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EXHIBIT 10.2
THIS NOTE AND THE SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE. THIS NOTE AND SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION
UNDER SUCH ACT AND ALL OTHER APPLICABLE SECURITIES LAWS OR UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
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(ORIGINAL PRINCIPAL AMOUNT) NO.------------
ACCENT COLOR SCIENCES, INC.
SERIES A CONVERTIBLE SUBORDINATED NOTE
September ___, 1999
1. GENERAL. Accent Color Sciences, Inc., a Connecticut corporation (the
"Company"), for value received, hereby promises to pay to the order of (the
"Lender"), or the holder hereof, the principal amount of _________ Thousand
Dollars ($_______), on the earlier of (i) February 1, 2000, and (ii) the date
that is three business days after the Company consummates its next Equity
Financing (the "Payment Date"), in such currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debt. Interest at the rate of 7% per year shall accrue on the
outstanding principal balance of this Note. Interest accrued on the outstanding
principal balance from the date of this Note until the Payment Date shall be
paid on the Payment Date. All payments of principal and interest on this Note
shall be paid by Company check sent first class mail, postage prepaid, to such
address as the holder hereof shall notify the Company of in writing, or, absent
such notice, to the last address of such holder as recorded in the Company's
books. Interest shall be computed on the basis of a 365-day year. The Company
shall have the right from time to time to prepay without penalty all or any
portion of the principal and interest due under this Note upon three business
days prior written notice to the holder hereof.
2. THE NOTE. As used herein, the term "Note" refers to this Series A
Convertible Subordinated Note and to any Note or Notes executed and delivered by
the Company in exchange or replacement hereof pursuant to Section 4 and in
accordance with the terms of the Series A Convertible Subordinated Note, Common
Stock and Warrant Purchase Agreement between the Company and the investors
listed on Schedule A thereto dated as of September ___, 1999 (the "Purchase
Agreement"). Unless the context otherwise requires, the term holder is used to
mean the person named as Lender in Section 1 or any other person who shall at
the time be a legal successor to the Lender or the assignee of this Note.
3. SUBORDINATION. The Company hereby agrees, and the holder of this
Note by its acceptance agrees, that the payment of the principal of and interest
on the Note is hereby expressly
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made subordinate and junior in right of payment, to the extent set forth in the
following paragraphs (a), (b) and (c), to the prior payment in full of all
Senior Debt (as defined in Section 5 below) of the Company, whether such Senior
Debt, except as provided in Section 5 below, is incurred prior to, on or after
the date hereof:
(a) In the event of insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings relative
to the Company or to any of the property of the Company, or in the event of any
proceedings for voluntary liquidation, dissolution, or other winding-up of the
Company, whether or not involving insolvency or bankruptcy, then the holders of
Senior Debt shall be entitled to receive payment in full of all principal of and
interest on all Senior Debt before the holder of this Note shall be entitled to
receive any payment on account of principal or interest on this Note, and to
that end the holders of Senior Debt shall be entitled to receive for application
in payment thereof any payment or distribution of any kind or character, whether
in cash or property or securities, which may be payable or deliverable in any
such proceedings in respect of this Note.
(b) In the event that this Note is declared due and payable prior
to its stated maturity, by reason of the occurrence of an Event of Default
hereunder (under circumstances when the provisions of the foregoing paragraph
(a) shall not be applicable), then all principal of and interest on all Senior
Debt outstanding at the time of such declaration shall first be paid in full,
before any payment on account of principal or interest is made upon this Note.
(c) The Company may make payments and, subject to Section 1 of
this Note, prepayments of the principal of and interest of this Note if, at the
time of the payment and immediately after giving effect thereto, (i) there
exists no default in any payment with respect to any Senior Debt and (ii) there
shall not have occurred an event of default (other than a default in the payment
of amounts due thereon) with respect to any Senior Debt, as defined in the
instrument under which the same is outstanding, permitting the holders thereof
to accelerate the maturity thereof, other than an event of default which shall
have been cured or waived or shall have ceased to exist. Should the holder of
this Note, while there exists a default or an event of default as provided in
the immediately preceding sentence, and after being notified by the holder of
the Senior Debt of the default, receive any such payment, or should the holder
of this Note receive any distribution in bankruptcy, dissolution, or similar
insolvency proceedings in regard to the Company, the holder of the Note will
hold such payment or distribution in trust for the holder of the Senior Debt and
will pay over such amounts to such holder to apply to the Senior Debt until the
same is paid in full.
