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EXHIBIT D
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT COVERING THIS WARRANT UNDER SAID ACT OR AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT.
EXERCISABLE COMMENCING AT 12:01 A.M., NEW YORK TIME ON [ ]
("EXERCISE DATE"). VOID AFTER 5:00 P.M. NEW YORK TIME ON [ ]
("EXPIRATION DATE").
HEARx LTD.
CLASS B WARRANT TO PURCHASE [ ] SHARES OF
COMMON STOCK, PAR VALUE $0.10 PER SHARE
This is to certify that, for VALUE RECEIVED, [ ]
("Warrantholder"), is entitled to purchase, subject to the provisions of this
Warrant, from HEARx Ltd., a Delaware corporation ("Company"), at any time
beginning at 12:01 A.M. on the Exercise Date and not later than 5:00 P.M., New
York time, on the Expiration Date, at the exercise price of Fifty-five cents
($0.55) per share (the exercise price in effect being herein called the
"Warrant Price"), [ ] shares ("Warrant Shares") of Common Stock,
par value $0.10 per share ("Common Stock"), of the Company. The number of
Warrant Shares purchasable upon exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time as described herein.
Notwithstanding the foregoing, this Warrant is subject to redemption, in whole
or in part, prior to the Exercise Date, as set forth in Section 11 hereof.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of the
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, the Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act") or an exemption from registration
thereunder. Subject to such
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restrictions and the provisions of Section 11, the Company shall transfer from
time to time, the Warrant, upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer upon any such transfer,
and a new Warrant shall be issued to the transferee and the surrendered Warrant
shall be cancelled by the Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof,
the Warrantholder may exercise the Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached thereto, to the Company, beginning at 12:01 A.M. on the
Exercise Date until 5:00 P.M. New York Time on the Expiration Date, together
with payment of the Warrant Price, as such may be adjusted from time to time in
accordance with Section 9, for the number of Warrant Shares in respect of which
the Warrant is then exercisable. To the extent that any Warrant Shares remain
outstanding at 5:01 P.M. on the Expiration Date, such outstanding Warrant
Shares shall automatically expire and be of no further force and effect, and the
holders thereof shall have no further right to exercise or transfer the same.
Payment of the Warrant Price shall be made (x) in cash or by certified check
payable in United States dollars, to the order of the Company and/or (y) through
conversion of the Warrant, effected by the surrender to the Company of this
Warrant. Upon surrender of the Warrant to the Company as payment of the Warrant
Price, the holder thereof shall be entitled to receive a number of Warrant
Shares arrived at by dividing the difference between the aggregate Market Price
(as hereinafter defined) of the Warrant Shares issuable in respect of the
Warrant surrendered and the aggregate Warrant Price in respect of the Warrant so
surrendered by the Market Price per share of the Warrant Shares. "Market Price"
as used herein shall mean, on any day, as of such day, the average of the
reported closing sale price, regular way, in either case on any national
securities exchange on which the Common Stock is listed or admitted to trading,
or if the Common Stock is not listed or admitted to trading any such exchange,
as reported by the Nasdaq Stock Market, or if such shares are not then so listed
or admitted to trading, the average of the bid and asked prices as reported by
the NASD OTC Bulletin Board Service, if so reported, or if not so reported, then
as furnished by National Quotation Bureau Incorporated or any similar
organization selected from time to time by the Company for the purpose.
Subject to Section 5, upon such surrender of the Warrant and
payment of the Warrant Price as aforesaid, the Company shall issue and cause to
be delivered to the Warrantholder or to such other person as the Warrantholder
may designate, a certificate or certificates for the number of full Warrant
Shares so purchased upon the exercise of the Warrant, together with cash, as
provided in Section 10 hereof in respect of any fraction of a Warrant Share
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued, and the person to whom they are issued shall be
deemed to have become a holder of record of the Warrant Shares, as of the date
of the surrender of the Warrant and payment of the Warrant Price as aforesaid
unless counsel for the Company advises the Company in writing that an earlier
date is
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permissible for purposes of applicable securities laws. The rights of purchase
represented by the Warrant shall be exercisable, at the election of the
Warrantholder either as an entirety or from time to time for part only of the
Warrant Shares and, in the event that the Warrant is exercised in respect of
less than all of the Warrant Shares specified herein at any time prior to the
Expiration Date, a new Warrant will be issued to Warrantholder for the
remaining number of Warrant Shares specified in the Warrant so surrendered
within five business days.
