect the Reverse Stock Split for their beneficial holders holding
shares of our Common Stock in “street name”; however, these banks, brokers or other nominees may apply their own specific
procedures for processing the Reverse Stock Split. If you hold your shares of our Common Stock with a bank, broker or other nominee,
and have any questions in this regard, the Company encourages you to contact your nominee.
Effect
on “Book-Entry” Stockholders of Record
The
Company’s stockholders of record may hold some or all of their shares electronically in book-entry form. These stockholders will
not have stock certificates evidencing their ownership of our Common Stock. They are, however, provided with a statement reflecting the
number of shares of Common Stock registered in their accounts.
If
you hold registered shares of Old Common Stock in a book-entry form, you do not need to take any action to receive your shares of New
Common Stock in registered book-entry form, if applicable. A transaction statement will automatically be sent to your address of record
as soon as practicable after the effective time of the Reverse Stock Split indicating the number of shares of New Common Stock you hold.
Effect
on Registered Certificated Shares
Some
stockholders of record hold their shares of our Common Stock in certificate form or a combination of certificate and book-entry form.
If any of your shares of our Common Stock are held in certificate form, you will receive a transmittal letter from the Company’s
transfer agent as soon as practicable after the effective time of the Reverse Stock Split, if any. The transmittal letter will be accompanied
by instructions specifying how to exchange your certificate representing the Old Common Stock for a statement of holding or a certificate
of New Common Stock.
STOCKHOLDERS
SHOULD NOT DESTROY ANY SHARE CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Shares
of Common Stock Issued and Outstanding
With
the exception of the number of shares issued and outstanding, the rights and preferences of the shares of our Common Stock prior and
subsequent to the Reverse Stock Split will remain the same. After the effectiveness of the Reverse Stock Split, we do not anticipate
that our financial condition, the percentage ownership of management, the number of our stockholders, or any aspect of our business would
materially change as a result of the Reverse Stock Split.
Our
Common Stock is currently registered under Section 12(b) of the Exchange Act, and as a result, we are subject to the periodic reporting
and other requirements of the Exchange Act. If effected, the proposed Reverse Stock Split will not affect the registration of our Common
Stock under the Exchange Act or our periodic or other reporting requirements thereunder.
Anti-Takeover
Effects
In
addition, we have not proposed the Reverse Stock Split, with its corresponding increase in the authorized and unissued number of shares
of Common Stock, with the intention of using the additional shares for anti-takeover purposes, although we could theoretically use the
additional shares to make more difficult or to discourage an attempt to acquire control of the Company.
We
do not believe that our officers or directors have interests in this proposal that are different from or greater than those of any other
of our stockholders.
Fractional
Shares
Fractional
shares will not be issued in connection with the Reverse Stock Split. Each stockholder who would otherwise hold a fractional share of
Common Stock as a result of the Reverse Stock Split will receive one share of Common Stock in lieu of such fractional share. If such
shares are subject to an award granted under the Incentive Plans, each fractional share of Common Stock will be rounded down to the nearest
whole share of Common Stock in order to comply with the requirements of Sections 409A and 424 of the Code.
Appraisal
Rights
Under
the Delaware General Corporation Law, our stockholders are not entitled to appraisal or dissenter’s rights with respect to the
Reverse Stock Split, and we will not independently provide our stockholders with any such rights.
Regulatory
Approvals
The
Reverse Stock Split will not be consummated, if at all, until after approval of the Company’s stockholders is obtained. The Company
is not obligated to obtain any governmental approvals or comply with any state or federal regulations prior to consummating the Reverse
Stock Split other than the filing of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware.
Certain
U.S. Federal Income Tax Consequences of the Reverse Stock Split
The
following is a discussion of certain material U.S. federal income tax consequences of the Reverse Stock Split to U.S. holders (as defined
below). This discussion is included for general information purposes only, does not purport to address all aspects of U.S. federal income
tax law that may be relevant to U.S. holders in light of their particular circumstances, and does not describe any potential state, local,
or foreign tax consequences. This discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), current
Treasury Regulations and administrative and court decisions and interpretations, all as in effect as of the date hereof, and all of which
are subject to change, possibly on a retroactive basis, or different interpretation. Any such changes could affect the continuing validity
of this discussion.
STOCKHOLDERS
ARE URGED TO CONSULT THEIR TAX ADVISORS AS TO THE PARTICULAR FEDERAL, STATE, LOCAL, OR FOREIGN TAX CONSEQUENCES TO THEM OF THE REVERSE
STOCK SPLIT.
This
discussion does not address tax consequences to stockholders that are subject to special tax rules, such as banks, insurance companies,
regulated investment companies, personal holding companies, U.S. holders whose functional currency is not the U.S. dollar, partnerships
(or other flow-through entities for U.S. federal income purposes and their partners or members), persons who acquired their shares or
equity awards in connection with employment or other performance of services (who will not incur a taxable event in connection with the
Reverse Stock Split), broker-dealers, foreign entities, nonresident alien individuals and tax-exempt entities. This summary also assumes
that the Old Common Stock shares were, and the New Common stock shares will be, held as a “capital asset,” as defined in
Section 1221 of the Code.
As
used herein, the term “U.S. holder” means a holder that is, for U.S. federal income tax purposes:
|
● |
an
individual citizen or resident of the United States; |
|
● |
a
corporation or other entity taxed as a corporation created or organized in or under the laws of the United States or any political
subdivision thereof; |
|
● |
an
estate the income of which is subject to U.S. federal income tax regardless of its source; or |
|
● |
a
trust (A) if a U.S. court is able to exercise primary supervision over the administration of the trust and one or more “U.S.
persons” (as defined in the Code) have the authority to control all substantial decisions of the trust or (B) that has a valid
election in effect to be treated as a U.S. person. |
Other
than with respect to any stockholder that receives a full share for a fractional share (which will not apply to outstanding equity awards
granted under the Incentive Plans), a stockholder generally will not recognize a gain or loss by reason of such stockholder’s receipt
of shares of New Common Stock pursuant to the Reverse Stock Split solely in exchange for shares of Old Common Stock held by such stockholder
immediately prior to the Reverse Stock Split. A stockholder’s aggregate tax basis in the shares of New Common Stock received pursuant
to the Reverse Stock Split (including any fractional shares) will equal the stockholder’s aggregate basis in the Old Common Stock
exchanged therefore and will be allocated among the shares of New Common Stock received in the Reverse Stock Split on a pro-rata basis.
Stockholders who have used the specific identification method to identify their basis in the shares of Old Common Stock held immediately
prior to the Reverse Stock Split should consult their own tax advisers to determine their basis in the shares of New Common Stock received
in exchange therefor in the Reverse Stock Split. A stockholder’s holding period in the shares of New Common Stock received pursuant
to the Reverse Stock Split will include the stockholder’s holding period in the shares of Old Common Stock surrendered in exchange
therefore, provided the shares of Old Common Stock surrendered are held as capital assets at the time of the Reverse Stock Split.
No
gain or loss will be recognized by us as a result of the Reverse Stock Split.
Required
Vote
The
affirmative vote of holders of a majority of the outstanding shares of our Common Stock and Series F Preferred Stock entitled to vote
at the Annual Meeting on the Reverse Stock Split Proposal, voting together as a single class, is required for approval of the Reverse
Stock Split Proposal.
Recommendation
The
Board unanimously recommends that you vote “FOR” the
approval
of the Reverse Stock Split Proposal (Proposal 3).
|
PROPOSAL
4: APPROVAL OF THE AMENDMENT TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
COMMON STOCK FROM 40,000,000 TO 45,000,000
Proposed
Amendment
Our
authorized capital stock presently consists of 40,000,000 shares of Common Stock and 11,000,000 shares of preferred stock, par value
$0.001 per share.
Our
Board has approved and is recommending to the stockholders for approval at the Annual Meeting, an amendment to our Amended and Restated
Certificate of Incorporation to increase the number of authorized shares of Common Stock. The proposed amendment would increase the number
of authorized shares of Common Stock from 40,000,000 shares to 45,000,000 shares. The number of authorized shares of preferred stock
would not be affected by the proposed amendment. If approved, the first sentence of Article Fourth of our Certificate of Incorporation
will be amended to read in its entirety as follows:
“FOURTH:
The total number of shares of all classes of stock which the Corporation shall have the authority to issue is fifty-six million (56,000,000),
consisting of forty-five million (45,000,000) shares of Common Stock, par value $0.001 per share (the “Common Stock”) and
eleven million (11,000,000) shares of preferred stock, par value of $0.001 per share (“Preferred Stock”).”
The
additional shares of our Common Stock for which authorization is sought will have the same voting rights, the same rights to dividends
and distributions, and will be identical in all other respects to the shares of our Common Stock now authorized.
Reasons
for the Proposed Amendment
We
have currently 27,997,793 shares of Common Stock outstanding and 5,673,633 shares of Common Stock reserved for issuance
or issuable upon exercise of outstanding warrants and equity awards. Accordingly, we have 6,324,574 shares of Common Stock currently
available for issuance, which is a small percentage and could limit our ability to raise funds in the future to the extent necessary.
If
the Share Increase Proposal is approved, our Board will have the authority to issue 11,324,574 additional shares of Common Stock
without further stockholder approval, except as may be required for a particular transaction by applicable law or regulation or by any
securities exchange on which our shares of Common Stock are listed.
The
additional shares of Common Stock may be used for such corporate purposes as may be determined by our Board from time to time to be necessary
or desirable. These purposes may include: (i) issuance of Common Stock upon conversion or exercise of our outstanding securities as described
above, (ii) raising capital through the sale of Common Stock or other securities convertible into or exchangeable or exercisable for
Common Stock, (iii) acquiring other businesses or assets in exchange for Common Stock, or other securities convertible into or exchangeable
or exercisable for Common Stock, (iv) attracting and retaining employees by the issuance of additional securities under the Company’s
equity compensation plans and agreements and (v) other corporate purposes.
Our
Board believes that the authorized number of shares of Common Stock should be increased to provide our Board of Directions with the ability
to issue additional shares of Common Stock for the corporate purposes described above without potentially having to incur the delay and
expense incident to obtaining special stockholder approval each time an opportunity requiring the issuance of shares of our Common Stock
may arise. Such a delay might cause us to lose an opportunity or make it more expensive for us to take advantage of an opportunity. Although
our Board has no present plans to issue any additional shares of Common Stock, except in connection with our existing equity awards and
incentive plans or as required upon exercise of our outstanding warrants, the Board believes that the proposed increase in the number
of authorized shares of Common Stock is necessary to provide us with the necessary flexibility to pursue corporate opportunities.
Possible
Effects of the Proposed Amendment
The
authorization of additional shares of Common Stock sought by this proposal would not have any immediate dilutive effect upon the proportionate
voting power or rights of our existing stockholders; however, to the extent that the additional authorized shares of Common Stock are
issued in the future, such issuance may decrease existing stockholders’ percentage equity ownership and, depending upon the price
of which they are issued, could be dilutive to existing stockholders and have a negative effect upon the market price of the Common Stock.
Our stockholders do not have preemptive rights, which means they do not have the right to purchase shares in any future issuance of Common
Stock in order to maintain their proportionate ownership of Common Stock.
The
amendment to increase the number of authorized shares of our Common Stock could have the effect of discouraging or preventing attempts
to take over control of the Company. For example, in the event of a hostile attempt to take over control of the Company, it may be possible
for us to impede the attempt by issuing shares of Common Stock, which would dilute the voting power of the other outstanding shares and
increase the potential cost to acquire control of us. The proposed amendment therefor may have the effect of discouraging unsolicited
takeover bids and potentially limiting the opportunity for our stockholders to dispose of their shares at a premium which may otherwise
be available in a takeover attempt or merger proposal. To the extent that it impedes any such attempts, the proposed amendment may serve
to perpetuate our current management, including our Board. The amendment is not being proposed in response to any known effort or threat
to acquire control of the Company and is not part of a plan by management to adopt a series of amendments to our Certificate of Incorporation
and Bylaws having an anti-takeover effect.
If
the proposed amendment is adopted, it will become effective upon filing of a Certificate of Amendment to our Amended and Restated Certificate
of Incorporation with the Secretary of State of Delaware.
Reservation
of Right to Delay the Filing of, or Abandon, the Share Increase Proposal
The
Board reserves the authority to decide, in its sole discretion, to delay or abandon the Share Increase Proposal after the stockholder
vote and before the effectiveness of the Share Increase Proposal if it determines that the Share Increase Proposal is no longer in the
best interests of the Company and its stockholders.
The
Board will also consider whether the Reverse Stock Split Proposal is approved and implemented in determining whether to effect the Share
Increase Proposal. The Board may determine to implement the Share Increase Proposal only, the Reverse Stock Split Proposal only, neither
or both.
Required
Vote and Board Recommendation
If
a quorum is present and voting, the approval of this proposal requires the affirmative “FOR” vote of the holders of a majority
of the outstanding shares of our Common Stock. The failure to vote by proxy or to vote in person (which would include voting online at
the virtual Annual Meeting), an abstention and a broker non-vote will have the same practical effect as shares voted against this proposal.
The NYSE has informed us that a vote on this proposal will be a “routine” matter. Therefore, we do not expect any broker
non-votes on this proposal and a failure to instruct your broker, bank or other nominee on how to vote your shares will not necessarily
count as a vote against this proposal.
The
Board recommends that you vote “FOR” the approval of the Share Increase Proposal (Proposal 4).
PROPOSAL
5: APPROVAL OF AMENDMENT TO NanoVibronix, INC. 2014 LONG-TERM
INCENTIVE PLAN
The
Board is seeking the approval of our stockholders of an amendment to the NanoVibronix 2014 Long-Term Incentive Plan (the “2014
Plan”), which was adopted by the Board on September 13, 2022, subject to stockholder approval (the “Plan Amendment”).
The 2014 Plan was originally approved by our Board on February 19, 2014, and by our stockholders at our annual meeting held on February
28, 2014. The 2014 Plan consists of two components, the primary plan document which governs all awards granted under the 2014 Plan, and
one sub-part appendix: Israeli Appendix to the Company’s 2014 Long-Term Incentive Plan (the “Israeli Appendix”), designated
for the purpose of grants of stock options to participants who are, or are deemed to be, residents of the State of Israel for the purposes
of tax payment.
Under
the 2014 Plan, we originally reserved a total of five million (5,000,000) shares of our Common Stock for issuance pursuant to awards
to key employees, key contractors, and non-employee directors, of which, the maximum number of shares of Common Stock covering awards
of stock options or stock appreciation rights that could be granted to certain of our executive officers during any calendar year was
one million (1,000,000) shares. On May 7, 2014, we effected a one-for-seven reverse stock split of our Common Stock. Consequently, the
number of shares of our Common Stock reserved for issuance pursuant to awards under the 2014 Plan was reduced to seven hundred fourteen
thousand two hundred eighty-six (714,286) shares, and the maximum number of shares of our Common Stock covered by awards of stock options
or stock appreciation rights that could be granted to certain of our executive officers during any calendar year was reduced to one hundred
forty-two thousand eight hundred fifty-seven (142,857) shares. On June 13, 2018, the stockholders approved an amendment to the 2014 Plan
to increase (i) the number of shares of our Common Stock reserved for issuance pursuant to awards under the 2014 Plan by an additional
seven hundred and fifty thousand (750,000) shares of our Common Stock, to a total of one million four hundred sixty-four thousand two
hundred eighty-six (1,464,286) shares of our Common Stock, and (ii) the maximum number of shares of our Common Stock covering awards
of stock options or stock appreciation rights that could be granted to certain of our executive officers during any calendar year to
a total of two hundred seventy-five thousand (275,000) shares of our Common Stock (the “First Amendment”). On June 13, 2019,
the stockholders approved a second amendment to the 2014 Plan to increase (i) the number of shares of our Common Stock available for
issuance pursuant to awards under the 2014 Plan by four hundred thousand (400,000) shares of our Common Stock, to a total of one million
eight hundred and sixty-four thousand two-hundred eighty-six (1,864,286) shares of our Common Stock, and (ii) the maximum number of shares
of our Common Stock covering awards of stock options or stock appreciation rights that could be granted to certain of our executive officers
during any calendar year to a total of three hundred fifty four thousand two-hundred fourteen (354,214) shares of our Common Stock (the
“Second Amendment”). On December 29, 2021, the stockholders approved a third amendment to the 2014 Plan that (i) intended
to increase the number of shares of our Common Stock available for issuance pursuant to awards under the 2014 Plan by one million five
hundred thousand (1,500,000) shares of our Common Stock to a total of three million three hundred sixty-four thousand two-hundred eighty-six
(3,364,286) shares of our Common Stock, but a scrivener’s error in this amendment only increased the number of shares of our Common
Stock available for issuance pursuant to awards under the 2014 Plan to a total of three million three hundred forty-six thousand two-hundred
eighty-six (3,346,286) shares of our Common Stock (the “Third Amendment Discrepancy”), and (ii) increased the maximum number
of shares of our Common Stock covering awards of stock options or stock appreciation rights that could be granted to certain of our executive
officers during any calendar year to six hundred sixty-nine thousand two-hundred fifty-seven (669,257) shares of our Common Stock (the
“Third Amendment”). Accordingly, the Plan Amendment increases the number of shares of our Common Stock available for issuance
pursuant to awards under the 2014 Plan by (i) one million five hundred thousand (1,500,000) shares of our Common Stock, and (ii) to adjust
for the Third Amendment Discrepancy, an additional eighteen thousand (18,000) shares of our Common Stock, so that a total of four million
eight hundred sixty-four thousand two hundred eighty-six (4,864,286) shares of our Common Stock will be reserved for issuance pursuant
to awards under the 2014 Plan.
The
purpose of the 2014 Plan is to enable us to remain competitive and innovative in our ability to attract and retain the services of key
employees, key contractors, and non-employee directors. The 2014 Plan provides for the granting of incentive stock options, nonqualified
stock options, stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalent rights, and
other awards, which may be granted singly, in combination, or in tandem, and which may be paid in cash or shares of Common Stock. The
2014 Plan is expected to provide flexibility to our compensation methods in order to adapt the compensation of key employees, key contractors,
and non-employee directors to a changing business environment, after giving due consideration to competitive conditions and the impact
of applicable federal tax laws. The 2014 Plan is administered by the compensation committee of our Board.
A
copy of the First Amendment, the Second Amendment, the Third Amendment (collectively, the “Prior Amendments”) together with
the 2014 Plan and the Proposed Plan Amendment, are included as Appendix D and Appendix C respectively, to this Proxy Statement.
Below is a summary of certain key provisions of the Plan Amendment and the 2014 Plan, as amended by the Prior Amendments, which are qualified
in their entirety by reference to the full text of the Plan Amendment and the 2014 Plan, as amended by the Prior Amendments.
Summary
of the Proposed Plan Amendment
Our
Board adopted the Plan Amendment on September 13, 2022, subject to stockholder approval, to increase the number of shares of our Common
Stock available for issuance pursuant to awards under the 2014 Plan by one million five hundred eighteen thousand (1,518,000) shares
of our Common Stock, to a total of four million eight hundred sixty-four thousand two-hundred eighty-six (4,864,286) shares of our Common
Stock.
Description
of the 2014 Plan
Purpose.
The purpose of the 2014 Plan is to enable us to remain competitive and innovative in our ability to attract and retain the services of
key employees, key contractors, and non-employee directors. The 2014 Plan provides for the granting of incentive stock options, nonqualified
stock options, stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalent rights, and
other awards, which may be granted singly, in combination, or in tandem, and which may be paid in cash or shares of our Common Stock.
The 2014 Plan is expected to provide flexibility to our compensation methods in order to adapt the compensation of key employees, key
contractors, and non-employee directors to a changing business environment, after giving due consideration to competitive conditions
and the impact of applicable tax laws.
Effective
Date and Expiration. The 2014 Plan was originally approved by our Board on February 19, 2014 and became effective upon stockholder
approval on February 28, 2014. The 2014 Plan will terminate on February 19, 2024, unless sooner terminated by our Board. No award may
be made under the 2014 Plan after its termination date, but awards made prior to the termination date may extend beyond that date.
