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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
(AMENDMENT NO. ___)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(A)
BARNEYS NEW YORK, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE 06808T 107
- --------------------------------------------------------------------------------
(Title of class of securities) (CUSIP number)
BAY HARBOUR MANAGEMENT L.C.
777 South Harbour Island Boulevard, Suite 270
Tampa, Florida 33602
(813) 272-1992
BAY HARBOUR PARTNERS, LTD.
c/o MeesPierson
Montague Sterling Center
East Bay Street
P.O. Box SS6238
Nassau, Bahamas
STEVEN A. VAN DYKE
DOUGLAS P. TEITELBAUM
885 Third Avenue, 34th Floor
New York, New York 10022
(212) 371-2211
- --------------------------------------------------------------------------------
(Name, address and telephone number of person authorized to receive notices and
communications)
March 23, 2000
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on the following pages)
(Page 1 of 19 Pages)
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NY2:\882784\10\$X5S10!.DOC\22345.0001
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 2 of 19
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- ---------------------- -------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON BAY HARBOUR MANAGEMENT L.C.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
- ---------------------- -------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
- ---------------------- -------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 5,549,701
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 41.5%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IA
- ---------------------- -------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 3 of 19
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1 NAME OF REPORTING PERSON TOWER INVESTMENT GROUP, INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
- ---------------------- -------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
- ---------------------- -------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 5,549,701
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 41.5%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: HC
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</TABLE>
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<TABLE>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 4 of 19
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- ---------------------- -------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON STEVEN A. VAN DYKE
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
- ---------------------- -------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States
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NUMBER OF 7 SOLE VOTING POWER: 5,000
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 5,549,701
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 5,000
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
5,554,701
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 41.6%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
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</TABLE>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 5 of 19
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1 NAME OF REPORTING PERSON DOUGLAS P. TEITELBAUM
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States
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NUMBER OF 7 SOLE VOTING POWER: 5,000
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 5,549,701
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 5,000
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 5,549,701
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
5,554,701
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 41.6%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 6 of 19
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1 NAME OF REPORTING PERSON TROPHY HUNTERS, INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
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NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 162,011
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 162,011
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
162,011
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.2%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
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</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 7 of 19
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1 NAME OF REPORTING PERSON TROPHY HUNTERS INVESTMENTS, LTD.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
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NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 162,011
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 162,011
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
162,011
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.2%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: PN
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</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 8 of 19
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1 NAME OF REPORTING PERSON BAY HARBOUR INVESTMENTS, INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
- ---------------------- -------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 6,627
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 6,627
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
6,627
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.05%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
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</TABLE>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 9 of 19
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1 NAME OF REPORTING PERSON BAY HARBOUR 98-1, LTD.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Florida, USA
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NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 6,627
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 6,627
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
6,627
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.05%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: PN
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</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 10 of 19
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1 NAME OF REPORTING PERSON BHB LLC
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
- ---------------------- -------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware, USA
- ---------------------- -------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 4,853,888
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 4,853,888
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
4,853,888
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
- ---------------------- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 36.5%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: OO
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</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C> <C>
CUSIP No. 06808T107 13D Page 11 of 19
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1 NAME OF REPORTING PERSON BAY HARBOUR PARTNERS, LTD.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
- ---------------------- -------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [X]
- ---------------------- -------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------- -------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------- -------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
- ---------------------- -------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Bahamas
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NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 14,572
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 14,572
- ---------------------- -------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
14,572
- ---------------------- -------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.1%
- ---------------------- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
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</TABLE>
<PAGE>
ITEM 1. SECURITY AND ISSUER
The title and class of equity security to which this Statement on
Schedule 13D relates is the common stock, par value $0.01 per share ("Common
Stock"), of Barneys New York, Inc., a Delaware corporation (the "Company"). The
address of the Company's principal executive offices is 575 Fifth Avenue, New
York, New York 10017.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by and on behalf of Bay Harbour
Management L.C. ("Bay Harbour"), Tower Investment Group, Inc. ("Tower"), Steven
A. Van Dyke ("Mr. Van Dyke"), Douglas P. Teitelbaum ("Mr. Teitelbaum"), Trophy
Hunters, Inc. ("Trophy"), Trophy Hunter Investments, Ltd. ("Trophy
Investments"), Bay Harbour Investments, Inc. ("Bay Harbour Investments"), Bay
Harbour 98-1, Ltd. ("Bay Harbour 98-1"), BHB LLC and Bay Harbour Partners, Ltd.
