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Exhibit 10.6
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to
the Employment Agreement (this "Amendment"), dated as
of the 3 day of April 2009, is made by and between Ivivi
Technologies, Inc. (the
"Employer") and Andre' A. Dimino (the "Employee").
WITNESSETH THAT:
WHEREAS, the
Employer and the Employee are parties to an Amended and
Restated Employment Agreement, dated as of December 31, 2008 (the
"Agreement");
and
WHEREAS, the
Employer has determined to enter into certain financing
transactions (the "Transaction") pursuant to that certain Loan
Agreement, dated
as of the date hereof, by and between the Employer and Emigrant
Capital Corp.
(the "Loan Agreement"); and
WHEREAS, Emigrant Capital Corp. has required, as a condition to
its
iexecution of the Loan Agreement and the closing of the
Transaction, that the
Employee agree to certain amendments to the Agreement that may
reduce the amount
of severance pay and benefits that may otherwise be paid or
provided and/or
delay or defer the date upon which such severance pay and benefits
may otherwise
be paid or provided (the "Severance Delay"); and
WHEREAS, the
Employer and the Employee have determined that the
execution of the Loan Agreement, the execution of this Amendment,
and the
consummation of the Transaction are necessary in order for the
Employer to
remain a viable going concern; and
WHEREAS, the
Employer and the Employee have determined that, in light
of the current financial position of the Employer, neither the
execution of this
Amendment, nor the occurrence of the Severance Delay, should cause
any payments
or benefits paid or provided under the Agreement to become subject
to any
"additional tax" within the meaning of Section 409A of the Internal
Revenue Code
of 1986, as amended.
NOW THEREFORE, for
and in consideration of the foregoing, the Employer
and the Employee hereby agree as follows:
1. The Agreement is hereby
amended to provide as follows:
(i) Notwithstanding any other
provision of the Agreement to
the contrary, in
the event that, at any time during the Severance
Rights Restriction
Period (as defined in Annex 2 of the Loan Agreement)
but prior to the
occurrence of the Maturity Date (as defined in Annex 2
of the Loan
Agreement), the employment of the Employee is terminated by
the Employer
without Cause or by the Employee for Good Reason (a
"PRE-MATURITY
APPLICABLE TERMINATION") and, as a result of such
Pre-Maturity
Applicable Termination, the Employee would otherwise
become entitled to
receive, pursuant to the terms of the Agreement, any
severance or other
payment in the form of cash (but excluding the
payment of the
Accrued Obligations, reimbursements relating to COBRA
coverage, and the
acceleration of vesting of equity-based awards)
following, or in
connection with, such Pre-Maturity Applicable
Termination
(collectively, a "SEVERANCE PAYMENT"), the Employer's
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