As filed with the Securities and Exchange Commission on July 19, 1996.
Registration No. 33-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under
The Securities Act of 1933
HEARx Ltd.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
22-2748248
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(I.R.S. Employer Identification No.)
HEARx Ltd.
1995 FLEXIBLE STOCK PLAN
NON-QUALIFIED STOCK OPTIONS
COMMON STOCK
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(Full title of plans)
Paul A. Brown, M.D., Chairman and Chief Executive Officer
HEARx Ltd.
1250 Northpoint Parkway
West Palm Beach, Florida 33407
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(Name and address for agent of service)
(561) 478-8770
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(Telephone number, including area code, for agent of service)
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
====================================================================================================================================
Title of Proposed Proposed Amount
Securities Amount maximum maximum of
to be to be offering price aggregate registration
registered Registered per share offering price fee
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<C> <C> <C> <C> <C>
Common Stock, par value $.10 per share 2,750,000 <F1><F2> $3.78125 <F3> $10,398,437.50 $3,585.67
("Common Stock")
Common Stock 844,000<F1><F4> $ 1.00 $ 844,000.00 $ 291.03
Common Stock 150,000<F5> $3.78125<F3> $ 567,187.50 $ 195.58
- ------------------------------------------------------------------------------------------------------------------------------------
Total 3,744,000 $11,809,625.00 $4,072.28
====================================================================================================================================
<FN>
<F1> There is also being registered hereunder such additional undetermined number of shares of Common Stock as may be issued as a
result of the anti-dilution provisions of the Plan and the Options.
<F2> Represents shares of Common Stock issuable pursuant to the 1995 Flexible Stock Plan and includes 2,500,000 shares which are
subject to the Plan and an additional 250,000 shares representing an annual increase for fiscal year 1996 pursuant to Section 3.1 of
the Plan.
<F3> Calculated in accordance with the provisions of Rule 457(c) using the average of the high and low sales price of the
Registrant's Common Stock as reported on the American Stock Exchange on July 16, 1996.
<F4> Represents shares of Common Stock issuable pursuant to three non-qualified stock option agreements between the Corporation and
each of three individual public relations consultants.
<F5> Represents shares of Common Stock to be issued in connection with an agreement for public relations services.
</TABLE>
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ii
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by HEARx Ltd. (the
"Corporation") relating to shares of its Common Stock, par value $.10 per share
("Common Stock"), issuable pursuant to the 1995 Flexible Stock Plan and pursuant
to Non-Incentive Stock Option Agreements and an accompanying agreement for
public relations services each dated July 11, 1995 as amended May 20, 1996,
between the Corporation and each of Charlotte B. Givens, Jerry Wenger and Edward
Silverman.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended ("Securities Act"), and
the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Corporation with the Securities and Exchange Commission ("Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Corporation's Annual Report on Form 10-K for the fiscal year ended
December 29, 1995, as amended on Form 10-K/A;
(b) The Corporation's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 29, 1996;
(d) The Corporation's Current Report on Form 8-K dated May 17, 1996; and
(d) The description of the Common Stock contained in the Corporation's
Registration Statement on Form S-18 (Registration No. 33-17041NY),
including any amendment or report filed for the purpose of updating
such description.
All reports and other documents filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment hereto which indicates
that all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
For purposes of this Registration Statement, any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed comment which also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
The class of securities to be offered is registered under Section 12 of the
Exchange Act. Therefore, a description of the Common Stock required by Item 202
of Regulation S-K is not required.
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Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware Corporation Law provides as follows:
"INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE
"(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
"(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
"(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
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section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
"(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
"(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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"(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of a person.
"(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise the Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
The officers and directors are indemnified pursuant to specific provisions
of the Corporation's Amended and Restated Certificate of Incorporation and
Bylaws to the fullest extent permissible under the law, subject to specific
limitations imposed, and, further, with the basic intent of not granting any
indemnity in contravention of the laws of the State of Delaware or of the United
States of America, whether as a matter of public policy or pursuant to statutory
provisions.
Indemnification granted each officer and director covers expenses incurred
or paid by such officer or director in connection with any claim, action, suit
or proceeding, or judgment or order. Such indemnification excludes, however, any
amounts paid or payable by such officer or director to the Corporation unless
(and only to the extent that) the Court of Chancery or the court in which the
related action was brought, shall determine that, despite the adjudication of
liability but in view of all the circumstances of the case, such officer or
director is fairly and reasonably entitled to indemnity for amounts the Court of
Chancery or such other court shall deem proper.
