EXHIBIT 10.8
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED
PURSUANT TO THE PROVISIONS OF SUCH ACT AND BLUE SKY LAWS, OR UNLESS OFFERED,
SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS. THIS WARRANT IS ATTACHED TO, AND MAY NOT BE DETACHED
OR SEPARATELY TRANSFERRED FROM, EXCEPT AS SET FORTH HEREIN, THE SUBORDINATED
NOTE, DATED JUNE 22, 1999, TO MISSISSIPPI VALLEY CAPITAL CORPORATION, A MISSOURI
CORPORATION. THIS WARRANT AND THE RIGHTS EVIDENCED HEREBY ARE SUBORDINATE, IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT INTERCREDITOR AND SUBORDINATION
AGREEMENT (AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"SUBORDINATION AGREEMENT") DATED AS OF JUNE 22, 1999 BETWEEN AND AMONG ▇▇▇▇▇ &
▇▇▇▇▇▇ SHOE CO., AS THE COMPANY, MISSISSIPPI VALLEY CAPITAL COMPANY, AS THE
SUBORDINATED CREDITOR, AND THE SENIOR LENDER NAMED THEREIN, TO ALL INDEBTEDNESS
OWED BY THE MAKER OF THIS WARRANT TO THE SENIOR LENDER, AND THE HOLDER OF THIS
WARRANT, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE
SUBORDINATION AGREEMENT.
WARRANT
TO PURCHASE SHARES OF CLASS A COMMON STOCK OF
▇▇▇▇▇ AND ▇▇▇▇▇▇ SHOE CO.
THIS CERTIFIES that, for value received, Mississippi Valley Capital
Corporation, a Missouri corporation ("Warrantholder"), is entitled, upon the
terms and subject to the conditions hereinafter set forth, at any time during
the period specified in Section 1(e) hereof (the "Exercise Period"), to
subscribe for and purchase from ▇▇▇▇▇ and ▇▇▇▇▇▇ Shoe Co., a Missouri
corporation (the "Company"), 76,907 fully paid and nonassessable shares of Class
A Common Stock, $.001 par value ("Common Stock"), issued by the Company, at a
price of $0.001 per share ("Exercise Price") aggregating $76.91. The Exercise
Price and the number and type of shares for which this warrant (the "Warrant")
is exercisable shall be subject to adjustment as provided herein.
This Warrant is issued pursuant to that certain Subordinated Note,
dated June 22, 1999 (the "Subordinated Note"), issued by the Company to the
Warrantholder. Except as otherwise set forth herein, this Warrant is not
detachable, or separately transferable, from the Subordinated Note. Any
capitalized terms not otherwise defined herein shall have the respective
meanings ascribed to them in the Subordinated Note.
1. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are
exercisable by Warrantholder, at any time following the earlier to occur of (1)
the Maturity Date, (2) an initial public offering of the Company's Class A
Common Stock, and (3) an Event of Default, by the surrender of this Warrant,
together with the Notice of Exercise attached hereto duly completed and
executed, at the office of Company, at such office or agency of Company as it
may designate by notice in writing to Warrantholder at the address thereof, or
if no such designation has been made, at the last known residence address of
Company as set forth on Warrantholder's records, and upon payment of the
Exercise Price of the shares thereby purchased (by: (i) cash; (ii) check; or
(iii) bank draft payable to the order of Company); whereupon the Company shall,
at its expense, deliver to Warrantholder as soon as practicable the
certificate(s) representing the number of shares of Common Stock so purchased.
Each certificate evidencing Common Stock purchased hereunder shall bear a legend
substantially the same as that appearing on this Warrant, in addition to any
legend required by any applicable state or federal securities law. Irrespective
of the date of issuance and delivery of any certificates with respect thereto,
shares of Common Stock purchased by exercise of this Warrant as provided herein
shall be, and be deemed to be, issued to Warrantholder as the record owner of
such shares as of the close of business on the date on which this Warrant shall
have been surrendered as aforesaid.
(b) Certificates for shares purchased hereunder shall be
delivered to Warrantholder promptly after the date on which this Warrant shall
have been exercised as aforesaid.
(c) The Company covenants that at all times there shall be
reserved for issuance and delivery upon exercise of this Warrant such number of
its authorized but unissued shares of Common Stock or other securities of
Company from time to time issuable upon exercise of this Warrant as will be
sufficient to permit the exercise in full of this Warrant. All such shares shall
be duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive rights.
