PHIL.\97657-6
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as
of January 9, 1998, by and among Accent Color Sciences, Inc., a
corporation organized under the laws of the State of Connecticut
with headquarters located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and each of the
purchasers (the "Purchasers") set forth on the execution pages
hereof (the "Execution Pages").
WHEREAS:
A. The Company and each Purchaser are executing and
delivering this Agreement in reliance upon the exemption from
securities registration afforded by the provisions of Regulation
D ("Regulation D"), as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act");
B. The Company desires to sell, and the Purchasers
collectively desire to purchase, upon the terms and conditions
stated in this Agreement, 4,500 units (the "Units"), for a
purchase price of One Thousand Dollars ($1,000.00) per Unit (the
"Purchase Price "), each Unit consisting of (i) one (1) share of
the Company's Series B Convertible Preferred Stock, no par value
per share (the "Preferred Shares"), convertible into shares of
the Company's common stock, no par value per share (the "Common
Stock"), and (ii) warrants, in the form attached hereto as
Exhibit B, to acquire one (1) share of Common Stock for each
Fifteen Dollars ($15.00) of aggregate Purchase Price paid for
such Unit (or an aggregate of up to 300,000 shares of Common
Stock) (the "Warrants"). The rights, preferences and privileges
of the Preferred Shares, including the terms upon which such
Preferred Shares are convertible into shares of Common Stock, are
set forth in the form of Certificate of Designations, Preferences
and Rights attached hereto as Exhibit A (the "Certificate of
Designation"). The shares of Common Stock issuable upon
conversion of the Preferred Shares or otherwise pursuant to the
Certificate of Designation are referred to herein as the
"Conversion Shares" and the shares of Common Stock issuable upon
exercise of or otherwise pursuant to the Warrants are referred to
herein as the "Warrant Shares." The Preferred Shares, the
Warrants, the Conversion Shares and the Warrant Shares are
collectively referred to herein as the "Securities."
C. Contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a
Registration Rights Agreement, in the form attached hereto as
Exhibit C (the "Registration Rights Agreement"), pursuant to
which the Company has agreed to provide certain registration
rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities laws;
NOW, THEREFORE, the Company and the Purchasers hereby agree
as follows:
1. PURCHASE AND SALE OF UNITS.
a. Purchase of Units. On the Closing Date (as defined
below), subject to the satisfaction (or waiver) of the conditions
set forth in Section 6 and Section 7 below, the Company shall
issue and sell to each Purchaser and each Purchaser severally
agrees to purchase from the Company, such number of Units as is
set forth on such Purchaser's Execution Page hereto. Each
Purchaser's obligation to purchase Units hereunder is distinct
and separate from each other Purchaser's obligation to purchase
Units and no Purchaser shall be required to purchase hereunder
more than the number of Units set forth on such Purchaser's
Execution Page hereto notwithstanding any failure by any other
Purchaser to purchase Units hereunder.
b. Form of Payment. On the Closing Date, each Purchaser
shall pay the aggregate Purchase Price for the Units being
purchased by such Purchaser on the Closing Date by wire transfer
to the Company, in accordance with the Company's written wiring
instructions, against delivery of duly executed certificates
representing the Preferred Shares and Warrants being purchased by
such Purchaser and the Company shall deliver such certificates
and Warrants against delivery of such aggregate Purchase Price.
c. Closing Date. Subject to the satisfaction (or waiver)
of the conditions thereto set forth in Section 6 and Section 7
below, the date and time of the issuance and sale of the Units to
each of the Purchasers pursuant to this Agreement (the "Closing")
shall be 12:00 noon, New York City time, on January 9, 1998,
subject to a two (2) business day grace period at either party's
option, but in any event not later than January 12, 1998, or such
other time as may be mutually agreed upon by the Company and the
Purchasers (the "Closing Date"). The closing shall occur at the
offices of Klehr, Harrison, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally represents and warrants to the
Company as follows:
a. Investment Purpose. Purchaser is purchasing the
Securities for Purchaser=s own account for investment purposes
only and not with a present view towards the public sale or
distribution thereof, except pursuant to sales that are exempt
from the registration requirements of the Securities Act and/or
sales registered under the Securities Act. Purchaser understands
that Purchaser must bear the economic risk of this investment
indefinitely, unless the Securities are registered pursuant to
the Securities Act and any applicable state securities or blue
sky laws or an exemption from such registration is available, and
that the Company has no present intention of registering the
resale of any such Securities other than as contemplated by the
Registration Rights Agreement. Notwithstanding anything in this
Section 2(a) to the contrary, by making the representations
herein, the Purchaser does not agree to hold the Securities for
any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or
pursuant to a registration statement or an exemption under the
Securities Act.
b. Accredited Investor Status. Purchaser is an
"Accredited Investor" as that term is defined in Rule 501(a) of
Regulation D.
c. Reliance on Exemptions. Purchaser understands that the
Securities are being offered and sold to Purchaser in reliance
upon specific exemptions from the registration requirements of
United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and
Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of Purchaser set
forth herein in order to determine the availability of such
exemptions and the eligibility of Purchaser to acquire the
Securities.
