Exhibit 10.25
SERVICES AGREEMENT
This Agreement (the "Agreement") is made as of the first day of August,
1998 by and among: (i) Meridian Ventures, Inc., a Nevada corporation or any
successor corporation controlled by Xxxxxx X. Xxxxx, provided such successor
corporation is reasonably acceptable to the Debtor ("Meridian"), and Xxxxxx X.
Xxxxx ("Xxxxx"), jointly and severally; and (ii) Barney's, Inc., a New York
corporation and its (wholly-owned and majority owned) subsidiaries which are
debtors and debtors in possession (collectively referred to as the "Debtor", the
"Corporation" or the "Company") in Xxxx Xx. 00 X 00000 (xxx "Xxxx"), now pending
before the United States Bankruptcy Court for the Southern District of New York
(the "Bankruptcy Court").
1. PROVISION OF SERVICES. Meridian shall provide the services of Xxxxxx
X. Xxxxx and two additional consultants as provided below for the benefit of the
Debtor and affiliates of the Debtor which are debtors (the "Affiliates"). In
connection therewith, Xx. Xxxxx shall serve as the President and Chief Executive
Officer (the "President/CEO") and as a member of the Debtor's executive
management committee (the "Executive Committee") and shall report to the Board
of Directors.
2. RESPONSIBILITIES; CORPORATE GOVERNANCE. (a) The President/CEO shall
act and serve during the term of this Agreement as the President and Chief
Executive Officer of the Debtor and Affiliates and shall report to the Debtor's
Board of Directors. The employment responsibilities of the President/CEO will
include those normally held by the president and chief executive officer of a
retail corporation of similar size and nature to the Company. The President/CEO
shall devote his full time efforts (which shall mean an average of 50 hours per
work week, excluding reasonable vacation, personal, sick time or deminimus
non-conflicting time for Meridian) in connection with his role as President,
Chief Executive Officer and member of the Executive Committee. All employees and
officers shall report directly or indirectly to the President/CEO, except those
holding the position of Chair (as defined below).
(b) The President/CEO shall have complete access to all business records
and employees of the Company.
(c) The President and CEO shall be a member of the Debtor's Executive
Committee, which consists of the following officers: Xxxxxxx Xxxxxxxx
(Chairperson of the Executive Committee); Xxxxxx X. Xxxxxxxx (Co-Chairman of the
Board of Directors); Xxxxxx Xxxxxxxx (Co-Chairman of the Board of Directors);
Xxxxxx X. Xxxxx (President/CEO); Xxxx X. Xxxxx (Executive Vice President/CFO);
and Xxxx X. Xxxxxxxxx (Executive Vice President & General Counsel/Human
Resources). A quorum for Executive Committee meetings shall be set at three of
its members. All action by the Executive Committee and any changes in the
membership of the Executive Committee shall require a majority vote of the
quorum then in attendance provided such majority must include at least two out
of three members who do not hold the position of "Chair". The position of
"Chair" shall be deemed to mean the current Chairperson of the
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Executive Committee and the current Chairman or Co-Chairman of the Board of
Directors.
(d) (i) The Executive Committee and the President/CEO shall endeavor to
meet on a regular basis and as often as is necessary. Any member of the
Executive Committee may, upon 48 hours notice, schedule a meeting of the
Executive Committee. All meetings may be held in person and/or by telephone.
Notwithstanding anything in the Agreement to the contrary, all significant and
material decisions by any member of the Executive Committee shall be approved by
the Executive Committee prior to the implementation of such decisions.
Significant and material decisions shall include decisions that under corporate
law and custom would normally be delegated by a board of directors to a
corporate governance operating body similar to an executive committee of a
corporation equal in size to the Company. Significant and material decisions
shall include the following employment decisions (the "Employment Decisions"):
the hiring, firing, compensation and benefits of any employee or officer of the
Corporation holding the title of Senior Vice President or above, the General
Managers of each of the Madison Avenue, Xxxxxxx Hills and Chicago stores, and
any employee holding the title of General Merchandise Manager in the
merchandising group (collectively, "Senior Officers"). Upon the effective date
of a confirmed plan of reorganization, the Executive Committee shall be
disbanded and the new board of directors shall assume its responsibilities and
determine the internal governance mechanisms it believes are appropriate
provided until the new board of directors determines such internal governance
mechanisms, significant and material decisions shall be approved by the new
board.