Section 4. Exercise and Transfer to Company with the Securities
Act of 1933. Neither this Warrant nor the Common Stock issued upon exercise
hereof nor any other security issued or issuable upon exercise of this Warrant
may be offered or sold except as provided in this agreement and in conformity
with the Securities Act of 1933, as amended, and then only against receipt of
an agreement of such person to whom such offer of sale is made to comply with
the provisions of this Section 4 with respect to any resale or other
disposition of such security. The Company may cause the legend set forth on
the first page of this Warrant to be set forth on each Warrant or any security
issued or issuable upon exercise of this Warrant, unless counsel for the
Company is of the opinion as to any such security that such legend is
unnecessary or such security may then be sold pursuant to Rule 144(k) under the
Securities Act of 1933.
Section 5. Payment of Taxes. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrant Shares
issuable upon the exercise of the Warrant; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect
of any transfer involved in the issue or delivery of any certificates for
Warrant Shares in a name other than that of the registered holder of the
Warrant in respect of which such shares are issued, and in such case, the
Company shall not be required to issue or deliver any certificate for Warrant
Shares or any Warrant until the person requesting the same has paid to the
Company the amount of such tax or has established to the Company's satisfaction
that such tax has been paid.
Section 6. Mutilated or Missing Warrants. In case the Warrant
shall be mutilated, lost, stolen, or destroyed, the Company shall issue in
exchange and substitution of and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and for the purchase of a like number of Warrant Shares,
but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction of the Warrant, and with respect to a lost,
stolen or destroyed Warrant, reasonable indemnity or bond, if requested by the
Company.
Section 7. Reservation of Common Stock. The Company hereby
represents and warrants that there have been reserved, and the Company shall at
all applicable times keep reserved, out of the authorized and unissued Common
Stock, a number of shares sufficient to provide for the exercise of the rights
of purchase represented by the Warrant, and the American Stock Transfer & Trust
Company, the transfer agent for the
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Common Stock ("Transfer Agent"), and every subsequent transfer agent for the
Common Stock or other shares of the Company's capital stock issuable upon the
exercise of any of the right of purchase aforesaid shall be irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be requisite for such purpose. The
Company agrees that all Warrant Shares issued upon exercise of the Warrant
shall be, at the time of delivery of the certificates for such Warrant Shares,
duly authorized, validly issued, fully paid and non-assessable shares of Common
Stock of the Company. The Company will keep a conformed copy of this Warrant
on file with the Transfer Agent and with every subsequent transfer agent for
the Common Stock or other shares of the Company's capital stock issuable upon
the exercise of the rights of purchase represented by the Warrant. The Company
will supply from time to time the Transfer Agent with duly executed stock
certificates required to honor the outstanding Warrant. After the Expiration
Date, no Common Stock shall be subject to reservation in respect to such
Warrant Shares which shall have expires.
Section 8. Warrant Price. The Warrant Price, subject to
adjustment as provided in Section 9, shall, if payment is made in cash or by
certified check, be payable in lawful money of the United States of America.
Section 9. Adjustments. Subject and pursuant to the provisions
of this Section 9, the Warrant Price and number of Warrant Shares subject to
this Warrant shall be subject to adjustment from time to time as set forth
hereinafter. If the adjustment provisions contained in this Section 9 are less
favorable to the Warrantholders than adjustment provisions available to any
other holder (the "Other Holder") of convertible securities of the Company or
warrants, options or similar rights exercisable for Common Stock of the Company
with respect to such securities ("Other Rights") are to any such Other Holder,
this Warrant shall be immediately and automatically amended, without the
requirement of any action by the Warrantholders or the Company, to provide the
Warrantholders with adjustment rights at least as favorable as such Other
Rights.
