Exhibit 10(i)
ACCENT COLOR SCIENCES, INC.
PREFERRED STOCK PURCHASE AGREEMENT
This Preferred Stock Purchase Agreement (the "Agreement") is made as of
the Closing Date (as hereinafter defined) by and between Accent Color Sciences,
Inc., a Connecticut corporation (the "Company"), with its principal office at
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000, and each of the
purchasers who are signatories hereto and any other purchasers who are made a
party to this Agreement pursuant to Section 1 (individually, a "Purchaser" and
collectively, the "Purchasers").
RECITALS
The Company has engaged Pennsylvania Merchant Group (the "Placement
Agent") as exclusive agent of the Company in connection with the placement and
sale (the "Offering") of up to 40,000 shares of the Company's Series C
Convertible Preferred Stock, no par value per share (the "Series C Stock").
Shares of Series C Stock will be sold by the Company to Purchasers pursuant to
Regulation D under the Securities Act of 1933, as amended (the "Act"). The
purchase price of the shares to be offered in the Offering (the "Offering
Price") will be $100.00 per share. The Placement Agent has delivered to each
prospective purchaser a private placement memorandum, dated September 21, 1998
as supplemented by a first supplement to the private placement memorandum dated
November 1, 1999 (collectively the "Placement Memorandum"), describing the
Company's business, financial and operating condition, the Offering and
information regarding risks to be evaluated when contemplating an investment in
the Company through the Offering.
AGREEMENT
In consideration of the mutual promises, representations, warranties and
conditions set forth in the Agreement, the Company and each Purchaser (severally
and not jointly) agree as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Issue of Shares.
(a) The Company has authorized the issuance and sale of
up to 40,000 shares of its Series C Stock (the "Shares") pursuant to the
provisions of this Agreement.
(b) In reliance upon the Purchaser's representations
and warranties contained in Section 4 hereof, and subject to the terms and
conditions set forth herein, the Company hereby agrees to sell to each Purchaser
the aggregate amount of Shares set forth below such Purchaser's signature on the
subscription page bearing such Purchaser's name, such Shares to be sold at the
Offering Price.
(c) In reliance upon the representations and warranties
of the Company contained herein, and subject to the terms and conditions set
forth herein, each Purchaser hereby agrees to purchase the amount of Shares as
determined on the subscription page bearing such Purchaser's name at the
Offering Price. Each Purchaser shall severally, and not jointly, be liable for
only the purchase of the amount of Shares that appears on the subscription page
hereof that relates to such Purchaser.
(d) The Company's agreement with each of the Purchasers
is a separate agreement and the sale of the Shares to each of the Purchasers is
a separate sale.
2. CLOSING DATE; DELIVERY.
2.1 Closing. The closing of the sale and purchase of the
Shares under this Agreement (the "Closing") shall consist of the sale and
purchase of the Shares and shall be held at the offices of the Placement Agent
at such time and date selected by the Placement Agent and the Company occurring
on or before December 1, 1999, or such later date to which the offering period
is extended by the Company and the Placement Agent (the "Closing Date").
2.2 Delivery. Within five (5) days following the Closing,
subject to the terms and conditions hereof, the Company shall deliver to each
Purchaser stock certificates, registered in the name of the Purchaser,
representing the shares to be purchased by the Purchaser from the Company, dated
as of the Closing, against payment of the purchase price therefor in immediately
available funds by wire transfer or previously cleared check, unless other means
of payment shall have been agreed upon by the Purchaser and the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser as of the
date hereof and as of the Closing Date as follows:
3.1 Organization. The Company is a corporation, duly
incorporated, validly and legally existing and under the laws of the
jurisdiction of its incorporation. The Company has all requisite power and
authority to own or lease its properties and to conduct its business as it is
now being conducted. The Company holds all licenses and permits required for the
conduct of its business as it is now being conducted other than those which, if
not obtained, would not have a material adverse effect on the business,
financial condition or results of operations of the Company. The Company is
qualified as a foreign or domestic corporation and is in good standing in all
states where the conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to so qualify would not
have a material adverse effect on the business, financial condition or results
of operations of the Company. The Company has previously delivered a true and
complete copy of its Certificate of Incorporation ("Certificate") and Bylaws to
the Placement Agent. The Company does not own any equity securities of, or
equity interest in, any corporation, partnership, limited liability company or
other person.
