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EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered as of this 26th day of January, 1996, by and among HEARx LTD, a
Delaware corporation (the "Company"), Invemed Associates, Inc., a New York
corporation ("Invemed"), and the Investors listed on Schedule A hereto pursuant
to the Stock Purchase Agreement (the "SPA") dated as of the date hereof, by and
among the Company, Invemed and the Investors.
The parties hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value
$0.10 per share, of the Company.
"Invemed Warrants" means warrants to purchase up to
2,250,000 shares of Common Stock issued pursuant to the SPA.
"Investors" shall mean the Investors as defined in
the SPA.
"Investor Warrants" means warrants to purchase up to
an aggregate of 14,909,090 shares of Common Stock issued pursuant to the SPA.
"Prospectus" shall mean the prospectus included in
any Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"1996 Preferred Stock" shall mean the 1996 Senior
Preferred Stock, par value $1.00 per share, of the Company.
"Register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act (as defined below), and the
declaration or ordering of effectiveness of such registration statement or
document.
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"Registrable Securities" shall mean (i) the Common
Stock acquired upon the exercise of the Investor Warrants or the Invemed
Warrants and (ii) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, such Common Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned.
"Registration Statement" shall mean any registration
statement of the Company that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the U.S. Securities and Exchange
Commission.
"1933 Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Warrants" means the Invemed Warrants and the
Investor Warrants.
2. Demand Registration.
(a) Request for Registration. The holders of
more than 50% of the Registrable Securities (computed in accordance with the
provisions of the third and fourth sentence of Section 9(b)) may request
registration under the 1933 Act of those Registrable Securities described in
the notice to the Company requesting such registration. Within ten days after
receipt of any such request, the Company will give written notice of such
request to all other holders of Registrable Securities and will include in such
registration all Registrable Securities with respect to which the holder has
given notice to the Company of such holder's request for inclusion therein
within 30 days after the receipt by such holder of the Company's notice. The
holders of those Registrable Securities who originally requested registration
and the holders who, in the manner specified above, thereafter requested to be
included in such registration shall be collectively referred to herein as the
"Participating Holders." If adverse tax consequences to the holder might
result from exercise of the Warrant and the subsequent sale of the Common Stock
acquired pursuant to the Warrant, the Company will use its best efforts to
cause the underwriter of any underwritten Demand Registration or underwritten
Piggyback Registration to purchase and exercise such Warrant or portion thereof
as may be proffered by the holder thereof so that the holder may sell the
Warrant or a portion thereof.
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(b) Demand Registration. The holders of
Registrable Securities will collectively be entitled to only one demand
registration as provided in subsection (a) above (the "Demand Registration")
and that demand may be made at any time specified in subsection (a) by the
holders of at least 50% of all outstanding Registrable Securities. The Company
will pay all Registration expenses associated therewith, excluding discounts,
commissions, or fees of underwriters, selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of the
Registrable Securities or fees or expenses of counsel to the holders in excess
of $15,000. The Demand Registration will be a short-form registration on Form
S-3 or any successor form thereof if the Company is permitted to use such short
form. No securities other than Registrable Securities shall be included in the
Demand Registration without the consent of the holders of at least 50% of all
outstanding Registrable Securities.
(c) Restrictions on Registration. The Company
will not be obligated to effect any long-form Registration within six months
after the effective date of a registration in which the holders of Registrable
Securities were given piggyback rights pursuant to paragraph 3. The Company
may postpone for up to three months the filing or the effectiveness of a
registration statement for the Demand Registration if the Company's Board of
Directors determines in good faith that the Demand Registration can be
reasonably expected to have a materially adverse effect on any proposal or plan
by the Company or any of its subsidiaries to engage in a transaction or series
of transactions that are or may be material to the Company; provided that the
Company may exercise this right only once in any 180 day period; and, provided
further, that in the event the Company exercises this right, the Participating
Holders will be entitled to withdraw such request and, if such request is
withdrawn, such demand will not count as the Demand Registration.