("Bay Harbour Partners"). The foregoing are referred to herein collectively as
the "Reporting Persons."
Bay Harbour Management L.C. Bay Harbour is a Florida limited company
and a registered investment adviser under the Investment Advisers Act of 1940,
as amended. The address of its principal place of business and office is 777
South Harbour Island Boulevard, Suite 270, Tampa, Florida 33602.
Tower Investment Group, Inc. Tower, a Florida corporation, is the
majority stockholder of Bay Harbour. The address of its principal place of
business and office is c/o Bay Harbour.
Steven A. Van Dyke. The business address of Mr. Van Dyke is c/o Bay
Harbour. Mr. Van Dyke is a principal of Bay Harbour. Mr. Van Dyke is a citizen
of the United States of America.
Douglas P. Teitelbaum. The business address of Mr. Teitelbaum is 885
Third Avenue, 34th Floor, New York, New York 10022. Mr. Teitelbaum is a
principal of Bay Harbour and is a citizen of the United States of America. Each
of Mr. Van Dyke and Mr. Teitelbaum is a shareholder, officer and director of Bay
Harbour, Tower, Bay Harbour Investments and Trophy.
Trophy Hunters, Inc. The principal business of Trophy, a Florida
corporation, is serving as the general partner of Trophy Hunter Investments,
Ltd. The address of its principal place of business and office is c/o Bay
Harbour.
Trophy Hunter Investments Ltd. Trophy Investments is a Florida limited
partnership principally involved in the business of investing in securities. The
address of its principal place of business and office is c/o Bay Harbour.
Bay Harbour Investments, Inc. The principal business of Bay Harbour
Investments, a Florida corporation, is serving as general partner of Bay Harbour
98-1. The address of its principal place of business and office is c/o Bay
Harbour.
Bay Harbour 98-1, Ltd. Bay Harbour 98-1 is a Florida limited
partnership principally involved in the business of investing in securities. The
address of its principal place of business and office is c/o Bay Harbour.
12
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BHB LLC is a limited liability company organized under the law of the
State of Delaware. The address of its principal place of business and office is
c/o Bay Harbour. Bay Harbour is the Manager of BHB LLC.
Bay Harbour Partners, Ltd. is a Bahamian corporation principally
involved in the business of investing in securities. The address of its
principal place of business and office is c/o MeesPierson, Montague Sterling
Centre, East Bay Street, P.O. Box SS6238, Nassau, Bahamas.
During the last five years, none of the Reporting Persons nor, to the
best of their knowledge, any of their officers and directors, has (i) been
convicted in a criminal proceeding or (ii) been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Shares of Common Stock were issued to Bay Harbour for its managed
accounts (x) in exchange for approximately $73,603,827 in certain allowed
general unsecured claims held by it against Barney's, Inc. ("Barneys") and
certain of its affiliates, (y) pursuant to Bay Harbour's exercise of rights to
subscribe for 3,380,474 shares of Common Stock at an exercise price of
$29,342,514, and (z) pursuant to Bay Harbour's exercise of an option to purchase
288,061 shares of Common Stock at an exercise price of $2,500,369, all pursuant
to Barneys' Second Amended Joint Plan of Reorganization, dated November 13,
1998, as supplemented and as confirmed on December 21, 1998 by the United States
Bankruptcy Court for the Southern District of New York (the "Plan"). In
addition, warrants (the "Warrants") to purchase 236,293 shares of Common Stock
at an exercise price of $8.68 per share were issued to Bay Harbour pursuant to
the Plan. The source of the funds used by Bay Harbour to purchase the securities
(including shares and Warrants purchased in the open market) were investment
accounts managed on a discretionary basis by Bay Harbour.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons acquired the shares of Common Stock for
investment purposes. The Reporting Persons may acquire additional securities of
the Company or dispose of securities of the Company at any time and from time to
time in the open market or otherwise.
