NanoVibronix, Inc.

525 Executive BlvdBlvd.

Elmsford, NYNew York 10523

(914) 233-3004

PROXY STATEMENT

FOR

SPECIAL MEETING OF STOCKHOLDERS

To Be Held on , 2019March 31, 2021

Unless the context otherwise requires, references in this proxy statement to “we,“we,” “us,“us,” “our,“our,” “the the “Company” or “NanoVibronix”“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, par value $0.001 per share.share (“Common Stock”), our Series C Convertible Preferred Stock, par value $0.001 per share (“Series C Preferred Stock”), Series D Convertible Preferred Stock (“Series D Preferred Stock”) and our Series E Convertible Preferred Stock, par value $0.001 per share (“Series E Preferred Stock”).

The accompanying proxy is solicited by the Board of Directors (the “Board”“Board”) on behalf of NanoVibronix, Inc. to be voted at a special meetingthe Company’s Special Meeting of stockholders of the CompanyStockholders (the “Special Meeting”“Special Meeting”) to be held on , 2019,March 31, 2021, and at the time and place andany adjournment, continuation or postponement thereof, for the purposes set forth in the accompanying Notice of Special Meeting of Stockholders (the “Notice”“Notice”) and. The Special Meeting will be held virtually via a live webcast on the Internet on March 31, 2021 at any adjournment(s) or postponement(s) of the Special Meeting.10:00 a.m. Eastern time. This proxy statement and accompanying form of proxy are dated , 2019,____________, 2021 and are expected to be first sent given or made availablegiven to stockholders on or about ____________, 2021.

If you held shares of our Common Stock, Series C Preferred Stock or Series E Preferred Stock at the close of business on February 23, 2021 (the “Record Date”), 2019.you are invited to attend the Special Meeting virtually at www.virtualshareholdermeeting.com/NAOV2021SM and vote on the proposals described in this proxy statement.

The executive offices of the Company are located at, and the mailing address of the Company is, 525 Executive Blvd,Blvd., Elmsford, NY 10523.

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS

FOR THE STOCKHOLDER MEETING TO BE HELD ON                     , 2019:The Company will pay the costs of soliciting proxies from stockholders. We have retained Kingsdale Advisors to assist in the solicitation of proxies for a fee of $13,000 plus reimbursement of expenses. In addition to solicitation by mail and by Kingsdale Advisors, our directors, officers and employees may solicit proxies on behalf of the Company, without additional compensation, by telephone, facsimile, mail, on the Internet or in person.

As permitted byImportant Notice Regarding the “Notice and Access” rules of the U.S. Securities and Exchange Commission (the “SEC”), we are making this proxy statement and the proxy card available to stockholders electronically via the Internet at the following website: www.proxyvote.com. On or about                  , 2019, we began to mail to our stockholders a Notice of Internet Availability of Proxy Materials (the “Noticefor the Special Meeting of Internet Availability”) that contains instructionsStockholders to be Held on how stockholders may access and review allMarch 31, 2021: Pursuant to SEC rules, with respect to the Special Meeting, we have elected to utilize the “full set delivery” option of the proxy materials and how to vote. Also, on or about                     , 2019, we began mailing printedproviding paper 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 copyall of our proxy materials you should follow the instructions for requesting such materials included in theby mail. The Notice of Internet Availability.Special Meeting and Proxy Statement are also available at www.proxyvote.com.

QUESTIONS AND ANSWERS ABOUT THE SPECIAL 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.” If you are a “street name” holder, you must obtain a proxy from your broker or nominee in order to vote your shares in person at the Special Meeting.

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 Special Meeting.

Why did I receive a Notice of Internet Availability of Proxy Materials instead of paper copies of the proxy materials?

We are using Notice and Access model (“Notice and Access”), 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                 , 2019, we began 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 Special Meeting?

At the Special Meeting, stockholders will act upon the matters outlinedfollowing proposals:

● The ratification of an increase in the Notice, which includenumber of authorized shares of Common Stock from 20,000,000 to 24,109,635, effective as of December 4, 2020, an increase of 4,109,635 shares, and to further ratify the following:issuance of such shares of Common Stock upon the conversion and exercise of the Company’s securities as described in Proposal 1 (the “Share Increase Ratification”);

● The approval of an amendment to our Amended and Restated Certificate of Incorporation to increase the number of shares of our Common Stock authorized for issuance from 20,000,000 (or 24,109,635 if Proposal 1 is approved) shares to 45,000,000 shares (the “Amendment Proposal”); and

What should I do● The approval of an adjournment of the Special Meeting to a later date or dates, if I receive more than one setnecessary, to permit further solicitation and vote of voting materials?proxies in the event there are not sufficient votes in favor of any of the Share Increase Ratification and the Amendment Proposal (the “Adjournment Proposal”).

You may receive more than one Notice of Internet Availability (or, if you requested a printed copyThe Share Increase Ratification is being submitted to our stockholders pursuant to Section 204 of the proxy materials,Delaware General Corporate Law, or DGCL, and Delaware common law. The Notice and this proxy statement (including the resolutions adopted by the Company’s Board attached to this proxy statement as Appendix Aand the text of Sections 204 and 205 of the DGCL attached to this proxy card) or voting instruction card. For example, if you hold your sharesstatement as Appendix B) constitute the notice required to be given to our stockholders under Section 204 of the DGCL 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 stockholderconnection with the Share Increase Ratification and is being delivered to stockholders of record (both voting and hold shares in a brokerage account, you will receive a Noticenon-voting) as of Internet Availability (or, if you requested a printed copyDecember 4, 2020, other than those whose identities or addresses cannot be determined from our records. However, such holders of our Common Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock are not entitled to virtually attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were also holders of stock as of the proxy materials,Record Date (as defined below).

Under Sections 204 and 205 of the DGCL, when a proxy card)matter is submitted for shares heldratification at a stockholders meeting, any claim that a defective corporate act ratified under Section 204 is void or voidable due to the failure of authorization or that the Delaware Court of Chancery should determine, in your nameits discretion, that a ratification in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from the time a certificate of validation is filed with the secretary of state of the State of Delaware and becomes effective in accordance with the DGCL. The Company expects to file a voting instruction cardcertificate of validation for shares held in “street name.” Please following the separate voting instructionsShare Increase Ratification that you received for youris approved by our stockholders promptly after the Special Meeting. Accordingly, if the Share Increase Ratification is approved at the Special Meeting, any claim that the effectiveness of the increase to the number of authorized shares of our common stock heldCommon Stock and the issuance of such shares of Common Stock upon the conversion and exercise of the Company’s securities as described in eachthe accompanying proxy statement is void or voidable due to a failure of your different accountsauthorization with respect to ensuresuch increase or that all your shares are voted.the Delaware Court of Chancery should declare, in its discretion, that such Share Increase Ratification not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from both the time at which a certificate of validation is filed with respect to such Share Increase Ratification and such time as such certificate of validation becomes effective under the DGCL (which, with respect to the Share Increase Ratification, will be the applicable “validation effective time” as set forth in the Share Increase Ratification).

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 Special Meeting is the close of business on , 2019February 23, 2021 (the “Record Date”“Record Date”). The Record Date is established by the Board as required by Delaware law. On the Record Date, 24,109,625 shares of our common stockCommon Stock were issued and outstanding. On the Record Date, 666,667 shares of our Series C Convertible Preferred Stock (the “Series C Preferred Stock”) were issued and outstanding and after application of the beneficial ownership limitation pursuant to the termsholder of the Series C Preferred Stock as set forthis entitled to 666,667 votes on the proposals described in this proxy statement. On the certificateRecord Date, 875,000 shares of designation forSeries E Preferred Stock were issued and outstanding and the holder of the Series CE Preferred Stock certain holders of Series C Preferred Stock areis entitled to an aggregate of495,751 votes on the proposals described in this proxy statement. See “What are the voting rights of the stockholders?” below.

Who is entitled to vote at the Special Meeting?

Holders of our common stockCommon Stock, the Series C Preferred Stock, and ourthe Series CE Preferred Stock, subject to the beneficial ownership limitation, at the close of business on the Record Date may vote at the Special Meeting.

In connection with the Share Increase Ratification, stockholders of record as of December 4, 2020 (both voting and non-voting), other than holders whose identities or addresses cannot be determined from our records, are receiving notice of the Special Meeting under Section 204 of the DGCL. However, such holders of our Common Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock as of December 4, 2020 are not entitled to virtually attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were a stockholder of record as of the Record Date.

What are the voting rights of the stockholders?

The Company has twothree classes of voting stock, common stockCommon Stock, Series C Preferred Stock and Series CE Preferred Stock. Each holder of common stockCommon Stock is entitled to one vote per share of common stockCommon Stock on each matter to be acted upon at the Special Meeting. Each holder of Series C Preferred Stock is entitled to the number of votes equal to the number of whole shares of common stockCommon Stock into which the shares of Series C Preferred Stock held by such holder are then convertible (subject to the 9.99% beneficial ownership limitations) with respect to any and all matters presented to the stockholders for their action or consideration. Each holder of Series E Preferred Stock is entitled to the number of votes equal to the number of our Common Stock equal to the Voting Ratio (subject to the 9.99% beneficial ownership limitations) with respect to any and all matters presented to the stockholders for their action or consideration. The Voting Ratio, for each share of Series E Preferred Stock, is equal to $2.00 divided by $3.53. Fractional votes are not, however, permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series E Preferred Stock held by each Series E Preferred Stock holder could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward). Holders of Series C Preferred Stock and Series E Preferred Stock vote together with the holders of common stockCommon Stock as a single class, except as provided by law and except that the consent of holders of a majority of the outstanding Series C Preferred Stock or Series E Preferred Stock is required to amend the terms of the Series C Preferred Stock.Stock or Series E Preferred Stock, respectively. Holders of our common stockCommon Stock, Series C Preferred Stock and Series CE Preferred Stock will vote together as a single class on all matters described in this Proxy Statement.proxy statement.

When and where is the Special Meeting and what do I need to be able to attend online?

The presence, in person or by proxy, of the holders of a majority of the voting power of the issued and outstanding shares of common stock andSpecial Meeting will be held on February 23, 2021, at 10:00 a.m. Eastern time at www.virtualshareholdermeeting.com/NAOV2021SM. Any stockholder who owns our Common Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock on the Record Date can attend the Special Meeting online.

You will be able to attend the Special Meeting online, vote, view the list of stockholders entitled to vote at the Special Meeting is necessary to constitute a quorum to transact business. If a quorum is not present or represented atand submit your questions during the Special Meeting by visiting www.virtualshareholdermeeting.com/NAOV2021SM. To participate in the Chairman ofvirtual meeting, you will need a 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 may adjournprior to the start time and you should allow ample time for the check-in procedures. Because the Special Meeting will be a completely virtual meeting, from timethere will be no physical location for stockholders to time to another place, if any, date or time.attend.

What is the difference between a stockholder of record and a “street name” holder?

If your shares are registered directly in your name with V-Stock Transfer LLC, the Company’s stock transfer agent, you are considered the stockholder of record with respect to those shares. The proxy statement and proxy card have 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 proxy statement and the proxy card 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.

How do I votecast my shares?vote?

If you are a stockholder of record, holder, you may vote your shares at the Special Meeting in person or by proxy. To vote in person, you must attend the Special Meeting and obtain and submit a ballot. The ballot will be provided at the Special Meeting. To vote by proxy, you may choose one of the following methodsthere are four ways to vote your shares:vote:

The proxy is fairly simple to complete, with specific instructions on the electronic ballot, telephone or card. By completing and submitting it,a proxy, you will direct the designated persons (known as “proxies”) to vote your stock at the Special Meeting in accordance with your instructions. The Board has appointed Brian Murphy, our chief executive officer and director and James Cardwell, our Chief Financial Officer,Stephen Brown to serve as the proxies for the Special Meeting.

In order to be counted, proxies submitted by telephone or Internet must be received by 11:59 p.m. Eastern time on March 30, 2021. Proxies submitted by U.S. mail must be received before the start of the Special Meeting.

Your proxy will be valid only if you complete and return it before the Special Meeting. If you properly complete and transmitvoted according to your proxy but do not provide voting instructions with respect to a proposal, then the designated proxies will vote your shares “FOR” each proposal as to which you provide no voting instructions. We do not anticipate that any other matters will come before the Special Meeting, but if any other matters properly come before the meeting, then the designated 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 provide no voting instructions. See “What is a broker non-vote?” Alternatively, if you want to vote your shares in person at the Special 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 bring a nominee-issued proxy to the Special Meeting, you will not be able to vote your nominee-held shares in person at the Special Meeting.

Who counts the votes?

All votes will be tabulated by Brian Murphy, the inspector of election appointed for the Special Meeting. Each proposal will be tabulated separately.