(a) If the Company shall at any time or from time to time
while the Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding shares
into a smaller number of shares or issue by reclassification of its outstanding
shares of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter
exercising the Warrant shall be entitled to receive the number of shares of
Common Stock or other capital stock which the Warrantholder would have received
if the Warrant had been exercised immediately prior to such event. Such
adjustment shall be made successively whenever any event listed above shall
occur.
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(b) If any capital reorganization, reclassification of
the capital stock of the Company, consolidation or merger of the Company with
another corporation, or sale, transfer or other disposition of all or
substantially all of the Company's properties to another corporation shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby each Warrantholder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
herein specified and in lieu of the Warrant Shares immediately theretofore
issuable upon exercise of the Warrant, such shares of stock, securities or
properties as may be issuable or payable with respect to or in exchange for a
number of outstanding Warrant Shares equal to the number of Warrant Shares
immediately theretofore issuable upon exercise of the Warrant, had such
reorganization, reclassification, consolidation, merger, sale, transfer or
other disposition not taken place, and in any such case appropriate provision
shall be made with respect to the rights and interests of each Warrantholder to
the end that the provisions hereof (including, without limitations, provision
for adjustment of the Warrant Price) shall thereafter be applicable, as nearly
equivalent as may be practicable in relation to any shares of stock, securities
or properties thereafter deliverable upon the exercise thereof. The Company
shall not effect any such consolidation, merger, sale, transfer or other
disposition unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation purchasing or otherwise acquiring
such assets or other appropriate corporation or entity shall assume, by written
instrument executed and delivered to the Company, the obligation to deliver to
the Warrantholder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such Warrantholder may be entitled to purchase
and the other obligations under this Warrant.
The above provisions of this paragraph (b) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, transfers
or other dispositions.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
9(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such record date shall be determined by multiplying the Warrant Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding
multiplied by the Market Price per share of Common Stock (as determined
pursuant to Section 3), less the fair market value (as determined by the
Company's Board of Directors in good faith) of said assets or evidences of
indebtedness so distributed, or of such subscription rights or warrants, and
the denominator of which shall be the total number of shares of Common Stock
outstanding multiplied by such current Market Price
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per share of Common Stock. Such adjustment shall be made successively whenever
such a record date is fixed.
(d) (i) After the date hereof, if the Company shall at
any time or from time to time while the Warrant is outstanding, issue or sell
any shares of Common Stock (other than Excluded Stock, as hereinafter defined)
for a consideration per share less than the Warrant Price in effect immediately
prior to the time of such issue or sale then, forthwith upon such issue or
sale, the Warrant Price shall be reduced (but not increased) to the
consideration per share received by the Company for such shares of Common Stock
issued or sold. Such adjustment shall be made successively whenever such
issuance or sale is made. No adjustment of the Warrant Price, however, shall
be made in an amount less than $.01 per share, but any such lesser adjustment
shall be carried forward and shall be made at the time of and together with the
next subsequent adjustment. In no event shall the Warrant Price be adjusted so
that the Warrant Price per share is less than the then par value per share of
Common Stock. For purposes hereof, the term "Excluded Stock" shall mean (i)
shares of Common Stock issued pursuant to the exercise or conversion of
options, warrants and preferred stock outstanding on the date hereof or
pursuant to the terms of agreements existing on the date hereof, in accordance
with the terms of such securities and agreements in effect on the date hereof,
(ii) shares of Common Stock issued pursuant to the conversion of Senior
Preferred Stock, Series C ("Senior C Preferred") in accordance with the terms
of such security on the date hereof, and which Senior C Preferred is issued
pursuant to the exercise of warrants outstanding on the date hereof, in
accordance with terms of such warrants in effect on the date hereof and (iii)
up to 1,500,000 shares of Common Stock issued pursuant to the exercise of
employee stock options granted subsequent to the date hereof pursuant to the
Company's employee stock option plan, subject to appropriate adjustment in the
event of stock splits, stock dividends, combinations, reclassifications or
similar events (e.g., in the event of a 1-for-15 reverse stock split, the total
number of shares of Common Stock issuable pursuant to this clause (iii) shall
be 100,000).
