exv10w2



 



EXHIBIT 10.2


REGISTRATION RIGHTS
AGREEMENT



     This Registration Rights Agreement (this “Agreement”) is made and entered
into as of this      day of
           , 20      by and among HEARUSA, INC., a
corporation organized under the laws of Delaware (the “Company”), and the
persons identified as Purchasers pursuant to that certain Purchase Agreement of
even date herewith by and among the Company and such Purchasers (the “Purchase
Agreement”).


     The parties hereby agree as follows:


          1. Definitions.



          Capitalized terms used herein but not otherwise defined shall have the
meaning ascribed thereto in the Purchase Agreement and/or the Warrants or Notes
issued pursuant to the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:



          “Additional Registrable Securities” shall mean any shares of Common Stock
which are included within the definition of Registrable Securities but not
included in any Registration Statement filed pursuant to Section 2(a)(i) below.



          “Common Stock” shall mean the Company’s Common Stock $0.10 per share.



          “Conversion Price” shall have the meaning set forth in the Notes.



          “Filing Date” shall mean the date which is thirty (30) days following the
date on which the Company files (or is required to file, if earlier) its Form
10-K for the year ended on or about December 28, 2003.



          “Prospectus” shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities or Additional Registrable Securities covered by such Registration
Statement and by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated by reference
in such prospectus.



          “Purchasers” shall mean the purchasers identified in the Purchase
Agreement and any subsequent holder of any Notes, Warrants, Registrable
Securities or Additional Registrable Securities as a result of a transfer of
such securities.



          “Register,” “registered” and “registration” refer to a registration made
by preparing and filing a registration statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or
ordering of effectiveness of such registration statement or document.





 






 





          “Registrable Securities” shall mean (i) the Underlying Shares, the Warrant
Shares and any other shares of Common Stock issued or issuable (a) upon
conversion of, or payment of interest or repayment of principal under, the
Notes, and upon the exercise of the Warrants, or (b) upon any distribution with
respect to, any exchange for or any replacement of such Notes or Warrants, or
(c) upon any conversion, exercise or exchange of any securities issued in
connection with any such distribution, exchange or replacement; (ii) securities
issued or issuable upon any stock split, stock dividend, recapitalization or
similar event with respect to such shares of Common Stock; and (iii) any other
security issued as a dividend or other distribution with respect to, in
exchange for, or in replacement of, the securities referred to in the preceding
clauses.



          “Registration Statement” shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities or Additional Registrable
Securities pursuant to the provisions of this Agreement, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.



          “SEC” means the U.S. Securities and Exchange Commission.



          “1933 Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



          “1934 Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.



     2.     Registration.


          (a) Registration Statements.



               (i) Registrable
Securities. On or prior to the Filing Date, the Company
shall prepare and file with the SEC one 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 Registrable Securities, subject to the Purchasers’ consent),
covering the resale of the Registrable Securities in an amount equal to 100%
of the number of Underlying Shares issuable upon full conversion of the Notes
at the Conversion Price as of the filing date plus 100% of the number
of shares of Common Stock necessary to permit the exercise in full of the
Warrants (in each case without regard to any restrictions on beneficial
ownership). Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder (including
Rule 416), such indeterminate number of additional shares of Common Stock
resulting from stock splits, stock dividends, Dilutive Issuances, or similar
transactions with respect to the Registrable Securities. No securities shall
be included in the Registration Statement without the consent of the
Purchasers other than the Registrable Securities. The Registration Statement
(and each amendment or supplement thereto) shall be provided in





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accordance with Section 3(c) to the Purchasers and their counsel prior to
its filing or other submission.


               (ii) Additional Registrable Securities. At any time and from time to
time upon the written demand of any Purchaser following the existence of any
Additional Registerable Securities, and in any event within thirty (30) days
following such demand, the Company shall prepare and file with the SEC one
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 Additional Registrable Securities)
covering the resale of the Additional Registrable Securities in an amount
equal to the number of Additional Registrable Securities. Such Registration
Statement also shall cover, to the extent allowable under the 1933 Act and the
rules promulgated thereunder (including Rule 416), such indeterminate number
of additional shares of Common Stock resulting from stock splits, stock
dividends, Dilultive Issuances, or similar transactions with respect to the
Additional Registrable Securities. The Registration Statement (and each
amendment or supplement thereto) shall be provided in accordance with Section
3(c) to the Purchaser and its counsel prior to its filing or other submission.