Can I vote my shares in person at the Special Meeting?

Yes. If you are a stockholder of record you may vote your shares at the meeting by completing a ballot at the Special Meeting.

If you hold your shares in “street name,” you may vote your shares in person 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 Special 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 Special Meeting or are unable to attend.

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 to the proposal to approve an amendment of the Company’s Amended and Restated Certificate of Incorporation to increase the authorized preferred stock of the Company from 5,000,000 shares to 11,000,000 shares (Proposal 3), 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 instructionproxy card, to your broker, your shares maywill not be voted only with respect to so-called “routine” matters whereunless you virtually attend the Special Meeting and vote your broker has discretionary voting authority over your shares. Under the rules of the New York Stock Exchange (“NYSE”), which apply to brokers regardless of whether an issuer is listed on the NYSE or NASDAQ, only Proposal Three is a “routine” matter. Accordingly, brokers will have discretionary authority to vote only on Proposal Three.

shares online. If you are a beneficial owner and do not vote via the Internet or telephone and do not specify contrary voting instructions, your shares will be voted in accordance with the recommendations of our Board on all matters, and in the discretion of proxy holders as to any other matters that may properly come before the meeting or by returning a signedany adjournment, continuation or postponement thereof. Similarly, if you sign and submit your proxy card or voting instruction card to your broker, your broker will not be permitted to votewith no instructions, your shares will be voted in accordance with respectthe recommendations of our Board on all matters, and in the discretion of proxy holders as to Proposal One, Proposal Twoany other matters that may properly come before the meeting or Proposal Four, as underany adjournment, continuation or postponement thereof. We know of no other business to be considered at the rulesSpecial Meeting.

If your shares are registered in the name of the NYSE these proposals are “non-routine.” If a broker, holding shares returns an executed proxy card that indicates thatbank or other nominee (typically referred to as being held in “street name”), there are four ways to vote:

In the broker hasevent you do not received voting instructions with respect to Proposal One, Proposal Two or Proposal Four, then such shares will not be considered to have been voted on such proposal. Your broker will vote your shares on Proposal One, Proposal Two and Proposal Four only if you provide instructions on how to vote, by following the instructions, they provide to you. Accordingly, we encourage youyour broker will have authority to vote promptly, even ifyour shares. Under the rules that govern brokers who are voting with respect to shares that are held in street name, brokers have the discretion to vote such shares on “routine” matters, but not on “non-routine” matters. The NYSE has informed us that each of the Share Increase Ratification, the Amendment Proposal and the Adjournment Proposal is a “routine” matter. Accordingly, your broker, bank or other nominee may vote your shares without receiving instructions from you planon Proposal 1 (Share Increase Ratification), Proposal 2 (Amendment Proposal) and Proposal 3 (Adjournment Proposal). A failure to attend the Special Meeting.

We encourage youinstruct your broker, bank or other nominee on how to provide instructions to your brokerage firm via the Internet or telephone or by returning your signed voting instruction card. This ensures thatvote your shares will be voted atnot necessarily count as a vote against the Special Meeting with respect to all of the proposals described in this Proxy Statement.proposal.

Can I changeWhat are my vote?

Yes. If you are a record holder, you may revoke your proxy at any time by any of the following means:choices when voting?

How does the Board recommend I vote on the proposals?

The Board recommends you vote:

● “FOR” the Share Increase Ratification;

● “FOR” the Amendment Proposal; and

● “FOR” the Adjournment Proposal.

What is a “quorum?”

A quorum is the minimum number of shares required to be present or represented by proxy at the Special Meeting to properly hold a meeting of stockholders and conduct business under our bylaws and Delaware law. The presence, in person or by proxy, of a majority of the voting power of all issued and outstanding shares of our Common Stock, Series C Preferred Stock and Series E Preferred Stock entitled to vote on the Record Date will constitute a quorum at the Special Meeting. Abstentions, withheld votes, and broker non-votes will be counted as shares present and entitled to vote for the purposes of determining a quorum for the Special Meeting. “Broker non-votes” occur when brokers, banks or other nominees that hold shares on behalf of beneficial owners do not receive voting instructions from the beneficial owners prior to the meeting and do not have discretionary voting authority to vote those shares; however, as discussed above, all proposals currently scheduled to be considered at the Special Meeting are “routine,” and accordingly, we do not expect any broker non-votes.

What vote is required to approve each item?

If youHow are a “street name” holder, your bank,abstentions and broker or other nominee should provide instructions explaining how you may change or revoke your voting instructions.non-votes treated?

How many votes are needed to approve each proposal?

Approval of Proposal One Proposal requires the affirmative voteEach of the holders offailure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting), an abstention and a majoritybroker non-vote will have the same practical effect as a vote against the Share Increase Ratification and Amendment Proposal. Each of the shares of common stock and Series C Preferred Stock (subjectfailure to the 9.99% beneficial ownership limitations) casting votesvote by proxy or to vote in person or by proxy on such proposal(which would include voting online at the virtual Special Meeting. Under Delaware law, abstentions are not counted as “votes cast.” Accordingly, abstentions will not be counted toward the vote total for this proposalMeeting), an abstention and a broker non-vote will have no effect on the Adjournment Proposal. As described above, the NYSE has informed us that each of the Share Increase Ratification, Amendment Proposal and the Adjournment Proposal is a “routine” matter. Accordingly, your broker, bank or other nominee may vote your shares without receiving instructions from you on this proposal. If you own shares through an intermediary, you mustProposal 1 (Share Increase Ratification), Proposal 2 (Amendment Proposal) and Proposal 3 (Adjournment Proposal) and we do not expect any broker non-votes. A failure to instruct your broker, bank broker or other holder of recordnominee on how to vote in order for them to vote your shares so that yourwill not necessarily count as a vote can be counted with respect to this proposal. Broker non-votes will have no effect onagainst the vote on this proposal.

Approval of Proposal Two requiresCan I revoke or change my proxy?

You may revoke your proxy and change your vote at any time before the affirmativefinal vote of the holders of a majority of the shares of common stock and Series C Preferred Stock (subject to the 9.99% beneficial ownership limitations) casting votes in person or by proxy on such proposal at the Special Meeting. Under Delaware law, abstentions are not counted as “votes cast.” Accordingly, abstentions will not be counted towardYou may vote again on a later date via the vote total for this proposal and will have no effect on the vote on this proposal. If you own shares through an intermediary, you must instructInternet or by telephone (only your bank, brokerlatest Internet or other holder of record how to vote in order for them to vote your shares so that your vote can be counted with respect to this proposal. Broker non-votes will have no effect on the vote on this proposal.

Approval of Proposal Three requires the affirmative vote of the holders of a majority of the shares of our common stock and Series C Preferred Stock (subjecttelephone proxy submitted prior to the 9.99% beneficial ownership limitations) outstanding as of the record date, voting as one class. Abstentions will have the effect of a vote “AGAINST” this proposal. ThereSpecial Meeting will be no broker non-votescounted), by signing and returning a proxy card or voting instructions form with respect to this proposal.

Approval of Proposal Four requires the affirmative vote of the holders of a majority of the shares casting votes in personlater date, or by proxy on such proposalattending the Special Meeting and voting via the virtual meeting website. However, your attendance at the Special Meeting (assuming a quorum is present). Under Delaware law, abstentions are not counted as “votes cast.” Accordingly, abstentions will not be counted towardautomatically revoke your proxy unless you vote again at the vote total for this proposal and will have no effect on the vote on this proposal. If you own shares through an intermediary, you must instruct your bank, brokerSpecial Meeting or other holder of record how to vote in order for them to vote your shares sospecifically request that your vote can be counted with respectprior proxy is revoked by delivering to this proposal. Broker non-votes will have no effect on the vote on this proposal.

How doesCompany’s corporate secretary at 525 Executive Blvd., Elmsford, NY 10523, a written notice of revocation prior to the Board recommend that I vote?

The Board recommends that you vote:

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 provide no voting instructions, and such shares will be voted in the following manner:

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 Proposal One, Proposal Two and Proposal Four. See “What is a broker non-vote?”

Special Meeting.

Do I have any dissenters’ or appraisal rights with respect to any of the matters to be voted on at the Special Meeting?

No. None of ourthe stockholders has any dissenters’ or appraisal rights with respect to the matters to be voted on at the Special Meeting.

What are the solicitation expenses and who pays the costdoes it mean if I get more than one set of this proxy solicitation?voting materials?

Our Board is askingYour shares are probably registered in more than one account. Please provide voting instructions for yourall proxy and we will pay all of the costs of asking for stockholder proxies. 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. We may use officers and employees of the Company to ask for proxies, as described below.instruction cards you receive.

Is this proxy statement the only way that proxies are being solicited?Whom do I call if I have questions?

No. In additionIf you have any questions, need additional material, or need assistance in voting your shares, please feel free to contact the firm assisting us in the solicitation of proxies, by use of the Notice of Internet Access, officers and employees of the Company may solicit the return of proxies, either by mail, telephone, telecopy, e-mail or through personal contact. These officers and employees will not receive additional compensation for their efforts but will be reimbursed for out-of-pocket expenses. Brokerage housesKingsdale Advisors. Brokers, banks 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.may call 416-867-2272. Stockholders may call toll-free 1-877-657-5856. Or you may contact Kingsdale Advisors by email at contactus@kingsdaleadvisors.com.

Are there any other matters to be acted upon at the Special Meeting?

Management does not intend to present any business at the Special 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 Special 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.

Is my vote kept confidential?

Proxies, ballots and voting tabulations identifying stockholders are kept confidential and will not be disclosed to third parties except as may be necessary to meet legal requirements.

Where can I find the voting results of the Special Meeting?

We will announceThe preliminary voting results will be announced at the Special Meeting. We expect to publishThe final voting results will be published in a Current Report on Form 8-K to be filed by us with the SEC within four business days followingof the Special Meeting.meeting.

PROPOSAL 1

Who can help answer my questions?Ratification of the Increase in Authorized Shares of Common Stock

and the Issuance of Common Stock Upon Conversion of the Series C Preferred Stock

and the Exercise of Certain December 2021 Warrants and the Pre-Existing Warrants

Our Board has determined that it is in the best interests of the Company and our stockholders to ratify, pursuant to Section 204 of the DGCL, the increase in the number of authorized shares of our Common Stock from 20,000,000 shares to 24,109,635 shares and the issuance of 4,109,635 shares of Common Stock upon conversion of certain shares of Series C Preferred Stock (as described below) and the exercise of certain December 2021 Warrants and Pre-Existing Warrants (as described below). This ratification will be retroactive to December 4, 2020, the date of the first such overissue.

Background

As of December 3, 2020, we had 20,000,000 authorized shares of our Common Stock and 19,850,014 shares of Common Stock outstanding resulting in 149,986 shares of Common Stock being available for issuance.

On December 4, 2020, certain holders of our Series C Preferred Stock converted 396,509 shares of Series C Preferred Stock into 396,509 shares of Common Stock, resulting in an overissue of 246,523 shares of Common Stock, as more particularly described in Exhibit A to the resolutions adopted by our Board attached to this proxy statement as Appendix A.

Beginning on December 15, 2020, through January 22, 2021, certain holders of warrants we had issued in December 2020 (the “December 2020 Warrants”) exercised a portion of the December 2020 Warrants for 2,657,144 shares of Common Stock, resulting in an additional overissue of 2,657,144 shares of Common Stock, as more particularly described in Exhibit B attached to Appendix A of this proxy statement.

On January 22, 2020, a holder of warrants we have previously issued in various offerings (the “Pre-Existing Warrants”) exercised a portion of the Pre-Existing Warrants for 1,205,968 shares of Common Stock, resulting in an additional overissue of 1,205,968 shares of Common Stock, as more particularly described in Exhibit C attached to Appendix A of this proxy statement. The aggregate number of shares of Common Stock that has been overissued by the Company is 4,109,635.

Our Board, in consultation with counsel, has determined that it is in the best interests of the Company and our stockholders to ratify an increase in the number of authorized shares of the Company’s Common Stock from 20,000,000 to 24,109,635, an increase of 4,109,635 shares (the “Authorized Share Increase”), and the issuance of 4,109,635 shares of Common Stock (the “Authorized Share Increase Issuance”) upon the conversion of certain shares of Series C Preferred Stock and the exercise of certain December 2020 Warrants and Pre-Existing Warrants pursuant to Section 204 of the DGCL to eliminate any uncertainty related to the effectiveness of the issuance of such putative shares of Common Stock. If the Share Increase Ratification is approved by our stockholders and becomes effective, the ratification will be retroactive to December 4, 2020, which was the date of the first such overissue.

Among other consequences, the Share Increase Ratification will confirm that, since December 4, 2020, all of the 4,259,621 shares of Common Stock issued upon conversion of the Series C Preferred Stock and the exercise of the December 2020 Warrants and the Pre-Existing Warrants will have been duly authorized and validly issued.

