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Exhibit 4.3
THE WARRANTS REPRESENTED BY THIS CERTIFICATE
AND THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT
TO A REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION
(REGISTRATION NO. 333-11979). HOWEVER,
NEITHER THE WARRANTS NOR SUCH SECURITIES CAN
BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) A
POST-EFFECTIVE AMENDMENT TO SUCH REGISTRATION
STATEMENT, (ii) A SEPARATE REGISTRATION
STATEMENT UNDER SUCH ACT, OR (iii) AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
THE TRANSFER OF THIS WARRANT IS
RESTRICTED AS DESCRIBED HEREIN.
JENNA LANE, INC.
Warrant for the Purchase of Units
Each Unit Consisting of Two (2) Shares of Common Stock
and One (1) Warrant
No. 1 60,000 Units
THIS CERTIFIES that, for receipt in hand of $60.00 and other value
received, WALSH MANNING SECURITIES, LLC, 90 Broad Street, New York, New York
10004 (hereinafter referred to as the "Holder" or "Underwriter") is entitled to
subscribe for and purchase from JENNA LANE, INC., a Delaware corporation (the
"Company"), upon the terms and conditions set forth herein, at any time or from
time to time after , 1998 and before 5:00 P.M. on , 2001,
New York time (the "Exercise Period"), 60,000 Units (the "Units"), each Unit
consisting of two fully paid and nonassessable shares (the "Unit Shares") of the
Company's Common Stock, par value $.01 per share ("Common Stock"), and one
Common Stock Purchase Warrant ("Unit Warrant"), at a price of $16.70625 per
Unit, (the "Exercise Price"). This Warrant may not be sold, transferred,
assigned or hypothecated, until _________, 1998 except that it may be
transferred in whole or in part, to (i) one or more officers, or partners of the
Holder (or the officers or partners of any such person); (ii) a successor to the
Holder, or the officers or partners of such successor; (iii) a purchaser of
substantially all of the assets of the Holder; or (iv) by operation of law. The
term the "Holder" as used herein shall include any transferee to whom this
Warrant has been transferred in accordance with the above. As used herein the
term "this Warrant" shall mean
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and include this Warrant and any Warrant or Warrants hereafter issued as a
consequence of the exercise or transfer of this Warrant in whole or part.
Each Unit Warrant shall entitle the holder thereof to purchase two (2)
shares of Common Stock (the shares of Common Stock issuable upon exercise of the
Unit Warrants being collectively referred to as the "Warrant Shares"). Each Unit
Warrant shall be identical in all respect to the Redeemable Common Stock
Purchase Warrants (the "Public Warrants"), issued pursuant to the Warrant
Agreement, dated as of ___________, 1997 (the "Warrant Agreement"), between the
Company and American Stock Transfer & Trust Company as Warrant Agent; provided,
however, prior to the registration and sale thereof pursuant to the provisions
of paragraph 9 hereof, the Unit Warrants shall not be subject to redemption by
the Company under any circumstances.
1. Term of Exercise. (a) This Warrant may be exercised during the
Exercise Period as to the whole or any lesser number of whole Units, by the
surrender of this Warrant (with the election at the end hereof duly executed) to
the Company at its office at 1407 Broadway, Suite 1801, New York, New York 10018
or such other place as is designated in writing by the Company, together with a
certified or bank cashier's check payable to the order of the Company in an
amount equal to the Exercise Price multiplied by the number of Units for which
this Warrant is being exercised.
(b) For purposes of this Warrant, the term "Current Market Price"
with respect to the Common Stock or the Public Warrants at any date shall be
deemed to be: (i) the average of the daily closing prices of the Common Stock or
the Public Warrants, as the case may be, for the 20 consecutive trading days
immediately preceding such date as reported on the principal national securities
exchange on which the Common Stock or the Public Warrants, as the case may be,
is listed or admitted to trading, or (ii) if neither the Common Stock or the
Public Warrants, as the case may be, is listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
regular way for the Common Stock or the Public Warrants, as the case may be, on
the Nasdaq National Market System or Nasdaq SmallCap Market of the Nasdaq Stock
Market, Inc. (together referred to as "Nasdaq") for the 20 consecutive days
preceding such date or (iii) if neither the Common Stock or the Public Warrants,
as the case may be, is then listed or admitted for trading on any national
securities exchange and is not reported on NASDAQ or any similar organization,
the average of the closing bid and asked prices in the over-the-counter market
as furnished by the National Quotation Bureau, Inc. for the 20 consecutive
trading days preceeding such date or (v) if no such quotation is then available,
the fair market value as determined by the Board of Directors in good faith.
