Filed by Bowne Pure Compliance





Exhibit 10.2




AARP LICENSE AGREEMENT




This AARP LICENSE AGREEMENT (the “Agreement”) is entered into as of this 8th day of
August 2008 (the “Effective Date”), between AARP, Inc., a District of Columbia nonprofit
corporation (“AARP”), and HearUSA, Inc. (“HUSA”), a Delaware corporation. (AARP and HUSA, each a
“Party” and collectively, the “Parties”).



WITNESSETH 




WHEREAS, AARP is a non-profit, non-partisan membership corporation for persons age 50 and over
whose goals include the advancement of the education, well-being and social welfare of its members
and older persons generally;



WHEREAS, AARP represents that is the sole and exclusive owner of all proprietary and other
property rights and interests in the Licensed Intellectual Property (as defined in this Agreement);



WHEREAS, AARP makes available to AARP members many benefits and desires to make available to
AARP members certain products and services through the use of the Licensed Intellectual Property;



WHEREAS, AARP agrees to grant to HUSA a license to the Licensed Intellectual Property pursuant
to the terms of this Agreement;



WHEREAS, AARP has contracted with AARP Services, Inc. (“ASI”), a wholly-owned subsidiary of
AARP, to undertake the obligation to maintain Quality Control Standards (as defined in this
Agreement);



NOW, THEREFORE, in consideration of the representations, warranties, conditions, covenants,
and agreements contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.




	1.	 	Definitions.
	 
	 	 	“AARP Marks” means all U.S. registered and unregistered common law trademarks,
trade dress, service marks, logos, symbols, acronyms, trade names, corporate names and
all registrations and applications to register the same for the marks “AARP”, and the
“AARP” logo, and any specific Program name (so long as such Program name does not
incorporate all or any part of HUSA’s name or trade mark or service mark of HUSA), as
may be modified or supplemented from time to time by AARP.





 


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	 	 	“Affiliate” as applied to any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. The term
“control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through ownership interest, by contract or
otherwise.
	 
	 	 	“Applicable Law” means all applicable federal, state, and local laws, statutes,
regulations, rulings, ordinances, and other legal requirements.
	 
	 	 	“Claims” means damages (including, without limitation, consequential and punitive
damages), judgments, fines, awards, settlements, costs and expenses, including
reasonable fees and expenses of counsel and experts.
	 
	 	 	“Licensed Copyrights” means the original works of authorship, if any, marked with
AARP’s copyright notice, provided by AARP and/or ASI as provider of Quality Control
Services on behalf of AARP to HUSA for its use in connection with the Program.
	 
	 	 	“AARP Intellectual Property” consists of the Licensed Marks, AARP’s name, Member
Data, and the Licensed Copyrights, and the goodwill associated therewith.
	 
	 	 	“Licensed Marks” means the AARP Marks as set forth in Exhibit A, as such
Exhibit may be modified or supplemented from time to time by AARP upon giving written
notice to HUSA; provided that HUSA shall not be required to remove, replace, reprint or
cease use of any existing advertising or promotional materials, paper goods, and any
other materials and supplies that contain one or more of the Licensed Marks as
previously set forth on Exhibit A for a period of three (3) months following
the date of written notice to HUSA, except as would be necessary in the ordinary course
of business, following which time HUSA shall promptly remove, replace, reprint or cease
use of any such materials.
	 
	 	 	“Member” means an individual who is then (i.e., at the time in question) a current
member of AARP, as evidenced by a valid membership number.
	 
	 	 	“Member Data” means the names, addresses, telephone numbers, AARP membership
numbers, and e-mail addresses that AARP or ASI provide to HUSA or permit HUSA to access
in connection with this Agreement or the License Agreement, including Member mailing
lists.
	 
	 	 	“Person” means any corporation, partnership, limited liability company, joint
venture, organization, entity, governmental entity, or natural person.
	 
	 	 	“Program” means the hearing care program provided to Members by or through HUSA, as
more fully described in the Services Agreement.




 


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	 	 	“Program Products” means the products and services offered to Members under the
Program.
	 
	 	 	“Program Year” means December 1 of a calendar year through and including November 30
of the next calendar year. (For example, Program Year 1 under this Agreement is
December 1, 2008 through and including November 30, 2009.)
	 