Our Board Has Approved the Share Increase Ratification and the Authorized Share Increase Issuance

Section 204 of the DGCL allows a Delaware corporation, by following specified procedures, to ratify a corporate act retroactive to the date the corporate act was originally taken. Our Board determined that it would be advisable and in the best interests of the Company and our stockholders to ratify the Authorized Share Increase and Authorized Share Increase Issuance, each as described in this Proposal 1, pursuant to Section 204 of the DGCL and Delaware common law in order to eliminate any uncertainty related to the due authorization and validity of such shares of Common Stock and unanimously adopted the resolutions attached hereto as Appendix A (such resolutions are incorporated herein by reference) approving the Share Increase Ratification. Our Board also recommended that our stockholders approve the Share Increase Ratification for purposes of Section 204 of the DGCL and Delaware common law, and directed that the Share Increase Ratification be submitted to our stockholders for approval.

The text of sections 204 and 205 of the DGCL are attached hereto as Appendix B.

Filing of a Certificate of Validation

Upon the receipt of the required vote of the stockholders to approve the Share Increase Ratification, we intend to file a certificate of validation with respect to the Authorized Share Increase and the Authorized Share Increase Issuance with the Secretary of State of the State of Delaware (the “Certificate of Validation”). The time that the filing of the Certificate of Validation with the Secretary of State of the State of Delaware becomes effective in accordance with the DGCL will be the validation effective time of the Share Increase Ratification within the meaning of Section 204 of the DGCL.

Retroactive Ratification of the Authorized Share Increase and the Authorized Share Increase Issuance

Subject to the 120-day period for bringing claims discussed below, when the Certificate of Validation becomes effective in accordance with the DGCL, it should eliminate any possible uncertainty as to whether the shares of Common Stock issued in the Authorized Share Increase Issuance are void or voidable as a result of the potential failure of authorization described above, and the effect of the ratification will be retroactive to December 4, 2020, which was the date of the first such overissue.

Time Limitations on Legal Challenges to the Ratification of the Authorized Share Increase and the Authorized Share Increase Issuance

If the Share Increase Ratification becomes effective, under the DGCL, any claim that (i) the Authorized Share Increase or the Authorized Share Increase Issuance ratified pursuant to the Share Increase Ratification is void or voidable due to a failure of authorization, or (ii) the Delaware Court of Chancery should declare in its discretion that the Share Increase Ratification not be effective or be effective only on certain conditions, must be brought within 120 days from the time that the filing of the Certificate of Validation with the Secretary of State of the State of Delaware becomes effective in accordance with the DGCL.

The information provided above in this “Question and Answer” formatConsequences if the Share Increase Ratification is for your convenience only andNot Approved by the Stockholders

If the Share Increase Ratification is merely a summarynot approved by the requisite vote of stockholders, we will not be able to file the Certificate of Validation with the Secretary of State of the information containedState of Delaware and the Share Increase Ratification will not become effective 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 Brian Murphy by email at bmurphy@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 copyaccordance with Section 204 of the proxy materialsDGCL. The failure to approve the Share Increase Ratification may leave us exposed to potential claims that address unless(i) the past issuances of our Common Stock since December 4, 2020 may not be valid; (ii) the Company does not have sufficient authorized but unissued shares of Common Stock to permit future sales and issuances of Common Stock, including pursuant to outstanding shares of preferred stock, warrants and equity awards; and (iii) we received instructionswould not be able to validate our total outstanding shares of Common Stock in connection with any strategic transaction that our Board may determine is advisable, including, without limitation, a sale of the contrary from any stockholder at that address. This practice, known as “householding,” is designedCompany, a business combination or merger, or a license or other disposition of corporate assets of the Company. Any inability 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 materialsissue Common Stock in the future heand any invalidity of past issuances of Common Stock could expose us to significant claims and have a material adverse effect on our liquidity, which could result in our filing for bankruptcy or she may contact us by mail at NanoVibronix, Inc., 525an involuntary petition for bankruptcy being filed against us.

Interests of Directors and Executive Blvd, Elmsford, NY 10523, Attn: Brian MurphyOfficers

Our directors and executive officers have no substantial interests, directly or by calling 914-233-3004 and asking for Brian Murphy. Eligible stockholdersindirectly, in the matters set forth in this Proposal 1 except to the extent of record receiving multiple copiestheir ownership of shares of our Common Stock and equity awards granted to them under our equity incentive plans.

Vote Required

The affirmative “FOR” vote of the holders of a majority of the outstanding shares of our Common Stock, Series C Preferred Stock (subject to beneficial ownership limitations) and Series E Preferred Stock (subject to beneficial ownership limitations) is required to approve this proposal. Each of the failure to vote by proxy materials can request householding by contacting usor to vote in person (which would include voting online at the virtual Special Meeting), an abstention and a broker non-vote will have the same manner. Stockholders who ownpractical effect as shares throughvoted 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 broker or other nominee can request householding by contacting such nominee.on how to vote your shares will not necessarily count as a vote against this proposal.

We hereby undertake to deliver promptly, upon written or oral request,Board Recommendation

Our Board of Directors recommends a copyvote “FOR” the Share Increase Ratification.

PROPOSAL 2

Approval of the proxy materialsAmendment to Our Amended and Restated Certificate of Incorporation
to Increase the Number of Authorized Shares of Common Stock

Proposed Amendment

Our authorized capital stock presently consists of 20,000,000 shares of common stock, par value $0.001 per share (“Common Stock”) and 5,000,000 shares of preferred stock, par value $0.001 per share. If the Share Increase Ratification as described in Proposal 1 is approved, the number of authorized shares of Common Stock will increase to 24,109,635 shares.

Our Board has approved, and is recommending to the stockholders for approval at the Special 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 20,000,000 (or 24,109,635 if Proposal 1 is approved) 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 Amended and Restated 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

As discussed in Proposal 1, we have issued shares of our Common Stock in excess of the number of our currently authorized shares of Common Stock. Accordingly, we have no shares of Common Stock currently available for issuance. As of February 23, 2021, 9,006,548 shares of Common Stock were reserved for issuance or issuable upon conversion of outstanding shares of preferred stock or exercise of outstanding warrants and equity awards. We currently do not have a sufficient number of authorized shares of Common Stock available for such future issuances.

If the Amendment Proposal is approved, assuming Proposal 1 is approved and taking into account the number of shares of Common Stock reserved for issuance or issuable upon conversion of outstanding shares of preferred stock or exercise of outstanding warrants and equity awards, our Board will have the authority to issue approximately 11,883,817 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 outstanding convertible preferred stock, 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 shared addresspremium 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 which a single copyperpetuate 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 document was delivered. Requests should be directedCompany and is not part of a plan by management to Brian Murphyadopt a series of amendments to our Amended and Restated 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.

Vote Required

The affirmative “FOR” vote of the holders of a majority of the outstanding shares of our Common Stock, Series C Preferred Stock (subject to beneficial ownership limitations) and Series E Preferred Stock (subject to beneficial ownership limitations) is required to approve this proposal. Each of the failure to vote by proxy or to vote in person (which would include voting online at the addressvirtual Special 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 phone number set forth above.other nominee on how to vote your shares will not necessarily count as a vote against this proposal.

Board Recommendation

Our Board recommends that you vote “FOR” the Amendment Proposal.

PROPOSAL 3

The Adjournment Proposal

The Company is asking its stockholders to approve an adjournment of the Special Meeting from time to time, if necessary or appropriate, to permit further solicitation of proxies and vote of proxies in the event there are not sufficient votes in favor of Proposal 1 (Share Increase Ratification) or Proposal 2 (Amendment Proposal) (the “Adjournment Proposal”).

Vote Required

The affirmative “FOR” vote of a majority of the votes cast “FOR and “AGAINST” the matter at the Special Meeting is required to approve this proposal. Each of the failure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting), an abstention and a broker non-vote will have no effect on the voting results for the Adjournment 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.

Board Recommendation

Our Board recommends that you vote “FOR” the Adjournment Proposal.

STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth information with respect to the beneficial ownership of our common stockCommon Stock as of August 20, 2019February 23, 2021 by:

The percentages of common stockCommon Stock beneficially owned are reported on the basis of regulations of the Securities and Exchange CommissionSEC governing the determination of beneficial ownership of securities. Under the rules of the Securities and Exchange Commission,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 August 20, 2019,February 23, 2021, we had 4,429,96424,109,635 shares of common stock, 2,733,142Common Stock, 666,667 shares of Series C Preferred Stock, par value $0.001 per share (“Series C Preferred Stock”), 304154 shares of Series D Preferred Stock par value $0.001 per share (the “Series D Preferred Stock”), and 1,810,000875,000 shares of Series E Preferred Stock, par value $0.001 per share (the “Series E Preferred Stock”), outstanding. In addition to the shares of our common stockCommon Stock reported below, as described in the footnotes below the table, six stockholdersone stockholder beneficially ownowns 100% of our issuable and issued Series C Preferred Stock and one stockholder beneficially owns 100% of our issuable and issued Series E Preferred Stock.

* Represents ownership of less than 1%.

Does not include certain shares of (i) common stock issuable upon conversion of Series C Preferred Stock, Series D Convertible Preferred Stock, and Series E Convertible Preferred Stock (ii) common stock that may be purchased upon exercise of the warrants to purchase common stock or (iii) common stock issuable upon conversion of Series C Preferred Stock and Series E Preferred Stock that may be purchased upon exercise of the warrants to purchase preferred stock held by Globis Capital Partners, L.P., Globis International Investments L.L.C., Globis Asia, L.P., AYTA Consulting, LLC, Shavit 2 Partners LLC or Mr. Packer, which Mr. Packer also beneficially owns. These shares of common stock issuable upon conversion of the Series C Preferred Stock and Series E Preferred Stock are excluded, even though the terms of the Series C Preferred Stock and the Series E Preferred Stock allow for conversion into common stock and voting on an as if converted basis with the common stock, because these rights are prohibited if the exercise of such conversion or voting rights will result in the holder having beneficial ownership of more than 9.99% of the issuer’s common stock. These shares of common stock issuable upon conversion of the Series D Convertible Preferred Stock are excluded because the terms of the Series D Convertible Preferred Stock contain provisions that block conversion if such conversion will result in the holder having beneficial ownership of more than 9.99% of our common stock. These shares of common stock that may be purchased upon warrants to purchase common stock or preferred stock are excluded because the warrants and the terms of the preferred stock contain provisions that block exercise if such exercise will result in the holder having beneficial ownership of more than 9.99% of our common stock. 

Mr. Packer is the managing member of Globis Capital Advisors, L.L.C., which is the general partner of Globis Capital Partners, L.P. Mr. Packer is the managing member of Globis Capital, L.L.C., which is the general partner of Globis Capital Management, L.P., which is the investment manager of Globis Capital Partners, L.P. Mr. Packer is also the managing member of Globis International Investments L.L.C., and Globis Asia LP. Mr. Packer is deemed to have beneficial ownership of the shares held by Globis Capital Partners, L.P., Globis Asis LP. and Globis International Investments L.L.C. Mr. Packer also controls, and is deemed to have beneficial ownership of the shares held by, AYTA Consulting, LLC and Shavit 2 Partners, LLC.

Does not include 37,890 shares of Series C Convertible Preferred Stock held by AIGH Investment Partners, L.P., 344,407 shares of Series E Convertible Preferred Stock held by AIGH Investment Partners, L.P., 27,500 shares of Series E Convertible Preferred Stock held by WVP Emerging Manager Offshore Fund LLC and 82,500 shares of Series E Convertible Preferred Stock held by Emerging Manager Onshore Fund LLC which have been excluded because the shares contain provisions that block conversion if such conversion will result in the holder having beneficial ownership of more than 9.9% of our common stock.

Does not include 558,752 shares of common stock that may be purchased by AIGH Investment Partners, L.P., 30,000 shares of common stock that may be purchased by WVP Emerging Manager Offshore Fund LLC and 90,000 shares of common stock that may be purchased by Emerging Manager Onshore Fund LLC upon the exercise of warrants, which have been excluded because the warrants contain provisions that block exercise if such exercise will result in the holder having beneficial ownership of more than 9.9% of our common stock. These shares of common stock are excluded because the warrants contain provisions that block exercise if such exercise will result in the holder having beneficial ownership of more than 9.9% of our common stock.

Mr. Hirschman is the managing member of AIGH Investment Partners, L.P. and is deemed to have beneficial ownership of the shares held by WVP Emerging Manager Offshore Fund LLC and Emerging Manager Onshore Fund LLC.

