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EXHIBIT 4.4
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION, QUALIFICATION
OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER SAID ACT. THE OFFERING OF THIS
SECURITY HAS NOT BEEN REVIEWED OR APPROVED BY ANY STATE'S SECURITIES
ADMINISTRATOR.
WARRANT
TO PURCHASE 270,453 SHARES OF COMMON STOCK OF
FLORSHEIM GROUP INC.
EXPIRING NOVEMBER 15, 2005
DATE OF ISSUANCE: NOVEMBER 15, 2000 CERTIFICATE NO. W-1
THIS IS TO CERTIFY THAT, for value received, BT COMMERCIAL
CORPORATION, or registered assigns (the "HOLDER") is entitled to purchase from
FLORSHEIM GROUP INC., a Delaware corporation (the "COMPANY"), at any time or
from time to time prior to 5:00 p.m., New York City time, on November 15, 2005
at the offices of the Company, at the Exercise Price (as hereinafter defined)
the number of shares of Common Stock, without par value (the "COMMON STOCK"), of
the Company shown above, all subject to adjustment and upon the terms and
conditions as hereinafter provided, and is entitled also to exercise the other
appurtenant rights, powers and privileges hereinafter described. This Warrant is
one of one or more Warrants of the same form and having the same terms as this
Warrant.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 METHOD OF EXERCISE. To exercise this Warrant in whole or
in part, the Holder shall deliver to the Company, (a) this Warrant, (b) a
written notice, in substantially the form of the Subscription Notice attached
hereto, of such Holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased, the
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denominations of the share certificate or certificates desired, the name or
names in which such certificates are to be registered, and (c) payment of the
Exercise Price with respect to such shares. Notwithstanding the foregoing, this
Warrant shall be exercisable only, to the extent and at the time or times, that
the Holder could legally take possession and title of such shares. Payment made
pursuant to clause (c) above may be made, at the option of the Holder: (x) by
cash, money order, certified or bank cashier's check or wire transfer, (y) the
surrender to the Company of securities of the Company having a Fair Market Value
equal to the aggregate Exercise Price, or (z) the delivery of a notice to the
Company that the Holder is exercising this Warrant by authorizing the Company to
reduce the number of shares of Common Stock subject to this Warrant by the
number of shares having an aggregate Fair Market Value equal to the aggregate
Exercise Price.
The Company shall, as promptly as practicable and in any event
within five Business Days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with such notice, a certificate or
certificates representing the aggregate number and type of shares of Common
Stock specified in said notice. The share certificate or certificates so
delivered shall be in such denominations as may be specified in such notice or,
if such notice shall not specify denominations, shall be in the amount of the
number of shares of Common Stock for which the Warrant is being exercised, and
shall be issued in the name of the Holder or such other name or names as shall
be designated in such notice, subject to Section 1.4. Such certificate or
certificates shall be deemed to have been issued, and such Holder or any other
Person so designated to be named therein shall be deemed for all purposes to
have become a holder of record of such shares, as of the date the aforementioned
notice is received by the Company. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining 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 the Holder, appropriate notation may be made on this Warrant
which shall then be returned to the Holder. The Company shall pay all expenses,
taxes and other charges payable in connection with the preparation, issuance and
delivery of share certificates and new Warrants (other than the Holder's legal
and accounting fees and disbursements), except that, if share certificates or
new Warrants shall be registered in the name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise of promptly upon receipt or a written request
of the Company for payment.
1.2 SHARES TO BE FULLY PAID AND NONASSESSABLE. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes, liens and charges with respect to the issue
thereof (other than transfer taxes).
1.3 NO FRACTIONAL SHARES TO BE ISSUED. The Company shall not
be required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, and if the Company shall have elected not to
issue such fraction of a share, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
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Market Value per share of outstanding Common Stock of the Company on the
Business Day immediately prior to the date of such exercise.
1.4 SHARE LEGEND. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Securities Act, shall bear the following legend:
"This Security has not been registered under the Securities
Act of 1933, as amended, or under the securities laws of any
state or other jurisdiction and may not be sold, offered for
sale or otherwise transferred unless registered or qualified
under said Act and applicable state securities laws or unless
the Company receives an opinion of counsel reasonably
satisfactory to the Company that registration, qualification
or other such actions are not required under said Act. The
offering of this Security has not been reviewed or approved by
any state securities administrator."