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2. Delivery of Certificates to Registered Holder. Upon each exercise of
this Warrant, the Holder shall be deemed to be the holder of record of the Unit
Shares and Unit Warrants issuable upon such exercise notwithstanding that the
transfer books of the Company shall then be closed or certificates representing
such Unit Shares or Unit Warrants shall not then have been actually delivered to
the Holder. As soon as practicable after each such exercise of this Warrant, the
Company shall issue and deliver to the Holder a certificate or certificates for
the Unit Shares and a certificate or certificates for the Unit Warrants
registered in the name of the Holder or its permitted designee hereunder. If
this Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant evidencing
the right of the Holder to purchase the balance of the Units (or portions
thereof) subject to purchase hereunder.
3. Warrant Register. Any Unit Warrants issued upon the transfer or
exercise in part of this Warrant (together with this Warrant, the "Warrants")
shall be numbered and shall be registered in a Warrant Register as they are
issued. The Company shall be entitled to treat the registered holder of any
Warrant on the Warrant Register as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or participation therein amounts to bad faith. The
Warrants shall be transferable only on the books of the Company upon delivery
thereof duly endorsed by the Holder or by his duly authorized attorney-in-fact
or representative, or accompanied by proper evidence of succession, assignment
or authority to transfer. In all cases of transfer by an attorney-in-fact,
executor, administrator, guardian or other legal representative, duly
authenticated evidence of his or its authority shall be produced. Upon any
registration of transfer, the Company shall deliver a new Warrant or Warrants to
the option of the Holder thereof, for another Warrant, or other Warrants of
different denominations, of like tenor and representing in the aggregate the
right to purchase a like number of Units (or component portions thereof) upon
surrender of such Warrants to the Company or its duly authorized agent.
Notwithstanding the foregoing, the Company shall have no obligation to cause
Warrants to be transferred on its books to any person if, in the opinion of
counsel to the Company, such transfer does not comply with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder or other applicable law.
4. Reservation of Common Stock. The Company shall at all times reserve
and keep available out of its authorized and unissued Common Stock, solely for
the purpose of providing for the
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exercise of this Warrant and the Unit Warrants, such number of shares of Common
Stock as shall, from time to time, be sufficient therefor. The Company covenants
that all shares of Common Stock issuable upon exercise of this Warrant and the
Unit Warrants when paid for in accordance with the respective terms thereof,
shall be validly issued, fully paid and nonassessable by the Company.
5. Anti-Dilution; Adjustments to Exercise Price. (a) Upon the
occurrence of any event (an "Event") as a result of which an adjustment is made
to the exercise price (the "Public Exercise Price") of any of the Public
Warrants, the number of Unit Shares issuable thereafter upon exercise of the
Unit Warrant shall be adjusted to equal the number of Unit Shares issuable prior
to such Event multiplied by a fraction, the numerator of which shall be the
Public Exercise Price in effect prior to such Event and the denominator of which
shall be the Public Exercise Price subsequent to such Event.
(b) Notwithstanding any other provision of this Warrant, any
adjustment of the exercise price, and/or the number of Warrant Shares
purchasable upon the exercise of the Unit Warrants shall be determined solely by
the antidilution and other adjustment provisions contained in the Warrant
Agreement (which provisions are incorporated herein by reference) as if such
Unit Warrants were and had been outstanding on and from ____________, 1997.
(c) Whenever there shall be an adjustment as provided in this
paragraph 5, the Company shall promptly cause written notice thereof to be sent
by registered mail, postage prepaid, to the Holder, at its principal office,
which notice shall be accompanied by an officer's certificate setting forth the
exercise price and the number of Warrant Shares purchasable upon the exercise of
the Unit Warrants after such adjustment and setting forth a brief statement of
the facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
(d) All calculations under this paragraph 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(e) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of
Warrants. If any fraction of a share would be issuable on the exercise of any
Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the Current Market
Price of such share of Common Stock on the date of exercise of the Warrant.
