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EXHIBIT 10.3
Exhibit B
to
Common Stock and Warrant Purchase Agreement
FORM OF ADDITIONAL WARRANT
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE
UPON THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER (THE " SECURITIES ACT "). THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF REGISTRATION UNDER THE SECURITIES ACT OR UNLESS SUCH OFFER, SALE
OR TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
SUPER VISION INTERNATIONAL, INC.
COMMON STOCK WARRANT
SUPER VISION INTERNATIONAL, INC. , a
Delaware corporation (the " Company "), hereby certifies
that
, its permissible transferees, designees, successors and assigns
(collectively, the " Holder "), for value received, is
entitled to purchase from the Company at any time commencing on the
effective date (the " Effective Date "), which shall be the
date of the Closing (as defined in the Common Stock and Warrant
Purchase Agreement (the " Securities Purchase Agreement "),
dated as of December 7, 2006, by and among the Company and the
Purchasers listed on Schedule 1 thereto), and terminating on
the fifth anniversary of such date (the " Termination Date
") up to
shares (each, a " Share " and collectively the "
Shares ") of the Company’s Class A Common Stock,
$.001 par value per Share (the " Class A Common Stock "), at
an exercise price per Share equal to Three Dollars ($3.00) (the "
Exercise Price "). The number of Shares purchasable
hereunder and the Exercise Price are subject to adjustment as
provided in Section 4 hereof.
1. Method of Exercise; Payment.
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(a) Cash Exercise . The purchase rights represented by
this Warrant may be exercised by the Holder, in whole or in part,
at any time, or from time to time, by the surrender of this Warrant
(with the notice of exercise form (the " Notice of Exercise
") attached hereto as Exhibit A duly executed) at the
principal office of the Company, and by payment to the Company of
an amount equal to the Exercise Price multiplied by the number of
the Shares being purchased, which amount may be paid, at the
election of the Holder, by (i) wire transfer or certified
check payable to the order of the Company, (ii) cancellation
by the Holder of indebtedness or other obligations of the Company
to the
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Holder or (iii) a combination of
(i) and (ii). The person or persons in whose name(s) any
certificate(s) representing Shares shall be issuable upon exercise
of this Warrant shall be deemed to have become the holder(s) of
record of, and shall be treated for all purposes as the record
holder(s) of, the Shares represented thereby (and such Shares shall
be deemed to have been issued) immediately prior to the close of
business on the date or dates upon which this Warrant is
exercised.
(b) Stock Certificates . In the event of any exercise of
the rights represented by this Warrant, as promptly as practicable
on or after the date of exercise and in any event within ten
(10) days thereafter, the Company at its expense shall issue
and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of Shares issuable upon
such exercise. In the event this Warrant is exercised in part, the
Company at its expense will execute and deliver a new Warrant of
like tenor exercisable for the number of Shares for which this
Warrant may then be exercised.
(c) Taxes . The issuance of the Shares upon the exercise
of this Warrant, and the delivery of certificates or other
instruments representing such Shares, shall be made without charge
to the Holder for any tax or other charge in respect of such
issuance.
2. Warrant .
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(a) Exchange, Transfer and Replacement . At any time
prior to the exercise hereof, this Warrant may be exchanged upon
presentation and surrender to the Company, alone or with other
warrants of like tenor of different denominations registered in the
name of the same Holder, for another warrant or warrants of like
tenor in the name of such Holder exercisable for the aggregate
number of Shares as the warrant or warrants surrendered.
(b) Replacement of Warrant . Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any
such loss, theft, or destruction, upon delivery of an indemnity
agreement reasonably satisfactory in form and amount to the
Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will
execute and deliver in lieu thereof, a new Warrant of like
tenor.
(c) Cancellation; Payment of Expenses . Upon the
surrender of this Warrant in connection with any transfer, exchange
or replacement as provided in this Section 2 , this
Warrant shall be promptly canceled by the Company. The Holder shall
pay all taxes and all other expenses (including legal expenses, if
any, incurred by the Holder or transferees) and charges payable in
connection with the preparation, execution and delivery of Warrants
pursuant to this Section 2 .
(d) Warrant Register . The Company shall maintain, at its
principal executive offices (or at the offices of the transfer
agent for the Warrant or such other
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office or agency of the Company as it may
designate by notice to the holder hereof), a register for this
Warrant (the " Warrant Register "), in which the Company
shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each
transferee and each prior owner of this Warrant.