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate (who may be an employee of
such holder) reasonably satisfactory to the Company, the securities represented
thereby are no longer subject to restrictions on resale under the Securities
Act.
1.5 RESERVATION; AUTHORIZATION. The Company has reserved and
will keep available for issuance upon exercise of the Warrants the total number
of shares of Common Stock deliverable upon exercise of all Warrants from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with the Warrants, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 OWNERSHIP OF WARRANT. The Company may deem and treat the
Person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any
Person) for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of transfer as
provided in this Article II.
2.2 TRANSFER OF WARRANT. The Company agrees to maintain books
for the registration of transfers of the Warrants, and transfer of this Warrant
and all rights hereunder shall be registered, in whole or in part, on such
books, upon surrender of this Warrant at the headquarters of the company,
together with a written assignment of this Warrant duly executed by the Holder
or his duly authorized agent or attorney, with (unless the Holder is the
original
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Warrantholder) signatures guaranteed by a bank or trust Company or a broker or
dealer registered with the NASD, and funds sufficient to pay any transfer taxes
payable upon such transfer. Upon surrender the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignees and in the denominations
specified in the instrument of assignment, and this Warrant shall promptly be
canceled. The Company shall not be required to register any transfers in
violation of Section 2.6 hereof, or if the Holder fails to furnish to the
Company, after a request therefor, an opinion of counsel reasonably satisfactory
to the Company that such transfer is exempt from the registration requirements
of the Securities Act.
2.3 DIVISION OR COMBINATION OF WARRANTS. This Warrant may be
divided or combined with other Warrants upon surrender hereof and of any Warrant
or Warrants with which this Warrant is to be combined at the Company, together
with a written notice specifying the names and denominations in which the new
Warrant or Warrants are to be issued, signed by the holders hereof and thereof
or their respective duly authorized agents or attorneys. Subject to compliance
with Section 2.6 as to any transfer which may be involved in the 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.
2.4 LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANTS. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the in case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.5 EXPENSES OF DELIVERY OF WARRANTS. The Company shall pay
all expenses, taxes (other than transfer taxes or income taxes of a Holder and
such Holder's legal and accounting fees and disbursement) and other charges
payable in connection with the preparation, issuance and delivery of Warrants
and shares issuable upon exercise of the Warrants hereunder.
2.6 RESTRICTIONS ON TRANSFER AND DIVISION. No division,
assignment or transfer of the rights of a Warrantholder under a Warrant shall be
effective with respect to other than whole shares of Common Stock, unless such
assignment or transfer is of all of the rights of such Warrantholder under such
Warrant; provided, however, that if this Warrant is originally exercisable with
respect to a number of shares of Common Stock that includes a fractional share,
this Warrant may be divided such that such fractional share, together with one
or more whole shares, may be acquired by the exercise of a Warrant resulting
from such division; and provided further, that any transfer of this Warrant to
any other person prior to the date which is 12 months after the date hereof
shall be subject to the approval of the Company. The terms of this Warrant shall
be binding upon the successors and assigns of the holder hereof.
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ARTICLE III
CERTAIN RIGHTS
3.1 CONTEST AND APPRAISAL RIGHTS. Upon each determination of
Fair Market Value for an adjustment pursuant to Article IV (other than a
determination relating solely to setting the value of fractional shares), the
Company shall promptly give notice thereof to all Warrantholders, setting forth
in reasonable detail the calculation of such Fair Market Value and the method
and basis of determination thereof, as the case may be. If the Requisite Holders
shall disagree with such determination and shall, by notice to the Company given
within 15 days after the Company's notice of such determination, elect to
dispute such determination, such dispute shall be resolved in accordance with
this Section 3.1. In the event that a determination of Market Price, or a
determination of Fair Market Value solely involving Market Price, is disputed,
such dispute shall be submitted to a New York Stock Exchange member firm
selected by the Company and acceptable to the Warrantholders, whose
determination of Fair Market Value and/or Market Price, as the case may be,
shall be binding on the Company and the Warrantholders. The costs of such
submission shall be borne by the Warrantholders electing to dispute the
Company's determination, except that if such firm's determination of Fair Market
Value and/or Market Price is disparate by 10% or more to the benefit of the
Warrantholders from the Company's original determination, the costs of
conducting such submission shall be borne by the Company. In the event that a
determination of Fair Market Value, other than a determination solely involving
Market Price, is disputed, such dispute shall be resolved through the Appraisal
Procedure.
