THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH
ACT OR SUCH LAWS.
IN ADDITION TO THE RESTRICTIONS SET FORTH IN THE SECURITIES
PURCHASE AGREEMENT AND THE SUPPLEMENTAL SECURITIES PURCHASE
AGREEMENT BY AND AMONG XXXXXX'X FURNITURE, INC., GENERAL ELECTRIC
CAPITAL CORPORATION AND JAPAN OMNIBUS LTD., THIS WARRANT IS
SUBJECT TO THE RESTRICTIONS SET FORTH IN THE STOCKHOLDERS
AGREEMENT BY AND AMONG XXXXXX'X FURNITURE, INC. AND THE
STOCKHOLDERS PARTIES THERETO, COPIES OF SUCH AGREEMENTS ARE ON
FILE IN THE OFFICES OF THE CORPORATION.
No. of Shares of Common Stock: (200,000)(400,000)[FN1]
[FN1] Based on whether the accompanying Standby Note
is issued in the amount of $1,250,000 or
$2,500,000.
WARRANT
To Purchase Shares of Common Stock of
XXXXXX'X FURNITURE, INC.
THIS IS TO CERTIFY THAT GENERAL ELECTRIC CAPITAL
CORPORATION, or registered assigns, is entitled, at any time
prior to the Expiration Date (as hereinafter defined), to
purchase from XXXXXX'X FURNITURE, INC., a Delaware corporation
(the "Company"), (200,000)(400,000)[FN1] [FN1: Based on whether
the accompanying Standby Note is issued in the amount of
$1,250,000 or $2,500,000.] shares of Common Stock (as hereinafter
defined and subject to adjustment as provided herein), in whole
or in part, at a purchase price of $1.25 per share, all on the
terms and conditions and pursuant to the provisions hereinafter
set forth.
1. DEFINITIONS
-----------
As used in this Warrant, the following terms have the
respective meanings set forth below:
"Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Company after the Closing
Date, other than Warrant Stock.
"Business Day" shall mean any day that is not a
Saturday or Sunday or a day on which banks are required or
permitted to be closed in the State of New York.
"Closing Date" shall mean August 14, 1997.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency then administering the
Securities Act and other federal securities laws.
"Common Stock" shall mean (except where the context
otherwise indicates) the Common Stock, $.001 par value, of the
Company as constituted on the Closing Date, and any capital stock
into which such Common Stock may thereafter be changed, and shall
also include (i) capital stock of the Company of any other class
(regardless of how denominated) issued to the holders of shares
of Common Stock upon any reclassification thereof which is not
preferred as to dividends or assets over any other class of stock
of the Company and which is not subject to redemption and (ii)
shares of common stock of any successor or acquiring corporation
(as defined in Section 4.8) received by or distributed to the
holders of Common Stock of the Company in the circumstances
contemplated by Section 4.8.
"Convertible Securities" shall mean evidences of
indebtedness, shares of stock or other securities which are
convertible into or exchangeable or exercisable, with or without
payment of additional consideration in cash or property, for
Additional Shares of Common Stock, either immediately or upon the
occurrence of a specified date or a specified event.
"Current Market Price" shall mean, in respect of any
share of Common Stock on any date herein specified, the closing
price per share of Common Stock on such date and, when used with
reference to shares of Common Stock for any period, shall mean
the average of the daily closing prices per share of Common Stock
for such period. The closing price for each day shall be the
last quoted sale price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc.,
Automated Quotation System or such other system then in use, or,
if on any such date the Common Stock or such other securities are
not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of
Directors of the Company. If the Common Stock is listed or
admitted to trading on a national securities exchange, the
closing price shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading
on the New York Stock Exchange or, if the Common Stock is not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Common Stock is listed
or admitted to trading.
"Current Warrant Price" shall mean, in respect of a
share of Common Stock at any date herein specified, the price at
which a share of Common Stock may be purchased pursuant to this
Warrant on such date.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, or any successor federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time. Reference to a
particular section of the Exchange Act shall include reference to
the comparable section, if any, of such successor federal
statute.
"Expiration Date" shall mean August 31, 2006.
"Holder" shall mean the Person in whose name this
Warrant is registered on the books of the Company maintained for
such purpose. "Holders" shall mean, collectively, each Holder of
a Warrant, in the event of any division of this Warrant.
"Majority Holders" shall mean the holders of Warrants
exercisable for in excess of 50% of the aggregate number of
shares of Warrant Stock then purchasable upon exercise of all
Warrants.
"Other Property" shall have the meaning set forth in
Section 4.8.
"Outstanding" shall mean, when used with reference to
Common Stock, at any date as of which the number of shares
thereof is to be determined, all issued shares of Common Stock,
except shares then owned or held by or for the account of the
Company or any subsidiary thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates
representing fractional interests in shares of Common Stock. For
the purposes of Sections 4.3, 4.4, 4.5, 4.6 and 4.7, Common Stock
Outstanding shall include all shares of Common Stock issuable in
respect of options or warrants to purchase, or securities
convertible into, shares of Common Stock, the exercise or
conversion price of which is less than the Current Market Price
as of any date on which the number of shares of Common Stock
Outstanding is to be determined.
"Permitted Issuances" shall mean issuances of shares of
Common Stock upon exercise of the warrants and options listed on
Schedule 1.
"Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor by
merger or otherwise of such entity.
"Restricted Common Stock" shall mean shares of Common
Stock which are, or which upon their issuance on the exercise of
this Warrant would be, evidenced by a certificate bearing the
restrictive legend set forth in Section 9.1(a).
"Securities Act" shall mean the Securities Act of 1933,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect at the time.
"Transfer" shall mean any disposition of any Warrant or
Warrant Stock or of any interest in either thereof, which would
constitute a sale thereof within the meaning of the Securities
Act.
