Exhibit 4.6
IVIVI TECHNOLOGIES, INC.
REDEEMABLE COMMON STOCK PURCHASE WARRANT
NEITHER THIS SECURITY NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED, SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
("TRANSFERRED") IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. IN THE ABSENCE OF SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE
TRANSFERRED UNLESS THE COMPANY HAS RECEIVED A WRITTEN OPINION FROM COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSFER IS
BEING MADE IN COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
VOID AFTER 5:00 P.M., NEW YORK CITY TIME,
ON THE LAST DAY OF THE EXERCISE PERIOD (AS DEFINED BELOW)
REDEEMABLE COMMON STOCK PURCHASE WARRANT
OF
IVIVI TECHNOLOGIES, INC.
This is to certify that, FOR VALUE RECEIVED, ____________________
("HOLDER"), is entitled to purchase, subject to the provisions of this
Redeemable Common Stock Purchase Warrant (this "WARRANT"), from Ivivi
Technologies, Inc., a New Jersey corporation (the "COMPANY"), at an initial
exercise price per share equal to (i) if an IPO (as defined herein) has occurred
prior to the exercise of this Warrant, 100% of the IPO Price (as defined herein)
or (ii) if an IPO has not occurred prior to the exercise of this Warrant, $7.00
per share (the "INITIAL EXERCISE PRICE"), subject to adjustment as provided in
this Warrant, such number of shares of common stock, no par value per share, of
the Company (the "COMMON STOCK") equal to either (i) if the Note (as defined in
the Subscription Agreement) has been converted as of the date of the exercise of
this Warrant, the number of shares of Common Stock into which the Note was
converted or (ii) if the Note (as defined in the Subscription Agreement) has not
been converted as of the date of the exercise of this Warrant, such number of
shares of Common Stock into which the Note is then convertible. The shares of
Common Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "WARRANT STOCK," and the exercise price
for the purchase of a share of Common Stock pursuant to this Warrant in effect
at any time and as adjusted from time to time is hereinafter sometimes referred
to as the "EXERCISE PRICE."
1. ISSUANCE OF WARRANT. This Warrant is being issued pursuant to that certain
Subscription Agreement, dated as of the date hereof, between the Company and the
Holder (the "SUBSCRIPTION AGREEMENT"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the
Subscription Agreement. In addition the following terms have the meanings set
forth below:
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"ACT" shall mean the Securities Act of 1933, as amended.
"ADM TRONICS" shall mean ADM Tronics Unlimited, Inc., a
Delaware corporation.
"APPROVED MARKET" shall mean any public market in the United
States on which the Common Stock is trading (it being understood that the Pink
Sheets Quotation Service shall not qualify as an Approved Market for these
purposes).
"BUSINESS DAY" shall mean any day that is not a Saturday, a
Sunday or a day on which commercial banks in the City of New York are required
or permitted by law to be closed.
"CONVERTIBLE SECURITIES" shall mean evidences of indebtedness,
shares of stock or other securities, which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
shares of Common Stock, either immediately or upon the occurrence of a specified
date or a specified event.
"DECEMBER 2004 PRIVATE OFFERING" shall mean the Company's
joint offering with ADM Tronics, pursuant to which the Company, together with
ADM Tronics, raised gross proceeds of $3,637,500 through the sale of joint
unsecured convertible notes and warrants, which was completed in December 2004.
"EXERCISE COMMENCEMENT DATE" shall mean ________, 2006.
"EXERCISE PERIOD" shall mean the period commencing on Exercise
Commencement Date and ending at 5 p.m. (Eastern Time) on the fifth anniversary
of the Exercise Commencement Date.
"FEBRUARY 2005 PRIVATE OFFERING" shall mean the Company's
joint offering with ADM Tronics, pursuant to which the Company, together with
ADM Tronics, raised gross proceeds of $2,450,000 through the sale of joint
unsecured convertible notes and warrants, which was completed in February 2005.
"IPO" shall mean the consummation of an initial public
offering of shares of Common Stock.
"IPO PRICE" shall mean the initial public offering price at
which shares of Common Stock is offered and sold to the public pursuant to an
IPO.
"MARKET PRICE" shall mean, with respect to the Common Stock,
on any date of determination, the average for the twenty (20) consecutive
Trading Days (as defined below) preceding and including such date of
determination of the reported last sale prices per share on the principal
national securities exchange or inter-dealer quotation system on which the
Common Stock is listed or admitted to trading.
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"NOVEMBER 2005 PRIVATE OFFERING" shall mean the Company's
offering pursuant to which the Company raised gross proceeds of up to $2,000,000
through the sale to the Holder and other Purchasers of notes and warrants, on or
before the date hereof.
