Exhibit 10.3


 


 





EMPLOYMENT AGREEMENT


 


 


THIS EMPLOYMENT
AGREEMENT (this “Agreement”) is dated as of October 13, 2016 and is entered into by and between Brian
Murphy (the “Executive”) and NanoVibronix, Inc. (the “Company”). The Company
and the Executive shall be referred to herein as the “Parties.”


 


RECITALS


 


Whereas,
the Company desires to employ the Executive as its Chief Executive Officer, and the Executive desires to be employed by the Company
as its Chief Executive Officer;


 


Whereas,
the Company and the Executive desire to set forth in writing the terms and conditions of their agreement and understandings with
respect to the employment of the Executive as its Chief Executive Officer; and


 


Whereas,
the Company hereby employs the Executive, and the Executive hereby accepts employment with the Company for the period and upon
the terms and conditions contained in this Agreement.


 


Now,
Therefore, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:


 


ARTICLE I.


Services
to be Provided by THE Executive


 


A.               
Position and Responsibilities. The Executive shall be employed and serve as the Chief Executive Officer of
the Company (together with such other position or positions consistent with the Executive’s title as the Board of Directors
(the “Board”) shall specify from time to time) and shall report directly to the Board. The Executive
shall have such duties and responsibilities commensurate with such title, and as the Board may require of the Executive from time
to time. The Executive also agrees to serve, if elected, as an officer or director of the Company or any other affiliate of the
Company, in each such case at no compensation in addition to that provided for in this Agreement. The Company will use its best
efforts to cause the Executive to be elected as a member of the Board as long as the Executive continues to serve as Chief Executive
Officer. The Executive shall resign as a member of the Board if his employment terminates for any reason.


 


B.                
Performance. During the Executive’s employment with the Company, the Executive shall devote on a full-time
basis all of the Executive’s time, energy, skill and reasonable best efforts to the performance of the Executive’s
duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company, and shall exercise
reasonable best efforts to perform the Executive’s duties in a diligent, trustworthy, good faith and business-like manner,
all for the purpose of advancing the business of the Company. The Executive shall at all times act in a manner consistent with
the Executive’s position.


 



     


     


    




 


C.                
Compliance. The Executive agrees to act in accordance with high business and ethical standards at all
times. The Executive shall comply with the policies, codes of conduct, codes of ethics, written manuals and lawful directives of
the Company and any of its affiliates. The Executive shall comply with all laws of any jurisdiction in which the Company does business.
The Executive shall keep the Board promptly and fully informed of the Executive’s conduct in connection with the business
affairs of the Company. The Executive shall report the Executive’s own wrongdoing and any wrongdoing or proposed wrongdoing
of any other employee, director, or contractor of the Company or other person performing services on behalf of the Company to the
Board immediately upon becoming aware of it.


 


ARTICLE II.


Compensation
for SErvices


 


As compensation for
all services the Executive will perform under this Agreement, the Company will pay the Executive, and the Executive shall accept
as full compensation, the following:


 


A.               
Base Salary. The Company shall pay the Executive an annual salary of $181,000 less applicable payroll deductions
and tax withholdings (the “Base Salary”) for all services rendered by the Executive under this Agreement.
Notwithstanding the foregoing, the Base Salary shall automatically increase to: (i) $200,000, less applicable payroll deductions
and tax withholdings, effective as of January 1 of the calendar year immediately following any calendar year during which the Company
generates gross sales (as determined in accordance with generally accepted accounting principles consistently applied) exceeding
$1,000,000; and (ii) $225,000, less applicable payroll deductions and tax withholdings, effective as of January 1 of the calendar
year immediately following any calendar year during which the Company generates gross sales (as determined in accordance with generally
accepted accounting principles consistently applied) exceeding $2,000,000. The Company shall pay the Base Salary in accordance
with the normal payroll practices of the Company.


