WARRANT CERTIFICATE
THESE WARRANTS AND ANY SHARES ACQUIRED UPON THE EXERCISE THEREOF HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE WARRANTS AND SUCH SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT AND LAWS. THESE WARRANTS AND SUCH SHARES MAY
NOT BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS WARRANT
CERTIFICATE, AND NO TRANSFER OF THESE WARRANTS OR SUCH SHARES SHALL BE VALID OR
EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
WARRANT CERTIFICATE
To Purchase Shares of Common Stock of
SIGNAL APPAREL COMPANY, INC.
5,000,000 Warrants
THIS CERTIFIES THAT, for good and valuable consideration, the receipt of
which is hereby acknowledged, WGI, LLC or its registered assignees (the "Holder"
or, together with one or more such registered assignees, the "Holders"), is the
registered owner of the number of Warrants specified above, each of which
Warrants entitles the holder hereof, subject to the vesting schedule and the
additional conditions and limitations hereinafter set forth, to purchase from
SIGNAL APPAREL COMPANY, INC. (the "Company"), a corporation organized and
existing under the laws of the State of Indiana, one share of the Company's
Common Stock, $.01 par value (the "Common Stock"), at a purchase price of $1.75
per share until the Expiration Date (as defined in Section 2 hereof) (the
"Exercise Price"). The Warrants shall not be terminable by the Company. The
shares of Common Stock issuable upon exercise of the Warrants (and any other or
additional shares, securities or property that may hereafter be issuable upon
exercise of the Warrants) are sometimes referred to herein as the "Warrant
Shares", and the number of shares so issuable at any given time are sometimes
referred to as the "Aggregate Number" as such number may be increased or
decreased, as more fully set forth herein.
The warrants represented hereby are issued as of May 8, 1998 ("Issuance
Date")(such warrants issued hereunder, or such lesser number thereof as shall
from time to time remain unexercised, being herein collectively called the
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"Warrants"). The Warrants are being issued in connection with that certain
Credit Agreement dated as of May 8, 1998, between the Company and WGI, LLC (the
"WGI Credit Agreement"). In accordance with the rules of the New York Stock
Exchange, these Warrants shall not be effective until approved by vote of the
shareholders of the Company.
Certain terms used in this Warrant Certificate are defined in Section 11
hereof or in the WGI Credit Agreement. Terms and expressions in this Warrant
Certificate having a defined or generally accepted meaning under the securities
laws of the United States of America shall have the same meaning in this Warrant
Certificate, unless the contrary intention appears.
The Warrants are subject to the following provisions, terms and conditions:
1. Vesting and Exercise of Warrants. The Warrants shall vest and become
exercisable at the rate of 200,000 warrants for each $1,000,000 in Loans
borrowed by Signal, with the number of Warrants so vested to be based upon the
largest Principal Amount outstanding at any point in time during the Commitment
Period (as defined in the WGI Credit Agreement). All vested Warrants shall be
exercisable through the Expiration Date set forth in Section 2 hereof.
2. Expiration of Warrants. The Warrants shall, in any event, be void and
all rights represented hereby shall cease on and as of May 8, 2003 (the
"Expiration Date").
3. Exercise; Issue of Certificates; Payment for Shares. The rights
represented by this Warrant Certificate may be exercised by the Holder, in whole
or in part (but not as to fractional shares of Common Stock), to purchase a
total of up to 5,000,000 shares (subject to the Expiration Date described in
Section 2 and to the adjustments described in Section 6 hereof), by the
surrender of this Warrant Certificate (with the Exercise Form annexed hereto as
Schedule 1 properly completed and executed) to the Company at its principal
office specified in Section 18, or its then current address, and upon payment to
the Company of the Exercise Price for the Warrant Shares being purchased.
Payment of the Exercise Price may be (i) by cash, check or bank draft in New
York Clearing House funds; (ii) by cancellation of any indebtedness which may
from time to time be owing from the Company to Holder; (iii) by cancellation of
Warrants with such Warrants valued, for such purposes, at the difference between
the Prevailing Market Price at the time of exercise and the Exercise Price, as
adjusted; or (iv) through delivery of other Company securities, including shares
of Preferred Stock, valued for such purposes at the stated value per share
prescribed for the applicable series
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of Preferred Stock plus any accumulated and unpaid dividends thereon, or at its
then Prevailing Market Price for any other Company securities which are publicly
traded. The shares so purchased shall be and will be deemed to be issued to the
Holder hereof as the record owner of such shares as of the close of business on
the date on which this Warrant Certificate shall have been surrendered and
payment made for such shares as aforesaid. Certificates for the shares so
purchased shall be delivered to the Holder within a reasonable time, not
exceeding ten days, after this Warrant Certificate shall have been so exercised,
and unless the Warrants have expired, a new Warrant Certificate representing the
number of shares, if any, with respect to which this Warrant Certificate shall
not then have been exercised shall also be delivered to the Holder within such
time. Such certificate or certificates shall be deemed to have been issued, and
any Person which may be designated as an assignee therein shall be deemed for
all purposes to have become a holder of record of such certificate, as of the
close of business on the date of the surrender of this Warrant Certificate and
payment of the Exercise Price as aforesaid. The Warrant Shares initially issued
upon the exercise hereof shall be shares of Common Stock.