3.2 Capitalization. The authorized, issued and outstanding
capital stock of the Company on September 21, 1999 is as set forth in the
Placement Memorandum under the heading "SUMMARY -- Capitalization." All of the
issued and outstanding shares of the Company's common stock have been duly
authorized, validly issued and are fully paid and nonassessable. Except as set
forth on Schedule 3.2 hereof, there are no existing subscriptions, options,
stock option plans, warrants, calls, commitments, agreements, conversion or
other rights of any character (contingent or otherwise) to purchase or otherwise
acquire from the Company at any time, or upon the happening of any stated event,
any shares of the capital stock of the Company.
3.3 Authority. The Company has all requisite power and
authority to enter into this Agreement, the Registration Rights Agreement (as
defined in Section 3.11 hereof) and the Placement Agent Warrant (as defined in
Section 6.6 hereof), and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement, the Registration Rights
Agreement and the Placement Agent Warrant, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of the Company or will be so duly
authorized by the Closing Date and, upon their execution and delivery by the
Company, such agreements will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights and subject to general equity
principles.
3.4 Securities Filings.
(a) The Company has filed with the Securities and
Exchange Commission (the "SEC") the documents set forth as Exhibits A, B, C and
D of the Placement Memorandum (the "SEC Filings"). The SEC filings set forth as
Exhibits B, C and D are amendments to the Company's Annual Report on Form 10K
for 1998, the Company's Quarterly Report on Form 10Q for the quarter ended March
31, 1999 and the Company's Quarterly Report for the quarter ended June 30, 1999,
respectively, all as filed with the SEC in response to the position of the SEC
that the Company's Series B Convertible Preferred Stock should have been
presented in the "mezzanine" section of its balance sheet rather than in the
equity section of its balance sheet. The Company has filed with the SEC all
reports and all other filings required to be filed with the SEC under the rules
and regulations of the SEC.
(b) Except as disclosed in Section 3.4(a) hereof, the
SEC Filings conformed in all material respects to the requirements of the
Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations of the SEC
thereunder as of their respective filing dates and did not contain 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. The
documents or portions thereof that were incorporated by reference in the SEC
Filings pursuant to the requirements of the Exchange Act, when such incorporated
documents or portions were first filed with the SEC, conformed in all material
respects with any applicable requirements of the Exchange Act and the rules and
regulations of the SEC thereunder.
(c) Except as disclosed in Section 3.4(a) hereof, the
consolidated financial statements of the Company included in the SEC Filings
fairly presented in all material respects the financial position and results of
operations of the Company at their respective dates and for the respective
periods to which they apply. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved except as stated therein.
3.5 Placement Memorandum. The Placement Agent has advised the
Company that it has delivered to each prospective purchaser the Placement
Memorandum, which describes the Company's business, financial and operating
condition, the Offering and information regarding risks to be evaluated when
contemplating an investment in the Company through the Offering.
(a) The Placement Memorandum does not contain 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.
(b) Except as disclosed in Section 3.4(a) hereof, the
financial statements of the Company included in the Placement Memorandum fairly
present in all material respects the financial position and results of
operations of the Company at their respective dates and for the respective
periods to which they apply. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved except as stated therein.
3.6 Issuance of the Shares. The Shares, when issued pursuant
to the terms of this Agreement, shall be duly and validly authorized and issued,
fully paid and nonassessable.
