UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 15, 2022
NanoVibronix, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36445 | 01-0801232 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
525 Executive Blvd Elmsford, New York |
10523 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (914) 233-3004
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||
| Common Stock, par value $0.001 per share | NAOV | Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan
On December 15, 2022, NanoVibronix, Inc. (the “Company”) held its 2022 annual meeting of stockholders (the “Annual Meeting”). At the Annual Meeting, stockholders approved the Fourth Amendment (the “Fourth Amendment”) to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, as amended (the “2014 Plan”), to increase the number of shares of Common Stock (as defined below) authorized for issuance pursuant to awards under the 2014 Plan by 1,518,000, to a total of 4,864,286 shares of the Company’s Common Stock.
For more information about the Fourth Amendment, see the Company’s definitive proxy statement filed with the U.S. Securities and Exchange Commission on October 31, 2022 (the “Proxy Statement”), the relevant portions of which are incorporated herein by reference. The description of the Fourth Amendment above and such portions of the Proxy Statement are qualified in their entirety by reference to the full text of the Fourth Amendment, filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
As of the close of business on October 17, 2022, the record date for the Annual Meeting, there were (i) 27,997,793 shares of common stock, par value $0.001 per share (“Common Stock”) outstanding and entitled to vote, and (ii) 27,997.793 shares of Series F Preferred Stock, par value $0.001 per share (“Series F Preferred Stock”), outstanding, and, pursuant to the terms of the Series F Preferred Stock as set forth in the certificate of designation for the Series F Preferred Stock, each holder of Series F Preferred stock is entitled to 1,000,000 votes per whole share of Series F Preferred Stock and is entitled to vote such shares of Series F Preferred Stock (including any fraction thereof) on the Reverse Stock Split Proposal (as defined below) and the Adjournment Proposal (as defined below). The matters described below were submitted to a vote of the Company’s stockholders at the Annual Meeting, with the Company’s Common Stock and Series F Preferred Stock voting together as a single class on Proposal 3 and Proposal 7. Each proposal is described in detail in the Company’s Proxy Statement.
Proposal 1. A proposal to elect eight nominees to serve on the Company’s board of directors (the “Board”), for a term of one year or until their respective successors are elected and qualified, for which the following are nominees: Aurora Cassirer, Christopher Fashek, Michael Ferguson, Martin Goldstein, M.D., Harold Jacob, M.D., Thomas Mika, Brian Murphy, and Maria Schroeder. All nominees were elected to serve as directors. The results of the voting were as follows:
| Nominees | Votes For | Withheld | Broker Non-Votes | |||||||||
| Aurora Cassirer | 3,388,415 | 268,972 | 9,139,369 | |||||||||
| Christopher Fashek | 3,403,556 | 253,831 | 9,139,369 | |||||||||
| Michael Ferguson | 3,240,236 | 417,151 | 9,139,369 | |||||||||
| Martin Goldstein, M.D. | 3,369,339 | 288,048 | 9,139,369 | |||||||||
| Harold Jacob, M.D. | 3,298,119 | 359,268 | 9,139,369 | |||||||||
| Thomas Mika | 3,035,409 | 621,978 | 9,139,369 | |||||||||
| Brian Murphy | 3,310,077 | 347,310 | 9,139,369 | |||||||||
| Maria Schroeder | 3,406,884 | 250,503 | 9,139,369 | |||||||||
Proposal 2. A proposal to approve an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), to classify the structure of the Board to be designated Class I, Class II, and Class III with directors in each class to be elected for three-year terms. The Company’s stockholders did not approve Proposal 2. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 2,116,276 | 1,187,392 | 353,719 | 9,139,369 | |||||||||||