Share
Authorization. Subject to certain adjustments, the number of shares of our Common Stock that are reserved for issuance pursuant to
awards under the 2014 Plan, prior to the adoption of the Plan Amendment and after giving effect to a one-for-seven reverse stock split
that occurred on May 7, 2014 and the Prior Amendments (including the Third Amendment Discrepancy), is three million three hundred forty-six
thousand two hundred eighty-six (3,346,286) shares, of which 100% may be delivered pursuant to incentive stock options. If the Plan Amendment
is approved, the total number of shares that may be issued pursuant to awards under the 2014 Plan will be increased to four million eight
hundred sixty-four thousand two hundred eighty-six (4,864,286) shares. Subject to certain adjustments, with respect to any participant
who is an officer of our company and subject to Section 16 of the Securities Exchange Act of 1934, as amended, or a “covered employee”
as defined in Section 162(m)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), a maximum of six hundred sixty-nine
thousand two hundred fifty-seven (669,257) shares may be granted in any one year in the form of stock options or stock appreciation rights
to such participant.
Shares
to be issued may be made available from authorized but unissued shares of our Common Stock, shares held by us in our treasury, or shares
purchased by us on the open market or otherwise. During the term of the 2014 Plan, we will at all times reserve and keep enough shares
available to satisfy the requirements of the 2014 Plan. If an award under the 2014 Plan is cancelled, forfeited, or expires, in whole
or in part, the shares subject to such forfeited, expired, or cancelled award may again be awarded under the 2014 Plan. In the event
that previously acquired shares are delivered to us in full or partial payment of the option price for the exercise of a stock option
granted under the 2014 Plan, the number of shares available for future awards under the 2014 Plan shall be reduced only by the net number
of shares issued upon the exercise of the stock option or settlement of an award. Awards that may be satisfied either by the issuance
of Common Stock or by cash or other consideration shall be counted against the maximum number of shares that may be issued under the
2014 Plan only during the period that the award is outstanding or to the extent the award is ultimately satisfied by the issuance of
shares. An award will not reduce the number of shares that may be issued pursuant to the 2014 Plan if the settlement of the award will
not require the issuance of shares, as, for example, a stock appreciation right that can be satisfied only by the payment of cash. Only
shares forfeited back to us; shares cancelled on account of termination, expiration, or lapse of an award; shares surrendered in payment
of the option price of an option; or shares withheld for payment of applicable employment taxes and/or withholding obligations resulting
from the exercise of a stock option shall again be available for grant as incentive stock options under the 2014 Plan, but shall not
increase the maximum number of shares described above as the maximum number of shares that may be delivered pursuant to incentive stock
options.
Administration.
The 2014 Plan is administered by the compensation committee of our Board (the “Committee”). At any time there is no Committee
to administer the 2014 Plan, any reference to the Committee is a reference to the Board. The Committee will determine the persons to
whom awards are to be made; determine the type, size, and terms of awards; interpret the 2014 Plan; establish and revise rules and regulations
relating to the 2014 Plan and any sub-plans, including, without limitation, any sub-plans for awards made to participants who are not
residents of the United States; establish performance goals for awards and certify the extent of their achievement; and make any other
determinations that it believes necessary for the administration of the 2014 Plan. The Committee may delegate certain duties to one or
more of our officers as provided in the 2014 Plan.
Eligibility.
Employees (including any employee who is also a director or an officer), contractors, and non-employee directors of us or our subsidiaries
whose judgment, initiative, and efforts contributed to or may be expected to contribute to our successful performance are eligible to
participate in the 2014 Plan. As of the Record Date, we had 8 employees, 10 contractors, and 5 directors who would be eligible for awards
under the 2014 Plan.
Stock
Options. The Committee may grant either incentive stock options (“ISOs”) qualifying under Section 422 of the Code or
nonqualified stock options, provided that only employees of us and our subsidiaries (excluding subsidiaries that are not corporations)
are eligible to receive ISOs. Stock options may not be granted with an option price less than 100% of the fair market value of a share
of Common Stock on the date the stock option is granted. If an ISO is granted to an employee who owns or is deemed to own more than 10%
of the combined voting power of all classes of our stock (or any parent or subsidiary), the option price shall be at least 110% of the
fair market value of a share of Common Stock on the date of grant. The Committee will determine the terms of each stock option at the
time of grant, including, without limitation, the methods by or forms in which shares will be delivered to participants. The maximum
term of each option, the times at which each option will be exercisable, and provisions requiring forfeiture of unexercised options at
or following termination of employment or service generally are fixed by the Committee, except that the Committee may not grant stock
options with a term exceeding 10 years or, in the case of an ISO granted to an employee who owns or is deemed to own more than 10% of
the combined voting power of all classes of our stock (or any parent or subsidiary), a term exceeding five years.
Recipients
of stock options may pay the option price (i) in cash, check, bank draft, or money order payable to the order of the Company; (ii) by
delivering to us shares of Common Stock (included restricted stock) already owned by the participant having a fair market value equal
to the aggregate option price and that the participant has not acquired from us within six months prior to the exercise date; (iii) by
delivering to us or our designated agent an executed irrevocable option exercise form together with irrevocable instructions from the
participant to a broker or dealer, reasonably acceptable to us, to sell certain of the shares purchased upon the exercise of the option
or to pledge such shares to the broker as collateral for a loan from the broker and to deliver to us the amount of sale or loan proceeds
necessary to pay the purchase price; and (iv) by any other form of valid consideration that is acceptable to the Committee in its sole
discretion.
Stock
Appreciation Rights. The Committee is authorized to grant stock appreciation rights (“SARs”) as a stand-alone award,
or freestanding SARs, or in conjunction with options granted under the 2014 Plan, or tandem SARs. SARs entitle a participant to receive
an amount equal to the excess of the fair market value of a share of Common Stock on the date of exercise over the fair market value
of a share of our Common Stock on the date of grant. The grant price of a SAR cannot be less than 100% of the fair market value of a
share of our Common Stock on the date of grant. The Committee will determine the terms of each SAR at the time of the grant, including,
without limitation, the methods by or forms in which shares will be delivered to participants. The maximum term of each SAR, the times
at which each SAR will be exercisable, and provisions requiring forfeiture of unexercised SARs at or following termination of employment
or service generally are fixed by the Committee, except that no freestanding SAR may have a term exceeding 10 years and no tandem SAR
may have a term exceeding the term of the option granted in conjunction with the tandem SAR. Distributions to the recipient may be made
in Common Stock, cash, or a combination of both as determined by the Committee.
Restricted
Stock and Restricted Stock Units. The Committee is authorized to grant restricted stock and restricted stock units. Restricted stock
consists of shares of our Common Stock that may not be sold, assigned, transferred, pledged, hypothecated, encumbered, or otherwise disposed
of, and that may be forfeited in the event of certain terminations of employment or service, prior to the end of a restricted period
as specified by the Committee. Restricted stock units are the right to receive shares of Common Stock at a future date in accordance
with the terms of such grant upon the attainment of certain conditions specified by the Committee, which include substantial risk of
forfeiture and restrictions on their sale or other transfer by the participant. The Committee determines the eligible participants to
whom, and the time or times at which, grants of restricted stock or restricted stock units will be made; the number of shares or units
to be granted; the price to be paid, if any; the time or times within which the shares covered by such grants will be subject to forfeiture;
the time or times at which the restrictions will terminate; and all other terms and conditions of the grants. Restrictions or conditions
could include, but are not limited to, the attainment of performance goals (as described below), continuous service with us, the passage
of time, or other restrictions or conditions. Except as otherwise provided in the 2014 Plan or the applicable award agreement, a participant
shall have, with respect to shares of restricted stock, all of the rights of a stockholder of the Company holding the class of Common
Stock that is the subject of the restricted stock, including, if applicable, the right to vote the Common Stock and the right to receive
any dividends thereon.
Dividend
Equivalent Rights. The Committee is authorized to grant a dividend equivalent right to any participant, either as a component of
another award or as a separate award, conferring on the participant the right to receive credits based on the cash dividends that would
have been paid on the shares of Common Stock specified in the award as if such shares were held by the participant. The terms and conditions
of the dividend equivalent right shall be specified by the grant. Dividend equivalents credited to the holder of a dividend equivalent
right may be paid currently or may be deemed to be reinvested in additional shares. Any such reinvestment shall be at the fair market
value at the time thereof. A dividend equivalent right may be settled in cash, shares, or a combination thereof.
Performance
Awards. The Committee may grant performance awards payable in cash, shares of Common Stock, other consideration, or a combination
thereof at the end of a specified performance period. Payment will be contingent upon achieving pre-established performance goals (as
discussed below) by the end of the performance period. The Committee will determine the length of the performance period, the maximum
payment value of an award, and the minimum performance goals required before payment will be made, so long as such provisions are not
inconsistent with the terms of the 2014 Plan, and to the extent an award is subject to Section 409A of the Code, are in compliance with
the applicable requirements of Section 409A of the Code and any applicable regulations or guidance issued thereunder. In addition, to
the extent we intended for Section 162(m) of the Code to apply to any Grandfathered Awards (as defined in the Million Dollar Deduction
Limit and Other Tax Matters section below), no participant has received in any calendar year Grandfathered Awards with an aggregate value
of more than four million dollars ($4,000,000), based on the fair market value of shares of our Common Stock at the time such awards
were granted. In certain circumstances, the Committee may, in its discretion, determine that the amount payable with respect to certain
performance awards will be reduced from the amount of any potential awards. However, the Committee may not, in any event, increase the
amount of compensation payable to an individual upon the attainment of a performance goal intended to satisfy the requirements of Section
162(m) of the Code. With respect to a performance award that is not intended to satisfy the requirements of Section 162(m) of the Code,
if the Committee determines, in its sole discretion, that the established performance measures or objectives are no longer suitable because
of a change in our business, operations, corporate structure, or for other reasons that the Committee deemed satisfactory, the Committee
may modify the performance measures or objectives and/or the performance period.
Performance
Goals. Awards of restricted stock, restricted stock units, performance awards, and other awards under the 2014 Plan may be made subject
to the attainment of performance goals relating to one or more business criteria which, where applicable, shall be within the meaning
of Section 162(m) of the Code and consist of one or more or any combination of the following criteria (the “Performance Criteria”):
cash flow; cost; revenues; sales; ratio of debt to debt plus equity; net borrowing, credit quality, or debt ratings; profit before tax;
economic profit; earnings before interest and taxes; earnings before interest, taxes, depreciation, and amortization; gross margin; earnings
per share (whether on a pre-tax, after-tax, operational, or other basis); operating earnings; capital expenditures; expenses or expense
levels; economic value added; ratio of operating earnings to capital spending or any other operating ratios; free cash flow; net profit;
net sales; net asset value per share; the accomplishment of mergers, acquisitions, dispositions, public offerings, or similar extraordinary
business transactions; sales growth; price of the shares; return on assets, equity, or stockholders’ equity; market share; inventory
levels, inventory turn, or shrinkage; or total return to stockholders. Any Performance Criteria may be used to measure our performance
as a whole or any of our business units and may be measured relative to a peer group or index. Any Performance Criteria may include or
exclude (i) extraordinary, unusual, and/or non-recurring items of gain or loss; (ii) gains or losses on the disposition of a business;
(iii) changes in tax or accounting regulations or laws; (iv) the effect of a merger or acquisition, as identified in our quarterly and
annual earnings releases; or (v) other similar occurrences. In all other respects, Performance Criteria shall be calculated in accordance
with our financial statements, under generally accepted accounting principles, or under a methodology established by the Committee prior
to the issuance of an award, which is consistently applied and identified in the Company’s audited financial statements, including
in footnotes, or the Compensation Discussion and Analysis section of the Company’s annual report. However, to the extent Section
162(m) of the Code is applicable, the Committee may not in any event increase the amount of compensation payable to an individual upon
the attainment of a performance goal.
Israeli
Awards
For
persons subject to the Israeli Income Tax Ordinance [New Version], 5721-1961 (the “Ordinance”), the Committee is authorized
to grant stock options pursuant to the terms of the Israeli Appendix. The Committee may grant to participants who are employees and office
holders options under Section 102 of the Ordinance (“Section 102 Options”) and to Controlling Shareholders (as defined in
the Israeli Appendix) and non-employee participants options under Section 3(i) of the Ordinance (“Section 3(i) Options”).
The Committee may designate Section 102 Options as “Approved 102 Options,” for which the options and shares upon exercise
must be held in trust and granted through a trustee, or as “Unapproved 102 Options,” for which the options and shares upon
exercise do not have to be held in trust. As described further below, the determination of the Committee as to the taxation route of
the stock options, the type of option, and duration of time the option and shares upon exercise are held in trust will determine the
tax consequences to the participant. Of the Approved 102 Options, the Committee may grant options as “Ordinary Income Options,”
for which the options and shares upon exercise must be held in trust for twelve (12) months from the date of grant, or as “Capital
Gain Options,” for which the options and shares upon exercise must be held in trust for twenty-four (24) months from the date of
grant. If the requirements of the Approved 102 Options are not met, the options are regarded as Unapproved 102 Options.
Section
3(i) Options and the shares upon exercise may, but need not, be held in trust as well, depending upon the agreement between the Committee,
the participant, and the trustee of the trust. Israeli participants can be granted other types of options under the 2014 Plan, but some
of them will require a pre-ruling from the Israeli Tax Authorities in order to be deemed Approved 102 Options.
Other
Awards. The Committee may grant other forms of awards, based upon, payable in, or that otherwise relate to, in whole or in part,
shares of Common Stock, if the Committee determines that such other form of award is consistent with the purpose and restrictions of
the 2014 Plan. The terms and conditions of such other form of award shall be specified by the grant. Such other awards may be granted
for no cash consideration, for such minimum consideration as may be required by applicable law, or for such other consideration as may
be specified by the grant.
Vesting,
Forfeiture, Assignment. The Committee, in its sole discretion, may determine that an award will be immediately vested in whole or
in part, or that all or any portion may not be vested until a date, or dates, subsequent to its date of grant, or until the occurrence
of one or more specified events, subject in any case to the terms of the 2014 Plan. If the Committee imposes conditions upon vesting,
then, except as otherwise provided below, subsequent to the date of grant, the Committee may, in its sole discretion, accelerate the
date on which all or any portion of the award may be vested.
The
Committee may impose on any award at the time of grant or thereafter, such additional terms and conditions as the Committee determines,
including terms requiring forfeiture of awards in the event of a participant’s termination of service. The Committee will specify
the circumstances on which performance awards may be forfeited in the event of a termination of service by a participant prior to the
end of a performance period or settlement of awards. Except as otherwise determined by the Committee, restricted stock will be forfeited
upon a participant’s termination of service during the applicable restriction period.
Awards
granted under the 2014 Plan generally are not assignable or transferable except by will or by the laws of descent and distribution, except
that the Committee may, in its discretion and pursuant to the terms of an award agreement, permit transfers of certain awards to (i)
the spouse (or former spouse), children, or grandchildren of the participant (“Immediate Family Members”); (ii) a trust or
trusts for the exclusive benefit of such Immediate Family Members; (iii) a partnership in which the only partners are (x) such Immediate
Family Members, and/or (y) entities which are controlled by Immediate Family Members; (iv) an entity exempt from federal income tax pursuant
to Section 501(c)(3) of the Code or any successor provision; or (v) a split interest trust or pooled income fund described in Section
2522(c)(2) of the Code or any successor provision, provided that (x) there shall be no consideration for any such transfer, (y) the applicable
award agreement pursuant to which such award is granted must be approved by the Committee and must expressly provide for such transferability,
and (z) subsequent transfers of transferred awards shall be prohibited except those by will or the laws of descent and distribution.
Adjustments
Upon Changes in Capitalization. In the event that any dividend or other distribution, recapitalization, stock split, reverse stock
split, rights offering, reorganization, merger, consolidation, split-up, spin-off, split-off, combination, subdivision, repurchase, or
exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase shares of Common
Stock or other securities of the Company, or other similar corporate transaction or event affects the fair value of an award, then the
Committee shall adjust any or all of the following so that the fair value of the award immediately after the transaction or event is
equal to the fair value of the award immediately prior to the transaction or event (i) the number of shares and type of Common Stock
(or the securities or property) which thereafter may be made the subject of awards; (ii) the number of shares and type of Common Stock
(or other securities or property) subject to outstanding awards; (iii) the number of shares and type of Common Stock (or other securities
or property) specified as the annual per-participant limitation under the 2014 Plan; (iv) the option price of each outstanding award;
(v) the amount, if any, we pay for forfeited shares in accordance with the terms of the 2014 Plan; and (vi) the number of or exercise
price of shares then subject to outstanding SARs previously granted and unexercised under the 2014 Plan to the end that the same proportion
of our issued and outstanding shares of Common Stock in each instance shall remain subject to exercise at the same aggregate exercise
price; provided, however, that the number of shares of Common Stock (or other securities or property) subject to any award shall always
be a whole number. Notwithstanding the foregoing, no such adjustment shall be made or authorized to the extent that such adjustment would
cause the 2014 Plan or any stock option to violate Section 422 of the Code or Section 409A of the Code. All such adjustments must be
made in accordance with the rules of any securities exchange, stock market, or stock quotation system to which we are subject.
Amendment
or Discontinuance of the 2014 Plan. The Board may, at any time and from time to time, without the consent of participants, alter,
amend, revise, suspend, or discontinue the 2014 Plan in whole or in part; provided, however, that (i) no amendment that requires stockholder
approval in order for the 2014 Plan and any awards under the 2014 Plan to continue to comply with Sections 162(m), 421, and 422 of the
Code (including any successors to such sections, or other applicable law) or any applicable requirements of any securities exchange or
inter-dealer quotation system on which our stock is listed or traded, shall be effective unless such amendment is approved by the requisite
vote of our stockholders entitled to vote on the amendment; and (ii) unless required by law, no action by the Board regarding amendment
or discontinuance of the 2014 Plan may adversely affect any rights of any participants or obligations of us to any participants with
respect to any outstanding awards under the 2014 Plan without the consent of the affected participant.
U.S.
Federal Income Tax Consequences
The
following is a brief summary of certain U.S. federal income tax consequences relating to the transactions described under the 2014 Plan
as set forth below. This summary does not purport to address all aspects of U.S. federal income taxation and does not describe state,
local, or foreign tax consequences. This discussion is based upon provisions of the Code and the Treasury Regulations issued thereunder,
and judicial and administrative interpretations under the Code and Treasury Regulations, all as in effect as of the date hereof, and
all of which are subject to change (possibly on a retroactive basis) or different interpretation.
Law
Affecting Deferred Compensation. In 2004, Section 409A was added to the Code to regulate all types of deferred compensation. If the
requirements of Section 409A of the Code are not satisfied, deferred compensation and earnings thereon will be subject to tax as it vests,
plus an interest charge at the underpayment rate plus one percent (1%) and a twenty percent (20%) penalty tax. Certain performance awards,
stock options, stock appreciation rights, restricted stock units, and certain types of restricted stock are subject to Section 409A of
the Code.
Incentive
Stock Options. A participant will not recognize income at the time an ISO is granted. When a participant exercises an ISO, a participant
also generally will not be required to recognize income (either as ordinary income or capital gain). However, to the extent that the
fair market value (determined as of the date of grant) of the shares with respect to which the participant’s ISOs are exercisable
for the first time during any year exceeds $100,000, the ISOs for the shares over $100,000 will be treated as nonqualified stock options,
and not ISOs, for U.S. federal tax purposes, and the participant will recognize income as if the ISOs were nonqualified stock options.
In addition to the foregoing, if the fair market value of the shares received upon exercise of an ISO exceeds the exercise price, then
the excess may be deemed a tax preference adjustment for purposes of the U.S. federal alternative minimum tax calculation. The federal
alternative minimum tax may produce significant tax repercussions depending upon the participant’s particular tax status.
The
tax treatment of any shares acquired by exercise of an ISO will depend upon whether the participant disposes of his or her shares prior
to the later of: two years after the date the ISO was granted or one year after the shares were transferred to the participant (referred
to as the “Holding Period”). If a participant disposes of shares acquired by exercise of an ISO after the expiration of the
Holding Period, any amount received in excess of the participant’s tax basis for such shares will be treated as a short-term or
long-term capital gain, depending upon how long the participant has held the shares. If the amount received is less than the participant’s
tax basis for such shares, the loss will be treated as a short-term or long-term capital loss, depending upon how long the participant
has held the shares. If the participant disposes of shares acquired by exercise of an ISO prior to the expiration of the Holding Period,
the disposition will be considered a “disqualifying disposition.” If the amount received for the shares is greater than the
fair market value of the shares on the exercise date, then the difference between the ISO’s exercise price and the fair market
value of the shares at the time of exercise will be treated as ordinary income for the tax year in which the “disqualifying disposition”
occurs. The participant’s basis in the shares will be increased by an amount equal to the amount treated as ordinary income due
to such “disqualifying disposition.” In addition, the amount received in such “disqualifying disposition” over
the participant’s increased basis in the shares will be treated as capital gain. However, if the price received for shares acquired
by exercise of an ISO is less than the fair market value of the shares on the exercise date and the disposition is a transaction in which
the participant sustains a loss which otherwise would be recognizable under the Code, then the amount of ordinary income that the participant
will recognize is the excess, if any, of the amount realized on the “disqualifying disposition” over the basis of the shares.
