EXHIBIT 4.1


 





DESIGNATION,
PREFERENCES, RIGHTS AND LIMITATIONS


OF


SERIES
E PREFERRED STOCK


OF


NANOVIBRONIX,
INC.



 


Pursuant to Section 151 of the


General
Corporation Law of the State of Delaware


 


Pursuant
to Section 151 of the General Corporation Law of the State of Delaware, NanoVibronix, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions
of Section 103 thereof, does hereby submit the following:


 


WHEREAS,
the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”)
authorizes the issuance of up to five million (5,000,000) shares of preferred stock, par value $0.001 per share, of the Corporation
(“Preferred Stock”) in one or more series, and expressly authorizes the Board of Directors of the Corporation
(the “Board”), subject to limitations prescribed by law, to provide, out of the unissued shares of Preferred
Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included
in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions and limitations of the shares
of such series;


 


WHEREAS,
pursuant to that certain Designation, Preferences, Rights and Limitations (the “Certificate of Designation”)
of Series E Preferred Stock of the Corporation, the Board has established and fixed the number of shares to be included in the
Series E Convertible Preferred Stock and the designation, rights, preferences and limitations of the shares of such Series E Convertible
Preferred Stock;


 


WHEREAS,
it is the desire of the Board to amend and restate the Certificate of Designation to revise the designation, rights, preferences
and limitations of the shares of the Series E Convertible Preferred Stock, in each case, in accordance herewith.


 


NOW,
THEREFORE, BE IT RESOLVED, that the Board does hereby amend and restate the Certificate of Designation to revise the designation,
rights, preferences and limitations of the shares of the Series E Convertible Preferred Stock, in each case, as follows:


 


Section
1. Designation. The shares of such series shall be designated “Series E Convertible Preferred Stock,” and the
number of shares constituting such series shall be 1,999,494 (the “Series E Preferred Stock”). The number of
shares of Series E Preferred Stock may be increased or decreased by resolution of the Board and the approval by the holders of
a majority of the shares of the outstanding Series E Preferred Stock, voting as a separate class; provided that no decrease shall
reduce the number of shares of Series E Preferred Stock to a number less than the number of shares of such series then outstanding.


 






     


     


    




 


1. Definitions.
With respect to the Series E Preferred Stock, the following terms shall have the following meanings:


 


“Affiliate”
means any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is
under common control with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act.
With respect to a Series E Holder, any investment fund or managed account that is managed on a discretionary basis by the same
investment manager as such Series E Holder will be deemed to be an Affiliate of such Series E Holder.


 


“Alternate
Consideration” shall have the meaning set forth in Section E.7(b) of this Article FOURTH.


 


“Beneficial
Ownership Limitation” shall have the meaning set forth in Section E.6(b)(iv) of this Article FOURTH.


 


“Business
Day” means any day except Saturday, Sunday, any day which shall be a federal legal holiday in the United States or any
day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.


 


“Closing
Sale Price” means, for any security as of any date, the last closing trade price for such security prior to 4:00 p.m.,
New York City time, on the principal securities exchange or trading market where such security is listed or traded, as reported
by Bloomberg, L.P. (or an equivalent, reliable reporting service mutually acceptable to and hereafter designated by the Series
E Holders holding a majority of the then-outstanding Series E Preferred Stock and the Corporation), or if the foregoing do not
apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg, L.P., or, if no last trade price is reported for such security by Bloomberg, L.P., the average of the
bid prices of any market makers for such security as reported on the any over the counter market operated by OTC Markets Group,
Inc. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Sale Price of such security on such date shall be the fair market value as determined in good faith by the Board of Directors
of the Corporation.


 


“Commission”
means the Securities and Exchange Commission.


 


“Common
Stock Equivalents” means any securities of the Corporation or its subsidiaries which would entitle the holder thereof
to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.


 


“Conversion
Date” shall have the meaning set forth in Section E.6(a) of this Article FOURTH.


 






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“Conversion
Price” shall mean $2.00, as adjusted pursuant to Section E.7 of this Article FOURTH.


 


“Conversion
Ratio” for each share of Series E Preferred Stock shall be equal to the Stated Value divided by the Conversion Price.


 


“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series E Preferred
Stock in accordance with the provisions of Section E.6 of Article FOURTH hereof.


 


“Daily
Failure Amount” means the product of (x) .005 multiplied by (y) the Closing Sale Price of the Common Stock on the applicable
Share Delivery Date.