The provisions of this Section 3 are for the purpose of defining the
relative rights of the holders of Senior Debt and the holder of the Note against
the Company and its property. Nothing herein shall impair, as between the
Company and the holder of this Note, the obligation of the Company, which is
unconditional and absolute, to pay to the holder the principal and interest in
accordance with the terms and the provisions hereof; nor shall anything herein
prevent the holder of this Note from exercising all remedies otherwise permitted
by applicable law or hereunder upon default under this Note, subject to the
rights, if any, under this Section 3 of holders of Senior Debt to receive cash,
property, stock or obligation otherwise payable or deliverable to the holder of
this Note. The Company acknowledges and agrees that the rights of the holder of
this Note with respect to the Company's cash, property, rights and other assets
of any kind are senior and prior to the rights
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of any holder of capital stock of the Company arising from such capital stock
and the Company shall issue no other notes or debt instruments except such as
comply with the Purchase Agreement and are subordinated to this Note in right of
payment on the same basis on which this Note is subordinated to Senior Debt as
provided in this Section, and except that the Company may have additional Senior
Debt.
4. EXCHANGE OR REPLACEMENT OF NOTE.
(a) Subject to Section 13 of this Note, the holder of this Note
may in person or by duly authorized attorney surrender the Note for exchange at
the office of the Company, and at the expense of the Company receive in exchange
therefor a new Note in the same aggregate principal amount as the aggregate
unpaid principal amount of the Note so surrendered and bearing interest at the
same rate as the Note so surrendered, each such new Note to be dated as of the
date to which interest has been paid on the Note so surrendered and to be in
such principal amount and payable to such permitted assignee or transferee, as
such holder may designate in writing; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any new Note in a name other than that
of the holder of the Note surrendered in exchange therefor. Five days prior
written notice of the holder's intention to make such exchange shall be given to
the Company.
(b) Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Note and (in case of loss,
theft or destruction) of indemnity reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of the Note, if mutilated, the Company will make
and deliver a new Note of like tenor in lieu of this Note. Any Note made and
delivered in accordance with the provisions of this paragraph (b) shall be dated
as of the date to which interest has been paid on this Note.
5. DEFINITIONS. As used herein, the following terms have the following
respective meanings:
"Person" shall mean an individual, a company, a limited liability
company, a partnership, a trust, an unincorporated organization and a government
or any department, agency or political subdivision thereof, or any other legal
entity.
"Equity Financing" shall mean a private or public offering of the
Company's Common Stock resulting in receipt of at least $1,100,000 in gross
proceeds by the Company.
"Senior Debt" shall mean the principal of, interest on and, if
applicable, any premium on (i) indebtedness for money borrowed of the Company
outstanding as of the date hereof, (ii) additional indebtedness incurred by the
Company after date hereof for money borrowed from a customer of the Company;
(iii) additional indebtedness incurred by the Company after the date hereof for
money borrowed from a bank, savings and loan association trust company,
insurance company or similar financial institution, (iv) purchase money secured
debt, (v) obligations of the Company as lessee under leases of real or personal
property which are treated as capital lease obligations under generally accepted
accounting principals, (vi) any other indebtedness for money
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borrowed of the Company which the Company and holders of at least a majority of
the principal amount of the Notes then outstanding from time to time expressly
and specifically agree in writing shall constitute "Senior Debt" and (vii) any
deferrals, renewals, refinancings or extensions of any of the foregoing.
