EXHIBIT 4.7
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EQUITY REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 1, 2003
BY AND BETWEEN
BARNEYS NEW YORK, INC.
AND
XXXXXXXXX & COMPANY, INC.
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This Equity Registration Rights Agreement (the "AGREEMENT") is made
and entered into as of April 1, 2003, by and between Barneys New York, Inc., a
Delaware corporation (the "COMPANY") and Xxxxxxxxx & Company, Inc. (the "INITIAL
PURCHASER"), who has agreed to purchase an aggregate of 106,000 Units, each
consisting of $1,000 in aggregate principal amount at maturity of a 9.000%
Senior Secured Note due 2008 (the "NOTES") of Barney's, Inc. ("BARNEYS") and a
warrant to initially purchase 3.412 shares of the Company's Common Stock,
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement (the
"PURCHASE AGREEMENT"), dated as of March 26, 2003, by and among the Company,
Barneys, the Guarantors named therein and the Initial Purchaser. To induce the
Initial Purchaser to purchase the Units, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in Section 3 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
AFFILIATE: As defined in Rule 144 of the Securities Act.
CLOSING DATE: The date hereof.
COMMON STOCK: The common stock, par value $0.01 per share, of the
Company.
DEMAND REGISTRATION: As defined in Section 4 of this Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
HOLDER: As defined in Section 2 hereof.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as supplemented by
any prospectus supplement, and all material incorporated by reference into such
prospectus.
PUBLIC EQUITY OFFERING: means an underwritten offering of Common
Stock pursuant to a registration statement that has been declared effective by
the SEC pursuant to the Securities Act (other than a registration statement on
Form S-8 or otherwise relating to equity securities issuable under any employee
benefit plan of the Company).
REGISTRABLE SECURITIES: At any time, any of (i) the Warrant Shares
(whether or not the related Warrants have been exercised) and (ii) any other
securities issued or issuable with respect to any Warrant Shares by way of stock
dividends or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (a) a Registration Statement with respect to the
offering of such securities by the Holder thereof shall have been declared
effective under the Securities Act and such securities shall have been disposed
of by such Holder pursuant to such Registration Statement, (b) such securities
have been sold to the public pursuant to Rule 144(k) (or any similar provisions
then in force, but not Rule 144A) promulgated under the Securities Act, (c) such
securities shall have been otherwise transferred by the Holder thereof and new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company or its transfer agent and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force or
(d) such securities shall have ceased to be outstanding.
REGISTRATION: As defined in Section 4 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to the registration for resale of Registrable Securities that is filed
pursuant to the provisions of this Agreement, including the Prospectus included
therein, all amendments thereto (including post-effective amendments) and all
exhibits and all material incorporated by reference therein.
REQUISITE SECURITIES: A number of Registrable Securities equal to not
less than 5% of the then Registrable Securities held in aggregate by all
Holders.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended.
WARRANT AGREEMENT: The Warrant Agreement dated the Closing Date by
and between the Company and Wilmington Trust Company, as Warrant Agent.
WARRANT SHARES: The Common Stock or other securities that any Holder
may acquire upon exercise of a Warrant, together with any other securities which
such Holder may acquire on account of any such securities, including, without
limitation, as the result of any dividend or other distribution on Common Stock
or any split or combination of such Common Stock as provided for in the Warrant
Agreement.
WARRANTS: The warrants of the Company issued and sold pursuant to the
Purchase Agreement and the Warrant Agreement, together with any warrants issued
in substitution or replacement therefor.
SECTION 2. HOLDERS OF REGISTRABLE SECURITIES
A Person is deemed to be a Holder of Registrable Securities (a
"HOLDER") whenever such Person owns Registrable Securities or has the right to
acquire such Registrable Securities by exercising Warrants held by such Person,
whether or not such acquisition has actually been effected.
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SECTION 3. REGISTRATION PROCEDURES.