	 	 	“Quality Control Standards” means those standards and obligations imposed upon HUSA
to ensure that activities of HUSA with respect to the Program comply with the terms of
this Agreement, do not depreciate the value of the Licensed Intellectual Property being
licensed to HUSA under this Agreement, and uphold the goodwill and reputation of AARP,
all as set forth in the Services Agreement.
	 
	 	 	“Services” means the services to be performed by HUSA pursuant to and in accordance
with the Services Agreement.
	 
	 	 	“Services Agreement” means the Hearing Care Program Services Agreement between ASI,
AARP and HUSA, entered into on August 8, 2008.
	 
	 	 	“Third Party” means any Person other than a Party to this Agreement and other than
ASI.
	 
	2.	 	Right to Use AARP Intellectual Property. 






	 	2.1	 	License. During the Term of the Services Agreement and in
consideration of the compensation paid under this Agreement, AARP grants to HUSA the
right and license to use the AARP Intellectual Property solely in connection with the
operation and administration of all or any part of the Program (including without
limitation advertising and promoting all or any part of the Program) and in connection
with HUSA’s performance of its obligations under the Services Agreement, all in
accordance with the terms and conditions set forth in the Services Agreement (the
“License”). The License shall be subject to HUSA’s compliance at all times with any
and all Quality Control Standards as set forth in the Services Agreement.
	 
	 	2.2	 	Prohibited Uses. In no event may HUSA use any of the Licensed
Intellectual Property for any of the following activities, other than as expressly
authorized in this Agreement, as authorized in writing in advance by AARP, or as
authorized under the Services Agreement:






	 	2.2.1	 	In connection with public policy statements made by HUSA (whether formally or
informally);
	 
	 	2.2.2	 	In connection with communications with federal or state government officials;
	 
	 	2.2.3	 	On business cards, business stationary or letterhead, and/or signage;




 


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	 	2.2.4	 	In any manner that is likely to confuse or mislead as to the ownership of any
AARP Intellectual Property, or that may infringe, dilute or denigrate any of the
AARP Intellectual Property; or
	 
	 	2.2.5	 	To use the Licensed Intellectual Property in any manner other than in
accordance with this Agreement, the Services Agreement, or as otherwise expressly
authorized in advance in writing by ASI as provider of Quality Control Services on
behalf of AARP.






	 	2.3	 	Ownership; Use. Except for purposes of providing the Program, as
described under Section 2.1, HUSA shall acquire no right, title or interest in the AARP
Intellectual Property and all AARP Intellectual Property is and shall remain the sole
property of AARP. In addition, except as otherwise expressly provided in this
Agreement, or the Services Agreement, or with AARP’s prior written consent, HUSA
agrees as follows:






	 	2.3.1	 	HUSA shall not use, sell, transfer, barter, lease, rent,
license or otherwise provide or disclose all or any portion of the AARP
Intellectual Property to any Third Party.
	 
	 	2.3.2	 	Any Confidential Information (as such term is defined in the
Services Agreement) of AARP and/or ASI acquired by HUSA pursuant to this
Agreement, and all use and/or disclosure of such Confidential Information by
HUSA, shall be subject to the Services Agreement, including Section VIII of the
Services Agreement.
	 
	 	2.3.3	 	HUSA agrees that all AARP Intellectual Property is and shall
remain the property of AARP and HUSA shall acquire no title or interest in such
property, other than the limited license granted to HUSA under Section 2.1
above.
	 
	 	2.3.4	 	HUSA shall promptly notify ASI as provider of Quality Control
Services on behalf of AARP upon HUSA becoming aware of any actual, alleged or
threatened unauthorized use of any AARP Intellectual Property, and HUSA shall
reasonably assist ASI as provider of Quality Control Services on behalf of AARP
and AARP in investigating or prosecuting any action relating to any such
unauthorized use at AARP’s sole cost and expense.
	 
	 	2.3.5	 	At the request of ASI, as provider of Quality Control Services
on behalf of AARP, HUSA shall apply written notations to the Licensed Marks
(e.g., the “SM” or “TM” symbols). ASI as provider of Quality Control Services
on behalf of AARP will provide HUSA with written notice of changes to the
notation requirements for the Licensed Marks and HUSA will implement such
changes as soon as reasonably practicable.