3.2 REGISTRATION RIGHTS.
(a) At any time subsequent to the date that is 12 months after
the date hereof, the holder of this Warrant (or of the Common Stock issued upon
exercise hereof) shall have the right to demand in writing that the Company
effect an underwritten registration under the Securities Act of 1933, as amended
(the "Securities Act"), of all or part of the Common Stock issued or issuable
upon the exercise of this Warrant (such Common Stock being referred to herein as
"REGISTRABLE SECURITIES"); provided, however, that the only securities which the
Company shall be required to register pursuant hereto shall be shares of common
stock of the Company; provided further, that the reasonably anticipated
aggregate price to the public would equal at least $573,750. In no event shall
the Company be obligated to effect more than one (1) registrations under this
Section 3.2(a).
(b) If the Company at any time subsequent to the date that is
12 months after the date hereof proposes to register any of its equity
securities under the Securities Act for sale to the public, whether or not for
sale for its own account, in a manner which would permit registration of the
Registrable Securities, it will each such time give prompt written notice to the
holder of this Warrant (or of the Common Stock issued upon exercise hereof) of
the Company's intent to do so and of said holders' rights hereunder. Upon the
written request of any such holder made within 30 days after the receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of disposition), the
Company shall register under the Securities Act all Registrable Securities that
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the Company has been so requested to register, to the extent required to permit
the disposition (in accordance with the intended methods) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the securities which the Company
proposes to register. If the underwriter of any such registered offering
indicates that in its opinion it is inadvisable to include the total number of
equity securities that would otherwise be registered, the number of securities
to be sold by each entity in such offering other than the Company shall be
reduced in proportion to the total number of shares desired to be sold by such
entity.
(c) The Company shall bear all of the costs, filing fees and
other expenses in connection with any registration under this Section 3.2,
except that the holder of the Registrable Securities shall pay the all
underwriting discounts and commissions in connection with such registration. The
Company may require each proposed holder of Registrable Securities as to which
any registration is being effected to promptly furnish the Company, as a
condition precedent to including such holder's Registrable Securities in any
registration, such information regarding such Holder and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(d) If, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with any registration hereunder, the
Company shall determine for any reason not to effect or to delay such
registration, the Company may, at its election, give written notice of such
determination to the holder of Registrable Securities and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration,
without prejudice, however to the rights of the holder of Registrable Securities
entitled to do so to request that such registration be effected as a demand
registration under Section 3.2(a), and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering any other securities
being registered by the Company.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 ADJUSTMENTS GENERALLY. The Exercise Price and the number
of shares of Common Stock (or other securities or property) issuable upon
exercise of this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events, as provided in this Article IV.
4.2 COMMON STOCK REORGANIZATION. If the Company shall after
the date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"COMMON STOCK REORGANIZATION"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a price determined by multiplying the Exercise Price in effect immediately prior
to such
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record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (b) the number of shares of Common Stock subject to purchase
upon exercise of this Warrant shall be adjusted, effective at such time, to a
number determined by multiplying the number of shares of Common Stock subject to
purchase immediately before such Common Stock Reorganization by a fraction, the
numerator of which shall be the number of shares outstanding after giving effect
to such Common Stock Reorganization and the denominator of which shall be the
number of shares of Common Stock outstanding immediately before such Common
Stock Reorganization.