4. Shares to be Fully Paid; Reservation of Shares; Listing. The Company
covenants and agrees that: (a) all Warrant Shares will, upon issuance, be
original-issue shares (and not treasury stock) fully paid and nonassessable and
free from all taxes, claims, liens, charges and other encumbrances with respect
to the issue thereof; (b) without limiting the generality of the foregoing, the
Company will from time to time take all such action as may be required to assure
that the par value per share of Common Stock shall at all times be less than or
equal to the Exercise Price; (c) during the period within which the rights
represented by this Warrant Certificate may be exercised, the Company will at
all times have authorized and reserved for the purpose of issue or transfer upon
exercise of the Warrants a sufficient number of original-issue shares of its
Common Stock to provide for the exercise of all the Warrants; (d) upon the
exercise of the Warrants represented by this Warrant Certificate, the Company
will, at its expense, promptly notify each securities exchange on which any
shares of Common Stock are at the time listed of such issuance, and maintain a
listing of all shares of Common Stock from time to time issuable upon the
exercise of the Warrants to the extent such shares can be listed.
5. Registration Rights.
(a) Demand Registration Rights.
On any three occasions after the Issuance Date and prior to the Expiration
Date, upon the request of
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Holders of at least 51% of the Warrant Shares originally issued pursuant to
this Warrant Certificate which are then outstanding, which Holders shall
request the registration of such shares under the United States Securities
Act of 1933, as amended (provided that such request covers an aggregate of
at least 100,000 Warrant Shares), the Company shall file with the
Commission and use its best efforts to cause to become effective as
promptly as practicable (subject to the following sentence) a registration
statement covering at least all of the Warrant Shares requested to be
registered by such requesting Holders (any Holders of Warrant Shares
requesting registration under this Section 5(a) are "Selling Holders"), all
to the extent requisite to permit the exercise or disposition in the United
States, as the case may be, by the Selling Holders of the Warrant Shares so
registered ("Demand Registration"); provided, however, that the Company
shall not be obligated to effect a Demand Registration (i) prior to the
date which is 90 calendar days after the closing date of a previous United
States public offering, (ii) if the Company has given notice to the Holders
of Warrants that the Company expects to file a registration statement
within 30 days and while the Company has a public offering in registration,
or (iii) if three such Demand Registrations with respect to all or a
portion of the Warrant Shares have previously been requested. Should the
Company refuse to effect a Demand Registration pursuant to subsections (i)
or (ii) above, such request shall not be considered on of the three rights
to demand registration granted by this Section. The Company shall promptly
give written notice to all Holders of the Warrants and the Warrant Shares
of the receipt by it of a request for a Demand Registration pursuant to
this Section. If other selling shareholders or the Company shall also
propose to include shares of Common Stock in a Demand Registration, and if
the number of includable shares shall exceed the total number of shares of
Common Stock proposed to be registered and/or Warrant Shares proposed to be
registered (all such securities proposed to be registered, the "Registrable
Securities"), the Registrable Securities shall be included in the Demand
Registration in the following priority: first, the Registrable Securities
held by the Holders of Warrant Shares in proportion to the respective
numbers of Registrable Securities proposed to be sold by them, and second,
the Registrable Securities proposed to be registered by the Company or
other selling shareholders, allocated among them in such manner as they
shall determine. If a Holder or Holders shall have requested a Demand
Registration and the Company shall have thereafter withdrawn such
registration
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statement, in addition to such other rights and remedies that the Holders
may be entitled to, such withdrawn registration shall not be deemed to be
one of the registration statements that may be requested pursuant to this
Section 5(a). The Holder agrees to exercise all Warrants for which it has
demanded registration of Warrant Shares on the effective date of such
registration.
(b) Piggy Back Registration Rights.
(i) If at any time the Company proposes to file a registration
statement with the Commission (other than in connection with a rights
offering to shareholders, an exchange offer, a registration statement
on Form S-8 or Form S-4 or any successor forms relating to employee
benefit plans, an acquisition of another entity or merger in
connection with a dividend reinvestment plan, the conversion of any
convertible securities, or a stand-by underwriting with respect to the
call of a warrant, option, right or convertible securities for
redemption) with respect to shares of Common Stock which becomes, or
which the Company believes will become, effective at any time prior to
the Expiration Date, then the Company shall in each case give written
notice of such proposed filing to the Holders of the Warrants at least
fifteen (15) calendar days before the anticipated filing date of such
registration statement. Such notice shall offer to such Holders the
opportunity to include in such registration statement such number of
Warrant Shares as such Holders may request. The Company shall not be
required to honor any such request (A) if, in the opinion of counsel
to the Company reasonably acceptable to such Selling Holder who wishes
to have such Warrant Shares included in such registration statement,
registration under the Securities Act is not required for the transfer
of the Warrant Shares in the manner proposed by such Selling Holder;
or (B) to register in the aggregate fewer than 10,000 Warrant Shares
held by the Holders. The Company shall permit, or shall use its best
efforts to cause the managing underwriter of a proposed offering to
permit, the Selling Holders whose Warrant Shares are requested to be
included in the registration (the "Piggy-Back Shares") to include such
Piggy-Back Shares in the proposed offering on the same terms and
conditions as applicable to the shares of Common Stock offered by the
Company and for the account of any person other than the Company, as
the case may be.
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(ii) Notwithstanding the foregoing, if any such managing
underwriter shall advise the Company in writing that, in its opinion,
the distribution of all or a portion of the Warrant Shares requested
to be included in the registration concurrently with the shares of
Common Stock being registered by the Company would materially
adversely affect the distribution of such securities by the Company
for its own account, then such Warrant Shares shall be excluded from
the registration. The securities of the Company held by officers and
directors of the Company shall first be excluded from such
registration and underwriting to the extent required by such
limitation. If after such exclusion a limitation on the number of
Warrant Shares is still required, then such inclusion of Piggy-Back
Shares shall be made pro rata among the aggregate of the Piggy-Back
Shares for which a proper request was made under this Subsection 5(a).
