Exhibit 10(t)(4) Amendment to Common Stock Warrant Agreement dated January 31,
2002 by and between the Registrant and Enhanced Retail Funding, LLC.
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i)
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
-------------------- ----------------------------------- -----------------------
Date of Issue: STOCK PURCHASE WARRANT No. of Shares:
-------------------- ----------------------------------- -----------------------
January 31, 2002 23,000
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To Subscribe for and Purchase Common Stock of
ONE PRICE CLOTHING STORES, INC.
THIS CERTIFIES that, for value received, Enhanced Retail Funding, LLC
(together with any subsequent transferees of all or any portion of this Warrant,
the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, to subscribe for and purchase from One Price Clothing
Stores, Inc., a Delaware corporation (hereinafter called the "Company"), up to
23,000 fully paid and non-assessable shares of the Company's Common Stock (the
"Shares"), at the price equal to the Exercise Price (as defined in Section 1
hereof) (subject to adjustment as provided herein, the "Warrant Purchase
Price"). The number and character of such Shares are subject to adjustment as
provided herein.
1. Definitions. As used herein the following terms shall have the following
meanings:
"Act" means the Securities Act of 1933 as amended, or a similar Federal
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
"Common Stock" shall mean the Common Stock of the Company, $.001 par
value per share.
"Exercise Price" shall mean $2.34, which equals the average daily
closing price of the Company's Common Stock as quoted on the NASDAQ Stock Market
for the thirty consecutive trading days immediately preceding January 30, 2002.
"Original Issue Date" shall mean the date on which this Warrant is
originally issued.
2. Purchase Rights. The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time and from time to
time commencing on the date hereof and ending at 5:00 p.m. on the fifth
anniversary of the Original Issue Date (the "Expiration Date").
3. Exercise of Warrant; Net Issue Exercise.
3.1 Exercise of Warrant. Subject to Section 2 above, the purchase rights
represented by this Warrant may be exercised, in whole or in part and from
time to time, by the surrender of this Warrant and the duly executed Notice
of Exercise (the form of which is attached as Exhibit A) at the principal
office of the Company and by the payment to the Company, by check, of an
amount equal to the then applicable Warrant Purchase Price per share
multiplied by the number of Shares then being purchased. Upon exercise, the
Holder shall be entitled to receive, within three (3) business days after
such notice of exercise is given, a certificate or certificates, issued in
the Holder's name or in such name or names as the Holder may direct, for
the number of Shares so purchased. The Shares so purchased shall be deemed
to be issued as of the close of business on the date on which this Warrant
shall have been exercised.
3.2. Net Issue Exercise.
(a) In lieu of exercising this Warrant pursuant to Section 3.1
hereof, the Holder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being cancelled) by surrender of this Warrant at
the principal office of the Company together with notice of such election in
which event the Company shall issue to the Holder a number of Shares computed
using the following formula:
X = Y (A - B)
-------
A
Where X = the number of Shares to be issued to the Holder;
Y = the number of Shares purchasable under this Warrant;
A = the fair market value of one Share (assuming the fair
market value of one Share is greater than the Warrant
Purchase Price as adjusted to the date of such
calculations); and
B = the Warrant Purchase Price (as adjusted to the date
of such calculations).
Such Shares shall be issued within three (3) business days after the notice of
election is given.
(b) (i) For purposes of this Section, fair market value of a
Share shall be equal to the closing price of the Company's Common Stock on the
preceding trading day as quoted on the Nasdaq Stock Market or such other
exchange or automated quotation system that the Company's Common Stock is
publicly traded. In the event the Common Stock ceases trading on the Nasdaq
Stock Market or some other exchange or automated quotation system, the fair
market value of a Share shall be a value reasonably determined by the Company's
Board of Directors. In the event that the Holder disagrees with the Board of
Directors' determination of fair market value, then the fair market value shall
be determined by an appraiser selected by the Holder (the "Holder's Appraiser")
and whose appraisal (the "Holder's Appraisal") shall be furnished to the Company
within 20 days after the Board of Directors' determination of fair value, and if
the Company does not object to such determination within 15 days after receipt
of the Holder's appraisal, then the fair market value determined by the Holder's
Appraiser shall be the fair market value of a Share.
(ii) In the event that the Company objects to such
determination as set forth in clause (i) above, then the Company
shall select an appraiser (the "Company's Appraiser")
who shall review the determination of the Holder's Appraiser and
issue a report thereon (the "Company's Appraisal") within 30 days after the
delivery of the Holder's Appraisal to the Company and within 10 days after the
issuance of such report to the Holder's Appraiser, the Holder's Appraiser and
the Company's Appraiser shall meet to negotiate in good faith to reach agreement
on the fair market value of a Share, and such agreed value shall be the fair
market value of a Share.
