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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Danskin, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
2363651020
(CUSIP Number)
Mr. Andrew Astrachan With a copy to:
Danskin Investors, LLC Robert M. Friedman, Esq.
c/o Onyx Partners, Inc. Shereff, Friedman, Hoffman & Goodman, LLP
9595 Wilshire Blvd., Suite 700 919 Third Avenue
Beverly Hills, CA 90212 New York, New York 10022
(310) 724-5599 (212) 758-9500
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 8, 1997
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following: [ ].
Note: One copy and an EDGAR version of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 2363651020 Page 2 of __ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Danskin Investors, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 48,160,994
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 48,160,994
PERSON 10 SHARED DISPOSITIVE POWER
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
48,160,994
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
83.3%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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SCHEDULE 13D
CUSIP No. 2363651020 Page 3 of __ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Andrew J. Astrachan
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 2363651020 Page 4 of __ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David A. Sachs
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
This Amendment No. 1 to the Statement on Schedule 13D amends
and supplements the Statement on Schedule 13D relating to the event date of
September 22, 1997 (the "Schedule 13D") filed by Danskin Investors, LLC, Andrew
J. Astrachan and David A. Sachs (the "Reporting Persons") relating to the common
stock (the "Common Stock") of Danskin, Inc. (the "Issuer"). The address of the
Issuer is 111 West 40th Street, New York, New York 10018. Capitalized terms used
herein and not defined herein shall have the meanings assigned thereto in the
Schedule 13D.
Item 4. Purpose of the Transaction
Item 4 is amended to add the following:
Upon the Issuer's refinancing its revolving credit facility on
October 8, 1997 (the "Refinancing"), the Series C Stock and the Note, by their
terms, were automatically exchanged for (i) $12,000,000 stated value of Series D
Cumulative Convertible Preferred Stock (the "Series D Stock") of the Issuer,
(ii) a warrant to purchase 10,000,000 shares of Common Stock at a per share
exercise price of $.30 (the "Warrant") and (iii) a $3,000,000 aggregate
principal amount subordinated note of the Issuer. The Series D Stock is
convertible, at the option of the holder and, in certain circumstances,
mandatorily, at a per share conversion price of $.30. Holders of the Series D
Stock have the right to elect a majority of the Issuer's Board of Directors. It
is anticipated that in connection with the Refinancing, no further members of
the Board of Directors of the Issuer will resign, the Board of Directors of the
Issuer will be expanded to eleven members and Michael Hsieh and David Chu will
be elected to the Board of Directors of the Issuer as designees of Investors.
Item 5. Interest in Securities of the Issuer
Item 5 is amended and restated in its entirety to read as
follows:
(a) and (b) Through its ownership of the Series D Stock and
the Warrant, Investors is the beneficial owner of 48,160,994 shares of Common
Stock (83.3%).
The number of shares beneficially owned by the Reporting
Persons and the percentage of outstanding shares represented thereby, have been
computed in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended. The ownership of the Reporting Persons is based on 9,666,330
outstanding shares of Common Stock of the Issuer as of September 22, 1997, as
reported to the Reporting Persons by an officer of the Issuer, and the
48,160,904 shares issuable upon conversion of the Series D Stock and upon
exercise of the Warrant and assumes approval of the amendment to the Issuer's
Certificate of Incorporation increasing the authorized shares of Common Stock
described in Item 4. The Series D Stock votes on all matters as a single class
with the Common Stock on an as-converted basis.
Page 5
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(c) The only transactions in the Common Stock by the Reporting
Persons since the filing of the Schedule 13D were the transactions described in
Item 4.
(d) The members of Investors have the right to receive the
proceeds from the sale of the securities of the Issuer owned by Investors. The
following members of Investors each have the right to receive (x) more than five
percent of the outstanding shares of Common Stock upon the dissolution of
Investors or (y) proceeds relating to the sale of more than five percent of the
outstanding shares of Common Stock upon the sale of such securities by
Investors: (i) Alpine Associates, (ii) Mayfirst Associates, Ltd., (iii) Regent
Capital Partners, L.P., (iv) Regent Capital Equity Partners, L.P., (v) Golden
Horn (II) L.P., (vi) David Chu and (vii) Onyx.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understanding or Relations with
Respect to Securities of the Issuer
Item 6 is amended to add the following:
The Warrant, a copy of which is attached hereto as Exhibit E.1
and which is incorporated herein by reference, provides that if at any time the
Issuer shall have insufficient authorized capital stock to issue the Common
Stock issuable upon exercise of the Warrant, Investors may require the Issuer to
repurchase the Warrant, or a portion thereof, at a price equal to the difference
between the market value of the Common Stock and the exercise price of the
Warrant for each share to be so repurchased.
The proxies granted to Andrew J. Astrachan and David A. Sachs
by SunAmerica Life Insurance Company and Oppenheimer Bond Fund for Growth are
valid until the date upon which Investors owns a majority of the voting stock of
the Issuer. Accordingly, such proxies terminated according to their terms upon
the consummation of the Refinancing.
Item 7. Material to be Filed as Exhibits
Exhibit E.1 Warrant issued to Investors.
Page 6
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Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DANSKIN INVESTORS, LLC
By: Onyx Partners, Inc., its manager
By:/s/ Andrew J. Astrachan
------------------------------------
Name: Andrew J. Astrachan
Title: President
Dated: October 10, 1997
/s/ Andrew J. Astrachan
---------------------------------------
Andrew J. Astrachan
/s/ David A. Sachs
---------------------------------------
David A. Sachs
Page 7
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Exhibit Index
Letter Description Page
------ ----------- ----
E.1 Warrant issued to Investors
Page 8
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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 October 8, 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 October 8, 1997, and prior to 5:00 P.M., Eastern Standard Time,
on October 8, 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 October 8, 1997, and prior to 5:00
P.M., Eastern Standard Time, on
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October 8, 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 Mary Ann
Domuracki, Beverly Eichel and Nina McLemore
(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 Oppenheimer Bond
Fund for Growth pursuant to the terms of the Purchase
Agreement (the "BFG Warrant") and the Warrant issued
to Donald Schupak pursuant to the terms of that
certain Warrant Purchase Agreement dated as of
September 22, 1997 between the Company and Donald
Schupak (the "Schupak 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 Schupak 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 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
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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.
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<PAGE>
(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."
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<PAGE>
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 111 West 40th Street, New York, NY 10018,
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., 9595 Wilshire Blvd.,
Suite 700, Beverly Hills, CA 90212, 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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<PAGE>
IN WITNESS WHEREOF, DANSKIN, INC., has caused this Warrant to be signed
by a duly authorized officer as of this 8th day of October, 1997.
DANSKIN, INC.
By:________________________________
Name:
Title:
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<PAGE>
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 Warrant.
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____________________________
____________________________
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