 


“DWAC
Delivery” shall have the meaning set forth in Section E.6(a) of this Article FOURTH.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Fundamental
Transaction” shall have the meaning set forth in Section E.7(b) of this Article FOURTH.


 


“Notice
of Conversion” shall have the meaning set forth in Section E.6(a) of this Article FOURTH.


 


“Person”
means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Series
E Holder” means any holder of Series E Preferred Stock.


 


“Series
E Preferred Stock Register” shall have the meaning set forth in Section E.2 of this Article FOURTH.


 


“Share
Delivery Date” shall have the meaning set forth in Section E.6(c)(i) of Article FOURTH.


 


“Stated
Value” shall mean $2.00.


 


“Stockholder
Meeting” means an annual or special meeting of the stockholders of the Company at which the stockholder vote for approval
of resolutions (“Stockholder Resolutions”) providing for the Company’s issuance of all the Conversion
Shares in accordance with applicable law and the rules and regulations of the Nasdaq Stock Market (such affirmative approval being
referred to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder
Approval Date”).


 






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“Voting
Ratio” for each share of Series E Preferred Stock shall be equal to the Stated Value divided by $3.53.


 


2. Number
and Designation; Assignment. The number of shares designated as Series E Preferred Stock shall not be subject to increase
without the written consent of the Series E Holders holding a majority of the then issued and outstanding Series E Preferred Stock.
The Corporation shall register shares of the Series E Preferred Stock, upon records to be maintained by the Corporation for that
purpose (the “Series E Preferred Stock Register”), in the name of the Series E Holders thereof from time to
time. The Corporation may deem and treat the registered Series E Holder of shares of Series E Preferred Stock as the absolute
owner thereof for the purpose of any conversion thereof and for all other purposes. The Corporation shall register the transfer
of any shares of Series E Preferred Stock in the Series E Preferred Stock Register, upon surrender of the certificates evidencing
such shares to be transferred, duly endorsed by the Series E Holder thereof, to the Corporation at its address specified herein.
Upon any such registration or transfer, a new certificate evidencing the shares of Series E Preferred Stock so transferred shall
be issued to the transferee and a new certificate evidencing the remaining portion of the shares not so transferred, if any, shall
be issued to the transferring Series E Holder, in each case, within three Business Days.


 


3.
 Dividends. Series E Holders shall be entitled to receive, and the Corporation
shall pay, dividends on shares of Series E Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in the same
form as dividends (other than dividends in the form of Common Stock) actually paid on shares of the Common Stock when, as and
if such dividends (other than dividends in the form of Common Stock) are specifically declared by the Board of Directors of the
Corporation to be payable to the holders of the Common Stock. Other than as set forth in the previous sentence, no other dividends
shall be paid on shares of Series E Preferred Stock; and the Corporation shall pay no dividends (other than dividends in the form
of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.


 


4. Voting
Rights. Following the Stockholder Approval Date, and subject to the limitations set forth in Section E.6(a) and Section E.6(b)
herein, the Series E Holder of each share of Series E Preferred Stock shall be entitled to the number of votes equal to the number
of shares of Common Stock equal to the Voting Ratio. Subject to the preceding sentence, the Series E Holder shall have voting
rights and powers equal to the voting rights and powers of the Common Stock (except as otherwise expressly provided herein or
as required by law, voting together with the Common Stock as a single class) and shall be entitled to notice of any stockholders’
meeting in accordance with the Bylaws of the Corporation. Fractional votes shall not, however, be permitted and any fractional
voting rights resulting from the above formula (after aggregating all shares into which shares of Series E Preferred Stock held
by each Series E Holder could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward).
For the avoidance of doubt, the Series E Holders shall have no voting rights until the Stockholder Approval Date.


 






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5.
 Liquidation. Upon liquidation, dissolution or winding up of the Corporation (a “Liquidation”),
whether voluntary or involuntary, each Series E Holder shall be entitled to receive the amount of cash, securities or other property
to which such holder would be entitled to receive with respect to such shares of Series E Preferred Stock if such shares had been
converted to Common Stock immediately prior to such Liquidation (without giving effect for such purposes to the limitation on
Conversion set forth in Section the Beneficial Ownership Limitation set forth in Section E.6(b) of this Article FOURTH, subject
to the preferential rights of holders of any senior securities of the Corporation.


