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EXHIBIT 10.1
VOTING AGREEMENT
VOTING AGREEMENT,
dated as of September 24, 2009 (this "AGREEMENT"), by
and among Ivivi Technologies, Inc., a New Jersey corporation (the
"COMPANY"),
Ivivi Technologies, LLC, a Delaware limited liability company (the
"BUYER"), and
the other parties listed on the signature pages hereto (each, a
"STOCKHOLDER"
and collectively, the "STOCKHOLDERS"). Capitalized terms used but
not otherwise
defined herein shall have the respective meanings ascribed to such
terms in the
Purchase Agreement (as defined below).
WHEREAS, as of the
date hereof, each of David Saloff, Arthur Pilla,
Ph.D., Berish Strauch, M.D., Sean Hagberg, Ph.D. and Ed Hammel
(each, a
"CONTINGENT STOCKHOLDER" and collectively, the "CONTINGENT
STOCKHOLDERS"), among
others, is a party to that certain Amended and Restated Voting
Agreement, dated
as of August 30, 2006, among the Company and the shareholders
listed on the
signature pages thereto (the "EXISTING VOTING AGREEMENT"), pursuant
to which
Andre' A. DiMino has the right to exercise or direct the vote,
until October 24,
2009 (in which date the Existing Voting Agreement shall expire with
respect to
the Contingent Stockholders), of all of the shares of Company
Common Stock owned
by each Contingent Stockholder, and each of the Contingent
Stockholders agrees
to enter into this Agreement as of the date hereof (and for
purposes of SECTION
1.01 and SECTION 1.02 of this Agreement only after the expiration
of the
Existing Voting Agreement if the Company Meeting has not occur as
of such date);
WHEREAS, as of the
date hereof, subject to the Existing Voting
Agreement, each Stockholder (i) is the record or beneficial holder
of, and has
the sole right to vote and dispose of, the number of issued and
outstanding
shares of Company Common Stock and (ii) has the right to exercise
or direct the
vote, whether by proxy or otherwise, of the number of shares of
Company Common
Stock, in each case, as set forth opposite such Stockholder's name
on ANNEX I
(all Company Common Stock owned of record or beneficially by any
Stockholder as
of the date hereof as set forth on ANNEX I, together with any
Company Common
Stock that are hereafter issued to or otherwise acquired by such
Stockholder
prior to the termination of this Agreement (including pursuant to
any exercise
of stock options or exercise or conversion of other securities, or
pursuant to a
stock dividend, distribution, split-up, recapitalization,
combination or similar
transaction), and any Company Common Stock with respect to which
any Stockholder
has as of the date hereof, or acquires prior to the termination
hereof, the
right to exercise or direct the vote, whether by proxy or
otherwise, being
hereinafter referred to as the "SUBJECT SHARES");
WHEREAS,
concurrently with the execution and delivery of this
Agreement, the Company, the Buyer and Ajax Capital LLC, a Delaware
limited
liability company, are entering into that certain Asset Purchase
Agreement,
dated as of the date hereof (the "PURCHASE AGREEMENT"), pursuant to
which, among
other things, the Buyer has agreed to purchase substantially all of
the assets,
and to assume certain liabilities, of the Company (the
"TRANSACTION"); and
WHEREAS, as a
condition to its willingness to enter into the Purchase
Agreement, the Buyer required that each Stockholder, and in order
to induce the
Buyer to enter into the Purchase Agreement, each Stockholder has
agreed to,
enter into this Agreement.
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NOW, THEREFORE, in
consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth
below, and for
other good and valuable consideration, the receipt and sufficiency
of which are
hereby acknowledged, and intending to be legally bound hereby, the
parties
hereto agree as follows:
ARTICLE 1
AGREEMENT TO VOTE
Section 1.01.
VOTING OF SUBJECT SHARES. Each Stockholder (and with
respect to each Contingent Stockholder, only upon the expiration of
the Existing
Voting Agreement) severally as to itself only agrees that, until
the date this
Agreement is terminated in accordance with SECTION 4.03, at any
Company Meeting,
such Stockholder shall, or shall cause the holder of record on any
applicable
record date to, vote (or cause to be voted) its, his or her Subject
Shares:
(i) in favor of the approval of the Purchase Agreement, the
Transaction and the other transactions contemplated thereby;
(ii)
against the approval of any matter or proposal submitted to
the shareholders of the Company for approval, if approval of such
matter or
proposal would result in a breach in any material respect of any
covenant,
representation or warranty or any other obligation of the Company
under the
Purchase Agreement; and
(iii) against (A) any merger or other business combination
involving the Company, (B) a sale or transfer of a material amount
of assets or
capital stock of the Company (other than the Transaction) or (C)
any action that
is intended, or could reasonably be expected, to materially impede,
interfere
with, delay, postpone or adversely affect the Transaction and the
other
transactions contemplated by the Purchase Agreement.
Section 1.02.
IRREVOCABLE PROXIES. In order to secure the performance
of each Stockholder's obligations under this Agreement, by entering
into this
Agreement and solely with respect to the matters described in
SECTION 1.01, each
Stockholder hereby irrevocably grants (and with respect to each
Contingent
Stockholder, each such Contingent Stockholder commits to
irrevocably grant, upon
the expiration of the Existing Voting Agreement) a proxy appointing
Mr. Steven
M. Gluckstern ("SMG") as such Stockholder's attorney-in-fact and
proxy, with
full power of substitution, for and in its, his or her name, place
and stead, to
vote, express consent or dissent, or otherwise to utilize such
voting power in
the manner contemplated by and in accordance with SECTION 1.01, in
SMG's
discretion, with respect to such Stockholder's Subject Shares, in
each case,
until the termination of this Agreement in accordance with SECTION
4.03. Each
Stockholder hereby represents that any proxies heretofore given in
respect of
the Subject Shares (other than proxies pursuant to the Existing
Voting
Agreement) are not irrevocable, and that any such proxies are
hereby revoked.
