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EXHIBIT 4.3
August 27, 1998
The Zanett Securities Corporation
Tower 49, 31st Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
This agreement ("Agreement") will confirm that HEARx LTD., a Delaware
corporation (the "Company"), has retained The Zanett Securities Corporation
("Zanett" or the "Placement Agent") as its exclusive placement agent to assist
the Company, during the 30 day period commencing on the date hereof (the
"Term"), on a "best-efforts" basis, in connection with the placement of up to
7,500 units (the "Units") at a price of $1,000 per Unit, each Unit consisting of
(i) one share of the Company's 1998 Convertible Preferred Stock, par value $1.00
per share (each, a "Preferred Share"), convertible into shares of the Company's
common stock, par value $.10 per share (the "Common Stock"), and (ii) one
warrant to acquire 75 shares of Common Stock (each, a "Warrant"). The rights,
preferences and privileges of the Preferred Shares, including the terms upon
which such Preferred Shares will be convertible into shares of Common Stock,
will be set forth in a form of Certificate of Designations, Rights and
Preferences to be agreed upon by the Company and the Placement Agent (the
"Certificate of Designation"). The shares of Common Stock issuable upon
conversion of the Preferred Shares or otherwise pursuant to the Certificate of
Designation are referred to herein as the "Conversion Shares" and the shares of
Common Stock issuable upon exercise of or otherwise pursuant to the Warrants are
referred to herein as the "Warrant Shares." The Preferred Shares, the Warrants,
the Conversion Shares and the Warrant Shares are collectively referred to herein
as the "Securities." The Company agrees that, during the Term, Zanett shall have
the exclusive right to offer and place the Securities and that all
conversations, negotiations, documents and other materials exchanged between the
Company and the Placement Agent shall not be disclosed or released to any third
party without the prior written consent of Zanett. The Company acknowledges that
certain of the aforementioned Securities may be purchased by affiliates of
Zanett.
The Units are being offered to "accredited investors" in accordance with
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). Each prospective investor ("Investor") subscribing to
purchase the Units will be required to deliver, among other things, a Securities
Purchase Agreement between the Company and the Investor (the "Securities
Purchase Agreement") in form and substance reasonably satisfactory to Zanett and
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the Company, representing and warranting, among other things, that such Investor
is an "accredited investor" as such term is defined in Regulation D.
Contemporaneous with the execution and delivery of the Securities Purchase
Agreement, the Investors shall execute and deliver a Registration Rights
Agreement (the "Registration Rights Agreement") in form and substance reasonably
satisfactory to Zanett and the Company pursuant to which the Company will agree
to provide the Investors certain registration rights under the Securities Act
with respect to the Securities.
The Securities Purchase Agreement, the Certificate of Designation, the
Warrants and the Registration Rights Agreement are referred to herein
collectively as the "Offering Documents." The offering of Units described in the
Offering Documents is referred to herein as the "Offering."
1. Appointment of Placement Agent. Zanett is hereby appointed
Placement Agent of the Company for the purposes of assisting the Company in
finding qualified Investors to participate in the Offering. On the basis of the
representations and warranties and subject to the terms and conditions contained
herein, Zanett hereby accepts such agency and agrees to assist the Company in
finding qualified Investors to participate in the Offering. Zanett's agency
hereunder shall terminate on the earliest of (i) the expiration of the Term,
(ii) the completion of the Offering or (iii) the termination of the Offering. If
the Offering is terminated or the Term shall expire prior to the completion of
the Offering, all subscriptions received, if any, shall be returned to
Investors.
2. Closing; Placement Fee and Warrant; Expenses.
a. Closing. Upon satisfaction of the conditions to the
closing contained in the Securities Purchase Agreement, the closing (the
"Closing") of the purchase and sale of the Units shall take place at the offices
of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP or such other mutually agreed
place, at such time and date (the "Closing Date") as may be agreed upon between
the Placement Agent, the Investors and the Company.
b. Procedures at Closing. Counsel for the Placement Agent
shall act as escrow agent for the Closing (the "Escrow Agent"). At the Closing:
(i) The Company shall deliver to the Escrow Agent, on
behalf of the Placement Agent and the Investors, an opinion of the Company's
outside legal counsel, dated as of the Closing Date, in such form as required by
the Securities Purchase Agreement.
