Exhibit 10.2


 


 





NANOVIBRONIX, INC.


 


NONQUALIFIED STOCK OPTION AGREEMENT


 


 


1.       Grant
of Option. Pursuant to this Nonqualified Stock Option Agreement (this “Agreement”), NanoVibronix,
Inc., a Delaware corporation (the “Company”), grants to


 


_Christopher M. Fashek_


(the “Optionee”),


 


an option (the “Stock Option”)
to purchase a total of ninety-one thousand six hundred seventy-nine (91,679) full shares (the “Optioned Shares”)
of common stock of the Company, par value $0.001 per share (“Common Stock”) at an “Option
Price” equal to $5.50 per share (being equal to the Fair Market Value (defined below) per share of the Common Stock
on the Date of Grant).


 


The “Date
of Grant” of this Stock Option is October 14, 2016. The “Option Period” shall commence
on the Date of Grant and shall expire on the date immediately preceding the tenth (10th) anniversary of the Date of
Grant, unless terminated earlier in accordance with Section 4 below. The Stock Option is a nonqualified stock option. This
Stock Option is intended to comply with the provisions governing nonqualified stock options under the final Treasury Regulations
issued on April 17, 2007, in order to exempt this Stock Option from application of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”).


 


2.       Definitions.
For purposes of this Agreement, the following terms shall have the meanings set forth below:


 


a.       “Board”
shall mean the Board of Directors of the Company.


 


b.       “Cause”
shall have the meaning ascribed to such term in any employment, consulting, or other written agreement in effect by and between
the Company and the Optionee; provided, however, at any time there is no such agreement in effect, or if such agreement
does not define such term, the term “Cause” shall mean (i) the Optionee’s commission of a dishonest or fraudulent
act in connection with the Optionee’s employment with or service to the Company, or the misappropriation of Company property;
(ii) the Optionee’s conviction of, or plea of nolo contendere to, a felony or crime involving dishonesty; (iii) the Optionee’s
inattention to duties, unsatisfactory performance, or failure to perform the Optionee’s duties to the Company, provided in
each case the Company gives the Optionee written notice and thirty (30) days to correct the Optionee’s performance to the
Company’s satisfaction; (iv) a substantial failure to comply with the Company’s policies; (v) a material and willful
breach of the Optionee’s fiduciary duties in any material respect, provided in each case the Company gives the Optionee written
notice and thirty (30) days to correct the breach to the Company’s satisfaction; (vi) the Optionee’s failure to comply
in any material respect with any legal written directive of the Board; or (vii) any act or omission of the Optionee which is of
substantial detriment to the Company because of the Optionee’s intentional failure to comply with any statute, rule, or regulation,
except any act or omission believed by the Optionee in good faith to have been in or not opposed to the best interests of the Company
(without intent of the Optionee to gain, directly or indirectly, a profit to which the Optionee was not legally entitled). Any
determination of whether the Optionee should be terminated for Cause pursuant to this Agreement shall be made in the sole, good
faith discretion of the Board, and shall be binding upon all parties affected thereby.


 


 



    	 	 	 



     


    




 


c.       “Change
in Control” shall mean the occurrence of the event set forth in any one of the following paragraphs, except as otherwise
provided herein:


 


(i)       any
Person (defined below) is or becomes the Beneficial Owner (defined below), directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates
(defined below)) representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding
securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (A) of
paragraph (iii) below;


 


(ii)       the
following individuals cease for any reason to constitute a majority of the number of directors then serving on the Board: individuals
who, on the Date of Grant, constitute the Board and any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either
were directors on the Date of Grant or whose appointment, election or nomination for election was previously so approved or recommended;


 


(iii)       there
is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation,
other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior
to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) at least sixty percent (60%) of the combined voting power of the securities of the
Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (B) a merger
or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company (not including the securities Beneficially Owned by
such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by
the Company or its Affiliates of a business) representing thirty percent (30%) or more of the combined voting power of the Company’s
then outstanding securities; or


 


(iv)       the
stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition
by the Company of all or substantially all of the Company’s assets to an entity, at least sixty percent (60%) of the combined
voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale.


 






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For purposes
hereof:


 


“Affiliate”
shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the United States Securities Exchange Act of 1934,
as amended (the “Exchange Act”).