If other shareholders of the Company are entitled to piggy back
registration rights and the number of includable shares exceeds the
total number of shares that may be registered, the shares shall be
included in the registration in proportion to the number of shares
proposed to be sold by the Selling Holders, and the number of shares
of stock proposed to be registered by such other selling shareholders.
(c) United States Federal and State Approval. The Company shall effect
the registration or qualification of the Warrant Shares registered pursuant
to Sections 5(a) or 5(b) and give such notifications to, or receive
approvals of, any governmental authority under United States federal or, if
reasonably requested by the Selling Holders, any United States state
securities laws, or any other applicable law, or effect listing with any
securities exchange on which the Common Stock is listed at such time, as
may be necessary to permit the exercise of the Warrants and the sale of
Warrant Shares in the manner proposed by the Selling Holders, provided that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it is
not so qualified, to subject itself to taxation in any such jurisdiction or
to consent to general service of process in any such jurisdiction.
(d) Expenses. Subject to the limitations contained in this paragraph
(d), and except as otherwise specifically provided in this Section 5, the
entire costs and expenses of each registration and
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qualification pursuant to this Section 5, whether or not any such
registration shall become effective or shall be consummated, shall be borne
by the Company. Such costs and expenses shall include the fees and expenses
of counsel for the Company and of its accountants (including the cost of
any special audit required by or incidental to such registration), all
other costs and expenses of the Company incident to the preparation,
printing and filing under the Securities Act of the registration statement
and all amendments and supplements thereto, the cost of furnishing copies
of each preliminary prospectus, each final prospectus and each amendment or
supplement thereto to underwriters, dealers and other purchasers of the
Warrant Shares, and the costs and expenses (including fees and
disbursements of counsel) incurred by the Company in connection with the
qualification of the Warrant Shares under the Blue Sky Laws of various
jurisdictions; provided, however, that if registration under the Blue Sky
Laws of any jurisdiction requires selling shareholders to pay a
proportionate share of the expenses of registration, the Selling Holders
shall pay for such expense to the extent required by the applicable law.
The Company shall not be required to pay underwriting discounts or selling
commissions in connection with the sale of Warrant Shares sold in any such
registration and qualification pursuant to this Section 5.
(e) Procedures.
(i) In the case of each registration or qualification pursuant to
Section 5(a) or Section 5(b), the Company will keep all Holders of
Warrants advised in writing as to the initiation of proceedings for
such registration and qualification and as to the completion thereof,
and will advise any such Holders, upon request, of the progress of
such proceedings. At its expense the Company will promptly prepare
(and in any event, except as otherwise expressly provided herein,
within 90 days after the end of the period within which requests for
registration may be given to the Company) and file with the Commission
a registration statement with respect to the securities to be
registered and use its best efforts to cause such registration
statement to become effective and keep such registration and
qualification in effect by such action as may be necessary or
appropriate, including, without limitation, the filing of
post-effective amendments and supplements to any registration
statement or prospectus necessary to keep the registration statement
current and further
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qualification under any applicable Blue Sky or other state securities
laws to permit such sale or distribution, all as reasonably requested
by the Selling Holders, for the lesser of (A) completion of the
offering or (B) 180 days after the effective date of such registration
statement; provided, however, that the Company will keep such
registration and qualification effective for longer than 180 days if
the costs and expenses associated with such extended registration
period are borne by the Selling Holders.
(ii) At its expense the Company will furnish to each Selling
Holder whose Warrants and/or Warrant Shares are included therein such
number of copies of such registration statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such
registration statement and covering such Selling Holder's Warrants
and/or Warrant Shares (including each preliminary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents as such Selling Holder may reasonable request in order to
facilitate the disposition of such Selling Holder's Warrants and/or
Warrant Shares contemplated in such registration statement. The
Company will notify each Selling Holder of any securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, or of any other occurrence which, under applicable
securities laws, requires the prospectus to be revised or updated.
Upon receipt of such notice and until a supplemented or amended
prospectus as set forth below is available, each Selling Holder will
cease to offer or sell any securities covered by the registration
statement and will return all copies of the prospectus to the Company
if requested to do so by it and will not sell any security of the
Company until provided with a current prospectus and notice from the
Company that it may resume its selling efforts. At the request of any
such Selling Holder, the Company shall furnish to such Selling Holder
a reasonable number of copies of a
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supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing.
(iii) Notwithstanding anything to the contrary herein, any
prospective Selling Holder may withdraw from a registration under this
Section 5 any or all of its Warrant Shares, upon written notice to the
Company given prior to the execution and delivery by such Selling
Holder of a binding underwriting agreement with the prospective
underwriters.
(f) Cross-Indemnity and Contribution Agreements. In connection with
the registration of Warrant Shares in accordance with Section 5(a) or
Section 5(b) above, the Company hereby agrees to enter into an appropriate
cross-indemnity agreement and a contribution agreement, each in customary
form, with each underwriter, if any, and each Holder of Warrant Shares
included in such registration statement; and, if requested, to enter into
an underwriting agreement containing conventional representations,
warranties, allocation of expenses, and customary closing conditions
including, but not limited to, opinions of counsel and accountants' comfort
letters, with any underwriter who acquires the registerable securities.