d. Information. Purchaser and its counsel, if any, have
been furnished all materials relating to the business, finances
and operations of the Company and materials relating to the offer
and sale of the Securities which have been specifically requested
by Purchaser or its counsel. Purchaser and its counsel have been
afforded the opportunity to ask questions of the Company and have
received what Purchaser believes to be satisfactory answers to
any such inquiries. Neither such inquiries nor any other
investigation conducted by Purchaser or its counsel or any of its
representatives shall modify, amend or affect Purchaser=s right
to rely on the Company=s representations and warranties contained
in Section 3 below. Purchaser understands that Purchaser=s
investment in the Securities involves a high degree of risk.
e. Governmental Review. Purchaser understands that no
United States federal or state agency or any other government or
governmental agency has passed upon or made any recommendation or
endorsement of the Securities.
f. Transfer or Resale. Purchaser understands that (i)
except as provided in the Registration Rights Agreement, the sale
or resale of the Securities have not been and are not being
registered under the Securities Act or any state securities laws,
and the Securities may not be transferred unless (a) the resale
of the Securities has been registered thereunder; or (b)
Purchaser shall have delivered to the Company an opinion of
counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to
the effect that the Securities to be sold or transferred may be
sold or transferred pursuant to an exemption from such
registration; or (c) the Securities are sold under Rule 144
promulgated under the Securities Act (or a successor rule) ("Rule
144"); or (d) the Securities are sold or transferred to an
affiliate of Purchaser who agrees to sell or otherwise transfer
the Securities only in accordance with the provisions of this
Section 2(f) and who is an Accredited Investor; and (ii) neither
the Company nor any other person is under any obligation to
register such Securities under the Securities Act or any state
securities laws (other than pursuant to the Registration Rights
Agreement). Notwithstanding the foregoing or anything else
contained herein to the contrary, the Securities may be pledged
as collateral in connection with a bona fide margin account or
other lending arrangement.
g. Legends. Purchaser understands that the Preferred
Shares and the Warrants and, until such time as the Conversion
Shares and Warrant Shares have been registered under the
Securities Act (including registration pursuant to Rule 416
thereunder) as contemplated by the Registration Rights Agreement
or otherwise may be sold by Purchaser under Rule 144, the
certificates for the Conversion Shares and Warrant Shares may
bear a restrictive legend in substantially the following form:
The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended, or the securities laws of any state of the
United States. The securities represented hereby may
not be offered, sold, transferred or assigned in the
absence of an effective registration statement for the
securities under applicable securities laws unless
offered, sold, transferred or assigned under an
available exemption from the registration requirements
of those laws.
The legend set forth above shall be removed and the Company
shall issue a certificate without such legend to the holder of
any Security upon which it is stamped, if, unless otherwise
required by state securities laws, (a) the sale of such Security
is registered under the Securities Act (including registration
pursuant to Rule 416 thereunder) as contemplated by the
Registration Rights Agreement; (b) such holder provides the
Company with an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions, to
the effect that a public sale or transfer of such Security may be
made without registration under the Securities Act; or (c) such
holder provides the Company with reasonable assurances that such
Security can be sold under Rule 144. Purchaser agrees to sell all
Securities, including those represented by a certificate(s) from
which the legend has been removed, pursuant to an effective
registration statement or under an exemption from the
registration requirements of the Securities Act. In the event
the above legend is removed from any Security and thereafter the
effectiveness of a registration statement covering such Security
is suspended or the Company determines that a supplement or
amendment thereto is required by applicable securities laws, then
upon reasonable advance notice to Purchaser the Company may
require that the above legend be placed on any such Security that
cannot then be sold pursuant to an effective registration
statement or under Rule 144 and Purchaser shall cooperate in the
replacement of such legend. Such legend shall thereafter be
removed when such Security may again be sold pursuant to an
effective registration statement or under Rule 144.
h. Authorization; Enforcement. This Agreement and the
Registration Rights Agreement have been duly and validly
authorized, executed and delivered on behalf of Purchaser and are
valid and binding agreements of Purchaser enforceable in
accordance with their terms.
i. Residency. Purchaser is a resident of the jurisdiction
set forth under such Purchaser's name on the Execution Page
hereto executed by such Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as
follows:
a. Organization and Qualification. The Company and each
of its subsidiaries is a corporation duly organized and existing
in good standing under the laws of the jurisdiction in which it
is incorporated, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted.
The Company and each of its subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted
by it makes such qualification necessary and where the failure so
to qualify would have a Material Adverse Effect. "Material
Adverse Effect" means any material adverse effect on (i) the
Securities, (ii) the ability of the Company to perform its
obligations hereunder or under the Certificate of Designation,
the Warrants or the Registration Rights Agreement or (iii) the
business, operations, properties, prospects or financial
condition of the Company and its subsidiaries, taken as a whole.
b. Authorization; Enforcement. (i) The Company has the
requisite corporate power and authority to enter into and perform
its obligations under this Agreement, the Warrants and the
Registration Rights Agreement, to issue and sell the Units in
accordance with the terms hereof, to issue the Conversion Shares
upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation and to issue the Warrant
Shares upon exercise of the Warrants in accordance with the terms
of such Warrants; (ii) the execution, delivery and performance of
this Agreement, the Warrants and the Registration Rights
Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Preferred Shares and Warrants and
the issuance and reservation for issuance of the Conversion
Shares and Warrant Shares) have been duly authorized by the
Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, any
committee of the Board of Directors, or its stockholders is
required (under Rule 4460(i) promulgated by the National
Association of Securities Dealers ("NASD") or otherwise); (iii)
this Agreement has been duly executed and delivered by the
Company; and (iv) this Agreement constitutes, and, upon execution
and delivery by the Company of the Warrants and the Registration
Rights Agreement, such agreements will constitute, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms.