6. Reorganization/Reclassification. (a) In case of
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any consolidation with or merger of the Company with or into another corporation
(other than a merger or consolidation in which the Company is the surviving or
continuing corporation), or in case of any sale, lease or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, such successor, leasing or purchasing corporation, as the case may be,
shall (i) execute with the Holder an agreement providing that the Holder shall
have the right thereafter to receive upon exercise of this Warrant solely the
kind and amount of shares of stock and other securities, property, cash or any
combination thereof receivable upon such consolidation, merger, sale, lease or
conveyance by a holder of the number of shares of Common Stock and the Unit
Warrants for which this Warrant might have been exercised immediately prior to
such consolidation, merger, sale, lease or conveyance, and (ii) make effective
provision in order to effect such agreement. Such agreement shall provide for
adjustment which shall be as nearly equivalent as practicable to the adjustments
in paragraph 5.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from par value to no par value, or as a result of a subdivision or
combination, but including any change in the shares into two or more classes or
series of shares), or in case of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change to the
right to receive cash or other property) of the shares of Common Stock (other
than a change in par value, or from par value to no par value, or as a result of
a subdivision or combination, but including any change in the shares into two or
more classes or series of shares), the Holder shall have the right thereafter to
receive upon exercise of this Warrant solely the kind and amount of shares of
stock and other securities, property, cash or any combination thereof receivable
upon such reclassification, change, consolidation or merger by a holder of the
number of shares of Common Stock and the Unit Warrants for which this Warrant
might have been exercised immediately prior to such reclassification, change,
consolidation or merger. Thereafter, appropriate provision shall be made for
adjustments which shall be as nearly equivalent as practicable to the
adjustments in paragraph 5 above.
(c) The above provisions of this paragraph 6 shall similarly apply
to successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases or conveyances similar to
those described in paragraphs 6(a) and (b).
7. Notice of Dividends/Distributions. In case at any time the Company
shall propose:
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(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
(b) to issue any rights, warrants or other securities to all holders
of Common Stock or Public Warrants entitling them to purchase any additional
shares of Common Stock or any other rights, warrants or other securities; or
(c) to effect any reclassification or change of the outstanding
shares of Common Stock, or any consolidation, merger, sale, lease or conveyance
of property, described in paragraph 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Public Exercise Price;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to: (i) the date as of which the holders of record of shares of
Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants or other securities are to be determined; (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock or Public
Warrants, as the case may be, shall be entitled to exchange their shares or
warrants for securities or other property, if any, deliverable upon such
reclassification, change of outstanding shares, consolidation, merger, sale,
lease, conveyance of property, liquidation, dissolution, or winding-up; or (iii)
the date of such action which would require an adjustment to the Public Exercise
Price.
8. Payment of Taxes. The issuance of any shares of Common Stock or
Warrants or other securities upon the exercise of this Warrant, and the delivery
of certificates or other instruments representing such shares of Common Stock,
Warrants or other securities, shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have
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established to the satisfaction of the Company that such tax has been paid or is
not due and payable.
9. Registration Rights. (a) If, at any time after __________, 1998, and
before __________, 2003, the Company shall file a registration statement (other
than on Form S-8, or any successor form) with the Securities and Exchange
Commission (the "Commission") while Unit Shares or Unit Warrants are available
for purchase upon exercise of this Warrant or while any Unit Shares, Unit
Warrants or Warrant Shares (which have not been so registered) are outstanding,
the Company shall give the Holder and all the then registered holders of such
Unit Shares, Unit Warrants or Warrant Shares at least 30 days prior written
notice of the filing of such registration statement. If requested by the Holder
or by any such holder in writing within 20 days after receipt of any such
notice, the Company shall, at the Company's sole expense (other than the fees
and disbursements of counsel for the Holder or such holder and the underwriting
discounts, if any, payable in respect of the Warrants, Units, Unit Shares, Unit
Warrants and Warrant Shares sold by the Holder or any such holder), register or
qualify the Units, the Unit Shares, Unit Warrants and Warrant Shares
(collectively, the "Underwriter's Securities") of the Holder or any such holders
who shall have made such request concurrently with the registration covering
such other securities, all to the extent requisite to permit the public offering
and sale of the Underwriter's Securities through the facilities of all
appropriate securities exchanges and the over-the-counter market, and will use
its best efforts through its officers, directors, auditors and counsel to cause
such registration statement to become effective as promptly as practicable.