Nonqualified
Stock Options. A participant generally will not recognize income at the time a nonqualified stock option is granted. When a participant
exercises a nonqualified stock option, the difference between the option price and any higher market value of the shares of Common Stock
on the date of exercise will be treated as compensation taxable as ordinary income to the participant. The participant’s tax basis
for the shares acquired under a nonqualified stock option will be equal to the option price paid for such shares, plus any amounts included
in the participant’s income as compensation. When a participant disposes of shares acquired by exercise of a nonqualified stock
option, any amount received in excess of the participant’s tax basis for such shares will be treated as short-term or long-term
capital gain, depending upon how long the participant has held the shares. If the amount received is less than the participant’s
tax basis for such shares, the loss will be treated as a short-term or long-term capital loss, depending upon how long the participant
has held the shares.
Special
Rule if Option Price is Paid for in Shares. If a participant pays the option price of a nonqualified stock option with previously-owned
shares of our Common Stock and the transaction is not a disqualifying disposition of shares previously acquired under an ISO, the shares
received equal to the number of shares surrendered are treated as having been received in a tax-free exchange. The participant’s
tax basis and holding period for these shares received will be equal to the participant’s tax basis and holding period for the
shares surrendered. The shares received in excess of the number of shares surrendered will be treated as compensation taxable as ordinary
income to the participant to the extent of their fair market value. The participant’s tax basis in these shares will be equal to
their fair market value on the date of exercise, and the participant’s holding period for such shares will begin on the date of
exercise.
If
the use of previously acquired shares to pay the exercise price of a nonqualified stock option constitutes a disqualifying disposition
of shares previously acquired under an ISO, the participant will have ordinary income as a result of the disqualifying disposition in
an amount equal to the excess of the fair market value of the shares surrendered, determined at the time such shares were originally
acquired on exercise of the ISO, over the aggregate option price paid for such shares. As discussed above, a disqualifying disposition
of shares previously acquired under an ISO occurs when the participant disposes of such shares before the end of the Holding Period.
The other tax results from paying the exercise price with previously-owned shares are as described above, except that the participant’s
tax basis in the shares that are treated as having been received in a tax-free exchange will be increased by the amount of ordinary income
recognized by the participant as a result of the disqualifying disposition.
Restricted
Stock. A participant who receives restricted stock generally will recognize as ordinary income the excess, if any, of the fair market
value of the shares granted as restricted stock at such time as the shares are no longer subject to forfeiture or restrictions, over
the amount paid, if any, by the participant for such shares. However, a participant who receives restricted stock may make an election
under Section 83(b) of the Code within 30 days of the date of transfer of the shares to recognize ordinary income on the date of transfer
of the shares equal to the excess of the fair market value of such shares (determined without regard to the restrictions on such shares)
over the purchase price, if any, of such shares. If a participant does not make an election under Section 83(b) of the Code, then the
participant will recognize as ordinary income any dividends received with respect to such shares. At the time of sale of such shares,
any gain or loss realized by the participant will be treated as either short-term or long-term capital gain (or loss) depending on the
holding period. For purposes of determining any gain or loss realized, the participant’s tax basis will be the amount previously
taxable as ordinary income, plus the purchase price paid by the participant, if any, for such shares.
Stock
Appreciation Rights. Generally, a participant who receives a stand-alone SAR will not recognize taxable income at the time the stand-alone
SAR is granted, provided that the SAR is exempt from or complies with Section 409A of the Code. If an employee receives the appreciation
inherent in the SARs in cash, the cash will be taxed as ordinary income to the recipient at the time it is received. If a recipient receives
the appreciation inherent in the SARs in stock, the spread between the then current market value and the grant price, if any, will be
taxed as ordinary income to the employee at the time it is received. In general, there will be no federal income tax deduction allowed
to us upon the grant or termination of SARs. However, upon the exercise of a SAR, we will be entitled to a deduction equal to the amount
of ordinary income the recipient is required to recognize as a result of the exercise.
Other
Awards. In the case of an award of restricted stock units, performance awards, dividend equivalent rights, or other stock or cash
awards, the recipient will generally recognize ordinary income in an amount equal to any cash received and the fair market value of any
shares received on the date of payment or delivery, provided that the award is exempt from or complies with Section 409A of the Code.
In that taxable year, we will receive a federal income tax deduction in an amount equal to the ordinary income which the participant
has recognized.
Federal
Tax Withholding. Any ordinary income realized by a participant upon the exercise of an award under the 2014 Plan is subject to withholding
of U.S. federal, state, and local income tax and to withholding of the participant’s share of tax under the Federal Insurance Contribution
Act and the Federal Unemployment Tax Act. To satisfy our federal income tax withholding requirements, we will have the right to require
that, as a condition to delivery of any certificate for shares of Common Stock or the registration of the shares in the participant’s
name, the participant remit to us an amount sufficient to satisfy the withholding requirements. Alternatively, we may withhold a portion
of the shares (valued at fair market value) that otherwise would be issued to the participant to satisfy all or part of the withholding
tax obligations or may, if we consent, accept delivery of shares (that the participant has not acquired from us within six months prior
to the date of exercise) with an aggregate fair market value that equals or exceeds the required tax withholding payment. Withholding
does not represent an increase in the participant’s total income tax obligation, since it is fully credited toward his or her tax
liability for the year. Additionally, withholding does not affect the participant’s tax basis in the shares. Compensation income
realized and tax withheld will be reflected on Forms W-2 supplied by us to employees by January 31 of the succeeding year. Deferred compensation
that is subject to Section 409A of the Code will be subject to certain federal income tax withholding and reporting requirements.
Tax
Consequences to Us. To the extent that a participant recognizes ordinary income in the circumstances described above, we will be
entitled to a corresponding deduction provided that, among other things, the income meets the test of reasonableness, is an ordinary
and necessary business expense, is not an “excess parachute payment” within the meaning of Section 280G of the Code, and
is not disallowed by the $1,000,000 limitation on certain executive compensation under Section 162(m) of the Code.
Million
Dollar Deduction Limit and Other Tax Matters. We may not deduct compensation of more than $1,000,000 that is paid to “covered
employees” (as defined in Section 162(m) of the Code), which include (i) an individual (or, in certain circumstances, his or her
beneficiaries) who, at any time during the taxable year, is either our principal executive officer or principal financial officer; (ii)
an individual who is among our three highest compensated officers for the taxable year (other than an individual who was either our principal
executive officer or principal financial officer at any time during the taxable year); or (iii) anyone who was a covered employee for
purposes of Section 162(m) of the Code for any tax year beginning on or after January 1, 2018. This limitation on deductions (x) only
applies to compensation paid by a publicly-traded corporation (and not compensation paid by non-corporate entities) and (z) may not apply
to certain types of compensation, such as qualified performance-based compensation that is payable pursuant to a written, binding contract
that was in effect as of November 2, 2018 (each, a “Grandfathered Award”), so long as the contract is not materially modified
after that date. To the extent that compensation is payable pursuant to a Grandfathered Award, and if we determine that Section 162(m)
of the Code will apply to such Grandfathered Award, the Company intends to interpret and operate the 2014 Plan so that the terms of the
Grandfathered Award will not be materially modified and will be constructed so as to constitute qualified performance-based compensation
and, as such, will be exempt from the $1,000,000 limitation on deductible compensation.
If
an individual’s rights under the 2014 Plan are accelerated as a result of a change in control and the individual is a “disqualified
individual” under Section 280G of the Code, the value of any such accelerated rights received by such individual may be included
in determining whether or not such individual has received an “excess parachute payment” under Section 280G of the Code,
which could result in (i) the imposition of a 20% federal excise tax (in addition to federal income tax) payable by the individual on
the value of such accelerated rights, and (ii) the loss by us of a compensation deduction.
Israeli
Income Tax Consequences
The
following description of the Israel income tax consequences of awards under Israeli Appendix of the 2014 Plan is general and does not
purport to be complete.
Pursuant
to Section 102 of the Ordinance, which came into effect on January 1, 2003, options, shares, and other securities (including Restricted
Shares) (together “Options”) may be granted through a trustee (i.e., Approved 102 Options) or not through a trustee
(i.e., Unapproved 102 Options). The following is a brief discussion of the tax consequences applicable to both types of Section
102 Options.
Grant
Through a Trustee
Options
granted through a trustee and held in trust are made either through the capital gains tax track (i.e., Capital Gains Options)
or the compensation income tax track (i.e., Ordinary Income Options). Capital Gains Options and Ordinary Income Options can be
granted only through a trustee. Under the capital gains tax track, the Capital Gains Options and the underlying shares have to be held
in trust for at least twenty-four (24) months from their date of grant. Any gain made on the sale of shares following the twenty-four
(24) month period is subject to a capital gains tax at a current rate of twenty-five percent (25%); the amount of gain is the difference
between the sales proceeds from the sale of shares and the exercise price paid for such shares. Generally, Capital Gains Options are
not taxed on their date of grant. However, in the event that the exercise price of the options is less than the fair market value of
the Company’s Common Stock on the date of grant, a portion of the gain will be deemed compensation income, taxable at the personal
marginal tax rate of the participant. The payment of such tax is made at the time of exercise of the Capital Gains Options. The portion
of the gain that is deemed compensation income is the difference between the average value of the shares as listed on the stock exchange
during the thirty (30) day period prior to the date of grant and the exercise price of the option. If the Capital Gains Options or the
underlying shares of such options are sold by the trustee or transferred from the trustee to the beneficiary before the end of the twenty-four
(24) month period, any resulting income (cash or equivalent) is taxed as compensation income. If the options have not been exercised
and transferred from the trustee to the beneficiary, the taxable amount of income is the value of the option. If the options have been
exercised, the taxable amount of income is the difference between the aggregate fair market value of the shares at the time of such sale
or transfer and the aggregate exercise price paid for such shares.
Under
the compensation income tax track, the Ordinary Income Options and the underlying shares have to be held in trust for at least twelve
(12) months from their date of grant. Any gain made on the sale of shares is subject to compensation income tax at the personal marginal
tax rate of the respective participant; the amount of gain is the difference between the sales proceeds from the sale of shares and the
exercise price paid for such shares. Ordinary Income Options are not taxed on their date of grant, but rather when the options or the
underlying shares of such options are sold by the trustee or transferred from the trustee to the beneficiary. At such time, if the options
have not been exercised, the taxable amount of income is value of the Option. If the Options have been exercised, the taxable amount
of income is the difference between the aggregate fair market value of the shares at the time of such sale or transfer and the aggregate
exercise price paid for such shares.
A
corporate tax deduction is available for the employer in the tax year in which tax is withheld. The deductible amount is equal to any
amount included by a participant as compensation income, except when a participant is granted Capital Gains Options, including in the
event that such Capital Gains Options or the underlying shares of such options are sold by the trustee or transferred from the trustee
to the beneficiary before the end of the applicable twenty-four (24) month period. In such event, any resulting income to the participant
is deemed to be compensation income for tax purposes, but there would be no corresponding corporate tax deduction available to the employer.
Grant
Not Through a Trustee
In
the case of Options not made through a trustee, if the shares are non-marketable securities, the Option will not be subject to tax at
the date of grant of the option or the exercise of the Option. However, ordinary income tax will be payable upon the sale of the shares
acquired upon exercise of the Option. The taxable amount will be the sales proceeds less the aggregate exercise price paid by the participant.
If the shares covered by the option have a market value, then the value of the Option is treated as compensation income, and subject
to tax at the date of grant. There is no tax upon the exercise of the Option. However, capital gains tax will be payable on the sale
of the shares upon exercise of the Option. The taxable amount will be the sales proceeds, less the value that was taxed at the date of
grant and the aggregate exercise price paid by the participant.
Grant
of Section 3(i) Options
Options
under Section 3(i) of the Ordinance may be granted to Controlling Shareholders, consultants, and controlling stockholders (which are
excluded from the term employees under Section 102 of the Ordinance). Grants of Options for shares which are non-marketable are not taxed
under the income tax rules on the date of grant, but such event creates VAT liability. However, they are subject to tax at the time of
exercise at the ordinary income tax rate, and at the day such shares are sold at the capital gains tax rate. The difference between the
fair market value of the shares at the time of exercise and the exercise price is taxed at the ordinary income tax rate. Any gain above
such value at the time of sale of the shares is taxed at the capital gains rate. Grants of Options for shares which have a market value
are subject to tax on the date of grant, exercise of the Option, and the sale of the shares. The value of the Option is taxed on the
date of grant at the ordinary income tax rate. The difference between the fair market value of the shares at the time of exercise and
the sum of the exercise price and the amounts previously taxed at grant, is taxed at the ordinary income tax rate. Any gain above such
value at the time of sale of the shares is taxed at the capital gains rate.
Other
Stock Incentives
All
other awards under the Israeli Appendix need tax ruling from the Israeli Tax Authority for the postponement of the tax event arising
from the issuance thereof. Otherwise there is an immediate tax event.
Interest
of Directors and Executive Officers.
All
members of our Board and all of our executive officers are eligible for awards under the 2014 Plan and, thus, have a personal interest
in the approval of the Plan Amendment.
New
Plan Benefits
With
respect to the increased number of shares reserved under the 2014 Plan pursuant to the Plan Amendment, we cannot currently determine
the benefits or number of shares subject to awards that may be granted in the future to eligible participants under the 2014 Plan because
the grant of awards and the terms of such awards are to be determined in the sole discretion of the Committee.
The
fair market value of our Common Stock is $0.4199 per share based on the closing price of our Common Stock on October 27,
2022.
Vote
Required
The
affirmative vote of the holders of a majority of the shares of our Common Stock entitled to vote represented in person or by proxy at
the Annual Meeting entitled to vote on such proposal that vote for or against such proposal is required for the approval of the Plan
Amendment.
The Board
recommends that you vote “FOR” the approval of the Plan Amendment (Proposal 5). |
PROPOSAL
6: RATIFICATION OF APPOINTMENT OF MARCUM LLP AS OUR
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The
audit committee of the Board has selected Marcum LLP as our independent registered public accounting firm for the fiscal year ending
December 31, 2022, and the Board has directed that management submit the selection of independent registered public accountants for ratification
by the stockholders at the Annual Meeting.
Stockholder
ratification of the selection of Marcum LLP as our independent registered public accounting firm is not required by our Bylaws or otherwise.
However, the Board is submitting the selection of Marcum LLP to the stockholders for ratification as a matter of good corporate practice.
If the stockholders fail to ratify the selection, the audit committee will reconsider whether or not to retain Marcum LLP. Even if the
selection is ratified, the Audit Committee, at its discretion, may direct the appointment of a different independent registered public
accounting firm at any time during the year if it determines that such a change would be in the best interests of the Company and its
stockholders.
Fees
to Independent Registered Public Accounting Firm
The
following is a summary of the fees billed to us by Marcum LLP for the year ended December 31, 2021 and 2020:
| |
Year Ended December 31, 2021 | | |
Year Ended December 31, 2020 | |
Audit fees | |
$ | 250,290 | | |
$ | 208,000 | |
Audit-related fees | |
$ | - | | |
$ | - | |
Tax fees | |
$ | — | | |
$ | — | |
All other fees | |
$ | 7,725 | | |
$ | 109,000 | |
Total | |
$ | 258,015 | | |
$ | 317,000 | |
Audit
Fees. This category includes the fees related to the audit of our annual financial statements and the review of our interim quarterly
financial statements and services that are normally provided by our independent registered public accounting firm in connection with
its engagements for those years. This category also includes advice on audit and accounting matters that arose during, or as a result
of, the audit or the review of our interim financial statements.
Audit-Related
Fees. This category typically consists of assurance and related services by our independent registered public accounting firm that
are reasonably related to the performance of the audit or review of our financial statements and are not reported above under “Audit
Fees.” The services for the fees disclosed under this category include consents regarding equity issuances.
Tax
Fees. This category typically consists of professional services rendered by our independent registered public accounting firm for
tax compliance and tax advice.
All
Other Fees. This category includes aggregate fees billed in each of the last two fiscal years for products and services provided
by Marcum LLC other than the services reported in the categories above.
A
representative of Marcum LLP will be present online at the Annual Meeting, will have the opportunity to make a statement if they so desire
and will be available to respond to appropriate questions.
Pre-Approval
Policies and Procedures
Under
the audit committee’s pre-approval policies and procedures, the audit committee is required to pre-approve the audit and non-audit
services performed by our independent registered public accounting firm. On an annual basis, the audit committee pre-approves a list
of services that may be provided by the independent registered public accounting firm without obtaining specific pre-approval from the
audit committee. In addition, the audit committee sets pre-approved fee levels for each of the listed services. Any type of service that
is not included on the list of pre-approved services must be specifically approved by the audit committee or its designee. Any proposed
service that is included on the list of pre-approved services but will cause the pre-approved fee level to be exceeded will also require
specific pre-approval by the audit committee or its designee.
The
audit committee has delegated pre-approval authority to the audit committee chairman and any pre-approved actions by the audit committee
chairman as designee are reported to the audit committee for approval at its next scheduled meeting.
All
of the services rendered by Marcum LLC were pre-approved by the audit committee.
The
Board considered the audit fees, audit-related fees, tax fees and other fees paid to our accountants, as disclosed above, and determined
that the payment of such fees was compatible with maintaining the independence of the accountants.
Required
Vote and Board Recommendation
The
affirmative “FOR” vote of a majority of the votes cast “FOR and “AGAINST” the matter at the Annual Meeting
is required to adopt the proposal to ratify the appointment of Marcum LLP as our independent registered public accounting firm for the
fiscal year ending December 31, 2022. Each of the failure to vote by proxy or to vote in person (which would include voting online at
the virtual Annual Meeting), an abstention and a broker non-vote will have no effect on the voting results for this Proposal 5.
The
Board recommends a vote “FOR” the ratification of Marcum LLP as our independent public accounting firm for the 2022 fiscal
year (Proposal 6). |
PROPOSAL
7: APPROVAL OF AN ADJOURNMENT OF THE ANNUAL MEETING
Background
of and Rationale for the Adjournment Proposal
The
Board believes that if the number of shares of the Company’s Common Stock and Series F Preferred Stock outstanding and entitled
to vote at the Annual Meeting is insufficient to approve the Reverse Stock Split, it is in the best interests of the stockholders to
enable the Board to continue to seek to obtain a sufficient number of additional votes to approve the Reverse Stock Split Proposal.
In
the Adjournment Proposal, we are asking stockholders to authorize the holder of any proxy solicited by the Board to vote in favor of
adjourning or postponing the Annual Meeting or any adjournment or postponement thereof. If our stockholders approve this proposal, we
could adjourn or postpone the Annual Meeting, and any adjourned session of the Annual Meeting, to use the additional time to solicit
additional proxies in favor of the Reverse Stock Split Proposal.
Additionally,
approval of the Adjournment Proposal could mean that, in the event we receive proxies indicating that a majority in voting power of the
votes to be cast by holders of our Common Stock and Series F Preferred Stock, as counted to mirror the Common Stock votes cast, will
vote against the Reverse Stock Split Proposal, we could adjourn or postpone the Annual Meeting without a vote on the Reverse Stock Split
Proposal and use the additional time to solicit the holders of those shares to change their vote in favor of the Reverse Stock Split
Proposal.
Required
Vote and Board Recommendation
The
affirmative vote of the holders of shares of our Common Stock and Series F Preferred Stock, voting as a single class, representing a
majority in voting power of the votes cast by holders of all of the shares of Common Stock and Series F Preferred Stock present or represented
at the Annual Meeting and voting on the Adjournment Proposal is required for approval of the Adjournment Proposal.