 


B.                
Performance Bonus. Commencing in 2017, the Executive shall be eligible to receive an annual bonus (“Performance
Bonus”) during each year of the Term as provided in this Article II, Section B. In 2017, the Executive shall
be eligible to receive a target bonus in an amount of up to $150,000, less applicable payroll deductions and tax withholdings,
as follows: (i) an amount of up to $100,000, less applicable payroll deductions and tax withholdings, based on the extent to which
the Executive has met performance criteria for the year, as determined in good faith by the Board, which shall be paid in 2018
within thirty (30) days of the Company’s issuance of its audited financial statements on Form 10-K, and (ii) an amount of
up to $50,000, less applicable payroll deductions and tax withholdings, in the amount and payable on the date as determined in
the sole discretion of the Chairman of the Board. For 2018 and all subsequent years of the Executive’s employment during
the Term, the Executive shall be eligible to receive a target bonus in an amount of up to $100,000, less applicable payroll deductions
and tax withholdings, based on the extent to which the Executive has met performance criteria for the year, as determined in good
faith by the Board, which shall be paid in the calendar year after the calendar year to which the Performance Bonus relates within
thirty (30) days of the Company’s issuance of its audited financial statements on Form 10-K.


 



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C.                
Uplisting Bonus. The Company agrees that should the Company complete a financing or series of financings during
the Term that cause the Company’s securities to become listed on a national securities exchange registered under Section
6 of the Securities Exchange Act of 1934, as amended (such as the New York Stock Exchange, the NASDAQ Stock Market, or the NYSE
MKT)(the “Uplisting”), the Company shall pay the Executive a one-time bonus of $75,000, less applicable
payroll deductions and tax withholdings, provided that such listing occurs within six (6) months from the Effective Date (as defined).
Any bonus payable in connection with the Uplisting pursuant to this Article II, Section C. shall be paid within thirty (30)
days of the Uplisting.


 


D.               
Stock. The Executive may be eligible to receive certain stock options, restricted stock, stock appreciation
rights or similar stock-based rights granted to the Executive as set forth separately in those certain agreements.


 


E.                
Expenses. The Company agrees that, during the Executive's employment, it will reimburse the Executive for
out-of-pocket expenses reasonably incurred in connection with the Executive's performance of the Executive’s services hereunder,
upon the presentation by the Executive of an itemized accounting of such expenditures, with supporting receipts. Reimbursement
shall be in compliance with the Company’s expense reimbursement policies.


 


F.                 
Vacation. The Executive also shall be eligible for four (4) weeks paid vacation in accordance with the Company’s
policy, as in effect from time to time.


 


G.               
Other Benefits. The Executive is entitled to participate in any group health insurance plan, 401(k) plan,
disability plan, group life plan, and any other benefit or welfare program or policy that is made generally available, from time
to time, to other employees of the Company, on a basis consistent with such participation and subject to the terms of the plan
documents, as such plans may be modified, amended, terminated, or replaced from time to time. Notwithstanding anything to the contrary
contained herein, in the event that the Company does not have a group health plan on the Effective Date and the Executive (and
his eligible dependents) elect to continue group health plan coverage under the Executive’s prior employer’s group
health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
the Company agrees to pay or reimburse the Executive for 100% of the premiums due with respect to such COBRA coverage upon presentation
by the Executive to the Company of a statement of premiums due with respect to such coverage, from the Effective Date until the
earliest of (i) the date the Executive and his eligible dependents are eligible for coverage under a group health plan of the Company;
(ii) the end of the Term; or (iii) the date the Executive’s COBRA coverage terminates for any reason (other than non-payment
of premiums).


 



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ARTICLE III.

Term; Termination


 


A.               
Term of Employment. This Agreement shall be binding upon and enforceable against the Company and the Executive
immediately when both parties execute the Agreement. The Agreement’s stated term and the employment relationship created
hereunder will begin on October 13, 2016 (the “Effective Date”) and will remain in effect until
the third anniversary of the Effective Date, unless earlier terminated in accordance with this Article III. The period during
which the Executive is employed under this Agreement will be referred to as the “Term” and the effective
date of the termination of the Executive’s employment will be referred to as the “Termination Date.”


 


B.                
Termination. Subject to the terms herein, either party may terminate the Executive’s employment at any
time; provided that the Executive will be required to provide the Company at least ninety (90) days’ advance written notice
of the Executive’s voluntary resignation. The Termination Date shall be the date stated in the notice of termination. Upon
termination of the Executive’s employment, the Company shall pay the Executive (i) any unpaid Base Salary accrued through
the Termination Date, (ii) any accrued and unpaid vacation pay to which the Executive is entitled as a matter of law or Company
policy, and (iii) any unreimbursed expenses properly incurred prior to the Termination Date
(the “Accrued Obligations”). The Executive’s termination under this Agreement shall also constitute
the Executive’s resignation as an officer or director of any affiliate or subsidiary of the Company, as applicable.