(d) Selection of Underwriters. The Participating
Holders, by action of the holders of a majority of the Registrable Securities
to be included in such registration, will have the right to select one or more
investment banker(s) and manager(s), reasonably acceptable to the Company, to
administer the offering.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company
proposes to register any of its securities under the 1933 Act, other than (i)
pursuant to the Demand Registration, (ii) any other demand registration now
outstanding to other holders of the Company's securities (which holders have
the right to exclude holders of Registrable Securities from such registration)
or (iii) registration on Form S-8, the Company will give 30 days prior written
notice to all holders of Registrable Securities of the intention to effect such
a registration and, subject to the provisions of subsection (c) hereof, will
include in such registration all Registrable Securities with respect to which
the holder has given notice of request for inclusion therein to the Company
within 15 days after the
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receipt of the Company's notice (a "Piggyback Registration" and such requesting
holders of Registrable Securities being herein referred to as "Piggyback
Holders").
(b) Piggyback Expenses. The Company will pay all
Registration expenses of the Piggyback Holders, excluding discounts,
commissions, or fees of underwriters, selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of the
Registrable Securities and excluding fees or expenses of counsel to the holders
in excess of $5,000.
(c) Priority on Piggyback Registration. If in
respect of an underwritten Piggyback Registration, the managing underwriters
advise the Company in writing that in their opinion, the number of securities
to be included in such registration exceeds the number which can be sold in
such offering, the priority of registration will be as follows: (i) first, the
shares sought by the Company to be registered shall be included in such
registration; and (ii) second, if all such shares are so included, all
Registrable Securities requested by the Piggyback Holders to be included in
such registration shall be so included along with other registrable securities
of other holders exercising or otherwise given piggyback registration rights,
pro rata on the basis of the number of shares requested to be included in each
registration by such holders.
(d) Selection of Underwriters. The Company will
have the right to select one or more investment banker(s) and manager(s) to
administer the offering.
4. Holdback Agreements.
(a) Each holder of Registrable Securities agrees
not to effect any public sale or distribution of equity securities of the
Company, or any securities convertible into or exercisable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which such holder's Registrable Securities are included (except
as part of such underwritten registration) unless the underwriters managing the
registered public offering otherwise agree; provided, that in no event shall a
holder of Registrable Securities be subject to a limitation on sale or
distribution that covers a period longer than that to which any other
securityholder whose securities are included in the registration is subject.
(b) The Company agrees (i) not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and during the 90-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registration on Form S-8), unless the underwriters managing the registered
public offering otherwise agree, and (ii) to cause each holder of at least 5%
of any class of its equity securities, or any person that would own 5% of the
Company's outstanding
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equity securities on conversion, exchange or exercise of securities convertible
into or exchangeable or exercisable for such securities, purchased from the
Company at any time after the date of this Agreement (other than in a
registered public offering made subsequent to such offering) to agree not to
effect any public sale or distribution of any such securities during such
period (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering
otherwise agree.
5. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities and use its reasonable
best efforts to cause such Registration Statement to become effective and to
remain continuously effective for a period which will terminate when all
Registrable Securities covered by such Registration Statement, as amended from
time to time, have been sold or a period of one year, whichever is shorter;
(b) prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement and the Prospectus
as may be necessary to keep the Registration Statement effective for the period
specified in Section 5(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all Registrable Securities;
provided that, at a time reasonably prior to the filing of a Registration
Statement or Prospectus, or any amendments or supplements thereto, the Company
will furnish to the Participating Holders or the Piggyback Holders, as the case
may be, copies of all documents proposed to be filed, which documents will be
subject to the comments of the Participating Holders or the Piggyback Holders,
as the case may be, and their counsel;
(c) notify the Participating Holders or the
Piggyback Holders, as the case may be, promptly, and confirm such advice in
writing, (i) when the Prospectus or any supplement or post-effective amendment
has been filed, and with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC for amendments or supplements to the Registration Statement
or the Prospectus or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, and (iv) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
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(d) make reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement;
(e) furnish to the Participating Holders or the
Piggyback Holders, as the case may be, at least five copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(f) deliver to each Participating Holder or
Piggyback Holder, as the case may be, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such holder may reasonably request in order to facilitate the disposition of
the Registrable Securities;
(g) prior to any public offering of Registrable
Securities, use its reasonable best efforts to register or qualify or cooperate
with the Participating Holders or the Piggyback Holders, as the case may be,
and the underwriters, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions as the
Participating Holders or the Piggyback Holders, as the case may be, or any
underwriter reasonably requests in writing and do any and all other reasonable
acts or things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(h) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange,
interdealer quotation system or other market on which similar securities issued
by the Company are then listed;
(i) in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, usual and customary in form, with the managing underwriter of such
offering; the Participating Holders or the Piggyback Holders, as the case may
be, shall also enter into and perform their obligations under such agreement,
usual and customary in form; the Company shall take such other actions as the
underwriters reasonably request in order to expedite or facilitate a
disposition of the Registrable Securities;
(j) upon request, furnish to each Participating
Holder or Piggyback Holder, as the case may be, a signed counterpart, addressed
to such holder, of (i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), and (ii) a "comfort" letter, dated
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the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the independent public accountants who
have certified the Company's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case
of such accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings of securities and, in the case of the accountants' letter,
such other financial matters, as the principal underwriter with respect to such
registration may reasonably request (or, if such registration does not involve
an underwritten offering, as may reasonably (i.e., in conformity with Statement
on Auditing Standards No. 72, as amended, or any successor statement thereto)
be requested by holders of a majority of the Registrable Securities included in
such registration);
(k) immediately notify each Participating Holder
or Piggyback Holder, as the case may be, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which, the Prospectus
included in such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and at the request of any such
holder, promptly prepare and furnish to such holder a reasonable number of
copies of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(l) otherwise use its reasonable efforts to
comply with all applicable rules and regulations of the SEC under the 1933 Act
and the 1934 Act, take such other actions as may be reasonably necessary to
facilitate the registration or the disposition of the Registrable Securities
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve months, beginning after
the effective date of the applicable Registration Statement, which earnings
statement shall satisfy the provisions of subsection 11(a) of the 1933 Act (for
the purpose of this subsection 5(b), "Availability Date" means the 45th day
following the end of the fourth fiscal quarter that includes the effective date
of such Registration Statement, except that, if such fourth fiscal quarter is
the last quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter).
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6. Indemnification.
(a) Indemnification by Company. The Company
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each Participating Holder or Piggyback Holder as the case may be, such holder's
officers, directors, partners and employees and each person who controls such
holder (within the meaning of the 0000 Xxx) and each underwriter, if any
(including any broker or dealer which may be deemed an underwriter) and each
person who controls any underwriter of the Registrable Securities against all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorney's fees) and expenses caused by (i) any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or any preliminary prospectus or any amendment or supplement thereto
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based upon any information furnished
in writing to the Company by such holder, expressly for use therein, or (ii)
any violation by the Company of any federal, state or common law, rule or
regulation applicable to the Company in connection with any Registration
Statement, Prospectus or any preliminary prospectus, or any amendment or
supplement thereto, and shall reimburse, as incurred, each of the foregoing
persons for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claims. The foregoing is subject to
the condition that, insofar as the foregoing indemnities relate to any untrue
statement, alleged untrue statement, omission or alleged omission made in any
preliminary prospectus or Prospectus which is eliminated or remedied in any
Prospectus or amendment or supplement thereto, the above indemnity obligations
of the Company shall not inure to the benefit of any indemnified party if a
copy of such final Prospectus or amendment or supplement thereto had been made
available to such indemnified party and was not sent or given by such
indemnified party at or prior to the time such action is required of such
indemnified party by the 1933 Act and if delivery of such Prospectus or
amendment or supplement thereto would have eliminated (or been a sufficient
defense to) any liability of such indemnified party with respect to such
statement or omission. Indemnity under this Section 4(a) shall remain in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the permitted transfer of the Registrable
Securities.