The
Board recommends that you vote “FOR” the adjournment of the Annual Meeting as described above (Proposal 7). |
OTHER
BUSINESS
The
Board knows of no other business to be brought before the Annual Meeting. If, however, any other business should properly come before
the Annual Meeting, the persons named in the accompanying proxy will vote the proxy in accordance with applicable law and as they may
deem appropriate in their discretion, unless directed by the proxy to do otherwise.
SUBMISSION
OF FUTURE STOCKHOLDER PROPOSALS
Pursuant
to Rule 14a-8 under the Exchange Act (“Rule 14a-8”), a stockholder who intends to present a proposal at our next annual meeting
of stockholders and who wishes the proposal to be included in the proxy statement for that meeting must submit the proposal in writing
no later than August 17, 2023 after which date such stockholder proposal will be considered untimely. Such proposal must be submitted
to the attention of Secretary, at our corporate offices at 525 Executive Blvd, Elmsford, NY 10523.
Stockholders
wishing to nominate a director or submit proposals to be presented directly at our next annual meeting instead of by inclusion in next
year’s proxy statement must follow the submission criteria and deadlines set forth in our Bylaws concerning stockholder nominations
and proposals. Stockholder nominations for director and other proposals that are not to be included in such materials must be received
by our Secretary in writing at our corporate offices at 525 Executive Blvd, Elmsford, NY 10523, no earlier than August 17, 2023 and no
later than the close of business on September 16, 2023. Any such stockholder proposals or nominations for director must also satisfy
the requirements set forth in our Bylaws. To be eligible for inclusion in our proxy materials, stockholder proposals must also comply
with the requirements of Rule 14a-8. Stockholders are also advised to review our Bylaws, which contain additional advance notice requirements,
including requirements with respect to advance notice of stockholder proposals and director nominations. A proxy granted by a stockholder
will give discretionary authority to the proxies to vote on any matters introduced pursuant to the above advance notice Bylaw provisions,
subject to applicable rules of the SEC.
In
addition to satisfying the requirements under our By-laws, to comply with the universal proxy rules, stockholders who intend to solicit
proxies in support of director nominees other than Company nominees must provide notice that sets forth the information required by Rule
14a-19 under the Exchange Act no later than October 16, 2023 (i.e., the date that is 60 days prior to the anniversary date of this annual
meeting of stockholders).
A
copy of our 2021 Annual Report on Form 10-K is available without charge (except for exhibits, which are available upon payment of a reasonable
fee) upon written request to NanoVibronix, Inc., Attention: Chief Executive Officer, 525 Executive Blvd, Elmsford, NY 10523.
APPENDIX
A
Proposed
Staggered Board Amendment
FORM
OF CERTIFICATE OF AMENDMENT
TO
THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NANOVIBRONIX,
INC.
Pursuant to Section 242 of
the General Corporation Law of the State of Delaware, NanoVibronix, Inc., a corporation organized under and existing by virtue of the
General Corporation Law of the State of Delaware (“DGCL”), DOES HEREBY CERTIFY:
1. The name of the corporation
is NanoVibronix, Inc. (the “Corporation”).
2. The date of filing the
original Certificate of Incorporation of this Corporation with the Secretary of State of the State of Delaware was October 20, 2003.
3. “SIXTH: A”
of the Amended and Restated Certificate of Incorporation, as previously amended, is hereby amended to read as follows:
“SIXTH: A. Subject
to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the number
of directors shall be fixed from time to time exclusively by the board of directors pursuant to a resolution adopted by a majority of
the Whole Board. The directors, other than those who may be elected by the holders of shares of any series of Preferred Stock under specified
circumstances, shall be divided into three classes designated as Class I, Class II and Class III, respectively, as nearly equal in number
as possible, with the term of office of the Class I directors to expire at the first annual meeting of stockholders following the initial
classification of directors, the term of office of the Class II directors to expire at the second annual meeting of stockholders following
the initial classification of directors, and the term of office of the Class III directors to expire at the third annual meeting of stockholders
following the initial classification of directors. At each annual meeting of stockholders, directors elected to succeed those directors
whose terms expire, other than directors elected by the holders of any series of Preferred Stock under specified circumstances, shall
be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election and until their
successors are duly elected and qualified or until such director’s earlier death, resignation or removal. The Board of Directors
is authorized to assign members of the Board already in office to such classes as it may determine at the time the classification of
the Board of Directors becomes effective. In case of any increase or decrease, from time to time, in the number of directors, the number
of directors in each class shall be apportioned as nearly equal as possible.”
4. The foregoing amendment
was effected pursuant to a resolution of the Board of Directors of said corporation.
5. Thereafter, pursuant to
a resolution by the Board of Directors, this Certificate of Amendment was submitted to the stockholders of the Corporation for their
approval in accordance with the provisions of Section 242 of the DGCL. Accordingly, said proposed amendment has been adopted in accordance
with Section 242 of the DGCL.
Dated: [_____], 2022
|
NANOVIBRONIX, INC. |
|
|
|
|
By: |
|
|
Name: |
Brian Murphy |
|
Title: |
Chief Executive Officer |
APPENDIX B
Proposed
Reverse Stock Split Amendment
FORM
OF CERTIFICATE OF AMENDMENT TO
THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NANOVIBRONIX, INC.
Pursuant
to Section 242 of the General Corporation Law of the State of Delaware, NanoVibronix, Inc., a corporation organized under and existing
by virtue of the General Corporation Law of the State of Delaware (“DGCL”), DOES HEREBY CERTIFY:
1.
The name of the corporation is NanoVibronix, Inc. (the “Corporation”).
2.
The date of filing the original Certificate of Incorporation of this Corporation with the Secretary of State of the State of Delaware
was October 20, 2003.
3.
Resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Amendment to the Certificate of
Incorporation and declaring said amendment to be advisable and calling for the consideration and approval thereof at a meeting of the
stockholders of the Corporation.
4.
Resolutions were duly adopted by the Board of Directors of the Corporation, in accordance with the provisions of the Certificate of Incorporation
set forth below, providing that, effective as of [●], New York time, on [●], each [●] (#) issued and outstanding shares
of the Corporation’s Common Stock, par value $0.001 per share, shall be converted into [●] (#) share of the Corporation’s
Common Stock, par value $0.001 per share, as constituted following such date.
5.
The Certificate of Incorporation is hereby amended by revising Article FOURTH to include a new paragraph E as follows:
“E.
Reverse Split. Upon the effectiveness of the filing of this Certificate of Amendment (the “Effective Time”) each share of
the Corporation’s common stock, $0.001 par value per share (the “Old Common Stock”), either issued or outstanding or
held by the Corporation as treasury stock, immediately prior to the Effective Time, will be automatically reclassified and combined (without
any further act) into a smaller number of shares such that each _____ shares of Old Common Stock issued and outstanding or held by the
Company as treasury stock immediately prior to the Effective Time is reclassified into one share of Common Stock, $0.001 par value per
share, of the Corporation (the “New Common Stock”), the exact ratio within such range to be determined by the board of directors
of the Corporation prior to the Effective Time and publicly announced by the Corporation (the “Reverse Stock Split”). The
Board of Directors shall make provision for the issuance of that number of fractions of New Common Stock such that any fractional share
of a holder otherwise resulting from the Reverse Stock Split shall be rounded up to the next whole number of shares of New Common Stock.
Any stock certificate that, immediately prior to the Effective Time, represented shares of the Old Common Stock will, from and after
the Effective Time, automatically and without the necessity of presenting the same for exchange, represent the number of shares of the
New Common Stock into which such shares of Old Common Stock shall have been reclassified plus the fraction, if any, of a share of New
Common Stock issued as aforesaid.”
6.
The foregoing amendment was effected pursuant to a resolution of the Board of Directors of said corporation.
7.
Thereafter, pursuant to a resolution by the Board of Directors, this Certificate of Amendment was submitted to the stockholders of the
Corporation for their approval in accordance with the provisions of Section 242 of the DGCL. Accordingly, said proposed amendment has
been adopted in accordance with Section 242 of the DGCL.
Dated:
[_____], 2022
|
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
|
|
Name: |
Brian
Murphy |
|
Title: |
Chief
Executive Officer |
APPENDIX
C
Proposed
Plan Amendment
FOURTH AMENDMENT
TO THE
NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN
This FOURTH AMENDMENT TO THE NANOVIBRONIX,
INC. 2014 LONG-TERM INCENTIVE PLAN (this “Amendment”), effective as of _______, 2022, is made and entered into
by NanoVibronix, Inc., a Delaware corporation (the “Company”). Terms used in this Amendment with initial capital
letters that are not otherwise defined herein shall have the meanings ascribed to such terms in the NanoVibronix, Inc. 2014 Long-Term
Incentive Plan (the “Plan”), as amended by the First Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive
Plan, which was approved by the Company’s stockholders on June 13, 2018, the Second Amendment to the NanoVibronix, Inc. 2014 Long-Term
Incentive Plan, which was approved by the Company’s stockholders on June 13, 2019, and the Third Amendment to the NanoVibronix,
Inc. 2014 Long-Term Incentive Plan, which was approved by the Company’s stockholders on December 29, 2021 (the “Third
Amendment”).
RECITALS
WHEREAS, Article 9 of the
Plan provides that the Board of Directors of the Company (the “Board”) may amend the Plan at any time and from
time to time;
WHEREAS, on November 1,
2021, the Board previously approved increasing the aggregate number of shares of Common Stock that may be issued under the Plan by 1,500,000
additional shares and intended to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the
Plan, as set forth in Article 5 of the Plan, to a total of 3,364,286 shares of Common Stock (the “Third Amendment”), which
increase was approved by the stockholders of the Company at the special meeting of stockholders of the Company held on December 29, 2021,
but a scrivener’s error in the Third Amendment only increased the aggregate number of shares of Common Stock to a total of 3,346,286
shares of Common Stock (the “Third Amendment Discrepancy”);
WHEREAS, the Board desires
to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan, as set forth in Article
5 of the Plan, by one million five hundred thousand (1,500,000) shares of Common Stock;
WHEREAS, the Board also
desires to correct the Third Amendment Discrepancy by amending the Plan to further increase the aggregate number of shares of Common Stock
that may be issued under the Plan, as set forth in Article 5 of the Plan, by an additional eighteen thousand (18,000) shares of Common
Stock; and
WHEREAS, the Board intends
to submit this Amendment to the Company’s stockholders for their approval.
NOW, THEREFORE, in accordance
with Article 9 of the Plan, the Company hereby amends the Plan as follows:
1. Section
5.1 of the Plan is hereby amended by deleting said section in its entirety and substituting in lieu thereof the following new Section
5.1:
5.1 Number
Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common Stock
that may be delivered pursuant to Awards granted under the Plan is Four Million Eight Hundred Sixty-Four Thousand Two Hundred Eighty-Six
(4,864,286) shares, of which one hundred percent (100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment pursuant
to Articles 11 and 12, the maximum number of shares of Common Stock with respect to which Stock Options or SARs may be granted
to an Executive Officer during any calendar year is six hundred sixty-nine thousand two-hundred fifty-seven (669,257) shares of Common
Stock. Shares to be issued may be made available from authorized but unissued Common Stock, Common Stock held by the Company in its treasury,
or Common Stock purchased by the Company on the open market or otherwise. During the term of this Plan, the Company will at all times
reserve and keep available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan.
2. This
Amendment shall be effective on the date first set forth above. In the event stockholder approval of this Amendment is not obtained within
twelve (12) months of the date the Board approved this Amendment, the additional shares added to the Plan pursuant to this Amendment shall
not be available for grant as Incentive Stock Options.
3. Except
as expressly amended by this Amendment, the Plan shall continue in full force and effect in accordance with the provisions thereof.
[Remainder of the Page Intentionally
Left Blank;
Signature Page Follows]
IN WITNESS WHEREOF, the
Company has caused this Amendment to be duly executed as of the date first written above.
|
NANOVIBRONIX, INC. |
|
|
|
|
By: |
|
|
Name: |
Stephen Brown |
|
Title: |
Chief Financial Officer |
APPENDIX D
NANOVIBRONIX, INC.
2014 LONG-TERM INCENTIVE PLAN
The NanoVibronix, Inc. 2014 Long-Term
Incentive Plan (the “Plan”) was adopted by the Board of Directors of NanoVibronix, Inc., a Delaware corporation
(the “Company”), effective as of February 19, 2014, subject to approval by the Company’s stockholders.
Article 1
PURPOSE
The purpose of the Plan is to
attract and retain the services of key Employees, key Contractors, and Outside Directors of the Company and its Subsidiaries and to provide
such persons with a proprietary interest in the Company through the granting of Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Awards, Dividend Equivalent Rights, and Other Awards, whether
granted singly, or in combination, or in tandem, that will:
(a) increase the interest of such
persons in the Company’s welfare;
(b) furnish an incentive to such
persons to continue their services for the Company or its Subsidiaries; and
(c) provide a means through which
the Company may attract able persons as Employees, Contractors, and Outside Directors.
With respect to Reporting Participants,
the Plan and all transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 promulgated under the
Exchange Act. To the extent any provision of the Plan or action by the Committee fails to so comply, such provision or action shall be
deemed null and void ab initio, to the extent permitted by law and deemed advisable by the Committee.
Article 2
DEFINITIONS
For the purpose of the Plan, unless
the context requires otherwise, the following terms shall have the meanings indicated:
2.1 “Applicable Law”
means all legal requirements relating to the administration of equity incentive plans and the issuance and distribution of shares of Common
Stock, if any, under applicable corporate laws, applicable securities laws, the rules of any exchange or inter-dealer quotation system
upon which the Company’s securities are listed or quoted, the rules of any foreign jurisdiction applicable to Incentives granted
to residents therein, and any other applicable law, rule or restriction.
2.2 “Award”
means the grant of any Incentive Stock Option, Nonqualified Stock Option, Restricted Stock, SAR, Restricted Stock Units, Performance Award,
Dividend Equivalent Right or Other Award, whether granted singly or in combination or in tandem (each individually referred to herein
as an “Incentive”).
2.3 “Award Agreement”
means a written agreement between a Participant and the Company which sets out the terms of the grant of an Award.
2.4 “Award Period”
means the period set forth in the Award Agreement during which one or more Incentives granted under an Award may be exercised.
2.5 “Board”
means the board of directors of the Company.
2.6 “Change in Control”
means the occurrence of the event set forth in any one of the following paragraphs, except as otherwise provided herein:
(a) any Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its Affiliates) representing fifty percent (50%) or more of the combined
voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection
with a transaction described in clause (i) of paragraph (c) below;
(b) the following individuals
cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the effective date of this
Plan, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended
by a vote of at least two-thirds (2/3rds) of the directors then still in office who either were directors on the effective
date of this Plan or whose appointment, election or nomination for election was previously so approved or recommended;
(c) there is consummated
a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (i)
a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent
thereof) at least sixty percent (60%) of the combined voting power of the securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation, or (ii) a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of
the Company (not including the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates
other than in connection with the acquisition by the Company or its Affiliates of a business) representing thirty percent (30%) or more
of the combined voting power of the Company’s then outstanding securities; or
(d) the stockholders
of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale
or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company
of all or substantially all of the Company’s assets to an entity, at least sixty percent (60%) of the combined voting power of the
voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company
immediately prior to such sale.
For purposes hereof:
“Affiliate”
shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act.
“Beneficial Owner”
shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
“Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any of its Subsidiaries, (ii) a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering
of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
Notwithstanding
the foregoing provisions of this Section 2.6, if an Award issued under the Plan is subject to Section 409A of the Code, then an
event shall not constitute a Change in Control for purposes of such Award under the Plan unless such event also constitutes a change
in the Company’s ownership, its effective control or the ownership of a substantial portion of its assets within the meaning of
Section 409A of the Code.
2.7
“Code” means the United States Internal Revenue Code of 1986, as amended.
2.8
“Committee” means the committee appointed or designated by the Board to administer the Plan in accordance with
Article 3 of this Plan.
2.9
“Common Stock” means the Common Stock, par value $0.001 per share, which the Company is currently authorized
to issue or may in the future be authorized to issue, or any securities into which or for which the Common Stock of the Company may be
converted or exchanged, as the case may be, pursuant to the terms of this Plan.
2.10
“Company” means NanoVibronix, Inc., a Delaware corporation, and any successor entity.
2.11
“Contractor” means any natural person, who is not an Employee, rendering bona fide services to the Company
or a Subsidiary, with compensation, pursuant to a written independent contractor agreement between such person (or any entity employing
such person) and the Company or a Subsidiary, provided that such services are not rendered in connection with the offer or sale of securities
in a capital raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities.
2.12
“Corporation” means any entity that (i) is defined as a corporation under Section 7701 of the Code and (ii)
is the Company or is in an unbroken chain of corporations (other than the Company) beginning with the Company, if each of the corporations
other than the last corporation in the unbroken chain owns stock possessing a majority of the total combined voting power of all classes
of stock in one of the other corporations in the chain. For purposes of clause (ii) hereof, an entity shall be treated as a “corporation”
if it satisfies the definition of a corporation under Section 7701 of the Code.
2.13
“Date of Grant” means the effective date on which an Award is made to a Participant as set forth in the applicable
Award Agreement; provided, however, that solely for purposes of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder, the Date of Grant of an Award shall be the date of stockholder approval of the Plan if such date is later than the effective
date of such Award as set forth in the Award Agreement.
2.14
“Dividend Equivalent Right” means the right of the holder thereof to receive credits based on the cash dividends
that would have been paid on the shares of Common Stock specified in the Award if such shares were held by the Participant to whom the
Award is made.
2.15
“Employee” means a common law employee (as defined in accordance with the Regulations and Revenue Rulings then
applicable under Section 3401(c) of the Code) of the Company or any Subsidiary of the Company; provided, however,
in the case of individuals whose employment status, by virtue of their employer or residence, is not determined under Section 3401(c)
of the Code, “Employee” shall mean an individual treated as an employee for local payroll tax or employment purposes by the
applicable employer under Applicable Law for the relevant period.
2.16
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
2.17
“Executive Officer” means an officer of the Company or a Subsidiary subject to Section 16 of the Exchange Act
or a “covered employee” as defined in Section 162(m)(3) of the Code.
2.18
“Fair Market Value” means, as of a particular date, (a) if the shares of Common Stock are listed on any established
national securities exchange, the closing sales price per share of Common Stock on the consolidated transaction reporting system for
the principal securities exchange for the Common Stock on that date, or, if there shall have been no such sale so reported on that date,
on the last preceding date on which such a sale was so reported; (b) if the shares of Common Stock are not so listed, but are quoted
on an automated quotation system, the closing sales price per share of Common Stock reported on the automated quotation system on that
date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which such a sale was so reported;
(c) if the Common Stock is not so listed or quoted, the mean between the closing bid and asked price on that date, or, if there are no
quotations available for such date, on the last preceding date on which such quotations shall be available, as reported by the OTC Bulletin
Board operated by the Financial Industry Regulation Authority, Inc. or the OTC Markets Group Inc., formerly known as Pink OTC Markets
Inc.; or (d) if none of the above is applicable, such amount as may be determined by the Committee (acting on the advice of an Independent
Third Party, should the Committee elect in its sole discretion to utilize an Independent Third Party for this purpose), in good faith,
to be the fair market value per share of Common Stock. The determination of Fair Market Value shall, where applicable, be in compliance
with Section 409A of the Code.
2.19
“Incentive” is defined in Section 2.2 hereof.
2.20
“Incentive Stock Option” means an incentive stock option within the meaning of Section 422 of
the Code, granted pursuant to this Plan.
2.21
“Independent Third Party” means an individual or entity independent of the Company having experience in providing
investment banking or similar appraisal or valuation services and with expertise generally in the valuation of securities or other property
for purposes of this Plan. The Committee may utilize one or more Independent Third Parties.
2.22
“Nonqualified Stock Option” means a nonqualified stock option, granted pursuant to this Plan, which is not
an Incentive Stock Option.
2.23
“Option Price” means the price which must be paid by a Participant upon exercise of a Stock Option to purchase
a share of Common Stock.
2.24
“Other Award” means an Award issued pursuant to Section 6.9 hereof.
2.25
“Outside Director” means a director of the Company who is not an Employee or a Contractor.
2.26
“Participant” means an Employee or Contractor of the Company or a Subsidiary or an Outside Director to whom
an Award is granted under this Plan.
2.27
“Performance Award” means an Award hereunder of cash, shares of Common Stock, units or rights based upon, payable
in, or otherwise related to, Common Stock pursuant to Section 6.7 hereof.