(g) Cooperation of Selling Holders. Every Selling Holder who has any
Warrant Shares included in a registration statement shall be required to do
the following:
(i) To furnish the Company, in writing, such appropriate
information and covenants regarding the proposed methods of sale or
other disposition of the Warrant Shares as the Company, any
underwriter, the Commission and/or any state or other regulatory
authority may request;
(ii) To execute, deliver and/or file with or supply to the
Company, any underwriter, the Commission and/or any state or other
regulatory authority such information, documents, representations,
undertakings and/or agreements (A) necessary to carry out the
provisions of this Warrant Certificate, (B) necessary to effect the
registration or qualification of the Warrant
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Shares under the Securities Act and/or any of the laws and regulations
of any jurisdiction, and (C) as the Company may reasonably require to
ensure that the transfer or disposition of the Warrant Shares is not
in violation of the Securities Act or any applicable state securities
laws;
(iii) To furnish to the Company, not later than every thirty (30)
days after the date of effectiveness of the registration statement, a
report of the number of Warrant Shares sold during such thirty-day
period; and
(iv) To cancel any orders to sell and/or to reverse any sale of
Warrant Shares which, in the reasonable belief of the Company, based
upon the opinion of legal counsel experienced in securities law
matters, were effected in violation of the Securities Act or any
applicable State securities laws.
6. Adjustments to Aggregate Number.
Under certain conditions, the Aggregate Number is subject to adjustment as
set forth herein.
The Aggregate Number shall be subject to adjustment from time to time as
follows and thereafter as adjusted shall be deemed to be the Aggregate Number
hereunder.
(a) In case at any time or from time to time the Company shall:
(i) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, Common Stock;
(ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock; or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then the Aggregate Number in effect immediately prior thereto shall be
adjusted so that the Holder or Holders of Warrants shall thereafter be
entitled to receive, upon exercise thereof, the number of shares of Common
Stock that such Holder or Holders would have owned or have been entitled to
receive after the occurrence of such event had such Warrants been exercised
immediately prior to the occurrence of such event.
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(b) In case at any time or from time to time the Company shall take a
record of the holders of its Common Stock for the purpose of entitling them
to receive any dividend or other distribution (collectively, a
"Distribution") of:
(i) cash (other than dividends payable out of earnings or any
surplus legally available for the payment of dividends under the laws
of the state of incorporation of the Company);
(ii) any evidences of its indebtedness (other than Convertible
Securities), any shares of its capital stock (other than additional
shares of Common Stock or Convertible Securities) or any other
securities or property of any nature whatsoever (other than cash); or
(iii) any options or warrants or other rights to subscribe for or
purchase any of the following: any evidences of its indebtedness
(other than Convertible Securities), any shares of its capital stock
(other than additional shares of Common Stock or Convertible
Securities) or any other securities or property of any nature
whatsoever,
then the Holder or Holders of Warrants shall be entitled to receive upon
the exercise thereof at any time on or after the taking of such record the
number of shares of Common Stock to be received upon exercise of such
Warrants determined as stated herein and, in addition and without further
payment, the cash, stock, securities, other property, options, warrants
and/or other rights to which such Holder or Holders would have been
entitled by way of the Distribution and subsequent dividends and
distributions if such Holder or Holders (x) had exercised such Warrants
immediately prior to such Distribution, and (y) had retained the
Distribution in respect of the Common Stock and all subsequent dividends
and distributions of any nature whatsoever in respect of any stock or
securities paid as dividends and distributions and originating directly or
indirectly from such Common Stock. A reclassification of the Common Stock
into shares of Common Stock and shares of any other class of stock shall be
deemed a distribution by the Company to the holders of its Common Stock of
such shares of such other class of stock within the meaning of this
paragraph (b) and, if the outstanding shares of Common Stock shall be
changed into a larger or smaller number of shares of Common Stock as a part
of such
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reclassification, such event shall be deemed a subdivision or combination,
as the case may be, of the outstanding shares of Common Stock within the
meaning of paragraph (a) of this Section 6.
(c) In case at any time or from time to time the Company shall (except
as hereinafter provided) issue or sell any additional shares of Common
Stock for a consideration per share less than the Prevailing Market Price
to any Affiliate, Associate or related party, then the Aggregate Number in
effect immediately prior thereto shall be adjusted so that the Aggregate
Number thereafter shall be determined by multiplying the Aggregate Number
immediately prior to such action by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior
to the issuance of such additional shares of Common Stock plus the number
of such additional shares of Common Stock so issued and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares of Common Stock plus the
number of shares of Common Stock which the aggregate consideration for the
total number of such additional shares of Common Stock so issued would
purchase at a price equal to the Prevailing Market Price. The provisions of
this paragraph (c) shall not apply to any issuance of additional shares of
Common Stock for which an adjustment is provided under Section 6(a). No
adjustment of the Aggregate Number shall be made under this paragraph (c)
upon the issuance of any additional shares of Common Stock which are issued
pursuant to (1) the exercise of any Warrants, and (2) the exercise of stock
options to purchase shares of Common Stock pursuant to any outstanding
stock options granted by contract to present or former employees of the
Company or its subsidiaries or pursuant to the Company's 1985 Stock Option
Plan, as amended (collectively, (1) and (2) the "Options").