c. Capitalization. The capitalization of the Company as
of the date hereof, including the authorized capital stock, the
number of shares issued and outstanding, the number of shares
issuable and reserved for issuance pursuant to the Company=s
stock option plans, the number of shares issuable and reserved
for issuance pursuant to securities (other than the Preferred
Shares and Warrants) exercisable or exchangeable for, or
convertible into, any shares of capital stock and the number of
shares to be reserved for issuance upon conversion of the
Preferred Shares and exercise of the Warrants is set forth on
Schedule 3(c). All of such outstanding shares of capital stock
have been, or upon issuance in accordance with the terms of any
such warrants, options or preferred stock, will be, validly
issued, fully paid and non-assessable. No shares of capital
stock of the Company (including the Preferred Shares, the
Conversion Shares and the Warrant Shares) are subject to
preemptive rights or any other similar rights of the stockholders
of the Company or any liens or encumbrances. Except for the
Securities and as set forth on Schedule 3(c), as of the date of
this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights
convertible into or exercisable or exchangeable for, any shares
of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is
or may become bound to issue additional shares of capital stock
of the Company or any of its subsidiaries, and (ii) there are no
agreements or arrangements under which the Company or any of its
subsidiaries is obligated to register the sale of any of its or
their securities under the Securities Act (except the
Registration Rights Agreement). Except as set forth on Schedule
3(c), there are no securities or instruments containing
antidilution or similar provisions that will be triggered by the
issuance of the Securities in accordance with the terms of this
Agreement, the Certificate of Designation or the Warrants. The
Company has furnished to the Purchasers true and correct copies
of the Company's Certificate of Incorporation as in effect on the
date hereof ("Certificate of Incorporation"), the Company's By-
laws as in effect on the date hereof (the "By-laws"), and all
other instruments and agreements governing securities convertible
into or exercisable or exchangeable for capital stock of the
Company. The Certificate of Designation, in the form attached
hereto, will be duly filed prior to Closing with the Secretary of
State of the State of Connecticut and, upon the issuance of the
Preferred Shares in accordance with the terms hereof, each
Purchaser shall be entitled to the rights set forth therein.
d. Issuance of Shares. The Preferred Shares are duly
authorized and, upon issuance in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-
assessable, and free from all taxes, liens, claims and
encumbrances and will not be subject to preemptive rights or
other similar rights of stockholders of the Company and will not
impose personal liability on the holders thereof. The Conversion
Shares and Warrant Shares are duly authorized and reserved for
issuance, and, upon conversion of the Preferred Shares and
exercise of the Warrants in accordance with the terms thereof,
will be validly issued, fully paid and non-assessable, and free
from all taxes, liens, claims and encumbrances and will not be
subject to preemptive rights or other similar rights of
stockholders of the Company and will not impose personal
liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance
of this Agreement, the Warrants and the Registration Rights
Agreement by the Company, the performance by the Company of its
obligations under the Certificate of Designation, and the
consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance
and reservation for issuance, as applicable, of the Preferred
Shares, Warrants, Conversion Shares and Warrant Shares) will not
(i) result in a violation of the Certificate of Incorporation or
By-laws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment (including, without limitation, the triggering of any
anti-dilution provisions), acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of
its subsidiaries is a party, or result in a violation of any law,
rule, regulation, order, judgment or decree (including U.S.
federal and state securities laws and regulations and rules or
regulations of any self-regulatory organizations to which either
the Company or its securities are subject) applicable to the
Company or any of its subsidiaries or by which any property or
asset of the Company or any of its subsidiaries is bound or
affected (except, with respect to clause (ii), for such
conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). Neither the Company
nor any of its subsidiaries is in violation of its Certificate of
Incorporation, By-laws or other organizational documents and
neither the Company nor any of its subsidiaries is in default
(and no event has occurred which, with notice or lapse of time or
both, would put the Company or any of its subsidiaries in
default) under, nor has there occurred any event giving others
(with notice or lapse of time or both) any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its
subsidiaries is a party, except for actual or possible
violations, defaults or rights as would not, individually or in
the aggregate, have a Material Adverse Effect. The businesses of
the Company and its subsidiaries are not being conducted, and
shall not be conducted so long as a Purchaser owns any of the
Securities, in violation of any law, ordinance or regulation of
any governmental entity, except for possible violations the
sanctions for which either singly or in the aggregate would not
have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and the Registration Rights
Agreement, the Company is not required to obtain any consent,
approval, authorization or order of, or make any filing or
registration with, any court or governmental agency or any
regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement,
the Warrants or the Registration Rights Agreement or to perform
its obligations under the Certificate of Designation, in each
case in accordance with the terms hereof or thereof. The Company
is not in violation of the listing requirements of the Nasdaq
National Market ("NNM") and does not reasonably anticipate that
the Common Stock will be delisted by the NNM for the foreseeable
future.