(d) The Company covenants that all shares of Common Stock
which may be issued upon the exercise of rights represented by this Warrant
will, upon payment therefor, be validly issued, fully paid and nonassessable and
free from all preemptive rights, taxes, liens and charges in respect thereof.
(e) This Warrant shall be detachable from the Subordinated
Note and exercisable for a period of ninety (90) days after (i) Warrantholder's
receipt of notice from the Company of its intent to make an initial public
offering of the Company's Class A Common Stock, (ii) the Company's failure to
pay to Warrantholder the Warrant Redemption Price (as defined in the
Subordinated Note) for the Warrant on the Maturity Date of the Subordinated Note
as provided in Section 1.2 of the Subordinated Note or (iii) an Event of
Default. If exercised, this Warrant shall be exercised for all, but not less
than all, of the shares of Common Stock subject to this Warrant. Upon the
Maturity Date or an Event of Default, Warrantholder, in its discretion and in
addition to all other rights, may elect to enforce payment of the Warrant
Redemption Price in lieu of exercise of the Warrant.
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2. No Fractional Share or Scrip. No fictional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu thereof, Company shall pay cash equal to any such fractional
shares, based upon the then applicable Exercise Price.
3. Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by Company, and such certificates shall be issued in the name of
Warrantholder.
4. No Rights as Shareholder. This Warrant does not entitle
Warrantholder, by virtue solely of the ownership of this Warrant, to any voting
rights or other rights as a shareholder of Company prior to the exercise hereof.
5. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to Company of all reasonable expenses incidental thereto, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will make
and deliver a new Warrant of like tenor and dated as of such cancellation, in
lieu of this Warrant.
6. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day
not a Saturday, Sunday or legal holiday.
7. Cash Distributions. No adjustment on account of ordinary cash
dividends on the Common Stock or other securities purchasable hereunder will be
made to the Exercise Price or to Number of shares issuable pursuant to the
Warrant.
8. Adjustments to Number of Shares Issuable for Certain Issuance.
(a) Adjustments for Combinations, Consolidations or
Subdivisions of Common Stock. If the outstanding shares of Common Stock are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares of Common Stock, then the Number of shares issuable pursuant to this
Warrant in effect immediately prior to such combination or consolidation shall
be proportionately decreased; and conversely, if at any time or on or after the
date hereof the Company shall subdivide its outstanding shares of Common Stock
into a greater number of shares, the Number of shares issuable pursuant to this
Warrant in effect immediately prior to such subdivision shall be proportionately
increased.
(b) Adjustments for Stock Dividends. In case at any time or
from time to time on or after the date of this Warrant the holders of any shares
of Common Stock or other securities at the time receivable upon the exercise of
the Warrant shall have received, or on or after the record date fixed for the
determination of eligible shareholders, shall have become entitled to receive,
without payment therefor, other or additional stock of the Company by way of
dividend, then and in each case, the Number of shares issuable pursuant to this
Warrant shall be proportionately increased.
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(c) Adjustments for Reclassifications and Reorganizations. In
case of any reclassification or change of the outstanding securities of the
Company or any reorganization of the Company (or of any other corporation the
stock or securities of which are at the time receivable upon the exercise of the
Warrant), on or after the date of this Warrant, or in case after such date, the
Company (or any such other corporation) shall merge with or into another
corporation or convey all or substantially all of its assets to another
corporation, then and in each such case, the holder of the Warrant, upon the
exercise thereof, at any time after the consummation of such reclassification,
change, reorganization, merger or conveyance, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
hereof prior to such consummation, the stock or other securities of such party
to which such holder would have been entitled upon such consummation if such
holder had exercised the Warrant immediately prior thereto, all subject to
further adjustment as provided in Sections 8(a) and (b); in each such case the
terms of this Section 8 shall be applicable to the shares of stock or other
securities properly receivable upon the exercise of the Warrant after such
consummation.
9. Certain Notice Requirements.
(a) Notice of Certain Transactions. The Company shall give the
holder of this Warrant written notice of any merger of the Company or any other
corporate reorganization in which the Company is not the continuing or surviving
entity of such merger or reorganization, or of any sale of substantially all of
the assets of the Company. Such notice shall be given not later than twenty (20)
days prior to the shareholders' meeting called to approve such transaction or
twenty (20) days prior to the closing of such transaction, whichever is earlier,
and shall also notify such holders in writing of the final approval of such
transaction. The first of such notices shall describe the material terms and
conditions of the contemplated transaction, and the Company shall thereafter
give such holders prompt notice of any material changes. The transaction shall
in no event take place sooner than twenty (20) days after the mailing by the
Company of the first notice provided for in this Section 9(a) or sooner than ten
(10) days after the mailing by the Company of any notice of material changes
provided for in this Section 9(a); provided, however, that such periods may be
shortened or waived upon the written consent of the holder of the Warrants.