"PERMITTED ISSUANCES" shall mean (i) Common Stock issued
pursuant to a stock split or subdivision; (ii) Common Stock issuable or issued
to employees, consultants or directors of the Company directly or pursuant to a
stock plan or other compensation arrangement approved by the Board of Directors
of the Company; (iii) Common Stock issued or issuable upon exercise or
conversion of the Warrants or Notes or any other securities exercisable or
exchangeable for, or convertible into, shares of Common Stock outstanding as of
the date of this Warrant, including, without limitation, Common Stock issuable
upon the exercise or conversion of securities issued to purchasers of notes and
warrants in the December 2004 Private Offering, the February 2005 Private
Offering and the November 2005 Private Offering, or Common Stock issued or
issuable upon payment of interest or penalties in respect of any such
securities; and (iv) Common Stock issued or issuable in a transaction approved
in advance by the holders of more than 50% of the then outstanding warrants
issued in connection with the November 2005 Private Offering.
"SEC" shall mean the Securities and Exchange Commission.
"TRADING DAY" means (i) if the Common Stock is listed or
admitted for trading on the New York Stock Exchange or any other national
securities exchange, a day on which such exchange is open for business; or (ii)
if the Common Stock is quoted on the Nasdaq National Market or any other system
of automated dissemination of quotations of securities prices, a day on which
trades may be effected through such system.
2. EXERCISE OF WARRANT/REGISTRATION RIGHTS.
(a) This Warrant may be exercised in whole or in part at any time or
from time to time during the Exercise Period by presentation and surrender of
this Warrant to the Company at its principal office, or at the office of its
stock transfer agent, if any, with the purchase form annexed to this Warrant
(the "PURCHASE FORM") duly executed and accompanied by payment of the Exercise
Price for the number of shares of Common Stock specified in the Purchase Form in
cash. If this Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the rights of the Holder hereof to purchase the balance of the shares
of Common Stock purchasable hereunder. Upon receipt by the Company of this
Warrant at its office, or by the stock transfer agent of the Company, if any, at
its office, in proper form for exercise, the Holder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder. As soon as practicable after each
exercise of this Warrant, in whole or in part, and in any event within three (3)
business days thereafter, the Company at its expense (including the payment by
it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the Holder hereof or, subject to Section 6 hereof, as the Holder
(upon payment by the Holder of any applicable transfer taxes) may direct a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock to which the Holder shall be
entitled upon exercise plus, in lieu of any fractional share to which the Holder
would otherwise be entitled, all issuances of Common Stock shall be rounded up
to the nearest whole share.
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(b) The Company's obligations under Section 9 of the Subscription
Agreement with respect to the registration under the Act of the shares issuable
upon the exercise of this Warrant are incorporated herein by reference. The
Company has also granted "piggyback" registration rights to the Holder, as more
fully described under Section 9 of the Subscription Agreement.
3. RESERVATION OF SHARES; FRACTIONAL SHARES. The Company hereby agrees
that at all times there shall be reserved for issuance and/or delivery upon
exercise of this Warrant such number of shares of Common Stock as shall be
required for issuance and delivery upon exercise of this Warrant. No fractional
shares or script representing fractional shares shall be issued upon the
exercise of this Warrant. Instead, the Company will round up to the nearest
whole share.
4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at
the office of its stock transfer agent, if any, with the assignment form annexed
hereto (the "ASSIGNMENT FORM") duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants which carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued and signed by the Holder hereof. The term
"Warrant" as used herein includes any Warrants into which this Warrant may be
divided or exchanged. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the part
of the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
5. RIGHTS AND OBLIGATIONS OF THE HOLDER. The Holder shall not, by
virtue of this Warrant, be entitled to any rights of a stockholder in the
Company, either at law or equity, and the rights of the Holder are limited to
those expressed in the Warrant and are not enforceable against the Company
except to the extent set forth herein. In addition, no provision hereof, in the
absence of affirmative action by Holder to purchase shares of Common Stock, and
no enumeration herein of the rights or privileges of Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Common Stock
or as a stockholder of Company, whether such liability is asserted by Company or
by creditors of Company.