f. SEC Documents, Financial Statements. Since December
18, 1996, the date on which the Company consummated its initial
public offering (the "IPO Date"), the Company has timely filed
(within applicable extension periods) all reports, schedules,
forms, statements and other documents required to be filed by it
with the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(all of the foregoing filed prior to the date hereof and after
the IPO Date, and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by
reference therein, together with the Company=s registration
statement on Form S-1 declared effective by the SEC as of
December 18, 1996, being hereinafter referred to herein as the
"SEC Documents"). The Company has delivered to the Purchasers
true and complete copies of the SEC Documents. As of their
respective dates, the SEC Documents complied in all material
respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. None of the statements made in any such SEC
Documents is, or has been, required to be amended or updated
under applicable law. As of their respective dates, the
financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations
of the SEC applicable with respect thereto. Such financial
statements have been prepared in accordance with U.S. generally
accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto, or (ii) in the
case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and
fairly present in all material respects the consolidated
financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to immaterial year-
end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents filed
prior to the date hereof, the Company has no liabilities,
contingent or otherwise, other than (i) liabilities incurred in
the ordinary course of business subsequent to the date of such
financial statements, (ii) liabilities not required by generally
accepted accounting principles ("GAAP") to be disclosed on a
balance sheet prepared in accordance with GAAP, and (iii)
obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally
accepted accounting principles to be reflected in such financial
statements, which liabilities and obligations referred to in
clauses (i), (ii) and (iii), individually or in the aggregate,
are not material to the financial condition or operating results
of the Company.
g. Absence of Certain Changes. Since December 31, 1996,
there has been no material adverse change and no material adverse
development in the business, properties, operations, prospects,
financial condition or results of operations of the Company and
its subsidiaries, taken as a whole, except as disclosed in
Schedule 3(g) or in the SEC Documents filed prior to the date
hereof.
h. Absence of Litigation. Except as disclosed in the SEC
Documents filed prior to the date hereof, there is no action,
suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Company
or any of its subsidiaries, threatened against or affecting the
Company, any of its subsidiaries, or any of their respective
directors or officers in their capacities as such, which could
reasonably be expected to have a Material Adverse Effect. There
are no facts which, if known by a potential claimant or
governmental authority, could give rise to a claim or proceeding
which, if asserted or conducted with results unfavorable to the
Company or any of its subsidiaries, could reasonably be expected
to have a Material Adverse Effect.
i. Intellectual Property. Each of the Company and its
subsidiaries owns or is licensed to use all patents, patent
applications, trademarks, trademark applications, trade names,
service marks, copyrights, copyright applications, licenses,
permits, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct
of its business as now being conducted and as described in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996. To the best knowledge of the Company, neither
the Company nor any subsidiary of the Company infringes or is in
conflict with any right of any other person with respect to any
Intangibles which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have
a Material Adverse Effect. Except as disclosed in the SEC
Documents, neither the Company nor any of its subsidiaries has
received written notice of any pending conflict with or
infringement upon such third party Intangibles, which alleged
pending conflict or alleged infringement, if adversely
determined, would result in a Material Adverse Effect. Except as
disclosed in the SEC Documents, the termination of the Company's
ownership of, or right to use, any single Intangible would not
result in a Material Adverse Effect on the Company. Neither the
Company nor any of its subsidiaries has entered into any consent
agreement, indemnification agreement, forbearance to ▇▇▇ or
settlement agreement with respect to the validity of the
Company's or its subsidiaries' ownership or right to use its
Intangibles and, to the best knowledge of the Company, there is
no reasonable basis for any such claim to be successful. The
Intangibles are valid and enforceable and no registration
relating thereto has lapsed, expired or been abandoned or
canceled or is the subject of cancellation or other adversarial
proceedings, and all applications therefor are pending and in
good standing. The Company and its subsidiaries have complied,
in all material respects, with their respective contractual
obligations relating to the protection of the Intangibles used
pursuant to licenses. To the best knowledge of the Company, no
person is infringing on or violating the Intangibles owned or
used by the Company or its subsidiaries.
j. Foreign Corrupt Practices. Neither the Company, nor any
of its subsidiaries, nor any director, officer, agent, employee
or other person acting on behalf of the Company or any subsidiary
has, in the course of his actions for, or on behalf of, the
Company, used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official
or employee.
k. Disclosure. All information relating to or concerning
the Company set forth in this Agreement or provided to the
Purchasers pursuant to Section 2(d) hereof and otherwise in
connection with the transactions contemplated hereby is true and
correct in all material respects and the Company has not omitted
to state any material fact necessary in order to make the
statements made herein or therein, in light of the circumstances
under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Company
or its subsidiaries or their respective businesses, properties,
prospects, operations or financial conditions, which has not been
publicly disclosed but, under applicable law, rule or regulation,
would be required to be disclosed by the Company in a
registration statement filed on the date hereof by the Company
under the Securities Act with respect to the primary issuance of
the Company's securities.
l. Acknowledgment Regarding Purchasers' Purchase of the
Units. The Company acknowledges and agrees that none of the
Purchasers is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this
Agreement or the transactions contemplated hereby, the
relationship between the Company and the Purchasers is "arms-
length" and any statement made by any Purchaser or any of its
representatives or agents in connection with this Agreement and
the transactions contemplated hereby is not advice or a
recommendation and is merely incidental to such Purchaser's
purchase of Securities and has not been relied upon by the
Company, its officers or directors in any way. The Company
further acknowledges that the Company's decision to enter into
this Agreement has been based solely on an independent evaluation
by the Company and its representatives.
m. Form S-3 Eligibility. The Company is currently
eligible to register the resale of its Common Stock on a
registration statement on Form S-3 under the Securities Act.