 


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	 	2.3.6	 	Improvements, enhancements or derivative works
(“Modifications”) to the AARP Intellectual Property made as a result of the
implementation or
administration of the Program or of this Agreement shall belong to AARP,
unless the parties agree otherwise in writing in advance of making the
Modifications. If HUSA creates any Modifications to the AARP Intellectual
Property, HUSA agrees to the extent necessary or requested by ASI as
provider of Quality Control Services on behalf of AARP to irrevocably assign
any right, title and interest HUSA may have in and to the Modifications to
AARP, and agrees to take or cause to be taken reasonable actions, and to
execute, deliver and file or cause to be executed, delivered and filed such
further instruments, documents and agreements as may be reasonably requested
in order to fully effectuate the assignment described herein. HUSA will
promptly disclose and deliver to AARP any and all material Modifications.






	 	2.4	 	Quality Control; Designation of New Quality Control Representative.
The license of AARP Intellectual Property hereunder shall be subject to HUSA’s
compliance at all times with any and all Quality Control Standards as set forth in the
Services Agreement. AARP has engaged ASI as its representative to perform Quality
Control Services on AARP’s behalf, subject to a separate agreement between AARP and
ASI. AARP, by written notice to HUSA at any time, may designate a different provider
of Quality Control Services on AARP’s behalf, with respect to some or all of such
Quality Control Services; HUSA will be afforded an opportunity to consent, such consent
not to be unreasonably withheld. In the event of such designation, references to ASI
in this Agreement and in the Services Agreement, with respect to those components of
Quality Control Services covered by such designation, shall be deemed to refer to the
new provider of Quality Control Services.
	 
	 	2.5	 	Goodwill. HUSA recognizes that there is great value to AARP in all
components of the AARP Intellectual Property, including the associated
goodwill. Therefore, HUSA agrees that all uses by HUSA of the AARP Intellectual
Property shall inure solely to the benefit of AARP. HUSA shall not, during the period
of this Agreement or thereafter, directly or indirectly acquire or assert any interest
or property right in the AARP Intellectual Property , nor alter, modify, dilute or
misuse or bring into dispute or challenge the validity or enforceability of any
component of the AARP Intellectual Property.
	 
	 	2.6	 	Registration. HUSA shall not during the term of this Agreement or at
any time thereafter adopt, use, register or attempt to register, as the case may be, as
a trademark, service mark, trade name, domain name or corporate name, or as part
thereof, any of the AARP Intellectual Property, or any word, symbol or picture or
combination thereof which is confusingly similar to any component of the AARP
Intellectual Property, anywhere in the world, other than as expressly permitted by this
Agreement, the Services Agreement, or as expressly authorized in writing by AARP. HUSA
shall not challenge, in a court of law or otherwise, the ownership of any other rights
of AARP in and to any component of the AARP Intellectual Property.




 


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	 	2.7	 	Compliance with Law. As a condition of the License granted in this
Agreement, HUSA will perform, conduct, and manage the Program at all times in
accordance with Applicable Law.
	 
	 	2.8	 	No Marketing Services. It is agreed that AARP shall provide no
marketing, administrative, or management services in connection with the Program, and
that any such services shall be provided by or on behalf of HUSA.
	 
	 	2.9	 	Compliance with Services Agreement. HUSA acknowledges that AARP’s
decision to enter into this Agreement is conditioned upon HUSA’s execution of the
Services Agreement, whereby HUSA has agreed to permit ASI to maintain Quality Control
Standards of the Program.






	3.	 	Exclusivity.
	 
	 	 	During the term of the Services Agreement and in consideration of the compensation paid
under this Agreement, and for purposes of the Program only, AARP grants HUSA the exclusive
right to be the provider of the Products and Services under the Program. Notwithstanding
the foregoing, AARP may brand, and ASI as provider of Quality Control Services on behalf of
AARP may contract with, programs, plans and/or service providers of bundled healthcare
services that include hearing care benefits as long as AARP does not specifically brand the
hearing care benefit and ASI as provider of Quality Control Services on behalf of AARP does
not contract directly with the hearing care service provider.
	 