PROPOSAL ONE

A PROPOSAL TO APPROVE, IN ACCORDANCE WITH NASDAQ MARKETPLACE RULE 5635(D), THE ISSUANCE OF (II) SHARES OF OUR COMMON STOCK ISSUABLE UPON THE CONVERSION OF THE SERIES E CONVERTIBLE PREFERRED STOCK, AND (II) SHARES OF OUR COMMON STOCK ISSUABLE UPON CONVERSION OF THE SERIES E PREFERRED STOCK ISSUABLE UPON EXERCISE OF WARRANTS, IN EACH CASE, ISSUED IN PRIVATE PLACEMENT OFFERINGS ON JUNE 21, 2019 AND JULY 31, 2019

General Description of Proposal

The stockholders of the Company are being asked to approve, in accordance with Nasdaq Marketplace Rule 5635(d), the issuance of (i) shares of our common stock issuable upon the conversion of the Series E Preferred Stock, and (ii) shares of our common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of warrants, in each case, issued in private placement offerings on June 21, 2019 and July 31, 2019.

Description of the Offerings

On June 21, 2019, we entered into and closed a private placement Securities Purchase Agreement with certain existing stockholders relating to the sale to such existing stockholders of 1,600,000 shares of our Series E Preferred Stock, and seven year warrants to purchase 1,600,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “June Offering”), for aggregate gross proceeds of $3,200,000 (excluding the exercise of the warrants issued in the June Offering).

On July 31, 2019, we entered into and closed a private placement Securities Purchase Agreement with certain existing stockholders relating to the sale to such existing investors of 210,000 shares of our Series E Preferred Stock and seven year warrants to purchase 210,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “July Preferred Offering”), for gross proceeds of $420,000 (excluding the exercise of the warrants issued in the July Preferred Offering).

On July 31, 2019, we entered into and closed a private placement Securities Purchase Agreement with certain accredited investors relating to the sale to such investors of 290,000 shares of our common stock, and seven year warrants to purchase 290,000 shares of our common stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “July Common Offering), for gross proceeds of $580,000 (excluding the exercise of the warrants issued in the July Common Offering).

On June 21, 2019, the Company filed a Certificate of Designation of the Series E Preferred Stock (the “Original Certificate of Designation”) with the Secretary of State of the State of Delaware (the “Secretary of State”). The Original Certificate of Designation was effective upon filing with the Secretary of State and designated the Series E Preferred Stock. On July 31, 2019 and September                 , 2019, the Company filed with the Secretary of State an Amended and Restated Certificates of Designation (the “Amended and Restated Certificates of Designation”) which were effective upon filing with the Secretary of State of Delaware. The Amended Certificates of Designation provides that, among other things, the Series E Preferred Stock is not convertible into our common stock, and the holders of Series E Preferred Stock have no voting rights, until, in each case, the Company receives approval of Proposal One.

In connection with the June Offering and the July Preferred Offering, we agreed to use commercially reasonable efforts to provide each stockholder entitled to vote at a special meeting of stockholders a proxy statement soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of the issuance of all of the shares of our common stock issuable upon conversion of the Series E Preferred Stock in accordance with applicable law and the rules and regulations of the Nasdaq Stock Market. Prior to the stockholder vote on this Proposal One, the holders have been, and if this Proposal One is not approved by the stockholders, the holders will be, prohibited from converting Series E Preferred Stock into shares of our common stock and will have no voting rights.

Following the date that the stockholders of the Company approve this Proposal One, each holder of Series E Preferred Stock will be prohibited from converting shares of Series E Preferred Stock into shares of Common Stock if, as a result of such conversion, such holder, together with its affiliates, would own more than 9.99% of the total number of shares of our common stock. Each holder has the right to increase its maximum percentage to 9.99% upon 60 days’ notice to the Company.

The information set forth in this Proposal One is qualified in its entirety by reference to the actual terms of the agreements entered into in connection with the June Offering, which are included as exhibits to our Current Report on Form 8-K filed with the SEC on June 26, 2019, and the July Preferred Offering and the July Common Offering, which are included as exhibits to our Current Report on Form 8-K filed with the SEC on July 31, 2019.

Terms of the Series E Preferred Stock

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

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

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

Subject to the approval of the stockholders of this Proposal One and subject to the beneficial ownership limitations, each holder of Series E Preferred Stock shall be entitled to the number of votes equal to the number of shares of our common stock equal to the Voting Ratio. The Voting Ratio, for each share of Series E Preferred Stock is equal to $2.00 divided by $3.53. Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series E Preferred Stock held by each Series E Holder could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward). Unless and until the stockholders of the Company approve this Proposal One, the Series E Holders shall have no voting rights.

Use of Proceeds

We expect to use the proceeds from the from the sale of the Series E Preferred Stock in the June Offering and the July Preferred Offering and the sale of our common stock in the July Common Offering for working capital and other general corporate purposes.

Registration Rights

We have also agreed to prepare and file with the SEC within 60 days of after the date that the stockholders approve this Proposal One a registration statement covering the resale of the shares of our common stock issuable upon conversion of the Series E Preferred Stock, and the shares of our common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of warrants, and cause such registration statement to become effective under the Securities Act of 1933, as amended (the “Securities Act”), within 120 days of the date that the stockholders approve this Proposal One if there is no review of the registration statement by the SEC or within 150 days of the date that the stockholders approve this Proposal One if there is a review of the registration statement by the SEC. If the registration statement (i) is not filed within 60 days after the date that the stockholders approve this Proposal One, (ii) is not declared effective within 120 days (or 150 days, as applicable) of the date that the stockholders approve this Proposal One, or (iii) ceases for any reason to be effective at any time prior to the expiration of its effectiveness period (as defined in the securities purchase agreement) for more than 20 consecutive trading days in any 12 month period, then we are required to pay to each investor who holds Registrable Securities an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the purchase price paid by such investor for the Series E Preferred Stock per month until the registration statement is filed or declared effective (as applicable); provided that the total amount of payments shall not exceed, when aggregated with all such payments paid to all Preferred Investors, 5% of the aggregate purchase price of the Series E Preferred Stock and warrants to purchase shares of Series E Preferred Stock.

Reason for the Offerings

On September 14, 2018, we received a letter from the Listing Qualifications Staff (the “Staff”) of The Nasdaq Stock Market LLC notifying us that we were no longer in compliance with the minimum stockholders’ equity requirement for continued listing on the Nasdaq Capital Market. On October 26, 2018, November 23, 2018 and January 9, 2019, we submitted a plan and supporting documentation to regain compliance with the minimum $2,500,000 stockholders’ equity requirement and was granted an extension through March 13, 2019 to comply with this requirement.

The Staff notified us by letter dated March 14, 2019 that it determined that we did not meet the terms of the extension because we were unable to complete an equity financing and evidence compliance with the minimum $2,500,000 stockholders’ equity requirement for continued listing on the Nasdaq Capital Market by March 13, 2019, and our common stock would be subject to delisting from the Nasdaq Capital Market unless we timely requested a hearing before the Nasdaq Hearings Panel (the “Panel”).

We timely requested a hearing before the Panel, which request stayed any delisting action by the Staff. The hearing occurred on May 2, 2019. At the hearing, we presented our plan to evidence compliance with the minimum $2,500,000 stockholders’ equity requirement for continued listing on the Nasdaq Capital Market, and request an extension of time within which to do so.

By letter dated May 20, 2019, we received notice that the Panel granted our request for continued listing on the Nasdaq Capital Market. Assuming our compliance plan is executed and compliance with the minimum $2,500,000 stockholder equity requirement is demonstrated, the Panel will maintain jurisdiction thereafter for the balance of the 180-day discretionary period, and imposed certain conditions and reporting requirements during that period. The Panel determined to continue the listing of our shares of common stock on the Nasdaq Capital Market, partially based upon our assurances that it had a high level of confidence that it will receive the funding needed.

To that end, we completed the June Offering, the July Preferred Offering and the July Common Offering. As a receiving result of receiving aggregate gross proceeds of $4,200,000 from such offerings, we are currently in compliance the minimum $2,500,000 stockholder equity requirement. Although we have regained compliance with the minimum $2,500,000 stockholder equity requirement, there can be no assurance that we will be able to maintain compliance with the requirements for listing our common stock on the Nasdaq Capital Market. The failure to maintain our listing on the Nasdaq Capital Market could have an adverse effect on the market price and liquidity of our shares of common stock.

Reason for Stockholder Approval

As a result of being listed for trading on the Nasdaq Capital Market, issuances of our common stock are subject to the Nasdaq Stock Market Rules, including Nasdaq Marketplace Rule 5635(d).

Nasdaq Marketplace Rule 5635(d) requires stockholder approval in connection with a transaction other than a public offering involving the sale, issuance, or potential issuance by the issuer of common stock (or securities convertible into or exercisable for common stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for a price that is less than the lower of: (i) the closing price (as reflected on Nasdaq.com) immediately preceding the signing of the binding agreement; or (ii) the average closing price of the common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of the binding agreement. The issuance of the Series E Preferred Stock may be deemed to involve the issuance of securities convertible into more than 20% of the Company’s outstanding common stock for a price that is less than the lower of: (i) the closing price (as reflected on Nasdaq.com) immediately preceding the signing of the binding agreement; or (ii) the average closing price of the common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of the binding agreement because the conversion price for the Series E Preferred Stock is $2.00 per share. If we do not obtain stockholder approval of this Proposal One, our existing investors who were the sole investors in the June Offering and the July Preferred Offering most likely will be unwilling to further fund our business going forward. The loss of this funding source could materially and adversely affect our ability to raise additional capital in the future. If we are unable to access other sources of capital on acceptable terms, our operating capital may be materially reduced, which could materially and adversely affect our results of operations. Any negative impact on our results of operations due to our having reduced operating capital could negatively affect the market value of our common stock. Additionally, if Proposal One is not approved, and we fail to meet Nasdaq’s minimum $2,500,000 stockholders’ equity requirement, such existing investors may be less likely to purchase additional equity securities of the Company in order for us to regain compliance with Nasdaq’s minimum stockholder’s equity requirement and, if we cannot raise capital from other sources, our shares of common stock may be delisted from the Nasdaq Capital Market.

Under the terms of the Securities Purchase Agreements for each of the June Offerings and the July 2019 Offerings, we agreed to obtain approval of our stockholders for the issuance of the shares of common stock issuable upon conversion of the Series E Preferred Stock.

Accordingly, we are requesting in this Proposal One that our stockholders approve, in accordance with Nasdaq Marketplace Rule 5635(d), the issuance of shares of our common stock upon the conversion of the Series E Preferred Stock and the shares of our common stock issuable upon conversion of the Series E Preferred Stock issuable upon exercise of warrants.

Potential Adverse Effects – Dilution and Impact of the Offering on Existing Stockholders

The issuance of the Series E Preferred Stock and the issuance of the Series E Preferred Stock upon exercise of the warrants could have a dilutive effect on current stockholders who did not participate in the June Offering or the July Preferred Offering in that the percentage ownership of the Company held by such current stockholders will decline as a result of the issuance of our common stock issuable upon the conversion and of the Series E Preferred Stock. This means also that current stockholders who did not participate in the June Offering and the July Preferred Offering will own a smaller interest in the Company as a result of such offerings and will therefore have less ability to influence significant corporate decisions requiring stockholder approval. Issuance of our common stock issuable upon conversion of the Series E Preferred Stock could also have a dilutive effect on book value per share and any future earnings per share. Dilution of equity interests could also cause prevailing market prices for our common stock to decline.

The conversion price is subject to adjustment under certain circumstances in accordance with the Amended and Restated Certificate of Designations as follows:

In addition to the foregoing, the increase in the number of shares of our common stock issued in connection with the conversion of the Series E Preferred Stock may have an incidental anti-takeover effect in that the additional shares of our common stock issued could dilute the stock ownership of parties seeking to obtain control of us. The increased number of issued shares could discourage the possibility of, or render more difficult, certain mergers, tender offers, proxy contests or other change of control or ownership transactions. However, we currently know of no specific effort to accumulate our securities or to gain control of the Company by means of a merger, tender offer, solicitation in opposition to management or otherwise.

Effect on Current Stockholders if this Proposal is Not Approved

If our stockholders do not approve this Proposal One, then the Series E Preferred Stock will not be convertible into shares of our common stock. Our ability to successfully implement our business plans and ultimately generate value for our stockholders is dependent on our ability to maximize capital raising opportunities. If Proposal One is approved by our stockholders, the existing investors who were the sole investors in both financings will be more likely to further fund our business in the future if we need additional capital.

If Proposal One is approved by our stockholders, and the Company does not meet Nasdaq’s minimum stockholders’ equity requirement, the existing investors who were the sole investors in both financings will be more likely to purchase additional equity securities of the Company in order to regain compliance with Nasdaq’s minimum stockholders’ equity requirement. If Proposal Three is not approved by our stockholders, and the Company does not meet Nasdaq’s minimum stockholders’ equity requirement, such existing investors will be less likely to purchase additional equity securities of the Company and if we continue to fail to meet the minimum $2,500,000 stockholders’ equity requirement, our shares of common stock may be delisted from the Nasdaq Capital Market.