(iii) In the event that the Company's Appraiser and
the Holder's Appraiser are unable to reach agreement as set forth in
clause (ii) above, then such Appraisers shall select an
appraiser (the "Third Appraiser") within 5 days after the meeting
described in clause (ii) above, and the average of two appraisals, consisting of
the appraisal made by the Third Appraiser and the appraisal of the Holder's
Appraiser and Company's Appraiser (whichever is closest to that of the Third
Appraiser), shall be conclusive and binding on the Company and the Holder.
(iv) The fees and expenses of the Company's Appraiser
shall be paid by the Company, the fees and expenses of the Holder's Appraiser
shall be paid by the Holder, and the fees and expenses of the Third Appraiser
shall be shared equally by the Company and the Holder.
4. Shares to be Issued; Reservation of Shares. The Company covenants that the
Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and
non-assessable, and free from all liens and charges with respect to the
issue thereof. During the period within which the purchase rights
represented by the Warrant may be exercised, the Company will at all times
have authorized and reserved, for the purpose of issuance upon exercise of
the purchase rights represented by this Warrant, a sufficient number of
shares of its Common Stock to provide for the exercise of the right
represented by this Warrant.
5. No Fractional Shares. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu thereof, a cash payment shall be made
equal to such fraction multiplied by the fair market value of such shares
of Common Stock, as determined in good faith by the Company's Board of
Directors.
6. Adjustments for Merger, Consolidation, Sale of Assets and Other
Reclassifications. In the event that at any time or from time to time after
the Original Issue Date but prior to the Expiration Date, there shall be
any reclassification, capital reorganization or similar change affecting
the Common Stock (other than as a result of a subdivision, combination or
stock dividend provided for in Section 7 hereof), or the Company shall
merge or consolidate with or into another entity or sell all or
substantially all of its assets, then, as a condition to such
reclassification, reorganization, change, consolidation, merger or sale,
lawful provisions shall be made, and duly executed documents evidencing the
same from the Company or its successor shall be delivered to the Holder, so
that the Holder hereof shall thereafter have the right to receive the kind
and amount of shares of stock, other securities, property or cash
deliverable or payable to the holders of the Common Stock of the Company
that the Holder hereof upon exercise of this Warrant would have been
entitled to had the Holder hereof exercised the remaining portion of this
Warrant into shares of Common Stock immediately prior thereto and the Board
of Directors shall make appropriate adjustments to the number and kind of
shares and to the Warrant Purchase Price per share then applicable to the
shares covered by the unexercised portion of the Warrant.
7. Adjustments for Subdivisions, Stock Dividends and Stock Combinations.
(a) Adjustment of Warrant Purchase Price and Number of Shares Issuable.
The Warrant Purchase Price and the number of Shares issuable upon exercise of
this Warrant shall be adjusted as set forth in this Section 7 with the intent
that the rights of the Holder to exercise shall not be impaired.
(b) Adjustment for Combination or Consolidation of Common Stock. In the
event the outstanding shares of Common Stock shall be combined or consolidated
into a lesser number of shares of Common Stock, the Warrant Purchase Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased and the number of Shares issuable upon the exercise of
this Warrant shall be proportionately decreased.
(c) Adjustment for Stock Dividend or Subdivision. In the event the
Company at any time or from time to time after the Original Issue Date shall
declare or pay any dividend on the Common Stock payable in Common Stock, or
effect a subdivision (by split-up or otherwise) of the outstanding shares of
Common Stock into a greater number of shares of Common Stock, then and in any
such event, the Warrant Purchase Price in effect immediately prior to such
subdivision or stock dividend shall, concurrently with the effectiveness of such
stock dividend or subdivision, be proportionately reduced and the number of
Shares issuable on the exercise of this Warrant shall be proportionately
increased.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Warrant Purchase Price or the number of Shares
issuable upon the exercise of this Warrant pursuant to Sections 6 or 7, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Holder 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, furnish or cause to be furnished to such
holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Warrant Purchase Price at the time in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the exercise of the Warrant.
(e) Waiver of Provisions. The provisions of this Section 7 may be waived
in any instance (without the necessity of convening any meeting of stockholders
of the Company) upon the written consent of the Holder.