          (b) Expenses. The Company will pay all expenses associated with each
registration, including the Purchasers’ reasonable expenses (including
reasonable attorneys fees up to $5,000), in connection with the registration
but excluding discounts, commissions, fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals.



          (c) Effectiveness.



               (i) The Company shall use its best efforts to have each Registration
Statement declared effective as soon as possible after filing. If (A) the
Registration Statement covering Registrable Securities is not declared
effective by the SEC within three (3) months following the Filing Date (or
within 30 days of the Filing Date in the event the SEC does not review the
Registration Statement), or the Registration Statement covering Additional
Registrable Securities is not declared effective by the SEC within three (3)
months following demand of a Purchaser relating to the Additional Registrable
Securities to be covered thereby (each of the foregoing deadlines, a
“Registration Date”), (B) except as maybe provided in subparagraph (c)(ii)
below for an Allowed Delay, after a Registration Statement has been declared
effective by the SEC, sales cannot be made pursuant to such Registration
Statement for any reason (including without limitation by reason of a stop
order, or the Company’s failure to update the Registration Statement) but
except as excused pursuant to subparagraph (ii) below, (C) the Registrable
Securities (or Additional Registrable Securities after issuance and
registration) specifically are not listed or included for quotation on the
Nasdaq National Market System, the Nasdaq Small-Cap Market, the New York Stock
Exchange or the American Stock Exchange (each an “Approved Market”) or trading
of the Common Stock is suspended or halted thereon, or (D) the Company fails,
refuses or is otherwise unable to timely issue Underlying Shares upon
conversion of the Notes or Warrant Shares upon exercise of the Warrants, in
accordance with the terms of the Notes and Warrants, in each case within
twenty (20) days




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following the Purchaser’s written demand for issuance of such Underlying
Shares or Warrant Shares or certificates, then the Company will make pro-rata
payments to the Purchaser as liquidated damages and not as a penalty, in an
amount equal to 2% of the sum of the aggregate principal amount then
outstanding under the Notes for each month (or portion thereof) following the
Registration Date during which any of the events described in (A), (B), (C) or
(D) above occurs and is continuing (the “Blackout Period”). Each such payment
shall be due and payable within five (5) days of the end of each month (or
ending portion thereof) of the Blackout Period until the termination of the
Blackout Period. The Blackout Period shall terminate upon (x) the
effectiveness of the applicable Registration Statement in the case of (A) and
(B) above; (y) listing or inclusion and/or trading of the Registrable
Securities on an Approved Market in the case of (C) above; and (z) delivery of
such shares in the case of (D) above.



               (ii) For not more than ten (10) consecutive trading days or for a total
of not more than thirty (30) trading days in any consecutive twelve (12) month
period, the Company may delay the disclosure of material non-public
information concerning the Company, by terminating or suspending effectiveness
of any registration contemplated by this Section, the disclosure of which at
the time is not, in the good faith opinion of the Company, in the best
interests of the Company (an “Allowed Delay”); provided, that the Company
shall promptly (a) notify the Purchasers in writing of the existence of (but
in no
event, without the prior written consent of a Purchaser, shall the
Company disclose to such Purchaser any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay,
and (b) advise the Purchasers in writing to cease all sales under the
Registration Statement until the end of the Allowed Delay. No payments under
subparagraph (c)(i) shall be required in the event and for the duration of an
Allowed Delay.



          (d) Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) hereof involves an underwritten offering,
the Company shall have the right to select an investment banker and manager to
administer the offering, which investment banker or manager shall be reasonably
satisfactory to the Purchasers.



     3.     Company Obligations. The Company will use its best efforts to effect
the registration of the Registrable Securities and Additional Registrable
Securities in accordance with the terms hereof, and pursuant thereto the
Company will, as expeditiously as possible:


          (a) use its best efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period (the “Registration
Period”) that will terminate upon the earlier of (i) the date on which all
Registrable Securities or Additional Registrable Securities have been sold (and
no Notes or Warrants remain outstanding), and (ii) the date on which all
Registrable Securities or Additional Registrable Securities, as the case may
be, may be sold pursuant to Rule 144(k).