3.7 No Conflict with Law or Documents. The execution, delivery
and consummation of this Agreement, the Registration Rights Agreement, the
Placement Agent Warrant and the transactions contemplated hereby and thereby
will not (a) conflict with any provisions of the Certificate or Bylaws of the
Company or (b) result in any violation of or default or loss of a benefit under,
or permit the acceleration of any obligation under (in each case, upon the
giving of notice, the passage of time, or both), any mortgage, indenture, lease,
agreement or other instrument, permit, franchise, license, judgment, order,
decree, law, ordinance, rule or regulation applicable to the Company or any of
its properties.
3.8 Consents, Approvals and Private Offering. Except for any
filings required under federal and applicable state securities laws, all of
which shall have been made as of the Closing Date to the extent required as of
such time, and the consent of each holder of the Company's Series B Preferred
Stock waiving its conversion rights with respect to all shares issued pursuant
to the terms of this Agreement, which have been obtained, no consent, approval,
order or authorization of, or registration, declaration or filing with, any
federal, state, local or foreign governmental authority or other person is
required to be made or obtained by the Company in connection with the execution
and delivery of this Agreement, the Registration Rights Agreement, the Placement
Agent Warrant and the consummation of the transactions contemplated hereby and
thereby.
3.9 Absence of Certain Developments. Since June 30, 1999, the
Company has not (a) incurred or become subject to any material liabilities
(absolute or contingent) except current liabilities incurred, and liabilities
under contracts entered into, in the ordinary course of business consistent with
past practices; (b) mortgaged, pledged or subjected to any lien, charge or other
encumbrance any of its assets, tangible or intangible (except for liens for
current taxes, assessments and governmental charges and levies which may be paid
without penalty, interest or other additional charge, or which are being
contested in good faith by appropriate proceedings and are not material in
amount or value in relation to the value of the associated property); (c) sold,
assigned or transferred any of its assets or canceled any debts or obligations
except in the ordinary course of business consistent with past practices; (d)
suffered any extraordinary losses, or waived any rights of substantial value;
(e) except for a bridge financing closed September 7, 1999 resulting in gross
proceeds to the Company of $1,100,000, entered into any material transaction
other than in the ordinary course of business, consistent with past practices;
or (f) otherwise had any change in its condition, financial or otherwise, except
as shown on or reflected in the consolidated balance sheet as of June 30, 1999,
except for changes in the ordinary course of business consistent with past
practices. Except as described in the SEC Filings, the Company has not entered
into any agreement since June 30, 1999 of the type that would be required under
the SEC's rules and regulations to be filed as an exhibit to a Report on Form
10-K.
3.10 Litigation. Except as described in the Placement
Memorandum, there are no actions, suits, proceedings or investigations pending
against or affecting the Company or any Subsidiary that in the aggregate could
reasonably be anticipated to result in a material adverse effect on the Company.
3.11 Registration Rights. Each of the Shares shall be entitled
to the registration rights provided by the Registration Rights Agreement in the
form annexed hereto as Exhibit A. If the Company (a) fails to file a
registration statement, as required by the Registration Rights Agreement (the
"Registration Statement") with the SEC within 90 days of the Closing Date or (b)
fails to cause the Registration Statement to be declared effective by the SEC
within 180 days of the Closing Date, then the Company will issue Purchaser for
no additional consideration additional shares of Series C Stock in an amount
equal to one share of Series C Stock for each twenty shares of Series C Stock
purchased hereunder rounded down to the nearest tenth of a share. Such
additional shares of Series C stock shall be issued within 15 days
of the Company's failure to satisfy (a) or (b) above. For example, if Purchaser
purchased 100 shares of Series C Stock and the Company fails to (a) file the
Registration Statement with the SEC within 90 days of the Closing Date or (b)
fails to cause the Registration Statement to be declared effective by the SEC
within 180 days of the Closing Date, then it will issue the Purchaser 5
additional shares of Series C Stock in accordance with this paragraph.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PURCHASER.