(ii) The Executive Committee shall discuss all significant and material
store actions, including, without limitation, openings, closings of stores, and
material amendments to leases, before taking any action.
(iii) The Blackstone Group and/or other professionals as selected and
directed by the Board of Directors shall have the responsibility to the Company
for providing advice and counsel with respect to Investor (as hereinafter
defined) activities and shall report to the Board of Directors regarding their
activities and progress but shall also keep the President/CEO (who shall fully
participate in such activities) and the Executive Committee continually and
fully informed. The Board of Directors, any officer or member of the Executive
Committee shall advise the President/CEO on a timely basis of their knowledge of
all Investor (i) meetings that will be attended by a director or officer
representing the Company, and permit the President/CEO to attend if he so
requests, and (ii) activities. The President/CEO shall advise Blackstone of all
Investor activities. "Investor" shall mean (i) all activities, process,
decisions, communications, strategies, negotiations or agreements in connection
with any party making an investment in, or the restructuring of, the Corporation
as part of a recapitalization or plan of reorganization or (ii) any plan of
reorganization (including a debtor supported, creditor sponsored or third party
plan or any combination thereof) or restructuring process (including any aspect
involving the strategy or formation of a plan of reorganization). The Board of
Directors shall have final authority regarding any Investor decisions on behalf
of the Company.
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(iv) With regard to any significant and material matter with respect to
which the President/CEO shall have a material difference of opinion with the
Executive Committee and/or Board of Directors, the President/CEO shall have the
right to communicate with the Official Committee of Unsecured Creditors,
material stakeholders of the Debtor or the Debtor's debtor-in-possession
lenders; provided however, that prior to such communication the President/CEO
shall provide written notice of his intention to do so and detailing the issues
to the Board of Directors and to the Debtor's outside general counsel.
(v) In performing his services hereunder as President/CEO, Xxxxx at all
times will be subject to and shall comply with his fiduciary responsibilities as
an officer of the Company to such parties as required by applicable state law
and the Bankruptcy Code.
(vi) The Board of Directors shall retain, discharge and direct all
professionals. Nothing contained in this Agreement shall in any way restrict the
powers of the Board of Directors of the Corporation under the laws of any
applicable jurisdictions, including the laws of the States of Delaware and New
York, including, but not limited to, the power to terminate the Agreement,
subject only to the contractual rights of Meridian and Xxxxx to compensation,
any amounts due upon termination of this Agreement and indemnification
hereunder.
3. TERM. The term of this Agreement shall commence as of August 1, 1998
and shall terminate on July 31, 1999 but shall be subject to extension in the
event the parties enter into the Extension Agreement (as hereinafter defined).
4. COMPENSATION. (a) In consideration for providing the services of
Xxxxxx X. Xxxxx as President/CEO and certain consultants as provided herein
Meridian shall receive, in addition to the other consideration provided in this
Agreement, compensation at the rate of $95,000.00 per month payable in advance
during the first week of each month (the "Base Fee").
(b) The compensation payable to Meridian under this Agreement is in
consideration for the services of Xxxxxx X. Xxxxx and services provided by
Meridian of one full-time consultant and one 75% part-time senior consultant. It
is contemplated initially that the full time consultant shall be Xxxx Xxx (who
shall continue in his current role as Vice President of Business Planning and
Marketing) and the 75% part-time consultant shall be Xx Xxxxxxx. The Debtor
shall not be obligated to provide Xxxxxx X. Xxxxx or any such consultant with
Meridian, and Meridian, Xxxxx and Meridian on behalf of each other Meridian
employee serving hereunder as consultant, specifically declines any employee
benefits (for example, health, 401K, pension, or other benefits provided by the
Debtor to its employees etc.) under this Agreement. Notwithstanding the
foregoing, the Debtor will allow Xxxxx and the Meridian consultants covered
under this Agreement to avail themselves of the Company's employee clothing
discount offered to other employees generally.