2.28
“Performance Goal” means any of the goals set forth in Section 6.10 hereof.
2.29
“Plan” means this NanoVibronix, Inc. 2014 Long-Term Incentive Plan, as amended from time to time.
2.30
“Reporting Participant” means a Participant who is subject to the reporting requirements of Section 16 of the
Exchange Act.
2.31
“Restricted Stock” means shares of Common Stock issued or transferred to a Participant pursuant to Section
6.4 of this Plan which are subject to restrictions or limitations set forth in this Plan and in the related Award Agreement.
2.32
“Restricted Stock Units” means units awarded to Participants pursuant to Section 6.6 hereof, which are
convertible into Common Stock at such time as such units are no longer subject to restrictions as established by the Committee.
2.33
“Retirement” means any Termination of Service solely due to retirement upon or after attainment of age sixty-five
(65), or permitted early retirement as determined by the Committee; provided, however, in the case of Participants
who reside in the European Economic Area, “Retirement” shall mean any Termination of Service as of a date they are eligible
for mandatory retirement benefits under local law, without regard to age.
2.34
“SAR” or “Stock Appreciation Right” means the right to receive an amount, in cash
and/or Common Stock, equal to the excess of the Fair Market Value of a specified number of shares of Common Stock as of the date the
SAR is exercised (or, as provided in the Award Agreement, converted) over the SAR Price for such shares.
2.35
“SAR Price” means the exercise price or conversion price of each share of Common Stock covered by a SAR, determined
on the Date of Grant of the SAR.
2.36
“Stock Option” means a Nonqualified Stock Option or an Incentive Stock Option.
2.37
“Subsidiary” means (i) any corporation in an unbroken chain of corporations beginning with the Company, if
each of the corporations other than the last corporation in the unbroken chain owns stock possessing a majority of the total combined
voting power of all classes of stock in one of the other corporations in the chain, (ii) any limited partnership, if the Company or any
corporation described in item (i) above owns a majority of the general partnership interest and a majority of the limited partnership
interests entitled to vote on the removal and replacement of the general partner, and (iii) any partnership or limited liability company,
if the partners or members thereof are composed only of the Company, any corporation listed in item (i) above or any limited partnership
listed in item (ii) above. “Subsidiaries” means more than one of any such corporations, limited partnerships,
partnerships or limited liability companies.
2.38
“Termination of Service” occurs when a Participant who is (i) an Employee of the Company or any Subsidiary
ceases to serve as an Employee of the Company and its Subsidiaries, for any reason; (ii) an Outside Director of the Company or a Subsidiary
ceases to serve as a director of the Company and its Subsidiaries for any reason; or (iii) a Contractor of the Company or a Subsidiary
ceases to serve as a Contractor of the Company and its Subsidiaries for any reason. Except as may be necessary or desirable to comply
with applicable federal or state law, a “Termination of Service” shall not be deemed to have occurred when a Participant
who is an Employee becomes an Outside Director or Contractor or vice versa. If, however, a Participant who is an Employee and who has
an Incentive Stock Option ceases to be an Employee but does not suffer a Termination of Service, and if that Participant does not exercise
the Incentive Stock Option within the time required under Section 422 of the Code upon ceasing to be an Employee, the Incentive Stock
Option shall thereafter become a Nonqualified Stock Option. Notwithstanding the foregoing provisions of this Section 2.38, in
the event an Award issued under the Plan is subject to Section 409A of the Code, then, in lieu of the foregoing definition and to the
extent necessary to comply with the requirements of Section 409A of the Code, the definition of “Termination of Service”
for purposes of such Award shall be the definition of “separation from service” provided for under Section 409A of the Code
and the regulations or other guidance issued thereunder.
2.39
“Total and Permanent Disability” means a Participant is qualified for long-term disability benefits under the
Company’s or Subsidiary’s disability plan or insurance policy; or, if no such plan or policy is then in existence or if the
Participant is not eligible to participate in such plan or policy, that the Participant, because of a physical or mental condition resulting
from bodily injury, disease, or mental disorder, is unable to perform his or her duties of employment for a period of six (6) continuous
months, as determined in good faith by the Committee, based upon medical reports or other evidence satisfactory to the Committee; provided
that, with respect to any Incentive Stock Option, Total and Permanent Disability shall have the meaning given it under the rules
governing Incentive Stock Options under the Code. Notwithstanding the foregoing provisions of this Section 2.39, in the event
an Award issued under the Plan is subject to Section 409A of the Code, then, in lieu of the foregoing definition and to the extent necessary
to comply with the requirements of Section 409A of the Code, the definition of “Total and Permanent Disability” for purposes
of such Award shall be the definition of “disability” provided for under Section 409A of the Code and the regulations or
other guidance issued thereunder.
Article
3
ADMINISTRATION
3.1
General Administration; Establishment of Committee. Subject to the terms of this Article 3, the Plan shall be administered
by the Board or such committee of the Board as is designated by the Board to administer the Plan (the “Committee”).
The Committee shall consist of not fewer than two persons. Any member of the Committee may be removed at any time, with or without cause,
by resolution of the Board. Any vacancy occurring in the membership of the Committee may be filled by appointment by the Board. At any
time there is no Committee to administer the Plan, any references in this Plan to the Committee shall be deemed to refer to the Board.
Membership
on the Committee shall be limited to those members of the Board who are “outside directors” under Section 162(m) of the Code
and “non-employee directors” as defined in Rule 16b-3 promulgated under the Exchange Act. The Committee shall select one
of its members to act as its Chairman. A majority of the Committee shall constitute a quorum, and the act of a majority of the members
of the Committee present at a meeting at which a quorum is present shall be the act of the Committee.
3.2
Designation of Participants and Awards.
(a)
The Committee or the Board shall determine and designate from time to time the eligible persons to whom Awards will be granted and shall
set forth in each related Award Agreement, where applicable, the Award Period, the Date of Grant, and such other terms, provisions, limitations,
and performance requirements, as are approved by the Committee, but not inconsistent with the Plan. The Committee shall determine whether
an Award shall include one type of Incentive or two or more Incentives granted in combination or two or more Incentives granted in tandem
(that is, a joint grant where exercise of one Incentive results in cancellation of all or a portion of the other Incentive). Although
the members of the Committee shall be eligible to receive Awards, all decisions with respect to any Award, and the terms and conditions
thereof, to be granted under the Plan to any member of the Committee shall be made solely and exclusively by the other members of the
Committee, or if such member is the only member of the Committee, by the Board.
(b)
Notwithstanding Section 3.2(a), to the extent permitted by Applicable Law, the Board may, in its discretion and by a resolution
adopted by the Board, authorize one or more officers of the Company (an “Authorized Officer”) to (i) designate
one or more Employees as eligible persons to whom Awards will be granted under the Plan, and (ii) determine the number of shares of Common
Stock that will be subject to such Awards; provided, however, that the resolution of the Board granting such authority
shall (x) specify the total number of shares of Common Stock that may be made subject to the Awards, (y) set forth the price or prices
(or a formula by which such price or prices may be determined) to be paid for the purchase of the Common Stock subject to such Awards,
and (z) not authorize an officer to designate himself as a recipient of any Award.
3.3
Authority of the Committee. The Committee, in its discretion, shall (i) interpret the Plan and Award Agreements, (ii) prescribe,
amend, and rescind any rules and regulations and sub-plans (including sub-plans for Awards made to Participants who are not resident
in the United States), as necessary or appropriate for the administration of the Plan, (iii) establish performance goals for an Award
and certify the extent of their achievement, and (iv) make such other determinations or certifications and take such other action as
it deems necessary or advisable in the administration of the Plan. Any interpretation, determination, or other action made or taken by
the Committee shall be final, binding, and conclusive on all interested parties. The Committee’s discretion set forth herein shall
not be limited by any provision of the Plan, including any provision which by its terms is applicable notwithstanding any other provision
of the Plan to the contrary.
The
Committee may delegate to officers of the Company, pursuant to a written delegation, the authority to perform specified functions under
the Plan. Any actions taken by any officers of the Company pursuant to such written delegation of authority shall be deemed to have been
taken by the Committee.
With
respect to restrictions in the Plan that are based on the requirements of Rule 16b-3 promulgated under the Exchange Act, Section 422
of the Code, Section 162(m) of the Code, the rules of any exchange or inter-dealer quotation system upon which the Company’s securities
are listed or quoted, or any other Applicable Law, to the extent that any such restrictions are no longer required by Applicable Law,
the Committee shall have the sole discretion and authority to grant Awards that are not subject to such mandated restrictions and/or
to waive any such mandated restrictions with respect to outstanding Awards.
Article
4
ELIGIBILITY
Any
Employee (including an Employee who is also a director or an officer), Contractor or Outside Director of the Company whose judgment,
initiative, and efforts contributed or may be expected to contribute to the successful performance of the Company is eligible to participate
in the Plan; provided that only Employees of a Corporation shall be eligible to receive Incentive Stock Options. The Committee, upon
its own action, may grant, but shall not be required to grant, an Award to any Employee, Contractor or Outside Director. Awards may be
granted by the Committee at any time and from time to time to new Participants, or to then Participants, or to a greater or lesser number
of Participants, and may include or exclude previous Participants, as the Committee shall determine. Except as required by this Plan,
Awards need not contain similar provisions. The Committee’s determinations under the Plan (including without limitation determinations
of which Employees, Contractors or Outside Directors, if any, are to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the agreements evidencing same) need not be uniform and may be made by it selectively among Participants
who receive, or are eligible to receive, Awards under the Plan.
Article
5
SHARES SUBJECT TO PLAN
5.1
Number Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common
Stock that may be delivered pursuant to Awards granted under the Plan is Five Million (5,000,000) shares, of which one hundred percent
(100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment pursuant to Articles 11 and 12, the maximum
number of shares of Common Stock with respect to which Stock Options or SARs may be granted to an Executive Officer during any calendar
year is One Million (1,000,000) shares of Common Stock. Shares to be issued may be made available from authorized but unissued Common
Stock, Common Stock held by the Company in its treasury, or Common Stock purchased by the Company on the open market or otherwise. During
the term of this Plan, the Company will at all times reserve and keep available the number of shares of Common Stock that shall be sufficient
to satisfy the requirements of this Plan.
5.2
Reuse of Shares. To the extent that any Award under this Plan shall be forfeited, shall expire or be canceled, in whole or in
part, then the number of shares of Common Stock covered by the Award or stock option so forfeited, expired or canceled may again be awarded
pursuant to the provisions of this Plan. In the event that previously acquired shares of Common Stock are delivered to the Company in
full or partial payment of the exercise price for the exercise of a Stock Option granted under this Plan, the number of shares of Common
Stock available for future Awards under this Plan shall be reduced only by the net number of shares of Common Stock issued upon the exercise
of the Stock Option. Awards that may be satisfied either by the issuance of shares of Common Stock or by cash or other consideration
shall be counted against the maximum number of shares of Common Stock that may be issued under this Plan only during the period that
the Award is outstanding or to the extent the Award is ultimately satisfied by the issuance of shares of Common Stock. Awards will not
reduce the number of shares of Common Stock that may be issued pursuant to this Plan if the settlement of the Award will not require
the issuance of shares of Common Stock, as, for example, a SAR that can be satisfied only by the payment of cash. Notwithstanding any
provisions of the Plan to the contrary, only shares forfeited back to the Company, shares canceled on account of termination, expiration
or lapse of an Award, shares surrendered in payment of the exercise price of an option or shares withheld for payment of applicable employment
taxes and/or withholding obligations resulting from the exercise of an option shall again be available for grant of Incentive Stock Options
under the Plan, but shall not increase the maximum number of shares described in Section 5.1 above as the maximum number of shares
of Common Stock that may be delivered pursuant to Incentive Stock Options.
Article
6
GRANT OF AWARDS
6.1
In General.
(a)
The grant of an Award shall be authorized by the Committee and shall be evidenced by an Award Agreement setting forth the Incentive or
Incentives being granted, the total number of shares of Common Stock subject to the Incentive(s), the Option Price (if applicable), the
Award Period, the Date of Grant, and such other terms, provisions, limitations, and performance objectives, as are approved by the Committee,
but (i) not inconsistent with the Plan, (ii) to the extent an Award issued under the Plan is subject to Section 409A of the Code, in
compliance with the applicable requirements of Section 409A of the Code and the regulations or other guidance issued thereunder, and
(iii) to the extent the Committee determines that an Award shall comply with the requirements of Section 162(m) of the Code, in compliance
with the applicable requirements of Section 162(m) of the Code and the regulations and other guidance issued thereunder. The Company
shall execute an Award Agreement with a Participant after the Committee approves the issuance of an Award. Any Award granted pursuant
to this Plan must be granted within ten (10) years of the date of adoption of this Plan by the Board. The Plan shall be submitted to
the Company’s stockholders for approval; however, the Committee may grant Awards under the Plan prior to the time of stockholder
approval. Any such Award granted prior to such stockholder approval shall be made subject to such stockholder approval. The grant of
an Award to a Participant shall not be deemed either to entitle the Participant to, or to disqualify the Participant from, receipt of
any other Award under the Plan.
(b)
If the Committee establishes a purchase price for an Award, the Participant must accept such Award within a period of thirty (30) days
(or such shorter period as the Committee may specify) after the Date of Grant by executing the applicable Award Agreement and paying
such purchase price.
(c)
Any Award under this Plan that is settled in whole or in part in cash on a deferred basis may provide for interest equivalents to be
credited with respect to such cash payment. Interest equivalents may be compounded and shall be paid upon such terms and conditions as
may be specified by the grant.
6.2
Option Price. The Option Price for any share of Common Stock which may be purchased under a Nonqualified Stock Option for any
share of Common Stock may be equal to or greater than the Fair Market Value of the share on the Date of Grant. The Option Price for any
share of Common Stock which may be purchased under an Incentive Stock Option must be at least equal to the Fair Market Value of the share
on the Date of Grant; if an Incentive Stock Option is granted to an Employee who owns or is deemed to own (by reason of the attribution
rules of Section 424(d) of the Code) more than ten percent (10%) of the combined voting power of all classes of stock of the Company
(or any parent or Subsidiary), the Option Price shall be at least one hundred ten percent (110%) of the Fair Market Value of the Common
Stock on the Date of Grant.
6.3
Maximum ISO Grants. The Committee may not grant Incentive Stock Options under the Plan to any Employee which would permit the
aggregate Fair Market Value (determined on the Date of Grant) of the Common Stock with respect to which Incentive Stock Options (under
this and any other plan of the Company and its Subsidiaries) are exercisable for the first time by such Employee during any calendar
year to exceed $100,000. To the extent any Stock Option granted under this Plan which is designated as an Incentive Stock Option exceeds
this limit or otherwise fails to qualify as an Incentive Stock Option, such Stock Option (or any such portion thereof) shall be a Nonqualified
Stock Option. In such case, the Committee shall designate which stock will be treated as Incentive Stock Option stock by causing the
issuance of a separate stock certificate and identifying such stock as Incentive Stock Option stock on the Company’s stock transfer
records.
6.4
Restricted Stock. If Restricted Stock is granted to or received by a Participant under an Award (including a Stock Option), the
Committee shall set forth in the related Award Agreement: (i) the number of shares of Common Stock awarded, (ii) the price, if any, to
be paid by the Participant for such Restricted Stock and the method of payment of the price, (iii) the time or times within which such
Award may be subject to forfeiture, (iv) specified Performance Goals of the Company, a Subsidiary, any division thereof or any group
of Employees of the Company, or other criteria, which the Committee determines must be met in order to remove any restrictions (including
vesting) on such Award, and (v) all other terms, limitations, restrictions, and conditions of the Restricted Stock, which shall be consistent
with this Plan, to the extent applicable and in the event the Committee determines that an Award shall comply with the requirements of
Section 162(m) of the Code, in compliance with the requirements of Section 162(m) of the Code and the regulations and other guidance
issued thereunder and, to the extent Restricted Stock granted under the Plan is subject to Section 409A of the Code, in compliance with
the applicable requirements of Section 409A of the Code and the regulations or other guidance issued thereunder. The provisions of Restricted
Stock need not be the same with respect to each Participant.
(a)
Legend on Shares. The Company shall electronically register the Restricted Stock awarded to a Participant in the name of such
Participant, which shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted
Stock, substantially as provided in Section 15.10 of the Plan. No stock certificate or certificates shall be issued with respect
to such shares of Common Stock, unless, following the expiration of the Restriction Period (as defined in Section 6.4(b)(i)(a)(i))
without forfeiture in respect of such shares of Common Stock, the Participant requests delivery of the certificate or certificates by
submitting a written request to the Committee (or such party designated by the Company) requesting delivery of the certificates. The
Company shall deliver the certificates requested by the Participant to the Participant as soon as administratively practicable following
the Company’s receipt of such request.
(b)
Restrictions and Conditions. Shares of Restricted Stock shall be subject to the following restrictions and conditions:
(i)
Subject to the other provisions of this Plan and the terms of the particular Award Agreements, during such period as may be determined
by the Committee commencing on the Date of Grant or the date of exercise of an Award (the “Restriction Period”),
the Participant shall not be permitted to sell, transfer, pledge or assign shares of Restricted Stock. Except for these limitations,
the Committee may in its sole discretion, remove any or all of the restrictions on such Restricted Stock whenever it may determine that,
by reason of changes in Applicable Laws or other changes in circumstances arising after the date of the Award, such action is appropriate.
(ii)
Except as provided in sub-paragraph (i) above or in the applicable Award Agreement, the Participant shall have, with respect to his or
her Restricted Stock, all of the rights of a stockholder of the Company, including the right to vote the shares, and the right to receive
any dividends thereon. Certificates for shares of Common Stock free of restriction under this Plan shall be delivered to the Participant
promptly after, and only after, the Restriction Period shall expire without forfeiture in respect of such shares of Common Stock or after
any other restrictions imposed on such shares of Common Stock by the applicable Award Agreement or other agreement have expired. Certificates
for the shares of Common Stock forfeited under the provisions of the Plan and the applicable Award Agreement shall be promptly returned
to the Company by the forfeiting Participant. Each Award Agreement shall require that each Participant, in connection with the issuance
of a certificate for Restricted Stock, shall endorse such certificate in blank or execute a stock power in form satisfactory to the Company
in blank and deliver such certificate and executed stock power to the Company.
(iii)
The Restriction Period of Restricted Stock shall commence on the Date of Grant or the date of exercise of an Award, as specified in the
Award Agreement, and, subject to Article 12 of the Plan, unless otherwise established by the Committee in the Award Agreement
setting forth the terms of the Restricted Stock, shall expire upon satisfaction of the conditions set forth in the Award Agreement; such
conditions may provide for vesting based on such Performance Goals, as may be determined by the Committee in its sole discretion.
(iv)
Except as otherwise provided in the particular Award Agreement, upon Termination of Service for any reason during the Restriction Period,
the nonvested shares of Restricted Stock shall be forfeited by the Participant. In the event a Participant has paid any consideration
to the Company for such forfeited Restricted Stock, the Committee shall specify in the Award Agreement that either (i) the Company shall
be obligated to, or (ii) the Company may, in its sole discretion, elect to, pay to the Participant, as soon as practicable after the
event causing forfeiture, in cash, an amount equal to the lesser of the total consideration paid by the Participant for such forfeited
shares or the Fair Market Value of such forfeited shares as of the date of Termination of Service, as the Committee, in its sole discretion
shall select. Upon any forfeiture, all rights of a Participant with respect to the forfeited shares of the Restricted Stock shall cease
and terminate, without any further obligation on the part of the Company.
6.5
SARs. The Committee may grant SARs to any Participant, either as a separate Award or in connection with a Stock Option. SARs shall
be subject to such terms and conditions as the Committee shall impose, provided that such terms and conditions are (i) not inconsistent
with the Plan, (ii) to the extent a SAR issued under the Plan is subject to Section 409A of the Code, in compliance with the applicable
requirements of Section 409A of the Code and the regulations or other guidance issued thereunder, and (iii) to the extent the Committee
determines that a SAR shall comply with the requirements of Section 162(m) of the Code, in compliance with the applicable requirements
of Section 162(m) and the regulations and other guidance issued thereunder. The grant of the SAR may provide that the holder may be paid
for the value of the SAR either in cash or in shares of Common Stock, or a combination thereof. In the event of the exercise of a SAR
payable in shares of Common Stock, the holder of the SAR shall receive that number of whole shares of Common Stock having an aggregate
Fair Market Value on the date of exercise equal to the value obtained by multiplying (i) the difference between the Fair Market Value
of a share of Common Stock on the date of exercise over the SAR Price as set forth in such SAR (or other value specified in the agreement
granting the SAR), by (ii) the number of shares of Common Stock as to which the SAR is exercised, with a cash settlement to be made for
any fractional shares of Common Stock. The SAR Price for any share of Common Stock subject to a SAR may be equal to or greater than the
Fair Market Value of the share on the Date of Grant. The Committee, in its sole discretion, may place a ceiling on the amount payable
upon exercise of a SAR, but any such limitation shall be specified at the time that the SAR is granted.
