EXHIBIT 10.34
-------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Registration Rights Agreement, dated as of January 8, 2001, by
and between Barneys New York, Inc., a Delaware corporation ("Company"), and
Xxxxxx Xxxxx (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 or will be 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.
"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 one (1) registration of any Registrable Securities which shall have
been declared effective by the Commission pursuant to this Section 2, and (y)
2
Company shall not be required to effect a registration of Registrable Securities
pursuant to this Section 2 prior to six months after it has consummated an
initial public offering of Shares under the Securities Act. 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.
3
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 one hundred eighty (180) 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 one hundred eighty (180)
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 covered in such legal opinions; and (2) a comfort letter
4
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 properties of Company, and cause Company's officers, directors and employees
5
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.
6
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. Notwithstanding the provisions of this paragraph (b) or paragraph (c)
7
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.
8
(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.
9
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.
10
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), Executive hereby agrees 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 which is still in effect. 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
11
any provision 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
Xxxxxx Xxxxx
000 Xxxxxxxx Xxxxxx, XX
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxx, LLC
Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
12
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.
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/ XXXXXX XXXXX
------------------------------------------------
XXXXXX XXXXX
14