In connection with any Demand Registration, the following provisions
shall apply:
(a) The Company shall (i) furnish to the Holders, prior to the filing
thereof with the Commission, a copy of the Registration Statement (including all
such documents incorporated therein by reference) and each amendment thereof and
each supplement, if any, to the Prospectus, which documents will be subject to
the review and comment of such Holders in connection with such sale, if any, for
a period of at least five business days, and the Company will not file any such
Registration Statement or related Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all documents
incorporated therein by reference) to which such Selling Holders shall
reasonably object within five business days after the receipt thereof; and (ii)
include the names of the Holders who propose to sell Registrable Securities
pursuant to the Registration Statement as selling securityholders. A Selling
Holder shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, related Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading or fails to comply with the applicable requirements of the
Securities Act.
(b) The Company shall give written notice to the Initial Purchaser
and the Holders:
(i) when the Registration Statement or any amendment
thereto has been filed with the SEC and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
Prospectus in order that the Registration Statement or the Prospectus
does not contain an untrue statement of a material fact nor omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder, without charge, at
least one copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Company shall, during the period which the Registration
Statement is effective, deliver to each Holder, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in the
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Registration Statement as such Holder may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of the
Prospectus by each of the Holders in connection with the offering and sale of
Registrable Securities.
(f) Prior to any public offering of the Registrable Securities
pursuant to any Registration Statement the Company shall register or qualify or
cooperate with the Holders and their respective counsel in connection with the
registration or qualification of the Registrable Securities for offer and sale
under the securities or "blue sky" laws of such states of the United States as
any Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Registrable Securities; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then so
subject.
(g) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing the Registrable
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Registrable Securities pursuant to such Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus and any other required
document so that, as thereafter delivered to Holders or purchasers of
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) Not later than the effective date of the Registration Statement,
the Company will provide a CUSIP number for the Registrable Securities and
provide the Warrant Agent with printed certificates for the Registrable
Securities, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will use it best efforts to comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(k) The Company may require each Holder of Registrable Securities to
be sold pursuant to the Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Registrable
Securities as the Company may from time to time reasonably require for inclusion
in the Registration Statement, and the Company may exclude from such
registration the Registrable Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such request.
(l) The Company shall enter into such customary agreements and take
all such other action, if any, in order to facilitate the disposition of the
Registrable Securities pursuant to any Demand Registration.
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(m) The Company shall (i) make reasonably available for inspection by
the Holders of the Registrable Securities and any attorney, accountant or other
agent retained by the Holders of the Registrable Securities all relevant
financial and other records, pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors, employees, accountants
and auditors to supply all relevant information reasonably requested by the
Holders of the Registrable Securities or any such attorney, accountant or agent
in connection with the Registration Statement, in each case, as shall be
reasonably necessary to enable such Persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated by the Initial Purchaser and on behalf of the other parties, by one
counsel selected by of such other parties; provided further, however, that any
such records, documents, properties and such information that is designated in
writing by the Company, in good faith, as confidential at the time of delivery
of such records, documents, properties or information shall be kept confidential
by any such Persons and shall be used only in connection with such Registration
Statement, unless disclosure thereto is made in connection with a court
proceeding or required by law (it being understood that such Persons (and any
employee, representative or other agent of such Person) may disclose to any and
all Persons, without limitation of any kind, the tax treatment and tax structure
of the transactions contemplated in the Registration Statement and all materials
of any kind (including such records, documents, properties or information and
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure), or such information has become available (not in
violation of this Agreement) to the public generally or through a third party
without an accompanying obligation of confidentiality.
