ex10-1



 




EXHIBIT 10.1



COMMON STOCK SUBSCRIPTION AGREEMENT

OF HEARx Ltd.



         THIS COMMON STOCK SUBSCRIPTION AGREEMENT (the “Subscription Agreement”) is
made and entered into as of this      day of March, 2002, by and between HEARx
Ltd. (the “Company”) and the undersigned (the “Investor,” and the Investor
together with the Company each a “Party” and collectively the “Parties”).
Pursuant to the terms of this Subscription Agreement, the Investor hereby
subscribes for and agrees to purchase shares of common stock, par value $.10
per share (the “Common Stock”) of the Company and warrants to purchase
additional shares of Common Stock.


         1.     Agreement to Subscribe; Purchase Price. At a purchase price per share
of One Dollar ($1) (the “Purchase Price”), and for an aggregate purchase price
of      Dollars ($     ) (the “Aggregate Purchase Price”), Investor hereby
subscribes for      (     ) shares of Common Stock (the “Shares”) and
     (     ) three-year Common Stock purchase warrants to purchase
additional shares of Common Stock for an exercise price of $1.15 per share (the
“Warrants”) (the Shares and Warrants collectively, the “Securities”).


         2.     Closing. Investor shall pay the Aggregate Purchase Price by wire
transfer of same-day funds in U.S. dollars against counter-delivery of
certificates (the “Certificates”) representing the Shares and the Warrants by
the Company. The consummation of the purchase and sale of the Shares and
Warrants (the “Closing”) shall take place promptly upon the full payment of the
Aggregate Purchase Price and delivery of the Certificates, but in no event
later than three business days after the date hereof.


         3.     Reset Right. In the event that within the twelve months following the
Closing, the Company sells shares of Common Stock in a capital raising
transaction at a price less than $1 per share, the Purchase Price hereunder
shall be adjusted to such per share price (the “Adjusted Purchase Price”) and
the Company shall issue the Investor additional shares of Common Stock equal to
the number of shares the Investor would have received at the Adjusted Purchase
Price for the Aggregate Purchase Price less the number of Shares the Investor
actually acquired at the Closing. The Company shall not issue any fractional
shares of Common Stock as a result of this paragraph 3. Instead, the number of
shares shall be rounded to the nearest whole number.


         4.     Representations and Warranties of Investor. The Investor hereby
represents and warrants to the Company as follows:


                  (a) This Agreement has been validly executed and delivered by Investor
(and, if Investor is other than an individual, the execution and delivery of
this Agreement has been duly authorized by all necessary corporate or
partnership action) and is a valid and binding agreement of Investor
enforceable against Investor in accordance with its terms, subject to general
principles of equity and of bankruptcy or other laws affecting the enforcement
of creditors’ rights.



 







 





                  (b) The Securities for which the Investor hereby subscribes are being
acquired by the Investor for investment only, for the Investor’s own account,
and not with a view to, or for sale in connection with, any distribution of the
Securities in violation of the Securities Act of 1933 (the “Securities Act”),
or any rule or regulation under the Securities Act or any applicable foreign
rule or law governing the distribution of the Securities. The Securities are
not being purchased for subdivision or fractionalization thereof. The Investor
has no contract, undertaking, agreement, or arrangement with any person or
entity to sell, hypothecate, pledge, donate, or otherwise transfer (with or
without consideration) to any such person or entity any of the Securities for
which the Investor hereby subscribes. The Investor has no present plans or
intention to enter into any such contract, undertaking, agreement, or
arrangement.



                  (c) The Investor has sufficient experience in business, financial, and
investment matters to be able to evaluate the risk involved in the purchase of
the Securities subscribed for hereby and to make an informed investment
decision with respect to such purchase.



                  (d) The present financial condition of the Investor is such that it is
under no present or contemplated future need to dispose of any portion of the
Securities for which the Investor hereby subscribes to satisfy any existing or
contemplated undertaking, need, or indebtedness.



                  (e) The Investor is an “accredited investor” within the meaning of Rule
501 of Regulation D, promulgated under the Securities Act.



         5.     Investment Considerations. The Investor is aware of and acknowledges
the following:


                  (a) The purchase of the Securities is a speculative investment which
involves a high risk of loss by the Investor of its entire investment.



                  (b) No federal or state agency has made any finding or determination as to
the fairness for public investment, nor any recommendation or endorsement of
the Securities.



                  (c) The Securities have not been registered under either the Securities
Act or applicable state securities laws (the “State Acts”) and, therefore,
cannot be resold unless they are registered under the Securities Act and the
State Acts or unless an exemption from such registration is available.



                  (d) The solicitation of this Agreement and the offer and sale of the
Securities are being made by the Company in reliance upon the provisions of
Regulation D promulgated by the Securities and Exchange Commission (“SEC”)
under the Securities Act and the Company is relying on the representations and
warranties of the Investor contained herein to ensure compliance with
Regulation D.



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                  (d) The stock certificates of the Company that will evidence the
Securities for which the Investor subscribes hereby will be imprinted with a
conspicuous legend in substantially the following form:




		
	 	The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the “Act”) or
applicable state securities laws (the “State Acts”), and shall not
be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) by the holder except upon the
issuance to the Company of a favorable opinion of its counsel
and/or submission to the Company of such other evidence as may be
satisfactory to counsel to the Company, to the effect that any
such transfer shall not be in violation of the Act and the State
Acts.



         6.     Registration. The Company agrees to take such action as soon as
reasonably practicable to following the Closing prepare and file with the SEC a
registration statement on Form S-3 (or, if Form S-3 is not then available to
the Company, on such form of registration statement as is then available to
effect a registration for resale of the Shares) covering the resale of the
Shares purchased hereunder. The Investor acknowledges and agrees that such
resale registration can only be initiated after the consummation or termination
of the merger agreement between the Company and Helix Hearing Care of America
Corp.


         7.     Successors and Assigns. This Subscription Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and to their
successors and assigns.


         8.     Delaware Law. This Subscription Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware.


         9.     Facsimile. This Agreement may be executed by facsimile signature and in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures of
this Agreement shall be binding on all parties hereto.


         10.     Notice. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, express
overnight courier, registered first class mail, overnight courier, or
telecopied, to the address of the party’s principal place of business.


         11.     Entire Agreement; No Waiver. This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter hereof and
supersedes all prior oral or written proposals or agreements relating thereto.
This Agreement may not be amended or any provision hereof waived, in whole or
in part, except by a written amendment signed by both of the Parties.


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         IN WITNESS WHEREOF, this Subscription Agreement was duly executed on the
date first written above.



	 	 	 	 	 
	 	 	COMPANY:
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	HEARx Ltd.
	
	
	
	

	 	 	 	 	 
	
	
	
	

	 	 	
By:	 	 
	 	 	 	 	

	 
	 	 	 	 	

	 	 	 	 	Print Name and Title
	
	
	
	

	 
	
	
	
	

	 	 	INVESTOR:
	
	
	
	

	 	 	 	 	 
	 	 	 	 	

	 
	 	 	 	 	

	 	 	 	 	Print Name (and Title if applicable)




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