NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER
THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE
APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on [September 30], 2004.
WARRANT TO PURCHASE COMMON STOCK
OF
DANSKIN, INC.
FOR VALUE RECEIVED, DANSKIN, INC. (the "Company"), a Delaware
corporation, hereby certifies that Danskin Investors, LLC, or its permitted
assigns, is entitled to purchase from the Company, at any time or from time to
time commencing [September 30], 1997, and prior to 5:00 P.M., Eastern Standard
Time, on [September 30], 2004, a total of 9,632,199 fully paid and nonassessable
shares of Common Stock, par value $.01 per share, of the Company for an
aggregate purchase price of $2,889,659.70 (computed on the basis of $.30 per
share). (Hereinafter, (i) said Common Stock, together with any other equity
securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder are referred to as the "Warrant Shares,"
(iii) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price," (iv) the price payable hereunder
for each of the Warrant Shares is referred to as the "Per Share Warrant Price,"
(v) this Warrant, and all warrants hereafter issued in exchange or substitution
for this Warrant are referred to as the "Warrant" and (vi) the holder of this
Warrant is referred to as the "Holder.") The number of Warrant Shares for which
this Warrant is exercisable is subject to adjustment as hereinafter provided. In
the event of any such adjustment, the Per Share Warrant Price shall be adjusted
by multiplying the Per Share Warrant Price in effect immediately prior to such
adjustment by a fraction the numerator of which is the aggregate number of
Warrant Shares for which this Warrant may be exercised immediately prior to such
adjustment and the denominator of which is the aggregate number of Warrant
Shares for which this Warrant may be exercised immediately after such
adjustment.
1. Exercise of Warrant. This Warrant may be exercised, in whole at any time or
in part from time to time, commencing [September 30], 1997, and prior to 5:00
P.M., Eastern Standard Time, on
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[September 30], 2004, by the Holder of this Warrant by the surrender of this
Warrant (with the subscription form at the end hereof duly executed) at the
address set forth in Subsection 9(a) hereof, together with proper payment of the
Aggregate Warrant Price, or the proportionate part thereof if this Warrant is
exercised in part.
The Aggregate Warrant Price or Per Share Warrant Price may be paid: (a)
in cash, (b) by surrender to the Company of shares of its Common Stock with a
fair value, on the date of exercise that is equal to the Aggregate Warrant Price
or Per Share Warrant Price, as the case may be, in respect of the number of
Warrants exercised, (c) by surrender to the Company of Warrants (as provided
below) or (d) by a combination of (a), (b) or (c) hereof. The Holder shall have
the right to convert Warrants or any portion thereof (the "Conversion Right")
into Warrant Shares as provided in this paragraph, but only if, at the time of
such conversion, the Per Share Warrant Price shall be less than the current
market price per share of Common Stock and the Warrants shall otherwise be
exercisable under the provisions of this Warrant. Upon exercise of the
Conversion Right with respect to a particular number of Warrants (the "Converted
Warrants"), the Company shall deliver to the Holder (without payment by the
Holder of any cash or other consideration) that number of Warrant Shares equal
to the quotient obtained by dividing (a) the difference between (i) the product
of the fair value per share of Common Stock as of the date the Conversion Right
is exercised (the "Conversion Date") and the number of Warrant Shares into which
the Converted Warrants could have been exercised hereunder and (ii) the
aggregate Per Share Warrant Price that would have been payable upon such
exercise of the Converted Warrants as of the Conversion Date, by (b) the fair
value per share of Common Stock as of the Conversion Date. For purposes of this
paragraph, the fair value per share of Common Stock shall mean the average
Closing Price of the Company's Common Stock for the ten Trading Days immediately
preceding the Conversion Date.
As used in this Section 1, Trading Day means, in the event that the
Common Stock is listed or admitted to trading on the New York Stock Exchange (or
any successor to such exchange), a day on which the New York Stock Exchange (or
such successor) is open for the transaction of business, or, if the Common Stock
is not listed or admitted to trading on such exchange, a day on which the
principal national securities exchange on which the Common Stock is listed is
open for the transaction of business, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a day on which any New
York Stock Exchange member firm is open for the transaction of business.