Proposal 3. A proposal to approve an amendment to the Company’s Certificate of Incorporation to effect, at the discretion of the Company’s Board but prior to the six-month anniversary of the date on which the reverse stock split is approved by the Company’s stockholders at the Annual Meeting, a reverse stock split of all of the outstanding shares of the Company’s Common Stock, at a ratio in the range of 1-for-2 to 1-for-50, with such ratio to be determined by the Board in its discretion and included in a public announcement (the “Reverse Stock Split Proposal”). The Company’s stockholders approved Proposal 3. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 9,696,078,997 | 2,494,061,218 | 618,754,541 | 0 | |||||||||||
Proposal 4. A proposal to approve an amendment to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock of the Company from 40,000,000 to 45,000,000 shares. The Company’s stockholders did not approve Proposal 4. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 9,117,449 | 3,355,281 | 324,026 | 0 | |||||||||||
Proposal 5. A proposal to approve an amendment to the 2014 Plan to increase the aggregate number of shares of common stock of the Company reserved for issuance under the 2014 Plan by 1,518,000 shares to a total of 4,864,286 shares. The Company’s stockholders approved Proposal 5. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 1,823,614 | 1,232,591 | 601,182 | 9,139,369 | |||||||||||
Proposal 6. A proposal to ratify the appointment of Marcum LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022. The Company’s stockholders approved Proposal 6. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 12,365,983 | 359,883 | 70,890 | 0 | |||||||||||
Proposal 7. A proposal to approve an adjournment of the Annual Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event there are not sufficient votes in favor of Proposals 1-5 (the “Adjournment Proposal”). The Company’s stockholders approved Proposal 7. The results of the voting were as follows:
| For | Against | Abstentions | Broker Non-Votes | |||||||||||
| 10,300,095,777 | 1,483,069,491 | 1,025,729,488 | 0 | |||||||||||
The results reported above are final voting results. No other matters were considered or voted upon at the meeting.
Item 7.01. Regulation FD Disclosure.
On December 15, 2022, the Company issued a press release announcing the results of the Annual Meeting. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The information under this Item 7.01 in this Current Report on Form 8-K (including Exhibit 99.1 attached hereto) is being furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language in such filing. Furthermore, the furnishing of information under Item 7.01 of this Current Report on Form 8-K is not intended to constitute a determination by the Company that the information contained herein, including the exhibits hereto, is material or that the dissemination of such information is required by Regulation FD.
| Exhibit Number | Description | |
| 10.1 | Fourth Amendment to the Nanovibronix, Inc. 2014 Long-Term Incentive Plan | |
| 99.1 | NanoVibronix, Inc., Press Release, dated December 15, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NanoVibronix, Inc. | ||
| Date: December 15, 2022 | By: | /s/ Stephen Brown |
| Name: Stephen Brown | ||
| Title: Chief Financial Officer | ||
Exhibit 10.1
FOURTH AMENDMENT
TO THE
NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN
This FOURTH AMENDMENT TO THE NANOVIBRONIX, INC. 2014 LONG-TERM INCENTIVE PLAN (this “Amendment”), effective as of December 15, 2022, is made and entered into by NanoVibronix, Inc., a Delaware corporation (the “Company”). Terms used in this Amendment with initial capital letters that are not otherwise defined herein shall have the meanings ascribed to such terms in the NanoVibronix, Inc. 2014 Long-Term Incentive Plan (the “Plan”), as amended by the First Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, which was approved by the Company’s stockholders on June 13, 2018, the Second Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, which was approved by the Company’s stockholders on June 13, 2019, and the Third Amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, which was approved by the Company’s stockholders on December 29, 2021 (the “Third Amendment”).