Bay Harbour and Whippoorwill Associates, Inc. ("Whippoorwill") are
parties to a Stockholders Agreement, dated as of November 13, 1998 (the
"Stockholders Agreement"), which sets forth their agreement with respect to
certain matters relating to the shares of Common Stock held by them. Pursuant to
the Stockholders Agreement, each of Bay Harbour and Whippoorwill have agreed to
(i) restrict the transferability of such shares prior to January 28, 2000, (ii)
grant rights of first offer as well as tag along rights in the event of a
transfer of shares, (iii) grant the other the right to participate in an
acquisition of additional shares of Common Stock by either of them, and (iv)
give the other a right of first refusal to purchase shares of Common Stock which
either of them has requested the Company to register pursuant to the
Registration Rights Agreement referred to in Item 6 below. In addition, Bay
Harbour and Whippoorwill have agreed to take all actions necessary to elect the
three designees of each, one designee of Isetan Company Ltd., the chief
executive officer of the Company and three independent directors, to the Board
of Directors of the Company. The Stockholders Agreement also generally prohibits
13
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each of Bay Harbour and Whippoorwill from voting the shares of Common Stock held
by it in favor of amending the Company's Certificate of Incorporation or Bylaws
or a sale of the Company without the consent of the other. The number of shares
indicated as being beneficially owned by Bay Harbour does not include the shares
of Common Stock held by Whippoorwill which are the subject of the Stockholders
Agreement and with respect to which Bay Harbour disclaims beneficial ownership.
Pursuant to a stockholders agreement dated as of February 1, 2000, Bay
Harbour, Whippoorwill and Allen I. Questrom ("Mr. Questrom") have agreed to
provide each other certain co-sale rights in connection with any sales of their
Common Stock. Mr. Questrom also agreed to vote half of his shares as directed by
Bay Harbour and half as directed by Whippoorwill. As of March 23, 2000, Mr.
Questrom beneficially owned 804,458 shares, all pursuant to options.
Although the foregoing represents the range of activities presently
contemplated by the Reporting Persons with respect to the Company, it should be
noted that the possible activities of the Reporting Persons are subject to
change at any time. Except as set forth above, none of the Reporting Persons has
any present plans or proposals which relate to or would result in any of the
actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The responses of the Reporting Persons to Rows (11) through (13)
of the cover pages of this Schedule 13D are incorporated herein by reference. As
of March 23, 2000, the Reporting Persons beneficially owned the number of shares
of the Common Stock listed below, representing approximately the percentage of
the outstanding shares of Common Stock set forth opposite such number (the
outstanding shares of Common Stock, 13,076,144, being based on the number of
shares outstanding as of the close of business on January 29, 2000):
Name Number of Shares Percent of Class
- ---- ---------------- ----------------
Bay Harbour Management L.C. 5,549,701 (1) 41.5%
Tower Investment Group, Inc. 5,549,701 (1) 41.5%
Steven A. Van Dyke 5,554,701 (1) 41.6%
Douglas P. Teitelbaum 5,554,701 (1) 41.6%
Trophy Hunters, Inc. 162,011 (2)(3) 1.2%
Trophy Hunter Investments, Ltd. 162,011 (2)(3) 1.2%
Bay Harbour Investment, Inc. 6,627 (2)(4) 0.05%
Bay Harbour 98-1, Ltd. 6,627(2)(4) 0.05%
BHB LLC 4,853,888 (5) 36.5%
Bay Harbour Partners, Ltd. 14,572 (2)(6) 0.11%
- ---------------------
(1) Includes 286,549 shares of Common Stock issuable upon exercise of the
Warrants and, as to each of Messrs. Van Dyke and Teitelbaum, 5,000
shares issuable upon the exercise of options.