As used in this Section 1, the Closing Price of the Company's Common
Stock shall be the last reported sale price as shown on the Composite Tape of
the New York Stock Exchange, or, in case no such reported sale price is quoted
on such day, the average of the reported closing bid and asked prices on the New
York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such exchange, the last reported sales price, or in case no such
reported sales price is quoted on such day, the average of the reported closing
bid and asked prices, on the principal national securities exchange (including,
for purposes hereof, the National Association of Securities Dealers, Inc.
National Market System) on which the Common Stock is listed or admitted to
trading, or, if it is not listed or admitted to trading on any national
securities exchange, the average of the
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high closing bid price and the low closing asked price as reported on an
inter-dealer quotation system. In the absence of any available public quotations
for the Common Stock, the Board of Directors of the Company shall determine in
good faith the fair value of the Common Stock, which determination shall be set
forth in a certificate by the Secretary of the Company.
Payment for Warrant Shares if made by cash shall be made by certified
or official bank check payable to the order of the Company. If this Warrant is
exercised in part, the Holder shall be entitled to receive a new Warrant
covering the number of Warrant Shares in respect of which this Warrant has not
been exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such surrender of this Warrant,
the Company will (a) issue a certificate or certificates in the name of the
Holder for the shares of the Common Stock to which the Holder shall be entitled,
and (b) deliver the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of the Warrant.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay to the Holder
an amount in cash equal to such fraction multiplied by the fair value of a
share.
2. Reservation of Warrant Shares. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and in
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
3. Anti-Dilution Provisions. The number and kind of securities issuable upon the
exercise of this Warrant, the Per Share Warrant Price and the number of Warrant
Shares for which this Warrant may be exercised shall be subject to adjustment
from time to time in accordance with the following provisions:
(a) Certain Definitions. For purposes of this Warrant:
(1) The term "Additional Shares of Common Stock" shall
mean all shares of Common Stock issued, or deemed to
be issued by the Company pursuant to paragraph (g) of
this Section 3, after the Original Issue Date except:
(i) shares of Common Stock issuable upon
conversion of, or distributions with respect
to, the Series D Cumulative Convertible
Preferred Stock ("Series D Stock") now or
hereafter issued by the Company;
(ii) up to 790,000 shares of Common Stock
issuable upon the exercise of options issued
to officers, directors and employees of the
Company under stock option plans maintained
from time to time by
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the Company and approved by the Board of
Directors (the "Employee Options"); and
(iii) up to 3,291,797 shares of Common Stock
issuable upon the exercise of options issued
to Xxxx Xxx Xxxxxxxxx, Xxxxxxx Xxxxxx and
Xxxx XxXxxxxx (collectively, the "Management
Options") in connection with the closing of
that certain Securities Purchase Agreement
dated as of September 22, 1997 between the
Company and Danskin Investors, LLC (the
"Purchase Agreement");
(iv) shares of Common Stock issuable upon
exercise of this Warrant, the Warrant issued
to Xxxxxxxxxxx Bond Fund for Growth pursuant
to the terms of the Purchase Agreement (the
"BFG Warrant") and the Warrant issued to
Xxxxxx Xxxxxxx pursuant to the terms of that
certain Warrant Purchase Agreement dated as
of September 22, 1997 between the Company
and Xxxxxx Xxxxxxx (the "Xxxxxxx Warrant");
and
(v) up to 10,000,000 shares of Common Stock
issuable pursuant to the Rights Offering
contemplated by the terms of the Purchase
Agreement.
(2) The term "Convertible Securities" shall mean any
evidence of indebtedness, shares (other than the
Promissory Note issued pursuant to the Purchase
Agreement, Series D Stock, the Xxxxxxx Warrant, the
BFG Warrant and this Warrant) or other securities
convertible into or exchangeable for Common Stock.
(3) The term "Options" shall mean rights, options or
warrants (other than the Employee Options and the
Management Options) to subscribe for, purchase or
otherwise acquire Common Stock or Convertible
Securities.