(ii) Upon each adjustment of the Warrant Price, the
Warrantholder shall thereafter be entitled to purchase at the Warrant Price
resulting from such adjustment, that number of Warrant Shares obtained by
multiplying the Warrant Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing the product thereof by the Warrant Price resulting
from such adjustment. Upon each adjustment of the Warrant Price, the number of
Warrant Shares represented by this Warrant shall be adjusted to equal the
number of shares of Common Stock purchasable by the Warrantholder.
(iii) For purposes of Section 9(d)(i), the following
paragraphs (A) to (F), inclusive, shall be applicable:
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(A) Issuance of Rights, Options or Warrants. In case at
any time after the date hereof the Company shall in any manner grant any rights
to subscribe for or to purchase, any options or warrants (other than
subscription rights or warrants subject to the provisions of Section 9(c)) for
the purchase of shares of Common Stock or any stock or securities convertible
into or exchangeable for Common Stock (such convertible or exchangeable stock
or securities being herein called "Convertible Securities"), whether or not
such rights, options or warrants or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per share for
which shares of Common Stock are issuable upon the exercise of such rights,
options or warrants, or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the granting of such rights,
options or warrants, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the exercise of such rights,
options or warrants, plus, in the case of such rights, options or warrants
which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the exercise of such rights, options or warrants or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise of such
rights, options or warrants) shall be less than the Warrant Price in effect
immediately prior to the time of the granting of such rights, options or
warrants, as the case may be, then the maximum number of shares of Common Stock
issuable upon the exercise of such rights, options or warrants or upon
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such rights or options shall be deemed to be outstanding as of the
date of the granting of such rights or options and to have been issued for such
price per share, with the effect on the Warrant Price specified in Section
9(d)(i). Except as provided in subparagraph (C), no further adjustment of the
Warrant Price shall be made upon the actual issue of such shares of Common
Stock or of such Convertible Securities upon exercise of such rights, options
or warrants or upon the actual issue of such shares of Common Stock upon
conversion or exchange of such Convertible Securities.
(B) Issuance of Convertible Securities. In case at any
time after the date hereof the Company shall in any manner issue or sell any
Convertible Securities, whether or not the right to exchange or convert
thereunder is immediately exercisable, and the price per share for which shares
of Common Stock are issuable upon such conversion or exchange (determined by
dividing (i) the total amount, if any, received or receivable by the Company as
consideration for the issue or sale of such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (ii) the total maximum
number of shares of Common Stock issuable upon the conversion or exchange of
all such Convertible Securities) shall be less than the Warrant Price in effect
immediately prior to the time of such issue or sale, then the maximum number of
shares of Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall be deemed to be outstanding as of the date of the
issue or sale of such
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Convertible Securities and to have been issued for such price per share, with
the effect on the Warrant Price specified in Section 9(d)(i); provided,
however, that (a) except as otherwise provided in subparagraph (C), no further
adjustment of the Warrant Price shall be made upon the actual issue of such
shares of Common Stock upon conversion or exchange of such Convertible
Securities, and (b) if any such issue or sale of such Convertible Securities is
made upon exercise of any rights to subscribe for or to purchase or any option
or warrant to purchase any such Convertible Securities for which adjustments of
the Warrant Price are made pursuant to the provisions of subparagraph (A), no
further adjustment of the Warrant Price shall be made by reason of such issue
or sale.
(C) Decrease in Option Price or Conversion Rate. Upon
the happening of any of the following events, namely, if the purchase price
provided for in any right, option or warrant referred to in subparagraph (A),
or the additional consideration, if any, payable upon the conversion or
exchange of any Convertible Securities referred to in subparagraphs (A) or (B)
shall decrease, or the rate at which any Convertible Securities referred to in
subparagraphs (A) or (B) are convertible into or exchangeable for shares of
Common Stock shall increase, the Warrant Price then in effect hereunder shall
forthwith be decreased to the Warrant Price which would have been in effect at
such time had such rights, options, warrants or Convertible Securities provided
for such changed purchase price, reduced consideration or increased conversion
rate, as the case may be, at the time they had initially been granted, issued
or sold.