 


6. Conversion.


 


(a)
Conversion at Option of Holder. Each share of Series E Preferred Stock shall be convertible, at any time and from time
to time from and after the Stockholder Approval Date, at the option of the Series E Holder thereof, into a number of shares of
Common Stock equal to the Conversion Ratio. Except for a conversion following a Fundamental Transaction or following a notice
provided for under Section E.7(d)(ii) of this Article FOURTH, Series E Holders shall exercise the option to convert by providing
the Corporation with a written notice of conversion (a “Notice of Conversion”), duly completed and executed.
Each Notice of Conversion shall specify the number of shares of Series E Preferred Stock to be converted, the number of shares
of Series E Preferred Stock owned prior to the requested conversion, the number of shares of Series E Preferred Stock owned subsequent
to the requested conversion and the date on which such conversion is to be effected, which date may not be prior to the date the
applicable Series E Holder delivers such Notice of Conversion to the Corporation (the “Conversion Date”). If
no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the Business Day that the Corporation
receives the Notice of Conversion. Provided the Corporation’s transfer agent is participating in the Depository Trust Company
(“DTC”) Fast Automated Securities Transfer program and the applicable Conversion Shares are either registered
for resale or eligible for resale without restriction pursuant to Rule 144 of the Securities Act, the Notice of Conversion may
specify, at the Series E Holder’s election, whether the applicable Conversion Shares shall be credited to the account of
the Series E Holder’s prime broker with DTC through its Deposit Withdrawal Agent Commission system (a “DWAC Delivery”).
The calculations set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error.


 


(b)
Beneficial Ownership Limitation.


 


(i)
Notwithstanding anything herein to the contrary, the Corporation shall not effect any conversion of the Series E Preferred Stock,
and a Series E Holder shall not have the right to convert any portion of its Series E Preferred Stock, to the extent that, after
giving effect to an attempted conversion, such Series E Holder (together with such Series E Holder’s Affiliates, and any
other Person whose beneficial ownership of Common Stock would be aggregated with the Series E Holder’s for purposes of Section
13(d) of the Exchange Act and the applicable rules and regulations of the Commission, including any “group” of which
the Series E Holder is a member) would beneficially own a number of shares of Common Stock in excess of the Beneficial Ownership
Limitation (as defined below).


 






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(ii)
For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Series E Series
E Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series E Preferred
Stock subject to conversion with respect to which the determination of such sentence is being made, but shall exclude the number
of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted shares of Series E Preferred Stock
beneficially owned by such Series E Holder or any of its Affiliates, and (B) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Corporation beneficially owned by such Series E Holder or any of its Affiliates (including,
without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise
analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable rules and regulations of
the Commission. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange
Act and the applicable rules and regulations of the Commission.


 


(iii)
To the extent that the limitation contained in this Section E.6(b) of Article FOURTH applies, the determination of whether the
Series E Preferred Stock may be converted (in relation to other securities owned by the Series E Holder together with any Affiliates)
and of which portion of its Series E Preferred Stock may be converted shall be in the sole discretion of the Series E Holder and
the submission of a Notice of Conversion shall be deemed to be such Series E Holder’s determination of whether the shares
of Series E Preferred Stock may be converted (in relation to other securities owned by such Series E Holder together with any
Affiliates) and how many shares of the Series E Preferred Stock are convertible, in each case subject to the Beneficial Ownership
Limitation. For purposes of this Section, in determining the number of outstanding shares of Common Stock, a Series E Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Corporation’s most recent public filing
with the Commission, (B) a more recent public announcement by the Corporation or (C) a more recent notice by the Corporation or
the Corporation’s transfer agent to the Series E Holder setting forth the number of shares of Common Stock then outstanding.
For any reason at any time, upon the written or oral request of a Series E Holder (which may be by email), the Corporation shall,
within two (2) Business Days of such request, confirm orally and in writing to such Series E Holder (which may be via email) the
number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to any actual conversion or exercise of securities of the Corporation, including shares of Series E Preferred
Stock, by such Series E Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock
was last publicly reported or confirmed to the Series E Holder.