There exist no facts or circumstances that would prohibit or
delay the preparation and filing of a registration statement on
Form S-3 with respect to the Registrable Securities (as defined
in the Registration Rights Agreement).
n. No General Solicitation. Neither the Company nor any
distributor participating on the Company=s behalf in the
transactions contemplated hereby (if any) nor any person acting
for the Company, or any such distributor, has conducted any
"general solicitation," as such term is defined in Regulation D,
with respect to any of the Securities being offered hereby.
o. No Integrated Offering. Neither the Company, nor any
of its affiliates, nor any person acting on its or their behalf,
has directly or indirectly made any offers or sales of any
security or solicited any offers to buy any security under
circumstances that would require registration of the Securities
being offered hereby under the Securities Act or cause this
offering of Securities to be integrated with any prior offering
of securities of the Company for purposes of the Securities Act
or any applicable stockholder approval provisions.
p. No Brokers. The Company has taken no action which
would give rise to any claim by any person for brokerage
commissions, finder=s fees or similar payments by any Purchaser
relating to this Agreement or the transactions contemplated
hereby, except for dealings with The Zanett Securities
Corporation, whose commissions and fees will be paid by the
Company.
q. Acknowledgment of Dilution. The number of Conversion
Shares issuable upon conversion of the Preferred Shares may
increase in certain circumstances, including the circumstance
wherein the trading price of the Common Stock declines. The
Company's executive officers have studied and fully understand
the nature of the Securities being sold hereunder. The Company
acknowledges that its obligation to issue Conversion Shares upon
conversion of the Preferred Shares in accordance with the
Certificate of Designation is absolute and unconditional,
regardless of the dilution that such issuance may have on the
ownership interests of other stockholders. Taking the foregoing
into account, the Company's Board of Directors has determined in
its good faith business judgment that the issuance of the
Preferred Shares and Warrants hereunder and the consummation of
the other transactions contemplated hereby are in the best
interests of the Company and its stockholders.
r. Title. The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects
except such as are described in Schedule 3(r) or such as do not
materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries. Any real
property and facilities held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not materially interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries.
s. Tax Status. Except as set forth on Schedule 3(s), the
Company and each of its subsidiaries has made or filed all
foreign, federal, state and local income and all other tax
returns, reports and declarations required by any jurisdiction to
which it is subject (unless and only to the extent that the
Company and each of its subsidiaries has set aside on its books
provisions reasonably adequate for the payment of all unpaid and
unreported taxes) and has paid all taxes and other governmental
assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on
its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. Except as set forth on
Schedule 3(s), there are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such
claim. The Company has not executed a waiver with respect to any
statute of limitations relating to the assessment or collection
of any federal, state or local tax. Except as set forth on
Schedule 3(s), none of the Company's tax returns is presently
being audited by any taxing authority.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts
timely to satisfy each of the conditions described in Section 6
and Section 7 of this Agreement.
b. Form D: Blue Sky Laws. The Company agrees to file a
Form D with respect to the Securities as required under
Regulation D and to provide a copy thereof to each Purchaser
promptly after such filing. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the
Purchasers pursuant to this Agreement under applicable securities
or "blue sky" laws of the states of the United States or obtain
exemption therefrom, and shall provide evidence of any such
action so taken to the Purchasers on or prior to the Closing
Date.
c. Reporting Status. So long as any Purchaser
beneficially owns any of the Securities, the Company shall timely
file all reports required to be filed with the SEC pursuant to
the Exchange Act, and the Company shall not terminate its status
as an issuer required to file reports under the Exchange Act even
if the Exchange Act or the rules and regulations thereunder would
permit such termination. In addition, the Company shall take all
actions necessary to continue to be eligible to register the
resale of its Common Stock on a registration statement on Form S-
3 under the Securities Act.
d. Use of Proceeds. The Company shall use the proceeds
from the sale of the Preferred Shares and Warrants as set forth
in Schedule 4(d).
e. Expenses. Except as otherwise provided herein and in
Section 5 of the Registration Rights Agreement, each party hereto
shall be responsible for its own expenses incurred in connection
with the negotiation, preparation, execution, delivery and
performance of this Agreement and the other agreements to be
executed in connection herewith.
f. Financial Information. The Company agrees to send the
following reports to each Purchaser until such Purchaser
transfers, assigns or sells all of its Securities: (i) within ten
(10) days after the filing with the SEC, a copy of its Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q, its
proxy statements and any Current Reports on Form 8-K; and (ii)
within one (1) day after release, copies of all press releases
issued by the Company or any of its subsidiaries.
g. Reservation of Shares. The Company shall at all times
have authorized and reserved for the purpose of issuance a
sufficient number of shares of Common Stock to provide for the
full conversion of the outstanding Preferred Shares and issuance
of the Conversion Shares in connection therewith, the full
exercise of the Warrants and the issuance of the Warrant Shares
in connection therewith subject to and as otherwise required by
the Certificate of Designation and the Warrants.
