EXHIBIT 10.9
VOTING AGREEMENT
This VOTING AGREEMENT, is effective as of the 5th day of January, 2004
(the "Effective Date"), among Ivivi Technologies, Inc., a New Jersey corporation
(the "Company"), 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; and
WHEREAS, the Company and the Shareholders believe it to be in the best
interests of the Company and the Shareholders that Andre' XxXxxx ("Xx. XxXxxx")
have the right to vote such number of shares of Common Stock beneficially owned
by the Shareholders as set forth on Exhibit A (collectively, the "Restricted
Shares") pursuant to the terms and conditions of this Agreement in order to
facilitate the business of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
GRANT OF PROXY; TRANSFER RESTRICTIONS
Section 1.1. 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 Xx. XxXxxx, with full power of
substitution, to act as proxy (i) to vote the Restricted Shares of such
Shareholder set forth on Exhibit A 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 Xx. XxXxxx
may determine in his sole discretion, and Xx. XxXxxx hereby accepts such
appointment. Each proxy granted pursuant to this Section 1.1(a) shall be
effective for all purposes from the Effective Date until 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 II hereof. Each proxy
authority contained in this Section 1.1(a) shall be deemed to be coupled with an
interest and shall be irrevocable. Each proxy granted pursuant to this Section
1.1(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 Xx. XxXxxx, with full power of substitution, to act as proxy (i) to
vote the Restricted Shares of such Shareholder set forth on Exhibit A 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 Xx. XxXxxx may determine in his sole discretion, and
Xx. XxXxxx hereby accepts such appointment. The proxy granted pursuant to this
Section 1.1(b) shall be effective for all purposes from the Effective Date until
terminated pursuant to Article II hereof. The proxy authority contained in this
Section 1.1(b) shall be deemed to be coupled with an interest and shall be
irrevocable. The proxy granted pursuant to this Section 1.1(b) shall survive may
not be revoked for any reason whatsoever.
Section 1.2. 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 Xx. XxXxxx 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 A VOTING
AGREEMENT DATED AS OF JANUARY 5, 2004, AMONG IVIVI
TECHNOLOGIES, INC. AND THE OTHER PARTIES THERETO, A COPY OF
WHICH 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 II
EFFECTIVENESS; TERMINATION
Section 2.1. 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 1.1.(a), or (ii) upon the written consent of the Company
and Andre' XxXxxx; 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 3.1. 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 3.2. 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 3.3. 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 3.4. 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 1.2 of this Agreement.
Section 3.5. Expenses. Each of the parties hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated hereby.
Section 3.6. Amendment; Waiver.
(a) This Agreement may be amended only by a written instrument duly
executed by (i) the Company, (ii) Xx. XxXxxx 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 3.7. 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 000-X Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, 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 3.7, 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 3.8. 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 3.9. 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 3.10. 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 3.11. 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 3.12. 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 3.7 of this
Agreement.
Section 3.13. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
IVIVI TECHNOLOGIES, INC.
By: /s/ Andre' XxXxxx
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Name: Andre' XxXxxx
Title: Chairman and Chief Financial Officer
VOTING AGREEMENT SIGNATURE PAGE
/s/ Andre' XxXxxx
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Andre' XxXxxx
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ Xxxxxx Xxxxxxx, Ph.D.
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Xxxxxx Xxxxxxx, Ph.D.
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ Xxxxxx Xxxxx, Ph.D.
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Xxxxxx Xxxxx, Ph.D.
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ Xxxx Xxxxxxx, Ph.D.
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Xxxx Xxxxxxx, Ph.D.
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
/s/ Xx Xxxxxx
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Xx Xxxxxx
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Street Address
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City State Zip
WITNESS:
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VOTING AGREEMENT SIGNATURE PAGE
FIFTH AVENUE CAPITAL PARTNERS
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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 JANUARY 5, 2004
NUMBER OF
SHARES OF
COMMON STOCK RESTRICTED
NAME OWNED SHARES
Xxxxx Xxxxxx 245,000 (1) 245,000 (1) (2)
Xxxxxx Xxxxx, Ph.D. 140,000 (3) 140,000 (3) (2)
Xxxxxx Xxxxxxx, M.D. 80,000 (4) 80,000 (4) (2)
Xxxx Xxxxxxx, Ph.D. 62,500 (5) 62,500 (5) (2)
Xx Xxxxxx 62,500 (6) 62,500 (6) (2)
Fifth Avenue Capital Partners 215,000 215,000 (7)
TOTAL: 805,000 (8) 805,000 (9)
(1) Includes 28,000 shares of common stock, no par value ("Common Stock"),
of Ivivi Technologies, Inc. (the "Company") beneficially owned by Xx.
Xxxxxx and 217,000 shares of Common Stock that are subject to
forfeiture and vest in four equal yearly installments on January 5 of
each year through January 5, 2009.
(2) Andre' XxXxxx has the right to vote these shares pursuant to the terms
of the Voting Agreement, dated as of January 5, 2004, among the
Company, Andre' XxXxxx and the shareholders named therein, to which
this Exhibit A is attached (the "Voting Agreement"), until 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 II of the Voting Agreement.
(3) Includes 16,000 shares of Common Stock beneficially owned by Xx. Xxxxx
and 124,000 shares of Common Stock that are subject to forfeiture and
vest in four equal yearly installments on January 5 of each year
through January 5, 2009.
(4) Includes 10,000 shares of Common Stock beneficially owned by Xx.
Xxxxxxx and 70,000 shares of Common Stock that are subject to
forfeiture and vest in four equal yearly installments on January 5 of
each year through January 5, 2009.
(5) Includes 7,500 shares of Common Stock beneficially owned by Xx. Xxxxxxx
and 55,000 shares of Common Stock that are subject to forfeiture and
vest in four equal yearly installments on January 5 of each year
through January 5, 2009.
(6) Includes 7,500 shares of Common Stock beneficially owned by Xx. Xxxxxx
and 55,000 shares of Common Stock that are subject to forfeiture and
vest in four equal yearly installments on January 5 of each year
through January 5, 2009.
(7) Andre' DiMinio has the right to vote these shares pursuant to the terms
of the Voting Agreement indefinitely.
(8) Reference is made to Footnote Nos. (1), (3), (4), (5) and (6).
(9) Reference is made to Footnote Nos. (1) through (7).