"Transfer Notice" shall have the meaning set forth in
Section 9.2.
"Warrants" shall mean this Warrant and all warrants
issued upon transfer, division or combination of, or in
substitution for, any thereof. All Warrants shall at all times be
identical as to terms and conditions and date, except as to the
number of shares of Common Stock for which they may be exercised.
"Warrant Stock" shall mean the shares of Common Stock
purchased by the holders of the Warrants upon the exercise
thereof.
2. EXERCISE OF WARRANT
-------------------
2.1. MANNER OF EXERCISE. At any time or from time to
time from and after the Closing Date and until 5:00 P.M., New
York time, on the Expiration Date, Holder may exercise this
Warrant, on any Business Day, for all or any part of the number
of shares of Common Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part,
Holder shall deliver to the Company at its principal office at
000 Xxxxx Xxxxx Xxxxxx, Xxxx, XX 00000-0000 (i) a written notice
of Holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased,
(ii) payment of the Current Warrant Price and (iii) this Warrant.
Such notice shall be substantially in the form appearing at the
end of this Warrant as Exhibit A, duly executed by Holder. Upon
receipt of the items specified in the second preceding sentence,
the Company shall execute or cause to be executed and deliver or
cause to be delivered to Holder a certificate or certificates
representing the aggregate number of full shares of Common Stock
issuable upon such exercise, together with cash in lieu of any
fraction of a share, as hereinafter provided. The stock
certificate or certificates so delivered shall be in such
denomination or denominations as Holder shall request in the
notice and shall be registered in the name of Holder or, subject
to Section 9, such other name as shall be designated in the
notice. This Warrant shall be deemed to have been exercised and
such certificate or certificates shall be deemed to have been
issued, and Holder or any other Person so designated shall be
deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the Current
Warrant Price and this Warrant, are received by the Company as
described above. If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Stock, deliver
to Holder a new Warrant evidencing the right of Holder to
purchase the unpurchased shares of Common Stock called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of Holder,
appropriate notation may be made on this Warrant and the same
returned to Holder.
Payment of the Current Warrant Price shall be made at
the option of Holder by payment in cash, by certified or official
bank check, or by the surrender of shares of Common Stock having
a value equal to the aggregate warrant price of the shares of
Common Stock being purchased upon exercise of the Warrant, by
delivering to the Company certificates representing the number of
shares of Common Stock to be surrendered, duly endorsed by or
accompanied by appropriate instruments of transfer duly executed
by Holder. For the purposes of making payment of the Current
Warrant Price, the value of the Common Stock surrendered shall be
determined based upon the Current Market Price as of the date of
surrender of such shares of Common Stock. If Holder surrenders
shares of Common Stock in payment of the Current Warrant Price
and less than all of the shares of Common Stock represented by
any certificate are being surrendered, the Company shall deliver
to Holder a new certificate or certificates representing the
shares of Common Stock not applied to payment of the Current
Warrant Price; provided, however, that in lieu of any fractional
share of Common Stock which such Holder would otherwise be
entitled to receive, the Company shall pay to Holder an amount of
cash equal to such fraction multiplied by the Current Market
Price as of the date of surrender of the shares of Common Stock.
2.2. PAYMENT OF TAXES. All shares of Common Stock
issuable upon the exercise of this Warrant shall be validly
issued, fully paid and nonassessable and without any preemptive
rights. The Company shall pay all expenses in connection with,
and all taxes and other governmental charges that may be imposed
with respect to, the issue or delivery thereof.
2.3. FRACTIONAL SHARES. The Company shall not be
required to issue a fractional share of Common Stock upon
exercise of this Warrant. As to any fraction of a share which
Holder would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of
such fraction in an amount equal to the same fraction of the
Current Market Price per share of Common Stock on the date of
exercise.
3. TRANSFER, DIVISION AND COMBINATION
----------------------------------
3.1. TRANSFER. Subject to compliance with Section 9,
transfer of this Warrant and all rights hereunder, in whole or in
part, shall be registered on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at
the principal office of the Company referred to in Section 2.1,
together with a written assignment of this Warrant substantially
in the form of Exhibit B hereto duly executed by Holder and funds
sufficient to pay any transfer taxes payable upon the making of
such transfer. Upon such surrender and, if required, such
payment, the Company shall, subject to Section 9, execute and
deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination specified in such instrument of
assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be canceled. A Warrant, if properly
assigned in compliance with Section 9, may be exercised by a new
Holder for the purchase of shares of Common Stock without having
a new Warrant issued.
3.2. DIVISION AND COMBINATION. Subject to Section 9,
this Warrant may be divided into multiple Warrants or combined
with other Warrants upon presentation hereof at the aforesaid
office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are
to be issued, signed by Holder. Subject to compliance with
Section 3.1 and with Section 9, as to any transfer which may be
involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with
such notice.
3.3. EXPENSES. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new
Warrant or Warrants under this Section 3.
3.4. MAINTENANCE OF BOOKS. The Company agrees to
maintain, at its aforesaid office, books for the registration and
the registration of transfer of the Warrants.
4. ADJUSTMENTS
-----------
The number of shares of Common Stock for which this
Warrant is exercisable and/or the price at which such shares may
be purchased upon exercise of this Warrant, shall be subject to
adjustment from time to time as set forth in this Section 4. The
Company shall give each Holder notice of any event described
below which requires an adjustment pursuant to this Section 4 at
the time of such event.