	4.	 	Royalty.






	 	4.1	 	AARP shall be paid a royalty by HUSA for the license of the AARP Intellectual
Property as follows: A fixed amount per Program Year during the Term as shown below,
payable in equal quarterly installments by the tenth (10th) day of the first
month in each quarter of the Program Year. (For example, the first payment in Program
Year 2 is to be paid by December 10, 2009.) Notwithstanding the foregoing, the first
payment for Program Year 1 shall be paid on January 10, 2009.





	 	 	 	 	 
	Program Year	 	Annual Royalty	 
	1
	 	$	7,600,000.00	 
	2
	 	$	7,600,000.00	 
	3
	 	$	7,600,000.00	 





 


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	 	4.2	 	As set forth in Section 10.2 of the Services Agreement, HUSA has the option to
continue the Services Agreement for two more years – Program Years 4 and 5 (December 1,
2011 – November 30, 2012 and December 1, 2012 through November 30, 2013.) If HUSA
exercises that option, pursuant to Section 10.2 of the Services Agreement, AARP shall
be paid a royalty by HUSA for the license
of the AARP Intellectual Property in the fixed amount per Program Year during
Program Years 4 and 5 as shown below, payable in equal quarterly installments by the
tenth (10th) day of the first month in each quarter of the Program Year.





	 	 	 	 	 
	Program Year	 	Annual Royalty	 
	4
	 	$	11,000,000.00	 
	5
	 	$	12,000,000.00	 







	 	4.3	 	Payment instructions are set forth in Exhibit B.






	5.	 	Relationship of the Parties.
	 
	 	 	Neither AARP nor HUSA are now, nor shall they become or be considered, by virtue of this
Agreement, as principal, agent or partner of the other. Neither AARP nor HUSA will be
considered to have an ownership interest in the other, and neither Party shall be liable or
responsible to the other in any such capacity or capacities. Neither Party shall at any
time and in any medium or manner state or imply that the other Party has any such ownership
interest in such Party.
	 
	6.	 	Term and Termination of Agreement.






	 	6.1	 	Term. The term of this Agreement shall begin on the Effective Date and
shall expire at 12:00 midnight, Eastern Time on November 30, 2011, unless (i) HUSA
exercises the Option to Continue pursuant to Section 10.2 of the Services Agreement or
(ii) the Agreement is terminated earlier than November 30, 2011 in accordance with the
terms of this Agreement (“Term”).
	 
	 	6.2	 	Termination. AARP shall have the right to terminate this Agreement upon
written notice to HUSA if HUSA has breached any of its material obligations under this
Agreement, which breach has not been cured within sixty (60) days after written notice
to HUSA of the breach; provided, that in the event AARP reasonably determines
that HUSA is using its reasonable best efforts to cure the breach, then HUSA shall be
entitled to an additional sixty (60) days within which to effectuate that cure. If any
material breach of this Agreement by HUSA has not been cured within the cure period
determined in accordance with this Section 6.2, this Agreement shall terminate,
effective at the conclusion of the last day of the cure period or the day on which HUSA
receives written notice of termination from AARP, whichever is later. Notwithstanding
the foregoing, if a material breach is incapable of cure and constitutes a willful
breach or is not compensable by monetary damages or equitable relief (other than
termination), AARP may immediately terminate this Agreement upon written notice to
HUSA. This Agreement shall automatically terminate upon termination or expiration of
the Services Agreement.










 


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	 	6.3	 	Effect of Termination. Subject to Applicable Law, and subject to
HUSA’s obligations with respect to Member Data and AARP Confidential Information that
might include and/or incorporate AARP Intellectual Property upon termination of the
Services Agreement, upon termination or expiration of this Agreement, HUSA shall (i)
immediately cease using the AARP Intellectual Property and all materials incorporating,
having or using any AARP Intellectual Property; (ii) within a commercially reasonable
time, remove or cause to be removed all components of the AARP Intellectual Property
from all systems, applications or physical components that cause such components of the
AARP Intellectual Property to be printed or displayed in any medium; (iii) if feasible
delete or otherwise destroy all AARP Intellectual Property from any and all materials
incorporating, having or using any AARP Intellectual Property. Notwithstanding the
foregoing, to the extent it is not feasible for HUSA to remove or destroy any part of
the AARP Intellectual Property pursuant to clauses (ii) and (iii), HUSA will notify
AARP of the conditions that make return or destruction impossible and will ensure that
there is no continued use and no disclosure of such AARP Intellectual Property after
the effective date of termination.