 






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(iv)
The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock pursuant to such conversion (to the extent permitted
pursuant to this Section). At any time following the Stockholder Approval Date, the Series E Holder, upon not less than 61 days’
prior notice to the Corporation, may increase (in the event that that the Beneficial Ownership Limitation is subsequently reduced)
or decrease the Beneficial Ownership Limitation provisions of this Section, provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon the conversion the Series E Preferred Stock held by the Series E Holder and the provisions of this
Section shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered
to the Corporation and shall only be effective with respect to such Series E Holder. The provisions of this Section shall be construed,
corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitation herein contained and the
shares of Common Stock underlying the Series E Preferred Stock in excess of the Beneficial Ownership Limitation shall not be deemed
to be beneficially owned by the Series E Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of
the Exchange Act.


 


(v)
At any time following the Stockholder Approval Date, the Beneficial Ownership Limitation provisions of this Section may be waived
at the election of any Series E Holder upon not less than 61 days’ prior written notice to the Corporation. Any such waiver
will not be effective and the provisions of this Section shall continue to apply until the 61st day (or later, if stated in the
notice) after such notice of waiver is delivered to the Corporation.


 


(c)
Mechanics of Conversion.


 


(i)
Delivery of Certificate or Electronic Issuance Upon Conversion. Not later than three Business Days after the applicable
Conversion Date, or if the Series E Holder requests the issuance of physical certificate(s), two Business Days after receipt by
the Corporation of the original certificate(s) representing such shares of Series E Preferred Stock being converted, duly endorsed,
and the accompanying Notice of Conversion (the “Share Delivery Date”), the Corporation shall (a) deliver, or
cause to be delivered, to the converting Series E Holder a physical certificate or certificates representing the number of Conversion
Shares being acquired upon the conversion of shares of Series E Preferred Stock or (b) in the case of a DWAC Delivery, electronically
transfer such Conversion Shares by crediting the account of the Series E Holder’s prime broker with DTC through its DWAC
system. If in the case of any Notice of Conversion such certificate or certificates are not delivered to or as directed by or,
in the case of a DWAC Delivery, such shares are not electronically delivered to or as directed by, the applicable Series E Holder
by the Share Delivery Date, the applicable Series E Holder shall be entitled to elect to rescind such Conversion Notice by written
notice to the Corporation at any time on or before its receipt of such certificate or certificates for Conversion Shares or electronic
receipt of such shares, as applicable, in which event the Corporation shall promptly return to such Series E Holder any original
Series E Preferred Stock certificate delivered to the Corporation and such Series E Holder shall promptly return to the Corporation
any Common Stock certificates or otherwise direct the return of any shares of Common Stock delivered to the Series E Holder through
the DWAC system, representing the shares of Series E Preferred Stock unsuccessfully tendered for conversion to the Corporation.


 






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(ii)
Obligation Absolute. Subject to Section E.6(b) hereof and subject to a Series E Holder’s right to rescind a Conversion
Notice pursuant to Section E.6(c)(i) above, the Corporation’s obligation to issue and deliver the Conversion Shares upon
conversion of Series E Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by a Series E Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery
of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by such Series E Holder or any other Person of any obligation to the Corporation or any violation
or alleged violation of law by such Series E Holder or any other Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Corporation to such Series E Holder in connection with the issuance of such Conversion
Shares. Subject to the Beneficial Ownership Limitation herein and subject to a Series E Holder’s right to rescind a Conversion
Notice pursuant to Section E.6(c)(i) above, in the event a Series E Holder shall elect to convert any or all of its Series E Preferred
Stock, the Corporation may not refuse conversion based on any claim that such Series E Holder or any one Person associated or
affiliated with such Series E Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction
from a court, on notice to such Series E Holder, restraining and/or enjoining conversion of all or part of the Series E Preferred
Stock of such Series E Holder shall have been sought and obtained by the Corporation, and the Corporation posts a surety bond
for the benefit of such Series E Holder in the amount of 150% of the value of the Conversion Shares into which would be converted
the Series E Preferred Stock which is subject to such injunction, which bond shall remain in effect until the completion of arbitration/litigation
of the underlying dispute and the proceeds of which shall be payable to such Series E Holder to the extent it obtains judgment.
In the absence of such injunction, the Corporation shall, subject to the Beneficial Ownership Limitation herein and subject to
Series E Holder’s right to rescind a Conversion Notice pursuant to Section E.6(c)(i) above, issue Conversion Shares upon
a properly noticed conversion. If the Corporation fails to deliver to a Series E Holder such certificate or certificates, or electronically
deliver (or cause its transfer agent to electronically deliver) such shares in the case of a DWAC Delivery, pursuant to Section
E.6(c)(i) on or prior to the fifth (5th) Business Day after the Share Delivery Date applicable to such conversion (other than
a failure caused by incorrect or incomplete information provided by Series E Holder to the Corporation), then, unless the Series
E Holder has rescinded the applicable Conversion Notice pursuant to Section E.6(c)(i) above, the Corporation shall pay (as liquidated
damages and not as a penalty) to such Series E Holder an amount payable in cash equal to the product of (x) the number of Conversion
Shares required to have been issued by the Corporation on such Share Delivery Date, (y) an amount equal to the Daily Failure Amount
and (z) the number of Business Days actually lapsed after such fifth (5th) Business Day after the Share Delivery Date during which
such certificates have not been delivered, or, in the case of a DWAC Delivery, such shares have not been electronically delivered.
Nothing herein shall limit a Series E Holder’s right to pursue actual damages for the Corporation’s failure to deliver
Conversion Shares within the period specified herein and such Series E Holder shall have the right to pursue all remedies available
to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief;
provided that Series E Holder shall not receive duplicate damages for the Corporation’s failure to deliver Conversion Shares
within the period specified herein. The exercise of any such rights shall not prohibit a Series E Holder from seeking to enforce
damages pursuant to any other Section hereof or under applicable law.