4.1. STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS.
If at any time the Company shall:
(a) take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend
payable in, or other distribution of, Additional Shares of
Common Stock,
(b) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this
Warrant is exercisable immediately after the occurrence of any
such event shall be adjusted to equal the number of shares of
Common Stock which a record holder of the same number of shares
of Common Stock for which this Warrant is exercisable immediately
prior to the occurrence of such event would own or be entitled to
receive after the happening of such event, and (ii) the Current
Warrant Price per share shall be adjusted to equal (A) the
Current Warrant Price multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares for
which this Warrant is exercisable immediately after such
adjustment.
4.2. CERTAIN OTHER DISTRIBUTIONS. If at any time the
Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive any dividend or
other distribution of:
(a) cash,
(b) any evidences of its indebtedness, any shares of
its stock or any other securities or property of any nature
whatsoever (other than cash, Convertible Securities or
Additional Shares of Common Stock), or
(c) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of
its stock or any other securities or property of any nature
whatsoever (other than cash, Convertible Securities or
Additional Shares of Common Stock),
then (i) the number of shares of Common Stock for which this
Warrant is exercisable shall be adjusted to equal the product of
the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such adjustment by a fraction
(A) the numerator of which shall be the Current Market Price per
share of Common Stock at the date of taking such record and (B)
the denominator of which shall be such Current Market Price per
share of Common Stock minus the amount allocable to one share of
Common Stock of any such cash so distributable and of the fair
value (as determined in good faith by the Board of Directors of
the Company and supported by an opinion from an investment
banking firm of recognized national standing acceptable to the
Majority Holders) of any and all such evidences of indebtedness,
shares of stock, other securities or property or warrants or
other subscription or purchase rights so distributable, and (ii)
the Current Warrant Price shall be adjusted to equal (A) the
Current Warrant Price multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares for
which this Warrant is exercisable immediately after such
adjustment. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no
par value to par value) into shares of Common Stock and shares of
any other class of stock shall be deemed a distribution by the
Company to the holders of its Common Stock of such shares of such
other class of stock within the meaning of this Section 4.2 and,
if the outstanding shares of Common Stock shall be changed into a
larger or smaller number of shares of Common Stock as a part of
such reclassification, such change shall be deemed a subdivision
or combination, as the case may be, of the outstanding shares of
Common Stock within the meaning of Section 4.1.
4.3. ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK.
(a) If at any time the Company shall (except as hereinafter
provided) issue or sell any Additional Shares of Common Stock,
other than Permitted Issuances, in exchange for consideration in
an amount per Additional Share of Common Stock less than the
Current Warrant Price at the time the Additional Shares of Common
Stock are issued, then (i) the Current Warrant Price as to the
number of shares for which this Warrant is exercisable prior to
such adjustment shall be reduced to a price determined by
dividing (A) an amount equal to the sum of (x) the number of
shares of Common Stock Outstanding immediately prior to such
issue or sale multiplied by the then existing Current Warrant
Price, plus (y) the consideration, if any, received by the
Company upon such issue or sale, by (B) the total number of
shares of Common Stock Outstanding immediately after such issue
or sale; and (ii) the number of shares of Common Stock for which
this Warrant is exercisable shall be adjusted to equal the
product obtained by multiplying the Current Warrant Price in
effect immediately prior to such issue or sale by the number of
shares of Common Stock for which this Warrant is exercisable
immediately prior to such issue or sale and dividing the product
thereof by the Current Warrant Price resulting from the
adjustment made pursuant to clause (i) above.
(b) If at any time the Company shall (except as
hereinafter provided) issue or sell any Additional Shares of
Common Stock, other than Permitted Issuances, for consideration
in an amount per Additional Share of Common Stock less than the
Current Market Price, then (i) the number of shares of Common
Stock for which this Warrant is exercisable shall be adjusted to
equal the product obtained by multiplying the number of shares of
Common Stock for which this Warrant is exercisable immediately
prior to such issue or sale by a fraction (A) the numerator of
which shall be the number of shares of Common Stock Outstanding
immediately after such issue or sale, and (B) the denominator of
which shall be the number of shares of Common Stock Outstanding
immediately prior to such issue or sale plus the number of shares
which the aggregate offering price of the total number of such
Additional Shares of Common Stock would purchase at the then
Current Market Price; and (ii) the Current Warrant Price as to
the number of shares for which this Warrant is exercisable prior
to such adjustment shall be adjusted by multiplying such Current
Warrant Price by a fraction (X) the numerator of which shall be
the number of shares for which this Warrant is exercisable
immediately prior to such issue or sale; and (Y) the denominator
of which shall be the number of shares of Common Stock
purchasable immediately after such issue or sale.
(c) If at any time the Company (except as hereinafter
provided) shall issue or sell any Additional Shares of Common
Stock, other than Permitted Issuances, in exchange for
consideration in an amount per Additional Shares of Common Stock
which is less than the Current Warrant Price and the Current
Market Price at the time the Additional Shares of Common Stock
are issued, the adjustment required under Section 4.3 shall be
made in accordance with the formula in paragraph (a) or (b) above
which results in the lower Current Warrant Price following such
adjustment. The provisions of paragraphs (a) and (b) of Section
4.3 shall not apply to any issuance of Additional Shares of
Common Stock for which an adjustment is provided under Section
4.1 or 4.2. No adjustment of the number of shares of Common
Stock for which this Warrant shall be exercisable shall be made
under paragraph (a) or (b) of Section 4.3 upon the issuance of
any Additional Shares of Common Stock which are issued pursuant
to the exercise of any warrants or other subscription or purchase
rights or pursuant to the exercise of any conversion or exchange
rights in any Convertible Securities, if any such adjustment
shall previously have been made upon the issuance of such
warrants or other rights or upon the issuance of such Convertible
Securities (or upon the issuance of any warrant or other rights
therefor) pursuant to Section 4.4 or Section 4.5 herein.
