EXHIBIT 1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Registration Rights Agreement, dated as of February 1, 2000, by and
between Barneys New York, Inc., a Delaware corporation ("Company"), and Xxxxx
Xxxxxxxx (collectively with his heirs and testamentary assigns, "Executive").
W I T N E S S E T H :
WHEREAS, pursuant to an employment agreement of even date herewith
between Company and Executive (the "Employment Agreement"), Executive has been
granted options to purchase shares of common stock, $.01 par value of Company;
and
WHEREAS, in partial consideration for Executive entering into the
Employment Agreement, Company has agreed to grant certain rights to Executive as
set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. Definitions. The following shall have (unless otherwise provided
elsewhere in this Agreement) the following respective meanings (such meanings
being equally applicable to both the singular and plural form of the terms
defined):
"Action" shall have the meaning set forth in Section 6(e).
"Affiliate", with respect to a Person, means any other Person which
directly or indirectly, through one or more intermediaries controls, is
controlled by, or is under common control with, such Person.
"Agreement" shall mean this Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules to
any of the foregoing, and shall refer to the Agreement as the same may be in
effect at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of New
York.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"Demanding Security Holders" shall have the meaning set forth in
Section 3.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
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"Indemnified Party" shall have the meaning set forth in Section 6(e).
"Indemnifying Party" shall have the meaning set forth in Section 6(e).
"NASD" shall mean the National Association of Securities Dealers, Inc.,
or any successor corporation thereto.
"Person" shall mean any individual, partnership (general, limited or
limited liability), corporation, limited liability company, trust,
unincorporated organization or other legal entity, and a government or agency or
political subdivision thereof.
"Registrable Securities" shall mean Shares beneficially owned by
Executive at any time after the date hereof, including without limitation,
Shares resulting from the exercise of any options held by Executive. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such Registration
Statement, (ii) such securities shall have been sold pursuant to Rule 144 under
the Securities Act, or (iii) such securities shall have ceased to be
outstanding. For purposes of this Agreement, references to "beneficially owned"
or "beneficial ownership" mean such ownership within the meaning of Rule 13d-3
under the Exchange Act.
"Registration Statement" shall mean a registration statement of Company
as it may be amended or supplemented from time to time, including without
limitation, all exhibits, financial statements, schedules and attachments
thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Shares" shall mean the common stock, $.01 par value, of Company and
any capital stock of Company or any successor corporation into which such common
stock may hereafter be changed.
2. Required Registration. After receipt of a written request from
Executive requesting that Company effect the registration under the Securities
Act of Registrable Securities representing at least an aggregate of 10% of the
total of all Registrable Securities then beneficially owned (determined in
accordance with Rule 13d-3 promulgated under the Exchange Act) by Executive,
specifying the intended method or methods of disposition thereof, Company shall,
as expeditiously as is possible, use its best efforts to effect the registration
under the Securities Act of all Registrable Securities which Company has been so
requested to register by Executive for sale, all to the extent required to
permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
however, that (x) Company shall not be required to effect more than two (2)
registrations of any Registrable Securities which shall have been declared
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effective by the Commission pursuant to this Section 2, and (y) Company shall
only be required to effect a registration of Registrable Securities pursuant to
this Section 2 after the later of (i) six months after it has consummated an
initial public offering of Shares under the Securities Act, and (ii) 12 months
after a registration statement filed under the Exchange Act in respect of the
Shares shall have been declared effective. Executive acknowledges and agrees
that if any Person shall request, pursuant to a contractual right of such
Person, that Shares held by such Person be included in any registration
statement filed pursuant to this Section 2, then the Shares to be registered on
behalf of such Person and Executive shall be subject to reduction as set forth
in the third sentence of the second paragraph of Section 3.