(4) The term "Original Issue Date" shall mean the date
of the initial issuance of this Warrant.
(b) Reorganization, Reclassification. In the event of a
reorganization, share exchange, or reclassification, other
than a change in par value, or from par value to no par value,
or from no par value to par value or a transaction described
in subsection (c) or (d) below, this Warrant shall, after such
reorganization, share exchange or reclassification (a
"Reclassification Event"), be exercisable at the option of the
holder into the kind and number of shares of stock or other
securities or other property of the Company which the holder
of this Warrant would have been entitled to receive if the
holder had held the Warrant Shares issuable upon exercise of
this
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Warrant immediately prior to such reorganization, share
exchange, or reclassification.
(c) Consolidation, Merger. In the event of a merger or
consolidation to which the Company is a party this Warrant
shall, after such merger or consolidation, be exercisable at
the option of the holder for the kind and number of shares of
stock and/or other securities, cash or other property which
the holder of this Warrant would have been entitled to receive
if the holder had held the Warrant Shares issuable upon
exercise of this Warrant immediately prior to such
consolidation or merger.
(d) Subdivision or Combination of Shares. In case
outstanding shares of Common Stock shall be subdivided, the
Per Share Warrant Price shall be proportionately reduced as of
the effective date of such subdivision, or as of the date a
record is taken of the holders of Common Stock for the purpose
of so subdividing, whichever is earlier. In case outstanding
shares of Common Stock shall be combined, the Per Share
Warrant Price shall be proportionately increased as of the
effective date of such combination, or as of the date a record
is taken of the holders of Common Stock for the purpose of so
combining, whichever is earlier.
(e) Stock Dividends. In case shares of Common Stock are
issued as a dividend or other distribution on the Common Stock
(or such dividend is declared), then the Per Share Warrant
Price shall be adjusted, as of the date a record is taken of
the holders of Common Stock for the purpose of receiving such
dividend or other distribution (or if no such record is taken,
as at the earliest of the date of such declaration, payment or
other distribution), to that price determined by multiplying
the Per Share Warrant Price in effect immediately prior to
such declaration, payment or other distribution by a fraction
(i) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to the declaration
or payment of such dividend or other distribution, and (ii)
the denominator of which shall be the total number of shares
of Common Stock outstanding immediately after the declaration
or payment of such dividend or other distribution. In the
event that the Company shall declare or pay any dividend on
the Common Stock payable in any right to acquire Common Stock
for no consideration, then the Company shall be deemed to have
made a dividend payable in Common Stock in an amount of shares
equal to the maximum number of shares issuable upon exercise
of such rights to acquire Common Stock.
(f) Issuance of Additional Shares of Common Stock. If the
Company shall issue any Additional Shares of Common Stock
(including Additional Shares of Common Stock deemed to be
issued pursuant to paragraph (g) below) after the Original
Issue Date (other than as provided in the foregoing
subsections (b) through (e)), for no consideration or for a
consideration per share less than the Per Share Warrant Price
in effect on the date of and immediately prior to such issue,
then in such event, the
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Per Share Warrant Price shall be reduced, concurrently with
such issue, to a price equal to the quotient obtained by
dividing:
(1) an amount equal to (x) the total number of shares
of Common Stock outstanding immediately prior to such
issuance or sale multiplied by the Per Share Warrant
Price in effect immediately prior to such issuance or
sale, plus (y) the aggregate consideration received
or deemed to be received by the Company upon such
issuance or sale, by
(2) the total number of shares of Common Stock
outstanding immediately after such issuance or sale.
For purposes of the formulas expressed in paragraph 3(e) and
3(f), all shares of Common Stock, including Warrant Shares, issuable upon the
exercise of outstanding Options or this Warrant or issuable upon the conversion
of the Series C Stock, the Series D Stock or outstanding Convertible Securities
(including Convertible Securities issued upon the exercise of outstanding
Options), shall be deemed outstanding shares of Common Stock both immediately
before and after such issuance or sale.