(b) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issuance or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all actions that may be necessary or appropriate to
protect the exercise rights of the holder of this Warrant against impairment.
(c) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to Section 8, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms of Section 9 and furnish to the holder hereof a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Company
shall, upon the written request at any time of the holder hereof, furnish or
cause to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments; (ii) the
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Exercise Price in effect at the time and (iii) the number of shares of Common
Stock and the amount, if any, of other property that would be received at the
time upon exercise of this Warrant.
(d) Notices.
(i) Events Triggering Notices. The following events
shall cause the Company to issue notices in accordance with the provisions of
Section 9(d)(ii) below:
(1) a declaration by the Company of any
dividend or distribution upon shares of its Common Stock, in property, stock or
other securities;
(2) any reclassification or recapitalization
by the Company of its outstanding Common Stock involving a change in the Common
Stock;
(3) a merger or consolidation of the Company
with or into any other corporation, or the sale, lease or conveyance of all or
substantially all of the Company's property or business, or a liquidation,
dissolution or winding up of the Company; or
(4) an intended initial public offering of
the Company's Class A Common Stock.
(ii) Types of Notices. In connection with each event
described in Section 9(d), the Company shall send the following notices:
(1) at least twenty (20) days prior to the
date on which a record is to be taken for the dividend, distribution or
subscription rights referred to in Section 9(d)(i)(1) above or the date for
determining rights to vote with regard to matters referred to in Sections
9(d)(i)(2) and 9(d)(i)(3) above, the Company shall send a notice to the holder
hereof setting forth the record or voting date and the nature of the action;
(2) in case of any event referred to in
Section 9(a) aboves, at least twenty (20) days prior to the date when the event
is to take place, the Company shall send a notice to the holder hereof setting
forth the date on which the holders of shares of Common Stock shall be entitled
to exchange their shares of Common Stock for securities or other property
deliverable upon the occurrence of such event; and
(3) in case of the event referred to in
Section 9(d)(i)(4) above, promptly upon a determination by the Company to make
an initial public offering.
(iii) Delivery of Notices. Each such written notice
shall be given by first class mail, postage prepaid, addressed to the holder
hereof at the address for each such holder as shown on the books of the Company.
10. Amendments and Waivers. Neither this Warrant nor any term hereof
may be changed, waived, discharged or terminated orally or in writing, except
that any term of this Warrant may be amended by a written instrument executed by
Company and the Warrantholder and the observance of any such term may be waived
(either generally or in a particular instance,
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and either retroactively or prospectively) with (but only with) the written
consent of Company or the Warrantholder, as the case may be, for whose benefit
such term applies.
11. Communications. All notices or other communications hereunder shall
be in writing and shall be given by registered or certified mail (postage
prepaid and return receipt requested) or by facsimile transmission or sent by a
recognized overnight delivery service that can provide proof of delivery upon
request addressed to the Warrantholder or Company at their respective addresses
as set forth on the records of Company or such other address as any party may
designate to the other in accordance with the aforesaid procedure.
12. Assignability. This Warrant shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of the Warrantholder
and its successors and assigns. This Warrant may not be detached or assigned
separately from the Subordinated Note, except as otherwise provided in the
Subordinated Note. The Warrantholder shall notify the Company upon the
assignment of the Subordinated Note and the Warrant.
13. Mandatory Redemption. This Warrant is mandatorily redeemable,
pursuant to the terms set forth in the Subordinated Note, unless this Warrant is
exercised pursuant to Section 1(e) hereof, prior to such mandatory redemption.
14. Registration Rights. The Warrantholder shall have the right to have
the shares of Common Stock obtained upon exercise of this Warrant pursuant to
Section 1(e) hereof included in the registration of Class A Common Stock in an
initial public offering of Class A Common Stock by the Company at no cost to the
Warrantholder other than any applicable underwriter's discount or commission
charged to all shareholders on a per share basis.
15. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Missouri, without giving effect to any
conflicts of laws rules thereunder.
IN WITNESS WHEREOF, the parties have caused this Warrant to be executed
this 22nd day of June, 1999.
▇▇▇▇▇ AND ▇▇▇▇▇▇ SHOE CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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