Exhibit 10.28
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made this ____ day
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of February 1996, by ACCENT COLOR SCIENCES, INC., a Connecticut corporation
(the "Company") for the benefit of XEROX CORPORATION, a New York corporation
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("Xerox"), and each other Purchaser (individually a "Purchaser" and
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collectively, the "Purchasers") entering into a Warrant Purchase Agreement (the
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"Warrant Agreement").
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1. Securities Laws Representations and Covenants of Purchaser.
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The registration rights granted pursuant to Sections 2.2 and 2.3 of this
Agreement shall have no force or effect until such time as the Company has
otherwise become obligated to file periodic or other reports pursuant to Section
13 of the Securities Exchange Act of 1934, as amended (the "1934 Act").
2. Registration Rights.
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2.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) "Common Stock" shall mean the common stock, no par value, of the
Company.
(c) "Form S1. Form SB-1. Form S-2. Form SB-2 and Form S-3" shall mean
Form S-1, Form SB-1, Form S-2, Form SB-2 or Form S-3, respectively, promulgated
by the Commission or any substantially similar or successor form then in effect.
(d) The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement.
(e) "Registrable Securities" shall mean the Shares until such time as
such shares become eligible for sale under subparagraph (k) of Rule 144 or any
successor thereto.
(f) "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 2, including, without limitation, all federal
and state registration, qualification and filing fees, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such Registration
and the reasonable fees and disbursements of counsel for the Selling
Shareholders, as selling shareholders.
(g) "Registration Statement" shall mean Form S-1, Form SB-1, Form
S-2, Form SB-2 or Form S-3, whichever is applicable.
(h) "Restriction Termination Date" shall mean, with respect to any
Registrable Securities, the earliest of (i) the date that such Registrable
Securities shall have been Registered and sold or otherwise disposed of in
accordance with the intended method of distribution by the seller or sellers
thereof set forth in the Registration Statement covering such securities or
transferred in compliance with Rule 144, and (ii) the date that an opinion of
counsel to the Company containing reasonable assumptions (which opinion shall be
subject to the reasonable approval of counsel to any affected Purchaser) shall
have been rendered to the effect that any restrictive legend placed upon the
Registrable Securities under the Securities Act can be properly removed and such
legend shall have been removed.
(i) "Rule 144" shall mean Rule 144 promulgated by the Commission
pursuant to the Securities Act and any successor rules thereto.
(j) "Purchasers" shall mean, collectively, the Purchasers (including
Xerox), their assignees and transferees, and individually, a Purchaser
(including Xerox) and any transferee or assignee of such Purchaser.
(k) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(l) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement.
(m) "Selling Shareholders" shall mean a holder of Registrable
Securities who requests Registration under Section 2 herein.
(n) "Shares" shall mean the Common Stock issued to the Purchasers
pursuant to various Warrant agreements regardless of whether such Warrant
Agreements have been or in the future are entered into between the Company and
any Purchaser.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Warrant Agreement.
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2.2 Required Registration. If the Company shall be requested by holders
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of at least a majority of the outstanding Shares to effect the Registration of
Registrable Securities, then the Company shall promptly give written notice of
such proposed Registration to all holders of Shares, and thereupon the Company
shall promptly use its best efforts to effect the Registration of the
Registrable Securities that the Company has been requested to Register for
disposition as described in the request of such holders of Shares and in any
response received from any of the holders of Shares within ten (10) days or such
longer period as shall be set forth in the notice, after the giving of the
written notice by the Company; provided however, that the Company shall not be
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obligated to effect any Registration except in accordance with the following
provisions:
(a) The Company shall not be obligated to file and cause to become
effective more than one (1) registration statement in which Registrable
Securities are Registered pursuant to this Section 2.2.
