EXHIBIT 4.2
IVIVI TECHNOLOGIES, INC.
REDEEMABLE COMMON STOCK PURCHASE WARRANT
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"),
AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL
BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON THE LAST DAY OF THE EXERCISE
PERIOD, AS DEFINED BELOW
REDEEMABLE CLASS A 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 Class A Common Stock Purchase Warrant (this
"Warrant"), from Ivivi Technologies, Inc., a New Jersey corporation (the
"Company"), at an initial exercise price per share of $5.70 (the "Initial
Exercise Price"), subject to adjustment as provided in this Warrant, _____
shares of common stock, no par value ("Common Stock"). 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 shall have the meanings ascribed thereto in the
Subscription Agreement. In addition the following terms have the meanings set
forth below:
"ADMT Warrant" shall mean the Warrant for the purchase of
______ shares of common stock of ADM Tronics Unlimited, Inc., a Delaware
corporation, which was issued to the Holder concurrently with the issuance of
the IVIVI Warrant. The ADMT Warrant is sometimes referred to herein as the
"Corresponding ADMT Warrant."
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"Approved Market" shall mean any public market in the United
States on which the IVIVI Common Stock is trading (it being understood that the
Pink Sheets Quotation Service shall not qualify as an Approved Market for these
purposes).
"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.
"Exercise Period" shall mean the period commencing on ________
________ and ending at 5 p.m., eastern time on _________________.
"IVIVI Warrant" means this Warrant for the purchase of the
number of shares of Common Stock of the Company noted above.
"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, provided: however, that such issuances, in the aggregate, shall
be less than 271,000 shares of IVIVI until such time as the shares of Common
Stock underlying the Warrant are registered for resale with the SEC and listed
for trading on an Approved Market, (iii) Common Stock issued or issuable upon
conversion of the Warrants or any other securities exercisable or exchangeable
for, or convertible into shares of Common Stock outstanding as of the date of
this IVIVI Warrant, (iv) shares of Common Stock issuable upon the exercise or
conversion of securities issued to purchasers of notes and warrants in the
Company's private offering completed in December 2004 of an aggregate of
$3,637,500, and (v) shares of Common Stock issued or issuable in a transaction
approved in advance by the holders of more than 50% of the then outstanding
Warrants.
2. EXERCISE OF WARRANT/REGISTRATION RIGHTS.
(a) This IVIVI Warrant may be exercised in whole or in
part at any time or from time to time from the date that the Common Stock of the
Company is listed on an Approved Market, and that the shares of Common Stock
issuable upon exercise of this IVIVI Warrant have been registered for resale
with the SEC until the end of the Exercise Period by presentation and surrender
of this IVIVI Warrant and the ADMT Warrants 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 IVIVI Warrant 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 (the Holder will receive no consideration for the
surrender of the ADMT Warrant). If this IVIVI Warrant should be exercised in
part only, the Company shall, upon surrender of this IVIVI Warrant (and the ADMT
Warrants) for cancellation, execute and deliver a new IVIVI Warrant (and the
ADMT Warrants) 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 IVIVI Warrant at its office, or by the stock transfer agent of
the Company 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 Securities Act
of 1933, as amended (the "Act") of the shares issuable upon the exercise of this
IVIVI Warrant are incorporated herein by reference.
(c) The Company has also granted "piggyback" registration
rights to the Holder, as more fully described in the Subscription Agreement
executed as of the date hereof.
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 IVIVI
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof (along with the Corresponding ADMT Warrant) to
the Company or at the office of its stock transfer agent, if any, for other
IVIVI Warrants (and Corresponding ADMT 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 IVIVI
Warrant (and Corresponding ADMT Warrant) to the Company or at the office of its
stock transfer agent, if any, with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new IVIVI Warrant (and Corresponding ADMT
Warrant) in the name of the assignee named in such instrument of assignment and
this IVIVI Warrant (and Corresponding ADMT Warrant) shall promptly be canceled.