(n) The Company, if requested by any Holder of Registrable
Securities, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Registrable Securities in customary form addressed to
such Holders thereof and dated, in the case of the initial opinion, the
effective date of such Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(a) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material legal or
governmental proceedings involving the Company and its subsidiaries; the absence
of governmental approvals required to be obtained in connection with the
Registration Statement, the offering and sale of the applicable Registrable
Securities, or any agreement of the type referred to in Section 3(a) hereof; the
compliance as to form of such Registration Statement and any documents
incorporated by reference therein; and, as of the date of the opinion and as of
the effective date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such Registration
Statement and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue statement
of a material fact or the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of
the prospectus, in light of the circumstances under which they were made) not
misleading (in the case of any such documents, in the light of the circumstances
existing at the time that such documents were filed with the SEC under the
Exchange Act); (ii) its independent public accountants to provide to the Holders
a comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72; and (iii) use its best
efforts to cause the disposition of the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities.
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If any such Registration Statement refers to any Holder by name or
otherwise as the holder or any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
SECTION 4. DEMAND REGISTRATION.
(a) Upon receipt of a written request (a "DEMAND REQUEST") from the
Holders of Requisite Securities, the Company shall, as promptly as practicable
prepare and cause to be filed with the SEC pursuant to Rule 415 under the
Securities Act a Registration Statement on the appropriate form relating to
resales of all Registrable Securities ("DEMAND REGISTRATION"). In addition to
the foregoing, the Company may, at any time prior to the receipt of a Demand
Request, at its option, prepare and cause to be filed with the SEC pursuant to
Rule 415 under the Act a Registration Statement on the appropriate form relating
to resales of all Registrable Securities (a "COMPANY REGISTRATION," either of
the Demand Registration or Company Registration being referred to herein as a
"REGISTRATION"). The Company shall use its reasonable best efforts to cause any
such Registration Statement to be declared effective by the SEC.
To the extent necessary to ensure that the Registration Statement is
available for sales of Registrable Securities by the Holders thereof entitled to
the benefit of this Section 4(a), the Company shall use its reasonable best
efforts to keep any Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 4(a) hereof and in conformity with the
requirements of this Agreement, the Securities Act and the rules and regulations
of the Commission promulgated thereunder from time to time (including (A)
preparing and filing with the SEC such amendments and post-effective amendments
to the Registration Statement as may be necessary to keep such Registration
Statement effective; (B) cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and complying fully with Rules 424, 430A and 462, as
applicable, under the Securities Act in a timely manner; and (C) comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement), until the second anniversary
of the effective date of the Registration Statement; provided that such
obligation shall expire before such date if all the Registrable Securities
covered by the Registration Statement (i) have been sold pursuant thereto or
(ii) are no longer Restricted Securities.
(b) No Holder may include any of its Registrable Securities in any
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of The Securities Act for use in connection with any Registration
Statement or Prospectus or preliminary Prospectus included therein. Each selling
Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
(c) The Company shall be required to effect no more than one (1)
Registration (including any Company Registration) pursuant to this Section 4.
The Company shall be deemed not to have used its best efforts to keep the
Registration Statement effective during the requisite period if it voluntarily
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takes any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell such Registrable Securities during that
period, unless such action is required by applicable law or this Agreement.
(d) If the Company receives a Demand Request during a "lock-up" or
"black out" period (the "LOCK UP PERIOD") imposed on the Company pursuant to or
in connection with any underwriting or purchase agreement relating to a Rule
144A offering or a registered public offering of Common Stock or securities
convertible into or exchangeable for Common Stock, the Company shall not be
required to file a Registration Statement prior to the end of the Lock Up
Period; provided, that such Lock Up Period shall not exceed 90 days or, in the
case of the Company's initial Public Equity Offering, 180 days. In such event,
the Company shall use its reasonable best efforts to cause the Registration
Statement to become effective no later than the later of (i) 180 days after
receipt of the Demand Request and (ii) 60 days after the end of the Lock Up
Period. The Company shall notify the Holders within 10 days of the imposition of
any Lock Up Period on the Company.
SECTION 5. LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO OBLIGATIONS UNDER
REGISTRATION COVENANTS.