h. Listing. The Company shall promptly secure the listing
of the Conversion Shares and Warrant Shares upon each national
securities exchange or automated quotation system, if any, upon
which shares of Common Stock are then listed (subject to official
notice of issuance) and shall maintain, so long as any Purchaser
(or any of their affiliates) own any Securities, such listing of
all Conversion Shares and Warrant Shares from time to time
issuable upon conversion of the Preferred Shares and exercise of
the Warrants. The Company will use its best efforts to continue
the listing and trading of its Common Stock on the NNM, the New
York Stock Exchange ("NYSE"), the American Stock Exchange
("AMEX") or the Nasdaq SmallCap Market ("SmallCap") and will
comply in all respects with the Company's reporting, filing and
other obligations under the bylaws or rules of the NASD and such
exchanges, as applicable. The Company shall promptly provide to
each holder of Preferred Shares and/or Warrants copies of any
notices it receives regarding the continued eligibility of the
Common Stock for trading on the NNM or, if applicable, any
securities exchange or automated quotation system on which
securities of the same class or series issued by the Company are
then listed or quoted, if any.
i. Corporate Existence. So long as a Purchaser
beneficially owns any Preferred Shares or Warrants, the Company
shall maintain its corporate existence, and in the event of a
merger, consolidation or sale of all or substantially all of the
Company=s assets, the Company shall ensure that the surviving or
successor entity in such transaction (i) assumes the Company=s
obligations hereunder and under the Certificate of Designation,
the Warrants and the agreements and instruments entered into in
connection herewith regardless of whether or not the Company
would have had a sufficient number of shares of Common Stock
authorized and available for issuance in order to effect the
conversion of all Preferred Shares and exercise in full of all
Warrants outstanding as of the date of such transaction and (ii)
is a publicly traded corporation whose common stock is listed for
trading on the NNM, SmallCap, NYSE or AMEX.
j. No Integrated Offerings. The Company shall not make
any offers or sales of any security (other than the Securities)
under circumstances that would require registration of the
Securities being offered or sold hereunder under the Securities
Act or cause this offering of Securities to be integrated with
any other offering of securities by the Company for purposes of
any stockholder approval provision applicable to the Company or
its securities.
k. No Manipulation. So long as a Purchaser beneficially
owns any Preferred Shares, neither the Purchaser nor any person
acting on behalf of such Purchaser shall take any action intended
to decrease the trading price of the Company=s Common Stock
during any period in which the Conversion Price (as defined in
the Certificate of Designation) is being computed for purposes of
any conversion of Preferred Shares under the Certificate of
Designation. Notwithstanding the foregoing, the provisions of
this Section 4(k) shall not prohibit a sale by a Purchaser of
shares of Common Stock effected on the date on which a notice of
conversion of Preferred Shares is delivered to the Company
entitling such Purchaser to receive a number of shares of Common
Stock at least equal to the number of shares so sold.
l. Legal Compliance. The Company shall conduct its
business and the business of its subsidiaries in compliance with
all laws, ordinances or regulations of governmental entities
applicable to such businesses, except where the failure to do so
would not have a Material Adverse Effect.
m. Shareholder Approval. The Company shall hold an annual
or special meeting of its shareholders no later than May 31, 1998
and use its best efforts to obtain at such meeting such approvals
of the Company's shareholders as may be required to issue all of
the shares of Common Stock issuable upon conversion of, or
otherwise with respect to, the Preferred Shares and the shares of
Common Stock issuable upon exercise of, or otherwise with respect
to, the Warrants without violating NASD Rule 4460(i) (or any
successor rule thereto which may then be in effect) (the
"Shareholder Approval"). The Company shall comply with the
filing and disclosure requirements of Section 14 promulgated
under the Exchange Act in connection with the solicitation,
acquisition and disclosure of such Shareholder Approval. The
Company represents and warrants that its Board of Directors has
unanimously recommended that the Company's shareholders approve
the proposal contemplated by this Section 4(m) and shall so
indicate such recommendation in the proxy statement used to
solicit such Shareholder Approval.
n. Voting by Purchasers. Each Purchaser hereby
acknowledges that the Company also intends to solicit the
approval by its shareholders at the meeting referred to in
Section 4(m) above of an amendment to the Certificate of
Incorporation increasing the number of authorized shares of
Common Stock thereunder. Each Purchaser hereby agrees that, to
the extent it is permitted to vote at such meeting pursuant to
applicable law, the Certificate of Designation and the provisions
of the Certificate of Incorporation and By-laws, it will vote in
favor of such proposal to increase the number of authorized
shares of Common Stock.
5. TRANSFER AGENT INSTRUCTIONS.
a. The Company shall instruct its transfer agent to issue
certificates, registered in the name of each Purchaser or its
nominee, for the Conversion Shares and the Warrant Shares in such
amounts as specified from time to time by such Purchaser to the
Company upon conversion of the Preferred Shares or exercise of
the Warrants, as applicable. To the extent and during the
periods provided in Section 2(f) and 2(g) of this Agreement, all
such certificates shall bear the restrictive legend specified in
Section 2(g) of this Agreement.
b. The Company warrants that no instruction other than
such instructions referred to in this Section 5, and stop
transfer instructions to give effect to Section 2(f) hereof in
the case of the transfer of the Conversion Shares or Warrant
Shares prior to registration of the Conversion Shares and Warrant
Shares under the Securities Act or without an exemption
therefrom, will be given by the Company to its transfer agent and
that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in
this Agreement and the Registration Rights Agreement. Nothing in
this Section shall affect in any way each Purchaser's obligations
and agreement set forth in Section 2(g) hereof to resell the
Securities pursuant to an effective registration statement or
under an exemption from the registration requirements of
applicable securities law.