Each Purchaser hereby represents and warrants to, and
covenants with, the Company as follows:
4.1 Legal Power. Purchaser has the requisite corporate,
partnership, trust or fiduciary power, as appropriate, and is authorized, if
Purchaser is a corporation, partnership or trust, to enter into this Agreement,
to purchase the Shares hereunder, and to carry out and perform its obligations
under the terms of this Agreement and the Registration Rights Agreement.
4.2 Due Execution. Each of this Agreement and the Registration
Rights Agreement has been duly authorized, if Purchaser is a corporation,
partnership, trust or fiduciary, executed and delivered by Purchaser and, upon
due execution and delivery by the Company, this Agreement and the Registration
Rights Agreement will be valid and binding agreements of Purchaser, enforceable
against Purchaser in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditors' rights and subject to general equity principles.
4.3 Investment Representations.
4.3.1 Purchaser is acquiring the Shares for its own account,
not as nominee or agent, for investment and not with a view to or for resale in
connection with any distribution or public offering thereof within the meaning
of the Act, except pursuant to an effective registration statement under the
Act.
4.3.2 Purchaser understands that (i) the Shares have not been
registered under the Act by reason of a specific exemption therefrom, and may
not be transferred or resold except pursuant to an effective registration
statement or exemption from registration and (ii) each certificate representing
the Shares will be endorsed with legends in substantially the following form:
A) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS;
B) Any legend required to be placed thereon by applicable
federal or state securities laws;
and (iii) the Company will instruct any transfer agent not to register the
transfer of any of the Shares unless the conditions specified in the foregoing
legend are satisfied.
4.3.3 Purchaser has received and reviewed the Placement
Memorandum. In addition, Purchaser has been furnished with such materials and
has been given access to such information relating to the Company as it or its
qualified representative has requested and has been afforded the opportunity to
ask questions regarding the Company and the Shares, all as Purchaser has found
necessary to make an informed investment decision.
4.3.4 Purchaser is an "accredited investor" as such term is
defined in Rule 501 under the Act and was not formed for the specific purpose of
acquiring the Shares.
4.3.5 Purchaser is a resident of, and all communications
regarding Purchaser's purchase of the Shares were sent to Purchaser in, the
state of Purchaser's residence shown on the subscription page attached hereto.
5. COVENANTS OF THE COMPANY.
5.1 Information.
So long as the Company is subject to the periodic reporting
requirements of the Exchange Act, the Company shall deliver to each holder of
Shares all annual, quarterly or other reports to the extent such reports are
furnished to the Company's public security holders. In the event that the
Company is not so subject, until the fifth anniversary of the Closing the
Company shall promptly furnish to each holder of Shares (i) as soon as
available, and in any event within 90 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and its consolidated
subsidiaries, if any, as of the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all prepared in accordance with generally accepted
accounting principles and reported on by independent certified public
accountants of recognized national standing; and (ii) as soon as available, and
in any event within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, a consolidated balance sheet of the
Company and its consolidated subsidiaries, if any, as of the end of such quarter
and the related consolidated statements of income and stockholder's equity
(together with any other quarterly financial statements being prepared by the
Company at such time), setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and consistency by the chief
financial or accounting officer of the Company.
5.2 Use of Proceeds. The Company will use the proceeds of the
Offering in a manner in accordance with the Placement Memorandum.
6. REPRESENTATIONS OF PLACEMENT AGENT; COMPENSATION OF PLACEMENT
AGENT. The Company has authorized the Placement Agent to conduct the Offering
under Regulation D of the Act, and the Placement Agent represents and agrees
with the Company as follows:
6.1 Sales to Accredited Investors. The Placement Agent has
made and will only make offers and sales of the Shares to Purchasers it
reasonably believes to be "accredited investors" as that term is defined in Rule
501(a) under the Act.