The obligations of the Company described in Section 4 of this
Agreement are subject to each of the following limitations, conditions and
qualifications:
(a) Subject to the next sentence of this paragraph, the Company shall
be entitled to postpone, for a reasonable period of time, the filing of
effectiveness of, or suspend the right of any Holder to make sales pursuant to,
any Registration Statement otherwise required to be prepared, filed and made and
kept effective by it under the registration covenants described in Section 4
hereof; provided, however, that the duration of such postponement or suspension
may not exceed 135 days in any 365-day period. Such postponement or suspension
may be effected only if (i) (A) an event or circumstance occurs and is
continuing as a result of which such Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended or
supplemented or proposed to be filed would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (B)(1) the
Company determines in its good faith judgment that the disclosure of the event
at that time would have a material adverse effect on the business, operations or
prospects of the Company or (2) the disclosure otherwise relates to a material
business transaction or development that has not yet been publicly disclosed or
(ii) the Company shall have received a notice referred to Section 3(b)(iii)
hereof. If the Company shall so postpone the filing or effectiveness of, or
suspend the rights of any Holders to make sales pursuant to, a Registration
Statement it shall, as promptly as possible, notify the Holders of such
determination (in each case, a "SUSPENSION NOTICE"). Upon receipt of such
Suspension Notice, each Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until (i) such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 3(h) hereof, or (ii) such Holder is advised in writing
by the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus (in each case, the "RECOMMENCEMENT DATE"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Registrable Securities that was current at the time
of receipt of the Suspension Notice. The Holders shall (x) have the right, in
the case of a postponement of the filing or effectiveness of a Registration
Statement, upon the affirmative vote of the Holders of not less than a majority
of the Registrable Securities, to withdraw any Demand Request by giving written
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notice to the Company within 10 days after receipt of such notice, or (y) in the
case of a suspension of the right to make sales, receive an extension of the
registration period equal to the number of days of the suspension. Any Demand
Registration as to which the withdrawal election referred to in the preceding
sentence has been effected shall not be counted for purposes of the Demand
Registration referred to in Section 4 hereof. No such withdrawal shall impair
the right of the Company to effect a Company Registration after the
Recommencement Date. The time period regarding the effectiveness of such
Registration Statement set forth in Section 4 hereof, as applicable, shall be
extended by a number of days equal to the number of days in the period from and
including the date of delivery of the Suspension Notice to the date of delivery
of the Recommencement Date.
(b) The Company's obligations shall be subject to the obligations of
the Holders to furnish all information and materials and not to take any and all
actions as may be required under Federal and state securities laws and
regulations to permit the Company to comply with all applicable requirements of
the SEC and to obtain any acceleration of the effective date of such
Registration Statement.
(c) The Company shall not be obligated to cause any special audit to
be undertaken in connection with any Registration pursuant to this Agreement.
(d) Each Holder agrees, if and to the extent reasonably requested by
the managing underwriter or underwriters in a Public Equity Offering, not to
effect any public sale or distribution of Registrable Securities, including a
sale pursuant to Rule 144 (except as part of such Public Equity Offering),
during the 90-day period beginning on the closing date of any such Public Equity
Offering (which period may be 180 days in the case of the Company's initial
Public Equity Offering), to the extent timely notified in writing by the Company
or such managing underwriter or underwriters. In the event that the Company is
not otherwise in compliance with the provisions of this Agreement at the time
the Holders receive any notice pursuant to this Section 5(d), the Holders shall
not be required to comply with this Section 5(d). In addition, the provisions of
this Section 5(d) shall not apply to any Holder of Registrable Securities if
such Holder is prevented by applicable statute or regulation from entering into
any such agreement; provided, that any such Holder shall undertake not to effect
any public sale or distribution of any Registrable Securities commencing on the
closing date of any such Public Equity Offering unless it has provided 45 days'
prior written notice of such sale or distribution to the managing underwriter or
underwriters.
SECTION 6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement is ever filed or becomes effective, including
without limitation:
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registration and
printing of prospectuses), messenger and delivery services and
telephone usage;
(iv) all fees and disbursements of counsel for the
Company; and
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(v) all fees and disbursements of independent
certified public accountants of the Company (including the expenses
of any special audit required by or incident to such performance).
