EXHIBIT ▇▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ AGREEMENT, dated as of 31st day of March, 1997, by and between
Super Vision International, Inc., a Delaware corporation (the "Company") and
▇▇▇▇▇ ▇. Kingstone (the "Employee").
The Company desires to provide an incentive to the Employee to exercise
his best efforts on the Company's behalf by granting to the Employee the warrant
provided for herein. This warrant is granted to replace the 2,891,870 shares of
Class B Common Stock previously owned by Employee and held in escrow, which
shares were delivered to the Company for cancellation, effective as of the date
hereof.
IT IS AGREED as follows:
1. Grant of Warrant. The Company hereby grants to the Employee on the
date hereof the right and option to purchase (subject to adjustment as set forth
herein) an aggregate of 289,187 of its shares of Class A Common Stock ("Shares")
at an exercise price per share of $7.00 (the "Exercise Price").
2. Warrant Period. The warrant granted hereby shall expire at 5:00
p.m. on March 31, 2007 (the "Expiration Date").
3. Exercise of Warrant.
A. This warrant may be exercised in whole or in part, at any
time, from time to time, prior to the Expiration Date. This warrant may not be
exercised at any time on or after the Expiration Date.
B. This warrant shall only be exercisable for so long as the
Employee continues to be employed by the Company (which shall be deemed to
include any leave of absence approved by the Board of Directors of the Company)
from the date hereof through the Expiration Date.
C. In the event the Employee dies prior to the Expiration
Date, this warrant shall thereafter be exercisable for a one-year period
following the Employee's death by his executors or administrators to the full
extent to which this warrant was exercisable by the Employee at the time of his
death.
D. If the termination of the Employee's employment is for
cause or is otherwise attributable to a breach by the Employee of an employment
or confidentiality or non-disclosure agreement, this warrant shall expire
immediately upon such termination.
E. The Employee may exercise this warrant by delivering to the
Company a written notice duly signed by the Employee in the form attached hereto
as Exhibit A stating the number of shares that the Employee has elected to
purchase, and accompanied by payment (in cash or by certified check) of an
amount equal to the full purchase price for the Shares to be purchased. The
notice must also contain a statement (if required by, and in a form acceptable
to, the Company) that the Employee is acquiring the Shares for investment and
not with a view toward their distribution or resale. Following receipt by the
Company of such notice and payment, the Company shall issue, as soon as
practicable, the Shares in the name of the Employee and deliver the certificate
therefor to the Employee. No Shares shall be issued until full payment therefor
has been made and until the Company has complied with all requirements of the
Securities Act of 1933, the Securities Exchange Act of 1934, any securities
exchange on which the Company's stock may then be listed and all applicable
state laws in connection with the issuance of the Shares or the listing of the
Shares on said securities exchange. All Shares purchased upon exercise of this
Warrant in accordance with this Section shall be fully paid and nonassessable.
F. In lieu of delivering the Exercise Price in cash or check,
the Employee may elect to receive shares equal to the value of this warrant or
portion thereof being exercised (the "Net Issue Exercise"). If the Employee
wishes to elect the Net Issue Exercise, the Employee shall notify the Company of
his election in writing at the time the Employee delivers to the Company the
notice of exercise. In the event the Employee shall elect the Net Issue
Exercise, the Employee shall receive the number of shares of Common Stock equal
to the product of (i) the number of shares of Class A Common Stock purchasable
under the Warrant, or portion thereof being exercised, and (ii) the current
market value, as defined below, of one share of Class A Common Stock minus the
Exercise Price, divided by (iii) the current market value, as defined below, of
one share of Class A Common Stock. Current market value of a share shall be
determined as follows:
(i) If the Class A Common Stock is listed on a
national securities exchange or listed for trading on the Nasdaq Stock Market,
the current market value shall be the last reported sale price of the Class A
Common Stock on such exchange or system on the last business day prior to the
date of exercise of this warrant or if no such sale if made on such day, the
average closing bid and asked prices for such day on such exchange or system; or
(ii) If the Class A Common Stock is not so listed,
the current market value shall be the mean of the last reported bid and asked
prices reported by the National Quotation Bureau, Inc. on the last business day
prior to the date of the exercise of this warrant; or
(iii) If the Class A Common Stock is not so listed
and bid and asked prices are not so reported, the current market value shall be
an amount, not less than book value thereof as at the end of the most recent
fiscal year of the Company ending prior to the date of the exercise of this
warrant, determined in such reasonable manner as may be prescribed by the Board
of Directors of the Corporation.
4. Termination. Nothing contained in this Warrant Agreement shall
confer upon the Employee any right to be employed by the Company nor prevent the
Company from terminating its current relationship with the Employee at any time,
with or without cause.
5. Transferability of Warrant. This warrant shall be transferable,
subject to applicable securities laws. Any transferee of this warrant shall
execute an instrument reasonably satisfactorily to the Company agreeing to be
bound by the terms and conditions of this Warrant Agreement.
6. Compliance With Securities Laws. If, at any time, counsel to the
Company shall determined that the listing, registration or qualification of the
Shares subject to this warrant upon any securities exchange or under any state
or federal law, the consent or approval of any governmental or regulatory body,
the disclosure of non-public information or the satisfaction of any other
condition is necessary as a condition of, or in connection with the issuance or
purchase of Shares, this warrant may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition, shall have been effected or obtained on
conditions acceptable to the Company's Board of Directors. Nothing herein shall
be deemed to require the Company to apply for or to obtain such listing,
registration or qualification, or to satisfy such condition.
