Exhibit 10.9
AMENDED AND RESTATED VOTING AGREEMENT
This AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement") is dated
as of August 30, 2006 (the "Effective Date"), among Ivivi Technologies, Inc., a
New Jersey corporation (the "Company"), Andre' ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and the
shareholders listed on the signature pages hereto (collectively, the
"Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders are the record and beneficial owners of
shares of common stock, no par value, of the Company (the "Common Stock"), in
the amounts and registered in the names set forth on Exhibit A hereto;
WHEREAS, pursuant to the Voting Agreement, effective as of January 5,
2004, among the Company, ▇▇▇▇▇▇ and the Shareholders, as amended (the "Existing
Agreement"), the Shareholders granted ▇▇▇▇▇▇ the right to vote certain shares of
Common Stock beneficially owned by them (the "Existing Restricted Shares")
pursuant to the terms and conditions thereof; and
WHEREAS, in order to facilitate the business of the Company, the
parties desire to amend and restate the Existing Agreement to, among other
things, (i) ▇▇▇▇▇ ▇▇▇▇▇▇ the right to vote any and all shares beneficially owned
by the Shareholders from time to time, including, without limitation, the
Existing Restricted Shares and any and all shares acquired by the Shareholders
from and after the date hereof, whether through the exercise of options or
otherwise (collectively, the "Restricted Shares"), and (ii) extend the term of
such grant by certain of the Shareholders for an additional two-year period,
subject to certain exceptions, in accordance with and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Amendment and Restatement
Section 1.1. Amendment and Restatement. This Agreement hereby amends
and restates in its entirety the Existing Agreement. As of the Effective Date,
this Agreement shall be of full force and effect and the Existing Agreement (as
in effect immediately prior to such amendment and restatement) shall be of no
further force and effect, except to evidence the representations, warranties and
covenants made thereunder.
ARTICLE II
Grant of Proxy; Transfer Restrictions
Section 2.1. Irrevocable Proxies.
(a) By execution of this Agreement, each Shareholder (other than Fifth
Avenue Capital Partners) hereby revokes any and all prior proxies and hereby
irrevocably appoints and constitutes ▇▇▇▇▇▇, with full power of substitution, to
act as proxy (i) to vote the Restricted Shares of such Shareholder on all
matters presented at any meeting of shareholders (including any adjournments or
postponements thereof) and/or (ii) to execute and deliver any shareholder
consent in lieu thereof, as ▇▇▇▇▇▇ may determine in his sole discretion, and
▇▇▇▇▇▇ hereby accepts such appointment. Each proxy granted pursuant to this
Section 2.1(a) shall be effective for all purposes from the Effective Date until
the third anniversary of the consummation of an initial public offering of
shares of Common Stock pursuant to a registration statement filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
on Form S-1, Form SB-2 or the equivalent thereof, subject to earlier termination
pursuant to Article III hereof (the "IPO Third Anniversary"); provided, however,
that each proxy with respect to the number of shares of Common Stock of each of
the Shareholders set forth on Exhibit B attached hereto shall terminate upon the
earlier to occur of (i) the IPO Third Anniversary and (ii) the purchase of such
shares by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("Gluckstern") pursuant the Share Purchase Right
Agreement, dated as of November 8, 2005, among the Company, Gluckstern, ▇▇▇▇▇▇
and the Shareholders named therein. Each proxy authority contained in this
Section 2.1(a) shall be deemed to be coupled with an interest and shall be
irrevocable. Each proxy granted pursuant to this Section 2.1(a) shall survive
each Shareholder's death or incapacity and, during the term thereof, may not be
revoked by any guardian or other personal representative of such Shareholder for
any reason whatsoever.
(b) By execution of this Agreement, Fifth Avenue Capital Partners
hereby revokes any and all prior proxies and hereby irrevocably appoints and
constitutes ▇▇▇▇▇▇, with full power of substitution, to act as proxy (i) to vote
the Restricted Shares of such Shareholder on all matters presented at any
meeting of shareholders (including any adjournments or postponements thereof)
and/or (ii) to execute and deliver any shareholder consent in lieu thereof, as
▇▇▇▇▇▇ may determine in his sole discretion, and ▇▇▇▇▇▇ hereby accepts such
appointment. The proxy granted pursuant to this Section 2.1(b) shall be
effective for all purposes from the Effective Date until terminated pursuant to
Article III hereof. The proxy authority contained in this Section 2.1(b) shall
be deemed to be coupled with an interest and shall be irrevocable. The proxy
granted pursuant to this Section 2.1(b) shall survive may not be revoked for any
reason whatsoever.
Section 2.2. Transfer Restrictions.