4.4. ISSUANCE OF WARRANTS OR OTHER RIGHTS. If at any
time the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a distribution
of, or shall in any manner (whether directly or by assumption in
a merger in which the Company is the surviving corporation) issue
or sell, any warrants or other rights to subscribe for or
purchase any Additional Shares of Common Stock or any Convertible
Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share
for which Common Stock is issuable upon the exercise of such
Warrants or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Current Warrant
Price or the Current Market Price in effect immediately prior to
the time of such issue or sale, then the number of shares for
which this Warrant is exercisable and the Current Warrant Price
shall be adjusted as provided in Section 4.3 on the basis that
the maximum number of Additional Shares of Common Stock issuable
pursuant to all such warrants or other rights or necessary to
effect the conversion or exchange of all such Convertible
Securities shall be deemed to have been issued and outstanding
and the Company shall have received all of the consideration
payable therefor, if any, as of the date of the actual issuance
of the number of shares for which this Warrant is exercisable and
such warrants or other rights. No further adjustments of the
Current Warrant Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of
such warrants or other rights or upon the actual issue of such
Common Stock upon such conversion or exchange of such Convertible
Securities. Notwithstanding the foregoing, no adjustment shall
be required under this Section 4.4 solely by reason of the
issuance of stock purchase rights under a stockholder rights plan
of the Company, provided that the adjustments required by this
Section 4.4 shall be made if any "flip-in" or "flip-over" event
shall occur under such stockholder rights plan.
4.5. ISSUANCE OF CONVERTIBLE SECURITIES. If at any
time the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a distribution
of, or shall in any manner (whether directly or by assumption in
a merger in which the Company is the surviving corporation) issue
or sell, any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and
the price per share for which Common Stock is issuable upon such
conversion or exchange shall be less than the Current Warrant
Price or Current Market price in effect immediately prior to the
time of such issue or sale, then the number of shares for which
this Warrant is exercisable and the Current Warrant Price shall
be adjusted as provided in Section 4.3 on the basis that the
maximum number of Additional shares of Common Stock necessary to
effect the conversion or exchange of all such Convertible
Securities shall be deemed to have been issued and outstanding
and the Company shall have received all of the consideration
payable therefor, if any, as of the date of actual issuance of
such Convertible Securities. No adjustment of the number of
shares for which this Warrant is exercisable and the Current
Warrant Price shall be made under this Section 4.5 upon the
issuance of any Convertible Securities which are issued pursuant
to the exercise of any warrants or other subscription or purchase
rights therefor, if any such adjustment shall previously have
been made upon the issuance of such warrants or other rights
pursuant to Section 4.4. No further adjustments of the number of
shares for which this Warrant is exercisable and the Current
Warrant Price shall be made upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities
and, if any issue or sale of such Convertible Securities is made
upon exercise of any warrant or other right to subscribe for or
to purchase any such Convertible Securities for which adjustments
of the number of shares for which this Warrant is exercisable and
the Current Warrant Price have been or are to be made pursuant to
other provisions of this Section 4, no further adjustments of the
number of shares for which this Warrant is exercisable and the
Current Warrant Price shall be made by reason of such issue or
sale.
4.6. SUPERSEDING ADJUSTMENT. If, at any time after
any adjustment of the number of shares of Common Stock for which
this Warrant is exercisable and the Current Warrant Price shall
have been made pursuant to Section 4.4 or Section 4.5 as the
result of any issuance of warrants, rights or Convertible
Securities,
(a) such warrants or rights, or the right of
conversion or exchange in such other Convertible Securities,
shall expire, and all or a portion of such warrants or
rights, or the right of conversion or exchange with respect
to all or a portion of such other Convertible Securities, as
the case may be, shall not have been exercised, or
(b) the consideration per share for which shares of
Common Stock are issuable pursuant to such warrants or
rights, or the terms of such other Convertible Securities,
shall be increased solely by virtue of provisions therein
contained for an automatic increase in such consideration
per share upon the occurrence of a specified date or event,
then for each outstanding Warrant such previous adjustment shall
be rescinded and annulled and the Additional Shares of Common
Stock which were deemed to have been issued by virtue of the
computation made in connection with the adjustment so rescinded
and annulled shall no longer be deemed to have been issued by
virtue of such computation. Thereupon, a recomputation shall be
made of the effect of such rights or options or other Convertible
Securities on the basis of
(c) treating the number of Additional Shares of Common
Stock or other property, if any, theretofore actually issued
or issuable pursuant to the previous exercise of any such
warrants or rights or any such right of conversion or
exchange, as having been issued on the date or dates of any
such exercise and for the consideration actually received
and receivable therefor, and
(d) treating any such warrants or rights or any such
other Convertible Securities which then remain outstanding
as having been granted or issued immediately after the time
of such increase of the consideration per share for which
shares of Common Stock or other property are issuable under
such warrants or rights or other Convertible Securities;
whereupon a new adjustment of the number of shares of Common
Stock for which this Warrant is exercisable and the Current
Warrant Price shall be made, which new adjustment shall
supersede the previous adjustment so rescinded and annulled.