          (b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective for the period specified in
Section 3(a) and to comply with the provisions of the 1933 Act and the 1934 Act
with respect to the distribution of all




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Registrable Securities and Additional Registrable Securities; provided
that, at a time reasonably prior to the filing of a Registration Statement or
Prospectus, or any amendments or supplements thereto, the Company will furnish
to the Purchasers copies of all documents proposed to be filed, which documents
will be subject to the comments of the Purchasers;


          (c) permit counsel designated by the Purchasers to review each
Registration Statement and all amendments and supplements thereto no fewer than
five (5) business days prior to their filing with the SEC and not file any
document to which such counsel reasonably objects;



          (d) furnish to the Purchasers and their legal counsel (i) promptly after
the same is prepared and publicly distributed, filed with the SEC, or received
by the Company, one copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC
or the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities
and Additional Registrable Securities owned by such Purchaser;



          (e) in the event the Company selects an underwriter for the offering, the
Company shall enter into and perform its reasonable obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;



          (f) if required by the underwriter, or if any Purchaser is described in
the Registration Statement as an underwriter, the Company shall furnish, on the
effective date of the Registration Statement, on the date that Registrable
Securities or Additional Registrable Securities, as applicable, are delivered
to an underwriter, if any, for sale in connection with the Registration
Statement and at periodic intervals thereafter from time to time on request,
(i) an opinion, dated as of such date, from legal counsel representing the
Company for purposes of such Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering, addressed
to the underwriter and any such Purchaser and (ii) a letter, dated such date,
from the Company’s independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriter and any such Purchaser;



          (g) make effort to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal
of any such order at the earliest possible moment;



          (h) furnish to each Purchaser at least five copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements and




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schedules by air mail or reputable courier within three (3) business days
of the effective date thereof;


          (i) prior to any public offering of Registrable Securities or Additional
Registrable Securities, use its best efforts to register or qualify or
cooperate with the Purchasers and their counsel in connection with the
registration or qualification of such Registrable Securities or Additional
Registrable Securities, as applicable, for offer and sale under the securities
or blue sky laws of such jurisdictions requested by the Purchaser and do any
and all other reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities or Additional
Registrable Securities covered by the Registration Statement;



          (j) cause all Registrable Securities or Additional Registrable Securities
covered by a Registration Statement to be listed on each securities exchange,
interdealer quotation system or other market on which similar securities issued
by the Company are then listed;



          (k) immediately notify the Purchasers, at any time when a Prospectus
relating to the Registrable Securities or Additional Registrable Securities is
required to be delivered under the 1933 Act, upon discovery that, or upon the
happening of any event as a result of which, the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such holder, promptly
prepare and
furnish to such holder a reasonable number of copies of a supplement to or
an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or Additional
Registrable Securities, as applicable, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing; and



          (l) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, take such other
actions as may be reasonably necessary to facilitate the registration of the
Registrable Securities and Additional Registrable Securities, if applicable,
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve months, beginning after
the effective date of each Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act (for the purpose
of this subsection 3(l), “Availability Date” means the 45th day following the
end of the fourth fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter is the last
quarter of the Company’s fiscal year, “Availability Date” means the 90th day
after the end of such fourth fiscal quarter).



     4.     Due Diligence Review; Information. The Company shall make available,
during normal business hours, for inspection and review by the Purchasers who
may be deemed an underwriter, advisors to and representatives of such
Purchasers (who may or may


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not be affiliated with the Purchasers and who are reasonably acceptable to
the Company), and any underwriter participating in any disposition of Common
Stock on behalf of the Purchasers pursuant to the Registration Statement or
amendments or supplements thereto or any blue sky, NASD or other filing, all
financial and other records, all SEC Documents and other filings with the SEC,
and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of establishing a due diligence defense
under applicable securities laws and such other reasonable purposes, and cause
the Company’s officers, directors and employees, within a reasonable time
period, to supply all such information reasonably requested by such Purchasers
or any such representative, advisor or underwriter in connection with such
Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling such Purchasers and
such representatives, advisors and underwriters and their respective
accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company and the accuracy of the Registration Statement.