 


(i)                
Termination for Cause or Voluntary Resignation. In the event the Company terminates the Executive’s
employment for Cause (defined below) or the Executive voluntarily resigns without Good Reason (defined below), the Company shall
have no further liability or obligation to the Executive under this Agreement or in connection with the Executive’s employment
hereunder, except for the Accrued Obligations. The Accrued Obligations shall be payable in a lump sum within the time period required
by applicable law, and in no event later than thirty (30) days following the Termination Date. For purposes of this Agreement,
“Cause” means termination because of: (a) an act or acts of theft, embezzlement, fraud, or willful or
material misrepresentation by the Executive; (b) the Executive’s indictment or conviction of, or pleading nolo contendere
or guilty to, any crime; (c) the Executive’s failure or refusal to perform, or intentional disregard of, in any material
respect, the Executive’s duties and responsibilities hereunder; and (d) a material breach by the Executive of this Agreement
or any other agreement to which the Executive and the Company are parties. In each such event listed above, if the circumstances
are curable, the Company shall give the Executive written notice thereof which shall specify in reasonable detail the circumstances
constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty
(30) days after such notice.


 



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(ii)              
Termination Without Cause or for Good Reason. In the event the Executive’s employment is terminated
by the Company without Cause or by the Executive for Good Reason, the Executive shall receive the following, subject to the execution
and timely return by the Executive of a release of claims in the form to be delivered by the Company, which release shall, by its
terms, be irrevocable no later than the sixtieth (60th) day following the Termination Date: (a) the Accrued Obligations,
payable in a lump sum within the time period required by applicable law, and in no event later than thirty (30) days following
the Termination Date; (b) severance pay in an amount equal to the Executive’s Base Salary for twelve (12) months (the “Severance
Period”) plus the amount of the target Performance Bonus for the year in which the Termination Date occurs, payable in
equal installments in accordance with the normal payroll policies of the Company, with the first installment being paid on the
Company’s first regular pay date on or after the sixtieth (60th) day following the Termination Date, which initial payment
shall include all installment amounts that would have been paid during the first sixty (60) days following the termination of employment
had installments commenced immediately following the Termination Date; (c) any earned but unpaid Performance Bonus under Article
II, Section B relating to the calendar year prior to the calendar year in which the Termination Date occurs, such amount to
be paid within the time period set forth in Article II, Section B.; and (d) an additional lump sum cash payment sufficient
to provide the Executive the equivalent of the Company’s portion of the premium under the Company’s health insurance
benefits for twelve (12) months of COBRA coverage, such amount be paid on the Company’s first regular pay date on or after
the sixtieth (60th) day following the termination of employment. For purposes of this Agreement, “Good Reason”
means termination because of: (a) a material diminution without the Executive’s consent in the Executive’s duties and
responsibilities; and (b) a material breach by the Company of this Agreement or any other agreement to which the Executive and
the Company are parties. In each such event listed above, the Executive shall give the Company written notice thereof which shall
specify in reasonable detail the circumstances constituting Good Reason, and there shall be no Good Reason with respect to any
such circumstances if cured by the Company within thirty (30) days after such notice.


 





(iii)            
Termination following a Change in Control. The Executive shall have no specific right to terminate this Agreement
or right to any severance payments or other benefits solely as a result of a Change in Control (defined below). However, if following
a Change in Control, during the Term (a) the Executive terminates his employment with the Company for Good Reason or (b) the Company
terminates the Executive’s employment without Cause, subject to the execution and timely return by the Executive of a release
of claims in the form to be delivered by the Company, which release shall, by its terms, be irrevocable no later than the sixtieth
(60th) day following the termination of employment, all stock options, restricted stock, stock appreciation rights or
similar stock-based rights granted to the Executive shall vest in full and be immediately exercisable and any risk of forfeiture
included in restricted or other stock grants previously made to the Executive shall immediately lapse. For purposes of this Agreement,
“Change in Control” shall have the meaning set forth in the NanoVibronix, Inc. 2014 Long-Term Incentive
Plan, as such plan may be amended from time to time.