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(c) The Debtor shall pay Meridian a flat fee of $9,500.00 per month
which represents 10% of the compensation in paragraph 4(a) and is deemed to
cover Meridian over-head (including legal and accounting), health care costs,
payroll costs, and other expenses (the "Flat Fee").
(d) The Debtor shall reimburse Meridian for the reasonable out-of-pocket
expenses of the President/CEO, full time consultant and part time consultant
which are incurred on behalf of the Debtor on appropriate business such as
travel, meals, communications and lodging other than the Xxxxxxx Transition
Expenses hereinafter defined. The Debtor shall also reimburse Meridian for the
reasonable travel, housing and occupancy expenses (including relocation expenses
for Xx Xxxxxxx and his family but excluding ordinary living expenses such as
utilities and groceries) for Xx Xxxxxxx (the "Xxxxxxx Transition Expenses").
Meridian shall submit invoices for such reimbursable expenses on a monthly
basis, and the Debtor shall process payment of the same upon receipt, provided
in no event shall the total reimbursement for Xxxxxxx Expenses exceed $10,000
per month (except for the following which will be reimbursed by the Debtor as
they occur:
(x) reasonable and customary lease deposits not to exceed $20,000
provided all deposits which are not used for the payment of
rent shall be returned to the Debtor at the conclusion of the
lease;
(y) reasonable and customary moving expenses occurring within 60
days of the commencement date of the Agreement and the
effective date of termination of this Agreement.)
(e) The Debtor shall provide a personal secretary to be recruited by
Xxxxxx Xxxxx in connection with his performance of duties as President/CEO. The
Debtor shall reimburse Meridian and Xxxxx for their reasonable attorneys fees in
connection with the negotiation of this Agreement which total amount shall not
exceed $10,000. In addition to the above, the Debtor shall promptly reimburse
Meridian and Xxxxx for their reasonable legal fees in the event that either of
them shall consult with their counsel in connection with their fiduciary
responsibilities to the Estate under the Agreement, provided that such fees
shall not without the prior written approval of the Executive Committee (which
shall not be unreasonably withheld) exceed $20,000 (except that such $20,000 cap
shall not limit the fees payable pursuant to paragraph 8 hereof).
(f) Meridian shall have the right to accept another engagement during
the term of this Agreement provided such engagement does not lessen the ability
of Meridian and Xxxxx to perform its services hereunder or conflict with the
obligations of Meridian and Xxxxx hereunder or present a conflict of interest
with respect to the Company.
5. PERFORMANCE BONUS. (a) No later than March 30, 1999, the Debtor shall
pay Meridian a performance bonus ("Performance Bonus") calculated and payable
for the fiscal six months ending in fiscal January, 1999 as soon as the Debtor's
publish such six months financial statements which shall have been reviewed by
the Debtor's
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outside accountants. If the EBITDA for said six month period ("Period EBITDA")
exceeds the Debtor's plan for EBITDA for such period ("Plan EBITDA"), then
Meridian shall receive a performance Bonus of $100,000.
(b) Upon approval of this Agreement by the Bankruptcy Court, paragraph 5
of the Agreement among the Debtor, Meridian and Xxxxx dated as of September 1,
1997 (the "1997 Agreement") shall be deleted in its entirety and replaced with
the following new paragraph 5:
"5. The Debtor shall pay to Meridian (a) a performance bonus of
$150,000 not later than August 31, 1998 and (b) an additional sum of
$150,000 within five days after the effective date of a plan of
reorganization which has been confirmed by the Bankruptcy Court provided
such plan has been confirmed not later than March 31, 1999.