Notwithstanding the foregoing, if the managing underwriter of any such offering
shall advise the Company in writing that, in its opinion, the distribution of
all or a portion of the Underwriter's Securities requested to be included in the
registration concurrently with the securities being registered by the Company
would materially adversely affect the distribution of such securities by the
Company for its own account, then the Holder or any such holder who shall have
requested registration of his or its Underwriter's Securities shall delay the
offering and sale of such Underwriter's securities (or the portions thereof so
designated by such managing underwriter) for such period, not to exceed 90 days,
as the managing underwriter shall request, provided that no such delay shall be
required as to any Underwriter's Securities if any securities of the Company are
included in such registration statement for the account of any person other than
the Company and the Holder or any such holder unless the securities included in
such registration statement for such other person shall have been reduced pro
rata to the reduction of the Underwriter's Securities which were requested to be
included in such registration.
(b) If at any time after ______________, 1998 and before
_________________, 2002, the Company shall receive a written
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request from holders of Underwriter's Securities who, in the aggregate, own (or
upon exercise of all Warrants and Unit Warrants, will own) a majority of the
total number of shares of Common Stock issued or issuable upon exercise of the
Warrants and the Unit Warrants, the Company shall, as promptly as practicable,
prepare and file with the Commission a registration statement sufficient to
permit the public offering and sale of the Underwriter's Securities through the
facilities of all appropriate securities exchanges and the over-the-counter
market, and will use its best efforts through its officers, directors, auditors
and counsel to cause such registration statement to become effective as promptly
as practicable; provided, however, that the Company shall only be obligated to
file one such registration statement for which all expenses incurred in
connection with such registration (other than the fees and disbursements of
counsel for the Holder or such holders and underwriting discounts, if any,
payable in respect of the Underwriter's Securities sold by the Holder or any
such holder) shall be borne by the Company.
(c) In the event of a registration pursuant to the provisions of
this paragraph 9, the Company shall use its best efforts to cause the
Underwriter's Securities so registered to be registered or qualified for sale
under the securities or blue sky laws of such jurisdictions as the Holder or
such holders may reasonably request; provided, however, that the Company shall
not be required to qualify to do business in any state by reason of this
paragraph 9(c) in which it is not otherwise required to qualify to do business.
(d) The Company shall keep effective any registration or
qualification contemplated by this paragraph 9 and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document and communication for such period of
time as shall be required to permit the Holder or such holders to complete the
offer and sale of the Underwriter's Securities covered thereby. The Company
shall in no event be required to keep any such registration or qualification
effect for a period in excess of nine months from the date on which the Holder
and such holders are first free to sell such Underwriter's Securities; provided,
however, that if the Company is required to keep any such registration or
qualification in effect with respect to securities other than the Underwriter's
Securities beyond such period, the Company shall keep such registration or
qualification in effect as it relates to the Underwriter's Securities for so
long as such registration or qualification remains or is required to remain in
effect in respect of such other securities.
(e) In the event of a registration pursuant to the provisions of
this paragraph 9, the Company shall furnish to each holder of any Underwriter's
Securities included therein such amendment and supplement thereto (in each case,
including all
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exhibits), such reasonable number of copies of each prospectus contained in such
registration statement and each supplement or amendment thereto (including each
preliminary prospectus), all of which shall conform to the requirements of the
Act and the rules and regulations thereunder, and such other documents, as the
Holder or such holders may reasonable request in order to facilitate the
disposition of the Underwriter's Securities included in such registration.
(f) In the event of a registration pursuant to the provisions this
paragraph 9, the Company shall furnish to each holder of any Underwriter's
Securities so registered with an opinion of its counsel (reasonably acceptable
to the Holder) to the effect that (i) the registration statement has become
effective under the Act and no order suspending the effectiveness of the
registration statement, preventing or suspending the use of the registration
statement, any preliminary prospectus, any final prospectus, or any amendment or
supplement thereto has been issued, nor has the Securities and Exchange
Commission or any securities of blue sky authority of any jurisdiction
instituted or threatened to institute any proceedings with respect to such an
order, (ii) the registration statement and each prospectus forming a part
thereof (including each preliminary prospectus), and any amendment or supplement
thereto, complies as to form with the Act and the rules and regulations
thereunder, and (iii) such counsel has no knowledge or reason to know of any
material misstatement or omission in such registration statement or any
prospectus, as amended or supplemented. Such opinion shall also state the
jurisdictions in which the Underwriter's Securities have been registered or
qualified for sale pursuant to the provisions of paragraph 9(c).
