EXHIBIT 10.4
RESTRICTED SALE AGREEMENT
Medical Industries of America, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
The undersigned holders of shares of common stock, no par value per share,
of CyberCare, Inc., a Georgia corporation ("CCI") are entitled to receive in
connection with that certain Stock Exchange Agreement (the "Stock Exchange
Agreement") between CCI and Medical Industries of America, Inc., a Florida
corporation ("MIOA") dated June ___, 1999 shares of MIOA common stock, par value
$.0025 per share ("MIOA Common Stock"). The undersigned understand that sales of
large blocks of MIOA Common Stock could negatively impact the trading price of
the MIOA Common Stock.
Accordingly, the undersigned in consideration of One Dollar ($1.00) and
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged and as a condition precedent to the closing of the Stock
Exchange Agreement hereby agree that for a period of one year after the date of
the effective date of the Registration Statement (the "Effective Date") for the
offer and sale of the MIOA Common Stock to be received in connection with the
Stock Exchange (the "Restricted Sale Period"), the undersigned will not, within
any 90 day period, offer to sell, contract to sell, hypothecate, negotiate,
pledge, assign, encumber, loan, pledge, grant any rights with respect to or
otherwise dispose of, directly or indirectly (collectively, a "Disposition"), a
number of shares of MIOA Common Stock or securities convertible into or
exchangeable or exercisable for any shares of MIOA Common Stock now owned or
hereafter acquired by the undersigned which exceeds 5 percent of the total
average weekly trading volume (which shall be calculated without the inclusion
of any Dispositions) of MIOA's common stock during the four (4) calendar weeks
preceding the date of any such Disposition, other than a Disposition (i) to
other holders of MIOA Common Stock who are bound by the terms of a Restricted
Sale Agreement containing the terms and restrictions described herein, (ii) to
any donees who receive such shares of MIOA Common Stock as a bona fide gift and
who are bound by the terms of a Restricted Sale Agreement containing the terms
and restrictions described herein, (iii) to any affiliate of the undersigned who
is bound by the terms of a Restricted Sale Agreement containing the terms and
restrictions described herein, (iv) with the prior written consent of MIOA or
(v) pursuant to proportionate co-sale rights with other officers and directors
of MIOA to the extent sales by such officers and directors exceed the
limitations imposed upon the undersigned as provided above (for which MIOA shall
be obligated to provide the undersigned with written notice). The term
"Disposition" shall not include the undersigned's exercise of (i) a stock option
issued or granted by MIOA and outstanding on the date hereof or issued after the
date hereof under any MIOA stock option or incentive plan or (ii)
Medical Industries of America, Inc.
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other securities issued or granted by MIOA and outstanding on the date hereof
and convertible or exchangeable for shares of MIOA Common Stock.
The undersigned acknowledge and agree that the foregoing restriction also
expressly precludes the undersigned from engaging in any hedging or other
transaction which is designed to or reasonably expected to lead to or result in
a Disposition of shares of MIOA Common Stock during the Restricted Sale Period,
even if such shares of MIOA Common Stock would be disposed of by someone other
than the undersigned. Such prohibited hedging or other transactions would
include, without limitation, any short sale (whether or not against the box) or
any purchase, sale, show of any shares or grant of any right (including, without
limitation, any put or call option) with respect to any shares of MIOA Common
Stock or with respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its value
from the MIOA Common Stock.
The undersigned agree to submit each certificate for the shares of MIOA
Common Stock now or hereafter owned by him to MIOA for imprinting of the
following legends thereon:
"The sale, transfer, hypothecation, negotiation, pledge,
assignment, encumbrance or other disposition of this share
certificate and the shareholdings represented hereby are subject to
all of the terms, conditions and provisions of a Restricted Sale
Agreement dated as of ______________, 1999, by and among the holder
of this certificate and Medical Industries of America, Inc., a copy
of which may be obtained from the Secretary of Medical Industries of
America, Inc."
In furtherance of the foregoing, MIOA and its transfer agent and registrar
are hereby authorized to decline to make any transfer of shares of MIOA Common
Stock if such transfer would constitute a violation or breach of this Restricted
Sale Agreement.
This Restricted Sale Agreement shall be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding may
be instituted. Each party hereto agrees to submit to the personal jurisdiction
and venue of the state and/or federal courts located in Palm Beach County,
Florida, for resolution of all disputes arising out of or in connection with or
by reason of the interpretation, construction and enforcement of this Agreement,
and hereby waives the claim or defense therein that such court constitutes in an
inconvenient form. As material inducement for this Agreement each party
specifically waives the right to trial by jury for any issues so trialable.
Medical Industries of America, Inc.
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Very truly yours,
Date:____________________, 1999 ______________________________________
Signature
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
Date:____________________, 1999 ______________________________________
Signature
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
Date:____________________, 1999 ______________________________________
Signature
Name: J. Xxxxx Xxxxxx
Title: Vice President