	7.	 	Indemnification.






	 	7.1	 	Indemnification by HUSA. HUSA shall, at its own cost and expense,
defend, hold harmless and indemnify AARP and its parent, subsidiaries, Affiliates, and
each of their respective officers, directors, trustees, employees, agents and
representatives (each an “AARP Indemnified Party”) from and against any and all Claims
sustained or incurred by that AARP Indemnified Party, caused by, resulting from, or
attributable to (i) the use by HUSA, its parents, subsidiaries, subcontractors, and
Affiliates, and each of their respective officers, directors, employees, agents and
representatives (each a “HUSA Indemnifying Party”) of the AARP Intellectual Property,
including but not limited to any use of Licensed Marks or Member Data, and relating to
any marketing and advertising materials concerning the Program, (other than any such
Claims for which an HUSA Indemnified Party, as defined below, is indemnified by AARP
pursuant to Section 7.2 below), or (ii) the breach, gross negligence or willful
misconduct by a HUSA Indemnifying Party with respect to its obligations under this
Agreement; except to the extent the Claim arises out of the gross negligence or willful
misconduct of an AARP Indemnified Party.
	 
	 	7.2	 	Indemnification by AARP. AARP shall at its own cost and expense,
defend, hold harmless and indemnify HUSA each of its respective parents, subsidiaries,
and Affiliates, and each of their respective officers, directors, trustees, employees,
agents and representatives (each a “HUSA Indemnified Party”) from and against any and
all Claims sustained or incurred by that HUSA Indemnified Party, caused by, resulting
from, or attributable to (i) any claim that any AARP Intellectual Property used
in performance of this License Agreement or the Services Agreement, as authorized by
AARP or ASI as provider of Quality Control Services on behalf of AARP, infringes,
misappropriates or violates any intellectual property or other right of any Third
Party, is libelous or slanderous, or
violates any right of privacy or right of publicity, or (ii) the breach, gross
negligence or willful misconduct by AARP with respect to its obligations under this
Agreement; except to the extent the Claim arises out of the gross negligence or
willful misconduct of an HUSA Indemnified Party.




 


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	 	7.3	 	Notice; Defense of Claim. A HUSA Indemnified Party, or an AARP
Indemnified Party, as applicable (an “Indemnified Party”) shall promptly notify the
AARP Indemnifying Party, or the HUSA Indemnifying Party, as applicable (an
“Indemnifying Party”), in writing, immediately following the time the Indemnified Party
shall receive notice of any claims occurring for which indemnification is sought. The
Indemnifying Party shall assume, on behalf of the Indemnified Party, and conduct with
due diligence and in good faith, the defense thereof with counsel reasonably
satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have
the right to be represented therein by counsel of its own selection and at its own
expense; and, provided, further, that if the defendants in any such action include both
the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have
reasonably concluded that there may be legal defenses available to it which are
different from or additional to, or inconsistent with, those available to the
Indemnifying Party, the Indemnified Party shall have the right to select separate
counsel to participate in the defense of such action on its own behalf and at the
Indemnifying Party’s expense. The Indemnifying Party shall not agree to settle any
matter without the prior written consent of the Indemnified Party.
	 
	 	7.4	 	Failure to Defend Action. If any Claim arises as to which the
indemnity provided for in Section 7.1 or Section 7.2 may apply, and the
Indemnifying Party fails to assume the defense of that Claim within thirty (30) days of
the Indemnified Party’s notice of the Claim, then the Indemnified Party may at the
Indemnifying Party’s expense contest the Claim; provided, that no contest need
be made and settlement in full payment of the Claim may be made without the
Indemnifying Party’s consent (with the Indemnifying Party remaining obligated to
indemnify the Indemnified Party) if, in the written opinion of the Indemnified Party’s
outside counsel, the Claim is meritorious.
	 
	 	7.5	 	Settlement. In no event shall the Indemnifying Party agree to settle
any matter that does not include as an unconditional term a release of all Claims that
the claimant has or may have against the Indemnified Party, without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably withheld. In
the event any party agrees to settle a Claim subject to this Article VII, no
Party shall publicize the settlement without first obtaining the written permission of
the other Party, which permission shall not be unreasonably withheld or delayed.
	 