c. If a Purchaser provides the Company and the transfer
agent with an opinion of counsel, which opinion of counsel shall
be in form, substance and scope customary for opinions of counsel
in comparable transactions, to the effect that the Securities to
be sold or transferred may be sold or transferred pursuant to an
exemption from registration, or a Purchaser provides the Company
with reasonable assurances that such Securities may be sold under
Rule 144, the Company shall permit the transfer, and, in the case
of the Conversion Shares and Warrant Shares, promptly instruct
its transfer agent to issue one or more certificates in such name
and in such denominations as specified by such Purchaser.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell
the Units to a Purchaser hereunder is subject to the
satisfaction, at or before the Closing Date, of each of the
following conditions thereto, provided that these conditions are
for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion:
a. Each Purchaser shall have executed this Agreement and
the Registration Rights Agreement, and delivered the same to the
Company.
b. Each Purchaser shall have delivered the Purchase Price
for the Units in accordance with Section 1(b) above.
c. The representations and warranties of each Purchaser
shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date,
which representations and warranties shall be true and correct as
of such date), and such Purchaser shall have performed, satisfied
and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by such Purchaser at or
prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase the
Units to be purchased by it at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for such
Purchaser's sole benefit and may be waived by such Purchaser at
any time in the Purchaser=s sole discretion:
a. The Company shall have executed this Agreement, the
Warrants and the Registration Rights Agreement, and delivered the
same to such Purchaser.
b. The Certificate of Designation shall have been accepted
for filing with the Secretary of State of the State of
Connecticut and a copy thereof certified by the Secretary of
State of Connecticut shall have been delivered to such Purchaser.
c. The Company shall have delivered to such Purchaser duly
executed Warrants and certificates (in such denominations as such
Purchaser shall request) representing the Preferred Shares being
so purchased by such Purchaser in accordance with Section 1(b)
above.
d. The Common Stock shall be authorized for quotation and
listed on the NNM and trading in the Common Stock (or the NNM
generally) shall not have been suspended by the SEC or the NNM.
e. The representations and warranties of the Company shall
be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date,
which representations and warranties shall be true and correct as
of such date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the
Closing Date. The Purchasers shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as
of the Closing Date to the foregoing effect and as to such other
matters as may be reasonably requested by the Purchasers.
f. No litigation, statute, rule, regulation, executive
order, decree, ruling, injunction, action or proceeding shall
have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction or any self-
regulatory organization having authority over the matters
contemplated hereby which questions the validity of, or
challenges or prohibits the consummation of any of the
transactions contemplated by this Agreement.
g. Such Purchaser shall have received an opinion of the
Company=s counsel, dated as of the Closing Date, in form, scope
and substance reasonably satisfactory to the Purchaser and in
substantially the form of Exhibit D attached hereto.
h. The Company shall have delivered evidence reasonably
satisfactory to the Purchasers that the Company's transfer agent
has agreed to act in accordance with irrevocable instructions in
the form attached hereto as Exhibit E.
i. The aggregate number of Units being purchased hereunder
by all Purchasers hereunder shall be 4,500.
j. There shall have been no material adverse changes and
no material adverse developments in the business, properties,
operations, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole,
since the date hereof, and no information, of which the
Purchasers are not currently aware, shall come to the attention
of the Purchasers that is materially adverse to the Company.
k. Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board of the
Company, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer of the
Company, shall have executed and delivered to the Purchasers
letter agreements, in the form attached hereto as Exhibit F,
pursuant to which they agree to vote all shares of Common Stock
which they own or control in favor of the shareholder proposal
contemplated by Section 4(m) hereof.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be
performed in the State of New York. The Company and the
Purchasers irrevocably consent to the jurisdiction of the United
States federal courts and the state courts located in the City of
New York in the State of New York in any suit or proceeding based
on or arising under this Agreement and irrevocably agree that all
claims in respect of such suit or proceeding may be determined in
such courts. The Company irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding.
The Company further agrees that service of process upon the
Company mailed by first class mail shall be deemed in every
respect effective service of process upon the Company in any such
suit or proceeding. Nothing herein shall affect the right of any
Purchaser to serve process in any other manner permitted by law.
The Company agrees that a final non-appealable judgment in any
such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other
lawful manner.
b. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party. This
Agreement, once executed by a party, may be delivered to the
other parties hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause
the manually executed Execution Page(s) to be physically
delivered to the other party within five (5) days of the
execution hereof.
c. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement.
d. Severability. If any provision of this Agreement shall
be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement or the validity
or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of
the parties with respect to the matters covered herein and
therein. No provision of this Agreement may be waived other than
by an instrument in writing signed by the party to be charged
with enforcement and no provision of this Agreement may be
amended other than by an instrument in writing signed by the
Company and each Purchaser.
f. Notices. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or
registered mail (return receipt requested) or delivered
personally or by courier or by confirmed telecopy, and shall be
effective five days after being placed in the mail, if mailed, or
upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party.
The addresses for such communications shall be:
If to the Company:
Accent Color Sciences, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
with a copy to:
Murtha, Cullina, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
CityPlace I
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esquire
If to any Purchaser, to such address set forth under such
Purchaser's name on the Execution Page hereto executed by such
Purchaser.