 


“Beneficial
Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.


 


“Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant
to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company.


 


Notwithstanding
the foregoing, in the event this Agreement and the Stock Option granted hereunder become subject to Section 409A of the Code, then
an event shall not constitute a Change in Control for purposes of this Agreement unless such event also constitutes a change in
the Company’s ownership, its effective control, or the ownership of a substantial portion of its assets within the meaning
of Section 409A of the Code.


 


d.       “Fair
Market Value” shall mean, as of a particular date, (i) if the shares of Common Stock are listed on any established
national securities exchange, the closing sales price per share of Common Stock on the consolidated transaction reporting system
for the principal securities exchange for the Common Stock on that date or, if there shall have been no such sale so reported on
that date, on the last preceding date on which such a sale was so reported; (ii) if the shares of Common Stock are not so listed,
but are quoted on an automated quotation system, the closing sales price per share of Common Stock reported on the automated quotation
system on that date or, if there shall have been no such sale so reported on that date, on the last preceding date on which such
a sale was so reported; (iii) if the Common Stock is not so listed or quoted, the closing price on that date or, if there are no
quotations available for such date, on the last preceding date on which such quotations shall be available, as reported by the
OTC Bulletin Board operated by the Financial Industry Regulation Authority, Inc. or the OTC Markets Group Inc., formerly known
as Pink OTC Markets Inc.; or (iv) if none of the above is applicable, such amount as may be determined by the Company (acting on
the advice of an independent third party, should the Company elect in its sole discretion to utilize an independent third party
for this purpose), in good faith, to be the fair market value per share of Common Stock. The determination of Fair Market Value
shall, where applicable, be in compliance with Section 409A of the Code.


 


f.       “Termination
of Service” occurs when the Optionee ceases to serve as an employee, an outside director, or a contractor of the
Company or a subsidiary of the Company for any reason. Except as may be necessary or desirable to comply with applicable federal
or state law, a “Termination of Service” shall not be deemed to have occurred when the Optionee becomes an outside
director or employee or vice versa. Notwithstanding the foregoing, in the event this Agreement and the Stock Option granted hereunder
become subject to Section 409A of the Code, then, in lieu of the foregoing definition and to the extent necessary to comply with
the requirements of Section 409A of the Code, the definition of “Termination of Service” for purposes of this Agreement
shall be the definition of “separation from service” provided for under Section 409A of the Code and the regulations
or other guidance issued thereunder.


 






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g.       “Total
and Permanent Disability” means the Optionee is qualified for long-term disability benefits under the Company’s
or a subsidiary’s disability plan or insurance policy; or, if no such plan or policy is then in existence or if the Optionee
is not eligible to participate in such plan or policy, that the Optionee, because of a physical or mental condition resulting from
bodily injury, disease, or mental disorder, is unable to perform his duties of employment for a period of six (6) continuous months,
as determined in good faith by the Company. Notwithstanding the foregoing, in the event this Agreement and the Stock Option granted
hereunder become subject to Section 409A of the Code, then, in lieu of the foregoing definition and to the extent necessary to
comply with the requirements of Section 409A of the Code, the definition of “Total and Permanent Disability” shall
be the definition of “disability” provided for under Section 409A of the Code and the regulations or other guidance
issued thereunder.


 


3.       Vesting;
Time of Exercise. Except as specifically provided in this Agreement, the Optioned Shares shall be vested and the Stock Option
shall be exercisable as follows:


 


a.       One-fourth
(1/4) of the total Optioned Shares (rounded down for fractional shares) shall vest and that portion of the Stock Option shall become
exercisable on the first anniversary of the Date of Grant, provided the Optionee is employed by (or, if the Optionee is a contractor
or an outside director, is providing services to) the Company or a subsidiary on that date.


 


b.       An
additional one-fourth (1/4) of the total Optioned Shares (rounded down for fractional shares) shall vest and that portion of the
Stock Option shall become exercisable on the second anniversary of the Date of Grant, provided the Optionee is employed by (or,
if the Optionee is a contractor or an outside director, is providing services to) the Company or a subsidiary on that date.


 


c.       An
additional one-fourth (1/4) of the total Optioned Shares (rounded down for fractional shares) shall vest and that portion of the
Stock Option shall become exercisable on the third anniversary of the Date of Grant, provided the Optionee is employed by (or,
if the Optionee is a contractor or an outside director, is providing services to) the Company or a subsidiary on that date.