(g) Deemed Issue of Additional Shares of Common Stock. In
the event the Company at any time or from time to time after
the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of
holders of any class of securities then entitled to receive
any such Options or Convertible Securities, then the maximum
number of shares (as set forth in the instrument relating
thereto without regard to any provisions contained therein
designed to protect against dilution) of Common Stock issuable
upon the exercise of such Options, or, in the case of
Convertible Securities and Options therefor, the conversion or
exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of
such issue of Options or Convertible Securities or, in case
such a record date shall have been fixed, as of the close of
business on such record date, provided that in any such case
in which Additional Shares of Common Stock are deemed to be
issued:
(1) no further adjustments in the Per Share Warrant
Price shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon
the exercise of such Options or the issue of Common
Stock upon the conversion or exchange of such
Convertible Securities;
(2) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise,
for any increase or decrease in the consideration
payable to the Company, or increase or decrease in
the number of shares of Common Stock issuable, upon
the exercise, conversion or exchange thereof, the Per
Share Warrant Price computed upon the original
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issuance of such Options or Convertible Securities
(or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based
thereon, upon any such increase or decrease becoming
effective, shall be recomputed to reflect such
increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under
such Convertible Securities (provided, however, that
no such adjustment of the Per Share Warrant Price
shall affect Common Stock previously issued upon
exercise of this Warrant in whole or in part);
(3) upon the expiration of any such Options or
any rights of conversion or exchange under such
Convertible Securities which shall not have been
exercised, the Per Share Warrant Price computed upon
the original issue of such Options or Convertible
Securities (or upon the occurrence of a record date
with respect thereto), and any subsequent adjustments
based thereon, shall, upon such expiration, be
recomputed as if:
(i) in the case of Options or
Convertible Securities, the only Additional
Shares of Common Stock issued were the
shares of Common Stock, if any, actually
issued upon the exercise of such Options or
the conversion or exchange of such
Convertible Securities and the consideration
received therefor was the consideration
actually received by the Company (x) for the
issue of all such Options, whether or not
exercised, plus the consideration actually
received by the Company upon exercise of the
Options or (y) for the issue of all such
Convertible Securities which were actually
converted or exchanged plus the additional
consideration, if any, actually received by
the Company upon the conversion or exchange
of the Convertible Securities; and
(ii) in the case of Options for
Convertible Securities, only the Convertible
Securities, if any, actually issued upon the
exercise thereof were issued at the time of
issue of such Options, and the consideration
received by the Company for the Additional
Shares of Common Stock deemed to have been
then issued was the consideration actually
received by the Company for the issue of all
such Options, whether or not exercised, plus
the consideration deemed to have been
received by the Company upon the issue of
the Convertible Securities with respect to
which such Options were actually exercised.
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(4) No readjustment pursuant to clause (2) or
(3) above shall have the effect of increasing the Per
Share Warrant Price to an amount which exceeds the
lower of (x) the Per Share Warrant Price on the
original adjustment date or (y) the Per Share Warrant
Price that would have resulted from any issuance of
Additional Shares of Common Stock between the
original adjustment date and such readjustment date.
(5) In the case of any Options which expire by
their terms not more than 30 days after the date of
issue thereof, no adjustment of the Per Share Warrant
Price shall be made until the expiration or exercise
of all such Options, whereupon such adjustment shall
be made in the same manner provided in clause (3)
above.
(h) Determination of Consideration. For purposes of this
Section 3, the consideration received by the Company for the
issue of any Additional Shares of Common Stock shall be
computed as follows:
(1) Cash and Property. Such consideration shall:
(i) insofar as it consists of cash, be the
aggregate amount of cash received by the
Company; and
(ii) insofar as it consists of property other
than cash, be computed at the fair value
thereof at the time of the issue, as
determined by the vote of a majority of the
Company's Board of Directors or if the Board
of Directors cannot reach such agreement, by
a qualified independent public accounting
firm, other than the accounting firm then
engaged as the Company's independent
auditors.
