EXHIBIT 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 24, 2009 (this "AGREEMENT"), by
and among Ivivi Technologies, Inc., a New Jersey corporation (the "COMPANY"),
Ivivi Technologies, LLC, a Delaware limited liability company (the "BUYER"), and
the other parties listed on the signature pages hereto (each, a "STOCKHOLDER"
and collectively, the "STOCKHOLDERS"). Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Purchase Agreement (as defined below).
WHEREAS, as of the date hereof, each of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
Ph.D., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D., ▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D. and ▇▇ ▇▇▇▇▇▇ (each, a
"CONTINGENT STOCKHOLDER" and collectively, the "CONTINGENT STOCKHOLDERS"), among
others, is a party to that certain Amended and Restated Voting Agreement, dated
as of August 30, 2006, among the Company and the shareholders listed on the
signature pages thereto (the "EXISTING VOTING AGREEMENT"), pursuant to which
Andre' ▇. ▇▇▇▇▇▇ has the right to exercise or direct the vote, until October 24,
2009 (in which date the Existing Voting Agreement shall expire with respect to
the Contingent Stockholders), of all of the shares of Company Common Stock owned
by each Contingent Stockholder, and each of the Contingent Stockholders agrees
to enter into this Agreement as of the date hereof (and for purposes of SECTION
1.01 and SECTION 1.02 of this Agreement only after the expiration of the
Existing Voting Agreement if the Company Meeting has not occur as of such date);
WHEREAS, as of the date hereof, subject to the Existing Voting
Agreement, each Stockholder (i) is the record or beneficial holder of, and has
the sole right to vote and dispose of, the number of issued and outstanding
shares of Company Common Stock and (ii) has the right to exercise or direct the
vote, whether by proxy or otherwise, of the number of shares of Company Common
Stock, in each case, as set forth opposite such Stockholder's name on ANNEX I
(all Company Common Stock owned of record or beneficially by any Stockholder as
of the date hereof as set forth on ANNEX I, together with any Company Common
Stock that are hereafter issued to or otherwise acquired by such Stockholder
prior to the termination of this Agreement (including pursuant to any exercise
of stock options or exercise or conversion of other securities, or pursuant to a
stock dividend, distribution, split-up, recapitalization, combination or similar
transaction), and any Company Common Stock with respect to which any Stockholder
has as of the date hereof, or acquires prior to the termination hereof, the
right to exercise or direct the vote, whether by proxy or otherwise, being
hereinafter referred to as the "SUBJECT SHARES");
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, the Buyer and Ajax Capital LLC, a Delaware limited
liability company, are entering into that certain Asset Purchase Agreement,
dated as of the date hereof (the "PURCHASE AGREEMENT"), pursuant to which, among
other things, the Buyer has agreed to purchase substantially all of the assets,
and to assume certain liabilities, of the Company (the "TRANSACTION"); and
WHEREAS, as a condition to its willingness to enter into the Purchase
Agreement, the Buyer required that each Stockholder, and in order to induce the
Buyer to enter into the Purchase Agreement, each Stockholder has agreed to,
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1
AGREEMENT TO VOTE
Section 1.01. VOTING OF SUBJECT SHARES. Each Stockholder (and with
respect to each Contingent Stockholder, only upon the expiration of the Existing
Voting Agreement) severally as to itself only agrees that, until the date this
Agreement is terminated in accordance with SECTION 4.03, at any Company Meeting,
such Stockholder shall, or shall cause the holder of record on any applicable
record date to, vote (or cause to be voted) its, his or her Subject Shares:
(i) in favor of the approval of the Purchase Agreement, the
Transaction and the other transactions contemplated thereby;
(ii) against the approval of any matter or proposal submitted to
the shareholders of the Company for approval, if approval of such matter or
proposal would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under the
Purchase Agreement; and
(iii) against (A) any merger or other business combination
involving the Company, (B) a sale or transfer of a material amount of assets or
capital stock of the Company (other than the Transaction) or (C) any action that
is intended, or could reasonably be expected, to materially impede, interfere
with, delay, postpone or adversely affect the Transaction and the other
transactions contemplated by the Purchase Agreement.