(b) Notwithstanding the foregoing, the Company may include in each
such Registration requested pursuant to this Section 2.2 any authorized but
unissued shares of Common Stock (or authorized treasury shares) for sale by the
Company or any issued and outstanding shares of Common Stock for sale by others,
provided however, that, if the number of shares of Common Stock so included
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pursuant to this clause (b) exceeds the number of Registrable Securities
requested by the holders of Shares requesting such Registration, then such
Registration shall be deemed to be a Registration in accordance with and
pursuant to Section 2.3; and provided further however that the inclusion of such
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previously authorized but unissued shares of Common Stock by the Company or
issued and outstanding shares of Common Stock by others in such Registration
shall not prevent the holders of Shares requesting such Registration from
registering the entire number of Registrable Securities requested by them.
(c) The Company shall not be required to file a registration
statement pursuant to this Section 2: (i) within six (6) months after any other
registration by the Company (other than under "Excluded Forms," as defined in
Section 2.3 (a) below) or (ii) for six (6) months after the request for
registration under this Section 2.2 if the Company is then engaged in
negotiations regarding a material transaction which has not otherwise been
publicly disclosed, or such shorter period ending on the date, whichever first
occurs, that such transaction is publicly disclosed, abandoned or consummated.
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2.3 Piggyback Registration
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(a) Each time that the Company proposes to Register a public offering
solely of its Common Stock (not including an offering of Common stock issuable
upon conversion or exercise of other securities), other than pursuant to a
Registration Statement on Form S-4 or Form S-8 or similar or successor forms
(collectively,"Excluded Forms"), the Company shall promptly give written notice
of such proposed Registration to all holders of Shares, which shall offer such
holders the right to request inclusion of any Registrable Securities in the
proposed Registration.
(b) Each holder of Shares shall have ten (10) days or such longer
period as shall be set forth in the notice from the receipt of such notice to
deliver to the Company a written request specifying the number of shares of
Registrable Securities such holder intends to sell and the holder's intended
plan of disposition.
(c) In the event that the proposed Registration by the Company is, in
whole or in part, an underwritten public offering of securities of the Company,
any request under Section 2.3 (b) may specify that the Registrable Securities be
included in the underwriting on the same terms and conditions as the shares of
Common Stock, if any, otherwise being sold through underwriters under such
Registration.
(d) Upon receipt of a written request pursuant to Section 2.3 (b),
the Company shall promptly use its best efforts to cause all such Registrable
Securities to be Registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering, determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with any other issued and outstanding
shares of Common Stock proposed to be included therein by holders other than the
holders of Registrable Securities (such other shares hereinafter collectively
referred to as the "Other Shares"), would interfere with the successful
marketing of the securities proposed to be included in the underwritten public
offering, then the number of such shares to be included in such underwritten
public offering shall be reduced, and shares shall be excluded from such
underwritten public offering in a number deemed necessary by such managing
underwriter, first by excluding shares held by the directors, officers,
employees and founders of the Company, and then, to the extent necessary, by
excluding Registrable Securities participating in such underwritten public
offering, pro rata based
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on the number of shares of Registrable Securities each such holder proposed to
include.
(f) All Shares that are not included in the underwritten public
offering shall be withheld from the market by the holders thereof for a period,
not to exceed 12 months following a public offering, that the managing
underwriter reasonably determines as necessary in order to effect the
underwritten public offering. The holders of such Shares shall execute such
documentation as the managing underwriter reasonably requests to evidence this
lock-up.
2.4 Preparation and Filing. If and whenever the Company is under an
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obligation pursuant to the provisions of this Section 2 to use its best efforts
to effect the Registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its best efforts to cause
such Registration Statement to become and remain effective in accordance with
Section 2.4( b) hereof, keeping each Selling Shareholder advised as to the
initiation, progress and completion of the Registration;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statements-and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for nine months and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Registrable Securities
covered by such registration statement;
(c) furnish to each Selling Shareholder such number of copies of any
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as such Selling Shareholder may reasonably request in order to
facilitate the public sale or other disposition of such Registrable Securities;
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as each Selling Shareholder shall reasonably
request and do any and all other acts or things which may be necessary or
advisable to enable such holder to consummate the public sale or other
disposition in such jurisdictions of such Registrable Securities; provided
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however, that the Company shall not be required to consent to general service of
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process, qualify to do business as a foreign corporation where it would not be
otherwise required to qualify or submit to liability for state or local taxes
where it is not liable for such taxes; and
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(e) at any time when a prospectus covered by such Registration
Statement is required to be delivered under the Securities Act within the
appropriate period mentioned in Section 2.3 (b) hereof, notify each Selling
Shareholder of the happening of any event as a result of which the prospectus
included in such Registration, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing and, at the request of such seller, prepare,
file and furnish to such seller a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statement therein not misleading in
the light of the circumstances then existing.