(2) Options and Convertible Securities. The
consideration per share received by the Company for
Additional Shares of Common Stock deemed to have been
issued pursuant to paragraph (g) above, relating to
Options and Convertible Securities shall be
determined by dividing:
(i) the total amount, if any, received
or receivable by the Company as
consideration for the issue of such Options
or Convertible Securities, plus the minimum
aggregate amount of additional consideration
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein designed to protect
against dilution) payable to the Company
upon the exercise of such Options or the
conversion or exchange of such Convertible
Securities, or in the case of Options for
Convertible Securities, the
-8-
exercise of such Options for Convertible
Securities and the conversion or exchange of
such Convertible Securities by
(ii) the maximum number of shares of Common
Stock (as set forth in the instruments
relating thereto, without regard to any
provision contained therein designed to
protect against dilution) issuable upon the
exercise of such Options or conversion or
exchange of such Convertible Securities.
(i) Adjustment of Aggregate Number of Warrant Shares Issuable.
Upon each adjustment of the Per Share Warrant Price under the
provisions of this Section 3, the aggregate number of Warrant
Shares issuable upon exercise of this Warrant shall be
adjusted to an amount determined by dividing (x) the Per Share
Warrant Price in effect immediately prior to the event causing
such adjustment by (y) such adjusted Per Share Warrant Price.
(j) Other Provisions Applicable to Adjustment Under this Section.
The following provisions will be applicable to the adjustments
in Per Share Warrant Price and the aggregate number of Warrant
Shares issuable upon exercise of this Warrant as provided in
this Section 3:
(1) Treasury Shares. The number of shares of
Common Stock at any time outstanding shall not
include any shares thereof then directly or
indirectly owned or held by or for the account of the
Company.
(2) Other Action Affecting Common Stock. In case
the Company shall take any action affecting the
outstanding number of shares of Common Stock other
than an action described in any of the foregoing
subsections 3(b) to 3(g) hereof, inclusive, which
would have an inequitable effect on the holder of
this Warrant, the Per Share Warrant Price shall be
adjusted in such manner and at such time as the Board
of Directors of the Company on the advice of the
Company's independent public accountants may in good
faith determine to be equitable in the circumstances.
(3) Minimum Adjustment. No adjustment of the Per
Share Warrant Price shall be made if the amount of
any such adjustment would be an amount less than one
percent (1%) of the Per Share Warrant Price then in
effect, but any such amount shall be carried forward
and an adjustment in respect thereof shall be made at
the time of and together with any subsequent
adjustment which, together with such amount and any
other amount or amounts so carried forward, shall
aggregate an increase or decrease of one percent (1%)
or more.
-9-
(4) Certain Adjustments. The Per Share Warrant
Price shall not be adjusted upward except in the
event of a combination of the outstanding shares of
Common Stock into a smaller number of shares of
Common Stock or in the event of a readjustment of the
Per Share Warrant Price pursuant to Section 3(g)(2)
or (3).
(k) Notices of Adjustments. Whenever the aggregate number
of Warrant Shares issuable upon exercise of this Warrant and
Per Share Warrant Price is adjusted as herein provided, an
officer of the Company shall compute the adjusted number of
Warrant Shares and Per Share Warrant Price in accordance with
the foregoing provisions and shall prepare a written
certificate setting forth such adjusted number of Warrant
Shares and Per Share Warrant Price and showing in detail the
facts upon which such adjustment is based, and such written
instrument shall promptly be delivered to the recordholder of
this Warrant.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of the Common
Stock represented by each and every certificate for Warrant Shares delivered on
the proper exercise of this Warrant shall, at the time of such delivery, be
validly issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights, and the Company will take all such actions as may be
necessary to assure that the par value or stated value, if any, per share of the
Common Stock is at all times equal to or less than the then Per Share Warrant
Price. Subject to Section 6(c) hereof, the Company further covenants and agrees
that it will pay, when due and payable, any and all Federal and state stamp,
original issue or similar taxes that may be payable in respect of the issuance
of any Warrant Shares or certificates therefor. The Holder covenants and agrees
that it shall pay, when due and payable, any and all federal, state and local
income or similar taxes that may be payable in respect of the issuance of any
Warrant Shares or certificates therefor.