A delisting of our common stock from the Nasdaq Capital Market could materially reduce the liquidity of our common stock and result in a corresponding material reduction in the price of our common stock. In addition, delisting could harm our ability to raise capital through alternative financing sources on terms acceptable to us, or at all, and may result in the potential loss of confidence by investors, suppliers, customers and employees and fewer business development opportunities.

Vote Required

Approval of this Proposal One requires the affirmative vote a majority of the shares of common stock and Series C Preferred Stock present or represented by proxy and entitled to vote at the Special Meeting. The NYSE has confirmed that this proposal is a “non-routine” matter on which brokers may not vote without instruction from beneficial owners. Abstentions and broker non-votes will have no effect on the vote on this proposal.

Our Board recommends that stockholders vote “FOR” approval of Proposal One.

PROPOSAL TWO

APPROVE, IN ACCORDANCE WITH NASDAQ MARKETPLACE RULE 5635(C), THE ISSUANCE OF(i)SHARES OFOURCOMMON STOCKAND (ii) SHARES OF OUR COMMON STOCK ISSUABLE UPON EXERCISE OF WARRANTS, IN EACH CASE, TO A DIRECTOR OF THE COMPANY

General Description of Proposal

The stockholders of the Company are being asked to approve, in accordance with Nasdaq Marketplace Rule 5635(c), the issuance of(i)shares of our common stockand (ii) shares of our common stock issuable upon exercise of warrants, in each case,to a director of the Company.

Description of the Offering

On August 27, 2019, we entered into and closed a private placement Securities Purchase Agreement with Christopher Fashek, a director of the Company relating to the sale of 25,000 shares of our common stock, and seven year warrants to purchase 25,000 shares of our common stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00 (the “Affiliated Offering”) for gross proceeds of $50,000 (excluding the exercise of the warrants issued in the Affiliated Offering) (the “Affiliated Proceeds”). The Company and Mr. Fashek have agreed to place the Affiliated Proceeds in escrow, and not to release the same until such time as stockholder approval of this Proposal Two is obtained, as required under Nasdaq Marketplace Rule 5635(c).

Use of Proceeds

We expect to use the proceeds from the from the sale of the Affiliated Offering for working capital and other general corporate purposes.

Registration Rights

We have also agreed to prepare and file with the SEC within 60 days of after the date that the stockholders approve this Proposal Two a registration statement covering the resale of the shares of our common stock purchase by Mr. Fashek and the number of shares of common stock issuable upon exercise of warrants, and cause such registration statement to become effective under the Securities Act, within 120 days of the date that the stockholders approve this Proposal Two if there is no review of the registration statement by the SEC or within 150 days of the date that the stockholders approve this Proposal Two if there is a review of the registration statement by the SEC. If the registration statement (i) is not filed within 60 days after the date that the stockholders approve this Proposal Two, (ii) is not declared effective within 120 days (or 150 days, as applicable) of the date that the stockholders approve this Proposal Two, or (iii) ceases for any reason to be effective at any time prior to the expiration of its effectiveness period (as defined in the securities purchase agreement) for more than 20 consecutive trading days in any 12 month period, then we are required to pay to Mr. Fashek an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the purchase price paid by Mr. Fashek for the common stock per month until the registration statement is filed or declared effective (as applicable); provided that the total amount of payments shall not exceed 5% of the aggregate purchase price of the common stock and warrants.

Reason for the Offerings

See “PROPOSAL ONE – “Reasons for the Offerings.”

Reasons for Stockholder Approval

Nasdaq Marketplace Rule 5635(c) deems the issuance of common stock, or securities convertible into or exercisable for common stock, to a Nasdaq-listed company’s officers, directors, employees or consultants in a private placement at a price less than the market value of such stock, calculated as the closing bid price for such shares on the trading day immediately prior to entry into the agreement, as equity compensation requiring stockholder approval. The Securities Purchase Agreement provides for the sale and/or issuance of securities to the Mr. Fashek at a price that is less than the closing bid price of our Common Stock as reported on the Nasdaq Stock Market on the trading day immediately prior to the date of the Securities Purchase Agreement. As a result, stockholder approval of the issuance of the shares our common stock and warrants to purchase our common stock to Mr. Fashek, and receipt by the Company of the Affiliated Proceeds, is required pursuant to Rule 5635(c).

If stockholder approval is not obtained, the Purchase Agreement will terminate and Mr. Fashek’s investment will be released from escrow and returned back to him, and the Mr. Fashek will not be permitted to the 25,000 shares of our common stock and warrants to purchase 25,000 shares of our common stock. We would therefore not receive the Affiliated Proceeds.

When you consider our Board’ recommendation to vote in favor of Proposal Two, you should be aware that certain of our directors and our officers may have interests that may be different from, or in addition to, the interests of other stockholders. In particular, if stockholder approval is obtained, the Mr. Fashek will purchase securities at a price that was below the closing bid price of our common stock on the day prior to the execution of the Securities Purchase Agreement.

Potential Adverse Effects – Dilution and Impact of the Offering on Existing Stockholders

The issuance of our common stockand warrants to purchase our common stockin the Affiliated Offeringwill have a dilutive effect on current stockholders in that the percentage ownership of the Company held by such current stockholders will decline as a result of the issuance of our common stock. This means also that current stockholders will own a smaller interest in the Company as a result of such offerings and will therefore have less ability to influence significant corporate decisions requiring stockholder approval. Issuance of our common stockand warrants to purchase our common stock in the Affiliated Offering could also have a dilutive effect on book value per share and any future earnings per share. Dilution of equity interests could also cause prevailing market prices for our common stock to decline.

Vote Required

Approval of this Proposal Two requires the affirmative vote a majority of the shares of common stock and Series C Preferred Stock present or represented by proxy and entitled to vote at the Special Meeting. The NYSE has confirmed that this proposal is a “non-routine” matter on which brokers may not vote without instruction from beneficial owners. Abstentions and broker non-votes will have no effect on the vote on this proposal.

Our Board recommends that stockholders vote “FOR” approval of Proposal Two.

PROPOSAL THREE

APPROVE AN AMENDMENT OF OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE AUTHORIZED PREFERRED STOCK OF THE COMPANY FROM 5,000,000 SHARES TO 11,000,000 SHARES

General Description of Proposal

The total number of shares of all classes of stock which we have the authority to issue is 25,000,000, consisting of 20,000,000 shares of common stock and 5,000,000 shares of preferred stock. On September 4, 2019, the Board approved, and recommends that the stockholders adopt, an amendment to FOURTH A of our Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate of Incorporation”) to increase the total number of authorized shares of preferred stock from 5,000,000 to 11,000,000, substantially the form attached hereto as Appendix A.

Reasons for the Amendment to the Certificate of Incorporation

As of August 20, 2019, (i) 4,429,964 shares of our common stock were issued and outstanding; (ii) 3,000,000 shares of our Series C Preferred Stock were authorized and designated, of which 2,733,142 were issued and outstanding, and 266,858 were reserved for issuance pursuant to outstanding warrants; (iii) 506 shares of our Series D Preferred Stock were authorized and designated, all of which were issued and outstanding; and (iv) 1,999,494 shares of our Series E Preferred Stock were authorized and designated, of which 1,810,000 were issued and outstanding and 180,494 were reserved for issuance pursuant to certain of the warrants issued in the June Offering. As of August 20, 2019, we had warrants to purchase an additional 901,809 shares of Series C Preferred Stock and warrants to purchase an additional 1,629,506 shares of Series E Preferred Stock, which shares of Series C Preferred Stock and Series E Preferred Stock will only be issued if this Proposal Three is approved by the stockholders and the warrants are exercised by the holders thereof. With respect to the warrants to purchase 901,809 shares of Series C Preferred Stock, upon exercise of such warrants, the holders of such warrants have the option of receiving either 901,809 shares of our common stock or 901,809 shares of Series E Preferred Stock.

The Board believes approval of this Proposal Three is in the best interests of the Company and its stockholders. The authorization of additional shares of preferred stock will enable us to meet our obligations under our outstanding warrants, while retaining flexibility to issue additional shares of preferred stock in order to respond to future business needs and opportunities. For example, the additional shares of preferred stock may be used for financing the Company’s business, for acquiring other businesses, or for forming strategic partnerships and alliances. The Company explores opportunities for strategic transactions that could result in the issuance of preferred stock, including equity capital raises, as they arise or as the Company’s needs require. Although the Company frequently reviews various transactions, the Company has no current agreement or commitment to issue additional shares of its preferred stock, except for issuances of common stock upon the exercise of its outstanding warrants, as we as the conversion of its outstanding notes.

If this Proposal Three is approved by the stockholders, upon the effective date of the amendment to the Amended and Restated Certificate of Incorporation, the Company would have 3,468,685 shares of preferred stock authorized and available for future issuance (assuming the exercise of all outstanding warrants to purchase Series C Preferred Stock and Series E Preferred Stock). If this Proposal Three is not approved by the stockholders, the number of authorized shares of preferred stock of the Company will remain at five million and the Company would have no shares of preferred stock that remained authorized and available for future issuance.

Other than satisfying our obligations under our outstanding warrants, the Board has no immediate plans, understandings, agreements or commitments to issue additional shares of preferred stock for any purposes.

Terms of the Series C Preferred Stock

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

In the event of liquidation, dissolution, or winding up, each holder of Series C Preferred Stock could elect to receive either (i) in preference to any payments made to the holders of Common stock and any other junior securities, a payment for each share of Series C Preferred Stock then held equal $0.001, plus an additional amount equal to any dividends declared but unpaid on such shares, and any other fees or liquidated damages then due and owing thereon or (ii) the amount of cash, securities or other property to which such holder would be entitled to receive with respect to each share of Series C Preferred Stock if such share of Series C Preferred Stock had been converted to common stock immediately prior to such liquidation, dissolution, or winding up (without giving effect to any conversion limitations).

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

Each holder of Series C Preferred stock is entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Series C Preferred Stock held by such holder are then convertible (subject to the beneficial ownership limitations) with respect to any and all matters presented to the stockholders for their action or consideration. Holders of Series C Preferred Stock vote together with the holders of common stock as a single class, except as provided by law and except that the consent of holders of a majority of the outstanding Series C Preferred Stock is required to amend the terms of the Series C Preferred Stock.

Terms of the Series E Preferred Stock

A summary of the terms of the Series E Preferred Stock are set forth above under the heading “PROPOSAL ONE:– Terms of the Series E Preferred Stock.”

Potential Effect

Generally, shares of preferred stock are senior to common stock within a company’s capital structure and offer a priority claim on the company’s cash flow. However, authorizing us to issue more shares of preferred stock than currently authorized by the Amended and Restated Certificate of Incorporation will not affect materially any substantive rights, powers or privileges of our stockholders. Our Board will determine the terms of any shares of preferred stock to be authorized, including dividend or interest rates, conversion prices, voting rights, redemption prices, maturity dates and similar matters. The additional shares of preferred stock for which authorization is sought are identical to the shares of our preferred stock now authorized. The issuance of shares of preferred stock may, among other things, have a dilutive effect on the earnings per share and on the equity and voting power of existing stockholders and may adversely affect the market price for our common stock. On the other hand, if we do not receive stockholder approval on this Proposal Three, we may be hindered in our ability to raise capital to pursue new investment opportunities that could be beneficial to us and our stockholders. This reduced flexibility would also put us at a competitive disadvantage to our peers, many of whom have been able to complete offerings of preferred stock.

Additionally, if this Proposal Three is not approved by our stockholders, and, in the future, the Company does not meet Nasdaq’s minimum $2,500,000 stockholders’ equity requirement, our existing stockholders who purchased shares of Series E Preferred Stock in the June Offering and the July Offering will be less likely to purchase additional equity securities of the Company, and if we fail to meet the minimum stockholders’ equity requirement, our shares of common stock may be delisted from the Nasdaq Capital Market.

The issuance of shares of preferred stock could enable the Board to discourage an attempt to obtain control of us by diluting the interest of a bidder for us. Also, shares of preferred stock could be issued to render more difficult a merger or similar transaction. The Board is not aware of any attempt, or contemplated attempt, to acquire control of the Company, and the amendment to the Amended and Restated Certificate of Incorporation is not being presented with the intent that it be utilized as a type of anti-takeover device or to secure management’s positions within the Company.

Warrants to Purchase Series C Preferred Stock

From February 2017 to July 2019, in connection with bridge financings, the Company has issued seven-year warrants to purchase an aggregate of 3,901,809 Series C Preferred Stock. The warrants have exercise prices ranging from $2.00 per share to $6.00 per share.