(d) In case at any time or from time to time the Company shall (except
as hereinafter provided) take a record of the holders of its Common Stock
for the purpose of entitling them to receive a distribution of, or shall in
any manner issue or sell any warrants or other rights to subscribe for or
purchase (x) any share of Common Stock or (y) any Convertible Securities,
whether or not the rights to subscribe, purchase, exchange or convert
thereunder are immediately exercisable, and the consideration per share for
which additional shares of Common Stock may at any time thereafter be
issuable pursuant to such warrants or other rights or pursuant to the terms
of such
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Convertible Securities shall be less than the Prevailing Market Price, then
the Aggregate Number in effect immediately prior thereto shall be adjusted
so that the Aggregate Number thereafter shall be determined by multiplying
the Aggregate Number immediately prior to such action by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such warrants or other
rights plus the maximum number of additional shares of Common Stock
issuable pursuant to all such warrants or rights and/or necessary to effect
the conversion or exchange of all such Convertible Securities and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such warrants or other
rights plus the number of shares of Common Stock which the aggregate
consideration for such maximum number of additional shares of Common Stock
would purchase at a price equal to the Prevailing Market Price. For
purposes of this paragraph (d), the aggregate consideration for such
maximum number of additional shares of Common Stock shall be deemed to be
the minimum consideration received and receivable by the Company for the
issuance of such additional shares of Common Stock pursuant to the terms of
such warrants or other rights or such Convertible Securities. No adjustment
of the Aggregate Number shall be made under this paragraph (d) upon the
issuance of any of the Options.
(e) In case at any time or from time to time the Company shall take a
record of the holders of its Common Stock for the purpose of entitling them
to receive a distribution of, or shall in any manner issue or sell
Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the consideration per share for
the additional shares of Common Stock which may at any time thereafter be
issuable pursuant to the terms of such Convertible Securities shall be less
than the Prevailing Market Price, then the Aggregate Number in effect
immediately prior thereto shall be adjusted so that the Aggregate Number
thereafter shall be determined by multiplying the Aggregate number
immediately prior to such action by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior
to the issuance of such Convertible Securities plus the maximum number of
additional shares of Common Stock necessary to effect the conversion or
exchange of all such Convertible Securities and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior
to the taking of such action plus the number of shares of Common Stock
which
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the aggregate consideration for such maximum number of additional shares of
Common Stock would purchase at a price equal to the Prevailing Market
Price. For purposes of this paragraph (e), (x) the aggregate consideration
for such maximum number of additional shares of Common Stock shall be
deemed to be the minimum consideration received and receivable by the
Company for the issuance of such additional shares of Common Stock pursuant
to the terms of such Convertible Securities. No adjustment of the Aggregate
Number shall be made under this paragraph (e) upon the issuance of any
Convertible Securities which are issued pursuant to the exercise of any
warrants or other subscription or purchase rights if an adjustment shall
previously have been made or if no such adjustment shall have been required
upon the issuance of such warrants or other rights pursuant to paragraph
(d) of this Section 6.
(f) In case at any time or from time to time the Company shall (except
as hereinafter provided) issue or sell any additional shares of Common
Stock, any Convertible Securities or any warrants or other rights to
subscribe for or purchase (x) any share of Common Stock or (y) any
Convertible Securities, whether or not the rights to subscribe, purchase,
exchange or convert thereunder are immediately exercisable, and such
issuance causes the Aggregate Number (assuming full vesting of all Warrants
represented hereby) to equal less that 10% of the then-outstanding shares
of the Company's Common Stock on a fully diluted basis, then the Aggregate
Number in effect immediately prior thereto shall be adjusted so that the
Aggregate Number thereafter shall equal at least 10% of the outstanding
shares of the Company's Common Stock on a fully diluted basis. This
adjustment shall be accomplished by multiplying the Aggregate Number
immediately prior to such action by a fraction, the numerator of which
shall be the number of outstanding shares of the Company's Common Stock on
a fully diluted basis immediately following such action and the denominator
of which shall be the number of outstanding shares of the Company's Common
Stock on a fully diluted basis immediately prior to such action. In the
case of any such adjustment to the Aggregate Number, the Exercise Price per
share shall be proportionately adjusted by multiplying the Exercise Price
per share immediately prior to such adjustment by a fraction, the numerator
of which is the Aggregate Number immediately prior to such adjustment and
the denominator of which is the new Aggregate Number as so adjusted. No
adjustment of the Aggregate Number shall be made under this paragraph (f)
upon the issuance of any additional shares of Common
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Stock which are issued pursuant to (1) the exercise of any Warrants, and
(2) the exercise of stock options to purchase shares of Common Stock
pursuant to any outstanding stock options granted by contract to present or
former employees of the Company or its subsidiaries or pursuant to the
Company's 1985 Stock Option Plan, as amended (collectively, (1) and (2) the
"Options").
(g) If, at any time after any adjustment of the Aggregate Number shall
have been made pursuant to paragraphs (d), (e) or (f) of this Section 6 on
the basis of the issuance of warrants or other rights or the issuance of
Convertible Securities, or after any new adjustments of the Aggregate
Number shall have been made pursuant to this paragraph (g),
(i) such warrants or rights or the right of conversion or
exchange in respect of such Convertible Securities shall expire, and
all or a portion of such warrants or rights, or the right of
conversion or exchange in respect of all or a portion of such
Convertible Securities, as the case may be, shall not have been
exercised, and/or
(ii) the consideration per share for which shares of Common Stock
are issuable pursuant to such warrants or rights or the terms of such
Convertible Securities shall be irrevocably increased solely by virtue
of provisions therein contained for an automatic increase in such
consideration per share upon the arrival of a specified date or the
happening of a specified event, or such warrants or rights shall have
been exercised or such Convertible Securities converted at a price in
excess of the minimum consideration used in the calculation of the
adjustment to the Aggregate Number,
such previous adjustment shall be rescinded and annulled and the additional
shares of Common Stock which were deemed to have been issued by virtue of
the computation made in connection with such adjustment shall no longer be
deemed to have been issued by virtue of such computation. Thereupon, a
recomputation shall be made of the effect of such warrants or rights or
Convertible Securities on the basis of:
(x) treating the number of additional shares of Common Stock, if
any, theretofore actually issued or issuable pursuant to the previous
exercise of such warrants or rights or such right of conversion or
exchange as having been issued on
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the date or dates of such exercise and for the consideration actually
received and receivable therefor, and
(y) treating any such warrants or rights or any such Convertible
Securities which then remain outstanding as having been granted or
issued immediately after the time of such irrevocable increase of the
consideration per share for which shares of Common Stock are issuable
under such warrants or rights or Convertible Securities; and, if and
to the extent called for by the foregoing provisions of this paragraph
(g) on the basis aforesaid, a new adjustment of the Aggregate Number
shall be made, such new adjustment shall supersede the previous
adjustments rescinded and annulled.
