SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 5, 2010
IVIVI TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Charter)
New Jersey 001-33088 22-2956711
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(State Or Other Jurisdiction (Commission (IRS Employer
Of Incorporation) File Number) Identification No.)
224 Pegasus Avenue, Northvale, NJ 07647
(Address of Principal Executive Offices)(Zip Code)
Registrant's Telephone Number
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
[X] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
As disclosed in Ivivi Technologies, Inc.'s (the "Company") preliminary
proxy statement, and subsequent to the announcement of the transactions
contemplated by the Asset Purchase Agreement (collectively, the "Transaction"),
a purported shareholder class action complaint, captioned LEHMANN V. GLUCKSTERN,
ET. AL., was filed by one of the Company's shareholders in the Chancery Division
of the Superior Court of New Jersey in Bergen County on October 30, 2009, naming
the Company, its directors, Ivivi Technologies, LLC (the "Buyer") and Ajax
Capital LLC ("Ajax") as defendants (the "Action"). The complaint alleges that
the defendants breached their fiduciary duties in connection with the proposed
sale of the Company's assets to the Buyer. It also alleges that the Buyer and
Ajax aided and abetted the alleged breaches of fiduciary duties by the Company's
directors. Among other things, the complaint seeks to enjoin the Company and its
directors from completing the Transaction. In the alternative, the plaintiff
seeks to either rescind the Asset Purchase Agreement or recover damages in the
event the Transaction is completed.
The Company, the other defendants and the plaintiffs entered into a
Memorandum of Understanding, dated as of January 5, 2010 (the "MOU"). The MOU
provides, among other things, that in consideration for full settlement and
release of all claims under the Complaint:
1. The Company agreed to disclose certain additional information in the
definitive Proxy Statement to be filed by the Company regarding the
Transaction with the Securities and Exchange Commission (the "SEC")
and mailed to the Company's shareholders (such information has
already been included in the revised preliminary proxy statement
filed with the SEC on December 29, 2009).
2. The Company agreed to terminate the Voting Agreement (discussed
3. The Company's outside directors agreed to waive any board fees due
to them for services rendered as a director of the Company.
The settlement is subject to, among other things, (i) the drafting and
execution of a formal stipulation of settlement and such other documentation as
may be required to obtain final court approval of the settlement, (ii) the final
court approval of the settlement and entry of a final order and judgment by the
court providing for such release language as is contained in the settlement
documents, and (iii) the entry of orders dismissing the Action with prejudice on
The Company and the other defendants have vigorously denied, and continue
to vigorously deny, any wrongdoing or liability with respect to the facts and
claims asserted, or which could have been asserted, in the Action described
above. The settlement is not, and should not be construed as, an admission of
wrongdoing or liability by any defendant. The Company and its directors
considered it desirable that the Action be settled to prevent the delay of the
Transaction and to avoid the substantial burden, expense and risk of continued
litigation and to fully and finally resolve the matter.
The disclosure in Item 1.02 is incorporated in this Item 1.01 by reference.
ITEM 1.02. TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT.
As previously disclosed, the Company, the Buyer and certain shareholders of the
Company entered into a Voting Agreement in connection with the signing of the
Asset Purchase Agreement. Pursuant to the Voting Agreement, the signatory
shareholders agreed to vote their shares of the Company's common stock in favor
of the Transaction. In connection with the MOU discussed above, the Voting
Agreement was terminated pursuant to a Termination Agreement, dated as of
January 5, 2010, by and among the Company, the Buyer and the shareholders named
The foregoing description of the Termination Agreement is only a summary, does
not purport to be complete and is qualified in its entirety by reference to the
full text of the Termination Agreement, which is filed as Exhibit 10.1 hereto,
and is incorporated herein by reference.
IMPORTANT ADDITIONAL INFORMATION FOR SHAREHOLDERS
In connection with the Transaction, the Company has filed with the SEC a
preliminary proxy statement for the meeting of shareholders of the Company to be
convened to approve the Transaction. When completed, a definitive proxy
statement and a form of proxy will be mailed to the shareholders of the Company.
BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, THE COMPANY'S SHAREHOLDERS ARE
URGED TO READ THE PROXY STATEMENT (INCLUDING THE DEFINITIVE PROXY STATEMENT,
WHEN IT BECOMES AVAILABLE) AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND
IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE
TRANSACTION. Company shareholders can obtain copies of these materials
(including the definitive proxy statement, when it becomes available) without
charge from the SEC through the SEC's Web site at WWW.SEC.GOV. These documents
can also be obtained free of charge by accessing them on the Company's corporate
Website at www.ivivitechnologies.com.
The Company and its directors, executive officers and certain other
members of its management and employees may, under SEC rules, be deemed to be
participants in the solicitation of proxies from the Company's shareholders in
connection with the Transaction. Information regarding the interests of such
directors and executive officers (which may be different than those of the
Company's shareholders generally) is set forth in the Company's proxy statement
referred to above and additional information regarding the Company's directors
and executive officers is included in previous filings with the SEC, including
the Company's 2009 proxy statement.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit Number Description
10.1 Termination Agreement, dated as of January 5, 2010, by and
among Ivivi Technologies, Inc., Ivivi Technologies, LLC and
the shareholders named therein.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
IVIVI TECHNOLOGIES, INC.
By: /s/ Andre' DiMino
Name: Andre' DiMino
Title: Executive VP-Manufacturing
and Technology and Chief
Date: January 8, 2010