3. Incidental Registration. If Company at any time proposes to file on
its behalf and/or on behalf of any of its security holders (collectively, the
"Demanding Security Holders") a Registration Statement under the Securities Act
on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of Company
pursuant to any employee benefit plan, respectively) for the general
registration of Shares or other equity securities of Company, or securities
convertible into or exchangeable or exercisable for Shares or such other equity
securities, it will give written notice of such proposed filing to Executive
(unless Executive is a Demanding Security Holder) at least thirty (30) days
before the initial filing with the Commission of such Registration Statement,
which notice shall set forth the number and type of securities proposed to be
offered and a description of the intended method of disposition of such
securities. The notice shall offer to include in such filing such number of
Registrable Securities as Executive may request.
In the event that Executive desires to have Registrable Securities
registered under this Section 3, he shall advise Company in writing within
twenty (20) days after the date of receipt of such offer from Company, setting
forth the amount of such Registrable Securities for which registration is
requested. Company shall thereupon include in such filing the number of shares
of Registrable Securities for which registration is so requested, subject to the
next sentence, and shall use its best efforts to effect registration under the
Securities Act of such Registrable Securities. If the managing underwriter of a
proposed public offering shall advise Company in writing that, in its opinion,
the distribution of the Registrable Securities requested to be included in the
registration concurrently with the securities being registered by Company or
such Demanding Security Holder would materially and adversely affect the
distribution of such securities by Company or such Demanding Security Holder,
then Executive shall reduce the amount of securities he intended to distribute
through such offering, pro rata with the other Demanding Security Holders and
other selling security holders on the basis of the number of shares of
Registrable Securities to be offered for the account of Executive and such other
selling security holders. Except as otherwise provided in Section 5, all
expenses of such registration shall be borne by Company. No registration of
Registrable Securities under this Section 3 shall relieve Company of its
obligation to effect registrations under Section 2, or shall constitute a
request for registration by Executive under Section 2.
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4. Registration Procedures. If Company is required by the provisions of
Section 2 or 3 to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act, Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by Executive thereof, but not to
exceed two hundred seventy (270) days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration Statement until
the earlier of such time as all of such securities have been disposed of in a
public offering or the expiration of two hundred seventy (270) days;
(c) furnish to Executive and any underwriters such number of copies
of the Registration Statement as initially filed with the Commission and of each
pre-effective and post-effective amendment or supplement thereto (in each case
including at least one copy of all exhibits thereto and all documents
incorporated by reference therein) and of the prospectus included therein,
including the preliminary prospectus and any summary prospectus, and any other
prospectus filed under Rule 424 under the Securities Act in connection with the
disposition of any Registrable Securities covered by such Registration
Statement, and such other documents as Executive or any underwriter may
reasonably request;
(d) use its best efforts to register or qualify the Registrable
Securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
Executive shall request (provided, however, that Company shall not be obligated
to qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file any general consent to
service of process to effect such registration), and do such other reasonable
acts and things as may be required of it to enable Executive to consummate the
disposition in such jurisdiction of the Registrable Securities covered by such
Registration Statement;
(e) furnish, at the request of Executive, if he has requested
registration of Registrable Securities pursuant to Section 2, on the date that
such shares of Registrable Securities are delivered to the underwriters for sale
pursuant to such registration or, if such Registrable Securities are not being
sold through underwriters, on the date that the Registration Statement with
respect to such Registrable Securities becomes effective, (1) an opinion, dated
such date, of the independent counsel representing Company for the purposes of
such registration, addressed to the underwriters, if any, and if such
Registrable Securities are not being sold through underwriters, then to
Executive, in customary form and covering matters of the type customarily
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covered in such legal opinions; and (2) a comfort letter dated such date, from
the independent certified public accountants who have issued an audit report on