6.2 Regulation D Compliance. The Placement Agent has made and
will make offers and sales of Shares in compliance with Rule 506 and the other
applicable provisions of Regulation D, to the extent applicable to the Placement
Agent, and the Placement Agent has not and will not offer to sell the Shares by
any form of general solicitation or general advertising that is prohibited by
Rule 502(c) under the Act.
6.3 Compliance Generally. The Placement Agent has and will
observe all securities laws and regulations applicable to it in any jurisdiction
in which it has or may offer, sell or deliver Shares and it will not, directly
or indirectly, offer, sell or deliver Shares or distribute or publish any
prospectus, circular, advertisement or other offering material in relation to
the Shares in or from any state in the United States or country or jurisdiction
except under circumstances that will result in compliance with applicable laws
and regulations.
6.4 Sales Commissions. In consideration of the Placement
Agent's services hereunder, the Company shall pay the Placement Agent in cash on
the Closing Date a commission of seven percent (7.0%) of the Offering Price of
each Share sold at such Closing (the "Placement Fee").
6.5 Placement Agent Expenses. Upon the Closing, the Company
agrees to reimburse the Placement Agent for its reasonable, documented
out-of-pocket expenses incurred in connection with the Offering, including the
reasonable fees and expenses of the Placement Agent's counsel, up to a maximum
of $20,000.
6.6 Placement Agent Warrant. At the Closing, the Company shall
sell to the Placement Agent warrants to purchase 25,000 shares of the Company's
common stock for each $1,000,000 of gross proceeds to the Company from the
Offering, prorated for any amount less than $1,000,000 (the "Placement Agent
Warrant"), at a purchase price of $.001 per share of the Company's common stock
underlying the Placement Agent Warrant (the "Warrant Shares"). The Placement
Agent Warrant shall be exercisable at any time before the fifth anniversary of
the Closing at an exercise price per share of $.40. The Placement Agent Warrant
shall be in a form satisfactory to the Company and the Placement Agent.
6.7 Possible Participation by Affiliates of Placement Agent.
Affiliates of the Placement Agent may purchase Series C Stock in the Offering.
Purchases by such affiliates may be counted toward any applicable minimum
proceeds requirement, but no such individual Placement Agent affiliate purchase
shall consist of more than 10% of such
minimum. If such minimum is exceeded, no individual Placement Agent affiliate
purchase beyond that minimum shall exceed 10% of the Series C Stock sold in the
Offering and all Placement Agent affiliate purchases beyond such minimum shall
not in the aggregate exceed 20% of the Series C Stock sold in the Offering.
7. CONDITIONS TO CLOSING.
7.1 Conditions to Obligations of the Purchaser. Each
Purchaser's obligation to purchase the Shares at the Closing is subject to the
fulfillment, at or prior to such Closing, of all of the following conditions:
(a) Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects at the Closing with
the same force and effect as if they had been made on and as of said date.
Except as described in or contemplated by the Placement Memorandum, the
business, assets, financial condition and results of operations of the Company
shall not have been adversely affected in any material way prior to the Closing.
The Company shall have performed in all material respects all obligations herein
required to be performed by it on or prior to the Closing.
(b) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchaser.
(c) Qualifications, Legal Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful sale and issuance of the Shares pursuant to this Agreement shall have
been duly obtained and shall be effective on and as of the Closing Date. At the
time of the Closing, the sale and issuance of the Shares shall be legally
permitted by all laws and regulations to which the Purchaser and the Company are
subject.
(d) Registration Rights Agreement. The Company shall have
entered into the Registration Rights Agreement.
(e) Legal Opinion. Counsel to the Company shall have
provided a legal opinion to the Purchasers reasonably acceptable to the
Placement Agent.
7.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment to the Company's satisfaction, on or prior to the Closing, of the
following conditions:
(a) Representations and Warranties True. The representations
and warranties in Section 4 hereof made by each Purchaser shall be true and
correct at the Closing with the same force and effect as if they had been made
on and as of the Closing.