4.3 COMMON STOCK DISTRIBUTION. (a) If the Company shall after
the date of issuance of this Warrant issue or otherwise sell or distribute any
shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization
(any such event, including any event described in paragraphs (b) and (c) below,
being herein called a "COMMON STOCK DISTRIBUTION"), if such Common Stock
Distribution shall be for a consideration per share less than the Fair Market
Value per share of outstanding Common Stock of the Company on the date of such
Common Stock Distribution, or on the first date of the announcement of such
Common Stock Distribution (whichever is less), then, effective upon such Common
Stock Distribution, the number of shares of Common Stock purchasable upon
exercise of this Warrant shall be adjusted by multiplying the number of shares
of Common Stock subject to purchase upon exercise of this Warrant by a fraction,
the numerator of which shall be the total number of shares of Common Stock
outstanding (and issuable upon exercise or conversion of outstanding options,
warrants and convertible securities) immediately prior to such Common Stock
Distribution plus the number of shares of Common Stock issued (or deemed to be
issued pursuant to paragraphs (b) and (c) below) in such Common Stock
Distribution and the denominator of which shall be an amount equal to the sum of
(A) the number of shares of Common Stock outstanding (and issuable upon exercise
or conversion of outstanding options, warrants and convertible securities)
immediately prior to the Common Stock Distribution, plus (B) the number of
shares of Common Stock which the aggregate consideration, if any, received by
the Company (determined as provided below) for such Common Stock Distribution
would buy at the Fair Market Value thereof, as of the date immediately prior to
such Common Stock Distribution or as of the date immediately prior to the date
of announcement of such Common Stock Distribution (whichever is less). In the
event of any such adjustment, the Exercise Price for each Warrant shall be
adjusted to a number determined by dividing the Exercise Price immediately prior
to such Common Stock Distribution by the fraction used for purposes of the
aforementioned adjustment.
The provisions of this paragraph (a), including by operation
of paragraph (b) or (c) below, shall not operate to increase the Exercise Price
or to reduce the number of shares of Common Stock subject to purchase upon
exercise of this Warrant.
(b) If the Company shall after the date of issuance of this
Warrant issue, sell, distribute or otherwise grant in any manner (whether
directly or by assumption in a merger or otherwise) any rights to subscribe for
or to purchase, or any warrants or options for the purchase of, Common Stock or
any stock or securities convertible into or exchangeable for Common Stock (such
rights, warrants or options being herein called "OPTIONS" and such convertible
or
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exchangeable stock or securities being herein called "CONVERTIBLE SECURITIES"),
whether or not such Options or the rights to convert or exchange any such
Convertible Securities are immediately exerciseable, and the price per share for
which Common Stock is issuable upon the exercise of such Options or upon
conversion or exchange of such Convertible Securities (determined by dividing
(i) the aggregate amount, if any, received or receivable by the Company as
consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Company upon the exercise of
all such Options, plus, in the case of Options to acquire Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the issue or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options) shall be less than the Fair Market Value per share of outstanding
Common Stock of the Company on the date of granting such Options or on the date
of announcement thereof (whichever is less), then for purposes of paragraph (a)
above, the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise of such Options
shall be deemed to have been issued as of the date of granting of such Options
and thereafter shall be deemed to be outstanding and the Company shall be deemed
to have received as consideration such price per share therefor, determined as
provided above. Except as otherwise provided in paragraph (d) below, no
additional adjustment of the number of shares of Common Stock purchasable upon
the exercise of this Warrant or of the Exercise Price shall be made upon the
actual exercise of such Options or upon conversion or exchange of such
Convertible Securities.
(c) If the Company shall after the date of issuance of this
Warrant issue, sell or otherwise distribute or grant (whether directly or by
assumption in a merger or otherwise) 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 (determined by dividing (i) the aggregate amount received or receivable
by the Company as consideration for the issue, sale or distribution of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Fair Market Value per share of outstanding Common Stock of the
Company on the date of such issue, sale or distribution or on the date of
announcement thereof (whichever is less), then, for purposes of paragraph (a)
above, the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed to
have been issued as of the date of the issue, sale or distribution of such
Convertible Securities and thereafter shall be deemed to be outstanding and the
Company shall be deemed to have received as consideration such price per share
therefor, determined as provided above. Except as otherwise provided in
paragraph (d) below, no additional adjustment of the number of shares of Common
Stock purchasable upon exercise of this Warrant or of the Exercise Price shall
be made upon the actual conversion or exchange of such Convertible Securities.