(b) Indemnification by Holder of Registrable
Securities. In connection with any registration pursuant to the terms of this
Agreement, the holder of Registrable Securities included in such registration
will furnish to the Company in writing such information as the Company
reasonably requests concerning the holder or the proposed manner of
distribution for use in connection with any Registration Statement or
Prospectus and agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its directors and officers and each person who
controls the Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages, liabilities and expense resulting from any untrue statement of
a material fact or any
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omission of a material fact required to be stated in the Registration Statement
or Prospectus or preliminary prospectus or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information furnished in writing by
the holder of Registrable Securities to the Company specifically for inclusion
in such Registration Statement or Prospectus and that such information was
substantially relied upon by the Company in preparation of the Registration
Statement or Prospectus or any amendment or supplement thereto. In no event
shall the liability of the holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds (net of all expense
paid by such holder and the amount of any damages such holder has otherwise
been required to pay by reason of such untrue statement or omission) received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party;
provided that any person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of
such person unless (a) the indemnifying party has agreed to pay such fees or
expenses, or (b) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such person or (c)
in the reasonable judgment of any such person, based upon written advice of its
counsel, a conflict of interest may exist between such person and the
indemnifying party with respect to such claims (in which case, if the person
notifies the indemnifying party in writing that such person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such person); and provided, further, that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to give
notice shall materially adversely affect the indemnifying party in the defense
of any such claim or litigation. It is understood that the indemnifying party
shall not, in connection with any proceeding in the same jurisdiction, be
liable for fees or expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties. No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) Contribution. If for any reason the
indemnification provided for in the preceding clauses (a) and (b) is
unavailable to an indemnified party or insufficient to hold it harmless, other
than as expressly specified therein, then the
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indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation within the
meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from
any person not guilty of such fraudulent misrepresentation. In no event shall
the contribution obligation of a holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all expenses paid by such
holder and the amount of any damages such holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.
7. Holders Entitled to Equivalent Rights. If the
registration rights of the holders of Registrable Securities granted pursuant
to this Agreement are less favorable to such holders than registration rights
available to any other holder ("Other Holder") of securities of the Company on
the date hereof ("Other Rights") are to such Other Holder, this Agreement shall
be immediately and automatically amended, without the requirement of any action
by the parties hereto, to provide the holders of Registrable Securities under
this Agreement with registration rights at least as favorable as such Other
Rights.
8. Termination. The Company shall be under no
obligation to effect any registration under this Agreement with respect to any
Registrable Securities that may be sold pursuant to Rule 144(k) under the 1933
Act, and this Agreement shall terminate with respect to those securities.
9. Miscellaneous.
(a) Remedies. If the Company shall breach its
obligations to register the Registrable Securities pursuant to this Agreement,
the Investors shall be entitled to exercise all rights provided herein or
granted by law, including recovery of damages, or in equity, including specific
performance.
(b) Amendments and Waivers. This Agreement may
be amended and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent to such amendment, action or omission
to act, of the holder or holders of at least 66 2/3% or more of the shares of
Registrable Securities (and, in the case of any amendment, action or omission
to act that affects adversely any specific holder of Registrable Securities or
a specific group of holders of Registrable Securities, the written consent of
each such holder or holders of 75% or more of the Registrable Securities held
by such group). Each holder of any Registrable Securities at the time and any
subsequent holder of Registrable Securities shall be bound by any consent
authorized by
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this subsection 9(b), whether or not such Registrable Securities shall have
been marked to indicate such consent. The percentage of Registrable Securities
held by a holder or holders for purposes of this paragraph shall be based on
the sum of the shares then currently issuable upon exercise of Warrants held by
such holder or holders plus shares issuable upon exercise of Warrants which
such holder or holders would be holding if Warrants for such shares owned by
such holder or holders had not been exercised. Warrants and shares issued upon
the exercise of Warrants that are not Registrable Securities will be excluded
from the computation set forth in the preceding sentence. Notwithstanding the
foregoing, this Agreement shall automatically be amended in accordance with the
provisions of Section 7.