4.7. OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER
THIS SECTION. The following provisions shall be applicable to
the making of adjustments of the number of shares of Common Stock
for which this Warrant is exercisable and the Current Warrant
Price provided for in this Section 4:
(a) COMPUTATION OF CONSIDERATION. To the extent that
any Additional Shares of Common Stock or any Convertible
Securities or any warrants or other rights to subscribe for
or purchase any Additional Shares of Common Stock or any
Convertible Securities shall be issued for cash
consideration, the consideration received by the Company
therefor shall be the amount of the cash received by the
Company therefor, or, if such Additional Shares of Common
Stock or Convertible Securities are offered by the Company
for subscription, the subscription price, or, if such
Additional Shares of Common Stock or Convertible Securities
are sold to underwriters or dealers for public offering
without a subscription offering, the public offering price
(in any such case subtracting any amounts paid or receivable
for accrued interest or accrued dividends and without taking
into account any compensation, discounts or expenses paid or
incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). To the
extent that such issuance shall be for a consideration other
than cash, then, except as herein otherwise expressly
provided, the amount of such consideration shall be deemed
to be the fair value of such consideration at the time of
such issuance as determined in good faith by the Board of
Directors of the Company. In case any Additional Shares of
Common Stock or any Convertible Securities or any warrants
or other rights to subscribe for or purchase such Additional
Shares of Common Stock or Convertible Securities shall be
issued in connection with any merger in which the Company
issues any securities, the amount of consideration therefor
shall be deemed to be the fair value, as determined in good
faith by the Board of Directors of the Company, of such
portion of the assets and business of the nonsurviving
corporation as such Board in good faith shall determine to
be attributable to such Additional Shares of Common Stock,
Convertible Securities, warrants or other rights, as the
case may be. The consideration for any Additional Shares of
Common Stock issuable pursuant to any warrants or other
rights to subscribe for or purchase the same shall be the
consideration received by the Company for issuing such
warrants or other rights plus the additional consideration
payable to the Company upon exercise of such warrants or
other rights. The consideration for any Additional Shares
of Common Stock issuable pursuant to the terms of any
Convertible Securities shall be the consideration received
by the Company for issuing warrants or other rights to
subscribe for or purchase such Convertible Securities, plus
the consideration paid or payable to the Company in respect
of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any,
payable to the Company upon the exercise of the right of
conversion or exchange in such Convertible Securities. In
case of the issuance at any time of any Additional Shares of
Common Stock or Convertible Securities in payment or
satisfaction of any dividends upon any class of stock other
than Common Stock, the Company shall be deemed to have
received for such Additional Shares of Common Stock or
Convertible Securities a consideration equal to the amount
of such dividend so paid or satisfied.
(b) WHEN ADJUSTMENTS TO BE MADE. The adjustments
required by this Section 4 shall be made whenever and as
often as any specified event requiring an adjustment shall
occur, except that any adjustment of the number of shares of
Common Stock for which this Warrant is exercisable that
would otherwise be required may be postponed (except in the
case of a subdivision or combination of shares of the Common
Stock, as provided for in Section 4.1) up to, but not beyond
the date of exercise if such adjustment either by itself or
with other adjustments not previously made results in an
increase or decrease of less than 1% of the shares of Common
Stock for which this Warrant is exercisable immediately
prior to the making of such adjustment. Any adjustment
representing a change of less than such minimum amount
(except as aforesaid) which is postponed shall be carried
forward and made as soon as such adjustment, together with
other adjustments required by this Section 4 and not
previously made, would result in a minimum adjustment or on
the date of exercise. For the purpose of any adjustment,
any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(c) FRACTIONAL INTERESTS. In computing adjustments
under this Section 4, fractional interests in Common Stock
shall be taken into account to the nearest 1/100th of a
share.
(d) WHEN ADJUSTMENT NOT REQUIRED. If the Company
shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend or
distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders
thereof, legally abandon its plan to pay or deliver such
dividend, distribution, subscription or purchase rights,
then thereafter no adjustment shall be required by reason of
the taking of such record and any such adjustment previously
made in respect thereof shall be rescinded and annulled.
(e) ESCROW OF WARRANT STOCK. If after any property
becomes distributable pursuant to this Section 4 by reason
of the taking of any record of the holders of Common Stock,
but prior to the occurrence of the event for which such
record is taken, Holder exercises this Warrant, any
Additional Shares of Common Stock issuable upon exercise by
reason of such adjustment shall be deemed the last shares of
Common Stock for which this Warrant is exercised
(notwithstanding any other provision to the contrary herein)
and such shares or other property shall be held in escrow
for Holder by the Company to be issued to Holder when and to
the extent that the event actually takes place, upon payment
of the then Current Warrant Price. Notwithstanding any
other provision to the contrary herein, if the event for
which such record was taken fails to occur or is rescinded,
then such escrowed shares shall be canceled by the Company
and escrowed property returned.
(f) CHALLENGE TO GOOD FAITH DETERMINATION. Whenever
the Board of Directors of the Company shall be required to
make a determination in good faith of the fair value of any
item under this Section 4, such determination may be
challenged in good faith by the Majority Holders, and any
dispute shall be resolved by an investment banking firm of
recognized national standing selected by the Company and
acceptable to the Majority Holders.
4.8. REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. In case the Company
shall reorganize its capital, reclassify its capital stock,
consolidate or merge with or into another corporation (where the
Company is not the surviving corporation or where there is a
change in or distribution with respect to the Common Stock of the
Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another
corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets,
shares of common stock of the successor or acquiring corporation,
or any cash, shares of stock or other securities or property of
any nature whatsoever (including warrants or other subscription
or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are to
be received by or distributed to the holders of Common Stock of
the Company, then Holder shall have the right thereafter to
receive, upon exercise of this Warrant and payment of the Current
Warrant Price, the number of shares of common stock of the
successor or acquiring corporation or of the Company, if it is
the surviving corporation, and Other Property receivable upon or
as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a holder of the number
of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or
disposition of assets, the successor or acquiring corporation (if
other than the Company) shall expressly assume the due and
punctual observance and performance of each and every covenant
and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as
determined by resolution of the Board of Directors of the
Company) in order to provide for adjustments of shares of the
Common Stock for which this Warrant is exercisable which shall be
as nearly equivalent as practicable to the adjustments provided
for in this Section 4. For purposes of this Section 4.8, "common
stock of the successor or acquiring corporation" shall include
stock of such corporation of any class which is not preferred as
to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable for any
such stock, either immediately or upon the arrival of a specified
date or the happening of a specified event and any warrants or
other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.8 shall similarly apply to
successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
4.9. OTHER ACTION AFFECTING COMMON STOCK. In case at
any time or from time to time the Company shall take any action
in respect of its Common Stock, other than any action described
in this Section 4, then, unless such action will not have a
materially adverse effect upon the rights of the Holders, the
number of shares of Common Stock or other stock for which this
Warrant is exercisable and/or the purchase price thereof shall be
adjusted in such manner as may be equitable in the circumstances.
