EXHIBIT 4.7
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of June ___, 1999, by
and among Medical Industries of America, Inc., a corporation duly incorporated
and existing under the laws of the State of Florida (the "Company") and Xxxxxx
Private Equity, LLC (hereinafter referred to as "Xxxxxx").
RECITALS:
WHEREAS, pursuant to the Company's offering ("Equity Line ") of up to
Twenty Five Million Dollars ($25,000,000), excluding any funds paid upon
exercise of the Warrants, of Common Stock of the Company pursuant to that
certain Letter of Intent dated on or about May 19, 1999 (the "Letter of Intent")
between the Company and Xxxxxx, the Company has agreed to sell and Xxxxxx has
agreed to purchase, from time to time as provided in the Investment Agreement,
shares of the Company's Common Stock for a maximum aggregate offering amount of
Twenty Five Million Dollars ($25,000,000); and
WHEREAS, pursuant to the terms of the Letter of Intent, the Company has
agreed, among other things, to issue to the Subscriber Commitment Warrants, as
defined in the Letter of Intent, to purchase a number of shares of Common Stock,
exercisable for five (5) years from their respective dates of issuance.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in Agreement and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. ISSUANCE OF COMMITMENT WARRANTS. As compensation for entering into the Equity
Line, Xxxxxx shall receive a warrant convertible into 425,000 shares of Medical
Industries Common Stock, in the form attached hereto as EXHIBIT A (the
"Commitment Warrants").
2. VESTING OF COMMITMENT WARRANTS. Upon receipt by Xxxxxx of the Commitment
Warrant executed by Medical Industries, Xxxxxx shall deliver Medical Industries
all legal documentation required to close the Equity Line transaction ("the
Closing Documents"). During the 10 business day period following receipt of the
Closing Documents by Medical Industries (the "Document Review Period"), Medical
Industries and its counsel shall review the Closing Documents and negotiate any
necessary modifications with Xxxxxx'x counsel. Should Medical Industries wish to
reject the Closing Documents (as modified by mutual agreement) it must do so on
or before the last day of the Document Review Period, by providing Xxxxxx
written notice of such rejection (an "Unacceptable Document Notice"). Such
notice may be properly given by facsimile or by common courier. Xxxxxx shall
return the Commitment Warrant within 2 business days of receipt of such
Unacceptable Document Notice and the Equity Line commitment by Xxxxxx shall be
terminated. In the absence of a Due Diligence Notice (as defined below) by
Xxxxxx or an Unacceptable Document Notice by Medical Industries being
transmitted by the appropriate party prior to the end of the "Document Review
Period," the Commitment Warrant shall irrevocably vest with Xxxxxx, subject only
to a Partial Warrant Return, as defined below.
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3. CANCELLATION OF WARRANT BY HOLDER. During Medical Industries' 10 business day
Document Review Period, Xxxxxx shall conduct its Due Diligence of Medical
Industries in order to finalize its commitment to the Equity Line transaction.
In the event that Xxxxxx notifies Medical Industries in writing during such
period that, based upon its due diligence review, Xxxxxx elects not to proceed
with the obligations under the Equity Line (a "Due Diligence Notice"), this
Agreement and the Commitment Warrants shall become null and void and Xxxxxx
shall return the Commitment Warrants to Medical Industries.
4. PARTIAL WARRANT RETURN AND EQUITY LINE COMMITMENT CANCELLATION. In the event
that (i) the Company has filed a registration statement ( "Registration
Statement") covering the resale of the common shares issuable in conjunction
with the Equity Line and issuable upon exercise of the warrants by the date that
is 45 days after the date of execution by the Company of the Closing Documents,
(ii) the Company has used its reasonable best efforts to have the Registration
Statement declared effective and has responded to any comments from the
Securities and Exchange Commission within 30 days of receipt thereof, AND (iii)
a Registration Statement has not been declared effective by the date that is 6
months from the date that the registration statement was filed, then Xxxxxx
shall return 40% of the Commitment Warrants (a "Partial Warrant Return") to
Medical Industries and Xxxxxx'x Equity Line Commitment shall be cancelled and
Xxxxxx shall not be entitled to receive any Additional Warrants or Makeup
Warrants thereafter. The provisions in this section may be waived or suspended
by mutual agreement between both parties.
5. ISSUANCE OF ADDITIONAL WARRANTS. The Company agrees that on each 6-month
anniversary of the date of execution of the Closing Documents (the "Closing
Date"), for 1 year following the Closing Date, it shall issue additional
warrants (the "Additional Warrants"), also in the form of EXHIBIT A, to Xxxxxx
under the following circumstances and in the following amounts:
(1) In the event that the Company issues shares of common stock in
conjunction with any acquisitions consummated on or after May 13, 1999,
Xxxxxx shall receive Additional Warrants in an amount equal to .0264
multiplied by the number of shares of common stock (up to 30 million
shares) issued in conjunction with such acquisitions (excluding shares to
be issued for the acquisition of CyberCare, Inc., and excluding either (i)
shares to be issued for the acquisition of MedVentures, Inc., or, (ii) in
lieu thereof, excluding up to 6 million shares to be issued in a similarly
valued acquisition).
(2) In the event that Medical Industries conducts a reverse stock split on
or before the date that is one (1) year after the Closing Date for the
Equity Line, such that the total aggregate number of warrants issued to
Xxxxxx to date (including the Commitment Warrants and any Additional
Warrants), as adjusted for the stock split(s), is less than the Minimum
Warrant Amount stated below, Xxxxxx shall receive a number of additional
warrants ("Make Up Warrants") such that the aggregate number of warrants
issued to Xxxxxx shall equal the Minimum Warrant Amount.
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NUMBER OF COMMON SHARES OUTSTANDING MINIMUM
IMMEDIATELY FOLLOWING THE REVERSE STOCK SPLIT WARRANT AMOUNT
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Greater than 8,000,000 300,000 shares
Less than 8,000,000 250,000 shares
The initial exercise price of the Additional Warrants and the Makeup
Warrants shall equal one hundred fifteen percent (115%) of the average of the
Closing Bid Prices of the Company's Common Stock for the five (5) trading days
immediately preceding the date of their Date of Issuance.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Act or the Securities Exchange Act of 1934, which matters shall be
construed and interpreted in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this ___day of June, 1999.
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MEDICAL INDUSTRIES OF AMERICA, INC. SUBSCRIBER:
XXXXXX PRIVATE EQUITY, LLC.
By: __________________________ By: __________________________
Xxxx X. Xxxxxxx, President Xxxx X. Xxxxxx, Manger
Address: Medical Industries of America, Inc. 0000 Xxxxxxx Xxxxxx Xxxx
Attn: Xxxx X. Xxxxxxx, President Xxxx. 000, Xxxxx 000
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX 00000
Xxxxxxx Xxxxx, XX 00000 Telephone: (000) 000-0000
Telephone (000) 000-0000 Facsimile: (000) 000-0000
Facsimile (000) 000-0000
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