(h) The following provisions shall be applicable to the making of
adjustments of the Aggregate Number hereinbefore provided for in this
Section 6:
(i) The sale or other disposition of any issued shares of Common
Stock owned or held by or for the account of the Company shall be
deemed an issuance thereof for the purposes of this Section 6.
(ii) To the extent that any additional shares of Common Stock or
any Convertible Securities or any warrants or other rights to
subscribe for or purchase any additional shares of Common Stock or any
Convertible Securities (x) are issued solely for cash consideration,
the consideration received by the Company therefor shall be deemed to
be the amount of the cash received by the Company therefor, or (y) are
offered by the Company for subscription, the consideration received by
the Company shall be deemed to be the subscription price.
(iii) The adjustments required by the preceding paragraphs of
this Section 6 shall be made whenever and as often as any specified
event requiring an adjustment shall occur. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at
the close of business on the date of its occurrence.
(iv) In computing adjustments under this Section 6 fractional
interests of Common Stock shall be taken into account to the nearest
one-thousandth (.001) of a share and shall be aggregated until they
equal one whole share.
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(v) If the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend
or distribution or subscription or purchase rights, but shall abandon
its plan to pay or deliver such dividend, distribution, subscription
or purchase rights, then no adjustment shall be required by reason of
the taking of such record and any such adjustment previously made in
respect thereof shall be rescinded and annulled.
(i) If any event occurs as to which the other provisions of this
Section 6 are not strictly applicable but the lack of any provision for the
exercise of the rights of a Holder or Holders of Warrants would not fairly
protect the purchase rights of such Holder or Holders of Warrants in
accordance with the essential intent and principles of such provisions, or,
if strictly applicable, would not fairly protect the conversion rights of
the Holder or Holders of Warrants in accordance with the essential intent
and principles of such provisions, then the Company shall appoint a firm of
independent certified public accountants in the United States (which may be
the regular auditors of the Company) of recognized national standing in the
United States satisfactory to the Holders, which shall give their opinion
acting as an expert and not as an arbitrator as to the adjustments, if any,
necessary to preserve, without dilution, on a basis consistent with the
essential intent and principles established in the other provisions of this
Section 6, the exercise rights of the Holders of Warrants. Upon receipt of
such opinion, the Company shall forthwith make the adjustments described
therein.
(j) Within forty-five (45) days after the end of each fiscal quarter
during which an event occurred that resulted in an adjustment pursuant to
this Section 6, and at any time upon the request of any Holder of Warrants,
the Company shall cause to be promptly mailed to each Holder of Warrants by
first-class mail, postage prepaid, notice of each adjustment or adjustments
to the Aggregate Number effected since the date of the last such notice and
a certificate of the Company's Chief Financial Officer or, in the case of
any such notice delivered within forty-five (45) days after the end of a
fiscal year, a firm of independent public accountants in the United States
selected by the Company and acceptable to the Holder(s) (who may be the
regular accountants employed by the Company), in each case, setting forth
the Aggregate Number after such adjustment, a brief statement of the facts
requiring
17
such adjustment and the computation by which such adjustment was made. The
fees and expenses of such accountants shall be paid by the Company.
(k) The occurrence of a single event shall not trigger an adjustment
of the Aggregate Number under more than one paragraph of this Section 6.
7. Taxes on Conversion. The issuance of certificates for Warrant Shares
upon the exercise of the Warrants shall be made without charge to the Holder
exercising any such Warrant for any issue or stamp tax in respect of the
issuance of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the Holder;
provided, however, that the Company shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificate in a name other than that of the Holder, and the Company
shall not be required to issue or deliver such certificates unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
8. Limitation of Liability. No provision hereof in the absence of the
exercise of the Warrants by the Holder and no enumeration herein of the rights
or privileges of the Holder shall give rise to any liability on the part of the
Holder for the Exercise Price of the Warrant Shares or as a stockholder of the
Company, whether such liability is asserted by the Company or by any creditor of
the Company.
9. Closing of Books. The Company will at no time close its transfer books
against the transfer of any Warrant or of any shares of Common Stock issued or
issuable upon the exercise of any Warrant in any manner that interferes with the
timely exercise of the Warrants.
10. Availability of Information. The Company will use its best efforts to
comply with the reporting requirements of the United States Securities Exchange
Act of 1934, as amended, if applicable, and will use its best efforts to comply
with all other public information reporting requirements of the Commission
(including rules and regulations promulgated by the Commission under the
Securities Act) from time to time in effect and relating to the availability of
an exemption from the Securities Act for the sale of any Warrant Shares. The
Company will also cooperate with each Holder of any Warrants in supplying such
information as may be necessary for such Holder to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of an exemption from the Securities Act for the
18
sale of any Warrant Shares. The Company will deliver to any Holder, promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent or made available generally by the Company to
its shareholders, and copies of all regular and periodic reports and all
registration statements and prospectuses filed by the Company with any
securities exchange or with the Commission.