5. Repurchase of Warrant.
(a) Holders Option to Put Warrant. Subject to the
succeeding provisions of this Section 5, if at any time the
Warrant Shares shall not be issuable because the Company has
insufficient authorized capital stock, the Holder may, by
notice to the Company (a "Put Notice"), elect to sell to the
Company (and the Company hereby agrees to repurchase from the
Holder(s)), at the repurchase price specified in Section 5(d)
hereof (the "Repurchase Price"), such portion of the Warrant
exercisable for that number of Warrant Shares as are specified
in the Put Notice (the "Put Number"). For all purposes of this
Section 5, each Warrant shall be treated as the number of
Warrant Shares for which it is then exercisable.
(b) Put Closing. The closing of the exercise of the put
right shall take place at the offices of the Company at 10:00
a.m. local time on a date not more than seven (7) days after
the date of the Put Notice, or at such other time and place as
the Company and the Holder(s) may agree upon (the "Put Closing
Date"). At the closing the
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Holder(s) will deliver to the Company a Warrant or Warrants
evidencing or exercisable for at least the Put Number of
Warrant Shares (properly endorsed or accompanied by
assignments, with signature(s) guaranteed or similar
appropriate documentation of authority to transfer) against
payment of the Repurchase Price to the Holder(s) in the manner
specified in Section 5(c) hereof (together with Warrants of
like tenor evidencing the right to purchase any Warrant
Shares, in either case to the extent that the number of shares
represented by the Warrants presented to the Company were in
excess of the Put Number).
(c) Payment. The Company shall pay the Repurchase Price
to the Holder(s) out of funds legally available therefor at
any closing under Section 5(b) hereof in cash or immediately
available funds (the "Final Payment Date"). In the event that
any portion of the Repurchase Price is not paid as provided in
the preceding sentence as a result of any insufficiency of
legally available funds or otherwise, such portion shall
remain an obligation of the Company and shall become due and
payable, in cash or immediately available funds, as soon as
there are funds legally available therefor.
(d) Repurchase Price for Warrant.
(1) the Repurchase Price shall be equal to that number
which is equal to the difference between (I) the
product of (i) the Put Number of Warrant Shares,
multiplied by (ii) the quotient obtained by dividing
(A) the Market Value of the Company's Common Stock
(as determined pursuant to Section 5(d)(2) hereof),
calculated as of the date of the Put Notice given by
the Holder under Section 5(a), by (B) the total
number of shares of Common Stock outstanding on the
date of such Put Notice on a fully diluted basis, and
(II) the Product obtained by multiplying the Per
Share Warrant Price by the Put Number of Warrant
Shares;
(2) The Market Value as of a given date shall be the
product of (i) the Current Market Price (as
hereinafter defined) on such date multiplied by (ii)
the number of shares of Common Stock issued and
outstanding on such date on a fully diluted basis.
The term "Current Market Price", as of the date of
any determination thereof, shall be deemed to be the
average of the Closing Price per share for ten
Trading Days commencing immediately before such date.
6. Transfer
(a) Securities Laws. Neither this Warrant nor the Warrant
Shares issuable upon the exercise hereof have been registered
under the Securities Act of 1933, as amended (the "Securities
Act"), or under any state securities laws and unless so
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registered may not be transferred, sold, pledged, hypothecated
or otherwise disposed of unless an exemption from such
registration is available. In the event the Holder desires to
transfer this Warrant or any of the Warrant Shares issued, the
Holder must give the Company prior written notice of such
proposed transfer including the name and address of the
proposed transferee. Such transfer may be made only either (i)
upon publication by the Securities and Exchange Commission
(the "Commission") of a ruling, interpretation, opinion or "no
action letter" based upon facts presented to said Commission,
or (ii) upon receipt by the Company of an opinion of counsel
acceptable to the Company to the effect that the proposed
transfer will not violate the provisions of the Securities
Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the rules and regulations promulgated
under either such act, or to the effect that the Warrant or
Warrant Shares to be sold or transferred have been registered
under the Securities Act of 1933, as amended, and that there
is in effect a current prospectus meeting the requirements of
Subsection 10(a) of the Securities Act, which is being or will
be delivered to the purchaser or transferee at or prior to the
time of delivery of the certificates evidencing the Warrant or
Warrant Shares to be sold or transferred. Notwithstanding
anything else contained herein, Danskin Investors, LLC may
distribute the Warrant or the Warrant Shares to its members.