4.10. CERTAIN LIMITATIONS. Notwithstanding anything
herein to the contrary, the Company agrees not to enter into any
transaction which, by reason of any adjustment hereunder, would
cause the Current Warrant Price to be less than the par value per
share of Common Stock.
5. NOTICES TO WARRANT HOLDERS
--------------------------
5.1. NOTICE OF ADJUSTMENTS. Whenever the number of
shares of Common Stock for which this Warrant is exercisable, or
whenever the price at which a share of such Common Stock may be
purchased upon exercise of the Warrants, shall be adjusted
pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the
Company setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which the
Board of Directors of the Company determined the fair value of
any evidences of indebtedness, shares of stock, other securities
or property or warrants or other subscription or purchase rights
referred to in Section 4.2 or 4.7(a)), specifying the number of
shares of Common Stock for which this Warrant is exercisable and
(if such adjustment was made pursuant to Section 4.8 or 4.9)
describing the number and kind of any other shares of stock or
Other Property for which this Warrant is exercisable, and any
change in the purchase price or prices thereof, after giving
effect to such adjustment or change. The Company shall promptly
cause a signed copy of such certificate to be delivered to each
Holder in accordance with Section 13.2. The Company shall keep
at its principal office copies of all such certificates and cause
the same to be available for inspection at said office during
normal business hours by any Holder or any prospective purchaser
of a Warrant designated by a Holder thereof.
5.2. NOTICE OF CORPORATE ACTION. If at any time
(a) the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to
receive a dividend (other than a cash dividend payable out
of earnings or earned surplus legally available for the
payment of dividends under the laws of the jurisdiction of
incorporation of the Company) or other distribution, or any
right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the
capital stock of the Company or any consolidation or merger
of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets
or business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to
Holder (i) at least 20 days' prior written notice of the date on
which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at
least 20 days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing
clause also shall specify (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the
amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is
to take place and the time, if any such time is to be fixed, as
of which the holders of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in
accordance with Section 13.2.
6. RIGHTS OF HOLDERS
-----------------
6.1 NO IMPAIRMENT. The Company shall not by any
action, including, without limitation, amending its Certificate
of Incorporation or comparable governing instruments or through
any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to
protect the rights of Holder against impairment. Without
limiting the generality of the foregoing, the Company will (a)
not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such
increase in par value, (b) take all such action as may be
necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as
may be necessary to enable the Company to perform its obligations
under this Warrant.
Upon the request of Holder, the Company will at any
time during the period this Warrant is outstanding acknowledge in
writing, in form reasonably satisfactory to Holder, the
continuing validity of this Warrant and the obligations of the
Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY
-----------------------------------------------------------
From and after the Closing Date, the Company shall at
all times reserve and keep available for issue upon the exercise
of Warrants such number of its authorized but unissued shares of
Common Stock as will be sufficient to permit the exercise in full
of all outstanding Warrants. All shares of Common Stock which
shall be so issuable, when issued upon exercise of any Warrant
and payment therefor in accordance with the terms of such
Warrant, shall be duly and validly issued and fully paid and
nonassessable, and not subject to preemptive rights.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
--------------------------------------------------
In the case of all dividends or other distributions by
the Company to the holders of its Common Stock with respect to
which any provision of Section 4 refers to the taking of a record
of such holders, the Company will in each such case take such a
record and will take such record as of the close of business on a
Business Day. The Company will not at any time, except upon
dissolution, liquidation or winding up of the Company, close its
stock transfer books or Warrant transfer books so as to result in
preventing or delaying the exercise or transfer of any Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
-------------------------------
The Warrants and the Warrant Stock shall not be
transferred, hypothecated or assigned before satisfaction of the
conditions specified in this Section 9, which conditions are
intended to ensure compliance with the provisions of the
Securities Act with respect to the Transfer of any Warrant or any
Warrant Stock. Holder, by acceptance of this Warrant, agrees to
be bound by the provisions of this Section 9.
9.1. RESTRICTIVE LEGEND. Except as otherwise provided
in this Section 9, each Warrant and each certificate for Warrant
Stock initially issued upon the exercise of a Warrant, and each
certificate for Warrant Stock issued to any subsequent transferee
of any such certificate, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
"[THIS WARRANT AND THE SECURITIES REPRESENTED
HEREBY] [THE SECURITIES REPRESENTED BY THIS
CERTIFICATE] HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH
ACT OR SUCH LAWS."
"IN ADDITION TO THE RESTRICTIONS SET FORTH IN
THE SECURITIES PURCHASE AGREEMENT AND THE
SUPPLEMENTAL SECURITIES PURCHASE AGREEMENT BY AND
AMONG XXXXXX'X FURNITURE, INC., GENERAL ELECTRIC
CAPITAL CORPORATION AND JAPAN OMNIBUS LTD., [THIS
WARRANT IS] [THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE] SUBJECT TO THE RESTRICTIONS SET
FORTH IN THE STOCKHOLDERS AGREEMENT BY AND AMONG
XXXXXX'X FURNITURE, INC. AND THE STOCKHOLDERS
PARTIES THERETO, COPIES OF WHICH ARE ON FILE IN
THE OFFICES OF THE CORPORATION."