RECITALS
WHEREAS, Article 9 of the Plan provides that the Board of Directors of the Company (the “Board”) may amend the Plan at any time and from time to time;
WHEREAS, on November 1, 2021, the Board previously approved increasing the aggregate number of shares of Common Stock that may be issued under the Plan by 1,500,000 additional shares and intended to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan, as set forth in Article 5 of the Plan, to a total of 3,364,286 shares of Common Stock (the “Third Amendment”), which increase was approved by the stockholders of the Company at the special meeting of stockholders of the Company held on December 29, 2021, but a scrivener’s error in the Third Amendment only increased the aggregate number of shares of Common Stock to a total of 3,346,286 shares of Common Stock (the “Third Amendment Discrepancy”);
WHEREAS, the Board desires to amend the Plan to increase the aggregate number of shares of Common Stock that may be issued under the Plan, as set forth in Article 5 of the Plan, by one million five hundred thousand (1,500,000) shares of Common Stock;
WHEREAS, the Board also desires to correct the Third Amendment Discrepancy by amending the Plan to further increase the aggregate number of shares of Common Stock that may be issued under the Plan, as set forth in Article 5 of the Plan, by an additional eighteen thousand (18,000) shares of Common Stock; and
WHEREAS, the Board intends to submit this Amendment to the Company’s stockholders for their approval.
NOW, THEREFORE, in accordance with Article 9 of the Plan, the Company hereby amends the Plan as follows:
1. Section 5.1 of the Plan is hereby amended by deleting said section in its entirety and substituting in lieu thereof the following new Section 5.1:
5.1 Number Available for Awards. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares of Common Stock that may be delivered pursuant to Awards granted under the Plan is Four Million Eight Hundred Sixty-Four Thousand Two Hundred Eighty-Six (4,864,286) shares, of which one hundred percent (100%) may be delivered pursuant to Incentive Stock Options. Subject to adjustment pursuant to Articles 11 and 12, the maximum number of shares of Common Stock with respect to which Stock Options or SARs may be granted to an Executive Officer during any calendar year is six hundred sixty-nine thousand two-hundred fifty-seven (669,257) shares of Common Stock. Shares to be issued may be made available from authorized but unissued Common Stock, Common Stock held by the Company in its treasury, or Common Stock purchased by the Company on the open market or otherwise. During the term of this Plan, the Company will at all times reserve and keep available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan.
2. This Amendment shall be effective on the date first set forth above. In the event stockholder approval of this Amendment is not obtained within twelve (12) months of the date the Board approved this Amendment, the additional shares added to the Plan pursuant to this Amendment shall not be available for grant as Incentive Stock Options.
3. Except as expressly amended by this Amendment, the Plan shall continue in full force and effect in accordance with the provisions thereof.
[Remainder of the Page Intentionally Left Blank;
Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed as of the date first written above.
| NANOVIBRONIX, INC. | ||
| By: | /s/ Stephen Brown | |
| Name: | Stephen Brown | |
| Title: | Chief Financial Officer | |
Exhibit 99.1
NANOVIBRONIX ANNOUNCES RESULTS OF ANNUAL MEETING OF STOCKHOLDERS HELD TODAY
ELMSFORD, N.Y, December 15, 2022 — NanoVibronix, Inc. (NASDAQ: NAOV) (the “Company”), a medical device company utilizing the Company’s proprietary and patented low intensity surface acoustic wave (SAW) technology, announced that the Company’s 2022 annual meeting of stockholders (the “Annual Meeting”) was held today virtually and broadcast live at www.virtualshareholdermeeting.com/NAOV2022.