Company's financial statements included or incorporated by reference in the
Registration Statement, addressed to the underwriters, if any, and if such
Registrable Securities are not being sold through underwriters, then to
Executive, and, if such accountants refuse to deliver such letter to Executive,
then to Company in a customary form and covering matters of the type customarily
covered by such comfort letters and as the underwriters or Executive shall
reasonably request. The opinion of counsel shall additionally cover such other
legal matters with respect to the registration in respect of which such opinion
is being given as Executive or any underwriter may reasonably request. Such
letter from the independent certified public accountants shall additionally
cover such other financial matters (including information as to the period
ending not more than five (5) Business Days prior to the date of such letter)
with respect to the registration in respect of which such letter is being given
as Executive or any underwriter may reasonably request;
(f) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(g) use its commercially reasonable efforts to cause its senior
management to attend and make presentations regarding Company at all meetings
with prospective purchasers of Registrable Securities that are arranged by any
underwriter (provided that senior management has been given two (2) weeks
advance notice of the first of such meetings) in connection with any widely
distributed, underwritten offering of such Registrable Securities;
(h) use its best efforts to cause the Registrable Securities covered
by a Registration Statement to be listed on each national securities exchange,
the NASDAQ National Market or the NASDAQ Small Cap Market, as applicable, on
which Company's equity securities are then listed at the time of the sale of
such Registrable Securities pursuant to such Registration Statement;
(i) notify Executive and each underwriter, at any time when a
prospectus is required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which, such prospectus
(as then in effect) contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and as promptly as
practicable prepare and furnish to Executive and each underwriter such number of
copies of a supplement to or an amendment of such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(j) make available for inspection by Executive, any underwriter and
any attorney, accountant or other agent retained by Executive or any
underwriter, all financial and other records, pertinent corporate documents and
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properties of Company, and cause Company's officers, directors and employees to
supply all information reasonably requested by Executive, any underwriter or any
such attorney, accountant or agent in connection with such Registration
Statement;
(k) before filing any Registration Statement or amendment or
supplement thereto or to the prospectus used therewith, furnish to Executive,
any underwriters and their respective counsel drafts and/or copies of all
documents proposed to be filed with the Commission and an opportunity to comment
thereon; and
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than eighteen (18)
months after the effective date of the Registration Statement, an earnings
statement covering the period of at least twelve (12) months beginning with the
first full month after the effective date of such Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
It shall be a condition precedent to the obligation of Company to take
any action pursuant to this Agreement in respect of the Registrable Securities
which are to be registered at the request of Executive that Executive shall
furnish to Company such information regarding the Registrable Securities held by
Executive and the intended method of disposition thereof as Company shall
reasonably request and as shall be required in connection with the action taken
by Company ("Executive Information").
5. Expenses. All expenses incurred in complying with this Agreement,
including, without limitation, all Commission or stock exchange registration and
filing fees (including all expenses incident to filing with the NASD), stock
exchange listing fees, printing expenses, fees and disbursements of counsel for
Company, expenses of complying with the securities or blue sky laws of any
jurisdiction pursuant to Section 4(d) hereof, underwriting expenses other than
underwriting discounts and commissions, the reasonable fees and expenses of one
counsel for Executive, fees of the Company's independent public accountants and
the expenses of any special audits incident to or required by any such
registration, and the expenses of complying with the securities or blue sky laws
of any jurisdiction pursuant to Section 4(d), shall be paid by Company, except
that:
(a) all such expenses in connection with any amendment or supplement
to the Registration Statement or prospectus filed more than two hundred seventy
(270) days after the effective date of such Registration Statement because
Executive has not effected the disposition of the securities requested to be
registered shall be paid by Executive; and
(b) Company shall not be liable for any underwriting discounts or
commissions in respect of the Registrable Securities sold by Executive.
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6. Indemnification and Contribution.