(ii) The Company shall deliver to the Escrow Agent
certificates from the Company, signed by the President or a Vice President
thereof, certifying that attached thereto is a true and correct copy of
resolutions adopted by the Company's Board of Directors authorizing (A) the
execution, delivery and performance of this Agreement, the Securities Purchase
Agreement, the Registration Rights Agreement, the Warrants and other
documentation related to the Offering, (B) the execution and filing of the
Certificate of Designation with the
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Secretary of State of the State of Delaware, and (c) the issuance of the
Preferred Shares and the reservation for issuance and issuance of the Conversion
Shares and the Warrant Shares, and certifying that such resolutions have not
been modified, rescinded or amended and are in full force and effect.
(iii) The Company shall deliver to the Escrow Agent a
certificate of good standing of the Company, dated as of a recent date, from the
Secretary of State of the State of Delaware.
(iv) Each Investor shall deliver to the Escrow Agent an
executed copy of the Securities Purchase Agreement and Registration Rights
Agreement signed by such Investor, and the Company shall deliver to the Escrow
Agent with respect to each Investor, an executed copy of its acceptance of the
Securities Purchase Agreement and Registration Rights Agreement executed by such
Investor.
(v) Each Investor shall have delivered by wire transfer
to an escrow account designated by the Escrow Agent an amount equal to the
aggregate purchase price of the Units(s) being purchased by such Investor at the
Closing.
(vi) The Company shall have delivered to the Escrow
Agent the duly executed Preferred Shares and Warrants being purchased by the
Investors in such denominations as the Investors and the Company shall agree
upon.
(vii) The Company and the Placement Agent shall instruct
the Escrow Agent to pay to the Company the purchase price (the "Purchase Price")
for the Units subscribed for at the Closing, less the Placement Agent Fee (as
defined below), out of the funds on deposit in the escrow account received from
Investors whose Securities Purchase Agreements have been accepted.
c. Placement Fee; Expenses. The Company covenants and agrees
to pay to the Placement Agent at the Closing fees (the "Placement Agent Fees")
equal to 7% of the aggregate gross proceeds payable to the Company for the sale
of the Units at the Closing. The Placement Agent Fees shall be delivered by the
Escrow Agent to Zanett by wire transfer, in accordance with Zanett's written
wiring instructions, from the funds on deposit in the escrow account
simultaneously with payment for and delivery of the Units at such Closing under
the Securities Purchase Agreement as provided in paragraph 2(a) above.
d. Warrants. In addition to the Placement Agent Fees, at
the Closing under the Securities Purchase Agreement, the Company shall issue to
the officers of the Placement Agent set forth on Schedule 2(d) (the "Zanett
Officers"), warrants, in substantially the form attached hereto as Exhibit A, to
purchase, in the aggregate, 75 shares of the Company's Common Stock for each
$1,000 of aggregate gross proceeds received by the Company from the sale of the
Units at the Closing (the "Placement Warrants"). The Placement Warrants shall be
exercisable
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for a period of sixty (60) months from the date of issuance at a price per share
equal to $1.80. The shares of the Company's Common Stock issuable upon exercise
of the Placement Warrants shall hereinafter be referred to as the "Placement
Warrant Shares." The Company shall grant the Placement Agent certain
registration rights under the Securities Act with respect to the Placement
Warrant Shares pursuant to the Registration Rights Agreement.
e. Expenses of Offering. The Company shall be responsible
for and shall bear all expenses directly and necessarily incurred by it in
connection with the Offering, including, but not limited to, the following:
filing fees, registrar and transfer agent fees, investigatory fees (including,
but not limited to travel, lodging and entertainment expenses), issuer's counsel
and accounting fees, blue sky fees and counsel, if any, and issue and transfer
taxes, if any. In the event the Closing does not occur during the Term, the
Company shall reimburse the Placement Agent for its reasonable out-of-pocket
expenses incurred in connection with the Offering.
f. Non-Circumvention Period.
(i) The Company agrees that, during the period
beginning on the date hereof and ending two (2) years following the later of the
date hereof and the date of the Closing (as defined in Section 2(a) hereof) (the
"Non-Circumvention Period"), it will not, without the prior written consent of
the Placement Agent, negotiate or contract or have discussions concerning any
such matters with any Investor to obtain additional financing in any form.