2.5 Expenses. The Company shall pay all Registration Expenses incurred by
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the Company in complying with this Section 2; provided however that all
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underwriting discounts and selling commissions applicable to the Registrable
Securities covered by registrations effected pursuant to section 2.2 hereof
shall be borne by the seller or sellers thereof, inproportion to the number of
Registrable Securities sold by such seller or sellers.
2.6 Information Furnished by Purchaser. It shall be a condition precedent
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to the Company's obligations under this Agreement as to any Selling Shareholder
that each Selling Shareholder furnish to the Company in writing such information
regarding such Selling Shareholder and the distribution proposed by such Selling
Shareholder as the Company may reasonably request.
2.7 Indemnification.
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2.7.1 Company's Indemnification of Purchasers. The Company shall
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indemnify each Selling Shareholder, each of its officers, directors and
constituent partners, and each person controlling such Selling Shareholder, and
each underwriter thereof, if any, and each of its officers, directors,
constituent partners, and each person who controls such underwriter, against all
claims, losses, damages or liabilities (or actions in respect thereof) suffered
or incurred by any of them, to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or any related
Registration Statement incident to any such Registration, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to actions or inaction required of the
Company in
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connection with any such Registration; and the Company will reimburse each such
Selling Shareholder, each such underwriter, each of their officers, directors
and constituent partners and each person who controls any such Selling
Shareholder or underwriter, for any legal and any other expenses as reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided however, that the indemnity contained in
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this Section 2.7.1 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of the Company (which consent shall not unreasonably be withheld); and
provided however, that the Company will not be liable in any such case to the
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extent that any such claim, loss, damage, liability or expense arises out of or
is based upon any untrue statement or omission based upon written information
furnished to the Company by such Selling Shareholder, underwriter, controlling -
person or other indemnified person and stated to be for use in connection with
the offering of securities of the Company.
2.7.2 Selling Shareholder's Indemnification of Company.
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Each Selling Shareholder shall indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's Registrable Securities
covered by a Registration Statement, each person who controls the Company or
such underwriter within the meaning of the Securities Act, and each other
Selling Shareholder, each of its officers, directors and constituent partners
and each person controlling such other Selling Shareholder, against all claims,
losses, damages and liabilities (or actions in respect thereof) suffered or
incurred by any of them and arising out of or based upon any untrue statement
(or alleged untrue statement) of a material fact contained in such Registration
Statement or related prospectus, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Selling Shareholder
of any rule or regulation promulgated under the Securities Act applicable to
such Selling Shareholder and relating to actions or inaction required of such
Selling Shareholder in connection with the Registration of the Registrable
Securities pursuant to such Registration Statement; and will reimburse the
Company, such other Selling Shareholders, such directors, officers, partners,
persons, underwriters ' and controlling persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action; such indemnification and
reimbursement shall be to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such Registration Statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by such Selling
Shareholder and stated to be specifically for use in connection with the
offering of Registrable Securities. Anything in the foregoing to the contrary
notwithstanding, in no event shall the aggregate obligations of a Selling
Shareholder under this
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Section 2.7.2 to all parties that may be entitled to indemnification hereunder
exceed the amount of proceeds received by such Selling Shareholder in connection
with such offering of Registrable Securities.