In the event the ADMT Warrant is exercised, in whole or in part, the holder of
this IVIVI Warrant shall surrender a proportionate number of IVIVI Warrants
evidenced hereunder to the Company for cancellation. This IVIVI Warrant (and
Corresponding ADMT Warrant) may be divided or combined with other IVIVI Warrants
(and Corresponding ADMT 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 IVIVI Warrants (and Corresponding ADMT Warrants) are
to be issued and signed by the Holder hereof. The term "Warrant" and "IVIVI
Warrant" as used herein includes any IVIVI 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.
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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.
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.
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(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
(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 ▇▇▇▇▇▇, 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) Issuance of Additional Shares of Common Stock.
(i) If at any time 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 then current Exercise Price, 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.
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(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).
(d) Issuance of Warrants or Other Rights. If at any time
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a distribution of, or 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 Trigger 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
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a distribution of, or 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.
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(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.
(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) 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 IVIVI 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 IVIVI Warrants; and
(ii) the shares of Common Stock issuable upon exercise of the IVIVI 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 IVIVI Warrants under
Rule 144, provided, however, that the aggregate number of IVIVI 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 IVIVI Warrants to be redeemed shall be pro rata among each
holder of the then outstanding IVIVI Warrants. The redemption price to be paid
by IVIVI shall be equal to $1.00 per IVIVI Warrant. If the IVIVI Warrants are
redeemed, the Corresponding ADMT Warrant shall thereafter be void.
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The Redemption Notice shall be given not later than the thirtieth day before the
date fixed for redemption. On and after the date fixed for redemption, the
Registered Holder shall have no rights with respect to this Warrant except to
receive the redemption price of $1.00 per Warrant upon surrender. If the IVIVI
Warrants are redeemed, a proportionate number of the Corresponding ADMT Warrants
shall thereafter be void.
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 Holder.
9. NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (1) if the Company shall pay any dividend or make any distribution
upon Common Stock, or (2) 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 (3) 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 (4) 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 days prior to the
date specified in clauses (1), (2), (3) or (4), 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 (i) a record is to be taken for the purpose of such
dividend, distribution or rights, or (ii) 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
(iii) such registration statement is to be filed with the Securities and
Exchange Commission.
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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.
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. The corporate laws of the State
of New Jersey shall govern all issues concerning the relative rights of the
Company and its stockholders. All issues concerning the construction, validity,
enforcement and interpretation of this Warrant shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflicts of law thereof. The parties hereto
agree that venue in any and all actions and proceedings related to the subject
matter of this Warrant shall be in the state and federal courts in and for New
York, New York, which courts shall have exclusive jurisdiction for such purpose,
and the parties hereto irrevocably submit to the exclusive jurisdiction of such
courts and irrevocably waive the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Service of process may be made in
any manner recognized by such courts. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
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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:
Ivivi Technologies, Inc.
▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Tel: ▇▇▇.▇▇▇.▇▇▇▇; Fax: 973. ▇▇▇-▇▇▇▇
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 February __, 2005.
IVIVI TECHNOLOGIES, INC.
By:
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Name:
Title:
11
PURCHASE FORM
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Dated: _______________, 20_____
The undersigned hereby irrevocably elects to exercise the within IVIVI
Warrant to the extent of purchasing _____ shares of Common Stock and hereby
makes payment of (i) $___________ in payment of the actual exercise price
thereof and (ii) the surrender to the Company of a proportionate amount of the
Corresponding ADMT Warrant for no consideration.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
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Name:
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(Please typewrite or print in block letters)
Signature:
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Social Security or Employer Identification No.:
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ASSIGNMENT FORM
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FOR VALUE RECEIVED, _______________________________________ hereby
sells, assigns and transfer unto:
Name:
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(Please typewrite or print in block letters)
Address:
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Social Security or Employer Identification No.:
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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 (along with the
Corresponding ADMT Warrant) on the books of the Company with full power of
substitution.
Dated: _________________, 200_.
Signature:
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Signature Guaranteed:
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