(g) The Company agrees that until all the Underwriter's Securities
have been sold under a registration statement or pursuant to Rule 144 under the
Act, it shall keep current in filing all reports, statements and other materials
required to be filed with the Commission to permit holders of the Underwriter's
Securities to sell such securities under Rule 144.
10. Indemnification. (a) Subject to the conditions set forth below, the
Company agrees to indemnify and hold harmless the Holder, any holder of any of
the Underwriter's Securities, their officers, directors, partners, employees,
agents and counsel, and each person, if any, who controls any such person within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and all loss,
liability, charge, claim, damage and expense whatsoever (which shall include,
for all purposes of this paragraph 10, but not be limited to, reasonable
attorneys' fees and any and all expense whatsoever reasonably incurred, and any
and all amounts paid in settlement of any claim or litigation), as and when
incurred, arising out of, based upon, or in connection with (i) any untrue
statement or alleged untrue statement of a material fact
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contained (A) in any registration statement, preliminary prospectus or final
prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, or (B) in any application or other document or communication
(in this paragraph 10 collectively called an "application") executed by or on
behalf of the Company filed in any jurisdiction in order to register or qualify
any of the Underwriter's Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities exchange; or any omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to the Holder or any holder of any of the
Underwriter's Securities by or on behalf of such preliminary prospectus, or
final prospectus, or any amendment or supplement thereto, or in any application,
as the case may be, or (ii) any breach of any representation, warranty, covenant
or agreement of the Company to indemnify shall be in addition to any liability
the Company may otherwise have, including liabilities arising under this
Warrant.
If any action is brought against the Holder or any holder of any of the
Underwriter's Securities or any of its officers, directors, partners, employees,
agents or counsel, or any controlling persons of such person (an "indemnified
party") in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such indemnified party or parties shall promptly
notify the Company in writing of the institution of such action (but the failure
so to notify shall not relieve the Company from any liability it may have other
than pursuant to this paragraph 10(a)) and the Company shall promptly assume the
defense of such action, including the employment of counsel (reasonably
satisfactory to such indemnified party or parties) and payment of expenses. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such action or the Company shall not have promptly employed
counsel reasonably satisfactory to such indemnified party or parties to have
charge of the defense of such action or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties which are different from or
addition to those available to the Company, if any of which events the
reasonable fees and expenses of such counsel shall be borne by the Company and
the Company shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties. Anything in this paragraph 10(a) to
the contrary notwithstanding, the Company shall not be liable for any settlement
of any such claim or action effected without its written consent.
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(b) The Holder and any other holder of Underwriter's Securities and
such other holder agrees to indemnify and hold harmless the Company, each
director of the Company, each officer of the Company who shall have signed any
registration statement covering Underwriter's Securities held by the Holder and
such other holder and each other person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the Holder and
such other holder in paragraph 10(a), but only with respect to statements or
omissions, if any, made in any registration statement, preliminary prospectus,
or final prospectus (as from time to time amended and supplemented), or any
amendment or supplement thereto, or in any application, in reliance upon and in
conformity with written information furnished to the Company with respect to the
Holder or such other holder by or on behalf of the Holder or such other holder
expressly for inclusion in any such registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, as the case may be. If any action shall be brought against the
Company or any other person so indemnified based on any such registration
statement, preliminary prospectus, or final prospectus, or any amendment or
supplement thereto, or in any application, and in respect of which indemnity may
be sought against the Holder pursuant to this paragraph 10(b), the Holder and
such other holder shall have the rights and duties given to the Company, and the
Company and each other person so indemnified shall have the rights and duties
given to the indemnified parties, by the provisions of paragraph 10(a).