Notwithstanding the foregoing, without the prior written consent of the
Placement Agent and the payment to the Placement Agent of a fee equal to 7% of
the gross proceeds of any transaction consented to by the Placement Agent, the
Company shall not negotiate or contract or have discussions concerning any
matters with Citadel Investment Group, Susquehanna Investment Group, Xxxx Xxxx
Capital, Zanett Lombardier, Ltd., Xxxxxxx Xxxxx, or any affiliate of any of them
to obtain additional financing in any form.
3. Representations and Warranties and Covenants.
a. The Company represents and warrants to Zanett that this
Agreement has been duly authorized, executed and delivered by the Company and,
assuming the due execution by Zanett, constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms.
b. The Company has delivered or made available to Zanett true
and complete copies of the SEC Documents (as defined in the Securities Purchase
Agreement) filed by the Company on or after December 31, 1995 with the
Securities and Exchange Commission (the "SEC") pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
c. The Company recognizes and confirms that Zanett (i) will
use and rely
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primarily on the SEC Documents and on information provided by the Company in
connection with the transactions contemplated by this Agreement in performing
the services contemplated by this Agreement without having independently
verified the same; (ii) is authorized to assist the Company in the structuring
of the Offering with only those prospective purchasers who are "accredited
investors" as defined in Regulation D under the Securities Act and to provide
copies of the SEC Documents and forms of the Securities Purchase Agreement and
other Offering Documents to prospective purchasers of the Company's securities
in connection with the performance of Zanett's services hereunder; and (iii)
does not assume responsibility for the accuracy or completeness of the SEC
Documents.
d. In addition to the foregoing, the Company hereby
incorporates by reference all of the representations and warranties and
covenants to be set forth in the Securities Purchase Agreement and the other
Offering Documents (including, but not limited to, the Company's obligation to
deliver to Zanett within the applicable time periods the reports specified in
Section 4(f) of the Securities Purchase Agreement so long as Zanett, the Zanett
Officers and/or their affiliates own any securities of the Company issued
pursuant to the Offering Documents or this Agreement) with the same force and
effect as if specifically set forth herein.
e. Anything contained herein to the contrary notwithstanding,
Placement Agent's obligations to proceed with the Offering is conditioned upon
Placement Agent's due diligence investigation of the Company. If, in Zanett's
opinion, the condition of the Company, financial or otherwise, and its
previously publicly announced prospects are affected in a material and/or
adverse manner and do not fulfill Zanett's expectations, Zanett shall have the
sole discretion to review and determine its continued interest in the Offering.
f. So long as Zanett, the Zanett Officers and/or their
affiliates own any securities of the Company, the Company shall make available,
during regular business hours, all records and books of account of the Company
for inspection by Zanett. The Company shall permit Zanett, at its expense and
during regular business hours, to inspect its properties.
g. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and the
Placement Warrants in accordance with the terms hereof. The execution, delivery
and performance of this Agreement and the Placement Warrants by the Company and
the consummation by it of the transactions contemplated hereby (including,
without limitation, the reservation for issuance and issuance of the Placement
Warrant Shares issuable upon exercise of the Placement Warrants) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its shareholders is
required, except as may be required by the rules of the American Stock Exchange
for shareholder approval of issuances of common stock or securities convertible
into common stock if the common stock has voting power that is 20% or more of
the voting power outstanding before such issuance. This Agreement constitutes,
and upon execution and delivery by the Company of the Placement Warrants, such
Placement Warrants will constitute, valid and binding obligations of the Company
enforceable against the Company in
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accordance with their terms.
h. The Placement Warrant Shares issuable upon the exercise
of the Placement Warrants are duly authorized and, upon issuance upon
exercise of the Placement Warrants in accordance with the terms thereof, will
be validly issued, fully paid and non-assessable, and free from all taxes,
liens and charges with respect to the issue thereof and shall not be subject to
preemptive rights or other similar rights of the shareholders of the Company.