6.6
Restricted Stock Units. Restricted Stock Units may be awarded or sold to any Participant under such terms and conditions as shall
be established by the Committee, provided, however, that such terms and conditions are (i) not inconsistent with the Plan, (ii) to the
extent a Restricted Stock Unit issued under the Plan is subject to Section 409A of the Code, in compliance with the applicable requirements
of Section 409A of the Code and the regulations or other guidance issued thereunder, and (iii) to the extent the Committee determines
that a Restricted Stock Unit award shall comply with the requirements of Section 162(m) of the Code, in compliance with the applicable
requirements of Section 162(m) and the regulations and other guidance issued thereunder. Restricted Stock Units shall be subject to such
restrictions as the Committee determines, including, without limitation, (a) a prohibition against sale, assignment, transfer, pledge,
hypothecation or other encumbrance for a specified period; or (b) a requirement that the holder forfeit (or in the case of shares of
Common Stock or units sold to the Participant, resell to the Company at cost) such shares or units in the event of Termination of Service
during the period of restriction.
6.7
Performance Awards.
(a)
The Committee may grant Performance Awards to one or more Participants. The terms and conditions of Performance Awards shall be specified
at the time of the grant and may include provisions establishing the performance period, the Performance Goals to be achieved during
a performance period, and the maximum or minimum settlement values, provided that such terms and conditions are (i) not inconsistent
with the Plan and (ii) to the extent a Performance Award issued under the Plan is subject to Section 409A of the Code, in compliance
with the applicable requirements of Section 409A of the Code and the regulations or other guidance issued thereunder. If the Performance
Award is to be in shares of Common Stock, the Performance Awards may provide for the issuance of the shares of Common Stock at the time
of the grant of the Performance Award or at the time of the certification by the Committee that the Performance Goals for the performance
period have been met; provided, however, if shares of Common Stock are issued at the time of the grant of the Performance
Award and if, at the end of the performance period, the Performance Goals are not certified by the Committee to have been fully satisfied,
then, notwithstanding any other provisions of this Plan to the contrary, the Common Stock shall be forfeited in accordance with the terms
of the grant to the extent the Committee determines that the Performance Goals were not met. The forfeiture of shares of Common Stock
issued at the time of the grant of the Performance Award due to failure to achieve the established Performance Goals shall be separate
from and in addition to any other restrictions provided for in this Plan that may be applicable to such shares of Common Stock. Each
Performance Award granted to one or more Participants shall have its own terms and conditions.
To
the extent the Committee determines that a Performance Award shall comply with the requirements of Section 162(m) of the Code and the
regulations and other guidance issued thereunder, and if it is determined to be necessary in order to satisfy Section 162(m) of the Code,
at the time of the grant of a Performance Award (other than a Stock Option) and to the extent permitted under Section 162(m) of the Code
and the regulations issued thereunder, the Committee shall provide for the manner in which the Performance Goals shall be reduced to
take into account the negative effect on the achievement of specified levels of the Performance Goals which may result from enumerated
corporate transactions, extraordinary events, accounting changes and other similar occurrences which were unanticipated at the time the
Performance Goal was initially established. In no event, however, may the Committee increase the amount earned under such a Performance
Award, unless the reduction in the Performance Goals would reduce or eliminate the amount to be earned under the Performance Award and
the Committee determines not to make such reduction or elimination.
With
respect to a Performance Award that is not intended to satisfy the requirements of Code Section 162(m), if the Committee determines,
in its sole discretion, that the established performance measures or objectives are no longer suitable because of a change in the Company’s
business, operations, corporate structure, or for other reasons that the Committee deemed satisfactory, the Committee may modify the
performance measures or objectives and/or the performance period.
(b)
Performance Awards may be valued by reference to the Fair Market Value of a share of Common Stock or according to any formula or method
deemed appropriate by the Committee, in its sole discretion, including, but not limited to, achievement of Performance Goals or other
specific financial, production, sales or cost performance objectives that the Committee believes to be relevant to the Company’s
business and/or remaining in the employ of the Company or a Subsidiary for a specified period of time. Performance Awards may be paid
in cash, shares of Common Stock, or other consideration, or any combination thereof. If payable in shares of Common Stock, the consideration
for the issuance of such shares may be the achievement of the performance objective established at the time of the grant of the Performance
Award. Performance Awards may be payable in a single payment or in installments and may be payable at a specified date or dates or upon
attaining the performance objective. The extent to which any applicable performance objective has been achieved shall be conclusively
determined by the Committee.
(c)
Notwithstanding the foregoing, in order to comply with the requirements of Section 162(m) of the Code, if applicable, no Participant
may receive in any calendar year Performance Awards intended to comply with the requirements of Section 162(m) of the Code which have
an aggregate value of more than $4,000,000, and if such Performance Awards involve the issuance of shares of Common Stock, said
aggregate value shall be based on the Fair Market Value of such shares on the time of the grant of the Performance Award. In no event,
however, shall any Performance Awards not intended to comply with the requirements of Section 162(m) of the Code be issued contingent
upon the failure to attain the Performance Goals applicable to any Performance Awards granted hereunder that the Committee intends to
comply with the requirements of Section 162(m) of the Code.
6.8
Dividend Equivalent Rights. The Committee may grant a Dividend Equivalent Right to any Participant, either as a component of another
Award or as a separate Award. The terms and conditions of the Dividend Equivalent Right shall be specified by the grant. Dividend equivalents
credited to the holder of a Dividend Equivalent Right may be paid currently or may be deemed to be reinvested in additional shares of
Common Stock (which may thereafter accrue additional dividend equivalents). Any such reinvestment shall be at the Fair Market Value at
the time thereof. Dividend Equivalent Rights may be settled in cash or shares of Common Stock, or a combination thereof, in a single
payment or in installments. A Dividend Equivalent Right granted as a component of another Award may provide that such Dividend Equivalent
Right shall be settled upon exercise, settlement, or payment of, or lapse of restrictions on, such other Award, and that such Dividend
Equivalent Right granted as a component of another Award may also contain terms and conditions different from such other Award.
6.9
Other Awards. The Committee may grant to any Participant other forms of Awards, based upon, payable in, or otherwise related to,
in whole or in part, shares of Common Stock, if the Committee determines that such other form of Award is consistent with the purpose
and restrictions of this Plan. The terms and conditions of such other form of Award shall be specified by the grant. Such Other Awards
may be granted for no cash consideration, for such minimum consideration as may be required by Applicable Law, or for such other consideration
as may be specified by the grant.
6.10
Performance Goals. Awards of Restricted Stock, Restricted Stock Units, Performance Award and Other Awards (whether relating to
cash or shares of Common Stock) under the Plan may be made subject to the attainment of Performance Goals relating to one or more business
criteria which, where applicable, shall be within the meaning of Section 162(m) of the Code and consist of one or more or any combination
of the following criteria: cash flow; cost; revenues; sales; ratio of debt to debt plus equity; net borrowing, credit quality or debt
ratings; profit before tax; economic profit; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization;
gross margin; earnings per share (whether on a pre-tax, after-tax, operational or other basis); operating earnings; capital expenditures;
expenses or expense levels; economic value added; ratio of operating earnings to capital spending or any other operating ratios; free
cash flow; net profit; net sales; net asset value per share; the accomplishment of mergers, acquisitions, dispositions, public offerings
or similar extraordinary business transactions; sales growth; price of the Company’s Common Stock; return on assets, equity or
stockholders’ equity; market share; inventory levels, inventory turn or shrinkage; or total return to stockholders (“Performance
Criteria”). Any Performance Criteria may be used to measure the performance of the Company as a whole or any business unit
of the Company and may be measured relative to a peer group or index. Any Performance Criteria may include or exclude (i) extraordinary,
unusual and/or non-recurring items of gain or loss, (ii) gains or losses on the disposition of a business, (iii) changes in tax or accounting
regulations or laws, (iv) the effect of a merger or acquisition, as identified in the Company’s quarterly and annual earnings releases,
or (v) other similar occurrences. In all other respects, Performance Criteria shall be calculated in accordance with the Company’s
financial statements, under generally accepted accounting principles, or under a methodology established by the Committee prior to the
issuance of an Award which is consistently applied and identified in the audited financial statements, including footnotes, or the Compensation
Discussion and Analysis section of the Company’s annual report. However, to the extent Section 162(m) of the Code is applicable,
the Committee may not in any event increase the amount of compensation payable to an individual upon the attainment of a Performance
Goal.
6.11
Tandem Awards. The Committee may grant two or more Incentives in one Award in the form of a “tandem Award,” so that
the right of the Participant to exercise one Incentive shall be canceled if, and to the extent, the other Incentive is exercised. For
example, if a Stock Option and a SAR are issued in a tandem Award, and the Participant exercises the SAR with respect to one hundred
(100) shares of Common Stock, the right of the Participant to exercise the related Stock Option shall be canceled to the extent of one
hundred (100) shares of Common Stock.
Article
7
AWARD PERIOD; VESTING
7.1
Award Period. Subject to the other provisions of this Plan, the Committee may, in its discretion, provide that an Incentive may
not be exercised in whole or in part for any period or periods of time or beyond any date specified in the Award Agreement. Except as
provided in the Award Agreement, an Incentive may be exercised in whole or in part at any time during its term. The Award Period for
an Incentive shall be reduced or terminated upon Termination of Service. No Incentive granted under the Plan may be exercised at any
time after the end of its Award Period. No portion of any Incentive may be exercised after the expiration of ten (10) years from its
Date of Grant. However, if an Employee owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more
than ten percent (10%) of the combined voting power of all classes of stock of the Company (or any parent or Subsidiary) and an Incentive
Stock Option is granted to such Employee, the term of such Incentive Stock Option (to the extent required by the Code at the time of
grant) shall be no more than five (5) years from the Date of Grant.
7.2
Vesting. The Committee, in its sole discretion, may determine that an Incentive will be immediately vested in whole or in part,
or that all or any portion may not be vested until a date, or dates, subsequent to its Date of Grant, or until the occurrence of one
or more specified events, subject in any case to the terms of the Plan. If the Committee imposes conditions upon vesting, then, subsequent
to the Date of Grant, the Committee may, in its sole discretion, accelerate the date on which all or any portion of the Incentive may
be vested.
Article
8
EXERCISE OR CONVERSION OF INCENTIVE
8.1
In General. A vested Incentive may be exercised or converted, during its Award Period, subject to limitations and restrictions
set forth in the Award Agreement.
8.2
Securities Law and Exchange Restrictions. In no event may an Incentive be exercised or shares of Common Stock issued pursuant
to an Award if a necessary listing or quotation of the shares of Common Stock on a stock exchange or inter-dealer quotation system or
any registration under state or federal securities laws required under the circumstances has not been accomplished.
8.3
Exercise of Stock Option.
(a)
In General. If a Stock Option is exercisable prior to the time it is vested, the Common Stock obtained on the exercise of the
Stock Option shall be Restricted Stock which is subject to the applicable provisions of the Plan and the Award Agreement. If the Committee
imposes conditions upon exercise, then subsequent to the Date of Grant, the Committee may, in its sole discretion, accelerate the date
on which all or any portion of the Stock Option may be exercised. No Stock Option may be exercised for a fractional share of Common Stock.
The granting of a Stock Option shall impose no obligation upon the Participant to exercise that Stock Option.
(b)
Notice and Payment. Subject to such administrative regulations as the Committee may from time to time adopt, a Stock Option may
be exercised by the delivery of written notice to the Committee setting forth the number of shares of Common Stock with respect to which
the Stock Option is to be exercised and the date of exercise thereof (the “Exercise Date”) which shall be at
least three (3) days after giving such notice unless an earlier time shall have been mutually agreed upon. On the Exercise Date, the
Participant shall deliver to the Company consideration with a value equal to the total Option Price of the shares to be purchased, payable
as provided in the Award Agreement, which may provide for payment in any one or more of the following ways: (a) cash or check, bank draft,
or money order payable to the order of the Company, (b) Common Stock (including Restricted Stock) owned by the Participant on the Exercise
Date, valued at its Fair Market Value on the Exercise Date, and which the Participant has not acquired from the Company within six (6)
months prior to the Exercise Date, (c) by delivery (including by FAX) to the Company or its designated agent of an executed irrevocable
option exercise form together with irrevocable instructions from the Participant to a broker or dealer, reasonably acceptable to the
Company, to sell certain of the shares of Common Stock purchased upon exercise of the Stock Option or to pledge such shares as collateral
for a loan and promptly deliver to the Company the amount of sale or loan proceeds necessary to pay such purchase price, and/or (d) in
any other form of valid consideration that is acceptable to the Committee in its sole discretion. In the event that shares of Restricted
Stock are tendered as consideration for the exercise of a Stock Option, a number of shares of Common Stock issued upon the exercise of
the Stock Option equal to the number of shares of Restricted Stock used as consideration therefor shall be subject to the same restrictions
and provisions as the Restricted Stock so tendered.
(c)
Issuance of Certificate. Except as otherwise provided in Section 6.4 hereof (with respect to shares of Restricted Stock)
or in the applicable Award Agreement, upon payment of all amounts due from the Participant, the Company shall cause the Common Stock
then being purchased to be registered in the Participant’s name (or the person exercising the Participant’s Stock Option
in the event of his or her death), but shall not issue certificates for the Common Stock unless the Participant or such other person
requests delivery of the certificates for the Common Stock, in writing in accordance with the procedures established by the Committee.
The Company shall deliver certificates to the Participant (or the person exercising the Participant’s Stock Option in the event
of his or her death) as soon as administratively practicable following the Company’s receipt of a written request from the Participant
or such other person for delivery of the certificates. Notwithstanding the forgoing, if the Participant has exercised an Incentive Stock
Option, the Company may at its option retain physical possession of the certificate evidencing the shares acquired upon exercise until
the expiration of the holding periods described in Section 422(a)(1) of the Code. Any obligation of the Company to deliver shares of
Common Stock shall, however, be subject to the condition that, if at any time the Committee shall determine in its discretion that the
listing, registration, or qualification of the Stock Option or the Common Stock upon any securities exchange or inter-dealer quotation
system or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary as a condition
of, or in connection with, the Stock Option or the issuance or purchase of shares of Common Stock thereunder, the Stock Option may not
be exercised in whole or in part unless such listing, registration, qualification, consent, or approval shall have been effected or obtained
free of any conditions not reasonably acceptable to the Committee.
(d)
Failure to Pay. Except as may otherwise be provided in an Award Agreement, if the Participant fails to pay for any of the Common
Stock specified in such notice or fails to accept delivery thereof, that portion of the Participant’s Stock Option and right to
purchase such Common Stock may be forfeited by the Participant.
8.4
SARs. Subject to the conditions of this Section 8.4 and such administrative regulations as the Committee may from time
to time adopt, a SAR may be exercised by the delivery (including by FAX) of written notice to the Committee setting forth the number
of shares of Common Stock with respect to which the SAR is to be exercised and the date of exercise thereof (the “Exercise
Date”) which shall be at least three (3) days after giving such notice unless an earlier time shall have been mutually
agreed upon. Subject to the terms of the Award Agreement and only if permissible under Section 409A of the Code and the regulations or
other guidance issued thereunder (or, if not so permissible, at such time as permitted by Section 409A of the Code and the regulations
or other guidance issued thereunder), the Participant shall receive from the Company in exchange therefor in the discretion of the Committee,
and subject to the terms of the Award Agreement:
(a)
cash in an amount equal to the excess (if any) of the Fair Market Value (as of the Exercise Date, or if provided in the Award Agreement,
conversion, of the SAR) per share of Common Stock over the SAR Price per share specified in such SAR, multiplied by the total number
of shares of Common Stock of the SAR being surrendered;
(b)
that number of shares of Common Stock having an aggregate Fair Market Value (as of the Exercise Date, or if provided in the Award Agreement,
conversion, of the SAR) equal to the amount of cash otherwise payable to the Participant, with a cash settlement to be made for any fractional
share interests; or
(c)
the Company may settle such obligation in part with shares of Common Stock and in part with cash.
The
distribution of any cash or Common Stock pursuant to the foregoing sentence shall be made at such time as set forth in the Award Agreement.
8.5
Disqualifying Disposition of Incentive Stock Option. If shares of Common Stock acquired upon exercise of an Incentive Stock Option
are disposed of by a Participant prior to the expiration of either two (2) years from the Date of Grant of such Stock Option or one (1)
year from the transfer of shares of Common Stock to the Participant pursuant to the exercise of such Stock Option, or in any other disqualifying
disposition within the meaning of Section 422 of the Code, such Participant shall notify the Company in writing of the date and terms
of such disposition. A disqualifying disposition by a Participant shall not affect the status of any other Stock Option granted under
the Plan as an Incentive Stock Option within the meaning of Section 422 of the Code.
Article
9
AMENDMENT OR DISCONTINUANCE
Subject
to the limitations set forth in this Article 9, the Board may at any time and from time to time, without the consent of the Participants,
alter, amend, revise, suspend, or discontinue the Plan in whole or in part; provided, however, that no amendment for which stockholder
approval is required either (i) by any securities exchange or inter-dealer quotation system on which the Common Stock is listed or traded
or (ii) in order for the Plan and Incentives awarded under the Plan to continue to comply with Sections 162(m), 421, and 422 of the Code,
including any successors to such Sections, or other Applicable Law, shall be effective unless such amendment shall be approved by the
requisite vote of the stockholders of the Company entitled to vote thereon. Any such amendment shall, to the extent deemed necessary
or advisable by the Committee, be applicable to any outstanding Incentives theretofore granted under the Plan, notwithstanding any contrary
provisions contained in any Award Agreement. In the event of any such amendment to the Plan, the holder of any Incentive outstanding
under the Plan shall, upon request of the Committee and as a condition to the exercisability thereof, execute a conforming amendment
in the form prescribed by the Committee to any Award Agreement relating thereto. Notwithstanding anything contained in this Plan to the
contrary, unless required by law, no action contemplated or permitted by this Article 9 shall adversely affect any rights of Participants
or obligations of the Company to Participants with respect to any Incentive theretofore granted under the Plan without the consent of
the affected Participant.
Article
10
TERM
The
Plan shall be effective from the date that this Plan is adopted by the Board. Unless sooner terminated by action of the Board, the Plan
will terminate on February 19, 2024, but Incentives granted before that date will continue to be effective in accordance with their terms
and conditions.
Article
11
CAPITAL ADJUSTMENTS
In
the event that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), recapitalization,
stock split, reverse stock split, rights offering, reorganization, merger, consolidation, split-up, spin-off, split-off, combination,
subdivision, repurchase, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase
Common Stock or other securities of the Company, or other similar corporate transaction or event affects the fair value of an Award,
then the Committee shall adjust any or all of the following so that the fair value of the Award immediately after the transaction or
event is equal to the fair value of the Award immediately prior to the transaction or event (i) the number of shares and type of Common
Stock (or the securities or property) which thereafter may be made the subject of Awards, (ii) the number of shares and type of Common
Stock (or other securities or property) subject to outstanding Awards, (iii) the number of shares and type of Common Stock (or other
securities or property) specified as the annual per-participant limitation under Section 5.1 of the Plan, (iv) the Option Price
of each outstanding Award, (v) the amount, if any, the Company pays for forfeited shares of Common Stock in accordance with Section
6.4, and (vi) the number of or SAR Price of shares of Common Stock then subject to outstanding SARs previously granted and unexercised
under the Plan, to the end that the same proportion of the Company’s issued and outstanding shares of Common Stock in each instance
shall remain subject to exercise at the same aggregate SAR Price; provided however, that the number of shares of Common Stock (or other
securities or property) subject to any Award shall always be a whole number. Notwithstanding the foregoing, no such adjustment shall
be made or authorized to the extent that such adjustment would cause the Plan or any Stock Option to violate Section 422 of the Code
or Section 409A of the Code. Such adjustments shall be made in accordance with the rules of any securities exchange, stock market, or
stock quotation system to which the Company is subject.