(c) Notices. All notices and other
communications provided for or permitted hereunder shall be made as set forth
in Section 8.4 of the SPA.
(d) Assignments and Transfers by Investors. This
Agreement and all the rights and obligations of the Investors hereunder may not
be assigned or transferred to any transferee or assignee except as set forth
herein. Each Investor may make such assignment or transfer to any transferee
or assignee of any Registrable Securities, provided, that (i) such transfer is
made expressly subject to this Agreement and the transferee agrees in writing
to be bound by the terms and conditions hereof, and (ii) the Company is
provided with written notice of such assignment. The Investors may assign or
transfer their rights and obligations hereunder to each other, so long as the
Company is provided with written notice of any such assignment or transfer. In
addition, the Company hereby expressly consents to transfers or assignments of
this Agreement and all the rights and obligations of an Investor hereunder by
the Investor that is a partnership to its partners, pro rata in accordance with
their ownership interests in the Investor, by an Investor that is a
corporation, to its executive officers, directors, or shareholders, and by an
Investor that is an individual to his or her spouse or children, provided,
however, that (i) such transfer is made expressly subject to this Agreement and
each transferee agrees in writing to be bound by the terms and conditions
hereof, and (ii) the Company is provided with written notice of any such
assignment.
(e) Assignments and Transfers by the Company.
This Agreement may not be assigned by the Company without the prior written
consent of Investors, except that without the prior written consent of the
Investors, but after notice duly given, the Company shall assign its rights and
delegate its duties hereunder to any successor-in-interest corporation, and
such successor-in-interest shall assume such rights and duties, in the event of
a merger or consolidation of the Company with or into another corporation, or
any merger or consolidation of another corporation with or into the Company
which results directly or indirectly in an aggregate change in the ownership or
control of more than 50% of the voting rights of the equity securities of the
Company, or the sale of all or substantially all of the Company's assets.
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(f) Benefits of the Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(g) Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(h) Titles and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.
(i) Expenses. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(j) Severability. If one or more provisions of
this Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
(k) Further Assurances. The Parties shall
execute and deliver all such further instruments and documents and take all
such other actions as may reasonably be required to carry out the transactions
contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
(l) Entire Agreement. This Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(m) Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to principles of conflicts of law.
B-12
13
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
The Company: HEARx LTD.
By:
-----------------------------
Name: Xxxx X. Xxxxx, M.D.
Title: Chairman of the Board
Invemed: INVEMED ASSOCIATES, INC.
By:
-----------------------------
Name:
Title:
The Investors:
--------------------------------
Xxxxxx Xxxxxxxxx
--------------------------------
Xxxxx Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
B-13
14
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
--------------------------------
Xxxxxxxx Xxxxxxx
--------------------------------
Xxxx Erlbaum
--------------------------------
Xxxxxxx Xxxxx
--------------------------------
Xxxx Xxxxxxxxx
X-00
15
--------------------------------
Xxxx X. Xxxxxxxx
--------------------------------
Carlisle Xxxxx
--------------------------------
Xxxxxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxxxx Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx Xxxxxx
--------------------------------
G. Xxxxx Xxxxxx
B-15
16
--------------------------------
Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
--------------------------------
Xxxx Xxxxxx
B-16
17
--------------------------------
Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx Erlbaum
--------------------------------
Xxxxxx Xxxxxxx
X-00