9.2. NOTICE OF PROPOSED TRANSFERS; REQUESTS FOR
REGISTRATION. Prior to any Transfer or attempted Transfer of any
Warrants or any shares of Restricted Common Stock, the holder of
such Warrants or Restricted Common Stock shall give ten days'
prior written notice (a "Transfer Notice") to the Company of such
holder's intention to effect such Transfer, describing the manner
and circumstances of the proposed Transfer, and obtain from
counsel to such holder who shall be reasonably satisfactory to
the Company, an opinion that the proposed Transfer of such
Warrants or such Restricted Common Stock may be effected without
registration under the Securities Act. After receipt of the
Transfer Notice and opinion, the Company shall, within five days
thereof, notify the holder of such Warrants or such Restricted
Common Stock as to whether such opinion is reasonably
satisfactory and, if so, such holder shall thereupon be entitled
to Transfer such Warrants or such Restricted Common Stock, in
accordance with the terms of the Transfer Notice. Each
certificate, if any, evidencing such shares of Restricted Common
Stock issued upon such Transfer and each Warrant issued upon such
Transfer shall bear the restrictive legend set forth in Section
9.1, unless in the opinion of such counsel such legend is not
required in order to ensure compliance with the Securities Act.
The holder of the Warrants or the Restricted Common Stock, as the
case may be, giving the Transfer Notice shall not be entitled to
Transfer such Warrants or such Restricted Common Stock until
receipt of notice from the Company under this Section 9.2 that
such opinion is reasonably satisfactory.
9.3. REGISTRATION RIGHTS. The holders of Warrants and
Warrant Stock shall have the registration rights set forth in the
Registration Rights Agreement.
9.4. TERMINATION OF RESTRICTIONS. Notwithstanding the
foregoing provisions of this Section 9, the restrictions imposed
by this Section upon the transferability of the Warrants, the
Warrant Stock and the Restricted Common Stock and the legend
requirements of Section 9.1 shall terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (i)
when and so long as such security shall have been effectively
registered under the Securities Act and disposed of pursuant
thereto or (ii) when the Company shall have received an opinion
of counsel reasonably satisfactory to it that such shares may be
transferred without registration thereof under the Securities
Act.
10. SUPPLYING INFORMATION
---------------------
The Company shall cooperate with each Holder of a
Warrant and each holder of Restricted Common Stock in supplying
such information as may be reasonably necessary for such holder
to complete and file any reports or forms presently or hereafter
required by the Commission as a condition to the availability of
an exemption from the Securities Act for the sale of any Warrant
or Restricted Common Stock.
11. LOSS OR MUTILATION
------------------
Upon receipt by the Company from any Holder of evidence
reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant and indemnity
reasonably satisfactory to it (it being understood that the
written agreement of GE Capital shall be sufficient indemnity),
and in case of mutilation upon surrender and cancellation hereof,
the Company will execute and deliver in lieu hereof a new Warrant
of like tenor to such Holder; provided, in the case of
mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation.
12. LIMITATION OF LIABILITY
-----------------------
No provision hereof, in the absence of affirmative
action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof,
shall give rise to any liability of such Holder for the purchase
price of any Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors
of the Company.
13. MISCELLANEOUS
-------------
13.1. NONWAIVER AND EXPENSES. No course of dealing or
any delay or failure to exercise any right hereunder on the part
of Holder shall operate as a waiver of such right or otherwise
prejudice Holder's rights, powers or remedies. If the Company
fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the
Company shall pay to Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees, including those of appellate
proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights,
powers or remedies hereunder.
13.2. NOTICE GENERALLY. Any notice, demand, request,
consent, approval, declaration, delivery or other communication
hereunder to be made pursuant to the provisions of this Warrant
shall be sufficiently given or made if in writing and either
delivered in person with receipt acknowledged or sent by
registered or certified mail, return receipt requested, postage
prepaid, or by telecopy and confirmed by telecopy answerback,
addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at
its last known address appearing on the books of the Company
maintained for such purpose.
(b) If to the Company at
Xxxxxx'x Furniture, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may
be waived in writing by the party entitled to receive such
notice. Every notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder shall be
deemed to have been duly given or served on the date on which
personally delivered, with receipt acknowledged, telecopied and
confirmed by telecopy answerback, or three (3) Business Days
after the same shall have been deposited in the United States
mail. Failure or delay in delivering copies of any notice,
demand, request, approval, declaration, delivery or other
communication to the person designated above to receive a copy
shall in no way adversely affect the effectiveness of such
notice, demand, request, approval, declaration, delivery or other
communication.
13.3. REMEDIES. Each holder of Warrant and Warrant
Stock, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled
to specific performance of its rights under of this Warrant. The
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
the provisions of this Warrant and hereby agrees to waive the
defense in any action for specific performance that a remedy at
law would be adequate.
13.4. SUCCESSORS AND ASSIGNS. Subject to the
provisions of Sections 3.1, this Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and assigns of
Holder. The provisions of this Warrant are intended to be for
the benefit of all Holders from time to time of this Warrant and,
with respect to Section 9 hereof, holders of Warrant Stock, and
shall be enforceable by any such Holder or holder of Warrant
Stock.
13.5. AMENDMENT. This Warrant and all other Warrants
may be modified or amended or the provisions hereof waived with
the written consent of the Company and the Majority Holders,
provided that no such Warrant may be modified or amended to
reduce the number of shares of Common Stock for which such
Warrant is exercisable or to increase the price at which such
shares may be purchased upon exercise of such Warrant (before
giving effect to any adjustment as provided therein) without the
prior written consent of the Holder thereof, provided however,
that the foregoing shall not limit the operation of Section 4.6.