Upon
the occurrence of any such adjustment, the Company shall provide notice to each affected Participant of its computation of such adjustment
which shall be conclusive and shall be binding upon each such Participant.
Article
12
RECAPITALIZATION, MERGER AND CONSOLIDATION
12.1
No Effect on Company’s Authority. The existence of this Plan and Incentives granted hereunder shall not affect in any way
the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations,
or other changes in the Company’s capital structure and its business, or any Change in Control, or any merger or consolidation
of the Company, or any issuance of bonds, debentures, preferred or preference stocks ranking prior to or otherwise affecting the Common
Stock or the rights thereof (or any rights, options, or warrants to purchase same), or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar
character or otherwise.
12.2
Conversion of Incentives Where Company Survives. Subject to any required action by the stockholders and except as otherwise provided
by Section 12.4 hereof or as may be required to comply with Section 409A of the Code and the regulations or other guidance issued
thereunder, if the Company shall be the surviving or resulting corporation in any merger, consolidation or share exchange, any Incentive
granted hereunder shall pertain to and apply to the securities or rights (including cash, property, or assets) to which a holder of the
number of shares of Common Stock subject to the Incentive would have been entitled.
12.3
Exchange or Cancellation of Incentives Where Company Does Not Survive. Except as otherwise provided by Section 12.4 hereof
or as may be required to comply with Section 409A of the Code and the regulations or other guidance issued thereunder, in the event of
any merger, consolidation or share exchange pursuant to which the Company is not the surviving or resulting corporation, there shall
be substituted for each share of Common Stock subject to the unexercised portions of outstanding Incentives, that number of shares of
each class of stock or other securities or that amount of cash, property, or assets of the surviving, resulting or consolidated company
which were distributed or distributable to the stockholders of the Company in respect to each share of Common Stock held by them, such
outstanding Incentives to be thereafter exercisable for such stock, securities, cash, or property in accordance with their terms.
12.4
Cancellation of Incentives. Notwithstanding the provisions of Sections 12.2 and 12.3 hereof, and except as may be required
to comply with Section 409A of the Code and the regulations or other guidance issued thereunder, all Incentives granted hereunder may
be canceled by the Company, in its sole discretion, as of the effective date of any Change in Control, merger, consolidation or share
exchange, or any issuance of bonds, debentures, preferred or preference stocks ranking prior to or otherwise affecting the Common Stock
or the rights thereof (or any rights, options, or warrants to purchase same), or of any proposed sale of all or substantially all of
the assets of the Company, or of any dissolution or liquidation of the Company, by either:
(a)
giving notice to each holder thereof or his personal representative of its intention to cancel those Incentives for which the issuance
of shares of Common Stock involved payment by the Participant for such shares, and permitting the purchase during the thirty (30) day
period next preceding such effective date of any or all of the shares of Common Stock subject to such outstanding Incentives, including
in the Board’s discretion some or all of the shares as to which such Incentives would not otherwise be vested and exercisable;
or
(b)
in the case of Incentives that are either (i) settled only in shares of Common Stock, or (ii) at the election of the Participant, settled
in shares of Common Stock, paying the holder thereof an amount equal to a reasonable estimate of the difference between the net amount
per share payable in such transaction or as a result of such transaction, and the price per share of such Incentive to be paid by the
Participant (hereinafter the “Spread”), multiplied by the number of shares subject to the Incentive. In cases
where the shares constitute, or would after exercise, constitute Restricted Stock, the Company, in its discretion, may include some or
all of those shares in the calculation of the amount payable hereunder. In estimating the Spread, appropriate adjustments to give effect
to the existence of the Incentives shall be made, such as deeming the Incentives to have been exercised, with the Company receiving the
exercise price payable thereunder, and treating the shares receivable upon exercise of the Incentives as being outstanding in determining
the net amount per share. In cases where the proposed transaction consists of the acquisition of assets of the Company, the net amount
per share shall be calculated on the basis of the net amount receivable with respect to shares of Common Stock upon a distribution and
liquidation by the Company after giving effect to expenses and charges, including but not limited to taxes, payable by the Company before
such liquidation could be completed.
(c)
An Award that by its terms would be fully vested or exercisable upon a Change in Control will be considered vested or exercisable for
purposes of Section 12.4(a) hereof.
Article
13
LIQUIDATION OR DISSOLUTION
Subject
to Section 12.4 hereof, in case the Company shall, at any time while any Incentive under this Plan shall be in force and remain
unexpired, (i) sell all or substantially all of its property, or (ii) dissolve, liquidate, or wind up its affairs, then each Participant
shall be entitled to receive, in lieu of each share of Common Stock of the Company which such Participant would have been entitled to
receive under the Incentive, the same kind and amount of any securities or assets as may be issuable, distributable, or payable upon
any such sale, dissolution, liquidation, or winding up with respect to each share of Common Stock of the Company. If the Company shall,
at any time prior to the expiration of any Incentive, make any partial distribution of its assets, in the nature of a partial liquidation,
whether payable in cash or in kind (but excluding the distribution of a cash dividend payable out of earned surplus and designated as
such) and an adjustment is determined by the Committee to be appropriate to prevent the dilution of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, make such adjustment
in accordance with the provisions of Article 11 hereof.
Article
14
INCENTIVES IN SUBSTITUTION FOR
INCENTIVES GRANTED BY OTHER ENTITIES
Incentives
may be granted under the Plan from time to time in substitution for similar instruments held by employees, independent contractors or
directors of a corporation, partnership, or limited liability company who become or are about to become Employees, Contractors or Outside
Directors of the Company or any Subsidiary as a result of a merger or consolidation of the employing corporation with the Company, the
acquisition by the Company of equity of the employing entity, or any other similar transaction pursuant to which the Company becomes
the successor employer. The terms and conditions of the substitute Incentives so granted may vary from the terms and conditions set forth
in this Plan to such extent as the Committee at the time of grant may deem appropriate to conform, in whole or in part, to the provisions
of the Incentives in substitution for which they are granted.
Article
15
MISCELLANEOUS PROVISIONS
15.1
Investment Intent. The Company may require that there be presented to and filed with it by any Participant under the Plan, such
evidence as it may deem necessary to establish that the Incentives granted or the shares of Common Stock to be purchased or transferred
are being acquired for investment and not with a view to their distribution.
15.2
No Right to Continued Employment. Neither the Plan nor any Incentive granted under the Plan shall confer upon any Participant
any right with respect to continuance of employment by the Company or any Subsidiary.
15.3
Indemnification of Board and Committee. No member of the Board or the Committee, nor any officer or Employee of the Company acting
on behalf of the Board or the Committee, shall be personally liable for any action, determination, or interpretation taken or made in
good faith with respect to the Plan, and all members of the Board and the Committee, each officer of the Company, and each Employee of
the Company acting on behalf of the Board or the Committee shall, to the extent permitted by law, be fully indemnified and protected
by the Company in respect of any such action, determination, or interpretation.
15.4
Effect of the Plan. Neither the adoption of this Plan nor any action of the Board or the Committee shall be deemed to give any
person any right to be granted an Award or any other rights except as may be evidenced by an Award Agreement, or any amendment thereto,
duly authorized by the Committee and executed on behalf of the Company, and then only to the extent and upon the terms and conditions
expressly set forth therein.
15.5
Compliance With Other Laws and Regulations. Notwithstanding anything contained herein to the contrary, the Company shall not be
required to sell or issue shares of Common Stock under any Incentive if the issuance thereof would constitute a violation by the Participant
or the Company of any provisions of any law or regulation of any governmental authority or any national securities exchange or inter-dealer
quotation system or other forum in which shares of Common Stock are quoted or traded (including without limitation Section 16 of the
Exchange Act and Section 162(m) of the Code); and, as a condition of any sale or issuance of shares of Common Stock under an Incentive,
the Committee may require such agreements or undertakings, if any, as the Committee may deem necessary or advisable to assure compliance
with any such law or regulation. The Plan, the grant and exercise of Incentives hereunder, and the obligation of the Company to sell
and deliver shares of Common Stock, shall be subject to all applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required.
15.6
Foreign Participation. To assure the viability of Awards granted to Participants employed in foreign countries, the Committee
may provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy or
custom. Moreover, the Committee may approve such supplements to, or amendments, restatements or alternative versions of, this Plan as
it determines is necessary or appropriate for such purposes. Any such amendment, restatement or alternative versions that the Committee
approves for purposes of using this Plan in a foreign country will not affect the terms of this Plan for any other country.
15.7
Tax Requirements. The Company or, if applicable, any Subsidiary (for purposes of this Section 15.7, the term “Company”
shall be deemed to include any applicable Subsidiary), shall have the right to deduct from all amounts paid in cash or other form in
connection with the Plan, any Federal, state, local, or other taxes required by law to be withheld in connection with an Award granted
under this Plan. The Company may, in its sole discretion, also require the Participant receiving shares of Common Stock issued under
the Plan to pay the Company the amount of any taxes that the Company is required to withhold in connection with the Participant’s
income arising with respect to the Award. Such payments shall be required to be made when requested by Company and may be required to
be made prior to the delivery of any certificate representing shares of Common Stock. Such payment may be made (i) by the delivery of
cash to the Company in an amount that equals or exceeds (to avoid the issuance of fractional shares under (iii) below) the required tax
withholding obligations of the Company; (ii) if the Company, in its sole discretion, so consents in writing, the actual delivery by the
exercising Participant to the Company of shares of Common Stock that the Participant has not acquired from the Company within six (6)
months prior to the date of exercise, which shares so delivered have an aggregate Fair Market Value that equals or exceeds (to avoid
the issuance of fractional shares under (iii) below) the required tax withholding payment; (iii) if the Company, in its sole discretion,
so consents in writing, the Company’s withholding of a number of shares to be delivered upon the exercise of the Stock Option,
which shares so withheld have an aggregate fair market value that equals (but does not exceed) the required tax withholding payment;
or (iv) any combination of (i), (ii), or (iii). The Company may, in its sole discretion, withhold any such taxes from any other cash
remuneration otherwise paid by the Company to the Participant. The Committee may in the Award Agreement impose any additional tax requirements
or provisions that the Committee deems necessary or desirable.
15.8
Assignability. Incentive Stock Options may not be transferred, assigned, pledged, hypothecated or otherwise conveyed or encumbered
other than by will or the laws of descent and distribution and may be exercised during the lifetime of the Participant only by the Participant
or the Participant’s legally authorized representative, and each Award Agreement in respect of an Incentive Stock Option shall
so provide. The designation by a Participant of a beneficiary will not constitute a transfer of the Stock Option. The Committee may waive
or modify any limitation contained in the preceding sentences of this Section 15.8 that is not required for compliance with Section
422 of the Code.
Except
as otherwise provided herein, Awards may not be transferred, assigned, pledged, hypothecated or otherwise conveyed or encumbered other
than by will or the laws of descent and distribution. The Committee may, in its discretion, authorize all or a portion of an Award to
be granted to a Participant on terms which permit transfer by such Participant to (i) the spouse (or former spouse), children or grandchildren
of the Participant (“Immediate Family Members”), (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members, (iii) a partnership in which the only partners are (1) such Immediate Family Members and/or (2) entities which are controlled
by Immediate Family Members, (iv) an entity exempt from federal income tax pursuant to Section 501(c)(3) of the Code or any successor
provision, or (v) a split interest trust or pooled income fund described in Section 2522(c)(2) of the Code or any successor provision,
provided that (x) there shall be no consideration for any such transfer, (y) the Award Agreement pursuant to which such Award
is granted must be approved by the Committee and must expressly provide for transferability in a manner consistent with this Section,
and (z) subsequent transfers of transferred Awards shall be prohibited except those by will or the laws of descent and distribution.
Following
any transfer, any such Nonqualified Stock Option and SAR shall continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer, provided that for purposes of Articles 8, 9, 11, 13 and 15 hereof the term “Participant”
shall be deemed to include the transferee. The events of Termination of Service shall continue to be applied with respect to the original
Participant, following which the Nonqualified Stock Options and SARs shall be exercisable or convertible by the transferee only to the
extent and for the periods specified in the Award Agreement. The Committee and the Company shall have no obligation to inform any transferee
of a Nonqualified Stock Option or SAR of any expiration, termination, lapse or acceleration of such Stock Option or SAR. The Company
shall have no obligation to register with any federal or state securities commission or agency any Common Stock issuable or issued under
a Nonqualified Stock Option or SAR that has been transferred by a Participant under this Section 15.8.
15.9
Use of Proceeds. Proceeds from the sale of shares of Common Stock pursuant to Incentives granted under this Plan shall constitute
general funds of the Company.
15.10
Legend. Each certificate representing shares of Restricted Stock issued to a Participant shall bear the following legend, or a
similar legend deemed by the Company to constitute an appropriate notice of the provisions hereof (any such certificate not having such
legend shall be surrendered upon demand by the Company and so endorsed):
On
the face of the certificate:
“Transfer
of this stock is restricted in accordance with conditions printed on the reverse of this certificate.”
On
the reverse:
“The
shares of stock evidenced by this certificate are subject to and transferable only in accordance with that certain NanoVibronix, Inc.
2014 Long-Term Incentive Plan, a copy of which is on file at the principal office of the Company in Melville, New York. No transfer or
pledge of the shares evidenced hereby may be made except in accordance with and subject to the provisions of said Plan. By acceptance
of this certificate, any holder, transferee or pledgee hereof agrees to be bound by all of the provisions of said Plan.”
The
following legend shall be inserted on a certificate evidencing Common Stock issued under the Plan if the shares were not issued in a
transaction registered under the applicable federal and state securities laws:
“Shares
of stock represented by this certificate have been acquired by the holder for investment and not for resale, transfer or distribution,
have been issued pursuant to exemptions from the registration requirements of applicable state and federal securities laws, and may not
be offered for sale, sold or transferred other than pursuant to effective registration under such laws, or in transactions otherwise
in compliance with such laws, and upon evidence satisfactory to the Company of compliance with such laws, as to which the Company may
rely upon an opinion of counsel satisfactory to the Company.”
A
copy of this Plan shall be kept on file in the principal office of the Company in Melville, New York.
***************
IN
WITNESS WHEREOF, the Company has caused this instrument to be executed as of February 28, 2014, by its Chief Executive Officer and Secretary
pursuant to prior action taken by the Board.
|
NANOVIBRONIX,
INC. |
|
|
|
By: |
/s/
Harold Jacob |
|
Name |
Harold
Jacob |
|
Title |
Chief
Executive Officer |
NanoVibronix
Inc.
(THE “COMPANY”)
ISRAELI APPENDIX
TO THE COMPANY’S 2014 LONG-TERM INCENTIVE PLAN
(THE “PLAN”)
1. | GENERAL |
| | |
| 1.1. | This
appendix, as amended from time to time (the “Appendix”) shall apply only
to Participants who are residents of the State of Israel or those who are deemed to be residents
of the State of Israel for the purposes of tax payment. The provisions specified hereunder
shall form an integral part of the Plan. |
| | |
| 1.2. | This
Appendix is effective with respect to Stock Options to be granted according to the resolution
of the Administrator as such term is defined in Section 2 herein and shall comply with Amendment
no. 147 of the Israeli Tax Ordinance [New Version], 5721-1961 (the “Ordinance”). |
| | |
| 1.3. | This
Appendix is to be read as a continuation of the Plan and only refers to Stock Options granted
to Israeli Participants so that they comply with the requirements set by the Israeli law
in general, and in particular with the provisions of Section 102 of the Ordinance, and any
regulations, rules, orders or procedures promulgated thereunder, as may be amended or replaced
from time to time. For the avoidance of doubt, except as expressly provided herein, this
Appendix does not add to or modify the Plan in respect of any other category of Participants. |
| | |
| 1.4. | The
Plan and this Appendix are complementary to each other and shall be deemed one. In any case
of contradiction, whether explicit or implied, between the provisions of this Appendix and
the Plan, the provisions set out in this Appendix shall prevail with respect to Stock Options
granted to Israeli Participants. |
| | |
| 1.5. | Any
capitalized terms not specifically defined in this Appendix shall be construed according
to the interpretation given to them in the Plan. |
| 2.1 | “Administrator”
– means the Board or the Committee as such terms are defined in the Plan. |
| | |
| 2.2 | “Affiliate”
– means any company eligible to be qualified as an “employing company”,
with respect to the Company, within the meaning of Section 102(a) of the Ordinance including
any and all rules and regulations promulgated thereunder, as now in effect or as hereafter
amended. |
| | |
| 2.3 | “Approved
102 Stock Option” – means a 102 Stock Option granted pursuant to Section
102(b) of the Ordinance, including any and all rules and regulations promulgated thereunder,
as now in effect or as hereafter amended, and held in trust by a Trustee for the benefit
of the Participant, pursuant to Section 102. Approved 102 Stock Options may either be classified
as Capital Gain Stock Options or as Ordinary Income Stock Options. |
| | |
| 2.4 | “Capital
Gain Stock Option” or “ CGSO” – means an Approved 102 Stock Option
elected and designated by the Company to qualify under the capital gain tax treatment in
accordance with the provisions of Section 102(b)(2) of the Ordinance. |
| | |
| 2.5 | “Companies
Law” – means the Israeli Companies Law, 5759-1999, including any rules and
regulations promulgated thereunder and any provisions of the Companies Ordinance [New Version],
5743-1983 still in effect, as amended from time to time. |
| 2.6 | “Controlling
Shareholder” – means a controlling shareholder (“Ba’al Shlita”)
as such term is defined in Section 32(9) of the Ordinance. |
| | |
| 2.7 | “Date
of Grant” – shall have the meaning ascribed to it in Section 2.13 of the
Plan, provided however, that for the purposes of this Appendix, such date shall not be earlier
than the first date on which the Company is permitted to effect Stock Option grants under
this Appendix and under the provisions of the Ordinance, including any and all rules and
regulations promulgated thereunder, as now in effect or as hereafter amended. For the avoidance
of doubt, no Approved 102 Stock Option shall be deemed granted before the lapse of thirty
(30) days from the due submission of this Appendix to the ITA. |
| | |
| 2.8 | “Employee”
– shall have the meaning ascribed to it in the Plan, and for the purpose hereof, shall
also include a director and an individual who is serving as an Office Holder or director
of any Affiliate of the Company, but excluding any Controlling Shareholder. |
| | |
| 2.9 | “ITA”
– means the Israeli Tax Authorities. |
| | |
| 2.10 | “Non-Employee”
– means a consultant, adviser, service provider, including, inter alia, any other person
who is part of the upper management of the Company and who grants managerial services to
the Company, Controlling Shareholder or any other person who is not an Employee. |
| | |
| 2.11 | “Office
Holder” (“Nose Misra”) – as such term is defined in the Companies
Law. |
| | |
| 2.12 | “Participant”
– shall have the meaning ascribed to it in the Plan, and for the purpose hereof, shall
also mean a person who receives or holds a Stock Option under this Appendix. |
| | |
| 2.13 | “Ordinary
Income Stock Option” or “OISO” – means an Approved 102
Stock Option elected and designated by the Company to qualify under the ordinary income tax
treatment in accordance with the provisions of Section 102(b)(1) of the Ordinance. |
| | |
| 2.14 | “102
Stock Option” – means a Stock Option that the Administrator intends to be
a “102 Stock Option”, which shall only be granted to Employees of the Company
who are not Controlling Shareholders, and shall be subject to and construed consistently
with the requirements of Section 102. The Company shall have no liability to a Participant
or to any other party, if a Stock Option (or any part thereof), which is intended to be a
102 Stock Option, is not a 102 Stock Option. Approved 102 Stock Options may either be classified
as Capital Gain Stock Options or as Ordinary Income Stock Options. |
| | |
| 2.15 | “3(i)
Stock Option” – means Stock Options that do not contain such terms as will
qualify under Section 102 of the Ordinance. |
| | |
| 2.16 | “Section
102” – means Section 102 of the Ordinance and any regulations, rules, orders
or procedures promulgated thereunder as now in effect or as hereafter amended. |
| | |
| 2.17 | “Trustee”
– shall mean any individual or entity appointed by the Company to serve as a trustee
and approved by the ITA, all in accordance with the provisions of Section 102(a) of the Ordinance. |
| | |
| 2.18 | “Unapproved
102 Stock Option” – means a 102 Stock Option granted pursuant to Section
102(c) of the Ordinance, including any and all rules and regulations promulgated thereunder,
as now in effect or as hereafter amended, and not held in trust by a Trustee. |
This
Appendix shall be administered by the Administrator, pursuant to Section 3 of the Plan. The Administrator may issue shares of Common
Stock and/or Stock Options pursuant to this Appendix. In the event of issuance of shares of Common Stock the recipient of such shares
shall be deemed a Participant hereunder and the provisions of this Appendix shall apply to such issuance and to the issued shares of
Common Stock, mutatis mutandis.
