Exhibit 10.1(b)
LOCK-UP AGREEMENT
_________________, 2005
MAXIM GROUP LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Ivivi Technologies, Inc. Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this "AGREEMENT") relates to the initial public
offering (the "OFFERING") by Ivivi Technologies, Inc., a New Jersey corporation
(the "COMPANY"), of shares of its common stock, no par value per share (the
"COMMON STOCK"). The Offering shall be governed by that certain Underwriting
Agreement to be dated as of the effective date of the Offering (the
"UNDERWRITING AGREEMENT"), by and between the Company and Maxim Group LLC (the
"REPRESENTATIVE"), as representative of the several underwriters named therein.
1. In order to induce the Representative to underwrite the Offering,
the undersigned (on behalf of himself and his Permitted Transferees (as defined
below)) hereby agrees that, without the prior written consent of the
Representative during the period from the effective date of the Offering
("EFFECTIVE DATE") until twelve months thereafter (the "LOCK-UP PERIOD") the
undersigned and his Permitted Transferees: (a) will not, directly or indirectly,
offer, sell, agree to offer or sell, solicit offers to purchase, grant any call
option or purchase any put option with respect to, pledge, borrow or otherwise
dispose of any Relevant Security (as defined below), and (b) will not establish
or increase any "put equivalent position" or liquidate or decrease any "call
equivalent position" with respect to any Relevant Security (in each case within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder), or otherwise enter into
any swap, derivative or other transaction or arrangement that transfers to
another, in whole or in part, any economic consequence of ownership of a
Relevant Security, whether or not such transaction is to be settled by delivery
of Relevant Securities, other securities, cash or other consideration; provided
that the foregoing shall not apply to Relevant Securities acquired by the
undersigned in the Offering or Relevant Securities acquired by the undersigned
in the after market after the Effective Date. As used herein, the term "RELEVANT
SECURITY" means any shares of Common Stock or other security of the Company or
any Subsidiary thereof that is convertible into, or exercisable or exchangeable
for Common Stock or equity securities of the Company.
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Notwithstanding the foregoing, during the Lock-Up Period, the
undersigned: (i) may freely transfer (subject to any other legal or contractual
obligations) shares of Common Stock which are not Relevant Securities and (ii)
may transfer Relevant Securities solely for bona fide tax or estate planning
purposes and solely to the undersigned's spouse, brothers and sisters, lineal
ascendants or descendants or trusts for the benefit of such individuals (such
persons or entities, collectively, the "Permitted Transferees"), it being agreed
that: (A) such transfers of Common Stock shall not exceed 10% of the shares of
Common Stock beneficially owned by the undersigned for each such individual
during the Lock-Up Period, and (B) that the shares of Common Stock transferred
shall be valued at the Fair Market Value on the date of transfer. For purposes
of agreement, the term "Fair Market Value" shall mean the last sale price of the
Common Stock, during normal operating hours, as reported on the OTC Bulletin
Board or such other market or automated quotation system on which the Common
Stock is then listed.
2. The undersigned hereby authorizes the Company during the Lock-Up
Period to cause any transfer agent for the Relevant Securities to decline to
transfer, and to note stop transfer restrictions on the stock register and other
records relating to, Relevant Securities for which the undersigned is the record
holder and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities, if such transfer would constitute a
violation or breach of this Agreement.
3. The undersigned hereby further agrees that, without the prior
written consent of the Representative, which consent shall not be unreasonably
withheld, during the Lock-Up Period the undersigned will not: (x) file or
participate in the filing with the Securities and Exchange Commission of any
registration statement, or circulate or participate in the circulation of any
preliminary or final prospectus or other disclosure document with respect to any
proposed offering or sale of a Relevant Security and (y) exercise any rights the
undersigned may have to require registration with the Securities and Exchange
Commission of any proposed offering or sale of a Relevant Security.
4. The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Agreement and that this
Agreement constitutes the legal, valid and binding obligation of the
undersigned, enforceable in accordance with its terms. Upon request, the
undersigned will execute any additional documents necessary in connection with
enforcement hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first above written.
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5. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws
principles thereof. Delivery of a signed copy of this letter by facsimile
transmission shall be effective as delivery of the original hereof.
Very truly yours,
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[Signature Page to Lock-Up Agreement]
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