3. Rights and Obligations of Holders of this Warrant .
The Holder of this Warrant shall not, by virtue hereof, be entitled
to any rights of a stockholder in the Company, either at law or in
equity; provided , however , that in the event any
certificate representing shares of Class A Common Stock or
other securities is issued to the holder hereof upon exercise of
this Warrant, such holder shall, for all purposes, be deemed to
have become the holder of record of such Class A Common Stock
on the date on which this Warrant, together with a duly executed
Election to Purchase, was surrendered and payment of the aggregate
Exercise Price was made, irrespective of the date of delivery of
such Class A Common Stock certificate.
4. Adjustments .
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(a) Stock Dividends, Reclassifications, Recapitalizations,
Etc. In the event the Company: (i) pays a dividend in
Class A Common Stock or makes a distribution in Class A
Common Stock, (ii) subdivides its outstanding Class A
Common Stock into a greater number of shares, (iii) combines
its outstanding Class A Common Stock into a smaller number of
shares or (iv) increases or decreases the number of shares of
Class A Common Stock outstanding by reclassification of its
Class A Common Stock (including a recapitalization in
connection with a consolidation or merger in which the Company is
the continuing corporation), then (1) the Exercise Price on
the record date of such division or distribution or the effective
date of such action shall be adjusted by multiplying such Exercise
Price by a fraction, the numerator of which is the number of shares
of Class A Common Stock outstanding immediately before such
event and the denominator of which is the number of shares of
Class A Common Stock outstanding immediately after such event,
and (2) the number of shares of Class A Common Stock for
which this Warrant may be exercised immediately before such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the Exercise Price immediately before such
event and the denominator of which is the Exercise Price
immediately after such event.
(b) Cash Dividends and Other Distributions . In the event
that at any time or from time to time the Company shall distribute
to all holders of Class A Common Stock (i) any dividend
or other distribution of cash, evidences of its indebtedness,
shares of its capital stock or any other properties or securities
or (ii) any options, warrants or other rights to subscribe for
or purchase any of the foregoing (other than in each case,
(w) the issuance of any rights under a shareholder rights
plan, (x) any dividend or distribution described in
Section 4(a) , (y) any rights, options, warrants
or securities described in Section 4(c) and
(z) any cash dividends or other cash distributions from
current or retained earnings), then the number of shares of
Class A Common Stock issuable upon the exercise of this
Warrant shall be increased to a number determined by multiplying
the number of shares of Class A Common Stock issuable upon the
exercise of
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this Warrant immediately prior to the record date
for any such dividend or distribution by a fraction, the numerator
of which shall be such Current Market Value (as hereinafter
defined) per share of Class A Common Stock on the record date
for such dividend or distribution, and the denominator of which
shall be such Current Market Value per share of Class A Common
Stock on the record date for such dividend or distribution less the
sum of (x) the amount of cash, if any, distributed per share
of Class A Common Stock and (y) the fair value (as
determined in good faith by the Board of Directors of the Company,
whose determination shall be evidenced by a board resolution, a
copy of which will be sent to the Holders upon request) of the
portion, if any, of the distribution applicable to one share of
Class A Common Stock consisting of evidences of indebtedness,
shares of stock, securities, other property, warrants, options or
subscription or purchase rights; and the Exercise Price shall be
adjusted to a number determined by dividing the Exercise Price
immediately prior to such record date by the above fraction. Such
adjustments shall be made whenever any distribution is made and
shall become effective as of the date of distribution, retroactive
to the record date for any such distribution. No adjustment shall
be made pursuant to this Section 4(b) which shall have
the effect of decreasing the number of shares of Class A
Common Stock issuable upon exercise of this Warrant or increasing
the Exercise Price.
(c) Combination: Liquidation . (i) In the event of a
Combination (as defined below), each Holder shall have the right to
receive upon exercise of the Warrant the kind and amount of shares
of capital stock or other securities or property which such Holder
would have been entitled to receive upon or as a result of such
Combination had such Warrant been exercised immediately prior to
such event (subject to further adjustment in accordance with the
terms hereof). Unless paragraph (ii) is applicable to a
Combination, the Company shall provide that the surviving or
acquiring Person (the " Successor Company ") in such
Combination will assume by written instrument the obligations under
this Section 4 and the obligations to deliver to the
Holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, the Holder may be entitled to
acquire. " Combination " means an event in which the Company
consolidates with, mergers with or into, or sells all or
substantially all of its assets to another Person, where "
Person " means any individual, corporation, partnership,
joint venture, limited liability company, association, joint-stock
company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity;
(ii) In the event of (x) a Combination where
consideration to the holders of Class A Common Stock in
exchange for their shares is payable solely in cash or (y) the
dissolution, liquidation or winding-up of the Company, the Holders
shall be entitled to receive, upon surrender of their Warrant,
distributions on an equal basis with the holders of Class A
Common Stock or other securities issuable upon exercise of the
Warrant, as if the Warrant had been exercised imm
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