Warrants to Purchase Series E Preferred Stock

On June 21, 2019, we closed the June Offering pursuant to which we issued and sold to certain existing stockholders 1,600,000 shares of our Series E Preferred Stock, and seven year warrants to purchase 1,600,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00, for aggregate gross proceeds of $3,200,000 (excluding the exercise of the warrants issued in the June Offering).

On July 31, 2019, we closed the July Preferred Offering pursuant to which we issued and sold to certain existing investors 210,000 shares of Series E Preferred Stock and seven year warrants to purchase 210,000 shares of our Series E Preferred Stock at an exercise price of $2.50 per share, at a purchase price per unit of $2.00, for gross proceeds of $420,000 (excluding the exercise of the warrants issued in the July Preferred Offering).

As described above under “Proposal One – Reasons for the Offerings” we completed the June Offering, the July Preferred Offering and the July Common Offering in order to regain compliance with the minimum $2,500,000 stockholders’ equity requirement for continued listing on the Nasdaq Capital Market. Following the completion of these offerings, we regained compliance with this Nasdaq rule. Although we have regained compliance with the minimum $2,500,000 stockholder equity requirement, there can be no assurance that we will be able to maintain compliance with the requirements for listing our common stock on the Nasdaq Capital Market. The failure to maintain our listing on the Nasdaq Capital Market could have an adverse effect on the market price and liquidity of our shares of common stock.

Effectiveness of the Amendment

If this Proposal Three is approved by our stockholders, it will become effective upon the filing of a Certificate of Amendment to the Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware.

Consequences of Failure to Obtain Stockholder Approval

If the Proposal Three is not approved by our stockholders, and the Company does not continue to meet Nasdaq’s minimum $2,500,000 stockholders’ equity requirement, our existing stockholders who were the sole investors in the June Offering and the July Preferred Offering will be less likely to purchase additional equity securities of the Company. If we fail to meet the minimum stockholders’ equity requirement, our shares of common stock may be delisted from the Nasdaq Capital Market.

Additionally, if Proposal Three is not approved by our stockholders, it may impede the Company’s ability to raise capital should the need arise, and may cause the loss of significant business opportunities, which could adversely affect our financial performance, growth and ability to continue our operations. The Board is not aware of any attempt, or contemplated attempt to acquire control of the Company, and does not intend or view the proposed increase in authorized preferred stock to be an anti-takeover measure.

Other Potential Effects of the Proposed Amendment

The authorization of additional shares of preferred stock will not, by itself, have any effect on the rights of present stockholders (other than the 2,531,315 shares of Series E Preferred Stock that is issuable upon the exercise of warrants issued in the June Offering and the July Preferred Offering). The additional 3,468,685 shares of Preferred Stock to be authorized will be “blank check” serial preferred stock. This type of preferred stock allows the Board to issue one or more series of the preferred stock, from time to time, with full, limited or no voting powers, and to fix all of the designations, preferences and relative, participating, optional or special voting rights, and qualifications, limitations or other restrictions upon the Preferred Stock, as will be provided in an amendment to our Amended and Restated Certificate of Incorporation adopted by the Board.

Under the Amended and Restated Certificate of Incorporation, the Company’s stockholders do not have preemptive rights to subscribe for additional shares of capital stock which may be issued by the Company, which means that current stockholders do not have a prior right to purchase any new issue of capital stock of the Company in order to maintain their proportionate ownership of such shares. In addition, if the Board elects to issue additional shares of preferred stock, such issuance could have a dilutive effect on the earnings per share, voting power and holdings of current stockholders.

Vote Required

Approval of this Proposal Two requires the affirmative vote of the holders of a majority of the shares of Common Stock and Series C Preferred Stock outstanding (subject to beneficial ownership limitations) on this Proposal Three as of the record date for the Special Meeting. The NYSE has confirmed that this proposal is a “routine” matter on which brokers may vote without instruction from beneficial owners. Therefore, there will be no broker non-votes with respect to this proposal. Abstentions will have the effect of a vote “AGAINST” this proposal.

Our Board recommends that stockholders vote “FOR” approval of Proposal Three.

Proposal4 

APPROVE AN ADJOURNMENT OF THE SPECIAL MEETING, IF NECESSARY, TO SOLICIT
ADDITIONAL PROXIES IF THERE ARE NOT SUFFICIENT VOTES IN FAVOR OF

PROPOSAL ONE, PROPOSAL TWO AND/OR PROPOSAL THREE

At the Special Meeting, if necessary, stockholders will vote on this Proposal Four. If this Proposal Four is adopted, the Board will have the discretion to adjourn the Special Meeting to a later date or dates to permit further solicitation of proxies in the event that there are not sufficient votes at the time of the Special Meeting to approve Proposal One, Proposal Two and/or Proposal Three. It is possible for us to obtain sufficient votes to approve this Proposal Four but not receive sufficient votes to approve Proposal One, Proposal Two and/or Proposal Three. In such a situation, the Company could adjourn the meeting for any number of days or hours as permitted under applicable law and attempt to solicit additional votes in favor of Proposal One, Proposal Two and/or Proposal Three.

In addition to an adjournment of the Special Meeting upon approval of this Proposal Four, if a quorum is not present at the Special Meeting, the Company’s bylaws allow the Special Meeting to be adjourned for the purpose of obtaining a quorum. Any such adjournment may be made without notice, other than the announcement made at the Special Meeting, by the affirmative vote of a majority of the shares of common stock andSeries C Preferred Stock present in person or by proxy and entitled to vote at the Special Meeting. The Board also is empowered under Delaware law to postpone the meeting at any time prior to the meeting being called to order. In such event, the Company would issue a press release and take such other steps as it believes are necessary and practical in the circumstances to inform its stockholders of the postponement.

If the stockholders approve this Proposal Four, and the Special Meeting is adjourned, the Company expects to use the additional time to solicit additional proxies in favor of Proposal One, Proposal Two and/or Proposal Three.

This Proposal Four will only be presented at the Special Meeting if there are not sufficient votes represented in person or by proxy for Proposal One, Proposal Two and/or Proposal Three. If this Proposal Four is presented at the Special Meeting and is not approved, the Company may not be able to adjourn the Special Meeting to a later date.

Approval of this Proposal Four requires the affirmative vote of the holders of a majority of the shares casting votes in person or by proxy on such proposal at the Special Meeting (assuming a quorum is present). The NYSE has confirmed that this proposal is a “non-routine” matter on which brokers may not vote without instruction from beneficial owners. Abstentions and broker non-votes will have no effect on the vote on this proposal (assuming a quorum is present).

Our Board recommends that stockholders vote “FOR” approval of Proposal Four.

OTHER BUSINESS

The Board knows of no other business to be brought before the Special Meeting. If, however, any other business should properly come before the Special 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

PursuantAs previously stated in the Company’s proxy statement filed with SEC on June 15, 2020 for our Annual Meeting held on August 11, 2020, pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (“Rule 14a-8”14a-8”), a stockholder who intendsintended to present a proposal at our next annual meeting of stockholders and who wishes thewished to include such proposal to be included in the proxy statement for that meeting mustwas required to submit the proposal in writing no later than January 1, 2020,February 15, 2021, after which date such stockholder proposal will be considered untimely. Such proposal must behave been submitted to the attention of Secretary, at our corporate offices at 525 Executive Blvd, Elmsford, NY 10523. The deadline to submit such proposal has passed and a shareholder may no longer submit a proposal under Rule 140-8 for our next annual meeting in the absence of further notice from the Company.

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’sthe proxy statement for such meeting 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 February13, 2019April 13, 2021 and no later than the close of business on March 15, 2019.May 13, 2021. 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.

AOTHER MATTERS

The persons designated to vote shares covered by our proxies intend to exercise their judgment in voting such shares on other matters that may properly come before the Special Meeting or any adjournment, continuation or postponements thereof. Management does not expect that any matters other than those referred to in this proxy statement will be presented for action at the Special Meeting or any adjournment, continuation or postponements thereof.

STOCKHOLDERS SHARING THE SAME ADDRESS

The SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy delivery requirements for Special Meeting materials with respect to two or more stockholders sharing the same address by delivering a single set of Special Meeting materials addressed to those stockholders. This process, commonly referred to as “householding,” potentially provides extra convenience for stockholders and cost savings for companies. Because we utilize the “householding” rules for Special Meeting materials, stockholders who share the same address will receive only one copy of our 2018 Annual Report on Form 10-K is available without charge (except for exhibits, whichthe Special Meeting materials, unless we receive contrary instructions from any stockholder at that address. If you prefer to receive multiple copies of the Special Meeting materials at the same address you share with other stockholders, additional copies will be provided to you promptly upon request. If you are available upon paymenta stockholder of a reasonable fee) upon written request to NanoVibronix,record, you may obtain additional copies at the same address you share with other stockholders by contacting Broadridge Financial Solutions, Inc., Attention: Chief Executive Officer, 525 Executive Blvd, Elmsford, NY 10523.

either by calling (866) 540-7095, or by writing to Broadridge Householding Department, 51 Mercedes Way, Edgewood, New York 11717. Eligible stockholders of record receiving multiple copies of the Special Meeting materials can request householding by contacting Broadridge Financial Solutions, Inc. in the same manner. If you are a beneficial owner and hold your shares in a brokerage or custody account, you can request additional copies of the Special Meeting materials at the same address you share with other stockholders or you can request householding by notifying your broker, bank or other nominee.

AppendixAPPENDIX A

CERTIFICATE OF AMENDMENT

OF

THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

NANOVIBRONIX, INC.

PursuantWHEREAS, as of December 3, 2020, NanoVibronix, Inc. (the “Company”) had 20,000,000 authorized shares of common stock, $0.001 par value (“Common Stock”) and 19,850,014 shares of Common Stock outstanding, resulting in 149,986 shares of Common Stock being available for issuance;

WHEREAS, on December 4, 2020, certain holders of the Company’s Series C Convertible Preferred Stock (“Series C Preferred Stock”) converted 396,509 shares of Series C Preferred Stock into 396,509 shares of Common Stock, resulting in an overissue of 246,523 shares of Common Stock as more particularly described on Exhibit A attached hereto and incorporated herein;

WHEREAS, beginning on December 15, 2020, through January 22, 2021, certain holders of warrants the Company had issued in December 2020 (the “December 2020 Warrants”) exercised a portion of the December 2020 Warrants for 2,657,144 shares of Common Stock, resulting in an additional overissue of 2,657,144 shares of Common Stock, as more particularly described on Exhibit B attached hereto and incorporated herein;

WHEREAS, on January 22, 2020, a holder of warrants the Company had previously issued in various offerings (the “Pre-Existing Warrants”) exercised a portion of the Pre-Existing Warrants for 1,205,968 shares of Common Stock, resulting in an additional overissue of 1,205,968 shares of Common Stock, as more particularly described on Exhibit C attached hereto and incorporated herein. The aggregate number of shares of Common Stock that has been overissued by the Company is 4,109,635.

WHEREAS, the Company’s Board of Directors, in consultation with counsel, has determined that it is in the best interests of the Company and its stockholders to ratify an increase in the number of authorized shares of the Company’s Common Stock from 20,000,000 to 24,109,635, an increase of 4,109,635 shares (the “Authorized Share Increase”), and the issuance of 4,109,635 shares of Common Stock (the “Authorized Share Increase Issuance”) upon the conversion of certain shares of Series C Preferred Stock and the exercise of certain December 2020 Warrants and Pre-Existing Warrants pursuant to Section 242204 of the Delaware General Corporation Law (the “DGCL”) and Delaware common law to eliminate any uncertainty related to the effectiveness of the Stateissuance of Delaware, NanoVibronix, Inc.such putative shares of Common Stock (the “Share Increase Ratification”), a corporation organized under and existingsuch ratification, if the Share Increase Ratification is approved by virtueour stockholders and becomes effective, will be retroactive to December 4, 2020, which was the date of the General Corporation Law of the State of Delaware (“DGCL”), DOES HEREBY CERTIFY:first such overissue; and

1.       The nameWHEREAS, any claim that the ratification of a defective corporate act under Section 204 of the corporationDGCL is NanoVibronix, Inc. (the “Corporation”)void or voidable as a defective corporate act (as defined in Section 204(h) of the DGCL) due to the failure(s) of authorization, or that the Delaware Court of Chancery should declare, in its discretion, that the ratification thereof in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions, must be brought within the later of 120 days from the relevant validation effective time (which in the case of the Share Increase Ratification shall be the date on which the certificate of validation in expect of the Authorized Share Increase and Authorized Share Increase Issuance is filed with the Secretary of State and becomes effective in accordance with the DGCL).