Each party shall provide notice to the other parties of any
change in address.
g. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their
successors and assigns. Except as provided herein or therein,
neither the Company nor any Purchaser shall assign this
Agreement, the Registration Rights Agreement or the Warrants or
any rights or obligations hereunder or thereunder.
Notwithstanding the foregoing, any Purchaser may assign its
rights hereunder to any of its "affiliates" (as that term is
defined under the Exchange Act) who are Accredited Investors
without the consent of the Company, or to any other person or
entity with the consent of the Company, which consent shall not
be unreasonably withheld. This provision shall not limit a
Purchaser=s right to transfer the Securities pursuant to the
terms of the Certificate of Designation, the Warrants and this
Agreement or to assign such Purchaser=s rights hereunder and/or
thereunder to any such transferee.
h. Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.
i. Survival. The representations and warranties of the
Company and the agreements and covenants set forth in Sections 3,
4, 5 and 8 shall survive the Closing hereunder notwithstanding
any investigation conducted by or on behalf of any Purchasers.
Moreover, none of the representations and warranties made by the
Company herein shall act as a waiver of any rights or remedies a
Purchaser may have under applicable federal or state securities
laws. The Company agrees to indemnify and hold harmless each
Purchaser and each of such Purchaser=s officers, directors,
employees, partners, members, agents and affiliates for loss or
damage arising as a result of or related to any breach or alleged
breach by the Company of any of its representations or covenants
set forth herein, including advancement of reasonable expenses as
they are incurred.
j. Publicity. The Company and each Purchaser shall have
the right to review before issuance any press releases, SEC, NNM
or NASD filings, or any other public statements with respect to
the transactions contemplated hereby; provided, however, that the
Company shall be entitled, without the prior review of the
Purchasers, to make any press release or SEC, NNM or NASD filings
with respect to such transactions as is required by applicable
law and regulations (although the Purchasers shall be consulted
by the Company in connection with any such press release and
filing prior to its release and shall be provided with a copy
thereof).
k. Further Assurances. Each party shall do and perform,
or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
l. Termination. In the event that the Closing Date shall
not have occurred on or before January 12, 1998, unless the
parties agree otherwise, this Agreement shall terminate at the
close of business on such date. Notwithstanding any termination
of this Agreement, any party not in breach of this Agreement
shall preserve all rights and remedies it may have against
another party hereto for a breach of this Agreement prior to or
relating to the termination hereof.
m. Joint Participation in Drafting. Each party to this
Agreement has participated in the negotiation and drafting of
this Agreement, the Certificate of Designation, the Warrants and
the Registration Rights Agreement. As such, the language used
herein and therein shall be deemed to be the language chosen by
the parties hereto to express their mutual intent, and no rule of
strict construction will be applied against any party to this
Agreement.
n. Equitable Relief. The Company acknowledges that a
breach by it of its obligations hereunder will cause irreparable
harm to a Purchaser by vitiating the intent and purpose of the
transactions contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its
obligations hereunder (including, but not limited to, its
obligations pursuant to Section 5 hereof) will be inadequate and
agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Agreement (including, but not
limited to, its obligations pursuant to Section 5 hereof), that a
Purchaser shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach and requiring
immediate issuance and transfer of the Securities, without the
necessity of showing economic loss and without any bond or other
security being required.
IN WITNESS WHEREOF, the undersigned Purchaser and the
Company have caused this Agreement to be duly executed as of the
date first above written.
ACCENT COLOR SCIENCES, INC.
By:
Name:
Title:
PURCHASER:
[NAME]
By:
By:
Name:
Title:
RESIDENCE:
ADDRESS:
AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased:
Purchase Price ($1,000 per Unit): $
IN WITNESS WHEREOF, the undersigned Purchaser and the
Company have caused this Agreement to be duly executed as of the
date first above written.
ACCENT COLOR SCIENCES, INC.
By:
Name:
Title:
PURCHASER:
RGC International Investors, LDC
By: ▇▇▇▇ ▇▇▇▇ Capital Management, L.P., as
Investment Manager
By: RGC General Partner Corp., as
General Partner
By:
Name:
Title:
RESIDENCE: Cayman Islands
ADDRESS: ▇/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 2,500
Purchase Price ($1,000 per Unit):$2,500,000
IN WITNESS WHEREOF, the undersigned Purchaser and the
Company have caused this Agreement to be duly executed as of the
date first above written.
ACCENT COLOR SCIENCES, INC.
By:
Name:
Title:
PURCHASER:
Zanett Lombardier, Ltd.
By:
Name:
Title:
RESIDENCE: Cayman Islands
ADDRESS: Zanett Lombardier, Ltd.
c/o Bank ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ House, P.O. Box 1100
Grand Cayman, Cayman Islands
British West Indies
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
c/o The Zanett Securities Corporation
Tower 49, 31st Floor
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 1,940
Purchase Price ($1,000 per Unit):$1,940,000
IN WITNESS WHEREOF, the undersigned Purchaser and the
Company have caused this Agreement to be duly executed as of the
date first above written.
ACCENT COLOR SCIENCES, INC.
By:
Name:
Title:
PURCHASER:
______ ___
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
RESIDENCE: Italy
ADDRESS: c/o The Zanett Securities Corporation
Tower 49, 31st Floor
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AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 60
Purchase Price ($1,000 per Unit):$60,000