4. |
ISSUANCE OF STOCK OPTIONS; ELIGIBILITY |
| 4.1. | The
persons eligible for participation in the Plan as Participants under this Appendix shall
include any Employees, Office Holders and/or Non-Employees of the Company as such term is
defined above, who are residents of the State of Israel or who are deemed to be residents
of the State of Israel for the purposes of tax payment; provided, however, that (i) such
Employees and Office Holders may only be granted 102 Stock Options; and (ii) such Non-Employees
and/or Controlling Shareholders may only be granted 3(i) Stock Options. |
| | |
| 4.2. | The
Administrator may designate Stock Options granted to Israeli Employees pursuant to Section
102 as Approved 102 Stock Options or as Unapproved 102 Incentive Stock Options. |
| | |
| 4.3. | The
grant of 102 Stock Options shall be made under this Appendix adopted by the Board. Furthermore,
the grant of Approved 102 Stock Options shall be conditioned upon the approval of this Appendix
by the ITA. |
| | |
| 4.4. | Without
derogating from the above, the Administrator’s election of the type of an Approved
102 Stock Options as CGSO or OISO to be granted to Israeli Employees and Office Holders (the
“Election”), shall be appropriately filed with the ITA before the Date of Grant
of the first Approved 102 Stock Option under such Election. Such Election shall remain in
effect until changed, not earlier than the end of the year following the calendar year during
which the Company first granted Approved 102 Stock Options under such Election. The Company
shall grant only the type of Approved 102 Stock Option it has elected in accordance with
the Election to all Participants who were granted Approved 102 Stock Options during the period
indicated above, all in accordance with the provisions of Section 102(g) of the Ordinance,
including any and all rules and regulations promulgated thereunder, as now in effect or as
hereafter amended. For avoidance of doubt, such Election shall not prevent the Company from
granting Unapproved 102 Stock Options simultaneously. |
| | |
| 4.5. | All
Approved 102 Stock Options must be held in trust by a Trustee as described in Section 5 below. |
| | |
| 4.6. | Each
Stock Option granted pursuant to this Appendix shall be evidenced by an Award Agreement,
substantially in such form attached hereto as Exhibits A and B. Each Award Agreement shall
state, among other matters, the number of shares of Common Stock to which the Stock Option
relates, the type of Stock Option granted thereunder (whether an CGSO, OISO, Unapproved 102
Stock Option or a 3(i) Stock Option), the vesting dates, the exercise price per share, the
expiration date and such other terms and conditions included in the agreement, including
any such other terms that the Administrator in its discretion may prescribe, provided in
all cases that they are consistent with this Appendix and the Plan. The Award Agreement shall
be delivered to the Participant and executed by the Participant and shall incorporate the
terms of the Plan and this Appendix by reference, and specify the terms and conditions thereof
and any rules applicable thereto. |
| | |
| 4.7. | The
designation of Unapproved 102 Stock Options and Approved 102 Stock Options shall be subject
to the terms and conditions set forth in Section 102 and the regulations promulgated thereunder. |
| | |
| 4.8. | Anything
in the Plan to the contrary notwithstanding, all grants of Stock Options to directors and
office holders shall be authorized and implemented in accordance with the provisions of the
Companies Law or any successor act or regulation, as in effect from time to time. |
| 5.1. | Approved
102 Stock Options or shares of Common Stock which shall be granted under the Plan and this
Appendix and/or any shares of Common Stock allocated or issued upon exercise of such Approved
102 Stock Options, shall - notwithstanding anything in the Plan to the contrary – be
allocated or issued to the Trustee (and registered in the Trustee’s name in the register
of shareholders of the Company) and held for the benefit of the Participants for such period
of time as required by Section 102 (the “Restricted Period”). All certificates
representing shares of Common Stock issued to the Trustee under the Plan and this Appendix
shall be deposited with the Trustee, and shall be held by the Trustee until such time that
such shares of Common Stock are released from the aforesaid trust as herein provided. In
case the requirements for Approved 102 Stock Options are not met, then the Approved 102 Stock
Options may be treated as Unapproved 102 Stock Options, all in accordance with the provisions
of Section 102. |
| | |
| 5.2. | Anything
in the Plan to the contrary notwithstanding, the Trustee shall not release any shares of
Common Stock allocated or issued upon exercise of Approved 102 Stock Options prior to the
full payment of the Participant’s tax liabilities arising from Approved 102 Stock Options,
which were granted to such Participant, and/or from any shares of Common Stock allocated
or issued upon exercise of such Stock Options. |
| | |
| 5.3. | With
respect to any Approved 102 Stock Option, subject to the provisions of Section 102, a Participant
shall not be entitled to sell or release from trust any share of Common Stock received upon
the exercise of an Approved 102 Stock Option until the lapse of the Restricted Period required
under Section 102. Notwithstanding the above, if any such sale or release occurs during the
Restricted Period, the tax liabilities under Section 102 shall apply to and shall be borne
by such Participant. |
| | |
| 5.4. | Upon
receipt of an Approved 102 Stock Option, the Participant will sign an undertaking to release
the Trustee from any liability in respect of any action or decision duly taken and bona fide
executed in relation with the Plan and this Appendix, or any Approved 102 Stock Option or
share of Common Stock granted to the Participant thereunder. Such release may be incorporated
into the Award Agreement. |
| | |
| 5.5. | 3(i)
Stock Options which shall be granted under this Appendix, may, but need not, be issued to
the Trustee, and if so issued to the Trustee, shall be held for the benefit of the Participant.
The Trustee shall hold such Stock Options and the shares of Common Stock issued upon the
exercise thereof (in the event of an exercise of such Stock Options) pursuant and subject
to Section 3(i) of the Ordinance, including any and all rules, regulations, orders and procedures
promulgated thereunder, as now in effect or as hereafter amended. Anything to the contrary
notwithstanding, the Trustee shall not release any 3(i) Stock Options held by it and which
were not already exercised into shares of Common Stock by the Participant, nor shall the
Trustee release any shares of Common Stock issued upon the exercise of 3(i) Stock Options
– in both cases – prior to the full payment of the relevant Participant’s
tax liabilities arising from those 3(i) Stock Options which were granted to him and from
any shares of Common Stock issued upon the exercise of such 3(i) Stock Options. |
6. |
FAIR MARKET VALUE FOR TAX PURPOSES |
The
per share exercise price for the shares of Common Stock underlying the Stock Options, shall be determined by the Administrator pursuant
to the Plan (the “Exercise Price”). The form of consideration for exercising a Stock Option shall be determined by
the Administrator pursuant to the Plan, provided however, that cashless exercise for Stock Options granted under this Appendix, may be
implemented by the Company only following the lapse of the Restricted Period, unless otherwise determined by the Administrator with the
approval of the ITA, to the extent such approval is necessary to receive and/or to keep any tax benefit pursuant to Section 102.
Without
derogating from the terms and conditions of the Plan and this Appendix, solely for the purpose of determining the tax liability pursuant
to Section 102(b)(3) of the Ordinance, if at the Date of Grant the Company’s shares of Common Stock are listed on any established
national securities exchange or a national market system or if the Company’s shares of Common Stock will be registered for trading
within ninety (90) days following the Date of Grant, the Fair Market Value of a share of Common Stock at the Date of Grant shall be determined
in accordance with the average value of the Company’s shares on the thirty (30) trading days preceding the Date of Grant or on
the thirty (30) trading days following the date of registration for trading, as the case may be.
7. |
EXERCISE OF STOCK OPTIONS |
Stock
Options shall be exercised by the Participant’s giving a written notice and remitting payment of the total Option Price to the
Administrator or to any third party designated by the Administrator (the “Representative”), in such form and method
as may be determined by the Administrator and the Trustee and, when applicable, in accordance with the requirements of Section 102, which
exercise shall be effective upon receipt of such notice by the Administrator or the Representative and the payment of the Option Price
at the Company’s or the Representative’s principal office. With respect to Unapproved 102 Stock Options, if the Participant
ceases to be employed by the Company or any Affiliate, the Participant shall extend to the Company and/or its Affiliate a security or
guarantee for the payment of tax due at the time of sale of the shares of Common Stock, all in accordance with the provisions of Section
102.
In
the event that the Trustee hold shares of Common Stock in trust, the Trustee shall not, with respect to such shares, represent the holder
of such shares in any meeting of the stockholders of the Company or any action of the stockholders of the Company by written consent.
The Trustee shall provide the Company on such date or as shall be mutually agreed between the Trustee and the Company, with a power-of-attorney
to participate and vote in such meetings and execute such actions by written consent with respect to all shares of Common Stock held
in trust, if so requested by the Company.
8. |
INTEGRATION OF SECTION 102 AND TAX COMMISSIONER’S
APPROVAL |
| 8.1. | With
regards to Approved 102 Stock Options, the provisions of the Plan, this Appendix and the
Award of any Award Agreement, the Award Agreement shall be subject to the provisions of Section
102 and the Income Tax Commissioner’s approval, and the said provisions and permit
shall be deemed an integral part of the Plan and of the Award Agreement. |
| 8.2. | Any
provision of Section 102 and/or the said permit which is necessary in order to receive and/or
to keep any tax benefit pursuant to Section 102, which is not expressly specified in the
Plan, this Appendix or the Award Agreement, shall be considered binding upon the Company
and the Participants. |
| 9.1. | To
the extent permitted by Applicable Law, any tax consequences arising from the grant or exercise
of any Stock Option, from the payment for shares of Common Stock covered thereby or from
any other event or act (of the Company, and/or its Affiliates, and/or the Trustee or the
Participant), hereunder, shall be borne solely by the Participant. The Company and/or its
Affiliates and/or the Trustee shall withhold taxes according to the requirements under Applicable
Law, rules, and regulations, including withholding taxes at source. Furthermore, the Participant
agrees to indemnify the Company and/or its Affiliates and/or the Trustee and hold them harmless
against and from any and all liability for any such tax or interest or penalty thereon, including
without limitation, liabilities relating to the necessity to withhold, or to have withheld,
any such tax from any payment made to the Participant. |
| | |
| 9.2. | The
Company and/or the Trustee shall not be required to release any share certificate to a Participant
until all required payments have been fully made by the Participant and unless the Participant
requests delivery of such certificate, in writing in accordance with the procedures established
by the Administrator. |
10. |
GOVERNING LAW & JURISDICTION |
This
Appendix shall be governed by and construed and enforced in accordance with the laws of the State of Israel applicable to contracts made
and to be performed therein, without giving effect to the principles of conflict of laws. Notwithstanding anything stated herein to the
contrary, if and to the extent any issue or matter arises hereunder which involves the application of another jurisdiction or the requirements
relating to the administration of Stock Options of any stock exchange or quotation system, then such laws and requirements shall apply
and shall govern such issues or matters, in accordance with any Applicable Law. The competent courts of Tel-Aviv, Israel shall have sole
jurisdiction to adjudicate any dispute that may arise in connection with the application, interpretation or enforcement of Section 102
including (without limitation) matters involving the Trustee and the Israeli tax consequences of the Stock Options or the shares of Common
Stock in trust and the release and transfer of such Stock Options or shares of Common Stock by the Trustee.
FIRST
AMENDMENT
TO THE
NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN
This
FIRST AMENDMENT TO THE NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN (this “Amendment”), effective as of
June 13, 2018, is made and entered into by NanoVibronix, Inc., a Delaware corporation (the “Company”). Terms
used in this Amendment with initial capital letters that are not otherwise defined herein shall have the meanings ascribed to such terms
in the NanoVibronix, Inc. 2014 Long-Term Incentive Plan (the “Plan”).
RECITALS
WHEREAS,
Article 9 of the Plan provides that the Board of Directors of the Company (the “Board”) may amend the Plan
at any time and from time to time;
WHEREAS,
the Board desires to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan as set
forth in Article 5 of the Plan by an additional seven hundred and fifty thousand (750,000) shares of Common Stock; and
WHEREAS,
the Board intends to submit this Amendment to the Company’s stockholders for their approval.
NOW,
THEREFORE, in accordance with Article 9 of the Plan, the Company hereby amends the Plan as follows:
1.
Section 5.1 of the Plan is hereby amended by deleting said section in its entirety and substituting in lieu thereof the following new
Section 5.1:
5.1
Number Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common
Stock that may be delivered pursuant to Awards granted under the Plan is One Million Four Hundred Sixty-Four Thousand Two Hundred Eighty-Six
(1,464,286) shares, of which one hundred percent (100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment pursuant
to Articles 11 and 12, the maximum number of shares of Common Stock with respect to which Stock Options or SARs may be granted
to an Executive Officer during any calendar year is Two Hundred Seventy-Five Thousand (275,000) shares of Common Stock. Shares to be
issued may be made available from authorized but unissued Common Stock, Common Stock held by the Company in its treasury, or Common Stock
purchased by the Company on the open market or otherwise. During the term of this Plan, the Company will at all times reserve and keep
available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan.
2.
This Amendment shall be effective on the date first set forth above. In the event stockholder approval of this Amendment is not obtained
within twelve (12) months of the date the Board approved this Amendment, the additional shares added to the Plan pursuant to this Amendment
shall not be available for grant as Incentive Stock Options.
3.
Except as expressly amended by this Amendment, the Plan shall continue in full force and effect in accordance with the provisions thereof.
IN
WITNESS WHEREOF, the Company has caused this Amendment to be duly executed as of the date first written above.
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
/s/
Stephen Brown |
|
Name |
Stephen
Brown |
|
Title |
CFO
and Corporate Secretary |
|
SECOND
AMENDMENT
TO THE
NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN
This
SECOND AMENDMENT TO THE NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN (this “Amendment”), effective as of
June 13, 2019, is made and entered into by NanoVibronix, Inc., a Delaware corporation (the “Company”). Terms
used in this Amendment with initial capital letters that are not otherwise defined herein shall have the meanings ascribed to such terms
in the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, as amended by First Amendment to the NanoVibronix, Inc., 2014 Long-Term Incentive
Plan (the “Plan”).
RECITALS
WHEREAS,
Article 9 of the Plan provides that the Board of Directors of the Company (the “Board”) may amend the Plan
at any time and from time to time;
WHEREAS,
the Board desires to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan as set
forth in Article 5 of the Plan by an additional four hundred thousand (400,000) shares of Common Stock; and
WHEREAS,
the Board intends to submit this Amendment to the Company’s stockholders for their approval.
NOW,
THEREFORE, in accordance with Article 9 of the Plan, the Company hereby amends the Plan as follows:
1.
Section 5.1 of the Plan is hereby amended by deleting said section in its entirety and substituting in lieu thereof the following new
Section 5.1:
5.1
Number Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common
Stock that may be delivered pursuant to Awards granted under the Plan is One Million Eight Hundred Sixty Four Thousand Two Hundred Eighty
Six (1,864,286) shares, of which one hundred percent (100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment
pursuant to Articles 11 and 12, the maximum number of shares of Common Stock with respect to which Stock Options or SARs may be
granted to an Executive Officer during any calendar year is three hundred fifty four thousand two hundred fourteen (354,214) shares of
Common Stock. Shares to be issued may be made available from authorized but unissued Common Stock, Common Stock held by the Company in
its treasury, or Common Stock purchased by the Company on the open market or otherwise. During the term of this Plan, the Company will
at all times reserve and keep available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of
this Plan.
2.
This Amendment shall be effective on the date first set forth above. In the event stockholder approval of this Amendment is not obtained
within twelve (12) months of the date the Board approved this Amendment, the additional shares added to the Plan pursuant to this Amendment
shall not be available for grant as Incentive Stock Options.
3.
Except as expressly amended by this Amendment, the Plan shall continue in full force and effect in accordance with the provisions thereof.
IN
WITNESS WHEREOF, the Company has caused this Amendment to be duly executed as of the date first written above.
|
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
/s/
Stephen Brown |
|
Name: |
Stephen
Brown |
THIRD
AMENDMENT
TO THE
NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN
This
THIRD AMENDMENT TO THE NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN (this “Amendment”), effective as of
November 1, 2021, is made and entered into by NanoVibronix, Inc., a Delaware corporation (the “Company”). Terms
used in this Amendment with initial capital letters that are not otherwise defined herein shall have the meanings ascribed to such terms
in the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, as amended by the First Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive
Plan and the Second Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan (the “Plan”).
RECITALS
WHEREAS,
Article 9 of the Plan provides that the Board of Directors of the Company (the “Board”) may amend the Plan
at any time and from time to time;
WHEREAS,
the Board desires to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan, as
set forth in Article 5 of the Plan, by an additional one million five hundred thousand (1,500,000) shares of Common Stock; and
WHEREAS,
the Board intends to submit this Amendment to the Company’s stockholders for their approval.
NOW,
THEREFORE, in accordance with Article 9 of the Plan, the Company hereby amends the Plan as follows:
1.
Section 5.1 of the Plan is hereby amended by deleting said section in its entirety and substituting in lieu thereof the following new
Section 5.1:
5.1
Number Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common
Stock that may be delivered pursuant to Awards granted under the Plan is Three Million Three Hundred Forty-Six Thousand Two Hundred Eighty-Six
(3,346,286) shares, of which one hundred percent (100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment pursuant
to Articles 11 and 12, the maximum number of shares of Common Stock with respect to which Stock Options or SARs may be granted
to an Executive Officer during any calendar year is six-hundred sixty-nine thousand, two-hundred fifty-seven (669,257) shares of Common
Stock. Shares to be issued may be made available from authorized but unissued Common Stock, Common Stock held by the Company in its treasury,
or Common Stock purchased by the Company on the open market or otherwise. During the term of this Plan, the Company will at all times
reserve and keep available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan.
2.
This Amendment shall be effective on the date first set forth above. In the event stockholder approval of this Amendment is not obtained
within twelve (12) months of the date the Board approved this Amendment, the additional shares added to the Plan pursuant to this Amendment
shall not be available for grant as Incentive Stock Options.
3.
Except as expressly amended by this Amendment, the Plan shall continue in full force and effect in accordance with the provisions thereof.
[Remainder
of the Page Intentionally Left Blank;
Signature Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Amendment to be duly executed as of the date first written above.
|
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
/s/
Stephen Brown |
|
Name: |
Stephen
Brown |
|
Title: |
Chief
Financial Officer |
APPENDIX
E
FORM
OF CERTIFICATE OF AMENDMENT
TO
THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NANOVIBRONIX,
INC.
Pursuant
to Section 242 of the General Corporation Law of the State of Delaware, NanoVibronix, Inc., a corporation organized under and existing
by virtue of the General Corporation Law of the State of Delaware (“DGCL”), DOES HEREBY CERTIFY:
1.
The name of the corporation is NanoVibronix, Inc. (the “Corporation”).
2.
The date of filing the original Certificate of Incorporation of this Corporation with the Secretary of State of the State of Delaware
was October 20, 2003.
3.
“FOURTH: A” of the Amended and Restated Certificate of Incorporation, as previously amended, is hereby amended to
read as follows:
“FOURTH:
A. The total number of shares of all classes of stock which the Corporation shall have authority to issue is fifty-six million (56,000,000),
consisting of forty million (45,000,000) shares of Common Stock, par value $0.001 per share (the “Common Stock”), and eleven
million (11,000,000) shares of Preferred Stock, par value $0.001 per share (the “Preferred Stock”).”
4.
The foregoing amendment was effected pursuant to a resolution of the Board of Directors of said corporation.
5.
Thereafter, pursuant to a resolution by the Board of Directors, this Certificate of Amendment was submitted to the stockholders of the
Corporation for their approval in accordance with the provisions of Section 242 of the DGCL. Accordingly, said proposed amendment has
been adopted in accordance with Section 242 of the DGCL.
Dated:
[_____], 2022
NANOVIBRONIX,
INC. |
|
|
|
|
By: |
|
|
Name: |
Brian
Murphy |
|
Title: |
Chief
Executive Officer |
|
NanoVibronix
Inc.
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