2.       The dateNOW, THEREFORE, BE IT RESOLVED, that the potentially defective corporate acts to be ratified by these resolutions are (i) the overissue of filing246,523 shares of Common Stock in connection with the originalSeries C Preferred Stock conversions on the dates and in the amounts as described in Exhibit A, (ii) the overissue of 2,657,144 shares of Common Stock in connection with the exercise of the December 2020 Warrants on the dates and in the amounts as described on Exhibit B, and (iii) the overissue of 1,205,968 shares of Common Stock in connection with the exercise of the Pre-Existing Warrants on the dates and in the amounts as described on Exhibit C;

RESOLVED FURTHER, that the nature of the alleged failures of authorization of the potentially defective acts are:

(i) the overissue of putative shares of Common Stock as more particularly described on Exhibit A, Exhibit B and Exhibit C in excess of the number of authorized shares of Common Stock as set forth in the Company’s Amended and Restated Certificate of Incorporation; and

(ii) the failure of the Company to have amended the Company’s Amended and Restated Certificate of Incorporation to increase the number of this Corporationauthorized shares of the Company’s Common Stock prior to such overissues.

RESOLVED FURTHER, that the Board of Directors hereby approves, adopts and authorizes, in all respects, the ratification of the potentially defective corporate acts identified above, those being the overissue of shares of Common Stock as described on Exhibit A, Exhibit B and Exhibit C, and the failure of the Company to have amended its Amended and Restated Certificate of Incorporation to increase the number of authorized shares of Common Stock prior to such overissues (collectively, the “Potentially Defective Corporate Acts”), pursuant to Section 204 of the DGCL.

Submission to Stockholders for Ratification

RESOLVED FURTHER, that the Board of Directors hereby directs that the Potentially Defective Corporate Acts shall be submitted to the stockholders of the Company at a special meeting of the stockholders (the “Special Meeting”) to ratify such acts under Section 204 of the DGCL and under common law, and the Board of Directors hereby recommends that the stockholders ratify the Potentially Defective Corporate Acts; and

RESOLVED FURTHER, that the record date for determining the stockholders entitled to notice of and to vote at the Special Meeting shall be the close of business on February 23, 2021 (unless the Board of Directors subsequently fixes a different record date for such purposes);

RESOLVED FURTHER, that in connection with submitting the Potentially Defective Corporate Acts to the stockholders of the Company for ratification, the Board of Directors hereby authorizes and directs each officer of the Company (acting alone) to provide notice to the Company’s stockholders (and all other persons entitled thereto) in accordance with Section 204(d) of the DGCL and, in connection therewith, each such officer is authorized to (among other things) include (i) proposals relating to such ratification by the stockholders in the Company’s Notice of Meeting for the Special Meeting, and in any proxy statement, proxy card, other proxy materials or voting instruction forms related thereto, and (ii) include in such Notice of Meeting (and related proxy materials) any other matter that is required by Section 204 of the DGCL.

Abandonment

RESOLVED FURTHER, that at any time before the “validation effective time,” as such term in used in Section 204 of the DGCL, in respect of the Potentially Defective Corporate Acts, notwithstanding approval of the ratification of such Potentially Defective Corporate Acts by stockholders of the Company, the Board of Directors may abandon the ratification of such Potentially Defective Corporate Acts without further action of the stockholders of the Company.

Authorization to Prepare and File Certificates of Validation

RESOLVED FURTHER, that, following the ratification by the stockholders of the Company of the Potentially Defective Corporate Acts, each officer of the Company (acting alone) is hereby authorized to execute one or more certificates of validation in respect of such Potentially Defective Corporate Acts and to cause such certificate(s) of validation to be filed with the Secretary of State of the State of Delaware, was October 20, 2003.with such certificate(s) of validation to be in such form and filed at such time as any such officer may deem advisable (the advisability of which shall be conclusively evidenced by the execution and filing of such certificate(s) of validation).

Common Law Ratification

RESOLVED FURTHER, that in addition to the ratification permitted by Section 204 of the DGCL, the Board of Directors hereby approves, adopts, confirms and ratifies the Potentially Defective Corporate Acts for all purposes of, and to the fullest extent permitted by, the common law of Delaware or any other applicable law.

3.       FOURTH AGeneral Enabling Resolution

RESOLVED FURTHER, that the officers of the AmendedCompany are hereby authorized, empowered and Restated Certificatedirected in the name and on behalf of Incorporationthe Company, to do and cause to be done all such acts and things and to execute, deliver and perform obligations under all instruments, certificates, agreements and documents, and take whatever action is hereby amendeddeemed necessary or advisable to read as follows:comply with all applicable state and federal laws and to take such other action deemed necessary to carry out the intent of the above-listed resolutions.

EXHIBIT A

“FOURTH: A. The total number of shares of all classes of stock which the Corporation shall have authority to issue is thirty one million (31,000,000), consisting of twenty million (20,000,000)following shares of Common Stock par value $0.001 per share (the “Common Stock”) and eleven million (11,000,000)were issued upon the exercise of certain shares of Series C Preferred Stock par value $0.001 per share (the “Preferred Stock”).”

4.       The foregoing amendment was effected pursuant to a resolutionon the dates, and in the respective number 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:                   , 2019

NANOVIBRONIX, INC.

Subject to completion, dated September 4, 2019shares, set forth below:

Important Notice Regarding the Availability of Proxy Materials for the Special Meeting:
The Notice & Proxy Statement are available at www.proxyvote.com

Appendix A - Ex. A

EXHIBIT B

The following shares of Common Stock were issued upon the exercise of certain December 2020 Warrants on the dates, and in the respective number of shares, set forth below:

Appendix A - Ex. B

EXHIBIT C

The following shares of Common Stock were issued upon the exercise of certain Pre-Existing Warrants on the date, and in the respective number of shares, set forth below:

Appendix A - Ex. C

APPENDIX B

§ 204 Ratification of defective corporate acts and stock

(a) Subject to subsection (f) of this section, no defective corporate act or putative stock shall be void or voidable solely as a result of a failure of authorization if ratified as provided in this section or validated by the Court of Chancery in a proceeding brought under § 205 of this title.

(A) The defective corporate act or acts to be ratified;

(B) The date of each defective corporate act or acts;

(C) If such defective corporate act or acts involved the issuance of shares of putative stock, the number and type of shares of putative stock issued and the date or dates upon which such putative shares were purported to have been issued;

(D) The nature of the failure of authorization in respect of each defective corporate act to be ratified; and

(E) That the board of directors approves the ratification of the defective corporate act or acts.

Such resolutions may also provide that, at any time before the validation effective time in respect of any defective corporate act set forth therein, notwithstanding the approval of the ratification of such defective corporate act by stockholders, the board of directors may abandon the ratification of such defective corporate act without further action of the stockholders. The quorum and voting requirements applicable to the ratification by the board of directors of any defective corporate act shall be the quorum and voting requirements applicable to the type of defective corporate act proposed to be ratified at the time the board adopts the resolutions ratifying the defective corporate act; provided that if the certificate of incorporation or bylaws of the corporation, any plan or agreement to which the corporation was a party or any provision of this title, in each case as in effect as of the time of the defective corporate act, would have required a larger number or portion of directors or of specified directors for a quorum to be present or to approve the defective corporate act, such larger number or portion of such directors or such specified directors shall be required for a quorum to be present or to adopt the resolutions to ratify the defective corporate act, as applicable, except that the presence or approval of any director elected, appointed or nominated by holders of any class or series of which no shares are then outstanding, or by any person that is no longer a stockholder, shall not be required.

(2) In order to ratify a defective corporate act in respect of the election of the initial board of directors of the corporation pursuant to § 108 of this title, a majority of the persons who, at the time the resolutions required by this paragraph (b)(2) of this section are adopted, are exercising the powers of directors under claim and color of an election or appointment as such may adopt resolutions stating:

(A) The name of the person or persons who first took action in the name of the corporation as the initial board of directors of the corporation;

(B) The earlier of the date on which such persons first took such action or were purported to have been elected as the initial board of directors; and

(C) That the ratification of the election of such person or persons as the initial board of directors is approved.

(c) Each defective corporate act ratified pursuant to paragraph (b)(1) of this section shall be submitted to stockholders for approval as provided in subsection (d) of this section, unless:

(1) (A) No other provision of this title, and no provision of the certificate of incorporation or bylaws of the corporation, or of any plan or agreement to which the corporation is a party, would have required stockholder approval of such defective corporate act to be ratified, either at the time of such defective corporate act or at the time the board of directors adopts the resolutions ratifying such defective corporate act pursuant to paragraph (b)(1) of this section; and

(B) Such defective corporate act did not result from a failure to comply with § 203 of this title; or

(2) As of the record date for determining the stockholders entitled to vote on the ratification of such defective corporate act, there are no shares of valid stock outstanding and entitled to vote thereon, regardless of whether there then exist any shares of putative stock.

(d) If the ratification of a defective corporate act is required to be submitted to stockholders for approval pursuant to subsection (c) of this section, due notice of the time, place, if any, and purpose of the meeting shall be given at least 20 days before the date of the meeting to each holder of valid stock and putative stock, whether voting or nonvoting, at the address of such holder as it appears or most recently appeared, as appropriate, on the records of the corporation. The notice shall also be given to the holders of record of valid stock and putative stock, whether voting or nonvoting, as of the time of the defective corporate act (or, in the case of any defective corporate act that involved the establishment of a record date for notice of or voting at any meeting of stockholders, for action by written consent of stockholders in lieu of a meeting, or for any other purpose, the record date for notice of or voting at such meeting, the record date for action by written consent, or the record date for such other action, as the case may be), other than holders whose identities or addresses cannot be determined from the records of the corporation. The notice shall contain a copy of the resolutions adopted by the board of directors pursuant to paragraph (b)(1) of this section or the information required by paragraphs (b)(1)(A) through (E) of this section and a statement that any claim that the defective corporate act or putative stock ratified hereunder is void or voidable due to the failure of authorization, or that the Court of Chancery should declare in its discretion that a ratification in accordance with this section not be effective or be effective only on certain conditions must be brought within 120 days from the applicable validation effective time. At such meeting, the quorum and voting requirements applicable to ratification of such defective corporate act shall be the quorum and voting requirements applicable to the type of defective corporate act proposed to be ratified at the time of the approval of the ratification, except that:

(1) If the certificate of incorporation or bylaws of the corporation, any plan or agreement to which the corporation was a party or any provision of this title in effect as of the time of the defective corporate act would have required a larger number or portion of stock or of any class or series thereof or of specified stockholders for a quorum to be present or to approve the defective corporate act, the presence or approval of such larger number or portion of stock or of such class or series thereof or of such specified stockholders shall be required for a quorum to be present or to approve the ratification of the defective corporate act, as applicable, except that the presence or approval of shares of any class or series of which no shares are then outstanding, or of any person that is no longer a stockholder, shall not be required;

(2) The approval by stockholders of the ratification of the election of a director shall require the affirmative vote of the majority of shares present at the meeting and entitled to vote on the election of such director, except that if the certificate of incorporation or bylaws of the corporation then in effect or in effect at the time of the defective election require or required a larger number or portion of stock or of any class or series thereof or of specified stockholders to elect such director, the affirmative vote of such larger number or portion of stock or of any class or series thereof or of such specified stockholders shall be required to ratify the election of such director, except that the presence or approval of shares of any class or series of which no shares are then outstanding, or of any person that is no longer a stockholder, shall not be required; and

(3) In the event of a failure of authorization resulting from failure to comply with the provisions of § 203 of this title, the ratification of the defective corporate act shall require the vote set forth in § 203(a)(3) of this title, regardless of whether such vote would have otherwise been required.

Shares of putative stock on the record date for determining stockholders entitled to vote on any matter submitted to stockholders pursuant to subsection (c) of this section (and without giving effect to any ratification that becomes effective after such record date) shall neither be entitled to vote nor counted for quorum purposes in any vote to ratify any defective corporate act.