6. REMEDIES.
6.1 EVENTS OF DEFAULT DEFINED. The entire principal amount of and
all accrued interest on this Note shall, at the option of the holder hereof
exercised by written notice to the Company (except under Section 6.1(d) and
Section 6.1(e) below, in which case the entire principal amount of and all
accrued interest on the Note shall automatically become due and payable),
forthwith become and be due and payable (subject, however, to the enforcement
provisions contained in Section 6.2) if any one or more of the following events
(herein called "Events of Default") shall have occurred and be continuing (for
any reason whatsoever and whether such happening shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree of order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) if default shall be made in the due and punctual payment of
the principal of or interest on this Note or on any other indebtedness of the
Company to Lender, when and as the same shall become due and payable, whether at
the maturity of any installment thereof, by acceleration, or otherwise;
(b) if any material default, breach or violation shall be made in
the performance or observance of any of the other covenants, agreements,
representations, warranties or conditions of the Company contained in this Note,
any other instrument evidencing indebtedness of the Company to Lender, or in the
Purchase Agreement; provided that no Event of Default, not otherwise
specifically stated in this Section 6.1, shall be deemed to have occurred if the
Company cures such default, breach or violation within 30 days after having
received notice thereof from the holder of this Note;
(c) if the Company shall default beyond any period of grace
provided with respect thereto in the payment of principal of or interest on any
Senior Debt or in the performance or observance of any other material
obligation, term or condition under such Senior Debt or otherwise fail promptly
to pay such Senior Debt when due and payable, unless such holder shall have
waived such default or non-payment after its occurrence or unless such holder
shall have failed to give any notice required to create a default thereunder;
(d) if the Company shall
(1) admit in writing its inability to pay its debts generally
as they become due,
(2) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
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(3) make an assignment for the benefit of its creditors,
(4) consent to the appointment of a receiver of itself or of
the whole or any substantial part of its property,
(5) on a petition in bankruptcy filed against it, be
adjudicated a bankrupt, or
(6) file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof;
(e) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing, without the consent of the Company, a receiver of
the Company or of the whole or any substantial part of its property, or
approving a petition filed against it seeking reorganization or arrangement of
the Company under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any State thereof, and such order,
judgment or decree shall not be vacated or set aside or stayed within 60 days
from the date of entry thereof;
(f) if, under the provisions of any other law for the relief or
aid of debtors, any court of competent jurisdiction shall assume custody or
control of the Company or of the whole or any substantial part of its property
and such custody or control shall not be terminated or stayed within 60 days
from the date of assumption of such custody or control; or
(g) if the Company enters into a merger, consolidation,
liquidation, dissolution, sale of all or substantially all of its stock or
assets, or similar restructuring or reclassification.
6.2 SUITS FOR ENFORCEMENT. In case any one or more of the Events of
Default specified in Section 6.1 hereof shall have occurred, the holder of this
Note may, subject to Section 3, proceed to protect and enforce its rights either
by suit in equity and/or by action at law, whether for the specific performance
of any covenant or agreement contained in this Note, other instrument, or the
Purchase Agreement or in aid of the exercise of any power granted in this Note,
other instrument, or the Purchase Agreement, or proceed to enforce the payment
of this Note or to enforce any other legal or equitable right of the registered
holder of this Note. In addition to any amounts otherwise payable under this
Note, the holder shall be entitled to recover all reasonable costs and expenses
related to enforcement of this Note, including without limitation, legal and
accounting fees and court costs.
The remedies of the holder provided herein, in the Purchase
Agreement, and in the documents referred to therein shall be cumulative and
concurrent, and may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
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Except as expressly set forth herein, the Company hereby waives
demand, notice of demand, notice of nonpayment or dishonor, protest and notice
of protest of this Note, and all other notices not specifically required hereby
in connection with the delivery, acceptance, performance, default, or
enforcement of the payment of this Note, and agrees that its liability hereunder
shall be unconditional.
The holder shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the holder, and then only to the extent
specifically set forth in writing. A waiver of one event shall not be construed
as continuing or as a bar to or waiver of any right or remedy to a subsequent
event.
6.3 REMEDIES CUMULATIVE. No remedy herein conferred upon the
holder of this Note is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
6.4 REMEDIES NOT WAIVED. No course of dealing between the Company
and the holder hereof or any delay on the part of the holder hereof in
exercising any rights hereunder shall operate as a waiver of any rights of such
holder.
7. CONVERSION OF NOTE
7.1 RIGHT TO CONVERT
(a) The holder of this Note shall have the right, at
such holder's option, at any time prior to maturity of this Note or prior to
receipt of notice of the Company's intent to prepay this Note pursuant to
Section 1 hereof, to convert all or any portion of the unpaid principal amount
hereof plus all accrued and unpaid interest (the sum of the unpaid principal
amount plus all accrued and unpaid interest as calculated at any time during the
Term of this Note shall be referred to as the "Note Value") into shares of the
Company's Common Stock, no par value (the "Common Stock") at the lower of (i)
$.50 per share and (ii) the per share common stock equivalent price in the
Company's next equity offering in which the Company receives net proceeds of at
least $1,100,000, subject to adjustment from time-to-time pursuant to Section
7.2 hereof ("Conversion Price").
