Exhibit A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this _________ day
of _________________ 1996, by ACCENT COLOR SCIENCES, INC., a Connecticut
corporation (the "Company") for the benefit of each Purchaser (individually a
"Purchaser' and collectively, the "Purchasers") entering into a Common Stock
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Purchase Agreement (the "Purchase Agreement") with the Company of even date
herewith.
BACKGROUND
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Pursuant to the Common Stock Purchase Agreement, the Company has offered for
sale up to 250,000 shares of the Company's Common Stock (the "Shares"). In
order to induce the Purchasers to purchase the Shares, the Company has agreed to
provide the registration rights set forth in this Agreement.
1. Securities Laws Representations and Covenants of Purchaser.
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This Agreement is made for the benefit of the Purchasers in reliance upon each
Purchaser's representations to the Company, contained in Section 4 of the Common
Stock Purchase Agreement.
2. Registration Rights.
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2.1 Certain Definitions. As used in Us Agreement, the following
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terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
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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
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the Company.
(c) "Form S-I, Form SB-I, Form S-2, Form SB-2 and Form S-3"
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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 form then in effect.
(d) The terms "Register", "Registered" and "Registration" refer
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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 so long as
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such shares are ineligible for sale under subparagraph (k)
of Rule 144.
(f) "Registration Expenses" shall mean all expenses incurred by
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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,
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Form S-2, Form SB-2 or Form S-3, whichever is applicable.
(h) "Registration Termination Date" shall mean, with respect to
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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 the legend referred to in Section 4.3(b) of the Common
Stock Purchase Agreement can be properly removed and such
legend shall have been removed.
(i) "Rule 144" shall mean Rule 144 promulgated by the Commission
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pursuant to the Securities Act.
(j) "Purchasers" shall mean, collectively, the Purchasers,
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their assignees and transferees, and individually, a
Purchaser and any transferee or assignee of such Purchaser.
(k) "Securities Act" shall mean the Securities Act of 1933,
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as amended.
(l) "Selling Expenses" shall mean all underwriting discounts
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and selling commissions applicable to the sale of
Registrable Securities pursuant to this Agreement.
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(m) "Selling Shareholders" shall mean a holder of Registrable
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Securities who requests Registration under Section 2
herein.
(n) "Shares" shall mean the Common Stock issued to the
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Purchasers pursuant to various Common Stock Purchase
Agreements and warrant purchase agreements.
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Common Stock Purchase Agreement.
2.2. [Intentionally Omitted]
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2.3 Required Registration. If the Company shall be requested by
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holders of at least a majority of the outstanding Shares (other
than Shares which have been previously sold in a public offering)
to effect the Registration of Registrable Securities, then the
Company shall promptly give written notice of such proposed
Registration to all holders of such 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 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 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 two (2) registration statements
in which Registrable Securities are Registered pursuant to
this Section 2.3.
(b) Any offering of Registrable Securities in accordance with a
Registration pursuant to this Section 2.3 shall be an
underwritten offering through one or more underwriters
acceptable to the holders of Registrable Securities
requesting such Registration and the Company. The
underwriter or managing underwriter of such Registration
shall be authorized to determine the maximum amount of
Registrable Securities which in the judgment of such
underwriter may be sold at or about the then current market
value of the Common Stock of the Company and such
underwriter shall be empowered to reduce the number of
Registrable Securities which may be sold pursuant to such
Registration if in its judgment such reduction is necessary
in order not to materially and adversely affect the then
prevailing market price of the Common Stock. Any such
reduction shall be applied pro rata to those holders of
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Registrable Securities requesting such Registration.
(c) In the event that the managing underwriter determines that
under then prevailing market conditions more shares of
Common Stock may be sold pursuant to such Registration than
the number of Registrable Securities requested to be
included therein, the Company may include in each such
Registration requested pursuant to this Section 2.3 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 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 2.4; and provided
further, however, that the inclusion of such previously
authorized but unissued 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.
(d) 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 2.4(a)
below) or (ii) for six (6) months after the request for
registration under this Section 2.3 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.
(e) The registration rights granted pursuant to this section
shall have no force or effect until the earlier of the
Company has completed a public offering under the Securities
Act or otherwise become obligated to file periodic or other
reports pursuant to Section 13 of the 1934 Act."
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2.4 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 2.4(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
2.4(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
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founders of the Company, and then, to the extent necessary
by excluding Registrable Securities participating in such
underwritten public offering, pro rata, based 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 6 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.
2.5 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
2.5(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
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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,
however, that the Company shall not be required to consent
to general service of 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
(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
2.4(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
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incurred by the Company in complying with this Section 2;
provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Securities covered by
registrations effected pursuant to section 2.3 hereof shall be
borne by the seller or sellers thereof, in proportion to the
number of Registrable Securities sold by such seller or sellers.
2.6 Information Furnished by Purchaser. It shall be a condition
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precedent 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.
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2.7 Indemnification.
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2.7.1 Company's Indemnification of Purchasers. The Company
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shall 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 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 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 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 Indemnification of Company. Each Selling
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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,
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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 inactions 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.
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
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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 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.
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3. Covenants of the Company.
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The Company agrees to:
(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;
(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
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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 Shareholder.
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., 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx, XX
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06108 and (ii) if to a Purchaser, at the address set forth in his
Subscription 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 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;
(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
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writing executed by the Company and the holders of a majority in
interest of the Registrable Securities; and
(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:
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Xxxxxxx X. Xxxxxx, President
and Chief Executive Officer
Agreed and Accepted this
day of ,1996
By:
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Name:
Title:
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