 


d.       The
remaining Optioned Shares shall vest and that portion of the Stock Option shall become exercisable on the fourth anniversary of
the Date of Grant, provided the Optionee is employed by (or, if the Optionee is a contractor or an outside director, is providing
services to) the Company or a subsidiary on that date


 


Notwithstanding the
foregoing, in the event that (i) the Optionee is not nominated for reelection as a director at any future annual meeting of the
Company’s stockholders (each, a “Stockholders’ Meeting”); (ii) the Optionee, if nominated
for reelection, is not reelected as a director at a Stockholders’ Meeting; or (iii) a Change in Control occurs, then all
of the Optioned Shares not previously vested shall thereupon immediately become vested and this Stock Option shall become fully
exercisable, if not previously so exercisable, immediately upon (x) the date that the Company fails to nominate the Optionee to
be a director to be voted upon at a Stockholders’ Meeting, (y) the date of the Stockholders’ Meeting at which the Optionee
is not reelected as a director, or (z) the date that the Change in Control occurs.


 






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4.       Term;
Forfeiture. Except as otherwise provided in this Agreement, to the extent the unexercised portion of the Stock Option relates
to Optioned Shares which are not vested on the date of the Optionee’s Termination of Service, the Stock Option will be terminated
on that date. The unexercised portion of the Stock Option that relates to Optioned Shares which are vested will terminate at the
first of the following to occur:


 


a.       5
p.m. on the date the Option Period terminates;


 


b.       5
p.m. on the date which is twelve (12) months following the date of the Optionee’s Termination of Service due to death or
Total and Permanent Disability;


 


c.       immediately
upon the Optionee’s Termination of Service by the Company for Cause;


 


d.       immediately
upon the Optionee’s violation of any non-compete or non-solicitation agreement entered into between the Company and the Optionee;


 


e.       5
p.m. on the date which is ninety (90) days following the date of the Optionee’s Termination of Service for any reason not
otherwise specified in this Section 4; and


 


f.       5
p.m. on the date the Company causes any portion of the Stock Option to be forfeited pursuant to Section 7 hereof.


 


5.       Who
May Exercise. Subject to the terms and conditions set forth in Sections 3 and 4 above, during the lifetime of the Optionee,
the Stock Option may be exercised only by the Optionee, or by the Optionee’s guardian or personal or legal representative.
If the Optionee’s Termination of Service is due to his death prior to the dates specified in Section 4 hereof, and
the Optionee has not exercised the Stock Option as to the maximum number of vested Optioned Shares as set forth in Section 3
hereof as of the date of death, the following persons may exercise the exercisable portion of the Stock Option on behalf of the
Optionee at any time prior to the earliest of the dates specified in Section 4 hereof: the personal representative
of his estate or the person who acquired the right to exercise the Stock Option by bequest or inheritance or by reason of the death
of the Optionee; provided that the Stock Option shall remain subject to the other terms of this Agreement and all applicable laws,
rules, and regulations.


 


6.       No
Fractional Shares. The Stock Option may be exercised only with respect to full shares, and no fractional share of Common Stock
shall be issued.


 


7.       Manner
of Exercise. Subject to such administrative regulations as the Company may from time to time adopt, the Stock Option may be
exercised by the delivery of written notice to the Company setting forth the number of shares of Common Stock with respect to which
the Stock Option is to be exercised, the date of exercise thereof (the “Exercise Date”) which shall be
at least three (3) days after giving such notice unless an earlier time shall have been mutually agreed upon. On the Exercise Date,
the Optionee shall deliver to the Company consideration with a value equal to the total Option Price of the shares to be purchased,
payable as follows: (a) cash, check, bank draft, or money order payable to the order of the Company; (b) if the Company, in its
sole discretion, so consents in writing, Common Stock (including restricted Common Stock) owned by the Optionee on the Exercise
Date, valued at its Fair Market Value on the Exercise Date, and which the Optionee has not acquired from the Company within six
(6) months prior to the Exercise Date; (c) if the Company, in its sole discretion, so consents in writing, by delivery (including
by FAX) to the Company or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions
from the Optionee to a broker or dealer, reasonably acceptable to the Company, to sell certain of the shares of Common Stock purchased
upon exercise of the Stock Option or to pledge such shares as collateral for a loan and promptly deliver to the Company the amount
of sale or loan proceeds necessary to pay such purchase price; and/or (d) in any other form of valid consideration that is acceptable
to the Company in its sole discretion. In the event that shares of restricted Common Stock are tendered as consideration for the
exercise of a Stock Option, a number of shares of Common Stock issued upon the exercise of the Stock Option equal to the number
of shares of restricted Common Stock used as consideration therefor shall be subject to the same restrictions and provisions as
the restricted Common Stock so tendered.