(b) Upon conversion of all or a portion of the Note
Value hereof, the obligation due hereunder shall be deemed reduced to the extent
of the value of the aggregate Conversion Price of the Common Stock acquired
thereby. The reduction of the obligation due hereunder upon the conversion of a
portion of the Note Value shall first reduce accrued and unpaid interest and
then reduce the unpaid principal amount.
7.2 ADJUSTMENTS
The Conversion Price and the number of shares
purchasable hereunder are subject to adjustment from time-to-time as follows:
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(a) ISSUANCE OF ADDITIONAL STOCK.
(i) If the Company shall issue any Additional Stock
without consideration or for a consideration per share less than the Conversion
Price in effect immediately prior to the issuance of such Additional Stock, the
Conversion Price in effect immediately prior to each such issuance shall
forthwith be adjusted to a price per share equal to the product obtained by
multiplying the Conversion Price in effect immediately prior to the issuance of
such Additional Stock by a fraction, (i) the numerator of which is equal to the
sum of (x) the number of shares of Common Stock deemed outstanding on a fully
as-converted basis immediately prior to such issuance (including shares deemed
to be outstanding as provided in Section 7.2(a)(vi)) and (y) the quotient of the
aggregate consideration received by the Company upon such issuance, divided by
the Conversion Price in effect immediately prior to the issuance of such
Additional Stock and (ii) the denominator of which is the total number of shares
of Common Stock deemed outstanding on a fully as-converted basis (including
shares deemed outstanding as provided in Section 7.2(a)(vi)) immediately after
(and including) such issuance.
(ii) No adjustment of the Conversion Price shall be
made in an amount less than one cent per share, provided that any adjustments
that are not required to be made by reason of this sentence shall be carried
forward and shall be either taken into account in any subsequent adjustment made
prior to three (3) years from the date of the event giving rise to the
adjustment being carried forward, or shall be made at the end of three (3) years
from the date of the event giving rise to the adjustment being carried forward.
No adjustment of such Conversion Price pursuant to Section 7.2(a)(i) shall have
the effect of increasing the Conversion Price above the Conversion Price in
effect immediately prior to such adjustment.
(iii) In the case of the issuance of Common Stock
for cash, the consideration shall be deemed to be the amount of cash paid
therefor before deducting any reasonable discounts, commissions or other
expenses allowed, paid or incurred by the Company for underwriting or otherwise
in connection with the issuance and sale thereof.
(iv) In the case of the issuance of the Common Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair value thereof as determined by the
Board of Directors irrespective of any accounting treatment.
(v) In the event Additional Stock is issued together
with other shares or securities or other assets of the Company for consideration
which covers both, the consideration allocable to the Additional Stock shall be
the proportion of such consideration so received, computed as provided in
Sections 7.2(a) (iii) and (iv) above, as determined in good faith by the Board
of Directors.
(vi) In the case of the issuance (after September
___, 1999 (the "Original Issue Date")) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this Section 7.2(a):
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(1) The aggregate maximum number of shares of
Common Stock deliverable upon exercise (assuming the satisfaction of any
conditions to exercisability, including without limitation, the passage of time,
but without taking into account potential antidilution adjustments) of such
options to purchase rights to subscribe for Common Stock shall be deemed to have
been issued at the time such options or rights were issued and for a
consideration equal to the consideration (determined in the manner provided in
Sections 7.2(a)(iii), (iv) and (v)) if any, received by the Company upon the
issuance of such options or rights plus the minimum exercise price provided in
such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby. Notwithstanding anything to
the contrary herein, no further adjustment shall be made for the actual issuance
of Common Stock or any payment of such consideration upon the exercise of any
such options or rights or the conversion or exchange of such securities.
(2) The aggregate maximum number of shares of
Common Stock deliverable upon conversion of or in exchange (assuming the
satisfaction of any conditions to convertibility or exchangeability, including,
without limitation, the passage of time, but without taking into account
potential antidilution adjustments) for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights to subscribe
for such convertible exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued at the time such securities
were issued or such options or rights were issued and for a consideration equal
to the consideration, if any, received by the Company for any such securities
and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in Sections 7.2(a)(iii), (iv) and (v)).
Notwithstanding anything to the contrary herein, no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such
consideration upon the exercise of any such options or rights or the conversion
or exchange of such securities.