Section 1.02. IRREVOCABLE PROXIES. In order to secure the performance
of each Stockholder's obligations under this Agreement, by entering into this
Agreement and solely with respect to the matters described in SECTION 1.01, each
Stockholder hereby irrevocably grants (and with respect to each Contingent
Stockholder, each such Contingent Stockholder commits to irrevocably grant, upon
the expiration of the Existing Voting Agreement) a proxy appointing ▇▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ("SMG") as such Stockholder's attorney-in-fact and proxy, with
full power of substitution, for and in its, his or her name, place and ▇▇▇▇▇, to
vote, express consent or dissent, or otherwise to utilize such voting power in
the manner contemplated by and in accordance with SECTION 1.01, in SMG's
discretion, with respect to such Stockholder's Subject Shares, in each case,
until the termination of this Agreement in accordance with SECTION 4.03. Each
Stockholder hereby represents that any proxies heretofore given in respect of
the Subject Shares (other than proxies pursuant to the Existing Voting
Agreement) are not irrevocable, and that any such proxies are hereby revoked.
Each Stockholder severally (and not jointly) hereby affirms that the irrevocable
proxy set forth in this SECTION 1.02 is given (and with respect to each
Contingent Stockholder, is committed to be given) in connection with the
execution of the Purchase Agreement and affirms that such irrevocable proxy is
coupled with an interest and may under no circumstances be revoked, except that
such irrevocable proxy shall be revoked automatically, without any notice or
other action by any Person, upon the termination of this Agreement in accordance
with SECTION 4.03. Each Stockholder severally (and not jointly) hereby ratifies
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and confirms all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS SECTION 1.02
IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder (and with respect
to the each Contingent Stockholder, upon the expiration of the Existing Voting
Agreement) shall execute and deliver to SMG any proxy cards that such
Stockholder receives to vote in favor of the approval of the Purchase Agreement,
the Transaction or any of the transactions contemplated thereby.
Section 1.03. ADDITIONAL COVENANT BY ▇▇. ▇▇▇▇▇' ▇. ▇▇▇▇▇▇. For
avoidance of doubt, ▇▇. ▇▇▇▇▇▇ hereby acknowledges and agrees that (i) his
obligations under this Agreement with respect to his Subject Shares (including,
without limitation, pursuant to, and under, SECTION 1.01 and SECTION 1.02) shall
also apply to all of the shares of Company Common Stock with respect to which
▇▇. ▇▇▇▇▇▇ has the right to exercise or direct the vote pursuant to the Existing
Voting Agreement and (ii) during the term of the Existing Voting Agreement, he
shall not agree to terminate his right to exercise or direct the vote of the
shares of Company Common Stock owned by any Contingent Stockholder (subject to
the Existing Voting Agreement as of the date hereof) pursuant to the Existing
Voting Agreement.
Section 1.04. COMPANY BREACH. For the avoidance of doubt, each
Stockholder agrees that, during the term of this Agreement the obligations of
such Stockholder specified in SECTION 1.01 shall not be affected by (i) the
Board's or the Special Committee's withdrawal or modification of its
Recommendation or (ii) any breach by the Company of any of its representations,
warranties, agreements or covenants set forth in the Purchase Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants as to itself, himself
or herself, severally and not jointly, to the Company and the Buyer as follows:
Section 2.01. AUTHORIZATION; BINDING AGREEMENT. The execution, delivery
and performance by such Stockholder of this Agreement and the consummation of
the transactions contemplated hereby are within its, his or her legal capacity
and requisite powers, and if this Agreement is being executed in a
representative or fiduciary capacity, the Person signing this Agreement has full
power and authority to execute, deliver and perform this Agreement. Assuming the
due authorization, execution and delivery of this Agreement by the Company and
the Buyer, this Agreement constitutes a legal, valid and binding agreement of
such Stockholder enforceable against such Stockholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other Laws of general applicability relating to
or affecting creditors' rights and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
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Section 2.02. NON-CONTRAVENTION. Other than (a) the filing by such
Stockholder of any reports with the Securities and Exchange Commission required
by Section 13(d) or 16(a) of the Exchange Act, or (b) any consent, approval
filing or notification which has been obtained as of the date hereof, the
execution and delivery of this Agreement by such Stockholder does not, and the
performance of the terms of this Agreement by such Stockholder (or SGM's voting
of such Stockholder's Subject Shares pursuant to the proxy contemplated by
SECTION 1.02) will not (1) require such Stockholder to obtain the consent or
approval of, or make any filing with or notification to, any Governmental
Entity, (2) require the consent or approval of any other person pursuant to any
agreement, obligation or instrument binding on such Stockholder or its
properties and assets, or (3) conflict with or violate any organizational
document, agreement or Law applicable to such Stockholder's Subject Shares or
such Stockholder or pursuant to which any such Stockholder is a party, including
any voting agreement, stockholders agreement, irrevocable proxy or voting trust.