(b) Performance of Obligations. Each Purchaser shall have
performed and complied in all material respects with all agreements and
conditions herein
required to be performed or complied with by them on or before the Closing Date,
and each Purchaser shall have delivered payment to the Company in respect of its
purchase of Shares.
(c) Qualifications, Legal Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful sale and issuance of the Shares pursuant to this Agreement shall have
been duly obtained and shall be effective on and as of the Closing Date. At the
time of the Closing, the sale and issuance of the Shares shall be legally
permitted by all laws and regulations to which each Purchaser and the Company
are subject.
8. MISCELLANEOUS.
8.1 Governing Law. This Agreement shall be governed by and
construed under the laws of Connecticut without regard to any otherwise
applicable principles of conflicts of laws.
8.2 Survival. The representations and warranties made by the
parties in this Agreement shall survive the consummation of the transactions
herein contemplated until the expiration of the statute of limitations with
respect to claims arising under Section 10(b) of the Securities Exchange Act of
1934, as amended, with respect to the purchase of Shares hereunder.
8.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
8.4 Entire Agreement. This Agreement and the Exhibits hereto
and thereto, and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
8.5 Severability. In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and to
retain as nearly as practicable the intent of the parties, and the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. To the extent permitted by law, the parties hereto
waive the benefit of any provision of law that renders any provision of this
Agreement invalid or unenforceable in any respect.
8.6 Joinder. By execution of this Agreement, the Placement
Agent joins this Agreement for purposes of (i) making the representations of the
Placement Agent set forth in Section 6 hereof and (ii) receiving the benefits of
the Company's covenants in such Section 6.
8.7 Amendment and Waiver. Except as otherwise provided herein,
any term of this Agreement may be amended, and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), with the written consent of the Company and the Purchaser. Any
amendment or waiver effected in accordance with this section shall be binding
upon each future holder of any security purchased under this Agreement
(including securities into which such securities have been converted) and the
Company.
8.8 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery, on the first business day following mailing by overnight
courier, or on the fifth day following mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company and the
Purchaser at the respective addresses included herein.
8.9 Fees and Expenses. Except as otherwise provided herein,
the Company and the Purchasers shall bear their own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby. Purchasers acknowledge that the Placement Agent will
receive a commission equal to seven percent (7%) of the Offering Price of each
Share sold in the Offering and will be entitled to purchase for nominal
consideration the Placement Agent Warrant.
8.10 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
8.11 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
8.12 No Waiver. No waiver by any party to this Agreement of
any one or more defaults by any other party or parties in the performance of any
of the provisions hereof shall operate or be construed as a waiver of any future
default or defaults, whether of a like or different nature. Except as expressly
provided herein, no failure or delay on the part of any party in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.
[SIGNATURE PAGE FOLLOWS]
ACCENT COLOR SCIENCES, INC.
PREFERRED STOCK PURCHASE AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
Please complete two copies of the Signature Page and return both copies to:
Pennsylvania Merchant Group, Xxxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxxxx, XX
00000-0000, Attention: Xxxx X. Xxxxxx.
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Purchaser's Name - Please Print Nominee Name (if appropriate)
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Social Security Number/Tax I.D. Number Telephone Number
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Fax Number
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Address City, State and Zip Code
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Signature Date
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Number of Shares to be Purchased Price Per Share Aggregate Purchase Price
---------------------------------------- X = $--------------------
FUNDS SHOULD BE WIRED TO: SUMMIT BANK/Trust, Attention: Xxxxxxxxx Xxxxxx,
Hackensack, NJ ABA #000000000 GL A/C 477-02. For credit to the Account of Accent
Color Sciences, Inc. Trust Account #2970056498.
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AGREED TO AND ACCEPTED:
PENNSYLVANIA MERCHANT GROUP
By:------------------------------------- Date:--------------------------
Xxxx X. Xxxxxx
Vice President - Administration
ACCENT COLOR SCIENCES, INC.
By:-------------------------------
Date:--------------------------