Each Stockholder severally (and not jointly) hereby affirms that
the irrevocable
proxy set forth in this SECTION 1.02 is given (and with respect to
each
Contingent Stockholder, is committed to be given) in connection
with the
execution of the Purchase Agreement and affirms that such
irrevocable proxy is
coupled with an interest and may under no circumstances be revoked,
except that
such irrevocable proxy shall be revoked automatically, without any
notice or
other action by any Person, upon the termination of this Agreement
in accordance
with SECTION 4.03. Each Stockholder severally (and not jointly)
hereby ratifies
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and confirms all that such irrevocable proxy may lawfully do or
cause to be done
by virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS
SECTION 1.02
IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder (and
with respect
to the each Contingent Stockholder, upon the expiration of the
Existing Voting
Agreement) shall execute and deliver to SMG any proxy cards that
such
Stockholder receives to vote in favor of the approval of the
Purchase Agreement,
the Transaction or any of the transactions contemplated
thereby.
Section 1.03.
ADDITIONAL COVENANT BY MR. ANDRE' A. DIMINO. For
avoidance of doubt, Mr. DiMino hereby acknowledges and agrees that
(i) his
obligations under this Agreement with respect to his Subject Shares
(including,
without limitation, pursuant to, and under, SECTION 1.01 and
SECTION 1.02) shall
also apply to all of the shares of Company Common Stock with
respect to which
Mr. DiMino has the right to exercise or direct the vote pursuant to
the Existing
Voting Agreement and (ii) during the term of the Existing Voting
Agreement, he
shall not agree to terminate his right to exercise or direct the
vote of the
shares of Company Common Stock owned by any Contingent Stockholder
(subject to
the Existing Voting Agreement as of the date hereof) pursuant to
the Existing
Voting Agreement.
Section 1.04.
COMPANY BREACH. For the avoidance of doubt, each
Stockholder agrees that, during the term of this Agreement the
obligations of
such Stockholder specified in SECTION 1.01 shall not be affected by
(i) the
Board's or the Special Committee's withdrawal or modification of
its
Recommendation or (ii) any breach by the Company of any of its
representations,
warranties, agreements or covenants set forth in the Purchase
Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder
hereby represents and warrants as to itself, himself
or herself, severally and not jointly, to the Company and the Buyer
as follows:
Section 2.01.
AUTHORIZATION; BINDING AGREEMENT. The execution, delivery
and performance by such Stockholder of this Agreement and the
consummation of
the transactions contemplated hereby are within its, his or her
legal capacity
and requisite powers, and if this Agreement is being executed in
a
representative or fiduciary capacity, the Person signing this
Agreement has full
power and authority to execute, deliver and perform this Agreement.
Assuming the
due authorization, execution and delivery of this Agreement by the
Company and
the Buyer, this Agreement constitutes a legal, valid and binding
agreement of
such Stockholder enforceable against such Stockholder in accordance
with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency,
reorganization, moratorium and other Laws of general applicability
relating to
or affecting creditors' rights and by general principles of equity
(regardless
of whether such enforceability is considered in a proceeding in
equity or at
law).
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Section 2.02.
NON-CONTRAVENTION. Other than (a) the filing by such
Stockholder of any reports with the Securities and Exchange
Commission required
by Section 13(d) or 16(a) of the Exchange Act, or (b) any consent,
approval
filing or notification which has been obtained as of the date
hereof, the
execution and delivery of this Agreement by such Stockholder does
not, and the
performance of the terms of this Agreement by such Stockholder (or
SGM's voting
of such Stockholder's Subject Shares pursuant to the proxy
contemplated by
SECTION 1.02) will not (1) require such Stockholder to obtain the
consent or
approval of, or make any filing with or notification to, any
Governmental
Entity, (2) require the consent or approval of any other person
pursuant to any
agreement, obligation or instrument binding on such Stockholder or
its
properties and assets, or (3) conflict with or violate any
organizational
document, agreement or Law applicable to such Stockholder's Subject
Shares or
such Stockholder or pursuant to which any such Stockholder is a
party, including
any voting agreement, stockholders agreement, irrevocable proxy or
voting trust.
Section 2.03.
OWNERSHIP OF SUBJECT SHARES; TOTAL SHARES. As of the date
hereof, such Stockholder is the record or beneficial owner (as
defined in Rule
13d-3 under the Exchange Act) of its, his or her Subject Shares. As
of the date
hereof, such Stockholder does not own, beneficially or otherwise,
any shares of
voting stock of the Company other than as set forth opposite such
Stockholder's
name in ANNEX I. Except with respect to the grant of purchase
rights by certain
shareholders of the Company to SMG pursuant to an agreement dated
November 8,
2005 (the "SMG PURCHASE AGREEMENT"), there are no outstanding
options or other
rights to acquire from such Stockholder, or obligations of such
Stockholder to
sell or to dispose of, any shares of voting stock of the
Company.
Section 2.04.
VOTING POWER. Except as set forth in the Existing Voting
Agreement, each Stockholder has full voting power with respect to
its, his or
her Subject Shares, and full power to issue instructions with
respect to the
matters set forth herein, and full power to agree to all of the
matters set
forth in this Agreement, in each case with respect to all of its,
his or her
Subject Shares.
Section 2.05.
RELIANCE BY THE COMPANY AND THE BUYER. Such Stockholder
understands and a