Section 2.03. OWNERSHIP OF SUBJECT SHARES; TOTAL SHARES. As of the date
hereof, such Stockholder is the record or beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of its, his or her Subject Shares. As of the date
hereof, such Stockholder does not own, beneficially or otherwise, any shares of
voting stock of the Company other than as set forth opposite such Stockholder's
name in ANNEX I. Except with respect to the grant of purchase rights by certain
shareholders of the Company to SMG pursuant to an agreement dated November 8,
2005 (the "SMG PURCHASE AGREEMENT"), there are no outstanding options or other
rights to acquire from such Stockholder, or obligations of such Stockholder to
sell or to dispose of, any shares of voting stock of the Company.
Section 2.04. VOTING POWER. Except as set forth in the Existing Voting
Agreement, each Stockholder has full voting power with respect to its, his or
her Subject Shares, and full power to issue instructions with respect to the
matters set forth herein, and full power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of its, his or her
Subject Shares.
Section 2.05. RELIANCE BY THE COMPANY AND THE BUYER. Such Stockholder
understands and acknowledges that each of the Company and the Buyer are entering
into the Purchase Agreement and the transactions contemplated therein in
reliance upon such Stockholder's execution and delivery of this Agreement.
ARTICLE 3
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Section 3.01. TRANSFERS. Except as provided hereunder, from the date
hereof until this Agreement is terminated in accordance with SECTION
4.03, no Stockholder shall, directly or indirectly:
(i) except pursuant to the SMG Purchase Agreement, sell, transfer,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, such Stockholder's
Subject Shares or any interest contained therein;
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(ii) grant any proxies or powers of attorney or enter into a
voting agreement or other arrangement with respect to such Stockholder's Subject
Shares, other than this Agreement; nor
(iii) enter into, or deposit such Stockholder's Subject Shares
into, a voting trust or take any other action which would, or could reasonably
be expected to, result in a diminution of the voting power represented by any of
such Stockholder's Subject Shares; nor
(iv) commit or agree to take any of the foregoing actions.
Section 3.02. STOP ORDER. Each Stockholder agrees that it shall
authorize and request the Company to notify its transfer agent that there is a
stop transfer order with respect to all of the Subject Shares and that this
Agreement place limits on the voting of the Subject Shares.
Section 3.03. DOCUMENTATION AND INFORMATION. Each Stockholder (i)
consents to and authorizes the publication and disclosure by the Company and the
Buyer and their affiliates of its, his or her identity and holding of Subject
Shares and the nature of its, his or her commitments and obligations under this
Agreement in any announcement or disclosure required by the SEC or other
Governmental Entity, the Purchase Agreement, or any other disclosure document in
connection with the transactions contemplated by the Purchase Agreement or this
Agreement, and (ii) agrees promptly to give to the Company and the Buyer any
information the Company or the Buyer may reasonably require for the preparation
of any such disclosure documents; PROVIDED that, to the extent practicable, each
such Stockholder shall have a reasonable opportunity to review and comment on
any such announcement or disclosure prior to its publication, filing or
disclosure. Each Stockholder agrees to promptly notify the Company and the Buyer
of any required corrections with respect to any written information supplied by
it specifically for use in any such disclosure document, if and to the extent
that any shall have become false or misleading in any material respect.