(a) In the event of any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, Company shall indemnify and
hold harmless Executive, Executive's agents, and each other Person (including
each underwriter) who participated in the offering of such Registrable
Securities against any losses, claims, damages or liabilities, joint or several,
to which Executive or any such agent or Person may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any alleged
violation by Company of the Securities Act, the Exchange Act or any state
securities laws in connection with the offering covered by such Registration
Statement, and shall reimburse Executive or such agent or Person for any legal
or any other expenses reasonably incurred by Executive or such agent or Person
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any actual or alleged untrue statement or actual or
alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
Executive Information furnished in writing to Company by Executive specifically
for use therein or (in the case of any registration pursuant to Section 2) so
furnished for such purposes by any underwriter. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
Executive or such agent or Person and shall survive the transfer of such
Registrable Securities by Executive.
(b) Executive, by acceptance hereof, agrees to indemnify and hold
harmless Company, its directors and officers and each other person, if any, who
controls Company within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which Company or any such
director or officer or any such person may become subject under the Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which Registrable Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto or (ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if in any such case such statement or alleged
statement or omission or alleged omission was made in reliance on and in
conformity with Executive Information provided in writing to Company by
Executive specifically for use in such Registration Statement, preliminary
prospectus or final prospectus or any amendment or supplement thereto.
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Notwithstanding the provisions of this paragraph (b) or paragraph (c) below,
Executive shall not be required to indemnify any person pursuant to this Section
6 or to contribute pursuant to paragraph (c) below in an amount in excess of the
amount of the aggregate net proceeds received by Executive in connection with
any such registration under the Securities Act.
(c) If the indemnification provided for in this Section 6 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action; provided,
however, that notwithstanding the foregoing, no fault shall be attributed to
Executive as to any matters other than his provision of Executive Information in
writing to Company specifically for use in a Registration Statement, preliminary
prospectus or final prospectus or any amendment or supplement thereto. The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 6, the indemnifying
party shall indemnify the indemnified party to the full extent provided in
Section 6(a) or 6(b) hereof, as applicable, without regard to the relative fault
of the indemnifying party or the indemnified party or any other equitable
consideration provided for in this Section 6(c).
(d) The indemnification and contribution required by this Section 6
shall be made by periodic payment of the amount thereof during the course of the
investigation or defense, as and when bills are received or expenses are
incurred.
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(e) The party seeking indemnification pursuant to this Section 6 is
referred to as the "Indemnified Party" and the party from whom indemnification
is sought under this Section 6 is referred to as the "Indemnifying Party." The
Indemnified Party shall give prompt written notice to the Indemnifying Party of
the commencement of any action or proceeding involving a matter referred to in
Section 6(a) or 6(b) (an "Action"), if an indemnification claim in respect
thereof is to be made against the Indemnifying Party; provided, however, that
the failure to give such prompt notice shall not relieve the Indemnifying Party
of its indemnity obligations hereunder with respect to such Action, except to
the extent that the Indemnifying Party is materially prejudiced by such failure.
The Indemnifying Party shall be entitled to participate in and to assume the
defense of such Action, with counsel selected by the Indemnifying Party and
reasonably satisfactory to the Indemnified Party; provided, however, that (i)
the Indemnifying Party, within a reasonable period of time after the giving of
notice of such indemnification claim by the Indemnified Party, (x) notifies the
Indemnified Party of its intention to assume such defense and (y) appoints such
counsel, and (ii) the Indemnifying Party may not, without the consent of the
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such Action. If the Indemnifying Party so assumes the defense of
any such Action, (A) the Indemnifying Party shall pay all costs associated with,
any damages awarded in, and all expenses arising from the defense or settlement
of such Action, and (B) the Indemnified Party shall have the right to employ
separate counsel and to participate in (but not control) the defense, compromise
or settlement of such Action, but the fees and expenses of such counsel shall be
at the expense of the Indemnified Party unless (x) the Indemnifying Party has
agreed to pay such fees and expenses, (y) the Indemnified Party has been advised
by its counsel that there are likely to be one or more defenses available to it
which are different from or additional to those available to the Indemnifying
Party, and in any such case that portion of the reasonable fees and expenses of
such separate counsel that are reasonably related to matters covered by the
indemnity provided in this Section 6 shall be paid by the Indemnifying Party, or
(z) such counsel has been selected by the Indemnified Party solely due to a
conflict of interest which exists between counsel selected by the Indemnifying
Party and the Indemnified Party. If the Indemnifying Party does not so assume
the defense of such Action, the Indemnified Party shall be entitled to exercise
control of the defense, compromise or settlement of such Action. No Indemnified
Party shall settle or compromise any Action for which it is entitled to
indemnification under this Agreement without the prior written consent of the
Indemnifying Party (which consent may not be unreasonably withheld or delayed).
