Exhibit 10.20
REVENUE SHARING AGREEMENT
THIS REVENUE SHARING AGREEMENT (this "AGREEMENT") is made as of the
28th day of August, 2006 by and between Ivivi Technologies, Inc., a New Jersey
corporation, with offices at 000-X Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("IVIVI") and Ajax Capital LLC, a New York limited liability company, with
offices at 00 Xxxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000 ("AJAX") (Ivivi and Ajax are
referred to individually as a "PARTY" and collectively as the "PARTIES").
WHEREAS, simultaneously with the execution of this Agreement, Ivivi is
selling to Ajax, and Ajax is purchasing from Ivivi, 15 units of the Roma(3) (the
"Roma Units" or "Roma") and 5 units of the SofPulse M10 (the "SofPulse Units" or
"SofPulse") (collectively, the "UNITS" and each, a "UNIT"), at a purchase price
of $14,500 per Unit, the current published wholesale unit price for the Roma(3)
and the XxxXxxxx X00, for an aggregate purchase price of $290,000, pursuant to
the terms of a purchase order, dated as of the date hereof; and
WHEREAS, the Parties desire to establish a revenue sharing arrangement
with respect to the Units on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and premises
herein contained, the parties agree as follows:
1. Shared Revenues for Unit Rentals. During the Term (as such term is
defined below), Ivivi shall use its commercially reasonable efforts to rent the
Units to third parties. Ivivi shall pay Ajax on or before the 15th day
immediately following each consecutive thirty-day period during the Term,
commencing on October 11, 2006, an amount equal to the sum of (i) an amount (the
"ROMA SHARED RENTAL AMOUNT") based on gross proceeds from the rental of the Roma
Units received by Ivivi during such thirty-day period (the "ROMA RENTAL
REVENUES") and (ii) an amount (the "SOFPULSE SHARED RENTAL AMOUNT") based on
proceeds from the rental of the SofPulse Units received by Ivivi during such
thirty-day period, net of commissions paid to distributors and other sales
people with respect to such rentals (the "SOFPULSE RENTAL REVENUES"), as set
forth below:
(a) The Roma Shared Rental Amount with respect to each of the
consecutive thirty-day periods during the Term shall be equal to fifty percent
(50%) of the Roma Rental Revenues for such thirty-day period.
(b) The SofPulse Shared Rental Amount with respect to each of
the consecutive thirty-day periods during the Term shall be equal to the
SofPulse Rental Revenues for such thirty-day period, reduced by (i) 11.5% of the
gross proceeds for services related to marketing, billing, collections and
account maintenance to be performed by Ivivi with respect to the SofPulse Units,
received by Ivivi during such thirty-day period, and (ii) in the case of each of
the first three consecutive thirty-day periods during the Term, a set up fee of
$2,000.
2. Shared Revenues for Applicator Sales. Ivivi shall pay Ajax on or
before the 15th day immediately following each consecutive thirty-day period
during the Term, commencing on October 11, 2006, an amount equal to 50% of the
gross proceeds received by Ivivi during such thirty-day period from Ivivi's sale
of applicators for use in connection with the units of the Roma(3) rented to
third parties during the Term.
3. Payments; Reports and Access.
(a) All payments made by Ivivi to Ajax under this Agreement
shall be made by check or wire transfer to such bank and account as Ajax may
from time to time designate in writing. All payments due hereunder are expressed
in and shall be paid in United States Dollars.
(b) During the Term, to the extent permitted by applicable law
and agreements to which Ivivi is a party, Ajax will be entitled to have
reasonable access during normal business hours, to all financial records of
Ivivi that are necessary to verify amounts paid to Ajax pursuant to this
Agreement; provided, however, that Ajax shall not materially interfere with the
operation of Ivivi's business and Ivivi will not be required to provide access
to any information or documents which would breach any agreement with any third
party.
4. Term; Termination.
(a) Term. Unless sooner terminated pursuant to this Section 4,
this Agreement will be effective as of the date hereof and will remain in effect
until the fifth anniversary of the date hereof (such period of time referred to
as the "TERM").
(b) Termination. This Agreement may be terminated as follows:
(i) upon the mutual written agreement of the
Parties; or
(ii) in the event that either Party commits a
material breach of its obligations under this
Agreement, and such Party fails to cure such
breach within twenty (20) days after written
notice from the other Party, upon further
written notice to the breaching Party by the
notifying Party at any time thereafter.