i. Except as set forth on Schedule 3(f) to the Securities
Purchase Agreement, the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions contemplated
hereby will not (A) result in a violation of the Company's Certificate of
Incorporation or By-laws or (B) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, or result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is
bound or affected (except, with respect to clause (B), for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a material adverse effect
on the operation, properties, financial condition or previously publicly
announced prospects of the Company ("Material Adverse Effect")). The Company is
not in violation of its Certificate of Incorporation or By-laws and is not in
default (and no event has occurred which with notice or lapse of time of both
would put the Company in default) under, nor has there occurred any event giving
others (with notice or lapse of time or both) any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, except for possible defaults as
would not, individually or in the aggregate, have a Material Adverse Effect. The
business of the Company is not being conducted, and, so long as Zanett, the
Zanett Officers and/or their affiliates own any securities of the Company, shall
not be conducted, in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations which either singly or in
the aggregate do not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the Securities Act and any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency or any regulatory or self regulatory agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement in accordance with the terms hereof.
j. The Company shall at all times have authorized, and
reserved for the purpose of issuance, a sufficient number of Placement Warrant
Shares to provide for the full exercise of the outstanding Placement Warrants.
k. The Company shall promptly secure the listing of the
Placement Warrant Shares upon each national securities exchange or automated
quotation system, if any, upon which
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shares of Common Stock are then listed (subject to official notice of issuance)
and shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all Placement Warrant Shares from time to time issuable
upon exercise of the Placement Warrants.
l. The Zanett Officers each individually represent and
warrant to the Company that:
(i) The Zanett Officer is acquiring the Placement
Warrants and the Placement Warrant Shares for its own account and not with a
present view towards the public sale or distribution thereof.
(ii) The Zanett Officer is an "Accredited Investor" as
that term is defined in Rule 501(a) of Regulation D.
(iii) The Zanett Officer understands that the Placement
Warrants and the Placement Warrant Shares are being issued to the Zanett Officer
in reliance upon specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying
upon the truth and accuracy of, and the Zanett Officer's compliance with, the
representations, warranties, agreements, acknowledgments and understandings set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Zanett Officer to acquire the Placement Warrants and the
Placement Warrant Shares.
(iv) The Zanett Officer understands that (i) except as
provided in the Registration Rights Agreement, the sale or resale of the
Placement Warrants and the Placement Warrant Shares issuable upon exercise
thereof have not been and are not being registered under the Securities Act or
any state securities laws, and may not be transferred unless (a) the resale of
the Securities has been registered thereunder; or (b) the Zanett Officer shall
have delivered to the Company an opinion of counsel (which opinion shall be in
form, substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the securities to be sold or transferred may be
sold or transferred pursuant to an exemption from such registration; or (c) the
Securities are sold under Rule 144 promulgated under the Securities Act (or a
successor rule) ("Rule 144"); or (d) the Securities are sold or transferred to a
non-broker dealer affiliate of the Zanett Officer who agrees to sell or
otherwise transfer such securities only in accordance with the provisions of the
terms hereof and who is an Accredited Investor; and (ii) neither the Company nor
any other person is under any obligation to register such Securities under the
Securities Act or any state securities laws (other than pursuant to the
Registration Rights Agreement). Notwithstanding the foregoing or anything else
contained herein to the contrary, such securities may be pledged as collateral
in connection with a bona fide margin account or other lending arrangement.
(v) This Agreement has been duly and validly
authorized, executed and delivered on behalf of Placement Agent and duly and
validly executed and delivered by each
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Zanett Officer and is the valid and binding agreement of each of them
enforceable against each of them in accordance with its terms.
(vi) Placement Agent is a registered broker dealer (as
such term is defined under the Securities Act of 1933, as amended) and neither
the Placement Agent nor any Zanett Officer has made any general solicitations
(as such term is defined under the Securities Act of 1933, as amended) with
respect to the sale of the Securities.
(vii) Neither the Placement Agent nor the Zanett
Officers have any authority to act on behalf of, or otherwise bind, the Company.
4. Publicity. The Company shall not make any reference to Zanett,
the Zanett Officers or to any of their affiliates in any release or other public
communication without Zanett's prior written consent. Without Zanett's prior
written consent, no advice rendered by Zanett in connection with the services
performed by Zanett pursuant to this Agreement will be quoted by the Company,
its affiliates or representatives nor will any such advice be referred to in any
report, document, release or other communication, whether oral or written,
prepared or issued or transmitted by such person, except to the extent required
by law (in which case the appropriate party shall so advise Zanett in writing
prior to such use and shall consult with Zanett with respect to the form and
timing of the disclosure).