 






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(iii)
Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available
out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series E Preferred
Stock, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Series E Holders,
not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments of
Section D.7 of this Article FOURTH) upon the conversion of all outstanding shares of Series E Preferred Stock. The Corporation
covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully
paid and nonassessable.


 


(iv)
Fractional Shares. No fractional shares of Common Stock shall be issued upon the conversion of the Series E Preferred Stock.
As to any fraction of a share which a Series E Holder would otherwise be entitled to receive upon such conversion, such fraction
shall be rounded up or down to the next whole share.


 


(v)
Transfer Taxes and Expenses. The issuance of certificates for shares of the Common Stock upon conversion of the Series
E Preferred Stock shall be made without charge to any Series E Holder for any documentary stamp or similar taxes that may be payable
in respect of the issue or delivery of such certificates, provided that the Corporation shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name
other than that of the registered Series E Holder(s) of such shares of Series E Preferred Stock and the Corporation shall not
be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall
have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such
tax has been paid. The Corporation shall pay all transfer agent fees required for processing of any Notice of Conversion.


 


(d)
Status as Stockholder. Upon each Conversion Date, (i) the shares of Series E Preferred Stock being converted shall be deemed
converted into shares of Common Stock and (ii) the Series E Holder’s rights as a holder of such converted shares of Series
E Preferred Stock shall cease and terminate, excepting only the right to receive certificates for such shares of Common Stock
and to any remedies provided herein or otherwise available at law or in equity to such Series E Holder because of a failure by
the Corporation to comply with the terms herein. In all cases, the holder shall retain all of its rights and remedies for the
Corporation’s failure to convert Series E Preferred Stock.


 






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7. Certain
Adjustments.


 


(a)
 Stock Dividends and Stock Splits. If the Corporation, at any time while this
Series E Preferred Stock is outstanding: (A) pays a stock dividend or otherwise makes a distribution or distributions payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation
upon conversion of this Series E Preferred Stock) with respect to the then outstanding shares of Common Stock; (B) subdivides
outstanding shares of Common Stock into a larger number of shares; or (C) combines (including by way of a reverse stock split)
outstanding shares of Common Stock into a smaller number of shares, then the Conversion Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding
immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately
after such event (excluding any treasury shares of the Corporation). Any adjustment made pursuant to this Section E.7(a) shall
become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.


 