(D) Consideration for Stock. In case at any time shares
of Common Stock or Convertible Securities or any rights or options to purchase
any such shares of Common Stock or Convertible Securities shall be issued or
sold for cash, the consideration therefor shall be deemed to be the amount of
cash paid therefor before deducting therefrom any discounts, commissions or
other expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof. In case at any
time any shares of Common Stock, Convertible Securities or any rights, options
or warrants to purchase any such shares of Common Stock or Convertible
Securities shall be issued or sold for consideration other than cash, the
amount of consideration other than cash received by the Company shall be deemed
to be the fair value of such consideration, as determined reasonably and in
good faith by the Board of Directors of the Company. In case at any time any
shares of Common Stock, Convertible Securities or any rights, options or
warrants to purchase any shares of Common Stock or Convertible Securities shall
be issued in connection with any merger or consolidation in which the Company
is the surviving corporation, the amount of consideration received therefor
shall be deemed to be the fair value, as determined reasonably and in good
faith by the Board of Directors of the Company, of such portion of the assets
and business of the nonsurviving corporation as such Board of Directors may
reasonably and in good faith determine to be attributable to such shares of
Common Stock. Convertible Securities, rights, options or warrants, as the case
may be. In case at any time any rights, options or warrants to purchase any
shares of Common
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Stock or Convertible Securities shall be issued in connection with the issue
and sale of other securities of the Company, together comprising one integral
transaction in which no consideration is allocated to such rights, options or
warrants by the parties thereto, such rights, options or warrants shall be
deemed to have been issued without consideration.
(e) An adjustment shall become effective immediately
after the record date in the case of each dividend or distribution and
immediately after the effective date of each other event which requires an
adjustment.
(f) The form of Warrant need not be changed because of
any change pursuant to this Section 9 or Section 11, and Warrants issued after
such change may state the same Warrant Price and the same number of Warrant
Shares as is stated in the Warrant initially issued pursuant hereto. However,
subject to the consent of the Warrantholder, which shall not be unreasonably
withheld, the Company may at any time in its sole discretion make any change on
the Warrant that the Company may deem appropriate which does not affect the
substance thereof, and any Warrants thereafter issued, whether in exchange or
substitution for any outstanding Warrant Shares or otherwise, may be in the
form as so changed.
(g) In the event that, as a result of an adjustment made
pursuant to Section 8(a), the Warrantholder shall become entitled to receive
any shares of capital stock of the Company other than shares of Common Stock,
the number of such other shares so receivable upon exercise of the Warrant
shall be subject thereafter to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Warrant Shares contained in this Warrant.
(h) Shares of Common Stock owned by or held for the
account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any computation under this Agreement.
Section 10. Fractional Interest. The Company shall not be
required to issue fractions of Warrant Shares upon the exercise of the Warrant.
If any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon the exercise of the Warrant (or specified portions
thereof), the Company shall purchase such fraction for an amount in cash equal
to the current market value of such fraction based upon the current Market
Price (determined pursuant to Section 3) of a Warrant Share. All calculations
under this Section 10 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
Section 11. Non Transferability Separately From 1996 Senior
Preferred Stock Prior to Exercise Date; Redemption of Warrant Upon Redemption
of Preferred Stock. The Warrant initially is being issued together with shares
of the Company's 1996 Senior
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Preferred Stock ("1996 Preferred"), and prior to the Exercise Date may only be
transferred together with the 1996 Preferred so that for each share of 1996
Preferred transferred, this Warrant must be transferred with respect to 66 2/3
Warrant Shares (subject to adjustment as set forth in Section 9), purchasable
upon exercise of this Warrant and vice versa.
In the event that, prior to the Exercise Date, the Company redeems the
1996 Preferred, it shall also redeem this Warrant, at the redemption price of
$.01 per Warrant Share underlying the Warrant to be redeemed.
As part of the notice sent to holders of 1996 Preferred advising such
holders of the redemption of 1996 Preferred, the Company shall also include
notice of redemption of the Warrant. Such notice shall (a) state that the
Company is required to redeem the Warrant, (b) state the date fixed for the
redemption thereof, (c) state the redemption price per Warrant Share underlying
the Warrant and (d) call upon each Warrantholder to surrender the Warrant to
the Company on or after said date at the place designated in such notice. On
or after the date fixed in such notice of redemption, the holder of the Warrant
shall present and surrender the Warrant duly endorsed for transfer to the
Company at the place designated on said notice and thereupon the redemption
price of the Warrant Shares underlying the Warrant shall be paid to, or to the
order of, the person whose name appears on the Warrant as the Warrantholder
thereof.
