DSW 2011 Annual Report Download - page 94

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“ Class A Common Stock ” means the shares of the Class A Common Stock, no par value, of the Company.
“ Class B Common Stock ” means the shares of the Class B Common Stock, no par value, of the Company.
“ Commission ”
shall mean the Securities and Exchange Commission or any successor agency having jurisdiction to enforce the Securities
Act.
“ Common Stock ”
shall have the meaning assigned to it in the introduction to this Warrant, such term to include any stock into which such
Common Stock shall have been changed or any stock resulting from any reclassification of such Common Stock, and all other stock of any class or
classes (however designated) of the Company the holders of which have the right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of dividends and distributions on any shares entitled to preference.
“ Common Stock Exercise Amount ”
shall initially mean the Initial Common Stock Exercise Amount, as the same may be adjusted and
readjusted pursuant to Section 3
hereof; and shall be reduced upon each exercise of this Warrant by such number of shares of Common Stock for
which this Warrant is then being exercised.
“ Company ”
shall have the meaning assigned to it in the introduction to this Warrant, such term to include any corporation or other entity
which shall succeed to or assume the obligations of the Company hereunder in compliance with Section 4 .
“ Convertible Securities ”
shall mean any evidences of indebtedness, shares of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Additional Shares of Common Stock.
“ CPLP ” shall mean Cerberus Partners, L.P., or its assignees.
“ Current Market Price ”
shall mean, with respect to a security, whether securities issuable for or convertible into Class A Common Stock or
Class B Common Stock, on any date specified herein, the average of the daily Market Price for a share of Class A Common Stock during the 10
consecutive trading days before such date, except that, if on any such date the shares of Class A Common Stock are not listed or admitted for trading
on any national securities exchange or quoted in the over-the-counter market, the Current Market Price shall be the Market Price on such date.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder, or
any successor statute.
“ Expiration Date ” shall have the meaning assigned to it in the introduction to this Warrant.
“ Fair Value ”
shall mean, on any date specified herein (i) in the case of cash, the dollar amount thereof, (ii) in the case of a security, the
Current Market Price, and (iii) in all other cases, the fair value thereof (as of a date which is within 20 days of the date as of which the determination is
to be made) determined in good faith by a committee of the Company's Board of Directors consisting of directors who are not Affiliates of the
Company, SSC or the Holder; provided, however, that at the reasonable request of the Holder, the Fair Value shall be determined in good faith by an
independent investment banking firm selected jointly by the Company and the Holder or, if that selection cannot be made within 10 days, by an
independent investment banking firm selected by the American Arbitration Association in accordance with its rules, and provided, further, that the
Company shall pay all of the reasonable fees and expenses of any third parties incurred in connection with determining the Fair Value.
“ Holder ” shall have the meaning assigned to it in the introduction to this Warrant.
“ Initial Common Stock Exercise Amount ” means _______ shares of Common Stock.
“ Initial Holders ” shall mean CPLP, SSC and Back Bay Capital Funding LLC.
“ Market Price ”
shall mean, on any date specified herein, with respect to any security, whether securities for or convertible into shares of
Class A Common Stock or Class B Common Stock, the amount per share of such security equal to (i) the last reported sale price of the Class A
Common Stock, regular way, on such date or, in case no such sale takes place on such date, the average of the closing bid and asked prices thereof,
regular way, on such date, in either case as officially reported on the principal national securities exchange on which the Class A Common Stock is
then listed or admitted for trading, (ii) if the Class A Common Stock is not then listed or admitted for trading on any national securities exchange but is
designated as a national market system security by the NASD, the last reported trading price of the Class A Common Stock on such date, (iii) if there
shall have been no trading on such date or if the Class A Common Stock is not so designated, the average of the closing bid and asked prices of the
Class A