 


 


C.                
Survival. The Executive’s post-termination obligations in Article IV shall continue as provided
in this Agreement.


 



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ARTICLE IV.

Restrictive Covenants


 


In consideration for
(i) the Company’s promise to provide Confidential Information (defined below) to the Executive, (ii) the substantial economic
investment made by the Company in the Confidential Information and goodwill of the Company, and/or the business opportunities disclosed
or entrusted to the Executive, (iii) access to the Company’s customers and clients, and (iv) the Company’s employment
of the Executive pursuant to this Agreement and the compensation and other benefits provided by the Company to the Executive, to
protect the Company’s Confidential Information and business goodwill of the Company, the Executive agrees to the following
restrictive covenants. For the purposes of this Article IV, the term “Company” shall be read as
broadly as possible to include, without limitation, any of its affiliates.


 


A.               
Confidentiality.


 


(i)                
Confidential Information. During the Executive’s employment, the Company shall grant the Executive otherwise
prohibited access to its trade secrets and confidential information which is not known to the Company’s competitors or within
the Company’s industry generally, which was developed by the Company over a long period of time and/or at its substantial
expense, and which is of great competitive value to the Company, and access to the Company’s customers and clients. For purposes
of this Agreement, “Confidential Information” includes any trade secrets or confidential or proprietary
information of the Company, including, but not limited to, the following: methods of operation, products, inventions, services,
processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental
work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software,
development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and
sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business
plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer
and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic
personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing
strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations
and conclusions, information regarding the skills and compensation of employees and contractors of the Company, and other business
information disclosed to the Executive by the Company, either directly or indirectly, in writing, orally, or by drawings or observation.
“Confidential Information” does not include, and there shall be no obligation hereunder with respect
to, information that (i) is generally available to the public on the date of this Agreement or (ii) becomes generally available
to the public other than as a result of a disclosure not otherwise permissible hereunder.


 


(ii)              
No Unauthorized Use or Disclosure. The Executive acknowledges and agrees that Confidential Information is
proprietary to and a trade secret of the Company and, as such, is a special and unique asset of the Company, and that any disclosure
or unauthorized use of any Confidential Information by the Executive will cause irreparable harm and loss to the Company. The Executive
understands and acknowledges that each and every component of the Confidential Information (i) has been developed by the Company
at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties,
and (ii) constitutes a protectable business interest of the Company. The Executive acknowledges and agrees that the Company owns
the Confidential Information. The Executive agrees not to dispute, contest, or deny any such ownership rights either during or
after the Executive’s employment with the Company. The Executive agrees to preserve and protect the confidentiality of all
Confidential Information. The Executive agrees that the Executive shall not during the period of the Executive’s employment
with the Company and thereafter, directly or indirectly, disclose to any unauthorized person or use for the Executive’s own
account any Confidential Information without the Company’s consent. Throughout the Executive’s employment with the
Company thereafter: (i) the Executive shall hold all Confidential Information in the strictest confidence, take all reasonable
precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company policies protecting the Confidential
Information; and (ii) the Executive shall not, directly or indirectly, utilize, disclose or make available to any other person
or entity, any of the Confidential Information, other than in the proper performance of the Executive’s duties.


 



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(iii)            
Return of Property and Information. Upon the termination of the Executive’s employment for any reason,
the Executive shall immediately return and deliver to the Company any and all Confidential Information, software, devices, cell
phones, personal data assistants, credit cards, data, reports, proposals, lists, correspondence, materials, equipment, computers,
hard drives, papers, books, records, documents, memoranda, manuals, e-mail, electronic or magnetic recordings or data, including
all copies thereof, which belong to the Company or relate to the Company’s business and which are in the Executive’s
possession, custody or control, whether prepared by the Executive or others. If at any time after termination of the Executive’s
employment the Executive determines that the Executive has any Confidential Information in the Executive’s possession or
control, the Executive shall immediately return to the Company all such Confidential Information in the Executive’s possession
or control, including all copies and portions thereof.