 






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Upon payment of all
amounts due from the Optionee, the Company shall cause the Common Stock then being purchased to be electronically registered in
the Optionee’s name (or the name of the person exercising the Optionee’s Stock Option in the event of his death), promptly
after the Exercise Date. The Company shall not issue certificates for Common Stock unless the Optionee (or the person exercising
the Optionee’s Stock Option in the event of his death) requests delivery of the certificates for the Common Stock in writing
and in accordance with the procedures established by the Company. The Company shall deliver the certificates as soon as administratively
practicable following the Company’s receipt of the written request from the Optionee (or the person exercising the Optionee’s
Stock Option in the event of his death) for delivery of the certificates.


 


The obligation of the
Company to register or deliver such shares of Common Stock shall, however, be subject to the condition that, if at any time the
Company shall determine in its discretion that the listing, registration, or qualification of the Stock Option or the Common Stock
upon any securities exchange or inter-dealer quotation system or under any state or federal law, or the consent or approval of
any governmental regulatory body, is necessary as a condition of, or in connection with, the Stock Option or the issuance or purchase
of shares of Common Stock thereunder, then the Stock Option may not be exercised in whole or in part unless such listing, registration,
qualification, consent, or approval shall have been effected or obtained free of any conditions not reasonably acceptable to the
Company.


 


If the Optionee fails
to pay for any of the Optioned Shares specified in such notice or fails to accept delivery thereof, then that portion of the Optionee’s
Stock Option and the right to purchase such Optioned Shares may be forfeited by the Optionee.


 


8.       Nonassignability.
The Stock Option is not assignable or transferable by the Optionee except by will or by the laws of descent and distribution.


 


9.       Rights
as Stockholder. The Optionee will have no rights as a stockholder with respect to any of the Optioned Shares until the issuance
of a certificate or certificates to the Optionee or the registration of such shares in the Optionee’s name for the shares
of Common Stock. The Optioned Shares shall be subject to the terms and conditions of this Agreement. Except as otherwise provided
in Section 10 hereof, no adjustment shall be made for dividends or other rights for which the record date is prior
to the issuance of such certificate or certificates, or the registration of such shares in the Optionee’s name. The Optionee,
by his execution of this Agreement, agrees to execute any documents requested by the Company in connection with the issuance of
the shares of Common Stock.


 


10.       Adjustment
of Number of Optioned Shares and Related Matters. In the event that any dividend or other distribution (whether in the form
of cash, Common Stock, other securities, or other property), recapitalization, stock split, reverse stock split, rights offering,
reorganization, merger, consolidation, split-up, spin-off, split-off, combination, subdivision, repurchase, or exchange of Common
Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of
the Company, or other similar corporate transaction or event affects the fair value of the Stock Option, then the Company shall
adjust any or all of the following so that the fair value of the Stock Option immediately after the transaction or event is equal
to the fair market value of the Stock Option immediately prior to the transaction or event: (i) the number of shares and type of
Common Stock (or other securities or property) subject to the Stock Option, and (ii) the exercise price of the Stock Option; provided,
however, that the number of shares of Common Stock (or other securities or property) subject to the Stock Option shall always
be a whole number. The Company shall determine the specific adjustments to be made under this Section 10, and its determination
shall be conclusive. Notwithstanding anything herein to the contrary, no such adjustment shall be made or authorized to the extent
that such adjustment would cause the Stock Option or this Agreement to violate Section 409A of the Code. Such adjustments shall
be made in accordance with the rules of any securities exchange, stock market, or stock quotation system to which the Company is
subject. Upon the occurrence of any such adjustment, the Company shall provide notice to the Optionee of its computation of such
adjustment which shall be conclusive and shall be binding upon the Optionee.


