DSW 2011 Annual Report Download - page 97

2. Adjustment of Purchase Price for New Issuances .
(a) Issuance of Additional Shares
. If at any time or from time to time after the date hereof, the Company shall issue or sell
Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 3.2(b)
and excluding
shares issued pursuant to Section 3.3 and 3.4
) without consideration or for a consideration per share less than the Purchase Price in effect
immediately prior to such issue or sale (the “ New Issuance Price ”), then, and in each such case, subject to Section 3.8
, the Purchase Price shall be
reduced concurrently with such issue or sale, to the applicable New Issuance Price.
(b) Treatment of Options and Convertible Securities
. Shares of Additional Shares of Common Stock shall be deemed
issued if the Company at any time or from time to time after the date hereof shall issue, sell, grant or assume, or shall fix a record date for the
determination of holders of any class of securities of the Company entitled to receive, any Options or Convertible Securities (whether or not the
rights thereunder are immediately exercisable) for a consideration per share (determined pursuant to Section 3.6
) that is less than the Purchase Price
in effect on the date of and immediately prior to such issue, sale, grant or assumption or immediately prior to the close of business on such record
date (or, if the Common Stock trades on an ex-dividend basis, on the date prior to the commencement of ex-
dividend trading). Such issuance shall be
deemed to occur (i) as of the time of such issue, sale, grant or assumption of the Convertible Securities or Options or (ii) in case such a record date
shall have been fixed, as of the close of business on such record date (or, if the Common Stock trades on an ex-
dividend basis, on the date prior to the
commencement of ex-
dividend trading). No further adjustment of the Purchase Price shall be made upon the subsequent issuance of shares of
Common Stock, as the case may be, upon the exercise of such Options or the conversion or exchange of such Convertible Securities.
3. Extraordinary Dividends and Distributions
. If the Company at any time or from time to time after the date hereof shall
declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution of other or additional stock or other
securities or property or Options by way of dividend or spin-
off, reclassification, recapitalization or similar corporate rearrangement) on the Common
Stock other than (a) a dividend payable in shares of Common Stock subject to Section 3.4
, or (b) a regularly scheduled cash dividend payable out of
consolidated earnings or earned surplus, determined in accordance with generally accepted accounting principles or (c) a deemed issuance of
Additional Shares of Common Stock pursuant to Section 3.2(b) , in each such case, subject to Section 3.8
, adequate provision shall be made so that
the Holder shall receive, upon Warrant exercise for such type of Warrant Shares, a pro rata share of such dividend or other distribution based upon the
maximum number of shares of Common Stock at the time issuable to the Holder (determined without regard to whether the Warrant is exercisable at
such time).
4. Treatment of Stock Dividends, Stock Splits, etc
. In case the Company at any time or from time to time after the date
hereof, shall declare or pay any dividend on the Common Stock payable in Common Stock or shall effect a subdivision of the outstanding shares of
Common Stock into a greater number of such shares (by reclassification or otherwise than by payment of a dividend in Common Stock), then, and in
each such case, the number of shares of Common Stock, as the case may be, obtainable upon exercise of this Warrant shall be proportionately
increased and the Purchase Price shall be proportionately decreased. In case the Company at any time or from time to time after the date hereof, shall
effect any combination or consolidation of the outstanding shares of Common Stock into a lesser number of such shares, then, and in each such case,
the number of shares of Common Stock obtainable upon exercise of this Warrant shall be proportionately decreased and the Purchase Price shall be
proportionately increased. Any adjustment made under this Section shall become effective (a) in the case of any such dividend, immediately after the
close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend, or (b) in the case of any
such subdivision, at the close of business on the day immediately prior to the day upon which such corporate action becomes effective.
5. Adjustment of Purchase Price for Other Issuances .
(a) Issuance of Additional Shares
. If at any time or from time to time after the date hereof, the Company shall issue or sell
Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 3.5(b)
) for a
consideration per share less than the Current Market Price thereof but greater than the Purchase Price in effect immediately prior to such issue or sale,
then, and in each such case, subject to Section 3.8
, the Purchase Price shall be reduced concurrently with such issue or sale, to a price (calculated to
the nearest .01 of a cent) determined by multiplying such Purchase Price by a fraction
(x)
The numerator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately
prior to such issue or sale and (ii) the number of shares of Common Stock which the aggregate consideration received by the
Company for the total number of such Additional Shares of Common Stock so issued or sold would purchase at the Current Market
Price thereof, and