(a) During the term of this Agreement, no Shareholder shall transfer,
sell, assign, pledge, hypothecate, give, create a security interest in or lien
on, place in trust (voting or otherwise), transfer by operation of law, grant a
proxy with respect to or in any other way encumber or dispose of, directly or
indirectly, whether or not voluntarily, any of the Restricted Shares (each, a
"Transfer") unless the Restricted Shares so Transferred remain subject to this
Agreement and prior to any such Transfer, the transferee of such Restricted
Shares (each, a "Transferee") shall execute an instrument satisfactory to the
Company and ▇▇▇▇▇▇ agreeing to be bound by all of the terms and provisions of
this Agreement. In furtherance of the foregoing, and not in limitation thereof,
by taking and holding any such Restricted Shares, the Transferee thereof shall
be deemed to have agreed to be bound by and to comply with all of the terms and
provisions of this Agreement.
(b) During the term of this Agreement, the Company shall not, and shall
provide any transfer agent for the Common Stock (the "Transfer Agent") with
irrevocable written instructions not to, effect any Transfer of Restricted
Shares to any person or entity in violation of this Agreement.
(c) All shares of Common Stock issued during the term of this Agreement
shall be stamped or endorsed with a legend in substantially the following form:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND CANNOT BE
SOLD OR TRANSFERRED UNLESS AND UNTIL THEY ARE SO REGISTERED OR
UNLESS AN EXEMPTION UNDER SUCH ACT OR LAWS IS AVAILABLE.
VOTING IN RESPECT OF THE SHARES OF COMMON STOCK REPRESENTED BY
THIS CERTIFICATE ARE FURTHER SUBJECT TO THE TERMS OF AN
AMENDED AND RESTATED VOTING AGREEMENT DATED AS OF AUGUST __,
2006, AMONG IVIVI TECHNOLOGIES, INC. AND THE OTHER PARTIES
THERETO, A COPY OF WHICH AMENDED AND RESTATED VOTING AGREEMENT
IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND MAY BE
OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY.
ARTICLE III
Effectiveness; Termination
Section 3.1. Effectiveness; Termination of Agreement. This Agreement
shall become effective as of the Effective Date and shall terminate (i) with
respect to those Shareholders hereto other than Fifth Avenue Capital Partners,
as set forth in Section 2.1.(a), or (ii) upon the written consent of the Company
and ▇▇▇▇▇▇; provided, however, that no such termination shall relieve any person
or entity of any liability for a breach or default of this Agreement prior to
the date of such termination.
ARTICLE IV
Miscellaneous
Section 4.1. Recapitalization, Exchanges, etc. Affecting the Common
Stock. The provisions of this Agreement shall apply to the full extent set forth
herein with respect to (a) the Restricted Shares and (b) any and all shares of
capital stock of the Company or any successor or assign of the Company (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for the Restricted Shares, by
reason of any stock dividend, split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. In the
event of any change in the capitalization of the Company, as a result of any
stock split, stock dividend or stock combination, the provisions of this
Agreement shall be appropriately adjusted.
Section 4.2. No Joint Venture or Partnership. No party hereto shall
have any authority to bind or commit any other party hereto and no such
authority shall be implied by the provisions hereof. Nothing herein shall be
deemed or construed to create a joint venture, partnership or agency
relationship between any of the parties hereto for any purpose.
Section 4.3. Injunctive Relief. Each of the parties hereto acknowledges
that it would be impossible to determine the amount of damages that would result
from any breach of any of the provisions of this Agreement and that the remedy
at law for any breach, or threatened breach, of any of such provisions would
likely be inadequate and, accordingly, each other party shall, in addition to
any other rights or remedies which it may have, be entitled to seek such
equitable and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain any party from
violating, any of such provisions. In connection with any action or proceeding
for injunctive relief, each of the parties hereto hereby waives the claim or
defense that a remedy at law alone is adequate and, to the maximum extent
permitted by law, consents to have each provision of this Agreement specifically
enforced against him or her, without the necessity of posting bond or other
security against him or her, and consents to the entry of injunctive relief
against him or her enjoining or restraining any breach or threatened breach of
such provisions of this Agreement.
Section 4.4. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives. This Agreement shall be for the
sole benefit of the parties to this Agreement and their respective successors,
permitted assigns and legal representatives and is not intended, nor shall be
construed, to give any person or entity, other than the parties hereto and their
respective successors, permitted assigns and legal representatives, any legal or
equitable right, remedy or claim hereunder. This Agreement may not be assigned
by operation of law or otherwise, and any attempted assignment shall be null and
void, except that any Shareholder may assign his or her rights hereunder, in
whole but not in part, in connection with a Transfer of Restricted Shares made
in strict compliance with all of the provisions of this Agreement, including,
without limitation Section 2.2 of this Agreement.
Section 4.5. Expenses. Each of the parties hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated hereby.
Section 4.6. Amendment; Waiver.
(a) This Agreement may be amended only by a written instrument duly
executed by (i) the Company, (ii) ▇▇▇▇▇▇ and (iii) Shareholders holding more
than 85% of the outstanding Restricted Shares.
(b) No failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon breach thereof shall constitute a waiver of any
such breach or of any other covenant, duty, agreement or condition, any such
waiver being effective only if contained in a writing executed by the waiving
party.
