EXHIBIT 4.6
JULY 21, 1999
Attn: Corporate Stock Transfer
Republic Plaza
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Re: Medical Industries of America, Inc.
Dear Sirs and Madams:
Reference is made to that certain Investment Agreement (the "Investment
Agreement"), dated on or about July 21, 1999, by and among Medical Industries of
America, Inc., a Florida corporation (the "Company"), and the other signatories
thereto (the "Holders") pursuant to which the Company, at times and amounts
chosen by the Company, as further described in the Investment Agreement, may
issue to the Holder up to Twenty Five Million Dollars ($25,000,000) in aggregate
principal amount of Common Stock of the Company (the "Put Shares"), and warrants
(the "Warrants") to purchase Common Stock (the "Warrant Shares") of the Company.
The Put Shares will be delivered to First Union National Bank (the "Escrow
Agent") pursuant to the terms of the Escrow Agreement and Instructions (the
"Escrow Agreement") by and among the Escrow Agent, the Company and Xxxxxx
Private Equity, LLC
A. ISSUANCE OF PUT SHARES. This letter shall serve as our irrevocable
authorization and direction to you (provided that you are the transfer agent of
the Company at such time) to issue unlegended Put Shares (in electronic form,
unless otherwise specified) in the name of each Holder or its nominee, or in
such other name as the Escrow Agent, as custodian, shall direct, and, to deliver
such Put Shares to the Escrow Agent (in the case of electronic shares, the Put
Shares shall be delivered under the Escrow Agent's DTC participation number)
from time to time upon surrender to you of (i) a letter from the Company,
instructing you to issue a specified number of Put Shares to the Holder, (ii) a
properly completed and duly executed Put Notice, in the form attached hereto as
Exhibit 1, which has been properly agreed and acknowledged by the Company as
indicated by the signature of a duly authorized officer of the Company thereon,
(iii) Registration Confirmation (as defined below) and (iv) an opinion of
counsel ("Put Opinion of Counsel") in substantially the form of Exhibit 2.
B. ISSUANCE OF WARRANT SHARES. This letter shall serve as our irrevocable
authorization and direction to you (provided that you are the transfer agent of
the Company at such time) to issue unlegended Warrant Shares in the name of the
Holder (or in the name of its nominee, at the Holder's request) from time to
time upon surrender to you of (i) a letter from the Company, instructing you to
issue a specified number of Warrant Shares to the Holder, (ii) a properly
completed and duly executed Warrant Exercise Form, in the form attached hereto
as Exhibit 3, which has been properly agreed and acknowledged by the Company as
indicated by the signature of a duly authorized officer of the Company thereon,
(iii) Registration Confirmation (as defined below) and (iv) an opinion of
counsel ("Warrant Opinion of Counsel") in substantially the form of Exhibit 4.
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C. LEGEND FREE CERTIFICATES. So long as you have previously received: (i)
written confirmation from counsel to the Company (which counsel may be in-house
legal counsel) that a registration statement covering resales of the Put Shares
and Warrant Shares has been declared effective by the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and (ii) a copy of such
registration statement, ((i) and (ii) above are collectively collectively
referred to as "Registration Confirmation"), certificates representing the Put
Shares and Warrant Shares shall not bear any legend restricting transfer of the
Put Shares or Warrant Shares and should not be subject to any stop-transfer
restriction.
If you have not previously received Registration Confirmation, then the
Put Shares shall not be issued, and the certificates representing the Warrant
Shares shall be issued, but shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, THE SECURITIES REPRESENTED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS
UNLESS OFFERED, SOLD OR TRANSFERRED UNDER AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS."
provided, however, that the Company may from time to time notify you to place
stop-transfer restriction on the certificates for outstanding Put Shares and
Warrant Shares in the event a registration statement covering resales of the Put
Shares and the Warrant Shares is subject to amendment for events then current.
Please be advised that the Holders are relying upon this letter as an inducement
to enter into the Investment Agreement.
Please execute this letter in the space indicated to acknowledge your agreement
to act in accordance with these instructions. Should you have any questions
concerning this matter, please contact me at (000) 000-0000.
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Very truly yours,
MEDICAL INDUSTRIES OF AMERICA, INC.
By:_____________________________
Xxxx X. Xxxxxxx, President
Agreed and Acknowledged:
TRANSFER AGENT HOLDER
CORPORATE STOCK TRANSFER XXXXXX PRIVATE EQUITY, LLC
By:_____________________ By:_______________________
Xxxx X. Xxxxxx, Manager
Name:___________________
Title:__________________
Date:______________,1999 Date:________________,1999
Enclosures
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