6. TERMINATION. (a) The engagement of Meridian and Xxxxx hereunder will
terminate if any of the following shall occur: (i) ten days after written notice
by the Debtor to Meridian and Xxxxx with respect to any material breach by
Meridian or Xxxxx of the terms of this Agreement or Willful Misconduct (as
hereinafter defined) committed by Meridian or Xxxxx; (ii) ten days after written
notice by Meridian and Xxxxx to Debtor if the Debtor is in material breach of
this Agreement; (iii) July 31, 1999; (iv) upon the death or permanent disability
of Xxxxx; (v) upon entry of an order in the Case appointing a trustee in such
Case or upon entry of an order converting such Case to a case under Chapter 7 of
the Bankruptcy Code; (vi) if after a plan of reorganization is confirmed by the
Bankruptcy Court and management stock options are offered to employees but not
offered to Xxxxx (who shall have the right to designate his interest in such
stock options with Meridian employees who are covered under this Agreement) in
connection with his role as President/CEO, taking into account the relative
relationship of the value of options offered to other senior officers, then
Meridian may terminate this Agreement on 30 days notice; (vii) if within 30 days
after the effective date of a plan of reorganization which has been confirmed by
the Bankruptcy Court, Xxxxx is not duly elected as a member of the new board of
directors, then Meridian may terminate this Agreement on 30 days notice; (viii)
(x) within 60 days after the effective date of a plan of reorganization which
has been confirmed by the Bankruptcy Court, Meridian or the Company may
terminate this Agreement by sending written notice of same which shall be
effective 30 days after such notice or (y) thirty days after written notice by
Meridian and Xxxxx to Debtor if Xxxxx determines in his reasonable discretion
that he is unable to materially perform his duties under this Agreement due to
any action or failure to act on the part of the Debtor or (z) thirty days after
written notice by Meridian and Xxxxx in the event either the Debtor or any
significant stakeholder retains an executive search firm or takes any direct
action to identify, hire or recruit a new President or CEO provided in the case
of (x) , (y) or (z) above the Company may elect to extend the thirty day periods
referred to therein to up to ninety days; or (ix) if by January 31, 1999 the
Company and Meridian shall not reach agreement regarding a performance bonus to
be paid to Meridian in connection with the six month period ending on fiscal
July, 1999, Meridian may terminate this Agreement on thirty (30) days notice.
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(b) The parties agree that Meridian and Xxxxx will have been unable to
pursue alternative, profitable opportunities in order to take on this
engagement, that Meridian and Xxxxx would suffer substantial financial damage if
either party were to exercise its rights of termination hereunder, and that the
amount of damages to Meridian and Xxxxx would be difficult, if not impossible,
to calculate accurately. Accordingly, the parties agree that if pursuant to this
paragraph 6, Meridian, Xxxxx or the Debtor shall at any time cause this
Agreement to terminate or the Agreement shall otherwise terminate, then the
Debtor shall pay Meridian an amount as set forth below. In the event of the
termination of this Agreement as provided in paragraph 6(a), Meridian shall
receive hereunder the Base Fee, the Flat Fee and the Xxxxxxx Transition Expenses
through the end of the month in which the date of termination has occurred, plus
a termination payment as follows:
(A) If the termination is pursuant to paragraph 6(a)(i) above, the
amount due and owing to Meridian shall be $0;
(B) If the termination is pursuant to paragraph 6(a)(ii) above, Meridian
shall be entitled to receive (1) a payment equal to the total of the Base Fee
and Flat Fee (together, the "Payment Amount") for six months and (2) a payment
equal to the Payment Amount for six months less Mitigation (as hereinafter
defined);
(C) If the termination is pursuant to paragraph 6(a)(iii) above and (1)
this Agreement was not extended on or before June 30, 1999 for a term of at
least one year on equivalent or better terms and conditions for Skull and
Meridian as set forth herein (the "Extension Agreement") and (2) the Company
delivered to Meridian the Extension Agreement executed by the Company on or
before June 20, 1999, Meridian shall be entitled to receive a payment equal to
the Payment Amount for six months. Notwithstanding the above, should the parties
ultimately enter into the Extension Agreement, no amounts shall be payable by
the Company pursuant to this paragraph;
(D) If the termination is pursuant to paragraph 6(a)(iii) and this
Agreement was not extended on or before June 30, 1999 for a term of at least one
year on equivalent or better terms and conditions for Xxxxx and Meridian as set
forth herein (the "Extension Agreement") due to the fact that the Company did
not deliver to Meridian the Extension Agreement on or before June 20, 1999,
Meridian shall be entitled to receive the following: (1) a payment equal to the
Payment Amount for six months and (2) a payment equal to the Payment Amount for
six months less Mitigation. Notwithstanding the above, should the parties
ultimately enter into the Extension Agreement, no amounts shall be payable by
the Company pursuant to this paragraph;
(E) If the termination is pursuant to paragraph 6(a)(iv), Meridian shall
be entitled to receive a payment equal to the Payment Amount for twelve months,
and
(F) If the termination is pursuant to paragraph 6(a)(v), (vi), (vii),
(viii) or (ix), Meridian shall be entitled to receive the following: (1) a
payment
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equal to the Payment Amount for six months and (2) a payment equal to the
Payment Amount for six months less Mitigation.