(b) Transfer. Upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any,
with assignment documentation duly executed and funds
sufficient to pay any transfer tax, and upon compliance with
the foregoing provisions, the Company shall, without charge,
execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment, and this Warrant shall
promptly be canceled. Any assignment, transfer, pledge,
hypothecation or other disposition of this Warrant attempted
contrary to the provisions of this Warrant, or any levy of
execution, attachment or other process attempted upon the
Warrant, shall be null and void and without effect.
(c) Legend and Stop Transfer Orders. Unless the Warrant
Shares have been registered under the Securities Act, upon
exercise of any part of the Warrant and the issuance of any of
the Warrant Shares, the Company shall instruct its transfer
agent to enter stop transfer orders with respect to such
shares, and all certificates representing Warrant Shares shall
bear on the face thereof substantially the following legend,
insofar as is consistent with Delaware law:
"The shares of common stock represented by this
certificate have not been registered under the
Securities Act of 1933, as amended, and may not be
sold, offered for sale, assigned, transferred or
otherwise disposed of unless registered pursuant to
the provisions of that Act or an opinion of counsel
to the Company is obtained stating that such
disposition is in compliance with an available
exemption from such registration."
-12-
7. Loss, etc. of Warrant. Upon receipt of evidence satisfactory
to the Company of the loss, theft, destruction or mutilation of this
Warrant, and of indemnity reasonably satisfactory to the Company, if
lost, stolen or destroyed, and upon surrender and cancellation of this
Warrant if mutilated, the Company shall execute and deliver to the
Holder a new Warrant of like date, tenor and denomination.
8. Warrant Holder Not Shareholder. Except as otherwise provided
herein, this Warrant does not confer upon the Holder any right to vote
or to consent to or receive notice as a shareholder of the Company, as
such, in respect of any matters whatsoever, or any other rights or
liabilities as a shareholder, prior to the exercise hereof.
9. Communication. No notice or other communication under this
Warrant shall be effective unless the same is in writing and is mailed
by first-class mail, postage prepaid, addressed to:
(a) the Company at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, attention: Chairman, or such other address as the
Company has designated in writing to the Holder, or
(b) the Holder at c/o Onyx Partners, Inc., 0000 Xxxxxxxx
Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, attention:
President, or such other address as the Holder has designated
in writing to the Company.
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and
construed in accordance with the law of the State of New York without
giving effect to the principles of conflict of laws thereof.
-13-
IN WITNESS WHEREOF, DANSKIN, INC., has caused this Warrant to be signed
by a duly authorized officer as of this [30th day of September], 1997.
DANSKIN, INC.
By:___________________________________
Name:
Title:
-14-
SUBSCRIPTION
The undersigned, __________________________________________, pursuant
to the provisions of the foregoing Warrant, hereby agrees to subscribe for the
purchase of _________________________ shares of the Common Stock of DANSKIN,
INC. covered by said Warrant, and makes payment therefor in full at the price
per share provided by said Xxxxxxx.
Dated __________________ Signature__________________________
Address____________________
--------------------
ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto _________________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_________________________, attorney, to transfer said Warrant on the books of
DANSKIN, INC.
Dated __________________ Signature__________________________
Address____________________
--------------------
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby assigns and
transfers unto _________________________ the right to purchase
_________________________ shares of the Common Stock of DANSKIN, INC. by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced hereby, and does irrevocably constitute and appoint
_________________________, attorney, to transfer that part of said Warrant on
the books of DANSKIN, INC.
Dated __________________ Signature__________________________
Address____________________
--------------------
-15-