 


B.                
Non-Competition. The Executive agrees that during the Restricted Period (defined below), other than in connection
with the Executive’s duties under this Agreement, the Executive shall not, and shall not use any Confidential Information
to, without the prior written consent of the Company, directly or indirectly, either individually or as a principal, partner, stockholder,
manager, agent, consultant, contractor, distributor, employee, lender, investor, or as a director or officer of any corporation
or association, or in any other manner or capacity whatsoever, become employed by, control, manage, carry on, join, lend money
for, operate, engage in, establish, perform services for, invest in, solicit investors for, consult for, do business with or otherwise
engage in any Competing Business (as defined). Notwithstanding the restrictions contained in this Article IV, Section B,
the Executive may own an aggregate of not more than two percent (2%) of the outstanding stock of any class of any corporation engaged
in a Competing Business, if such stock is listed on a national securities exchange in the United States (or a comparable exchange
in a foreign jurisdiction) or regularly traded in the over-the-counter market by a member of a national securities exchange in
the United States, without violating the provisions of Article IV, Section B.


 



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For purposes of this Agreement:


 


(i)                
“Restricted Period” means during the Executive’s employment with the Company and
for a period of twelve (12) months immediately following the date of Executive’s termination from employment for any reason.


 


(ii)              
“Competing Business” means any business, individual, partnership, firm, corporation or
other entity that is competing or that is preparing to compete with any aspect of the Company’s business, i.e., the development
and commercialization of noninvasive biological response-activating devices that target wound healing and pain therapy and any
other business the Company conducted during the Executive’s employment with the Company or prepared to conduct and is conducting
during the Restricted Period.


 


C.                
Non-Solicitation. The Executive agrees that during the Restricted Period, other than in connection with Executive’s
duties under this Agreement, the Executive shall not, and shall not use any Confidential Information to, directly or indirectly,
either as a principal, manager, agent, employee, consultant, officer, director, stockholder, partner, investor or lender or in
any other capacity, and whether personally or through other persons:


 


(i)                
Solicit business from, interfere with, induce, attempt to solicit business from, interfere with, induce or do business with
any actual or prospective customer, client, supplier (including any content providers), manufacturer, vendor or licensor of the
Company with whom the Company does or did business;


 


(ii)              
attempt to influence, encourage, persuade or induce any actual or prospective customer, client, supplier (including any
content providers), manufacturer, vendor or licensor of the Company with whom the Company does or did business to reduce the extent
of its business dealings with the Company; or


 


(iii)            
Solicit, induce or attempt to solicit or induce, engage or hire, on behalf of the Executive or any other person or entity,
any person who is an employee or consultant of the Company or who was employed by the Company within the preceding twelve (12)
months.


 


D.               
Non-Disparagement. The Executive agrees that the Company’s goodwill and reputation are assets of great
value to the Company which were obtained through great costs, time and effort. Therefore, the Executive agrees that during his
employment and after the termination of his employment, the Executive shall not in any way, directly or indirectly, disparage,
libel or defame the Company, its beneficial owners or its affiliates, their respective business or business practices, products
or services, or employees or agents.


 


E.                
Works.


 


(iv)            
Assignment of Work Product. For the purposes of this Agreement, the term “Work Product”
shall mean, collectively, all work product, information, inventions, original works of authorship, ideas, know-how, processes,
designs, computer programs, photographs, illustrations, developments, trade secrets and discoveries, including improvements thereto,
that the Executive conceives, creates, develops, makes, reduces to practice, or fixes in a tangible medium of expression, either
alone or with others. During the Restricted Period, the Executive agrees that the Executive shall promptly make full written disclosure
to the Company of all Work Product conceived, created, developed, made, reduced to practice, or fixed in a tangible medium of expression
during the period of the Executive’s employment with the Company. Executive hereby assigns and shall be deemed to have assigned
to the Company or its designee, all of the Executive’s right, title, and interest in and to any and all Work Product conceived,
created, developed, made, reduced to practice, or fixed in a tangible medium of expression during the period of the Executive’s
employment the Company that (a) relates in any manner to the previous, existing or contemplated business, work, or investigations
of the Company; (b) is or was suggested by, has resulted or will result from, or has arisen or will arise out of any work that
the Executive has done or may do for or on behalf of the Company; (c) has resulted or will result from or has arisen or will arise
out of any materials or information that may have been disclosed or otherwise made available to the Executive as a result of duties
assigned to the Executive by the Company; or (d) has been or will be otherwise made through the use of the Company’s time,
information, facilities, or materials, even if conceived, created, developed, made, reduced to practice, or fixed during other
than working hours. The Executive further acknowledges that all original works of authorship that have been or will be made or
fixed in a tangible medium of expression by the Executive (solely or jointly with others) within the scope of the Executive’s
employment with the Company that are protectable by copyright are “Works Made for Hire,” as that term is defined in
the United States Copyright Act. The Executive understands and agrees that the decision whether or not to commercialize or market
any Work Product is within the Company’s sole discretion and for the Company’s sole benefit, and that no royalty will
be due to the Executive as a result of the Company’s efforts to commercialize or market any such Work Product.


