ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES.
PRIVATE PLACEMENT
On October 18, 2007, Ivivi Technologies, Inc. (the "Company") completed the
transactions contemplated by the Securities Purchase Agreement (the "Securities
Purchase Agreement") dated as of October 15, 2007, between the Company and the
purchaser named therein (the "Purchaser"). Under the terms of the Securities
Purchase Agreement, the Company sold 1,000,000 shares of its common stock, no
par value (the "Shares"), at a price of $5.00 per share for gross proceeds of
$5,000,000. On October 19, 2007, the Company issued a press release announcing
the completion of the offering. The full text of the press release is attached
hereto as Exhibit 99.1.
The Purchaser represented that it was an "accredited investor," as that term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act"), and the sale of the Shares was made in reliance
on exemptions provided by Regulation D and Section 4(2) of the Securities Act.
In connection with the Securities Purchase Agreement, the Company and the
Purchaser entered into a Registration Rights Agreement, dated as of October 15,
2007, under which the Company agreed to file a registration statement to
register the resale of the Shares within 60 days of the date of closing and to
use commercially reasonable efforts to cause the registration statement to be
declared effective within 120 days of closing (or 150 days upon receipt of
comments from the SEC). In the event the Company fails to meet the filing and
effectiveness deadlines, it will be subject to customary penalties.
The Company intends to use the net proceeds from the offering for working
capital and for general corporate purposes.
The Company did not use any form of advertising or general solicitation in
connection with the sale of the Shares. The Shares will be non-transferable in
the absence of an effective registration statement under the Securities Act, or
an available exemption therefrom, and all certificates will be imprinted with a
restrictive legend to that effect.
The description of the private placement described in this Current Report on
Form 8-K does not purport to be complete and is qualified in its entirety by
reference to the form of Securities Purchase Agreement filed as Exhibit 10.1 and
the form of Registration Rights Agreement filed as Exhibit 10.2 to the Company's
Current Report on Form 8-K (collectively, the "Transaction Documents") filed
with the Securities and Exchange Commission on October 16, 2007, all of which
are incorporated herein by reference. The forms of the Transaction Documents
have been included to provide investors and security holders with information
regarding their terms. They are not intended to provide any other factual
information about the Company. The Transaction Documents contain certain
representations, warranties and indemnifications resulting from any breach of
such representations or warranties. Investors and security holders should not
rely on the representations and warranties as characterizations of the actual
state of facts because they were made only as of the respective dates of the
Transaction Documents. In addition, information concerning the subject matter of
the representations and warranties may change after the respective dates of the
Transaction Documents, and such subsequent information may not be fully
reflected in the Company's public disclosures.
CONSULTANT WARRANT
On October 1, 2007, the Company's Board of Directors approved the grant of a
warrant (the "Warrant") to purchase up to 100,000 shares of Common Stock at
$3.50 per share to a consultant in exchange for services provided to the
Company. The Warrant expires on October 1, 2012.
The grant of the Warrant was considered to be exempt from registration under the
Securities Act in reliance on Section 4(2) of the Securities Act, or Regulation
D promulgated thereunder, as a transaction by an issuer not involving a public
offering. The Warrant is restricted and may not be resold unless it is
subsequently registered under the Securities Act or resold pursuant to an
applicable exemption therefrom.
FORWARD LOOKING STATEMENTS
This Current Report on Form 8-K, including Exhibit 99.1, contains
forward-looking statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. Forward-looking statements
typically are identified by use of terms such as "may," "will," "should,"
"plan," "expect," "anticipate," "estimate" and similar words, although some
forward-looking statements are expressed differently. Forward-looking statements
represent our management's judgment regarding future events. Although the
Company believes that the expectations reflected in such forward-looking
statements are reasonable, the Company can give no assurance that such
expectations will prove to be correct. All statements other than statements of
historical fact included in this Current Report on Form 8-K are forward-looking
statements. The Company cannot guarantee the accuracy of the forward-looking
statements, and you should be aware that the Company's actual results could
differ materially from those contained in the forward-looking statements due to
a number of factors, including the statements under "Risk Factors" contained in
the Company's Annual Report on Form 10-KSB for the fiscal year ended March 31,
2007 filed with the Securities and Exchange Commission.