5. Indemnification and Contribution.
a. To the extent permitted by law, the Company will
indemnify, hold harmless and defend Zanett and each of its directors, officers,
partners, members, employees, agents and each person who controls Zanett within
the meaning of the Securities Act or the Exchange Act, if any, (each, an
"Indemnified Person"), against any joint or several losses, claims, damages,
liabilities or expenses (collectively, together with actions, proceedings or
inquiries by any regulatory or self-regulatory organization, whether commenced
or threatened, in respect thereof, "Claims") to which any of them may become
subject insofar as such Claims arise out of or are based upon: (i) any
transaction contemplated by this Agreement, the retention of Zanett as Placement
Agent under this Agreement, the performance of services by Zanett hereunder or
any involvement or alleged involvement of Zanett in the Offering or (ii) any
breach of any of the Company's representations, warranties or covenants
contained herein. The Company shall reimburse each of the Indemnified Persons,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 5(a) shall not (i) apply in instances where the Claims
were the result of Zanett's, gross negligence or bad faith or based on Zanett's
wilful misconduct, and (ii) apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
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b. Promptly after receipt by an Indemnified Person under
this Section 5 of notice of the commencement of any action (including
any governmental action), such Indemnified Person shall, if a Claim in respect
thereof is made against the Company under this Section 5, deliver to the
Company a written notice of the commencement thereof, and the Company shall
have the right to participate in, and, to the extent the Company so desires, to
assume control of the defense thereof with counsel mutually satisfactory to the
Company and the Indemnified Person; provided, however, that an Indemnified
Person shall have the right to retain its own counsel, with the reasonable fees
and expenses to be paid by the Company if, in the reasonable opinion of counsel
retained by the Indemnified Person, the representation by such counsel of the
Indemnified Person and the Company would be inappropriate due to actual or
potential differing interests between such Indemnified Person and any other
party represented by the Company's counsel in such proceeding. In the event of
such differing interests, the Company shall pay for only one separate legal
counsel for all of the Indemnified Persons, and such legal counsel shall be
selected by Placement Agent and be reasonably acceptable to the Company. The
failure to deliver written notice to the Company within a reasonable time of
the commencement of any such action shall not relieve the Company of any
liability to the Indemnified Person under this Section 5, except to the extent
that the Company is actually prejudiced in its ability to defend such action.
The indemnification required by this Section 5 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
c. To the extent any indemnification by the Company of an
Indemnified Person is prohibited or limited by law or otherwise unavailable in
respect of any Claim, the Company agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable under this Section
5 to the fullest extent permitted by law. In this regard, the Company shall
contribute to the amount paid or payable by such Indemnified Person as a result
of any such Claim (i) in such portion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Indemnified Person,
on the other, from the structuring and issuance of the securities in the
Offering or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and of the Indemnified Person, on the other, in
connection with untrue statements or omissions or other actions (or alleged
untrue statements, omissions or other actions) which resulted in such Claim as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Indemnified Person, on the
other, shall be deemed to be in the same proportion as the total gross proceeds
received by the Company in the Offering or any other financing bears to such
Indemnified Person's compensation. The relative fault of the Company on the one
hand and of the Indemnified Person on the other shall be determined by reference
to, among other things, whether such untrue statements or omissions or other
actions (or alleged untrue statements, omissions or other actions) relate to
information supplied or action taken by the Company, on the one hand, by the
Indemnified Person, on the other, and the relevant persons' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statements, omission or actions.
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The amount paid or payable by a party as a result of the Claim shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim. The Company
and Zanett agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above.
d. The aforesaid indemnity and contribution agreements shall
apply to any modification of Zanett's engagement hereunder, and shall remain in
full force and effect regardless of any investigation made by or on behalf of
Placement Agent or any of its agents, employees, officers, directors or
controlling persons and shall survive the issuance of any securities in any
transaction referred to hereunder (including the Offering) and any termination
of this Agreement or Placement Agent's engagement hereunder. The Company agrees
to promptly notify Zanett of the commencement of any litigation or proceeding
against it or any of its directors, officers, agents or employees in connection
with the transactions contemplated hereby.
e. The Company also agrees that no Indemnified Person shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company, its owners, creditors or security holders for or in
connection with advice or services rendered or to be rendered by Zanett pursuant
to this Agreement, the transactions contemplated hereby or any Indemnified
Person's actions or inactions in connection with any such advice, services or
transactions except for liabilities (and related expenses) of the Company that
are determined by a final judgment of a court of competent jurisdiction to have
resulted primarily from such Indemnified Person's gross negligence or wilful
misconduct in connection with any such advice, actions, inactions or services.