(c) Any amounts payable to Meridian pursuant to this paragraph 6 which
are not subject to Mitigation shall be paid in a lump sum within five business
days after the termination date of this Agreement. Any amounts payable to
Meridian which are subject to Mitigation shall be payable over six months
(individually, a "Mitigation Month") in six equal monthly installments
commencing with the first day of the seventh full month following termination
date provided the amount of any such payments shall be offset by Mitigation, if
applicable. As used herein, "Mitigation" shall mean all compensation, salary,
fees and income payable and attributable by a third party for the services of
Xxxxxx Xxxxx, Xx Xxxxxxx and Xxxx Xxx (the "Meridian Employees") as employees of
Meridian or to the Meridian Employees directly (whether or not employed by
Meridian) with respect to such services during each of the six Mitigation
Months. Mitigation will not apply to existing Meridian contracts heretofor
disclosed to the Debtor as set forth in that certain letter of Meridian to the
Debtor dated August 7, 1998. Meridian shall notify the Company on the last
business day of each Mitigation Month of the amount of Mitigation actually
received since the first day of such Mitigation Month and shall provide a
calculation of the amount due by the Company to Meridian for that Mitigation
Month payment taking into account the credit to the Company for Mitigation. The
Debtor shall pay any such invoices for a Mitigation Month payment within five
business days. In addition to the foregoing amounts, the amount due under
paragraph 5 (a) shall be due and payable in accordance with the terms hereof
(other than in connection with a termination pursuant to paragraph 6(a)(i)) on a
prorata basis should the effective date of termination occur prior to January
31, 1999. For purposes of the immediately prior sentence, "prorata basis" shall
be determined by multiplying the amount payable under paragraph 5(a) by a
fraction, the denominator of which is the number of days in the period
commencing August 1, 1998 and ending January 31, 1999 (the "Measuring Period")
and the numerator of which is the number of days that this Agreement was in
effect during the Measuring Period. The parties agree that the amounts
established hereunder are liquidated damages reasonable under the terms and
circumstances of this Agreement (but excluding amounts due under paragraph 8
which shall continue to survive the termination of this Agreement), the payment
of which shall fully satisfy and discharge any obligation of the Debtor to pay
(i) any further compensation and any performance bonus under Sections 4 and 5,
respectively, hereof and, (ii) any compensation for lost opportunity costs
incurred by Meridian or Xxxxx as a result of either party entering into this
Agreement.
(d) In addition, upon termination of this Agreement for any reason, the
Debtor shall reimburse Meridian and Xxxxx for all reimbursable expenses incurred
by either or both to the time of termination plus any remaining lease costs
through and including July 31, 1999 under contract for the Xxxxxxx Transition
Expenses provided (i) no such reimbursement of Xxxxxxx Transition Expenses shall
exceed $50,000 and (ii) no reimbursement of Xxxxxxx Transition Expenses shall be
required if
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Xx Xxxxxxx is working in the New York/New Jersey/Connecticut tri-state area.
Meridian will use reasonable efforts to minimize any remaining lease costs.
7. INSURANCE. The Debtor shall maintain in force during the term of this
Agreement, directors' and officers' liability insurance ("D&O Insurance") with
limits not less than five million dollars ($5,000,000) on terms and conditions
currently provided for under the Debtor's existing insurance policy, and shall
use reasonable efforts to name Xxxxxx X. Xxxxx as an insured thereunder within
ten (10) days of this Agreement being approved by the Court.