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to paragraph 10(a)
or 10(b) (subject to the limitations thereof) but is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such case, even though this Agreement expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act or otherwise, then the
Company (including for this purpose any contribution made by or on behalf of any
director of the Company, any officer of the Company who signed any such
registration statement and any controlling person of the Company), as one
entity, and the Holder and any holder of any of the Underwriter's Securities
included in such registration in the aggregate (including for this purpose any
contribution by or on behalf of an indemnified party), as a second entity, shall
contribute to the losses, liabilities, claims, damages and expenses whatsoever
to which any of them may be subject, on the basis of relevant equitable
considerations such as the relative fault of the Company and the Holder or any
such holder in connection with the facts which resulted in such losses,
liabilities, claims, damages and expenses. The relative fault, in the case of an
untrue
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statement, alleged untrue statement, omission or alleged omission, shall be
determined by, among other things, whether such statement, alleged statement,
omission or alleged omission relates to information supplied by the Company, by
the Holder or by any holder of Underwriter's Securities included in such
registration, and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such statement, alleged statement,
omission or alleged omission. The Company and the Holder agree that it would be
unjust and inequitable if the respective obligations of the Company and the
Holder or any such other holder of the Underwriter's Securities for contribution
were determined by pro rata or per capital allocation of the aggregate losses,
liabilities, claim, damages and expenses (even if the Holder and the other
indemnified parties were treated as one entity for such purpose) or by any other
method of allocation that does not reflect the equitable considerations referred
to in this paragraph 19(c). No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this paragraph 10(c), each person, if any,
who controls the Holder or any holder of any of the Underwriter's Securities
within the meaning of section 15 of the Act or Section 20(a) of the Exchange Act
and each officer, director, partner, employee, agent and counsel of each such
person, shall have the same rights to contribution as such person and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and each officer, director, partner,
employee, agent and counsel of each such person, shall have the same rights to
contribution as such person and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, each officer of the Company who shall have signed any such registration
statement, and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the provisions of this
paragraph 10(c). Anything in this paragraph 10(c) to the contrary
notwithstanding, no party shall be liable for contribution with respect to the
settlement of any claim or action effected without its written consent. This
paragraph 10(c) is intended to supersede any right to contribution under the
Act, the Exchange Act or otherwise.
11. Legend. The securities issued upon exercise of the Warrants shall
be subject to a stop transfer order and the certificate or certificates
evidencing any such securities shall bear the following legend:
"THE SHARES [OR OTHER SECURITIES]
REPRESENTED BY THIS CERTIFICATE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, PURSUANT TO A REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND
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EXCHANGE COMMISSION. HOWEVER, SUCH SHARES [OR
OTHER SECURITIES] CANNOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) A POST-EFFECTIVE
AMENDMENT TO SUCH REGISTRATION STATEMENT, (ii)
A SEPARATE REGISTRATION STATEMENT UNDER SUCH
ACT, OR (iii) AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT."
12. Lost Certificates. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of any Warrant (and upon
surrender of any Warrant if mutilated), and upon reimbursement of the Company's
reasonable incidental expenses and execution and delivery of appropriate
agreements of indemnity, the Company shall execute and deliver to the Holder
thereof a new Warrant of like date, tenor and denomination.
13. No Rights as Shareholder. The Holder of any Warrant shall not have,
solely on account of such status, any rights of a shareholder of the Company,
either at law or in equity, or to any notice of meetings of stockholders or of
any other proceedings of the Company, except as provided in this Warrant.
14. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made and received (i)
when delivered if delivered by hand, or (ii) upon three days after sending if
mailed by registered or certified mail, return receipt requested or (iii) upon
receipt if sent by overnight courier:
(a) If to the registered holder of this Warrant, to the address of
such holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Paragraph 1(a)
of this Warrant; or
(c) If to the Holder, to the address set forth on the first page of
this Warrant.
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15. Governing Law. This Warrant shall be construed in accordance with
the laws of the State of New York, without giving effect to conflict of laws.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall be deemed to be one and the same instrument.
17. Waiver. The waiver by either party of the breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach.
18. Assignment. Except as otherwise provided within this Agreement,
neither party hereto may transfer or assign this Agreement without prior written
consent of the other party.
19. Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
20. Pronouns and Plurals. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
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21. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
22. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Dated: ________________ __, 1997
JENNA LANE, INC.
By _______________________________
Name:
Title:
[Seal]
_________________________________
Secretary
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