(b) The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.
(c) The Holders shall pay the underwriting discounts, commissions,
and transfer taxes, if any, in connection with the Registration Statement
requested under Section 4 which costs shall be allocated pro rata among all
Holders on whose behalf Registrable Securities of the Company are included in
such registration on the basis of the respective amounts of the Registrable
Securities then being registered on their behalf.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder and
each Person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims, damages
or liabilities, joint or several, or any actions in respect thereof (including,
but not limited to, any losses, claims, damages, liabilities or actions relating
to purchases and sales of the Registrable Securities) to which each Indemnified
Party (as defined in Section 7(c) below) may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus relating to a Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made) not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement or Prospectus or
in any amendment or supplement thereto or in any preliminary Prospectus relating
to a Registration Statement in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement or omission made
in any preliminary Prospectus relating to the Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the Person asserting any such losses, claims,
damages or liabilities purchased the Registrable Securities concerned, to the
extent that the Prospectus was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder results from the fact that there was not sent or
given to such Person, at or prior to the written confirmation of the sale of
such Registrable Securities to such Person, a copy of the final Prospectus if
the Company had previously furnished copies thereof to such Holder; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder of the Registrable Securities, severally and not
jointly, will indemnify and hold harmless the Company and each Person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
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actions in respect thereof, to which the Company or any such controlling Person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus relating to a Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they were
made) not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
Person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling Persons.
(c) Promptly after receipt by any Person in respect of which
indemnity may be sought pursuant to Section 7(a) or (b) (any such Person, an
"INDEMNIFIED PARTY") under this Section 7 of notice of the commencement of any
action or proceeding (including a governmental investigation), such Indemnified
Party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any Indemnified
Party other than the indemnification obligation provided in paragraph (a) or (b)
above. In case any such action is brought against any Indemnified Party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such Indemnified Party of its election so to assume the defense thereof the
indemnifying party will not be liable to such Indemnified Party under this
Section 7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such Indemnified Party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened action in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party unless such settlement includes an unconditional release of such
Indemnified Party from all liability on any claims that are the subject matter
of such action, and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party. The
indemnifying party shall not be liable for the costs and expenses of any
settlement of such action effected by such Indemnified Party without the consent
of the indemnifying party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an Indemnified Party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such Indemnified Party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the Indemnified Party on the other from the sale of the Registrable
Securities by the Holders, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the Indemnified Party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
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liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other Indemnified Party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 7(d), the Holders of the Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Holders from the sale of the Registrable Securities pursuant to the
Registration Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. For purposes of this paragraph (d), each Person,
if any, who controls such Indemnified Party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
Indemnified Party, and each Person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 7 shall survive the sale
of the Registrable Securities pursuant to the Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any Indemnified
Party.
SECTION 8. RULE 144A AND RULE 144.
The Company shall use its best efforts to file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder, make publicly available other information
so long as necessary to permit sales of their securities pursuant to Rules 144
and 144A. The Company covenants that it will take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Company will provide a
copy of this Agreement to prospective purchasers of Registrable Securities
identified to the Company by the Initial Purchaser upon request. Upon the
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
SECTION 9. MISCELLANEOUS.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 4 hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 4 hereof. The Company further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
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(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority of the Registrable Securities affected by
such amendment, modification, supplement, waiver or consent.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company or Warrant Agent.
(2) if to the Company, at its address as follows:
Barneys New York, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
(3) if to the Warrant Agent, at its address as follows:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. It is expressly understood and agreed
that each Holder is intended to be a beneficiary of the Company's covenants
contained in this Agreement to the same extent as if those covenants were made
directly to such Holder by the Company, and each such Holder shall have the
right to take action against the Company to enforce, and obtain damages for any
breach of, those covenants.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its Affiliates (other
than subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BARNEYS NEW YORK, INC.
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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XXXXXXXXX & COMPANY, INC.
By: /s/ XXXX XXXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
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