8. INDEMNITY. If Meridian, Xxxxx or any employee of Meridian who serve
as consultants to the Debtor ("Indemnitee") is threatened with or made a party
to, or called as a witness or deposed or subpoenaed in, any action, suit or
other legal, administrative or governmental proceeding or other legal process by
reason that Indemnitee is or was deemed a consultant, officer, employee or other
agent of the Debtor or any of its affiliates, the Debtor shall defend, indemnify
and hold Indemnitee harmless to the maximum extent allowed by applicable law
against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, disbursements and expenses, including counsel fees
reasonably incurred by Indemnitee in connection therewith, to the extent the
same are not paid under the D&O Insurance ("Indemnified Liability" or
"Indemnified Liabilities"); provided however, that Indemnitee shall not be
entitled to indemnification hereunder to the extent any such liability,
obligation, loss, damage, penalty, action, judgment, suit, claim, disbursement
or expense results from the gross negligence, willful misconduct or criminal
conviction ("Willful Misconduct") of Indemnitee as determined by a court of
competent jurisdiction. Indemnitee represents and warrants that it or he has not
received notice of any claim which might constitute an Indemnified Liability
hereunder. Debtor represents that it has not received any notice of any claim
against Indemnitee that would constitute an Indemnitee Liability hereunder.
Payments under this indemnity in respect of indemnified settlements or judgments
shall be paid at the time of final settlement or final judgment (from which no
appeal may be taken), or in respect of counsel fees or costs of defense, which
shall be limited to one counsel for all Indemnitees, and shall be paid at the
time such fees or costs are incurred.
Indemnitee shall have the right to pay or compromise and adjust all
Indemnified Liabilities not manifestly without merit; provided, however, that as
to matters disposed of by a compromise payment by Indemnitee pursuant to a
consent decree or otherwise, no reimbursement, either for said payment or for
any other expenses in connection with the matter so disposed of, shall be
provided unless such compromise shall be approved by order of the Bankruptcy
Court on such notice as it may direct. Debtor shall have the right to pay or
compromise without Indemnitee's consent Indemnified Liabilities other than those
which arise from or are related to any criminal action, suit or proceeding.
Notwithstanding anything to the contrary contained in the preceding sentence,
Indemnitee's consent shall be required for any settlement which contains a
stipulation to, or admission or acknowledgment of, any liability or wrongdoing
on the part of Indemnitee.
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The Debtor shall, on a timely basis, pay the expenses as they are
incurred by Indemnitee in investigating, preparing or defending any such
threatened action, suit or other proceeding in advance of the final disposition
of such action, suit or other proceeding, upon receipt of an undertaking from
Indemnitee to repay such payment upon the terms of the last sentence of this
paragraph. Such undertaking shall be accepted without reference to the financial
ability of the Indemnitee to make repayment. If Indemnitee shall be adjudicated
to be not entitled to indemnification under this paragraph 8 or if the matter
involved shall be disposed of by a compromise payment with respect to which
Indemnitee shall not be entitled to Indemnification under this paragraph 8, then
Indemnitee promptly shall reimburse the Debtor for such expenses or amounts
paid.
This paragraph 8 shall survive the termination of the Agreement.
9. CONFIDENTIALITY. Meridian and Xxxxx shall at all times both during
its and his engagement hereunder and after termination thereof regard and
preserve as confidential all trade secrets and other confidential information
pertaining to the business of the Debtor that has been or may be obtained by
Meridian or Xxxxx by reason of the performance of the terms of this Agreement.
Meridian and Xxxxx agree that all documents, reports, manuals, drawings,
designs, tools, equipments, plans, proposals, marketing and sales plans,
customer lists, or materials made by the Debtor or coming into Meridian's or
Xxxxx'x possession by reason of its or his performance under this Agreement are
the property of the Debtor and shall not be used by Meridian or Xxxxx in any way
prohibited by this Agreement. Except as expressly provided herein, or as
required by the terms of the credit agreement between the Lenders and the
Debtor, during the term of this Agreement and after termination thereof,
Meridian and/or Xxxxx shall not deliver, reproduce, publish or in any way allow,
after due care, information describing any trade secrets or other confidential
documents or things to be delivered or used by any third party without specific
direction or written consent of the Debtor or in response to lawful process.