5. Confidential Information.
(a) Ajax agrees that all information received by it from Ivivi
pursuant to this Agreement (1) shall be received in strict confidence, (2) shall
be used only for the purposes of this Agreement, and (3) shall not be disclosed
by Ajax, its agents or employees without the prior written consent of Ivivi,
except to the extent that Ajax can establish competent written proof that such
information: (i) was in the public domain at the time of disclosure; (ii) later
became part of the public domain through no act or omission of Ajax, its
employees, agents, successors or assigns; or (iii) is required by law or
regulation to be disclosed, provided however, that (A) Ajax shall first give
Ivivi written notice and adequate opportunity to object to such order for
disclosure or to request confidential treatment; and (B) information disclosed
pursuant to this clause (iii) shall otherwise remain Confidential Information
for the purposes of this Agreement.
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(b) Ajax understands that Ivivi initially filed with the
Securities and Exchange Commission on February 11, 2005 a Registration Statement
on Form SB-2 relating to Ivivi's initial public offering of shares of its common
stock (as amended, the "Registration Statement"), and that as soon as the
Registration Statement is declared effective by the Securities and Exchange
Commission and Ivivi becomes a publicly held corporation, trading in its
securities while in possession of material, non-public information related to
Ivivi may violate federal and state securities laws.
6. Representations and Warranties.
(a) Representations of Authority. Each of Ivivi and Ajax
represents and warrants to the other that it has full right, power and authority
to enter into this Agreement and to perform its respective obligations under
this Agreement.
(b) Enforceability. Each of Ivivi and Ajax represents and
warrants to the other that this Agreement constitutes a legally valid and
binding agreement, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(c) Consents. Each of Ivivi and Ajax represents and warrants
to the other that all necessary consents, approvals and authorizations of all
government authorities and other persons required to be obtained by such Party
in connection with execution, delivery and performance of this Agreement have
been obtained.
7. Assignment. Neither Party may assign this Agreement or any of its
rights, interests or obligations hereunder with or without the prior written
approval of the other Party. This Agreement shall inure to the benefit of the
Parties hereto and be binding on their respective successors and permitted
assigns.
8. Severability. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable, in whole or part, such invalidity will not
affect any otherwise valid provision, and all other valid provisions will remain
in full force and effect.
9. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the Parties and delivered
to the other Party, it being understood that all Parties need not sign the same
counterpart.
10. Titles. The titles and headings preceding the text of the
paragraphs of this Agreement have been inserted solely for convenience of
reference and do not constitute a part of this Agreement or affect its meaning,
interpretation or effect.
11. Waiver. The failure of any Party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of any Party with respect to such term, covenant
or condition will continue in full force and effect.
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12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent by facsimile,
mailed by registered or certified mail (return receipt requested) or sent by
overnight courier to the Parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) If to Ivivi, to:
000-X Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to Ajax, to:
00 Xxxxxx Xxxxxx #0X
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, that any such notice of change of address shall be
effective only upon receipt. All notices, requests or instructions given in
accordance herewith shall be deemed given (i) on the date of delivery, if hand
delivered, (ii) on the date of receipt, if sent by facsimile, (iii) three
business days after the date of mailing, if mailed by registered or certified
mail, return receipt requested, and (iv) one business day after the date of
sending, if sent by Federal Express or other recognized overnight courier.
13. Entire Agreement. This Agreement constitutes the entire agreement
of the Parties hereto with respect to the subject matter hereof and supersedes
all prior agreements, letters of intent and understandings, both written and
oral, among the Parties with respect to the subject matter hereof. There are no
representations or warranties, agreements, or covenants other than those
expressly set forth in this Agreement.
14. Modification. Except as otherwise provided herein, this Agreement
cannot be amended or modified except by subsequent written agreement between
Ivivi and Ajax.
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15. Governing Law and Jurisdiction. Governing Law; Consent to
Jurisdiction. This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New Jersey, without reference to the
choice of law principles thereof. Each of the parties hereto irrevocably submits
to the non-exclusive jurisdiction of the courts of the State of New Jersey and
the United States District Court for the District of New Jersey for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date and year first above written.
IVIVI TECHNOLOGIES, INC.
BY: /S/ ANDRE' XXXXXX
NAME: ANDRE' XXXXXX
TITLE: CHAIRMAN
AJAX CAPITAL LLC
BY: /S/ XXXXXX X. XXXXXXXXXX
NAME: XXXXXX X. XXXXXXXXXX
TITLE:_____________________________________
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