The other party shall cooperate with the party assuming the defense, compromise
or settlement of any Action in accordance with this Agreement in any manner that
such party reasonably may request and the party assuming the defense, compromise
or settlement of any Action shall keep the other party fully informed in the
defense of such Action.
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7. Certain Limitations on Registration Rights. Notwithstanding the
other provisions of this Agreement:
(a) Company shall not be obligated to register the Registrable
Securities of Executive if, in the opinion of counsel to Company reasonably
satisfactory to Executive and its counsel (or, if Executive has engaged an
investment banking firm, to such investment banking firm and its counsel), the
sale or other disposition of Executive's Registrable Securities, in the manner
proposed by Executive (or by such investment banking firm), may be effected
without registering such Registrable Securities under the Securities Act and
without any additional restrictions pursuant to any applicable exemptions from
the registration requirements under the Securities Act and the purchaser of such
Registrable Securities will take such Registrable Securities free from any
restrictions on transfer pursuant to the Securities Act and any applicable state
securities laws;
(b) Company shall not be obligated to register the Registrable
Securities of Executive pursuant to Section 2 if Company has had a Registration
Statement, under which Executive had a right to have its Registrable Securities
included pursuant to Section 2 or 3, declared effective within six months prior
to the date of the request pursuant to Section 2; and
(c) Company shall have the right to delay the filing or effectiveness
of a Registration Statement required pursuant to Section 2 hereof during one or
more periods aggregating not more than sixty (60) days in any twelve-month
period in the event that (i) Company would, in accordance with the advice of its
counsel, be required to disclose in the prospectus information not otherwise
then required by law to be publicly disclosed and (ii) in the judgment of
Company's Board of Directors, there is a reasonable likelihood that such
disclosure, or any other action to be taken in connection with the prospectus,
would materially and adversely affect any existing or prospective material
business situation, transaction or negotiation or otherwise materially and
adversely affect Company.
8. Underwriters. (a) The managing underwriter or underwriters for any
offering of Registrable Securities to be registered pursuant to Section 2 shall
be selected by Executive and shall be reasonably acceptable to Company.
(b) If requested by the underwriters for any underwritten
registration pursuant to Section 2, Company shall enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in form and substance to Company, Executive and the
underwriters and to contain such representations and warranties by Company and
such other terms as are customarily contained in agreements of that type,
including without limitation, covenants to keep the Registration Statement
current, indemnities and contribution and the provision of opinions of counsel
and accountants' letters to the effect and to the extent provided in Section
4(e) hereof. Executive shall cooperate with Company in the negotiation of the
underwriting agreement and shall be party to such underwriting agreement.
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9. Restrictions on Sale After Public Offering. Except for transfers
made in transactions exempt from the registration requirements under the
Securities Act (other than Rule 144 thereunder), Company and Executive hereby
agree not to offer, sell, contract to sell or otherwise dispose of any Shares or
other equity securities of Company, or securities convertible into or
exchangeable or exercisable for Shares or such other equity securities,
including without limitation, any sale pursuant to a brokerage transaction under
Rule 144 under the Securities Act, within a period of up to one hundred eighty
(180) days after the date of any final prospectus relating to the public
offering of Shares, if underwritten, whether by Company or by Executive, except
pursuant to such prospectus or with the written consent of the managing
underwriter or underwriters for such offering; provided, however, the
restriction period applicable to Executive pursuant hereto in connection with
any underwritten public offering shall not be longer than (x) the period
required by the underwriter pursuant to its underwriting agreement in connection
with such offering and (y) the period during which similar restrictions are
applicable to any holder of 10% of Company's outstanding Common Stock in
connection with such public offering.