2.7.3 Indemnification Procedure. Promptly after receipt by an
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indemnified party under this Section 2.7 of notice of the commencement of any
action which may give rise to a claim for indemnification hereunder, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 2.7, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense of such claim, and shall be entitled to select counsel for the defense
of such claim with the approval of any parties entitled to indemnification,
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, the parties entitled to indemnification shall have the, right to
employ, separate counsel (reasonably satisfactory to the indemnifying party) to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified parties unless the named parties to
such action or proceedings include both the indemnifying party and the
indemnified parties and the indemnifying party or such indemnified parties shall
have been advised by counsel that there are one or more legal defenses available
to the indemnified parties which are different from or additional to those
available to the indemnifying party (in which case, if the indemnified parties
notify the indemnifying party in writing that they elect to employ separate
counsel at the reasonable expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified parties, it being understood, however,
that the indemnifying party shall not, in connection with any such action or
proceeding or separate or substantially similar or related action or proceeding
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate counsel at any time for all indemnified parties, which counsel shall be
designated in writing by the Purchasers of a majority of the Registrable
Securities).
2.7.4 Contribution. If the indemnification provided for in this
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Section 2.7 from an indemnifying party is unavailable to an indemnified party
hereunder in respect to any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the statements
or omissions which result in such losses, claims, damages, liabilities or
expenses, as well as any
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other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party and the parties'
relative intent, knowledge, access to information supplied by such indemnifying
party or indemnified party and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action, suit, proceeding or
claim.
3. Covenants of the Company. The Company agrees to:
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(a) Notify the holders of Registrable Securities included in a
Registration Statement of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time.
(b) If the Common Stock is then listed on a national securities
exchange, use its best efforts to cause the Registrable Securities to be listed
on such exchange. If the Common Stock is not then listed on a national
securities exchange, use its best efforts to facilitate the reporting of the
Registrable Securities on NASDAQ.
(c) Take all other reasonable actions necessary to expedite and
facilitate disposition of the Registrable Securities by the holders thereof
pursuant to the Registration Statement.
(d) With a view to making available to the holders of Registrable
Securities the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit the
Purchasers to sell securities of the Company to the public without registration,
the Company, after it has become obligated to file periodic or other reports
pursuant to Section 13 of the 1934 Act agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after 90 days after the
effective date of the first Registration Statement filed by the Company for the
offering of its securities to the general public;
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(ii) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Securities and Exchange Act of 1934 (the "1934 Act"); and
(iii) furnish to each holder of Shares, so long as such holder
of Shares owns any Shares, forthwith upon written request: (a) a written
statement by the Company that it has complied with the reporting requirements of
Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company), the Securities Act and the 1934
Act (at any time after it has become subject to such reporting requirements),
(b) a copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company and (c) such other
information as may be reasonably requested and as is publicly available in
availing the holders of Shares of any rule or regulation of the Commission which
permits the selling of any such securities without registration.
(e) Prior to the filing of the Registration Statement or any
amendment thereto (whether pre-effective or post-effective), and prior to the
filing of any prospectus or prospectus supplement related thereto, the Company
will provide each Selling Shareholder with copies of all pages thereto, if any,
which reference such Selling.
4. Miscellaneous.
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(a) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed (i) if to the
Company, at Accent Color Sciences, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and (ii) if to a Purchaser, at the address set forth in his Warrant
Agreement, or at such other address as each such party furnishes by notice given
in accordance with this Section 4 (a).
(b) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
will not operate as a waiver thereof. No waiver will be effective unless and
until it is in writing and signed by the party giving the waiver.
(c) This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Connecticut, as such laws
are applied by Connecticut courts to agreements entered into and to be performed
in Connecticut by and between residents of Connecticut. In the event that any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall
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be deemed modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
(d) This Agreement may not be assigned by the Purchaser other than to
the purchaser or transferee of more than 50% of the Purchaser's Shares, provided
that such assignee is not engaged in a business in which the Company is engaged.
(e) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by the Company and the holders of a majority in interest
of the Registrable Securities.
(f) This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which together shall be deemed to be one and the same Agreement.
IN WITNESS WHEREOF, the Company has executed this Agreement for the benefit
of the Purchasers by its duly authorized officer as of the date first above
written.
ACCENT COLOR SCIENCES, INC.
By:_________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
and Chief Executive Officer
Agreed and Accepted this
____ day of October, 1996
XEROX CORPORATION
By:_________________________
Name:
Title:
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