(3) In the event of any change in the number
of shares of Common Stock deliverable or in the consideration payable to the
Company upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Conversion Price, to the extent in any way affected by or computed using such
options, rights or securities, shall be recomputed to reflect such change, but
no further adjustment shall be made for the actual issuance of Common Stock or
any payment of such consideration upon the exercise of any such options or
rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Conversion Price, to the extent in any way affected by or
computed using such options, rights or securities or options or rights related
to such securities, shall be recomputed to reflect the issuance of only the
number of shares of Common Stock (and convertible or exchangeable securities
that remain in effect) actually issued upon the exercise
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of such options or rights, upon the conversion or exchange of such securities or
upon the exercise of the options or rights related to such securities.
(5) The number of shares of Common Stock
deemed issued and the consideration deemed paid therefor pursuant to Section
7.2(a)(vi)(1) and (2) shall be appropriately adjusted to reflect any change,
termination, or expiration of the type described in either Section 7.2(a)(vi)(3)
or (4).
(6) The consideration for Common Stock deemed
paid pursuant to Sections 7.2(a)(vi)(1) and (2) shall be appropriately adjusted
to reflect any change, termination or expiration of the type described in either
Section 7.2(a)(vi)(3) and (4).
(vii) "Additional Stock" shall mean any shares of
Common Stock issued (or deemed to have been issued pursuant to Section
7.2(a)(vi)) by the Company after the Original Issue Date other than:
(1) Common Stock issued pursuant to the events
described in Sections 7.2(b), (c), (d) or (e) hereof;
(2) shares of Common Stock issuable to
employees, agents, consultants, advisors or directors of the Company pursuant to
stock options or stock awards granted or to be granted, provided that the grant
of such options or awards shall have been approved by the Board of Directors;
(3) shares of Common Stock issuable pursuant
to warrants outstanding as of the Original Issue Date or any Warrants issued or
to be issued pursuant to the Purchase Agreement; or
(4) shares of Common Stock issued or issuable
upon conversion of shares of Series B Preferred Stock outstanding on the date
hereof.
(b) Merger, Sale of Assets, etc. If at any time
while this Note, or any portion thereof, is outstanding, there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale of transfer of the Company's properties and assets
as, or substantially as, en entirety to any other person, this Note shall
thereafter represent the right to acquire the number of shares of stock or other
securities which the holder of this Note would have owned immediately after the
consummation of such reorganization, merger, consolidation, sale or transfer, if
this Note had been converted immediately before the effective date of the
reorganization, merger, consolidation, sale or transfer.
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(c) Reclassification, etc. If the Company, at any
time while this Note, or any portion hereof, remains outstanding by
reclassification of securities or otherwise, shall change any of the securities
as to which conversion rights under this Note exist into the same or a different
number of securities of any other class or classes, this Note shall thereafter
represent the right to acquire such number and kind of securities that were
subject to the conversion rights under this Note immediately prior to such
reclassification or other change and the Conversion Price therefor shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 7.2.
(d) Split, Subdivision or Combination of Shares. If
the Company at any time while this Note, or any portion hereof, remains
outstanding shall split, subdivide or combine the securities as to which
conversion rights under this Note exist, into a different number of securities
of the same class, the Conversion Price for such securities shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
(e) Adjustments for Dividends in Stock or Other
Securities. If while this Note, or any portion hereof, remains outstanding, the
holders of the securities as to which conversion rights under this Note exist at
the time shall have received, or, on or after the record date fixed for the
determination of eligible shareholders, shall have become entitled to receive,
without payment therefor, other or additional stock or other securities of the
Company by way of dividend or distribution, then and in each case, this Note
shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this conversion, and without payment of any
additional consideration therefor, the amount of such other or additional stock
or other securities of the Company that such holder would hold on the date of
such exercise had it been the holder of record of the security receivable upon
conversion of this Note on the date hereof and had thereafter, during the period
from the date hereof to and including the date of such exercise, retained such
shares and/or all other additional stock available by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
the provisions of this Section 7.2.
(f) Certificate as to Adjustments. Upon the
occurrence of each adjustment or readjustment pursuant to this Section 7.2, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to each holder of this Note a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Company
shall, upon the written request, at any time, of any such holder, furnish or
cause to be furnished to such holder a like certificate setting forth: (i) such
adjustments and readjustments; (ii) the Conversion Price at the time in effect;
and (iii) the number of shares that at the time would be received upon the
conversion of the Note.