10. Rule 144. So long as Company has securities registered under the
Exchange Act, it shall take all actions reasonably necessary to enable Executive
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemptions provided by (i) Rule 144 under the
Securities Act or (ii) any similar rule or regulation hereafter adopted by the
Commission, including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed by the Exchange Act. Upon
request of Executive, Company shall deliver to Executive a written statement as
to whether it has complied with such requirements.
11. Miscellaneous.
(a) No Inconsistent Agreements. Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with the
rights granted to Executive in this Agreement. Except for the Registration
Rights Agreement, dated as of January 28, 1999, by and among Barneys New York,
Inc. and the holders party thereto, Company has not previously entered into any
agreement with respect to any of its securities granting any registration rights
to any person. So long as any Registrable Securities are outstanding, Company
shall not grant to any holder of its securities rights to include such
securities in any Registration Statement filed pursuant to Section 2 hereof
which are senior to the rights of Executive to include shares in any such
Registration Statement, unless Executive has consented thereto in writing. It is
understood that the allocation provision in the third sentence of the second
paragraph of Section 3 hereof shall be deemed to be pari passu rights and not
senior rights.
(b) Remedies. Executive, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
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of this Agreement or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover reasonable attorneys'
fees in addition to any other available remedy.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departure from the provisions hereof may not be given
unless Company has obtained the written consent of Executive. To the extent
permitted by law, no failure to exercise, and no delay on the part of Executive
in exercising, any power or right in connection with this Agreement, or
available at law or in equity, shall operate as a waiver thereof, and no single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, shall preclude any other
or further exercise thereof or the exercise of any other rights or powers. No
course of dealing among Executive, Company or any other Person shall operate as
a waiver of any right of Executive. Any written modification or waiver of any
provision of this Agreement shall be effective only in the specific instance and
for the purpose for which it is given.
(d) Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall be deemed served and received: (i) when
delivered by hand to the recipient named below (or when delivery is refused);
(ii) on the date of delivery (or when delivery is refused) as confirmed by the
agency or firm making delivery (or attempting to make delivery when delivery is
refused) when the notice is delivered by private overnight courier service, such
as Federal Express; (iii) on the date delivered (or the date delivery is
refused) if sent via the United States Postal Service when sent by either
registered or certified mail, postage and postal charges prepaid, return receipt
requested; or (iv) if on a business day, on the date sent via telecopy, provided
such delivery is confirmed (via a fax confirmation report). Notices shall be
addressed by name and address to the recipient, as follows:
(i) If to Executive, at
Xxxxx Xxxxxxxx 000 Xxxx 00xx
Xxxxxx Xxxxxxxxx 00X Xxx
Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: 000-000-0000
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(ii) If to Company at
Barneys New York, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopier: 000-000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
Telecopier: 000-000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or five (5) Business Days after the same shall have been deposited in
the United States mail.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
including any Person to whom Registrable Securities are transferred.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law; Jurisdiction; Jury Waiver. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
New York without giving effect to the conflict of laws provisions thereof. Each
of the parties hereby submits to personal jurisdiction and waives any objection
as to venue in the County of New York, State of New York. Service of process on
the parties in any action arising out of or relating to this Agreement shall be
effective if mailed to the parties in accordance with Section 11(d) hereof. The
parties hereto waive all right to trial by jury in any action or proceeding to
enforce or defend any rights hereunder.
(h) Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
13
(i) Entire Agreement. This Agreement represents the complete
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Company and Executive have executed this Agreement
as of the date first above written.
BARNEYS NEW YORK, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
EXECUTIVE:
/s/ Xxxxx Xxxxxxxx
------------------
XXXXX XXXXXXXX
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