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6. ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon exercise of each Warrant
shall be subject to adjustment as follows and the Company shall give each Holder
notice of any event described below which requires an adjustment pursuant to
this Section 6 at the time of such event:
(a) Stock Dividends, Subdivisions and Combinations. If at any time
Company shall:
(i) take a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend payable in, or
other distribution of, shares of Common Stock,
(ii) subdivide or reclassify its outstanding shares of
Common Stock into a larger number of shares of Common Stock, or
(iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or
otherwise effect a reverse stock split,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event, or the record date therefor,
whichever is earlier, would own or be entitled to receive after the happening of
such event, and (ii) the Exercise Price(s) shall be adjusted to equal (A) the
Exercise Price immediately prior to such event multiplied by the number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the adjustment divided by (B) the number of shares for which this Warrant is
exercisable immediately after such adjustment.
(b) Certain Other Distributions and Adjustments.
(i) If at any time Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive any dividend or other distribution of:
(A) cash,
(B) any evidences of its indebtedness, any shares of
its stock or any other securities or property of any nature
whatsoever (other than Convertible Securities or shares of
Common Stock), or
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(C) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of its
stock or any other securities or property of any nature
whatsoever (other than Convertible Securities or shares of
Common Stock), then Holder, upon exercise of this Warrant,
shall be entitled to receive such dividend or distribution as
if Holder had exercised this Warrant.
(ii) A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no
par value to par value) into shares of Common Stock and shares of
any other class of stock shall be deemed a distribution by Company
to the holders of its Common Stock of such shares of such other
class of stock and in such event Holder shall be entitled to receive
such distribution as if Holder had exercised this Warrant and, if
the outstanding shares of Common Stock shall be changed into a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or
combination, as the case may be, of the outstanding shares of Common
Stock within the meaning of Section 6(a).
(c) Adjustment for Issuance of Additional Shares of Common Stock.
(i) If, at any time after the consummation of an IPO when
the Common Stock is listed or admitted for trading on a principal
national securities exchange or inter-dealer quotation system and
the Market Price is less than the Exercise Price, the Company shall
issue or sell any shares of Common Stock in exchange for
consideration in an amount per share of Common Stock less than the
Exercise Price, determined as of the date of such issuance or sale,
other than Permitted Issuances, then (A) the Exercise Price shall be
adjusted so that it shall equal the price determined by multiplying
the Exercise Price in effect immediately prior to such event by a
fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance plus the number of
additional shares of Common Stock which the aggregate offering price
would purchase based upon the Exercise Price, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance plus the number of additional
shares of Common Stock issued or issuable in such offering, and (B)
the number of shares of Common Stock for which this Warrant is
exercisable shall be adjusted to equal the product obtained by
multiplying the Exercise Price in effect immediately prior to such
issue or sale by the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such issue or sale and
dividing the product thereof by the Exercise Price resulting from
the adjustment made pursuant to clause (A) above.
(ii) The provisions of paragraph (i) of this Section 6(c)
shall not apply to any issuance of shares of Common Stock for which
an adjustment is provided under Section 6(a) or 6(b). No adjustment
of the number of shares of Common Stock for which this Warrant shall
be exercisable shall be made under paragraph (i) of this Section
6(c) upon the issuance of any shares of Common Stock which are
issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of any
conversion or exchange rights in any Convertible Securities, if any
such adjustment shall previously have been made upon the issuance of
such warrants or other rights or upon the issuance of such
Convertible Securities (or upon the issuance of any warrant or other
rights therefor) pursuant to Section 6(d) or Section 6(e).
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(d) Issuance of Warrants or Other Rights. If at any time the Company
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or if, at any time after the
consummation of an IPO when the Common Stock is listed or admitted for trading
on a principal national securities exchange or inter-dealer quotation system and
the Market Price is less than the Exercise Price, the Company shall in any
manner (whether directly or by assumption in a merger in which Company is the
surviving corporation) issue or sell, any warrants or other rights to subscribe
for or purchase any shares of Common Stock or any Convertible Securities,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such warrants or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Exercise Price, then the number of
shares for which this Warrant is exercisable and the Exercise Price shall be
adjusted as provided in Section 6(c) on the basis that the maximum number of
shares of Common Stock issuable pursuant to all such warrants or other rights or
necessary to effect the conversion or exchange of all such Convertible
Securities shall be deemed to have been issued and outstanding and the Company
shall be deemed to have received all the consideration payable therefor, if any,
as of the date of issuance of such warrants or other rights. No further
adjustment of the Exercise Price(s) shall be made upon the actual issuance of
such Common Stock or of such Convertible Securities upon exercise of such
warrants or other rights or upon the actual issuance of such Common Stock upon
such conversion or exchange of such Convertible Securities.