 



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(v)              
Patent and Copyright Registrations. The Executive agrees to assist the Company, or its designee, at the Company’s
expense, in every proper way to secure the Company’s rights in Work Product in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths,
assignments, affidavits, and all other instruments which the Company shall deem necessary in order to apply for and obtain such
rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title
and interest in and to such Work Product. The Executive further agrees that the Executive’s obligation to execute or cause
to be executed, when it is in the Executive’s power to do so, any such instrument or papers shall continue after the termination
of this Agreement.


 


F.                 
Tolling. If the Executive violates any of the restrictions contained in this Article IV, the Restricted
Period shall be suspended and shall not run in favor of the Executive from the time of the commencement of any violation until
the time when the Executive cures the violation to the satisfaction of the Company.


 


G.               
Remedies. The Executive acknowledges that the restrictions contained in Article IV of this Agreement,
in view of the nature of the Company’s business and the Executive’s position with the Company, are reasonable and necessary
to protect the Company’s legitimate business interests and that any violation of Article IV of this Agreement would
result in irreparable injury to the Company. In the event of a breach by the Executive of Article IV of this Agreement,
then the Company shall be entitled to a temporary restraining order and injunctive relief restraining the Executive from the commission
of any breach. Such remedies shall not be deemed the exclusive remedies for a breach or threatened breach of this Article IV
but shall be in addition to all remedies available at law or in equity, including the recovery of damages from the Executive, the
Executive’s agents, any future employer of the Executive, and any person that conspires or aids and abets the Executive in
a breach or threatened breach of this Agreement.


 



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H.               
Reasonableness. The Executive hereby represents to the Company that the Executive has read and understands,
and agrees to be bound by, the terms of this Article IV. The Executive acknowledges that the scope of the covenants contained
in this Article IV are fair and reasonable in light of (i) the nature and wide geographic scope of the operations of the
Company’s business; and (ii) the amount of compensation, trade secrets and Confidential Information that the Executive is
receiving in connection with the Executive’s employment by the Company.


 


I.                  
Reformation. If any of the aforesaid restrictions are found by a court of competent jurisdiction to be unreasonable,
or overly broad as to geographic area or time, or otherwise unenforceable, the Parties intend for the restrictions herein set forth
to be modified by the court making such determination so as to be reasonable and enforceable and, as so modified, to be fully enforced.
By agreeing to this contractual modification prospectively at this time, the Company and the Executive intend to make this provision
enforceable under the law or laws of all applicable jurisdictions so that the entire agreement not to compete and this Agreement
as prospectively modified shall remain in full force and effect and shall not be rendered void or illegal.


 


J.                  
No Previous Restrictive Agreements. The Executive represents that, except as disclosed to the Company, the
Executive is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing
any trade secret or confidential or proprietary information in the course of the Executive’s employment with the Company
or to refrain from competing, directly or indirectly, with the business of such previous employer or any other party. The Executive
further represents that the Executive’s performance of all the terms of this Agreement and the Executive’s work duties
for the Company do not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired
by the Executive in confidence or in trust prior to the Executive’s employment with the Company. The Executive shall not
disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous
employer or others.


 


 


ARTICLE V.

Miscellaneous Provisions


 


A.               
Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware.


 



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B.                
Headings. The paragraph headings contained in this Agreement are for convenience only and shall in no way
or manner be construed as a part of this Agreement.


 


C.                
Severability. In the event that any court of competent jurisdiction holds any provision in this Agreement
to be invalid, illegal or unenforceable in any respect, the remaining provisions shall not be affected or invalidated and shall
remain in full force and effect.