8. No Rights as Shareholders. This Warrant does not entitle the Holder to any
voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder
such information, documents and reports as are generally distributed to
holders of the capital stock of the Company concurrently with the
distribution thereof to the shareholders. Upon valid exercise of this
Warrant and payment for the Shares so purchased in accordance with the
terms of the Warrant, the Holder or the Holder's designee, as the case may
be, shall be deemed a shareholder of the Company.
9. Sale or Transfer of the Warrant; Legend. The Warrant and the Shares shall
not be sold or transferred unless either (i) they first shall have been
registered under the Act, or (ii) the Company first shall have been
furnished with an opinion of legal counsel reasonably satisfactory to the
Company to the effect that such sale or transfer is exempt from the
registration requirements of the Act. Each certificate representing any
Warrant shall bear the legend set out on page 1 hereof. Each certificate
representing any Shares shall bear a legend substantially in the following
form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
10. Reserved.
11. Modifications and Waivers. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the
party against which enforcement of the same is sought.
12. Notices. Any notice, request or other document required or permitted to be
given or delivered to the Holder or the Company shall be delivered, or
shall be sent by certified or registered mail, postage prepaid, to the
Holder at its address shown on the books of the Company or to the Company
at the address indicated therefor on the signature page of this Warrant,
or, if different, at the principal office of the Company.
13. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants
with the Holder that upon its receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this
Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant
or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed
or mutilated Warrant or stock certificate.
14. Representations and Warranties of Holder. By accepting this Warrant, the
Holder represents and warrants that he, she or it is acquiring this Warrant
and the Shares for his, her or its own account, for investment and not with
a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) is
able to fend for himself, herself or itself in the transactions
contemplated by this Warrant, (c) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of an investment in the Company, (d) has the ability to bear the
economic risks of an investment in the Company, (e) has been furnished with
or has had access to such information as is specified in subparagraph
(b)(2) of Rule 502 promulgated under the Act and (f) has been afforded the
opportunity to ask questions of and to receive answers from the Company and
to obtain any additional information necessary to make an informed
investment decision with respect to an investment in the Company. The
Holder further represents that it is an "accredited investor" as defined in
Rule 501(a) of Regulation D under the Securities Act.
15. Representations and Warranties of Company. The Company represents and
warrants that:
(a) The execution, delivery and performance of this Warrant has
been duly authorized by the Company's Board of Directors and constitutes the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws affecting the enforcement of
creditors' rights in general and except that the enforceability of the
obligations hereunder is subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding at equity or at law).
Neither the execution nor the delivery of this Warrant, nor fulfillment of nor
compliance with the terms and provisions of this Warrant, nor the issuance of
Shares upon exercise of the Warrant, will (i) violate the terms of the
certificate of incorporation or by-laws of the Company or (ii) violate any
agreement (including any agreement with stockholders), instrument, judgment,
decree or statute to which the Company is subject, except for such violations
that may have a de minimis effect on the Company, would not affect the Company's
ability to execute and deliver this Warrant and would not affect the Holder's
ability to exercise all or any portion of this Warrant.
(b) The authorized capital stock of the Company consists of
35,000,000 shares of Common Stock, of which, based upon information currently
available, 2,943,769 shares are issued and outstanding, and 500,000 shares of
Series A Preferred Stock, of which no shares are issued and outstanding.
(c) Except as set forth in subparagraph (b) above, and Exhibit B
attached hereto, the Company does not have outstanding any rights (either
preemptive or other) or options to subscribe for or purchase from the Company,
or any warrants or other agreements providing for or requiring the issuance by
the Company of, any capital stock or any securities convertible into or
exchangeable for its capital stock.
(d) Sufficient shares of authorized but unissued shares of
Common Stock of the Company have been reserved by appropriate corporate action
with respect to the prospective exercise of the Warrant, and, the issuance of
either the Warrant or the shares of Common Stock upon exercise of the Warrant
will not require any further corporate action by the stockholders or directors
of the Company, will not be subject to preemptive rights (unless the exercise of
the same has been irrevocably waived) in any present stockholders of the Company
and will not conflict with any provision of any agreement to which the Company
is a party or by which it is bound, and such Common Stock, when issued upon
exercise of the Warrant in accordance with its terms, will be duly authorized,
fully paid and non-assessable.