Immediately upon termination of this Agreement, Meridian and Xxxxx shall
promptly deliver to the Debtor all documents, tools, equipment, drawings,
blueprints, manuals, material and significant or confidential letters and notes,
reports, price lists, customer lists and copies thereof, and all other materials
relating to the Debtor's business and which are in the possession or under the
control of Meridian or Xxxxx. Confidential information as defined above shall
exclude information or materials that become generally available to the public
other than through disclosure by Meridian, Xxxxx or any employee of Meridian in
violation of this Agreement. This paragraph 9 shall survive the termination of
this Agreement.
10. MISCELLANEOUS. (a) The Debtor shall use its reasonable best efforts
to obtain approval hereof by the Bankruptcy Court, which approval shall affirm
that this Agreement and the services of Meridian and Xxxxx hereunder constitute
an administrative obligation under 11 U.S.C. Section 503(b) . This Agreement
shall be effective when it has been signed by the parties and approved by the
Bankruptcy Court, provided that the Debtor shall seek such approval NUNC PRO
TUNC as of the date of this Agreement, and further provided, that such approval
shall occur not later than September 1, 1998. Upon approval of this Agreement by
the Bankruptcy Court, this Agreement shall replace the
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l997 Agreement except with respect to paragraph 5 thereof, as amended by this
Agreement, relating to the bonus payable to Meridian and such other provisions
as specifically survive termination. This Agreement shall be assumed as part of
any plan or reorganization which is confirmed by the United States Bankruptcy
Court. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
(b) In the event Xxxxx is appointed to the new board of directors, Xxxxx
shall resign if he is no longer Chief Executive Officer of the Company. This
paragraph 10(b) shall survive the termination of this Agreement.
11. MODIFICATION. This Agreement may only be modified by mutual
agreement provided that such modification, if material, is approved by the
Bankruptcy Court.
12. ASSIGNMENT. This Agreement is a personal service contract and may
not be assigned by either party.
13. NOTICES. All notices required or permitted by this Agreement shall
be in writing and shall be personally delivered or faxed to the parties at their
addresses set forth below or to such different addresses as such parties shall
direct by notice sent in accordance with this paragraph.
If to Xxxxxx X. Xxxxx and Meridian Ventures, Inc.:
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
with copies to:
Xxxx Xxxx Xxxxxx, Esq.
Xxxxxx & Xxxxx
000 00xx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Phone: 000-000-0000
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If to Debtor:
Xxxx X. Xxxxxxxxx, Esq.
Executive Vice President - General Counsel and
Human Resources
Barney's, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax:000-000-0000
Phone: 000-000-0000
with a copy to:
Xxxx X. Xxxxx, Esq.
LeBouef, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax:000-000-0000
Phone: 000-000-0000
14. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. ATTORNEYS' FEES. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or material misrepresentation in connection with any of the provisions
of the Agreement, the successful or prevailing party shall be entitled, in
addition to any other relief to which it may be entitled, to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding including
fees and costs incurred on appeal and in collecting any judgment, and the court
shall so provide in its judgment.
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16. CONSENT TO JURISDICTION. The Debtor, Meridian and Xxxxx each hereby
irrevocably consent to the jurisdiction of the Bankruptcy Court for all purposes
in connection with any action or proceeding which arises out of or relates to
this Agreement and agree that any action instituted under this Agreement shall
be brought only in such court and that such court shall have jurisdiction as
provided above.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BARNEY'S, INC.
(acting as Officers and
attesting as members of the
Board of Directors)
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx as its
Chairwoman of the
Executive Committee; Director
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx as its
Co-Chairman of the
Board of Directors; Director
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Xxxxxx Xxxxxxxx as its
Co-Chairman of the
Board of Directors; Director
MERIDIAN VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, as an individual
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