The following resolutions submitted for stockholder approval were adopted:
| ● | Election of the eight director nominees (Aurora Cassirer, Christopher Fashek, Michael Ferguson, Martin Goldstein, M.D., Harold Jacob, M.D., Thomas Mika, Brian Murphy, and Maria Schroeder) to serve on the Company’s board of directors (the “Board”), for a term of one year or until their respective successors are elected and qualified. | |
| ● | Approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”) to effect, at the discretion of the Board but prior to the six-month anniversary of the date on which the reverse stock split is approved by the Company’s stockholders at the Annual Meeting, a reverse stock split of all of the outstanding shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a ratio in the range of 1-for-2 to 1-for-50, with such ratio to be determined by the Board in its discretion and included in a public announcement. | |
| ● | Approval of an amendment to the NanoVibronix, Inc. 2014 Long-Term Incentive Plan, as amended, (the “2014 Plan”), to increase the aggregate number of shares of common stock of the Company reserved for issuance under the 2014 Plan by 1,518,000 shares to a total of 4,864,286 shares. | |
| ● | Ratification of the appointment of Marcum LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022. | |
| ● | A proposal to approve an adjournment of the Annual Meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposals 1-5. |
The following resolutions submitted for stockholder approval did not pass:
| ● | A proposal to approve an amendment to the Company’s Certificate of Incorporation to classify the structure of the Board to be designated Class I, Class II, and Class III with directors in each class to be elected for three-year terms. | |
| ● | A proposal to approve an amendment to the Company’s Certificate of Incorporation to increase the number of authorized shares of common stock of the Company from 40,000,000 to 45,000,000 shares. |
About NanoVibronix, Inc.
NanoVibronix, Inc. (NASDAQ: NAOV) is a medical device company headquartered in Elmsford, New York, with research and development in Nesher, Israel, focused on developing medical devices utilizing its patented low intensity surface acoustic wave (SAW) technology. The proprietary technology allows for the creation of low-frequency ultrasound waves that can be utilized for a variety of medical applications, including for disruption of biofilms and bacterial colonization, as well as for pain relief. The devices can be administered at home without the assistance of medical professionals. The Company’s primary products include PainShield® and UroShield®, which are portable devices suitable for administration at home without assistance of medical professionals. Additional information about NanoVibronix is available at: www.nanovibronix.com.
Forward-Looking Statements
This press release contains “forward-looking statements.” Such statements may be preceded by the words “intends,” “may,” “will,” “plans,” “expects,” “anticipates,” “projects,” “predicts,” “estimates,” “aims,” “believes,” “hopes,” “potential” or similar words. Forward-looking statements are not guarantees of future performance, are based on certain assumptions and are subject to various known and unknown risks and uncertainties, many of which are beyond the Company’s control, and cannot be predicted or quantified; consequently, actual results may differ materially from those expressed or implied by such forward-looking statements. Such risks and uncertainties include, without limitation, risks and uncertainties associated with: (i) market acceptance of our existing and new products or lengthy product delays in key markets; (ii) negative or unreliable clinical trial results; (iii) inability to secure regulatory approvals for the sale of our products; (iv) intense competition in the medical device industry from much larger, multinational companies; (v) product liability claims; (vi) product malfunctions; (vii) our limited manufacturing capabilities and reliance on subcontractor assistance; (viii) insufficient or inadequate reimbursements by governmental and/or other third party payers for our products; (ix) our ability to successfully obtain and maintain intellectual property protection covering our products; (x) legislative or regulatory reform impacting the healthcare system in the U.S. or in foreign jurisdictions; (xi) our reliance on single suppliers for certain product components, (xii) the need to raise additional capital to meet our future business requirements and obligations, given the fact that such capital may not be available, or may be costly, dilutive or difficult to obtain; (xiii) our conducting business in foreign jurisdictions exposing us to additional challenges, such as foreign currency exchange rate fluctuations, logistical and communications challenges, the burden and cost of compliance with foreign laws, and political and/or economic instabilities in specific jurisdictions; and (xiv) market and other conditions. More detailed information about the Company and the risk factors that may affect the realization of forward-looking statements is set forth in the Company’s filings with the Securities and Exchange Commission (SEC), including the Company’s Annual Report on Form 10-K and its Quarterly Reports on Form 10-Q. Investors and security holders are urged to read these documents free of charge on the SEC’s web site at: http://www.sec.gov. The Company assumes no obligation to publicly update or revise its forward-looking statements as a result of new information, future events, or otherwise, except as required by law.
Investor Relations Contact:
Brett Maas, Managing Principal, Hayden IR, LLC
brett@haydenir.com
(646) 536-7331