 


D.               
Reformation. In the event any court of competent jurisdiction holds any restriction in this Agreement to be
unreasonable and/or unenforceable as written, the court may reform this Agreement to make it enforceable, and this Agreement shall
remain in full force and effect as reformed by the court.


 


E.                
Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and fully supersedes
any and all prior agreements, understanding or representations between the Parties pertaining to or concerning the subject matter
of this Agreement, including, without limitation, the Executive’s employment with the Company. No oral statements or prior
written material not specifically incorporated in this Agreement shall be of any force and effect, and no changes in or additions
to this Agreement shall be recognized, unless incorporated in this Agreement by written amendment, such amendment to become effective
on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement. The Executive acknowledges
and represents that in executing this Agreement, the Executive did not rely, and has not relied, on any communications, promises,
statements, inducements, or representation(s), oral or written, by the Company, except as expressly contained in this Agreement.
The Parties represent that they relied on their own judgment in entering into this Agreement.


 


F.                 
Waiver. No waiver of any breach of this Agreement shall be construed to be a waiver as to succeeding breaches.
The failure of either party to insist in any one or more instances upon performance of any terms or conditions of this Agreement
shall not be construed as a waiver of future performance of any such term, covenant or condition but the obligations of either
party with respect thereto shall continue in full force and effect. The breach by one party to this Agreement shall not preclude
equitable relief or the obligations in Article IV.


 


G.               
Modification. The provisions of this Agreement may be amended, modified or waived only with the prior written
consent of the Company and the Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement
shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Agreement or
any provision hereof.


 


H.               
Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their
respective heirs, successors and permitted assigns. The Executive may not assign this Agreement to a third party. The Company may
assign its rights, together with its obligations hereunder, to any affiliate and/or subsidiary of the Company or any successor
thereto or any purchaser of substantially all of the assets of the Company.


 


I.                  
Code Section 409A.


 



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(i)                
To the extent (A) any payments to which the Executive becomes entitled under this Agreement, or any agreement or plan referenced
herein, in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject
to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); (B) the Executive is deemed
at the time of his separation from service to be a “specified employee” under Section 409A of the Code; and (C) at
the time of the Executive’s separation from service the Company is publicly traded (as defined in Section 409A of Code),
then such payments (other than any payments permitted by Section 409A of the Code to be paid within six (6) months of the Executive’s
separation from service) shall not be made until the earlier of (1) the first day of the seventh month following the Executive’s
separation from service or (2) the date of the Executive’s death following such separation from service. Upon the expiration
of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum
or in installments) in the absence of this Article V, Section I shall be paid to the Executive or the Executive’s
beneficiary in one lump sum, plus interest thereon at the Delayed Payment Interest Rate (as defined below) computed from the date
on which each such delayed payment otherwise would have been made to the Executive until the date of payment. For purposes of the
foregoing, the “Delayed Payment Interest Rate” shall mean the national average annual rate of interest
payable on jumbo six-month bank certificates of deposit, as quoted in the business section of the most recently published Sunday
edition of The New York Times preceding the Executive’s separation from service.


 


(ii)              
To the extent any benefits provided under Article III, Section B above are otherwise taxable to the Executive, such
benefits shall, for purposes of Section 409A of the Code, be provided as separate in-kind payments of those benefits, and the provision
of in-kind benefits during one calendar year shall not affect the in-kind benefits to be provided in any other calendar year.


 


(iii)            
In the case of any amounts payable to the Executive under this Agreement, or under any plan of the Company, that may be
treated as payable in the form of “a series of installment payments,” as defined in Treas. Reg. §1.409A-2(b)(2)(iii),
the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments for purposes
of Treas. Reg. §1.409A-2(b)(2)(iii).


 


(iv)            
It is intended that this Agreement comply with or be exempt from the provisions of Section 409A of the Code and the Treasury
Regulations and guidance of general applicability issued thereunder, and in furtherance of this intent, this Agreement shall be
interpreted, operated, and administered in a manner consistent with such intent.


 


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IN WITNESS WHEREOF,
the Company and the Executive have caused this Agreement to be executed on the date first set forth above, to be binding as of
that date.


 


 


EXECUTIVE: 


 


 


/s/ Brian Murphy


Brian Murphy


 


 


 


COMPANY: 


 


NanoVibronix, Inc.


 


 


By:/s/ Ira Greenstein


 








    	 	Signature Page to Employment Agreement