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(d) If the purchase price provided for in any Option referred
to in paragraph (b) above, the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities referred to in
paragraph (b) or (c) above, or the rate at which any Convertible Securities
referred to in paragraph (b) or (c) above are convertible into or exchangeable
for Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against, and having the effect of protecting
against, dilution upon an event which results in a related adjustment pursuant
to this Article IV), the number of shares of Common Stock purchasable upon
exercise of this Warrant and the Exercise Price then in effect shall forthwith
be readjusted (effective only with respect to any exercise of this Warrant after
such readjustment) to the number of shares of Common Stock purchasable upon
exercise of this Warrant and the Exercise Price which would then be in effect
had the adjustment made upon the issue, sale, distribution or grant of such
Options or Convertible Securities been made based upon such changed purchase
price, additional consideration or conversion rate, as the case may be;
provided, however, that such readjustment shall give effect to such change only
with respect to such Options and Convertible Securities as then remain
outstanding. If, at any time after any adjustment of the number of shares of
Common Stock purchasable upon exercise of each Warrant or the Exercise Price
shall have been made pursuant to this Article IV on the basis of the issuance of
any Option or Convertible Securities or after any new adjustments of the number
of shares of Common Stock purchasable upon exercise of each Warrant or the
Exercise Price shall have been made pursuant to this paragraph, the right of
conversion, exercise or exchange in such Option or Convertible Securities shall
expire or terminate, and the right of conversion, exercise or exchange in
respect of a portion of such Option or Convertible Securities shall not have
been exercised, such previous adjustment shall be rescinded and annulled.
Thereupon, a recomputation shall be made of the effect of such Option or
Convertible Securities on the basis of treating the number of shares of Common
Stock, if any, theretofore actually issued or issuable pursuant to the previous
exercise of such right of conversion, exercise or exchange as having been issued
on the date or dates of such conversion, exercise or exchange and for the
consideration actually received and receivable therefor, and treating any such
Option or Convertible Securities which then remain outstanding as having been
granted or issued immediately after the time of any such issuance for the
consideration per share for which shares of Common Stock are issuable under such
Option or Convertible Securities; and, if and to the extent called for by the
foregoing provisions of this Section on the basis aforesaid, a new adjustment of
the number of shares of Common Stock purchasable upon exercise of each Warrant
and the Exercise Price shall be made, which new adjustment shall supersede
(effective only with respect to any exercise of this Warrant after such
readjustment) the previous adjustment so rescinded and annulled.
(e) If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for cash, the consideration
received therefor shall be deemed to be the gross amount received by the Company
(with no deduction for any underwriting commissions or concessions paid or
allowed by the Company in connection therewith). If any
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shares of Common Stock, Options or Convertible Securities shall be issued, sold
or distributed for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be deemed to be the
Fair Market Value of such consideration as determined in good faith by the Board
of Directors of the Company (with no deduction for any underwriting commissions
or concessions paid or allowed by the Company in connection therewith). If any
shares of Common Stock Options or Convertible Securities shall be issued in
connection with any merger in which the Company is the surviving corporation,
the amount of consideration therefor shall be deemed to be the Fair Market Value
of such portion of the assets and business of the nonsurviving corporation as
shall be attributable to such Common Stock, Options or Convertible Securities,
as the case may be. If any Options shall be issued in connection with the issue
and sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Options by
the parties thereto, such Options shall be deemed to have been issued for
consideration to be determined pursuant to the Appraisal Procedure.
(f) If the Company shall take a record of the holders of the
Common Stock for the purpose of entitling then to receive a dividend or other
distribution payable in Common Stock, Options or Convertible Securities or to
subscribe for or purchase Common Stock, Options or Convertible Securities, then
such record date shall be deemed to be the date of the issue, sale, distribution
or grant of the shares of Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
(g) For purposes of determining whether any adjustment is
required pursuant to this Article IV any security of the Company having rights
substantially equivalent to the Common Stock as to dividends or upon liquidation
dissolution or winding up of the Company shall be treated as if such security
were Common Stock.