7. Rights as a Shareholder. The Employee shall have no rights as a
shareholder with respect to any shares covered by this warrant (including,
without limitation, any rights to receive dividends or non-cash distributions
with respect to the Shares) until the date of issue of a stock certificate to
him or her for the Shares. No adjustment shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate is
issued.
8. Adjustment Provisions for Recapitalizations, Reorganizations and
Related Transactions.
(a) Recapitalizations and Related Transactions. If, through or
as a result of any recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar transaction, (i) the outstanding
shares of Common Stock are increased, decreased or exchanged for a different
number or kind of shares or other securities of the Company, or (ii) additional
shares or new or different shares or other non-cash assets are distributed with
respect to such shares of Common Stock or other securities, an appropriate and
proportionate adjustment shall be made in (x) the number and kind of shares or
other securities subject to this warrant, and (y) the price for each share
subject to this warrant, without changing the aggregate purchase price as to
which this warrant remains exercisable.
(b) Reorganization, Merger and Related Transactions. If the
Company shall be the surviving corporation in any reorganization, merger or
consolidation of the Company with one or more other corporations, this warrant
shall pertain to and apply to the securities to which a holder of the number of
shares of Common Stock subject to this warrant would have been entitled
immediately following such reorganization, merger, or consolidation, with a
corresponding proportionate adjustment of the purchase price as to which this
warrant may be exercised so that the aggregate purchase price as to which this
warrant may be exercised shall be the same as the aggregate purchase price as to
which this warrant may be exercised for the Shares remaining subject to this
warrant immediately prior to such reorganization, merger, or consolidation.
(c) Board Authority to Make Adjustments. Any adjustments under
this Section 9 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued hereunder on account
of any such adjustments.
9. Merger, Consolidation, Asset Sale, Liquidation, etc.
(a) General. In the event of a consolidation or merger in
which the Company is not the surviving corporation, or sale of all or
substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company
(collectively, a "Corporate Transaction"), the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, with respect to this warrant: (i) provide that the warrant shall be
assumed, or equivalent warrants shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof), (ii) upon written notice to
the Employee, provide that the warrant will terminate to the extent unexercised
immediately prior to the consummation of such transaction unless exercised by
the Employee within a specified period following the date of such notice, (iii)
in the event of a Corporate Transaction under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the Corporate Transaction (the
"Transaction Price"), make or provide for a cash payment to the Employee equal
to the difference between (A) the Transaction Price times the number of shares
of Class A Common Stock subject to the warrant (to the extent then exercisable
at prices not in excess of the Transaction Price) and (B) the aggregate exercise
price of the warrant in exchange for the termination of the warrant, and (iv)
provide that the warrant shall become exercisable in full immediately prior to
such event.
10. Withholding.
(a) The Company shall have the right to deduct from payments
of any kind otherwise due to the Employee any federal, state or local taxes of
any kind required by law to be withheld with respect to any Shares issued upon
exercise of this warrant. Subject to the prior approval of the Company, which
may be withheld by the Company in its sole discretion, the Employee may elect to
satisfy such obligations, in whole or in part, (i) by causing the Company to
withhold shares of Class A Common Stock otherwise issuable pursuant to the
exercise of the warrant or (ii) by delivering to the Company shares of Class A
Common Stock already owned by the Employee. The shares so delivered or withheld
shall have a fair market value (as defined above) equal to such withholding
obligation as of the date that the amount of tax to be withheld is to be
determined. The Employee may only satisfy his or her withholding obligation with
shares of Class A Common Stock which are not subject to any repurchase,
forfeiture, unfulfilled vesting or other similar requirements.
11. Notices. Any notice to be given by the Employee hereunder shall be
sent to the Company at its principal executive offices, and any notice from the
Company to the Employee shall be sent to the Employee at his address set forth
below; all such notices shall be in writing and shall be delivered in person or
by registered or certified mail. Either party may change the address to which
notices are to be sent by notice in writing given to the other in accordance
with the terms hereof.
12. Governing Law. This Agreement, as well as the grant of such
warrant and issuance of such Shares, is and shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to the
agreements made and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SUPER VISION INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EMPLOYEE
By: /s/ ▇▇▇▇▇ ▇. Kingstone
--------------------------------
▇▇▇▇▇ ▇. Kingstone
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PURCHASE FORM
(To be signed and delivered to
---------------------
upon exercise of the Warrant)
The undersigned, the holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant,
and to purchase thereunder _________ shares of Class A Common Stock, par value
$.001, of Super Vision International, Inc. ("Shares"), and herewith makes
payment of $_____________ ($______ per share) therefor, plus $__________ ($_____
per share) for withholding tax, if any, required in connection with the exercise
of the Warrant, and requests that the Certificates for the Shares be issued in
the name(s) of, and delivered to ____________________________ whose address(es)
is/are _________________________.
The undersigned hereby represents that the shares to be purchased upon
the exercise of this Warrant are being purchased for investment only, and not
with a view towards a sale, transfer, or distribution thereof.
---------------------------------
---------------------------------
---------------------------------
---------------------------------
Dated: ___________________, 19___
--------------------------------