16. Registration Rights.
(a) Piggy Back Registration Rights. If at any time after the
Original Issue Date the Company shall determine to register any of its
securities for its own account or for any other person (other than a
registration under the Securities Act of shares issued in connection with any
acquisition of any entity or business, shares issuable solely upon the exercise
of stock options, or shares issuable solely pursuant to employee benefit plans,
including registration statements on Form X-0, X-0 or any successor form), the
Company shall do the following:
(i) promptly give the Holder written notice
thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to register or qualify such securities
under the applicable blue sky or other state securities laws); and
(ii) include among the securities which it
then registers or qualifies all Registrable Securities (as defined
below) specified in a written request or requests, made within
fifteen (15) days after receipt of the written notice from the Company,
by the Holder; provided, however, if, in connection with any
offering involving an underwriting of Common Stock to be issued by the Company,
the managing underwriter shall impose a limitation on the number of shares which
may be included in any such registration statement because, in its judgment,
such limitation is necessary to effect an orderly public distribution, and such
limitation is imposed pro rata with respect to all shares whose holders have a
contractual, incidental ("piggyback") right to include such shares in the
Registration Statement, and as to which inclusion has been requested pursuant to
such right and there is first excluded from such Registration Statement all
shares sought to be included therein by (i) any holder thereof not having any
such contractual, piggyback registration rights, and (ii) any holder thereof
having contractual, piggyback registration rights subordinate and junior to the
rights of the Holder, then the Company shall only be obligated to include in
such Registration Statement only the amount of Registrable Securities as
determined in good faith by the managing underwriter. For purposes of this
Warrant, the term "Registrable Securities" shall mean all shares of Common Stock
issued and issuable upon exercise of the Warrant; provided however, that shares
of Common Stock which are "Registrable Securities" shall cease to be Registrable
Securities (a) upon any sale pursuant to a registration statement under the
Securities Act, Section 4(1) of the Securities Act or Rule 144 promulgated under
the Securities Act or (b) at such time as such shares of Common Stock are freely
saleable under Rule 144(k) promulgated under the Securities Act (or a successor
provision).
(b) Form S-3. In addition to the rights provided to the Holder
of Registrable Securities in subsection (a) above, at such time as the
registration of Registrable Securities under the Securities Act can be effected
on Form S-3 (or any similar form promulgated by the SEC which permits short form
registration using extensive incorporation by reference), upon the written
request of the Holder, the Company will use reasonable efforts to effect
qualification and registration under the Securities Act on said Form S-3 or
other short form registration of all or such portion of the Registrable
Securities as the Holder shall specify. The Company shall use its commercially
reasonable efforts to file a registration statement on Form S-3 or other short
form registration with the SEC no later than 30 days after the written request
and shall cause such registration statement to become effective no later than 90
days after the written request. The Company shall not be required to effect more
than one registration pursuant to this subsection (b) in any twelve-month
period. The obligations of the Company under this Section shall terminate after
the Company has effected two registrations under this subsection (b). The
Company represents that it is currently eligible to use Form S-3 for the
purposes contemplated in this subsection (b).
(c) Registration Procedures. In the case of each registration,
qualification or compliance pursuant to this Section 16, the Company will keep
the Holder advised in writing as to the initiation of proceedings for such
registration, qualification and compliance and as to the completion thereof, and
will advise the Holder, upon written request, of the progress of such
proceedings. At the expense of the Company, the Company will (i) keep such
registration, qualification and compliance current and effective for a period of
180 days, including, without limitation, the filing of post-effective amendments
and supplements to any registration statement or prospectus, as necessary to
permit the sale or distribution of Registrable Securities not theretofore sold
or distributed, and (ii) take all necessary action under any applicable blue sky
or other state securities laws to permit such exercise, sale or distribution,
all as requested by such Holder. The Holder shall timely furnish to the Company
such information regarding the Holder and the Registrable Securities held by the
Holder and the intended method of distribution of such securities as shall be
required to effect the registration of the Registrable Securities.
(d) Expenses. All expenses other than underwriting discounts
and commissions relating to Registrable Securities incurred in connection with
each of the registrations, filings or qualifications pursuant to Sections 16(a)
and (b) above, including all registration, filing and qualification fees, all
fees and expenses in connection with compliance with state securities or blue
sky laws, printing and delivery expenses, fees and disbursements of counsel and
independent public accountants for the Company, and the reasonable fees and
disbursements of one law firm acting as counsel for the Holder, shall be paid by
the Company; provided, however, that the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to Section 16(b)
if the registration request is subsequently withdrawn at any time at the request
of the Holder, unless the Holder agrees to forfeit its right to one demand
registration pursuant to Section 16(b); provided, further, however, that if at
the time of such withdrawal, the Holder has learned of a material adverse change
in the financial condition, business or prospects of the Company from that known
to the Holder at the time of its request that makes the proposed offering
unreasonable in the good faith judgment of the Holder, then the Holder shall not
be required to pay any of such expenses. Underwriting discounts and commissions
relating to Registrable Securities will be paid ratably by the Holder of such
Registrable Securities.