(e) If a defective corporate act ratified pursuant to this section would have required under any other section of this title the filing of a certificate in accordance with § 103 of this title, then, whether or not a certificate was previously filed in respect of such defective corporate act and in lieu of filing the certificate otherwise required by this title, the corporation shall file a certificate of validation with respect to such defective corporate act in accordance with § 103 of this title. A separate certificate of validation shall be required for each defective corporate act requiring the filing of a certificate of validation under this section, except that (i) 2 or more defective corporate acts may be included in a single certificate of validation if the corporation filed, or to comply with this title would have filed, a single certificate under another provision of this title to effect such acts, and (ii) 2 or more overissues of shares of any class, classes or series of stock may be included in a single certificate of validation, provided that the increase in the number of authorized shares of each such class or series set forth in the certificate of validation shall be effective as of the date of the first such overissue. The certificate of validation shall set forth:

(1) Each defective corporate act that is the subject of the certificate of validation (including, in the case of any defective corporate act involving the issuance of shares of putative stock, the number and type of shares of putative stock issued and the date or dates upon which such putative shares were purported to have been issued), the date of such defective corporate act, and the nature of the failure of authorization in respect of such defective corporate act;

(2) A statement that such defective corporate act was ratified in accordance with this section, including the date on which the board of directors ratified such defective corporate act and the date, if any, on which the stockholders approved the ratification of such defective corporate act; and

(3) Information required by 1 of the following paragraphs:

a. If a certificate was previously filed under § 103 of this title in respect of such defective corporate act and no changes to such certificate are required to give effect to such defective corporate act in accordance with this section, the certificate of validation shall set forth (x) the name, title and filing date of the certificate previously filed and of any certificate of correction thereto and (y) a statement that a copy of the certificate previously filed, together with any certificate of correction thereto, is attached as an exhibit to the certificate of validation;

b. If a certificate was previously filed under § 103 of this title in respect of the defective corporate act and such certificate requires any change to give effect to the defective corporate act in accordance with this section (including a change to the date and time of the effectiveness of such certificate), the certificate of validation shall set forth (x) the name, title and filing date of the certificate so previously filed and of any certificate of correction thereto, (y) a statement that a certificate containing all of the information required to be included under the applicable section or sections of this title to give effect to the defective corporate act is attached as an exhibit to the certificate of validation, and (z) the date and time that such certificate shall be deemed to have become effective pursuant to this section; or

c. If a certificate was not previously filed under § 103 of this title in respect of the defective corporate act and the defective corporate act ratified pursuant to this section would have required under any other section of this title the filing of a certificate in accordance with § 103 of this title, the certificate of validation shall set forth (x) a statement that a certificate containing all of the information required to be included under the applicable section or sections of this title to give effect to the defective corporate act is attached as an exhibit to the certificate of validation, and (y) the date and time that such certificate shall be deemed to have become effective pursuant to this section.

A certificate attached to a certificate of validation pursuant to paragraph (e)(3)b. or c. of this section need not be separately executed and acknowledged and need not include any statement required by any other section of this title that such instrument has been approved and adopted in accordance with the provisions of such other section.

(f) From and after the validation effective time, unless otherwise determined in an action brought pursuant to § 205 of this title:

(1) Subject to the last sentence of subsection (d) of this section, each defective corporate act ratified in accordance with this section shall no longer be deemed void or voidable as a result of the failure of authorization described in the resolutions adopted pursuant to subsection (b) of this section and such effect shall be retroactive to the time of the defective corporate act; and

(2) Subject to the last sentence of subsection (d) of this section, each share or fraction of a share of putative stock issued or purportedly issued pursuant to any such defective corporate act shall no longer be deemed void or voidable and shall be deemed to be an identical share or fraction of a share of outstanding stock as of the time it was purportedly issued.

(g) In respect of each defective corporate act ratified by the board of directors pursuant to subsection (b) of this section, prompt notice of the ratification shall be given to all holders of valid stock and putative stock, whether voting or nonvoting, as of the date the board of directors adopts the resolutions approving such defective corporate act, or as of a date within 60 days after such date of adoption, as established by the board of directors, at the address of such holder as it appears or most recently appeared, as appropriate, on the records of the corporation. The notice shall also be given to the holders of record of valid stock and putative stock, whether voting or nonvoting, as of the time of the defective corporate act, other than holders whose identities or addresses cannot be determined from the records of the corporation. The notice shall contain a copy of the resolutions adopted pursuant to subsection (b) of this section or the information specified in paragraphs (b)(1)(A) through (E) or paragraphs (b)(2)(A) through (C) of this section, as applicable, and a statement that any claim that the defective corporate act or putative stock ratified hereunder is void or voidable due to the failure of authorization, or that the Court of Chancery should declare in its discretion that a ratification in accordance with this section not be effective or be effective only on certain conditions must be brought within 120 days from the later of the validation effective time or the time at which the notice required by this subsection is given. Notwithstanding the foregoing, (i) no such notice shall be required if notice of the ratification of the defective corporate act is to be given in accordance with subsection (d) of this section, and (ii) in the case of a corporation that has a class of stock listed on a national securities exchange, the notice required by this subsection and the second sentence of subsection (d) of this section may be deemed given if disclosed in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to § 13, § 14 or § 15(d) (15 U.S.C. § 78m, § 77n or § 78o(d)) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or the corresponding provisions of any subsequent United States federal securities laws, rules or regulations. If any defective corporate act has been approved by stockholders acting pursuant to § 228 of this title, the notice required by this subsection may be included in any notice required to be given pursuant to § 228(e) of this title and, if so given, shall be sent to the stockholders entitled thereto under § 228(e) and to all holders of valid and putative stock to whom notice would be required under this subsection if the defective corporate act had been approved at a meeting other than any stockholder who approved the action by consent in lieu of a meeting pursuant to § 228 of this title or any holder of putative stock who otherwise consented thereto in writing. Solely for purposes of subsection (d) of this section and this subsection, notice to holders of putative stock, and notice to holders of valid stock and putative stock as of the time of the defective corporate act, shall be treated as notice to holders of valid stock for purposes of §§ 222 and 228, 229, 230, 232 and 233 of this title.

(h) As used in this section and in § 205 of this title only, the term:

(1) “Defective corporate act” means an overissue, an election or appointment of directors that is void or voidable due to a failure of authorization, or any act or transaction purportedly taken by or on behalf of the corporation that is, and at the time such act or transaction was purportedly taken would have been, within the power of a corporation under subchapter II of this chapter (without regard to the failure of authorization identified in § 204(b)(1)(D) of this title), but is void or voidable due to a failure of authorization;

(2) “Failure of authorization” means: (i) the failure to authorize or effect an act or transaction in compliance with (A) the provisions of this title, (B) the certificate of incorporation or bylaws of the corporation, or (C) any plan or agreement to which the corporation is a party or the disclosure set forth in any proxy or consent solicitation statement, if and to the extent such failure would render such act or transaction void or voidable; or (ii) the failure of the board of directors or any officer of the corporation to authorize or approve any act or transaction taken by or on behalf of the corporation that would have required for its due authorization the approval of the board of directors or such officer;

(3) “Overissue” means the purported issuance of:

a. Shares of capital stock of a class or series in excess of the number of shares of such class or series the corporation has the power to issue under § 161 of this title at the time of such issuance; or

b. Shares of any class or series of capital stock that is not then authorized for issuance by the certificate of incorporation of the corporation;

(4) “Putative stock” means the shares of any class or series of capital stock of the corporation (including shares issued upon exercise of options, rights, warrants or other securities convertible into shares of capital stock of the corporation, or interests with respect thereto that were created or issued pursuant to a defective corporate act) that:

a. But for any failure of authorization, would constitute valid stock; or

b. Cannot be determined by the board of directors to be valid stock;

(5) “Time of the defective corporate act” means the date and time the defective corporate act was purported to have been taken;

(6) “Validation effective time” with respect to any defective corporate act ratified pursuant to this section means the latest of:

a. The time at which the defective corporate act submitted to the stockholders for approval pursuant to subsection (c) of this section is approved by such stockholders or if no such vote of stockholders is required to approve the ratification of the defective corporate act, the time at which the board of directors adopts the resolutions required by paragraph (b)(1) or (b)(2) of this section;

b. Where no certificate of validation is required to be filed pursuant to subsection (e) of this section, the time, if any, specified by the board of directors in the resolutions adopted pursuant to paragraph (b)(1) or (b)(2) of this section, which time shall not precede the time at which such resolutions are adopted; and

c. The time at which any certificate of validation filed pursuant to subsection (e) of this section shall become effective in accordance with § 103 of this title.

(7) “Valid stock” means the shares of any class or series of capital stock of the corporation that have been duly authorized and validly issued in accordance with this title.

In the absence of actual fraud in the transaction, the judgment of the board of directors that shares of stock are valid stock or putative stock shall be conclusive, unless otherwise determined by the Court of Chancery in a proceeding brought pursuant to § 205 of this title.

(i) Ratification under this section or validation under § 205 of this title shall not be deemed to be the exclusive means of ratifying or validating any act or transaction taken by or on behalf of the corporation, including any defective corporate act, or any issuance of stock, including any putative stock, or of adopting or endorsing any act or transaction taken by or in the name of the corporation prior to the commencement of its existence, and the absence or failure of ratification in accordance with either this section or validation under § 205 of this title shall not, of itself, affect the validity or effectiveness of any act or transaction or the issuance of any stock properly ratified under common law or otherwise, nor shall it create a presumption that any such act or transaction is or was a defective corporate act or that such stock is void or voidable.

§ 205 Proceedings regarding validity of defective corporate acts and stock

(a) Subject to subsection (f) of this section, upon application by the corporation, any successor entity to the corporation, any member of the board of directors, any record or beneficial holder of valid stock or putative stock, any record or beneficial holder of valid or putative stock as of the time of a defective corporate act ratified pursuant to § 204 of this title, or any other person claiming to be substantially and adversely affected by a ratification pursuant to § 204 of this title, the Court of Chancery may:

(1) Determine the validity and effectiveness of any defective corporate act ratified pursuant to § 204 of this title;

(2) Determine the validity and effectiveness of the ratification of any defective corporate act pursuant to § 204 of this title;

(3) Determine the validity and effectiveness of any defective corporate act not ratified or not ratified effectively pursuant to § 204 of this title;

(4) Determine the validity of any corporate act or transaction and any stock, rights or options to acquire stock; and

(5) Modify or waive any of the procedures set forth in § 204 of this title to ratify a defective corporate act.

(b) In connection with an action under this section, the Court of Chancery may:

(1) Declare that a ratification in accordance with and pursuant to § 204 of this title is not effective or shall only be effective at a time or upon conditions established by the Court;

(2) Validate and declare effective any defective corporate act or putative stock and impose conditions upon such validation by the Court;

(3) Require measures to remedy or avoid harm to any person substantially and adversely affected by a ratification pursuant to § 204 of this title or from any order of the Court pursuant to this section, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated;

(4) Order the Secretary of State to accept an instrument for filing with an effective time specified by the Court, which effective time may be prior or subsequent to the time of such order, provided that the filing date of such instrument shall be determined in accordance with § 103(c)(3) of this title;

(5) Approve a stock ledger for the corporation that includes any stock ratified or validated in accordance with this section or with § 204 of this title;

(6) Declare that shares of putative stock are shares of valid stock or require a corporation to issue and deliver shares of valid stock in place of any shares of putative stock;

(7) Order that a meeting of holders of valid stock or putative stock be held and exercise the powers provided to the Court under § 227 of this title with respect to such a meeting;

(8) Declare that a defective corporate act validated by the Court shall be effective as of the time of the defective corporate act or at such other time as the Court shall determine;

(9) Declare that putative stock validated by the Court shall be deemed to be an identical share or fraction of a share of valid stock as of the time originally issued or purportedly issued or at such other time as the Court shall determine; and

(10) Make such other orders regarding such matters as it deems proper under the circumstances.

(c) Service of the application under subsection (a) of this section upon the registered agent of the corporation shall be deemed to be service upon the corporation, and no other party need be joined in order for the Court of Chancery to adjudicate the matter. In an action filed by the corporation, the Court may require notice of the action be provided to other persons specified by the Court and permit such other persons to intervene in the action.

(d) In connection with the resolution of matters pursuant to subsections (a) and (b) of this section, the Court of Chancery may consider the following:

(1) Whether the defective corporate act was originally approved or effectuated with the belief that the approval or effectuation was in compliance with the provisions of this title, the certificate of incorporation or bylaws of the corporation;

(2) Whether the corporation and board of directors has treated the defective corporate act as a valid act or transaction and whether any person has acted in reliance on the public record that such defective corporate act was valid;

(3) Whether any person will be or was harmed by the ratification or validation of the defective corporate act, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated;

(4) Whether any person will be harmed by the failure to ratify or validate the defective corporate act; and

(5) Any other factors or considerations the Court deems just and equitable.

(e) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions brought under this section.

(f) Notwithstanding any other provision of this section, no action asserting:

(1) That a defective corporate act or putative stock ratified in accordance with § 204 of this title is void or voidable due to a failure of authorization identified in the resolution adopted in accordance with 204(b) of this title; or

(2) That the Court of Chancery should declare in its discretion that a ratification in accordance with § 204 of this title not be effective or be effective only on certain conditions,

may be brought after the expiration of 120 days from the later of the validation effective time and the time notice, if any, that is required to be given pursuant to § 204(g) of this title is given with respect to such ratification, except that this subsection shall not apply to an action asserting that a ratification was not accomplished in accordance with § 204 of this title or to any person to whom notice of the ratification was required to have been given pursuant to § 204(d) or (g) of this title, but to whom such notice was not given.