7.3 EXERCISE OF CONVERSION PRIVILEGE. In order to exercise the
conversion privilege, the holder of this Note shall present it to the Company at
the office of the Company, accompanied by written notice to the Company that the
holder elects to convert this Note, or, if less than the entire Note Value
hereof is to be converted, the portion hereof to be converted. Such notice shall
also state the name or names (with address) in which the certificate or
certificates for shares that shall be issuable on such conversion shall be
issued. As soon as practicable after the receipt of such notice and the
presentation of this Note, the Company shall issue and shall deliver to the
holder
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of this Note a certificate or certificates for the number of full shares
issuable upon the conversion of this Note (or portion hereof), and provision
shall be made for any fraction of a share as provided in Section 7.4 hereof.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date on which such notice shall have been received by
the Company and this Note shall have been presented as aforesaid, the conversion
shall be at the conversion price in effect at such time, and at such time the
rights of the holder of this Note as such holder shall cease (to the extent this
Note is so converted) and the person or persons in whose name or names any
certificate of certificates for shares shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby. Upon conversion of only a part of the Note Value of this
Note, appropriate notation shall be made on this Note of the principal amount so
converted, and the holder following such notation shall retain this Note. Upon
conversion of the balance of the Note Value of this Note, the holder shall
surrender this Note to the Company.
7.4 ADJUSTMENT FOR FRACTIONAL SHARES. No fractional shares or
scrip shall be issued upon conversions of the Note. The number of full shares
issuable upon conversion thereof shall be computed on the basis of the aggregate
Note Value of the Note (or portion thereof) so surrendered. The remaining Note
Value shall be paid in cash.
7.5 RESERVATION OF SHARES. The Company will at all times
reserve and keep available out of its Common Stock, solely for the purpose of
issuance upon conversion of this Note as herein provided, such number of shares
of Common Stock as shall then be issuable upon the conversion of this Note
pursuant to the terms of this Section 7. The Company covenants that all shares
which will be so issuable shall, upon the conversion of this Note as herein
provided, be duly and validly issued and fully paid and nonassessable by the
Company.
7.6 TAXES. The issuance of certificates for shares upon
conversion of this Note shall be made without charge to the holder of this Note
for any issuance tax in respect thereto.
8. Amendments and Waivers. Amendments of this Note may be made or
compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively), upon the written consent of the
Company and the holders of at least a majority of the principal amount of the
Notes then outstanding; provided, however, that no amendment, omission or waiver
of this Note shall be made without the written consent of the holder of this
Note if such amendment, omission or waiver would (i) cause any change in the
principal amount or rate of interest under this Note, (ii) extend the time of
payment of this Note, (iii) affect or impair in any way the obligation of the
Company in respect of the principal of or interest on this Note or (iv) cause
any change in this Section 8 hereof. Any such amendment or waiver shall be
binding upon the holder, upon each future holder of this Note and upon the
Company, whether or not this Note shall have been marked to indicate such
amendment or waiver, but any substitute Note issued thereafter shall bear a
notation referring to any such amendment or continuing waiver.
9. SUCCESSORS AND ASSIGNS. This Note shall be binding upon the parties
and their respective successors and assigns.
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10. SEVERABILITY. Should any part but not the whole of this Note for
any reason be declared invalid, such decision shall not affect the validity of
any remaining portion, which remaining portion shall remain in force and effect
as if this Note had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remaining portion of this Note without including any such part
which may, for any reason, be hereafter declared invalid.
11. CAPTIONS. The descriptive headings of the various Sections or parts
of this Note are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
12. GOVERNING LAW. This Note shall be governed and construed under the
laws of the State of Connecticut without giving effect to the conflict of law
principles . The parties irrevocably consent to the exclusive jurisdiction of
the Superior Courts of the State of Connecticut at Hartford, Connecticut or the
United States District Court for the District of Connecticut.
13. RESTRICTIONS. This Note shall not be transferable except in
compliance with the provisions of Sections 3 and 4 of the Purchase Agreement.
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ATTEST: ACCENT COLOR SCIENCES, INC.
By:
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Name: Willard F. Pinney, Jr. /s/
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Title: Secretary Name: Charles E. Buchheit
Title: President and Chief Executive Officer
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