(e) Issuance of Convertible Securities. If at any time the Company
shall take a record of the holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or if, at any time after the
consummation of an IPO when the Common Stock is listed or admitted for trading
on a principal national securities exchange or inter-dealer quotation system and
the Market Price is less than the Exercise Price, the Company shall in any
manner (whether directly or by assumption in a merger in which Company is the
surviving corporation) issue or sell, any Convertible Securities, whether or not
the rights to exchange or convert thereunder are immediately exercisable, and
the price per share for which Common Stock is issuable upon such conversion or
exchange shall be less than the then current Exercise Price, then the number of
shares of Common Stock for which this Warrant is exercisable and the Exercise
Price shall be adjusted as provided in Section 6(c) on the basis that the
maximum number of shares of Common Stock necessary to effect the conversion or
exchange of all such Convertible Securities shall be deemed to have been issued
and outstanding and Company shall have received all of the consideration payable
therefor, if any, as of the date of issuance of such Convertible Securities. If
any issue or sale of Convertible Securities is made upon exercise of any warrant
or other right to subscribe for or to purchase any such Convertible Securities
for which adjustments of the number of shares of Common Stock for which this
Warrant is exercisable and the Exercise Price have been or are to be made
pursuant to Section 6(d), no further adjustment of the number of shares of
Common Stock for which this Warrant is exercisable and the Exercise Price shall
be made by reason of such record, issue or sale.
(f) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($0.01) in
such price; provided, however, that any adjustments which by reason of this
Section 6(f) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 6(f)
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
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(g) The Company may retain a firm of independent public accountants of
recognized standing selected by the Board (who may be the regular accountants
employed by the Company) to make any computation required by this Section 6.
(h) In the event that at any time, as a result of an adjustment made
pursuant to Section 6(a), (b) or (c) of this Warrant, the Holder of any Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Sections 6(a) through (g), inclusive,
of this Warrant.
(i) Permitted Issuances. Notwithstanding the foregoing, no adjustment
shall be effected due to, or as a result of, any Permitted Issuances.
(j) Other Action Affecting Common Stock. In case at any time or from
time to time Company shall take any action in respect of its Common Stock, other
than any action described in this Section 6, then, unless such action will not
have a materially adverse effect upon the rights of the Holders, the number of
shares of Common Stock or other stock for which this Warrant is exercisable
and/or the purchase price thereof shall be adjusted in such manner as may be
equitable in the circumstances.
7. REDEMPTION. Provided the shares of Common Stock issuable upon
exercise of this Warrant are registered with the SEC for resale to the public,
or an exemption to the registration requirements is available to the Holder of
this Warrant under Rule 144, the Company may, at its option, call for the
redemption of the then outstanding Warrants in the event that: (i) the Market
Price of the Common Stock is at or above $31.26 per share for twenty (20)
consecutive Trading Days ending on the day prior to the date on which the
Company gives notice that it is requiring exercise of the Warrants; and (ii) the
shares of Common Stock issuable upon exercise of the Warrants are registered
with the SEC for resale to the public, or an exemption to the registration
requirements is available to the holder of the Warrants under Rule 144,
provided, however, that the aggregate number of Warrants to be redeemed shall
not exceed the cumulative trading volume for the ten (10) consecutive Trading
Days prior to such redemption within any thirty (30) day period. The number of
Warrants to be redeemed shall be pro rata among each holder of the then
outstanding Warrants. The redemption price to be paid by the Company shall be
equal to $1.00 per Warrant.
The Company shall deliver to the Holder written notice of the Company's
intent to exercise its redemption option pursuant to this Section 7 no later
than the thirtieth (30th) day before the date fixed for redemption. On and after
the date fixed for redemption, the Holder shall have no rights with respect to
this Warrant except to receive the redemption price of $1.00 per Warrant upon
surrender.
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8. OFFICER'S CERTIFICATE. Whenever the Exercise Price(s) shall be
adjusted as required by the provisions of Section 6 of this Warrant, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price(s) and the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant, determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of Common
Stock, if any, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. A copy of each such officer's
certificate shall be forwarded to the Holder.
9. NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon Common Stock, or (ii) if the Company shall offer to the holders of Common
Stock for subscription or purchase by them any share of any class or any other
rights, or (iii) if any capital reorganization of the Company, reclassification
of the capital stock of the Company, consolidation or merger of the Company with
or into another entity, tender offer transaction for the Company's Common Stock,
sale, lease or transfer of all or substantially all of the property and assets
of the Company, or voluntary or involuntary dissolution, liquidation or winding
up of the Company shall be effected, or (iv) if the Company shall file a
registration statement under the Securities Act, on any form other than on Form
S-4 or S-8 or any successor form, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least ten (10) days prior to
the date specified in clauses (i), (ii), (iii) or (iv), as the case may be, of
this Section 9 a notice containing a brief description of the proposed action
and stating the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, tender offer transaction, conveyance,
lease, dissolution, liquidation or winding up is to take place and the date, if
any is to be fixed, as of which the holders of Common Stock or other securities
shall receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up, or (z) such registration statement is to be filed with the SEC.
10. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing or surviving corporation and which
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or in case of any sale, lease or conveyance of all or
substantially all of the assets of the Company, the Company shall, as a
condition precedent to such transaction, cause effective provisions to be made
so that (i) the Holder shall have the right thereafter by exercising this
Warrant, to purchase the kind and amount of shares of stock and other securities
and property receivable upon such reclassification, capital reorganization and
other change, consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock which could have been purchased upon exercise
of this Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance, and (ii) the successor or acquiring
entity shall expressly assume the due and punctual observance and performance of
each covenant and condition of this Warrant to be performed and observed by
Company and all obligations and liabilities hereunder (including but not limited
to the provisions of Section 3 regarding the increase in the number of shares of
Warrant Stock potentially issuable hereunder). Any such provision shall include
provision for adjustments which shall be as nearly equivalent as possible to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section 10 shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in connection
with any such capital reorganization or reclassification, consolidation, merger,
sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole in part, for a security
of the Company other than Common Stock, any such issue shall be treated as an
issuance of Common Stock covered by the provisions of Section 6 of this Warrant.
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11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This Warrant or
the Warrant Stock or any other security issued or issuable upon exercise of this
Warrant may not be sold or otherwise disposed of except as follows:
(i) to a person who, in the opinion of counsel for the
Company, is a person to whom this Warrant or Warrant Stock may
legally be transferred without registration and without the delivery
of a current prospectus under the Act with respect thereto and then
only against receipt of an agreement of such person to comply with
the provisions of this Section 11 with respect to any resale or
other disposition of such securities which agreement shall be
satisfactory in form and substance to the Company and its counsel;
or
(ii) to any person upon delivery of a prospectus then
meeting the requirements of the Act relating to such securities and
the offering thereof for such sale or disposition.
12. GOVERNING LAW; JURISDICTION. This Warrant, and all matters arising
directly or indirectly here from, shall be governed by and construed in
accordance with the laws of the State of New Jersey, notwithstanding the choice
of law or conflicts of law principles thereof. Each of the parties hereto hereby
(i) irrevocably consents and submits to the sole exclusive jurisdiction of the
United States District Court for the District of New Jersey or the Superior
Court of New Jersey (and of the appropriate appellate courts therefrom) in
connection with any suit, action or other proceeding arising out of or relating
to this Warrant, (ii) irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum, and (iii) agrees that service of any summons, complaint,
notice or other process relating to such suit, action or other proceeding may be
effected in the manner provided by Section 13.
13. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and 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
telephone number specified in this Section prior to 6:30 p.m. (New York City
time) on a Business Day, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the 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. The address for such notices and
communications shall be as follows:
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Ivivi Technologies, Inc.
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Attn: President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as it shall have specified to the Holder in writing, with
a copy (which shall not constitute notice) to:
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Holder: _______________________
_______________________
_______________________
14. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the issuance of shares of Common Stock underlying this Warrant
upon exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificate for shares of Common Stock underlying
this Warrant in a name other that of the Holder. The Holder is responsible for
all other tax liability that may arise as a result of holding or transferring
this Warrant or receiving shares of Common Stock underlying this Warrant upon
exercise hereof.
[Signature page follows]
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IN WITNESS WHEREOF, this Warrant has been duly executed as of ________
__, 2006.
IVIVI TECHNOLOGIES, INC.
By: ________________________________
Name:
Title:
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PURCHASE FORM
Dated: _______________, 20_____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ shares of Common Stock and hereby
makes payment of $___________ in payment of the actual exercise price thereof.
The undersigned confirms the continuing validity of, and reaffirms as
of the date hereof, the representations and warranties set forth in Section 6 of
the Subscription Agreement, dated as of February 23, 2006, by and among the
Company and the undersigned under which the Warrant was issued to the
undersigned.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:_____________________________________________
(Please typewrite or print in block letters)
Signature:________________________________________
Social Security or Employer Identification No.:_________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________ hereby
sells, assigns and transfer unto:
Name:________________________________________________
(Please typewrite or print in block letters)
Address:_____________________________________________
Social Security or Employer Identification No.:__________________________
The right to purchase Common Stock represented by this Warrant to the extent of
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint attorney to transfer the same on the books of the Company
with full power of substitution.
Dated: _________________, 200_.
Signature:________________________________
Signature Guaranteed:
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