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 [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 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
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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 the Company and approved
by the Board of Directors (the "Employee Options"); and
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(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 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
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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 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
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(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 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
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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.
(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.
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(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 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.
-8-
(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.
(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
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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 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).
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(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 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,
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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."
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.
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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.
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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:
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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
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Address
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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
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Address
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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
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Address
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