DSW 2011 Annual Report Download - page 103

having been issued.
2. Transfer of Warrants . Subject to compliance with Section 10
, if applicable, this Warrant and all rights hereunder are
transferable in whole or in part, without charge to the Holder hereof, upon surrender of this Warrant with a properly executed Form of Assignment
attached hereto as Exhibit B
at the principal office of the Company. Upon any partial transfer, the Company shall at its expense issue and deliver to the
Holder a new Warrant of like tenor, in the name of the Holder, which shall be exercisable for such number of shares of Common Stock with respect to
which rights under this Warrant were not so transferred.
3. Replacement of Warrants
. On receipt by the Company 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 of this Warrant, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender of such Warrant to the
Company at its principal office and cancellation thereof, the Company at its expense shall execute and deliver, in lieu thereof, a new Warrant of like
tenor.
4. Adjustments to Purchase Price and Number of Shares
. Notwithstanding any adjustment in the Purchase Price or in the
number or kind of Warrant Shares purchasable upon exercise of this Warrant, any Warrant theretofore or thereafter issued may continue to express the
same number and kind of Warrant Shares as are stated in this Warrant, as initially issued.
5. Fractional Shares . Notwithstanding any adjustment pursuant to Section 3
in the number of Warrant Shares covered by
this Warrant or any other provision of this Warrant, the Company shall not be required to issue or transfer fractions of shares upon exercise of this
Warrant or to distribute certificates which evidence fractional shares. In lieu of fractional shares, the Company shall make payment to the Holder, at
the time of exercise of this Warrant as herein provided, in an amount in cash equal to such fraction multiplied by the Current Market Price of a share of
Common Stock on the date of Warrant exercise.
13. SECURITIES ACT MATTERS . The Holder represents and warrants to the Company as of the date hereof that:
(a)
The Holder is acquiring this Warrant for its own account, without a view to, or sale in connection with, the distribution
thereof. The Holder has no present agreement, undertaking, arrangement, commitment or obligation providing for the disposition of the Warrant or
the Warrant Shares, all without prejudice, however, to the right of the Holder at any time, in accordance with this Warrant, lawfully to sell or
otherwise to dispose of all or any part of the Warrant or Warrant Shares held by it;
(b) The Holder is an “accredited investor”
within the meaning of Regulation D under the Securities Act. The Holder has not
retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Warrant;
(c)
The Holder acknowledges that, subject to the Registration Rights Agreement (A) the Warrants and the Warrant Shares
have not been registered under the Securities Act, in reliance on the non-
public offering exemption contained in Section 4(2) of the Securities Act
and Regulation D thereunder; (B) because the Warrants and the Warrant Shares are not so registered, the Holder must bear the economic risk of
holding this Warrant and the Warrant Shares for an indefinite period of time unless the Warrants and the Warrant Shares are subsequently registered
under the Securities Act or an exemption from such registration is available with respect thereto; (C) Rule 144 under the Securities Act may or may
not be available for resales of the Warrants or the Warrant Shares in the future and, if so, may only be available for sales in limited amounts; (D)
there is presently no trading market for the Warrants and there is no assurance that such market will exist in the future; and (E) while there is
presently a trading market for the Warrant Shares, there is no assurance that such market will be in existence in the future; and
(d)
If the Holder decides to dispose of this Warrant or the Warrant Shares, which it does not now contemplate, the Holder
can do so only in accordance and in compliance with the Securities Act and Rule 144 or another exemption from the registration requirements of the
Securities Act, as then in effect or through an effective registration statement under the Securities Act.
14. REMEDIES; SPECIFIC PERFORMANCE
. The Company stipulates that there would be no adequate remedy at law to any
Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant and
accordingly, the Company agrees that, in addition to any other remedy to which the Holder may be entitled at law or in equity, the Holder shall be
entitled to seek to compel specific performance of the obligations of the Company under this Warrant, without the posting of any bond, in accordance
with the terms and conditions of this Warrant in any court of the United States or any State thereof having jurisdiction, and if any action should be
brought in equity to enforce any of the provisions of this Warrant, the Company shall not raise the defense that there is an adequate remedy at law.
Except as otherwise