(e) Right of Company To Delay Registration. For a period not
to exceed 60 days, the Company shall not be obligated to prepare and file, or
prevented from delaying or abandoning, a Registration Statement pursuant to this
Warrant at any time when the Company, in its good faith judgment with advice of
counsel, reasonably believes:
(i) the filing thereof at the time requested,
or the offering of Registrable Securities pursuant thereto,
would materially and adversely affect (1) a pending or
scheduled public offering of the Company's securities, (2) an acquisition,
merger, recapitalization, consolidation, reorganization or similar transaction
by or of the Company, (3) pre-existing and continuing negotiations, discussions
or pending proposals with respect to any of the foregoing transactions, or (4)
the financial condition of the Company in view of the disclosure of any pending
or threatened litigation, claim, assessment or governmental investigation which
may be required thereby; and
(ii) that the failure to disclose any material
information with respect to the foregoing would cause a violation
of the Securities Act or the Exchange Act.
The Company shall only be entitled to exercise its right to delay registration
under this subsection (e) once during the term of this Warrant.
(f) Indemnification. The Company will indemnify, defend and hold
harmless the Holder to the fullest extent that such agreement is enforceable
under applicable law against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of material fact contained in any registration
statement, prospectus, offering circular or other document (each as from time to
time amended or supplemented by the Company) or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse the Holder for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage or
liability arises out of or is based on any untrue statement or omission based
upon written information furnished to the Company by an instrument duly executed
by the Holder and stated to be specifically for use therein. Each Holder, if
Registrable Securities held by or issuable to such Holder are included in the
securities as to which such registration, qualification or compliance is being
effected, will indemnify, defend and hold harmless the Company and each of its
directors and officers who signs such a registration statement, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
directors and officers for any legal or any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) was made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder with
knowledge that the information set forth in such instrument was to be used
therein.
17. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the
obligations of the Company relating to the Shares issuable upon exercise of
this Warrant shall survive the exercise and termination of this Warrant and
all of the covenants and agreements of the Company shall inure to the
benefit of the successors and assigns of the Holder. The Holder may
transfer its rights hereunder, including its registration rights, to any
general or limited partner or any officer, director, manager or member or
any of its affiliates, provided, however that such assignee or transferee
agrees in writing to be bound by all of the provisions of this Warrant.
18. Governing Law. This Warrant shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the
State of South Carolina.
IN WITNESS WHEREOF, ONE PRICE CLOTHING STORES, INC. has caused this Warrant
to be executed under seal by its officer thereunto duly authorized.
Dated: January 31, 2002
ONE PRICE CLOTHING STORES, INC.
CORPORATE
SEAL
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Attest:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Secretary
EXHIBIT A
NOTICE OF EXERCISE
To: ONE PRICE CLOTHING STORES, INC.
1. The undersigned hereby elects to purchase _______ shares of Common Stock of
ONE PRICE CLOTHING STORES, INC. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares
in full pursuant to Section 3.1 of the Warrant [or elects to exercise the
warrant for ______ shares of Common Stock pursuant to the net issue
exercise provisions of Section 3.2 of the Warrant].
2. Please issue a certificate or certificates representing said shares in the
name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or
reselling such shares. The undersigned further represents that such shares
shall not be sold or transferred unless either (1) they first shall have
been registered under the Securities Act of 1933, as amended, or (ii) the
Company first shall have been furnished with an opinion of legal counsel
reasonably satisfactory to the Company to the effect that such sale or
transfer is exempt from the registration requirement.
4. In the event of partial exercise, please re-issue an appropriate Warrant
exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
-------------------------------
(Date)
EXHIBIT B
OUTSTANDING OPTIONS, WARRANTS AND OTHER RIGHTS
OPTIONS TO PURCHASE SHARES OF COMMON STOCK
Options to purchase 367,693 shares of Common Stock are outstanding as of the
Original Issue Date.
WARRANTS AND OTHER RIGHTS TO PURCHASE SHARES OF COMMON STOCK
Warrant to purchase 17,143 shares of Common Stock held by GB Retail Funding, LLC
issued by the Company on February 21, 2001.
Warrant to purchase 20,000 shares of Common Stock held by Enhanced Retail
Funding, LLC issued by the Company on September 13, 2001.