 






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11.       Nonqualified
Stock Option. The Stock Option shall not be treated as an “incentive stock option” under Section 422 of the Code.


 


12.       Voting.
The Optionee, as record holder of some or all of the Optioned Shares following exercise of this Stock Option, has the exclusive
right to vote, or consent with respect to, such Optioned Shares until such time as the Optioned Shares are transferred in accordance
with this Agreement; provided, however, that this Section shall not create any voting right where the holders of
such Optioned Shares otherwise have no such right.


 


13.       Specific
Performance. The parties acknowledge that remedies at law will be inadequate remedies for breach of this Agreement and consequently
agree that this Agreement shall be enforceable by specific performance. The remedy of specific performance shall be cumulative
of all of the rights and remedies at law or in equity of the parties under this Agreement.


 


14.       Optionee’s
Representations. Notwithstanding any of the provisions hereof, the Optionee hereby agrees that he will not exercise the Stock
Option granted hereby, and that the Company will not be obligated to issue any shares to the Optionee hereunder, if the exercise
thereof or the registration or issuance of such shares shall constitute a violation by the Optionee or the Company of any provision
of any law or regulation of any governmental authority. Any determination in this connection by the Company shall be final, binding,
and conclusive. The obligations of the Company and the rights of the Optionee are subject to all applicable laws, rules, and regulations.


 


15.       Investment
Representation. Notwithstanding anything herein to the contrary, the Optionee hereby represents and warrants to the Company,
that:


 


a.       The
Common Stock that will be received upon exercise of the Stock Option are acquired for investment purposes only for the Optionee’s
own account and not with a view to or in connection with any distribution, re-offer, resale, or other disposition not in compliance
with the Securities Act of 1933 (the “Securities Act”) and applicable state securities laws;


 


b.       The
Optionee, alone or together with the Optionee’s representatives, possesses such expertise, knowledge, and sophistication
in financial and business matters generally, and in the type of transactions in which the Company proposes to engage in particular,
that the Optionee is capable of evaluating the merits and economic risks of acquiring Common Stock upon the exercise of the Stock
Option and holding such Common Stock;


 


c.       The
Optionee has had access to all of the information with respect to the Common Stock underlying the Stock Option that the Optionee
deems necessary to make a complete evaluation thereof and has had the opportunity to question the Company concerning the Stock
Option and the Common Stock underlying the Stock Option;


 






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d.       The
decision of the Optionee to acquire the Common Stock upon exercise of the Stock Option for investment has been based solely upon
the evaluation made by the Optionee;


 


e.       The
Optionee understands that the Common Stock underlying the Stock Option constitutes “restricted securities” under the
Securities Act and has not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. The Optionee
further understands that the Common Stock underlying the Stock Option must be held indefinitely unless it is subsequently registered
under the Securities Act or an exemption from such registration is available;


 


f.       The
Optionee acknowledges and understands that the Company is under no obligation to register the Common Stock underlying the Stock
Option and that the certificates evidencing such Common Stock will be imprinted with a legend which prohibits the transfer of such
Common Stock unless it is registered or such registration is not required in the opinion of counsel satisfactory to the Company
and any other legend required under applicable state securities laws; and


 


g.       The
Optionee is an “accredited investor,” as such term is defined in Section 501 of Regulation D promulgated under the
Securities Act.


 


16.       Optionee’s
Acknowledgments. The Optionee hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of
the Company or the Board, as appropriate, upon any questions arising under this Agreement.


 


17.       Law
Governing. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware
(excluding any conflict of laws rule or principle of Delaware law that might refer the governance, construction, or interpretation
of this Agreement to the laws of another state).


 


18.       No
Right to Continue Service or Employment. Nothing herein shall be construed to confer upon the Optionee the right to continue
in the employ or to provide services to the Company or any subsidiary, whether as an employee, contractor, or outside director,
or to interfere with or restrict in any way the right of the Company or any subsidiary to discharge the Optionee as an employee,
contractor, or outside director at any time.


 


19.       Legal
Construction. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement
shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the
invalid, illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that
is contained in this Agreement and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable
term, provision, or agreement had never been contained herein.


 


20.       Covenants
and Agreements as Independent Agreements. Each of the covenants and agreements that are set forth in this Agreement shall be
construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause
of action of the Optionee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.