11. Restrictions on Transfer.
11.1 Restrictive Legends. Each certificate for any Warrant Shares issued
upon the exercise of any Warrant, and each stock certificate issued upon the
transfer of any such Warrant Shares (except as otherwise permitted by this
Section 11) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION, OR ANY EXEMPTION THEREFROM, UNDER SUCH ACT AND LAWS.
Each Warrant Certificate issued in substitution for any Warrant Certificate
pursuant to Sections 14, 15 or 16 and each Warrant Certificate issued upon the
transfer of any Warrant (except as otherwise permitted by this Section 11) shall
be stamped or otherwise imprinted with a legend in substantially the following
form:
THESE WARRANTS AND ANY SHARES ACQUIRED UPON THE EXERCISE THEREOF HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE WARRANTS AND SUCH SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT AND LAWS. THESE WARRANTS AND SUCH SHARES MAY
NOT BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS WARRANT
CERTIFICATE, AND NO TRANSFER OF THESE WARRANTS OR SUCH SHARES SHALL BE VALID OR
EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
11.2 Termination of Restrictions. The restrictions imposed by this Section
11 upon the transferability of Warrants and Warrant Shares shall cease and
terminate as to any particular Warrants or Warrant Shares (a) when such
securities shall have been effectively registered under the Securities Act and
disposed of in accordance with the
19
registration statement covering such securities, or (b) when in the reasonable
opinion of counsel for the Holder thereof (subject to concurrence in such
opinion by counsel for the Company) such restrictions are no longer required in
order to comply with the Securities Act. Whenever such restrictions shall
terminate as to any Warrants or Warrant Shares, the holder thereof shall be
entitled to receive from the Company or its transfer agent, without expense, new
certificates of like tenor not bearing the restrictive legends set forth in
Section 11.1.
12. Definitions. As used in this Warrant Certificate, unless the context
otherwise requires, the following terms have the following respective meanings:
Aggregate Number: as set forth in the first paragraph of this Warrant
Certificate and as subsequently varied pursuant to Section 6.
Commission: the United States Securities and Exchange Commission and any
other similar or successor agency of the United States federal government
administering the United States Securities Act or the Securities Exchange Act of
1934, as amended.
Common Stock: the shares of Common Stock, $.01 par value per share, of the
Company, currently provided for in the Company's Restated Articles of
Incorporation, as amended, and any other capital stock of the Company into which
such shares of Common Stock may be converted or reclassified or that may be
issued in respect of, in exchange for, or in substitution of, such Common Stock
by reason of any stock splits, stock dividends, distributions, mergers,
consolidations or like events.
Company: Signal Apparel Company, Inc., an Indiana corporation, and its
successors and assigns.
Convertible Securities: securities convertible into or exchangeable for
Common Stock.
Distribution: shall have the meaning specified in Section 6(b).
Expiration Date: May 8, 2001.
Options: as set forth in Section 6(c).
Person: an individual, corporation, partnership, trust or unincorporated
organization, or a government or any agency or political subdivision thereof.
Prevailing Market Price: The average of the daily closing prices of the
Common Stock for 30 consecutive
20
trading days immediately preceding the day in question after appropriate
adjustment for stock dividends, subdivisions, combinations or reclassifications
occurring within said 30-day period. The closing price for each day shall be the
average of the closing bid and asked prices as furnished by a New York Stock
Exchange member firm or National Association of Securities Dealers, Inc. member
firm, selected from time to time by the Corporation for that purpose, or, in the
event that the Common Stock is listed or admitted to trading on one or more
national securities exchanges (or as a NASDAQ National Market System security),
the last sale price on the NASDAQ system or on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, in case
no reported sale takes place on such day, the average of the reported closing
bid and asked prices on the NASDAQ system or such principal exchange.
Recapitalization: any reorganization or recapitalization in which the total
consideration received by shareholders of the Company, including cash, debt,
equity and any other property, in addition to any remaining equity in the
Company such shareholders may retain, exceeds the value received by the holders
of the Warrants for their Warrants, each calculated on a per share basis.
Securities Act: the United States Securities Act of 1933, as amended (or
any successor statute).
Warrants: as set forth in the first paragraph of this Warrant Certificate.
Warrant Shares: as set forth in the first paragraph of this Warrant
Certificate.
13. Acquisition of Warrants. The Holder represents that it is acquiring the
Warrants represented by this Warrant Certificate and, upon any exercise of such
Warrants, will acquire Common Stock hereunder for its own account for the
purpose of investment, and not with a view to the public distribution thereof
within the meaning of the Securities Act, subject to any requirement of law that
the disposition thereof shall at all times be within the control of the Holder.
The Holder further represents and acknowledges that it is an "Accredited
Investor" within the meaning of Regulation D under the Securities Act.
14. Warrants Transferable. Subject to the provisions of Section 11, the
transfer of any Warrants and all rights hereunder, in whole or in part, is
registerable at the office or agency of the Company referred to in Section 1
hereof by the Holder hereof in person or by duly authorized attorney, upon
surrender of this Warrant Certificate with the properly completed Form of
Assignment in the form
21
annexed hereto as Schedule 2. The transfer of any Warrant or any rights
thereunder may be effected only by the surrender of such Warrant at the office
or agency of the Company and until due presentment for registration of transfer
on the Company's books, the Company may treat the registered holder hereof as
the owner for all purposes, and the Company shall not be affected by notice to
the contrary. No transfer shall be effective until the replacement Warrant
Certificate issued to the transferee has been duly executed by the transferee as
the new holder thereof, and such evidence of due execution as the Company may
reasonably require has been furnished to the Company.