	 	7.6	 	Insurance. At all times during the Term of this Agreement, HUSA shall
maintain a general comprehensive and professional liability insurance policy, or
provide suitable self-funded coverage, having a single occurrence limit of not less
than One Million Dollars ($1,000,000) and an aggregate limit of not less than Two
Million Dollars ($2,000,000). HUSA shall carry excess liability insurance in the
amount of at least Fifteen Million Dollars ($15,000,000). HUSA shall provide ASI as
provider of Quality Control Services on behalf of AARP with summaries of the
insurance policies (and, if ASI requests, copies of any specific insurance policies)
carried in accordance with this provision, as may be amended, supplemented or
replaced from time-to-time. Each insurance policy required to be carried hereunder
may not be voluntarily canceled or reduced by HUSA without at least thirty (30)
days’ prior written notice to ASI.




 


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	8.	 	Representations and Warranties.






	 	8.1	 	AARP Warranties. AARP represents and warrants to HUSA:






	 	8.1.1	 	AARP has full power and authority to execute, deliver and
perform its obligations set forth in this Agreement and the transactions
contemplated in this Agreement.
	 
	 	8.1.2	 	This Agreement has been duly authorized by AARP, and when
executed and delivered by AARP, constitutes a legal, valid and binding
obligation of AARP, enforceable against it in accordance with its terms except
as the same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors’ rights generally.
	 
	 	8.1.3	 	No consent, approval, authorization, order, registration or
qualification of or with any court or government agency or body having
jurisdiction over AARP, is required for the execution, delivery or performance
of the Agreement by AARP.
	 
	 	8.1.4	 	The execution, delivery and performance of the Agreement by
AARP has been approved by all necessary action, corporate or otherwise, and
neither the execution, delivery nor performance of this Agreement will conflict
with or result in a material breach of or default under any of the terms or
provisions of its certificate of incorporation, bylaws, any statute, any order,
rule or regulation of any court or government agency or body having
jurisdiction over it or any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument of which AARP is a party.
	 
	 	8.1.5	 	AARP owns all right, title and interest in, to and under the
Licensed Marks for the products and services for which use of the Licensed
Marks is contemplated by this Agreement and the Services Agreement (the
“Licensed Products and Services”) in the United States and Canada, and the use
and/or employment of any of the Licensed Marks in the advertising, marketing,
distribution, offer for sale, sale and promotion of any Licensed Products and
Services in the United States or Canada will not violate and/or infringe any
intellectual property or any other rights of any third party. AARP represents
and warrants that the Licensed Marks
are valid and enforceable for the Licensed Products and Services in the
United States and Canada, and, further, that it is not aware of any
allegations, claims, disputes, proceedings, opposition proceedings,
cancellation proceedings, lawsuits, or the like, relating to the ownership,
validity, enforceability, and/or infringement of any of the Licensed Marks
for the Licensed Products and Services in the United States or Canada. AARP
represents and warrants that it has not previously assigned, transferred,
conveyed, and/or otherwise encumbered any right, title or interest in or to
the Licensed Marks for the Licensed Products and Services in the United
States or Canada.




 


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	 	8.1.6	 	AARP owns all right, title, and interest in, to, and under
each of the Licensed Copyrights. To AARP’s knowledge, no Licensed Copyright is
involved in any meritorious infringement, ownership, accounting, or other
adverse proceeding, and, to AARP’s knowledge, no such action is threatened with
the respect to any of the Licensed Copyrights.






	 	8.2	 	HUSA Warranties. HUSA represents and warrants to AARP:






	 	8.2.1	 	HUSA has full power and authority to execute, deliver and
perform this Agreement and the transactions contemplated in this Agreement.
	 
	 	8.2.2	 	This Agreement has been duly authorized by HUSA, and when
executed and delivered, constitutes a legal, valid and binding obligation of
HUSA, enforceable against it in accordance with these terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws relating
to or affecting creditors’ rights generally.
	 
	 	8.2.3	 	No consent, approval, authorization, order, registration or
qualification of or with any court or government agency or body having
jurisdiction over HUSA is required for the execution or delivery of the
Agreement by HUSA.
	 