Following the Exercise Date, the provisions of this Section 11 shall
terminate and be of no further force or effect.
Section 12. Benefits. Nothing in this Warrant shall be construed
to give any person, firm or corporation (other than the Company and the
Warrantholder) any legal or equitable right, remedy or claim, it being agreed
that this Warrant shall be for the sole and exclusive benefit of the Company
and the Warrantholder.
Section 13. Notices to Warrantholder. Upon the happening of any
event requiring an adjustment of the Warrant Price, the Company shall forthwith
give written notice thereof to the Warrantholder at the address appearing in
the records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. The certificate of the Company's independent certified
public accountants shall be conclusive evidence of the correctness of any
computation made, absent manifest error. Failure to give such notice to the
Warrantholder or any defect therein shall not affect the legality or validity
of the subject adjustment.
Section 14. Identity of Transfer Agent. The Transfer Agent for
the Common Stock is American Stock Transfer & Trust Company, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Forthwith upon the appointment of any subsequent
transfer agent for the
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Common Stock or other shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrant, the Company will
mail to the Warrantholder a statement setting forth the name and address of
such transfer agent.
Section 15. Notices. Any notice pursuant hereto to be given or
made by the Warrantholder to or on the Company shall be sufficiently given or
made if sent by certified mail, return receipt requested, postage prepaid,
addressed as follows:
HEARx LTD.
Attention: Xxxx X. Xxxxx, M.D.
Chairman and Chief Executive Officer
000 Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 13.
Any notice pursuant hereto to be given or made by the Company to or on
the Warrantholder shall be sufficiently given or made if sent by certified
mail, return receipt requested, postage prepaid, to the address set forth on
the books of the Company or, as to each of the Company and the Warrantholder,
at such other address as shall be designated by such party by written notice to
the other party complying as to delivery with the terms of this Section 15.
All such notices, requests, demands, directions and other communications shall,
when mailed be effective when deposited in the mails addressed as aforesaid.
Section 16. Supplements and Amendments. The Company may from
time to time supplement or amend this Warrant without the approval of the
Warrantholder in order to cure any ambiguity or to correct or supplement any
provisions contained herein which may be defective or inconsistent with any
other provision herein or to make any other provisions in regard to matters or
questions arising hereunder which shall not be inconsistent with the provisions
of the Warrant and which shall not in any manner adversely affect the interests
of the Warrantholder.
Section 17. Successors. All the covenants and provisions hereof
by or for the benefit of the Company shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 18. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be construed in accordance with the laws of said State.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
duly executed, as of the day and year first above written.
HEARx LTD.
By:
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Xxxx X. Xxxxx M.D.
Chairman of the Board
Attest:
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HEARx LTD.
WARRANT EXERCISE FORM
HEARx LTD.
000 Xxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
This undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by (CHECK AS APPLICABLE) [] payment by cash or certified check; []
conversion of the within Warrant by surrender of the Warrant,
shares of Common Stock* ("Warrant Shares") provided for therein, and requests
that certificates for the Warrant Shares be issued as follows:
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Name
-------------------------------
Address
-------------------------------
-------------------------------
Federal Tax Identification No.
or Social Security No.
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares
* NOTE: If conversion of the Warrant is made by surrender of the
Warrant and the number of shares indicated exceeds the maximum
number of shares to which a Warrantholder is entitled, the
Company will issue such maximum number of shares.
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purchasable upon exercise of the Warrant be registered in the name of the
undersigned Warrantholder or the undersigned's Assignee as below indicated and
delivered to the address stated below.
Dated:
-------------------, ----
Signature:
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------------------------------
Name (please print)
------------------------------
Address
------------------------------
------------------------------
Federal Identification or
Social Security No.
Note: The above signature must
correspond with the name of
the registered holder as
written on the first page of
the Warrant in every
particular, without alteration
or enlargement or any change
whatever, unless the Warrant
has been assigned.
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