(b)
 Fundamental Transaction. If, at any time while this Series E Preferred Stock
is outstanding, (A) the Corporation effects any merger or consolidation of the Corporation with or into another Person (other
than a merger in which the Corporation is the surviving or continuing entity and its Common Stock is not exchanged for or converted
into other securities, cash or property), (B) the Corporation effects any sale of all or substantially all of its assets in one
transaction or a series of related transactions, (C) any tender offer or exchange offer (whether by the Corporation or another
Person) is completed pursuant to which all of the Common Stock is exchanged for or converted into other securities, cash or property,
or (D) the Corporation effects any reclassification of the Common Stock or any compulsory share exchange pursuant (other than
as a result of a dividend, subdivision or combination covered by Section E.7(b) above) to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”),
then, upon any subsequent conversion of this Series E Preferred Stock the Series E Holders shall have the right to receive, in
lieu of the right to receive Conversion Shares, for each Conversion Share that would have been issuable upon such conversion immediately
prior to the occurrence of such Fundamental Transaction, the same kind and amount of securities, cash or property as it would
have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of one share of Common Stock (the “Alternate Consideration”). For purposes of any such
subsequent conversion, the determination of the Conversion Ratio shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction,
and the Corporation shall adjust the Conversion Ratio in a reasonable manner reflecting the relative value of any different components
of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Series E Holders shall be given the same choice as to the Alternate Consideration it receives
upon any conversion of this Series E Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate
the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file an amendment
to this Amended and Restated Certificate of Incorporation or separate Certificate of Designation with the same terms and conditions
and issue to the Series E Holders new preferred stock consistent with the foregoing provisions and evidencing the Series E Holders’
right to convert such preferred stock into Alternate Consideration. The terms of any agreement to which the Corporation is a party
and pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity
to comply with the provisions of this Section E.7(b) and insuring that the Series E Preferred Stock (or any such replacement security)
will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction. The Corporation shall cause
to be delivered to each Series E Holder, at its last address as it shall appear upon the stock books of the Corporation, written
notice of any Fundamental Transaction at least 20 calendar days prior to the date on which such Fundamental Transaction is expected
to become effective or close.


 






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(c) Calculations.
All calculations under this Section E.7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.
For purposes of this Section E.7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.


 


(d) Notice
to Holders.


 


(i) Adjustment
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section E.7, the Corporation
shall promptly deliver to each Series E Holder a notice setting forth the Conversion Ratio after such adjustment and setting forth
a brief statement of the facts requiring such adjustment.


 


(ii)
Other Notices. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required
in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party,
any sale or transfer of all or substantially all of the assets of the Corporation, of any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be
filed at each office or agency maintained for the purpose of conversion of this Series E Preferred Stock, and shall cause to be
delivered to each Series E Holder at its last address as it shall appear upon the stock books of the Corporation, at least 20
calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common
Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such
notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice.


 






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8.
Miscellaneous.


 


(a)
Notices. Any and all notices or other communications or deliveries to be provided by the Series E Holders hereunder including,
without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally
recognized overnight courier service, addressed to the Corporation, at 525 Executive Blvd., Elmsford, NY 10523, facsimile number
(631) 574-4401, or such other facsimile number or address as the Corporation may specify for such purposes by notice to the Series
E Holders delivered in accordance with this Section. Any and all notices or other communications or deliveries to be provided
by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service addressed to each Series E Holder at the facsimile number or address of such Series E Holder appearing on the
books of the Corporation, or if no such facsimile number or address appears on the books of the Corporation, at the principal
place of business of such Series E Holder. Any notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile
number specified in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the date immediately following the
date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section
between 5:30 p.m. and 11:59 p.m. (New York City time) on any date, (iii) the second Business Day following the date of mailing,
if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required
to be given.


 


(b) Lost
or Mutilated Series E Preferred Stock Certificate. If a Series E Holder’s Series E Preferred Stock certificate shall
be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon
cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate
for the shares of Series E Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such
loss, theft or destruction of such certificate, and of the ownership thereof, reasonably satisfactory to the Corporation and,
in each case, customary and reasonable indemnity, if requested. Applicants for a new certificate under such circumstances shall
also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Corporation
may prescribe.


 


(c)
 Status of Converted Series E Preferred Stock. If any shares of Series E Preferred
Stock shall be converted or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares
of Preferred Stock and shall no longer be designated as Series E Preferred Stock.


 


RESOLVED,
FURTHER, that the Chief Executive Officer or Secretary of the Corporation be and they hereby are authorized and directed to prepare
and file this Certificate of Designation in accordance with the foregoing resolution and the provisions of Delaware law.


 






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IN
WITNESS WHEREOF, NanoVibronix, Inc. has caused this Certificate of Designation to be duly executed by its authorized corporate
officer this 15th day of November, 2019.


 





	 	NANOVIBRONIX, INC. 
	 	 	 
	 	By:	/s/ Brian Murphy
	 	Name:	Brian Murphy 
	 	Title:	Chief Executive Officer 









 


 


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