	 	8.2.4	 	The execution, delivery and performance of the Agreement by
HUSA has been approved by all necessary action, corporate or otherwise, and
neither the execution, delivery nor performance of the Agreement by HUSA will
conflict with or result in a material breach of, or default under, any of the
terms or provisions of its certificate of incorporation, or bylaws or any
present statute, order, rule or regulation of any court or government agency or
body having jurisdiction over it or any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which HUSA is a
party.




 


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	9.	 	General Provisions. 






	 	9.1	 	Entire Agreement. This Agreement, including the Exhibits, which are
hereby incorporated into and made a part of this Agreement, constitutes the entire
agreement among the parties with respect to the subject matter of this Agreement
and, except with respect to the Services Agreement (which remains in full force and
effect in accordance with its terms) supersedes and replaces any prior agreement
between the parties relating to that subject matter.
	 
	 	9.2	 	Amendments. Modifications or amendments to this Agreement shall be
effective only if in writing and signed by both Parties.
	 
	 	9.3	 	Counterparts. This Agreement, including any amendments, may be
executed and delivered in counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same agreement. A
facsimile or other reproduction of this Agreement shall be deemed an original.
	 
	 	9.4	 	Further Assurances. The Parties shall cooperate with one another to
carry out and implement their respective obligations under this Agreement and shall
perform such further acts, execute such further documents, and enter into such further
agreements as may be reasonably necessary or appropriate to these ends.
	 
	 	9.5	 	No Third Party Beneficiaries. The Agreement confers no rights
whatsoever upon any Person other than the Parties and shall not create or be
interpreted to create any standard of care, duty or liability to any Person not a
Party.
	 
	 	9.6	 	Governing Law. To the extent any issue is governed by state law, this
Agreement shall be governed by, and construed and enforced in accordance with, the laws
of the District of Columbia, without regard to conflict of laws principles. Any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the matters contemplated hereby
may only be brought in the state and federal courts of the District of Columbia. Each
of the Parties consents to the jurisdiction of such courts (and of the appropriate
appellate court there from) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, actions or proceeding which is brought in any such
court has been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or without
the jurisdiction of any such court.
	 
	 	9.7	 	Dispute Resolution. The dispute resolution provisions as set forth in
Sections 11.7, 11.8 and 11.9 of the Services Agreement (the “Dispute Provisions”) are
hereby incorporated into this Agreement and shall apply to any dispute between the
Parties arising under this Agreement. For purposes of this Agreement, all references
to a “Party” in the Dispute Provisions shall mean one of the Parties to this Agreement
and all references to “this Agreement” in the Dispute Provisions shall mean this AARP
License Agreement.




 


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	 	9.8	 	Confidentiality. The confidentiality provisions as set forth in
Section VIII of the Services Agreement (the “Confidentiality Provisions”) are hereby
incorporated
into this Agreement, and shall apply to the Confidential Information of either Party
disclosed to the other Party pursuant to this Agreement. For purposes of this
Agreement, all references to a “Party” in the Confidentiality Provisions shall mean
one of the Parties to this Agreement and all references to “this Agreement” in the
Confidentiality Provisions shall mean this AARP License Agreement.
	 
	 	9.9	 	Survival. The provisions of Sections 6.3, 7 and 9 of this Agreement
shall survive termination or expiration of this Agreement. 9.10 Notices. All
notices, requests and other communications to any Party under this Agreement must be in
writing and given as follows:
	 
	 	 	 	If to HUSA:
	 
	 	 	 	HearUSA, Inc.

1250 Northpoint Parkway

West Palm Beach, Florida 33407

Attention: Stephen Hansbrough, Chief Executive Officer

Facsimile Number: (561) 688-8893
	 
	 	 	 	with a copy to:
	 
	 	 	 	Bryan Cave LLP

700 13th Street, N.W.

Washington, D.C. 20005

Attention: LaDawn Naegle, Esq.

Facsimile Number: (202) 508-6200
	 
	 	 	 	If to AARP:
	 
	 	 	 	AARP

601 E Street, N.W.

Washington, DC 20049

Attention: Chief Executive Officer

Facsimile Number: (202) 434-2339
	 
	 	 	 	with copy to:
	 
	 	 	 	AARP

601 E Street, N.W.

Washington, DC 20049

Attention: General Counsel

Facsimile Number: (202) 434-2320
	 
	 	 	 	AARP Services Inc.

