DSW 2011 Annual Report Download - page 95

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Common Stock on such date as shown by the NASD automated quotation system, (iv) if trading in Class A Common Stock is quoted in the over-the-
counter market, the average of the closing bid and asked prices of the security on such date as shown on the OTC Bulletin Board, or (v) if Class A
Common Stock is not then listed or admitted for trading on any national exchange or quoted in the over-the-
counter market, 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 request of the
Holder, the Market Price 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 fees and expenses of any third parties incurred in connection
with determining the Market Price.
“ NASD ” shall mean the National Association of Securities Dealers, Inc.
“ New Issuance Price ” shall have the meaning set forth in Section 3.2 .
“ Options ”
shall mean any rights, options or warrants to subscribe for, purchase or otherwise acquire Additional Shares of Common Stock or
Convertible Securities of the Company.
“ Original Issuance Date ” means September 26, 2002.
“ Other Securities ”
shall mean any stock (other than Common Stock) and other securities of the Company or any other Person (corporate or
otherwise) which the holders of the Term Loan Warrants at any time shall be entitled to receive, or shall have received, upon the exercise of the Term
Loan Warrants, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 4 or otherwise.
“ Person ”
shall mean any individual, firm, partnership, corporation, trust, joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such entity.
“ Purchase Price ” shall mean initially $10.3448 per share, subject to adjustment and readjustment from time to time as provided in Section 3
,
and, as so adjusted or readjusted, shall remain in effect until a further adjustment or readjustment thereof is required by Section 3 .
“ Registration Rights Agreement ”
shall mean the Registration Rights Agreement, dated as of June 5, 2005, among the Company and the
Initial Holders.
“ Restricted Securities ” shall mean (i) any Term Loan Warrants bearing the applicable legend set forth in Section 10.1
, (ii) any shares of
Common Stock (or Other Securities) issued or issuable upon the exercise of Term Loan Warrants which are (or, upon issuance, will be) evidenced by a
certificate or certificates bearing the applicable legend set forth in Section 10.1
, and (iii) any shares of Common Stock (or Other Securities) issued
subsequent to the exercise of any of the Term Loan Warrants as a dividend or other distribution with respect to, or resulting from a subdivision of the
outstanding shares of Common Stock (or Other Securities) into a greater number of shares by reclassification, stock splits or otherwise, or in exchange
for or in replacement of the Common Stock (or Other Securities) issued upon such exercise, which are evidenced by a certificate or certificates bearing
the applicable legend set forth in Section 10.1 .
“ Securities Act ”
shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations thereunder, or any
successor statute.
“ SSC ” shall mean Schottenstein Stores Corporation.
“ Term Loan Warrants ”
shall mean all warrants initially issued pursuant to the Financing Agreement (as amended and restated), including
this Warrant.
“ Warrant ” shall have the meaning assigned to it in the introduction to this Warrant.
“ Warrant Shares ” means (a) the shares of Common Stock issued or issuable upon exercise of this Warrant in accordance with Section 2
, (b)
all other securities or other property issued or issuable upon any such exercise or exchange in accordance with this Warrant and (c) any securities of
the Company distributed with respect to the securities referred to in the preceding clauses