4.4 CAPITAL REORGANIZATION. If after the date of issuance of
this Warrant there shall be any consolidation or merger to which the Company is
a party, other than a consolidation or a merger in which the Company is a
continuing corporation and which does not result in any reclassification of, or
change (other than a Common Stock Reorganization or a change in par value) in,
outstanding shares of Common Stock, or any sale or conveyance of the property of
the Company as an entirety or substantially as an entirety (any such event being
called a "CAPITAL REORGANIZATION"), then, effective upon the effective date of
such Capital Reorganization, the Holder shall have the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive after such Capital Reorganization if this Warrant
had been exercised immediately prior to such Capital Reorganization, assuming
such holder (i) is not a person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale
or conveyance was made, as the case may be ("CONSTITUENT PERSON"), or an
Affiliate of a constituent person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash or other property
receivable upon such Capital Reorganization (provided that if the kind or amount
of securities, cash or other property receivable upon such Capital
Reorganization is not the same for each share of Common Stock held immediately
prior to such consolidation, merger, sale or conveyance by other than a
constituent person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("NON-ELECTING SHARE"), then for the
purposes of this Section the kind and amount of shares of stock and other
securities or other property (including cash) receivable upon such Capital
Reorganization shall be deemed to be the
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kind and amount so receivable per share by a plurality of the non-electing
shares). The provisions of this Section 4.5 shall similarly apply to successive
Capital Reorganizations.
4.5 ADJUSTMENT RULES.
(a) Any adjustments pursuant to this Article IV shall be made
successively whenever an event referred to herein shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization,
Common Stock Distribution, Dividend or Capital Reorganization, and shall legally
abandon such action prior to effecting such action, then no adjustment shall be
made pursuant to this Article IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made pursuant to this
Article IV unless such adjustment increases or decreases such amount or price by
one percent or more, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment which
together with any adjustments so carried forward shall serve to adjust such
amount or price by one percent or more.
(d) Notwithstanding anything in this Agreement to the
contrary, no adjustment shall be made pursuant to this Article IV or otherwise
(including without limitation in the amount of shares purchasable upon exercise
of this Warrant or in the Exercise Price) in respect of or as a result of (i)
the issuance (or deemed issuance) or repurchase of shares of Common Stock in
connection with the exercise of the Warrants or (ii) the issuance (or deemed
issuance), sale, grant or distribution of shares of Common Stock, Options or
Convertible Securities in an underwritten public offering, or a Rule 144A
offering, managed by a nationally or regionally recognized investment banking
firm.
4.6 PROCEEDINGS PRIOR TO ANY ACTION REQUIRING ADJUSTMENT. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Article IV, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the holders of Warrants are
entitled to receive upon exercise thereof.
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ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the
following respective meanings:
"AFFILIATE" means, with respect to any person or entity, any
other person or entity controlling, controlled by or under common control with
such person or entity.
"APPRAISAL PROCEDURE" means a procedure whereby two
independent appraisers, one chosen by the Company and one by the Requisite
Holders, shall mutually agree upon the determinations then the subject of
appraisal. Each party shall deliver a notice to the other appointing its
appraiser within 15 days after the Appraisal Procedure is invoked. If within 30
days after appointment of the two appraisers they are unable to agree upon the
amount in question, a third independent appraiser shall be chosen within 10 days
thereafter by the mutual consent of such first two appraisers or, if such first
two appraisers fail to agree upon the appointment of a third appraiser, such
appointment shall be made by the American Arbitration Association, or any
organization successor thereto, from a panel of arbitrators having experience in
the appraisal of the subject matter to be appraised. The decision of the third
appraiser so appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be appointed and
the determination of one appraiser is disparate from the middle determination by
more than twice the amount by which the other determination is disparate from
the middle determination, then the determination of such appraiser shall be
excluded, the remaining two determinations shall be averaged and such average
shall be binding and conclusive on the Company and the Warrantholders; otherwise
the average of all three determinations shall be binding and conclusive on the
Company and the Warrantholders. The costs of conducting any Appraisal Procedure
shall be borne by the Warrantholders requesting such Appraisal Procedure, except
that if such Appraisal Procedure shall result in a determination that is
disparate by 10% or more to the benefit of the holder from the Company's initial
determination, all costs of conducting such Appraisal Procedure shall be borne
by the Company.
"BUSINESS DAY" shall mean (a) if any class of Common Stock is
listed or admitted to trading on a national securities exchange, a day on which
the principal national securities exchange on which such class of Common Stock
is listed or admitted to trading is open for business or (b) if no class of
Common Stock is so listed or admitted to trading, a day on which any New York
Stock Exchange member firm is open for business.
"CAPITAL REORGANIZATION" shall have the meaning set forth in
Section 4.5.