6. Survival of Certain Provisions. The representations,
warranties, covenants and provisions contained in Section 2(f), Section 3,
Section 4 and Section 5 hereof shall survive in full force and effect until
Zanett no longer owns any Placement Warrants or Placement Warrant Shares,
regardless of (a) any completion or termination of any financing contemplated by
this Agreement (including the Offering), (b) any termination of this Agreement,
or (c) any investigation made by or on behalf of Placement Agent or any
affiliate of Placement Agent, and shall be binding upon, and shall inure to the
benefit of, any successors, assigns, heirs and personal representatives of the
Company, Zanett, the Indemnified Parties and any holder of Placement Warrants.
7. Miscellaneous.
a. All notices, requests, demands and other communications
which are required or may be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered personally, receipt acknowledged
or five (5) days after being sent by registered or certified mail, return
receipt requested, postage prepaid. All notices shall be made to the parties at
the addresses designated above or at such other or different addresses which
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party may subsequently provided with notice thereof, and, to their respective
legal counsel, as follows:
(i) If to Placement Agent, to
The Zanett Securities Corporation
Tower 49, 31st Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
- with a copy simultaneously transmitted by like means to -
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
(ii) If to the Company, to
HEARx, LTD.
0000 Xxxxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, M.D.
Chairman of the Board
b. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
c. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to its
conflict of laws provisions). The Company hereby agrees to submit to the
exclusive jurisdiction of an arbitration panel of the National Association of
Securities Dealers, Inc. located in the City of New York in the State of New
York in connection with any suit, action or proceeding related to this Agreement
or any of the matters contemplated hereby, irrevocably waives any defense of
lack of personal jurisdiction and irrevocably agrees that all claims in respect
of any suit, action or proceeding may be heard and determined in by such panel.
The Company irrevocably waives, to the fullest extent it may effectively do so
under applicable law any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought before any such
court and any claims that any such suit, action or proceeding brought in any
such arbitration panel has been brought in an inconvenient forum. The Company
further agrees to pay or reimburse Zanett, upon
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a judgment in favor of Zanett by a court of competent jurisdiction, for all
reasonable costs and expenses incurred by Placement Agent in connection with the
enforcement of any of its rights under this Agreement, including without
limitation, all attorneys' fees and expenses of its counsel.
d. The section headings in this Agreement have been inserted
as a matter of convenience of reference and are not a part of this Agreement.
e. This Agreement may not be modified or amended except in
writing duly signed by the parties hereto.
f. If any term, provision, covenant or restriction contained
in this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions contained in
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
g. Each party to this Agreement has participated in the
negotiation and drafting of this Agreement. As such, the language used herein
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
13
Please sign and return the original and one copy of this letter to
indicate your acceptance of the terms set forth herein whereupon this letter and
your acceptance shall constitute a binding agreement between you and the
Company.
Very truly yours,
HEARx LTD.
By: /s/ Xxxx X. Xxxxx, MD
--------------------------
Name: Xxxx X. Xxxxx, MD
Title: Chairman and CEO
Accepted and Agreed to this
27th day of August, 1998.
THE ZANETT SECURITIES CORPORATION
By: /s/ G.A. Cicogna
-----------------
Name: G.A. Cicogna
Title: Director to Advisor
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
Xxxxx XxXxxxxx
/s/ Xxxxx XxXxxxxx
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
14
SCHEDULE 2(d)
--------------------------------------------------------------------------------
Officer Number of Warrants per $1,000
------- of Aggregate Gross Proceeds
---------------------------
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 28.125
--------------------------------------------------------------------------------
Xxxxx XxXxxxxx 28.125
--------------------------------------------------------------------------------
Xxxx Xxxxxxx 18.750
------
--------------------------------------------------------------------------------
Total 75.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