          The Company shall not disclose material nonpublic information to the
Purchasers, or to advisors to or representatives of the Purchasers, unless
prior to disclosure of such information the Company identifies such information
as being material nonpublic information and provides the Purchasers, such
advisors and representatives with the opportunity to accept or refuse to accept
such material nonpublic information for review. The Company may, as a
condition to disclosing any material nonpublic information hereunder, require
the Purchasers’ advisors and representatives to enter into a confidentiality
agreement (including an agreement with such advisors and representatives
prohibiting them from trading in Common Stock during such period of time as
they are in possession of material nonpublic information) in
form reasonably satisfactory to the Company and the Purchasers. Nothing herein
shall require the Company to disclose material nonpublic information to the
Purchasers or their advisors or representatives.



     5.     Obligations of the Purchasers.


          (a) Each Purchaser shall furnish in writing to the Company such
information regarding itself, the Registrable Securities or Additional
Registrable Securities, as applicable, held by it and the intended method of
disposition of the Registrable Securities or Additional Registrable Securities,
as applicable, held by it, as shall be reasonably required to effect the
registration of such Registrable Securities or Additional Registrable
Securities, as applicable, and shall execute such documents in connection with
such registration as the Company may reasonably request. At least ten (10)
days prior to the first anticipated filing date of any Registration Statement,
the Company shall notify each Purchaser of the information the Company requires
from such Purchaser if such Purchaser elects to have any of the Registrable
Securities or Additional Registrable Securities included in the Registration
Statement.



          (b) Each Purchaser, by its acceptance of the Registrable Securities and
Additional Registrable Securities, if any, agrees to cooperate with the Company
as reasonably




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requested by the Company in connection with the preparation and filing of
a Registration Statement hereunder, unless such Purchaser has notified the
Company in writing of its election to exclude all of its Registrable Securities
or Additional Registrable Securities, as applicable, from the Registration
Statement. Each Purchaser agrees to comply with the applicable prospectus
delivery requirements under the 1933 Act in connection with any resales of
Registrable Securities pursuant to the Registration Statement.


          (c) In the event the Company determines to engage the services of an
underwriter which engagement is reasonably acceptable to the Purchasers, each
Purchaser agrees to enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions of the
Registrable Securities or Additional Registrable Securities, as applicable.



          (d) Each Purchaser agrees that, upon receipt of any notice from the
Company of the happening of any event rendering a Registration Statement no
longer effective, such Purchaser will immediately discontinue disposition of
Registrable Securities or Additional Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities or Additional
Registrable Securities, until the Purchaser’s receipt of the copies of the
supplemented or amended prospectus filed with the SEC and declared effective
and, if so directed by the Company, the Purchaser shall deliver to the Company
(at the expense of the Company) or destroy all copies in the Purchaser’s
possession of the prospectus covering the Registrable Securities or Additional
Registrable Securities, as applicable, current at the time of receipt of such
notice.



          (e) No Purchaser may participate in any third party underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
or Additional Registrable Securities, as applicable, on the basis provided in
any underwriting arrangements in usual and customary form entered into by the
Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to the terms of this Agreement.



     6.     Indemnification.


          (a) Indemnification by Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, the Purchasers, each of their
officers, directors, partners and employees and each person who controls the
Purchasers (within the meaning of the 1933 Act) against all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorney’s fees) and expenses imposed on such person caused by (i) any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading,




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except insofar as the same are based upon any information furnished in
writing to the Company by such Purchasers, expressly for use therein, or (ii)
any violation by the Company of any federal, state or common law, rule or
regulation applicable to the Company in connection with any Registration
Statement, Prospectus or any preliminary prospectus, or any amendment or
supplement thereto, and shall reimburse in accordance with subparagraph (c)
below, each of the foregoing persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claims. The foregoing is subject to the condition that, insofar as the
foregoing indemnities relate to any untrue statement, alleged untrue statement,
omission or alleged omission made in any preliminary prospectus or Prospectus
that is eliminated or remedied in any Prospectus or amendment or supplement
thereto, the above indemnity obligations of the Company shall not inure to the
benefit of any indemnified party if a copy of such corrected Prospectus or
amendment or supplement thereto had been provided to such indemnified party and
was not sent or given by such indemnified party at or prior to the time such
action was required of such indemnified party by the 1933 Act and if delivery
of such Prospectus or amendment or supplement thereto would have eliminated (or
been a sufficient defense to) any liability of such indemnified party with
respect to such statement or omission. Indemnity under this Section 5(a) shall
remain in full force and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the permitted transfer of the
Registrable Securities and Additional Registrable Securities.