Section 4.7. Notices. Except as otherwise provided in this Agreement,
all notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand, when delivered personally or by courier, three days after
being deposited in the mail (registered or certified mail, postage prepaid,
return receipt requested), or when received by facsimile transmission if
promptly confirmed by one of the foregoing means, as follows: if to the Company
at ▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and if to the other parties at the
address or facsimile transmission number specified below his or her name on the
signature pages hereto (or, in the case of persons or entities who become
parties hereto subsequently, at their last addresses or facsimile transmission
numbers shown on the record books of the Company). Each Shareholder, by notice
given to the Company in accordance with this Section 4.7, may change the address
or facsimile transmission number to which such notice or other communications
are to be sent to such Shareholder. Whenever pursuant to this Agreement any
notice is required to be given by any Shareholder to any other Shareholder or
Shareholders, such Shareholder may request from the Company a list of addresses
and facsimile transmission numbers of all Shareholders of the Company, which
list shall be promptly furnished to such Shareholder.
Section 4.8. Applicable Law. This Agreement shall be governed, and
construed in accordance with, the internal laws of the State of New Jersey,
without reference to the choice of law principles thereof.
Section 4.9. Headings. The descriptive headings of the several sections
in this Agreement are for convenience only and do not constitute part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 4.10. Integration. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to
its subject matter other than those expressly set forth or referred to herein.
Section 4.11. Severability. If any term or provision of this Agreement
or any application thereof shall be declared or held invalid, illegal or
unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 4.12. Consent to Jurisdiction. 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 Agreement, (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 4.7 of this
Agreement.
Section 4.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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' ▇▇▇▇▇▇
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Name: Andre' ▇▇▇▇▇▇
Title: Chairman and Chief Financial Officer
VOTING AGREEMENT SIGNATURE PAGE
/s/ Andre' ▇▇▇▇▇▇
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Andre' ▇▇▇▇▇▇
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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Street Address
----------------- ----------- --------
City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
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▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
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Street Address
----------------- ----------- --------
City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
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▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
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Street Address
----------------- ----------- --------
City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ ▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇
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Street Address
----------------- ----------- --------
City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
FIFTH AVENUE CAPITAL PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
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Street Address
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City State Zip
WITNESS:
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EXHIBIT A
SHAREHOLDERS
AS OF AUGUST 28, 2006
NUMBER OF SHARES
NAME OF COMMON STOCK OWNED
▇▇▇▇▇ ▇▇▇▇▇▇ 245,000 (1)
▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. 140,000 (2)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D. 80,000 (3)
▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D. 62,500 (4)
▇▇ ▇▇▇▇▇▇ 62,500 (5)
Fifth Avenue Capital Partners 215,000
TOTAL: 805,000 (6)
(1) Includes 114,800 shares of common stock, no par value ("Common Stock"),
of Ivivi Technologies, Inc. (the "Company") beneficially owned by ▇▇.
▇▇▇▇▇▇ and 130,200 shares of Common Stock that are subject to
forfeiture and vest in equal yearly installments on January 5 of each
year through January 5, 2009. Does not include 200,000 shares of Common
Stock underlying options held by ▇▇. ▇▇▇▇▇▇.
(2) Includes 65,600 shares of Common Stock beneficially owned by ▇▇. ▇▇▇▇▇
and 74,400 shares of Common Stock that are subject to forfeiture and
vest in equal yearly installments on January 5 of each year through
January 5, 2009.
(3) Includes 38,000 shares of Common Stock beneficially owned by ▇▇.
▇▇▇▇▇▇▇ and 42,000 shares of Common Stock that are subject to
forfeiture and vest in equal yearly installments on January 5 of each
year through January 5, 2009.
(4) Includes 29,500 shares of Common Stock beneficially owned by ▇▇.
▇▇▇▇▇▇▇ and 33,000 shares of Common Stock that are subject to
forfeiture and vest in equal yearly installments on January 5 of each
year through January 5, 2009. Does not include 40,000 shares of Common
Stock underlying options held by ▇▇. ▇▇▇▇▇▇▇.
(5) Includes 29,500 shares of Common Stock beneficially owned by ▇▇. ▇▇▇▇▇▇
and 33,000 shares of Common Stock that are subject to forfeiture and
vest in equal yearly installments on January 5 of each year through
January 5, 2009. Does not include 20,000 shares of Common Stock
underlying options held by ▇▇. ▇▇▇▇▇▇.
(6) Reference is made to Footnote Nos. (1), (2), (3), (4) and (5).
EXHIBIT B
Shares Subject to Share Purchase Right Agreement, dated as of
November 8, 2005, among the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇' ▇▇▇▇▇▇ and certain Shareholders.
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Name Purchasable Shares
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▇▇▇▇ ▇▇▇▇▇▇▇ 5,000
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▇▇ ▇▇▇▇▇▇ 5,000
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▇▇▇▇▇▇ ▇▇▇▇▇ 11,000
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▇▇▇▇▇ ▇▇▇▇▇▇ 19,000
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Total: 40,000
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