650 F Street, N.W.

Washington, DC 20049

Attention: General Counsel
	 	 	 	Facsimile Number: (202) 434-6513




 


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	 		 	or any other address or facsimile number that the Party may hereafter specify for
the purpose by notice to the other Parties. All notices, requests and other
communications under this Section shall be deemed to have been given and received
and shall be effective: (i) in the case of personal delivery, on the date of
personal delivery; (ii) in the case of delivery by facsimile, when successfully
transmitted (if sent during the recipient’s normal business hours, or one Business
Day after the date sent if not sent during the recipient’s normal business hours on
a business day, or one Business Day after the date sent if not sent during the
recipient’s normal business hours on a Business Day) to the applicable number
specified in this Section and an appropriate confirmation of transmission is
received; (iii) in the case of overnight delivery by nationally recognized,
overnight courier, one Business Day following the date of dispatch; and (iv) in the
case of mailing, on the third Business Day following the date of deposit in the
mail. For purposes of this Agreement, “Business Day” means any calendar day other
than Saturday, Sunday or other calendar day on which commercial banks in Washington,
D.C. are authorized or required by Applicable Law or executive order to close.






	 	9.11	 	Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of each of the Parties and their respective successors and permitted
assigns.
	 
	 	9.12	 	Assignment. Neither Party shall assign or otherwise transfer this
Agreement or any of its rights or obligations under this Agreement, except with the
prior written consent of the other Party; provided, however, that if such assignment or
transfer is to an Affiliate of such Party, the other Party’s consent shall not be
unreasonably withheld. Any purported assignment or transfer without the requisite
consent shall be null and void.
	 
	 	9.13	 	No Waiver. Whenever possible, each provision of this Agreement shall
be interpreted in a manner to render it effective and valid under Applicable Law, but
if any provision of this Agreement shall be held to be prohibited or invalid under
Applicable Law, that provision shall be ineffective only to the extent of the
applicable prohibition or invalidity, without invalidating the remainder of that
provision or the remaining provisions of this Agreement. No failure on the part of any
Party to exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver of that right, nor shall any single or partial exercise of any
right under this Agreement by any Party preclude any other or further exercise of any
other right and no waiver whatever shall be valid unless in a signed writing, and then
only to the extent specifically set forth in that writing. No waiver of any right under
this Agreement shall operate as a waiver of any other or of the same or similar right
on another occasion.




 


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	 	9.14	 	Injunctive Relief. HUSA acknowledges and agrees that there may be no
adequate remedy at law for any breach or threatened breach of HUSA’s material
obligations under this Agreement, that any material breach or threatened material
breach may result in irreparable harm to AARP, and therefore, that, upon any material
breach or threat of a material breach, AARP shall be entitled to seek injunctive or
other appropriate equitable relief, in addition to whatever remedies it may have at
law.
	 
	 	9.15	 	Interpretation. The headings to the Sections and Articles of this
Agreement are for ease of reference only and shall not affect the meaning or
interpretation of this Agreement. References to the singular include the plural, and
vice versa. References to “this Agreement” mean this AARP License Agreement, together
with all exhibits, schedules and attachments, as each may be amended, modified,
supplemented or restated from time to time in accordance with the terms of this
Agreement. Unless otherwise indicated, references to Sections or Articles shall mean
the sections or articles in this Agreement. The use in this Agreement of the term
“including” means “including, without limitation.” Any instrument or Applicable Law
defined or referred to in this Agreement means that instrument or law as from time to
time amended, modified or supplemented, including by succession of comparable successor
laws.




 


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IN WITNESS WHEREOF, the parties have executed this Agreement this 8th day of August, 2008.



	 	 	 	 	 	 	 	 	 
	
AARP, Inc.
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/
Tom Nelson
	 

	 	 	 	 	 	 	 
	Chief Operating Officer
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	
HearUSA, Inc.
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/
Stephen J. Hansbrough
	 

	 	 	 	 	 	 	 
	Chairman and Chief Executive Officer
	 

	 	 	 	 	 	 	 





 


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