Section 3.04. ADDITIONAL SHARESSection 3.05. . In the event (i) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of capital stock of the Company on, of or affecting any
Stockholder's Subject Shares or (ii) any Stockholder becomes the beneficial
owner of any additional shares of the Company voting stock or other securities
entitling the holder thereof to vote or give consent with respect to the matters
set forth in SECTION 1.01 hereof, then the terms of this Agreement shall apply
to the shares of capital stock or other securities of the Company held by such
Stockholder immediately following the effectiveness of the events described in
clause (i) or such Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were such Stockholder's Subject Shares
hereunder. Each Stockholder hereby agrees, while this Agreement is in effect, to
notify the Company and the Buyer of the number of any new shares of the Company
voting stock acquired by such Stockholder, if any, after the date hereof. No
Stockholder executing this Agreement who is or becomes during the term hereof a
director or officer of the Company makes (or shall be deemed to have made) any
agreement or understanding herein in his or her capacity as such director or
officer. Without limiting the generality of the foregoing, each Stockholder
signs solely in his, her or its capacity as the record and/or beneficial owner,
as applicable, of, or holder of voting rights with respect to, the Subject
Shares and nothing herein shall limit or affect any actions taken by such
Stockholder (or a designee of such Stockholder) in his or her capacity as an
officer or director of the Company in exercising his or her or the Company's or
the Board's rights in connection with the Purchase Agreement or otherwise.
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ARTICLE 4
MISCELLANEOUS
Section 4.01. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by facsimile, receipt confirmed, or on the next Business Day when
sent by overnight courier or on the second succeeding Business Day when sent by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
if to the Company to:
Ivivi Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Buyer to:
Ivivi Technologies, LLC
c/o Ajax Capital LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
or
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Stockholder, to the address specified on ANNEX I.
Section 4.02. FURTHER ASSURANCES. Each Stockholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements and other instruments
as the Company or the Buyer may reasonably request to carry out the transactions
contemplated by this Agreement.
Section 4.03. TERMINATION.
(i) This Agreement shall terminate automatically, without any
notice or other action by any Person, upon the earlier of (i) the termination of
the Purchase Agreement in accordance with its terms and (ii) the Closing.
(ii) In the event of the termination of this Agreement pursuant to
this SECTION 4.03, this Agreement shall become void and of no effect with no
liability on the part of any party hereto; PROVIDED, HOWEVER, that no such
termination shall relieve any party hereto from any liability for any material
breach of this Agreement occurring prior to such termination.
Section 4.04. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the earlier of (i) the
termination of the Purchase Agreement in accordance with its terms and (ii) the
Closing.
Section 4.05. AMENDMENTS AND WAIVERS.
(i) Any provision of this Agreement may be amended or waived if
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective and the Buyer.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by applicable Law.
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Section 4.06. EXPENSES. Except as otherwise provided herein or in the
Purchase Agreement, all costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 4.07. BINDING EFFECT; INTENDED THIRD PARTY BENEFICIARY;
ASSIGNMENT.
(i) The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, heirs, personal representatives, administrators, executors and
permitted assigns. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their successors, heirs, personal
representatives, administrators, executors and permitted assigns.
(ii) No party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent of each other
party hereto.