15. Warrant Certificates Exchangeable for Different Denominations. This
Warrant Certificate is exchangeable, upon the surrender hereof by the Holder
hereof at the office or agency of the Company referred to in Section 1 hereof,
for new warrant certificates of like tenor representing in the aggregate the
right to purchase the number of shares that may be purchased hereunder, each of
such new warrant certificates to represent the right to purchase such number of
shares as shall be designated by such Holder at the time of such surrender. Such
warrant certificate shall not be valid until duly executed by the Holder
thereof.
16. Replacement of Warrant Certificates. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant Certificate and, in the case of any such loss, theft
or destruction, upon delivery of an indemnity bond (or, in the case of the
original Holder hereof or any substantial financial institution to which any
Warrants represented by this Warrant Certificate may be transferred, an
unsecured indemnity agreement) reasonably satisfactory in form and amount to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of such Warrant Certificate, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant Certificate of like tenor. Such Warrant
Certificate shall not be valid until duly executed by the holder thereof.
17. Certificate Rights and Obligations Survive Exercise of Warrants. The
rights and obligations of the Company contained herein shall survive until the
exercise of all of the Warrants or until the Expiration Date, whichever is
earlier.
18. Notices. All notices, requests or other communications required or
permitted to be given or delivered to the Holders of Warrants shall be in
writing, and shall be delivered or shall be sent certified or registered mail
(or, if overseas, by airmail), postage prepaid, and addressed to each Holder at
the address shown on such Holder's Warrant certificate, or at such other
22
address as shall have been furnished to the Company by notice from such Holder.
All notices, requests and other communications required or permitted to be given
or delivered to the Company shall be in writing, and shall be delivered, or
shall be sent by certified or registered mail, postage prepaid and addressed to
the principal executive office of the Company (return receipt requested), 200-A
Manufacturers Road, Chattanooga, Tennessee 37405, Attention: Chief Financial
Officer, with a copy to Witt, Gaither & Whitaker, P.C., 1100 SunTrust Bank
Building, Chattanooga, Tennessee 37402-2608, Attention: John F. Henry, Jr.,
Esquire, or at such other address as shall have been furnished to the Holders of
Warrants by notice from the Company. Any such notice, request or other
communication may be sent by telegram or telex, but shall in such case be
subsequently confirmed by a writing delivered or sent by certified or registered
mail as provided above. All notices shall be deemed to have been given either at
the time of the delivery thereof to (or the receipt by, in the case of a
telegram or telex) any officer or employee of the person entitled to receive
such notice at the address of such person for purposes of this Section 18, or,
if mailed, at the completion of the third full day following the time of such
mailing thereof to such address, as the case may be.
19. Amendments. Neither this Warrant Certificate nor any term or provision
hereof may be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, provided that any change or
waiver of any term or provision hereof, and any consent or direction given
hereunder by the Holders may be effected by the Holders of 51% in interest of
the Warrants originally issued pursuant to this Warrant Certificate on the
Issuance Date, except that no change or waiver that would (i) increase the
Exercise Price of any Warrant or reduce the Aggregate Number, (ii) change or
waive any of the provisions of Section 5 in connection with the registration
rights of Holders of Warrants or (iii) change or waive any of the provisions of
this Section 19 as to the requisite percentage of the Holders of the Warrants
required to effect any change or wavier of any provision of this Warrant
Certificate, shall be effective as to any Holder without the consent of such
Holder.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws thereunder.
23
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed by its duly authorized officer and to be dated May 8, 1998.
SIGNAL APPAREL COMPANY, INC.
b /s/ Robert J. Powell
By: Robert J. Powell
Vice President
ACCEPTED AND AGREED TO this 27th day of January, 1999.
/s/ Stephen Walsh
- ---------------------------
WGI, LLC
By: Stephen Walsh, Manager
24
Schedule 1
EXERCISE FORM
[To be executed only upon exercise of Warrant]
To: SIGNAL APPAREL COMPANY, INC.
The undersigned irrevocably exercises ________________ of the Warrants for
the purchase of one share (subject to adjustment) of Common Stock, $.01 par
value per share, of SIGNAL APPAREL COMPANY, INC. for each Warrant represented by
the within Warrant Certificate and herewith makes payment of $______ (such
payment being in cash or by check or bank draft in New York Clearing House funds
payable to the order of Signal Apparel Company, Inc.), or by cancellation of
indebtedness, surrender and exchange of securities, or surrender and exchange of
Warrants all at the exercise price and on the terms and conditions specified in
the within Warrant Certificate, surrenders the within Warrant Certificate and
all right, title and interest therein (except as to any unexercised Warrants) to
Signal Apparel Company, Inc. and directs that the shares of Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date:_______________________
------------------------------(1)
(Signature of Owner)
------------------------------
------------------------------
(Address)
- ----------
(1) The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
25
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Address:
26
Schedule 2
FORM OF TRANSFER
FOR VALUE RECEIVED the undersigned registered Holder of the within Warrant
Certificate hereby transfers to the Assignee(s) named below the following number
of Warrants:
Names of Number of
Assignees Address Warrants
- --------- ------- --------
Date:_______________________
------------------------(1)
(Signature of Holder)
---------------------------
---------------------------
(Address)
- ----------
(1) The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
27