          (b) Indemnification by Holder. In connection with any registration
pursuant to the terms of this Agreement, each Purchaser will furnish to the
Company in writing such information as the Company reasonably requests
concerning the holders of Registrable Securities and Additional Registrable
Securities or the proposed manner of distribution for use in connection with
any Registration Statement or Prospectus and agrees, severally but not jointly,
to indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors, officers, employees, stockholders and each person who
controls the Company (within the meaning of the 1933 Act) against any losses,
claims, damages, liabilities and expense (including reasonable attorney’s fees)
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in
the Registration Statement or Prospectus or preliminary prospectus or
amendment or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing by such Purchaser
to the Company specifically for inclusion in such Registration Statement or
Prospectus or amendment or supplement thereto and that such information was
substantially relied upon by the Company in preparation of the Registration
Statement or Prospectus or any amendment or supplement thereto. In no event
shall the liability of a Purchaser be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such Purchaser and the amount of
any damages such holder has otherwise been required to pay by reason of such
untrue statement or omission) received by such Purchaser upon the sale of the
Registrable Securities or Additional Registrable Securities included in the
Registration Statement giving rise to such indemnification obligation.




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          (c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (a) the
indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not,
in connection with any proceeding in the same jurisdiction, be liable for fees
or expenses of more than one separate firm of attorneys at any time for all
such indemnified parties. No indemnifying party will, except with the consent
of the indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.



          (d) Contribution. If for any reason the indemnification provided for in
the preceding paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation.
In no event shall the contribution obligation of a holder
of Registrable Securities or Additional Registrable Securities be greater
in amount than the dollar amount of the proceeds (net of all expenses paid by
such holder and the amount of any damages such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission) received by it upon the sale of the Registrable
Securities or Additional Registrable Securities giving rise to such
contribution obligation.



     7.     Miscellaneous.


          (a) Amendments and Waivers. This Agreement may be amended only by a
writing signed by the parties hereto. The Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the




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Company shall have obtained the written consent to such amendment, action
or omission to act, of the Purchasers affected by such amendment, action or
omission to act.


          (b) Notices. All notices and other communications provided for or
permitted hereunder shall be made as set forth in Section 9.4 of the Purchase
Agreement.



          (c) Assignments and Transfers by Purchasers. This Agreement and all the
rights and obligations of any Purchaser hereunder may be assigned or
transferred to any transferee or assignee of the Notes, Warrants or Registrable
Securities as may be permitted under the Purchase Agreement. A Purchaser may
make such assignment or transfer to any transferee or assignee of any Note,
Warrant, Registrable Securities or Additional Registrable Securities,
provided that (i) such transfer is made expressly subject to this Agreement and the
transferee agrees in writing to be bound by the terms and conditions hereof,
and (ii) the Company is provided with written notice of such assignment.



          (d) Assignments and Transfers by the Company. This Agreement may not be
assigned by the Company without the prior written consent of the Purchasers,
but after notice duly given, the Company shall assign its rights and delegate
its duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company’s assets (and it shall be a
condition to any such merger, consolidation or sale that such
successor-in-interest assume in writing all obligations hereunder).



          (e) Benefits of the Agreement. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.



          (f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile.



          (g) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.



          (h) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the fullest extent permitted by law.



          (i) Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be




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required to carry out the transactions contemplated hereby and to evidence
the fulfillment of the agreements herein contained.


          (j) Entire Agreement. This Agreement, together with the Purchase
Agreement, Notes and Warrants and documents contemplated thereby, is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement, together with the Purchase Agreement, Notes and Warrants and
documents contemplated thereby, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.



          (k) Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law.



[Signature Pages Follow]



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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.



	 	 	 	 	 
	 	 	THE COMPANY:
	 	 	 	 	 
	 	 	HEARUSA, INC.
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	
Name:
	 	 	
Title:



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	 	 	THE PURCHASER:
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	
Title:



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