Section 4.08. GOVERNING LAW; JURISDICTION. This Agreement is for the
benefit of and may be enforced by the Company and the Buyer and their respective
directors, officers, shareholders, affiliates, employees and agents and be
governed by and construed in accordance with New York law without regard to
conflicts of law principles. The Company, the Buyer and the Stockholders also
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United States of
America located in the State of New York for any actions, suits or proceedings
arising out of or relating to this Agreement and the transactions contemplated
hereby. The Company, the Buyer and the Stockholders also agree not to commence
any action, suit or proceeding arising out of or relating to this Agreement
except in such courts and that service of any process, summons, notice or
document by U.S. registered mail to such Person's address as set forth in
SECTION 4.01 shall be effective service of process for any action, suit or
proceeding brought against such Person in any such court. The Company, the Buyer
and the Stockholders hereby irrevocably and unconditionally waive any objection
to the laying of venue of any action, suit or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby in the
courts of the State of New York and of the United States of America located in
the State of New York, and irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
Section 4.09. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 4.10. COUNTERPARTS: EFFECTIVENESS. This Agreement may be
executed in two or more consecutive counterparts (including by facsimile), each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered (by
telecopy or otherwise) to the other parties.
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Section 4.11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter of this Agreement
and supersedes all prior agreements and understandings, both oral and written,
among the parties with respect to its subject matter.
Section 4.12. SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the sole extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remainder of
such term or provision or the remaining terms and provisions of this Agreement
in any jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
Section 4.13. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, and that there would not be an adequate remedy at law for
money damages in such event. Accordingly, it is agreed that the parties hereto
shall be entitled to specific performance and injunctive and other equitable
relief to prevent breaches or threatened breaches of this Agreement or to
enforce specifically the performance of the terms and provisions hereof, without
the need to post bond or other security, in addition to any other remedy to
which they are entitled at law or in equity.
Section 4.14. STOCKHOLDER OBLIGATIONS SEVERAL AND NOT JOINT. The
obligations of each Stockholder hereunder shall be several and not joint, and no
Stockholder shall be liable for any breach of the terms of this Agreement by any
other Stockholder. The failure of any Stockholder to execute and deliver this
Agreement shall in no way affect the obligations of any other Stockholder
hereunder.
Section 4.15. INTERPRETATION. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes," or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
Section 4.16. NO PRESUMPTION AGAINST DRAFTER. Each of the parties
hereto has jointly participated in the negotiation and drafting of this
Agreement. In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by each of the parties hereto and no presumptions or burdens of proof shall
arise favoring any party hereto by virtue of the authorship of any of the
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
IVIVI TECHNOLOGIES, INC.
By: /s/ Andre' ▇▇▇▇▇▇
---------------------------------------
Name: Andre' ▇▇▇▇▇▇
Title: Executive Vice President
IVIVI TECHNOLOGIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
ADM TRONICS UNLIMITED, INC.
By: /s/ Andre' ▇▇▇▇▇▇
---------------------------------------
Name: Andre' ▇▇▇▇▇▇
Title: President
/s/ Andre' ▇. ▇▇▇▇▇▇
---------------------------------------
Andre' ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
[Signature Page to Voting Agreement]
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
[Signature Page to Voting Agreement]
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ANNEX I
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STOCKHOLDER SUBJECT SHARES ADDRESS
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224 Pegasus Avenue
ADM Tronics Unlimited, Inc. 3,250,000 --------------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Andre' ▇. ▇▇▇▇▇▇ 186,875(2) --------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 398,124(1)(2) --------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. 227,500(1) --------------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D. 132,000(1) --------------------------------------------
▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D. 101,563(1)(2) -------------------------------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇ 103,563(1)(2) -------------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 17th Floor
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & Co. 49,020(2) -------------------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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TOTAL: 4,448,645
(1) Represents shares of Company Common Stock as to which ▇▇. ▇▇▇▇▇▇▇
has the right, until October 24, 2009, to exercise or direct the vote
by proxy pursuant to the Existing Voting Agreement. Upon expiration or
termination of the Existing Voting Agreement, each such Contingent
Stockholder shall become bound by SECTION 1.01 and SECTION 1.02 of this
Agreement with respect to such number of shares of Company Common Stock
as set forth herein opposite his name (subject to adjustments as
contemplated by this Agreement).
(2) This number of shares of Company Common Stock excludes shares of
Company Common Stock issuable upon exercise of any options or warrants
that are exercisable within 60 days of the date hereof.
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