"CLOSING PRICE" with respect to any security on any day means
(a) if such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is
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not listed or admitted to trading on any national securities exchange, the last
quoted sales price, or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market on such day as reported by NASDAQ or
any comparable system then in use or, if not so reported, as reported by any New
York Stock Exchange member firm reasonably selected by the Company for such
purpose.
"COMMON STOCK" shall have the meaning set forth in the first
paragraph of this Warrant subject to adjustment pursuant to Article IV.
"COMMON STOCK DISTRIBUTION" shall have the meaning set forth
in Section 4.3(a).
"COMMON STOCK REORGANIZATION" shall have the meaning set forth
in Section 4.2.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Warrant.
"CONVERTIBLE SECURITIES" shall have the meaning set forth in
Section 4.3(b).
"DIVIDEND" shall have the meaning set forth in Section 4.4.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and any similar or successor federal statute, and the rules and
regulations of the Securities and Exchange Commission (or its successor)
thereunder, all as the same shall be in effect at the time.
"EXERCISE PRICE" shall mean $1.35 per share of Common Stock
purchaseable upon exercise of this Warrant.
"FAIR MARKET VALUE" means the fair market value of the
business or property in question, as determined in good faith by the Board of
Directors of the Company, provided, however, that the Fair Market Value of any
security for which a Closing Price is available shall be the Market Price of
such security. The Fair Market Value of the Company shall be the Fair Market
Value of the Company and its subsidiaries as a going concern. Notwithstanding
the foregoing, if, at any date of determination of the Fair Market Value of the
Company, the Common Stock of any class shall then be publicly traded, the Fair
Market Value of the Company on such date shall be the Market Price on such date
multiplied by the number of shares of Common Stock on a fully diluted basis,
giving effect to any consideration to be paid to the Company in connection with
the exercise or conversion of any security. Fair Market Value shall be reduced
by any commission or concession paid or allowed in connection with the issuance
(or deemed issuance), sale, grant, distribution of any Common Stock, Options or
Convertible Securities.
"HOLDER" shall have the meaning set forth in the first
paragraph of this Warrant.
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"MARKET PRICE" with respect to any security on any day means
the average of the daily Closing Prices of a share or unit of such security for
the 30 consecutive Business Days ending on the most recent Business Day for
which a Closing Price is available; provided, however, that in the event that,
in the case of Common Stock, the Market Price is determined during a period
following the announcement by the Company of (A) a dividend or distribution of
Common Stock, or (B) any subdivision, combination or reclassification of Common
Stock and prior to the expiration of 20 Business Days after the ex-dividend date
for such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the Market Price
shall be appropriately adjusted to reflect the current market price per share
equivalent of Common Stock.
"NASD" means The National Association of Securities Dealers,
Inc.
"NASDAQ" means The National Association of Securities Dealers,
Inc. Automated Quotation System.
"OPTIONS" shall have the meaning set forth in Section 4.3(b).
"REGISTRABLE SECURITIES" shall have the meaning set forth in
Section 3.3.
"REQUISITE HOLDERS" means the Holders of Warrants to purchase
a majority of the shares of Common Stock issuable upon exercise of the Warrants
(excluding Warrants held by the Company or any of its subsidiaries) at the time
outstanding.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and any similar or successor federal statute, and the rules and
regulations of the Securities and Exchange Commission for its successor)
thereunder, all as the sane shall be in effect at the time.
"WARRANTHOLDER" means a holder of a Warrant.
"WARRANTS" shall mean, collectively, the Warrant (No. W-1),
issued November 15, 2000, by the Company to BT Commercial Corporation providing
for the purchase of 270,453 shares (subject to adjustment as provided therein)
of Common Stock, the Warrant (No. W-2), issued November 15, 2000, by the Company
to LaSalle Bank National Association providing for the purchase of 77,273.5
shares (subject to adjustment as provided therein) of Common Stock, the Warrant
(No. W-3), issued November 15, 2000, by the Company to Dime Commercial Corp.