 






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21.       Entire
Agreement. This Agreement supersedes any and all other prior understandings and agreements, either oral or in writing, between
the parties with respect to the subject matter hereof and constitutes the sole and only agreements between the parties with respect
to the said subject matter. All prior negotiations and agreements between the parties with respect to the subject matter hereof
are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party or by anyone acting on behalf of any party, which are not embodied in this Agreement
and that any agreement, statement, or promise that is not contained in this Agreement shall not be valid or binding or of any force
or effect.


 


22.       Parties
Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure
to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors
and assigns, subject to the limitation on assignment expressly set forth herein.


 


23.       Modification.
No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in
writing and signed by the parties; provided, however, that the Company may change or modify this Agreement without the Optionee’s
consent or signature if the Company determines, in its sole discretion, that such change or modification is necessary for purposes
of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder.


 


24.       Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive
matters to be considered in construing the terms and provisions of this Agreement.


 


25.       Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in
the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.


 


26.       Notice.
Any notice required or permitted to be delivered hereunder shall be deemed to be delivered only when actually received by the Company
or by the Optionee, as the case may be, at the addresses set forth below, or at such other addresses as they have theretofore specified
by written notice delivered in accordance herewith:


 


a.       Notice
to the Company shall be addressed and delivered as follows:


 


NanoVibronix, Inc.


525 Executive Boulevard


Elmsford, New York 10523


Attn:


Facsimile:


 


b.       Notice
to the Optionee shall be addressed and delivered as set forth on the signature page.


 






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27.       Tax
Requirements. The Optionee is hereby advised to consult immediately with his own tax advisor regarding the tax consequences
of this Agreement. If required by applicable law, the Company or, if applicable, any subsidiary (for purposes of this Section
27, the term “Company” shall be deemed to include any applicable subsidiary), shall have the right
to deduct from all amounts paid in cash or other form, any federal, state, local, or other taxes required by law to be withheld
in connection with this Agreement. The Company may, in its sole discretion, also require the Optionee receiving shares of Common
Stock to pay the Company the amount of any taxes that the Company is required to withhold, if any, in connection with the Optionee’s
income arising with respect to the Stock Option. Such payments shall be required to be made when requested by the Company and may
be required to be made prior to the registration of such shares in the Optionee’s name or the delivery of any certificate
representing shares of Common Stock, if such certificate is requested by the Optionee in writing and in accordance with the procedures
established by the Company. Such payment may be made by (i) the delivery of cash to the Company in an amount that equals or exceeds
(to avoid the issuance of fractional shares under (iii) below) the required tax withholding obligations of the Company; (ii) if
the Company, in its sole discretion, so consents in writing, the actual delivery by the exercising Optionee to the Company of shares
of Common Stock that the Optionee has not acquired from the Company within six (6) months prior to the date of exercise, which
shares so delivered have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares under
(iii) below) the required tax withholding payment; (iii) if the Company, in its sole discretion, so consents in writing, the Company’s
withholding of a number of shares to be delivered upon the exercise of the Stock Option, which shares so withheld have an aggregate
Fair Market Value that equals (but does not exceed) the required tax withholding payment; or (iv) any combination of (i), (ii),
or (iii). The Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise paid by the
Company to the Optionee.


 


 


 


 


[Remainder of Page Intentionally Left
Blank


Signature Page Follows.]


 






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IN WITNESS WHEREOF,
the Company has caused this Agreement to be executed by its duly authorized officer, and the Optionee, to evidence his consent
and approval of all the terms hereof, has duly executed this Agreement, as of the date specified in Section 1 hereof.


 


 


	 	COMPANY:
	 	 	 
	 	

                                                NANOVIBRONIX,
INC.

	 	 	 
	 	 	 
	 	 	 
	 	By:	/s/ Stephen Brown
	 	Name:	Stephen Brown
	 	Title:	Chief Financial Officer


 


 


 


	 	

                                                OPTIONEE:

	 	 	 
	 	 	 
	 	/s/ Christopher M. Fashek
	 	Signature	 
	 	 	 
	 	Name:	Christopher M. Fashek
	 	Address:	54 Champions Lane 
	 		San Antonio, TX 78257


 


 


 


 


 


 


 


 


 


 








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