13.6. SEVERABILITY. Wherever possible, each provision
of this Warrant shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Warrant shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
13.7. HEADINGS. The headings used in this Warrant are
for the convenience of reference only and shall not, for any
purpose, be deemed a part of this Warrant.
13.8. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK, FOR ANY ACTION,
PROCEEDING OR INVESTIGATION IN ANY COURT OR BEFORE ANY
GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF OR RELATING
TO THIS WARRANT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND
AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN
SUCH COURTS), AND FURTHER AGREES THAT SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO ITS
RESPECTIVE ADDRESS SET FORTH IN THIS WARRANT SHALL BE EFFECTIVE
SERVICE OF PROCESS FOR ANY LITIGATION BROUGHT AGAINST IT IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF
ANY LITIGATION ARISING OUT OF THIS WARRANT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN THE COURTS OF THE STATE OF NEW YORK OR THE
UNITED STATES OF AMERICA, IN EACH CASE LOCATED IN THE COUNTY OF
NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. EACH OF THE PARTIES IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION
WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS WARRANT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Company has caused this Warrant
to be duly executed and its corporate seal to be impressed hereon
and attested by its Secretary or an Assistant Secretary.
Dated:
---------------------
XXXXXX'X FURNITURE, INC.
By:
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
and Chief Financial
Officer
Attest:
By:
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Corporate Secretary
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant
irrevocably exercises this Warrant for the purchase of -------
Shares of Common Stock of XXXXXX'X FURNITURE, INC. and herewith
makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant and requests that
certificates for the shares of Common Stock hereby purchased (and
any securities or other property issuable upon such exercise) be
issued in the name of and delivered to ------------------- whose
address is ----------------- and, if such shares of Common Stock
shall not include all of the shares of Common Stock issuable as
provided in this Warrant, that a new Warrant of like tenor and
date for the balance of the shares of Common Stock issuable
hereunder be delivered to the undersigned.
-------------------------------
(Name of Registered Owner)
-------------------------------
(Signature of Registered Owner)
-------------------------------
(Street Address)
-------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with
the name as written upon the face of the within Warrant
in every particular, without alteration or enlargement
or any change whatsoever.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of
this Warrant hereby sells, assigns and transfers unto the
Assignee named below all of the rights of the undersigned under
this Warrant, with respect to the number of shares of Common
Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
---------------------------- -----------------------------
and does hereby irrevocably constitute and appoint ------------
attorney-in-fact to register such transfer on the books of
XXXXXX'X FURNITURE, INC. maintained for the purpose, with full
power of substitution in the premises.
Dated: Print Name:
-------------------- -----------------------
Signature:
------------------------
Witness:
--------------------------
NOTICE: The signature on this assignment must correspond with
the name as written upon the face of the within Warrant
in every particular, without alteration or enlargement
or any change whatsoever.
TABLE OF CONTENTS
-----------------
SECTION PAGE
------ ----
1. DEFINITIONS......................................... 2
2. EXERCISE OF WARRANT................................. 4
2.1. Manner of Exercise........................... 4
2.2. Payment of Taxes............................. 5
2.3. Fractional Shares............................ 6
3. TRANSFER, DIVISION AND COMBINATION.................. 6
3.1. Transfer..................................... 6
3.2. Division and Combination..................... 6
3.3. Expenses..................................... 6
3.4. Maintenance of Books......................... 6
4. ADJUSTMENTS......................................... 7
4.1. Stock Dividends, Subdivisions and
Combinations................................ 7
4.2. Certain Other Distributions................. 7
4.3. Issuance of Additional Shares of Common
Stock ..................................... 8
4.4. Issuance of Warrants or Other Rights........ 9
4.5. Issuance of Convertible Securities.......... 10
4.6. Superseding Adjustment...................... 11
4.7. Other Provisions Applicable to
Adjustments under this Section.............. 12
4.8. Reorganization, Reclassification,
Merger, Consolidation or Disposition
of Assets................................... 14
4.9. Other Action Affecting Common Stock......... 15
4.10. Certain Limitations......................... 15
5. NOTICES TO WARRANT HOLDERS.......................... 15
5.1. Notice of Adjustment....................... 15
5.2. Notice of Corporate Action.................. 16
6. RIGHTS OF HOLDERS.................................... 17
6.1. No Impairment............................... 17
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH APPROVAL OF ANY GOVERNMENTAL
AUTHORITY.......................................... 17
8. TAKING OF RECORD: STOCK AND WARRANT
TRANSFER BOOKS..................................... 17
9. RESTRICTIONS ON TRANSFERABILITY.................... 18
9.1. Restrictive Legend.......................... 18
9.2. Notice of Proposed Transfers; Requests
for Registration............................ 19
9.3. Registration Rights......................... 19
9.4. Termination of Restrictions................. 19
10. SUPPLYING INFORMATION.............................. 19
11. LOSS OR MUTILATION................................. 20
12. LIMITATION OF LIABILITY............................ 20
13. MISCELLANEOUS...................................... 20
13.1. Nonwaiver and Expenses...................... 20
13.2. Notice Generally............................ 20
13.3. Remedies.................................... 21
13.4. Successors and Assigns...................... 21
13.5. Amendment................................... 21
13.6. Severability................................ 22
13.7. Headings.................................... 22
13.8. Governing Law............................... 22
SIGNATURES.............................................. 23
EXHIBITS................................................ 24
Exhibit A - Subscription Form........................... 24
Exhibit B - Assignment Form............................. 25
Exhibit C-2: Standby Warrant (GECC)
-----------------------------------
WARRANT
To Purchase Shares of Common Stock of
XXXXXX'X FURNITURE, INC.
No. of Shares of Common Stock: (200,000)(400,000)[FN1]
[FN1: Based on whether the accompanying Standby Note
is issued in the amount of $1,250,000 or
$2,500,000.]