Pursuant to the Corporation's Amended and Restated Certificate of
Incorporation, no director or shareholder of the Corporation shall be personally
liable to the Corporation or its shareholders for monetary damages for any
breach of fiduciary duty as a director. The Certificate further provides,
however, that a director shall be liable to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Corporation or
its shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) pursuant to Section
174 of the General Corporation Law of the State of Delaware; or (iv) for any
transaction from which such director derived an improper personal benefit. No
amendment or repeal of this provision in the Certificate may adversely affect
5
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any right or protection of any director of the Corporation existing at the time
of such amendment or repeal for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
The Corporation may purchase and maintain, and currently does so maintain,
insurance on behalf of its directors and officers against liability asserted
against any of them and incurred by them in such capacity, or arising out of
their status as such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- --------------------------------------------------------------
4.1 Restated Certificate of Incorporation of the Corporation,
as amended (incorporated by reference to Exhibit 3 to the
Current Report on Form 8-K).
5 Opinion of Counsel (relating to legality of securities
being registered).
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5 hereto).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Palm Beach, State of Florida, on this 19 day of
July, 1996.
HEARX LTD.
By:/s/ Paul A. Brown, M.D.
------------------------------------------
Paul A. Brown, M.D.
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the individuals whose signatures
appear below constitute and appoint Paul A. Brown, M.D., Thomas W. Archibald,
Fred N. Gerard and David J. McLachlan, or any of them, his true and lawful
attorney in fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicted.
Signatures Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Paul A.Brown, M.D.
- ------------------------------ Chairman of the Board, Chief July 19, 1996
Paul A. Brown, M.D. Executive Officer and Director
/s/ James W. Peklenk
- ------------------------------ Chief Financial Officer and July 19, 1996
James W. Peklenk Chief Accounting Officer
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Signatures Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Thomas W. Archibald Director July 19, 1996
- ------------------------------
Thomas W. Archibald
/s/ Fred N. Gerard Director July 19, 1996
- ------------------------------
Fred N. Gerard
/s/ David J. McLachlan Director July 19, 1996
- ------------------------------
David J. McLachlan
9
EXHIBIT 5
BRYAN CAVE LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
(202) 508-6000
Facsimile (202) 508-6200
July 19, 1996
HEARx Ltd.
1250 Northpoint Parkway
West Palm Beach, Florida 33407
Ladies and Gentlemen:
We have acted as counsel to HEARx Ltd., a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, on Form S-8 (the "Registration Statement") of 150,000 shares
of the Company's common stock, par value $.10 per share (the "Common Stock"),
issuable pursuant to an agreement for public relations services (the "Consulting
Agreement"), an aggregate of 844,000 shares of Common Stock issuable pursuant to
the exercise of stock options granted pursuant to three non-qualified stock
option agreements (the "Option Agreements"), and 2,750,000 shares of Common
Stock issuable pursuant to the Company's 1995 Flexible Stock Plan (the "Plan").
Such shares issuable pursuant to the Consulting Agreement, the Option Agreements
and the Plan are referred to herein as the "Shares".
As such counsel, we have examined and relied upon originals or
copies, certified or otherwise, identified to our satisfaction, of such
corporate records, agreements, documents, instruments and certificates of
officers and representatives of the Company, and have made such investigations
of law, as we deemed necessary or appropriate in order to enable us to render
the opinion expressed below.
Based upon the foregoing and in reliance thereon, we are of
the opinion that the Shares have been duly and validly authorized for issuance
and will be, when issued, delivered and paid for pursuant to the terms and
conditions set forth in the Consulting Agreement or Option Agreements and, in
the case of options granted under the Plan, pursuant to the terms and conditions
of the Plan, validly issued, fully paid and non-assessable.
The opinion stated herein is as of the date hereof, and we
assume no obligation to update or supplement this legal opinion to reflect any
facts or circumstances that may hereafter come to our attention or any changes
in laws that may hereafter occur. This legal opinion is limited to the matters
stated herein and no opinion is implied or may be inferred beyond the matters
expressly stated.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bryan Cave LLP
Bryan Cave LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 relating to the registration of 3,744,000
shares of Common Stock, par value $.10 per share, of HEARx LTD ("Registrant") of
our report dated April 5, 1996 relating to the consolidated financial statements
and financial statement schedule of the Registrant and its subsidiaries for the
year ended December 29, 1995, included in the Registrant's Annual Report on Form
10-K for the fiscal year ended December 29, 1995, which are incorporated by
reference in this Registration Statement.
BDO Seidman, LLP
West Palm Beach, Florida
July 18, 1996