providing for the purchase of 77,273.5 shares (subject to adjustment as provided
therein) of Common Stock, and all Warrants issued upon the partial exercise,
transfer or division of or substitution for such Warrants.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed, or
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mailed by certified or registered mail, return receipt requested, postage
pre-paid, addressed as follows:
(i) if to the Company, to Florsheim Group Inc., 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention:
Xxxxxx X. Xxxxx, Executive Vice President and Chief Financial
Officer; with a copy to Xxxxx Xxxx LLP, Xxx Xxxxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000 Attention:
Xxxxxx X. Xxxxxx, Esq.;
(ii) if to an initial Holder of Warrants, to such Holder c/o
BT Commercial Corporation, 000 X. Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxxxx and Xxxxx Xxxxx;
with a copy to Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Xxxxxxx X. Xxxxxx, Esq., and if to any subsequent
Holder of Warrants, to it at such address as may have been
furnished to the Company in writing by such Holder;
or, in any case, at ouch other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Warrants) or to the
Holders of Warrants (in the case of the Company) in accordance with the
provisions of this paragraph.
6.2 WAIVERS; AMENDMENTS. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and the Requisite Holders; provided,
however, that no such amendment, modification or waiver shall, without the
written consent of each Warrantholder whose interest might be adversely affected
by such amendment, modification or waiver, (a) change the number of shares of
Common Stock subject to purchase upon exercise of this Warrant, the Exercise
Price or provisions for payment thereof or (b) amend, modify or waive the
provisions of this Section or Articles III or IV.
Any such amendment, modification or waiver effected pursuant
to this Section shall be binding upon the holders of all Warrants and Warrant
Shares, upon each future holder thereof and upon the Company. In the event of
any such amendment, modification or waiver the Company shall give prompt notice
thereof to all Warrantholders and, it appropriate, notation thereof shall be
made on all Warrants thereafter surrendered for registration of transfer or
exchange.
No notice or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances.
6.3 GOVERNING LAW. This Warrant shall be construed in
accordance with and governed by the laws of the State of New York without regard
to principles of conflicts of law.
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6.4 SURVIVAL OF AGREEMENTS; REPRESENTATIONS AND WARRANTIES
ETC. All representations, warranties and covenants made by the Company herein or
in any certificate or other instrument delivered by or on behalf of it in
connection with the Warrants shall be considered to have been relied upon by the
Holder and shall survive the issuance and delivery of the Warrants, regardless
of any investigation made by the Holder, and shall continue in full force and
effect so long as any Warrant is outstanding. All statements in any such
certificate or other instrument shall constitute representations and warranties
hereunder.
6.5 COVENANTS TO BIND SUCCESSOR AND ASSIGNS. All covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company and the Holder shall bind their respective successors and
assigns, whether so expressed or not.
6.6 SEVERABILITY. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.7 SECTION HEADINGS. The sections headings used herein are
for convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.8 NO RIGHTS AS STOCKHOLDER. This Warrant shall not entitle
the Holder to any rights as a stockholder of the Company, including any
fiduciary duties of the directors of the Company.
6.9 NO IMPAIRMENT. The Company shall not by any action
including, without limitation, amending its certificate of incorporation 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 at 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 the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (a) not, directly or indirectly,
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 commercially reasonable 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.
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IN WITNESS WHEREOF, FLORSHEIM GROUP INC. has caused this
Warrant to be executed in its corporate name by one of its officers hereunto
duly authorized, and attested by its Secretary or an Assistant Secretary, all as
of the day and year first above written.
FLORSHEIM GROUP INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
Attest:
/s/ X. X. Xxxxxxx
------------------------------
Name: X. X. Xxxxxxx
Title: Secretary
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SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO FLORSHEIM GROUP INC.:
The undersigned hereby irrevocably elects to exercise the
right to purchase represented by the attached Warrant for, and to purchase
thereunder, _________ shares of Common Stock, as provided for therein, and
tenders herewith payment of the Exercise Price in full in accordance with the
terms of the attached Warrant.
Please issue a certificate or certificates for such shares of
Common Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable
upon exercise of the attached Warrant, a new warrant is to be issued in the name
of the undersigned for the balance remaining of such shares less any fraction of
a share paid in cash.
Dated: ,
----------------------------------------------- --------
-------------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee appearing
in the assignment form below.
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ASSIGNMENT
(To be executed upon assignment of Warrant)
For value received, ______ hereby sells, assigns and transfers
unto _____ the attached Warrant, together with all rights, title and interest
therein, and does hereby irrevocably constitute and appoint _____ attorney to
transfer said Warrant on the books of Florsheim Group Inc., with full power of
substitution in the premises.
-------------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant.
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