(2) Does not include any shares beneficially owned by BHB LLC, in which
they are members.
(3) Includes 32,743 shares of Common Stock issuable upon exercise of the
Warrants.
(4) Includes 1,287 shares of Common Stock issuable upon exercise of the
Warrants.
14
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(5) Includes 228,262 shares of Common Stock issuable upon exercise of the
Warrants.
(6) Includes 2,829 shares of Common Stock issuable upon exercise of the
Warrants.
For purposes of disclosing the number of shares beneficially owned by
each of the Reporting Persons, (A) Mr. Van Dyke and Mr. Teitelbaum, as
shareholders, officers and directors of Tower, may be deemed to beneficially own
all shares of the Common Stock that are owned beneficially by Tower and (B)
Tower, as the majority shareholder of Bay Harbour, may be deemed to own
beneficially (as that term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934) all shares of Common Stock that are beneficially owned by
Bay Harbour. Each of Mr. Van Dyke and Mr. Teitelbaum disclaim beneficial
ownership of such shares for all other purposes. The number of shares indicated
as being beneficially owned by Bay Harbour includes 402,229 shares of Common
Stock beneficially owned by Mr. Questrom pursuant to options which are the
subject of a stockholders agreement dated as of February 1, 2000, pursuant to
which Mr. Questrom agreed to vote such shares at the direction of Bay Harbour.
Each of Messrs. Teitelbaum and Van Dyke beneficially own 5,000 shares of Common
Stock upon exercise of options under the Company's Stock Option Plan for
Non-Employee Directors.
Bay Harbour Investments, as the general partner of Bay Harbour 98-1,
may be deemed to own beneficially (as that term is defined in Rule 13d-3 under
the Securities Exchange Act of 1934) shares of Common Stock of which Bay Harbour
98-1. may be deemed to possess direct beneficial ownership. Each of Mr. Van Dyke
and Mr. Teitelbaum, as shareholders, officers and directors of Bay Harbour
Investments, Bay Harbour and Tower may be deemed to beneficially own shares of
Common Stock which Bay Harbour 98-1 may be deemed to beneficially own. Each of
Mr. Van Dyke and Mr. Teitelbaum disclaims beneficial ownership of such shares
for all other purposes.
Trophy, as the general partner of Trophy Investments, may be deemed to
own beneficially (as that term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934) shares of Common Stock of which Trophy Investments may be
deemed to possess direct beneficial ownership. Each of Mr. Van Dyke and Mr.
Teitelbaum, as shareholders, officers and directors of Trophy, Bay Harbour and
Tower may be deemed to beneficially own shares of Common Stock which Trophy
Investments may be deemed to beneficially own. Each of Mr. Van Dyke and Mr.
Teitelbaum disclaims beneficial ownership of such shares for all other purposes.
Bay Harbour, as the investment advisor of Bay Harbour Partners, may be
deemed to own beneficially (as that term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934) shares of Common Stock of which Bay Harbour
Partners may be deemed to possess direct beneficial ownership. Each of Mr. Van
Dyke and Mr. Teitelbaum, as shareholders, officers and directors of Bay Harbour
and Tower may be deemed to beneficially own shares of Common Stock which Bay
Harbour Partners may be deemed to beneficially own. Each of Mr. Van Dyke and Mr.
Teitelbaum disclaims beneficial ownership of such shares for all other purposes.
Except as disclosed in this Item 5(a), none of the Reporting Persons,
nor, to the best of their knowledge, any of their executive officers and
directors, beneficially owns any securities of the Company or presently has a
right to acquire any securities of the Company.
15
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(b) The responses of the Reporting Persons to (i) Rows (7) through
(10) of the cover pages of this statement on Schedule 13D and (ii) Item 5(a)
hereof are incorporated herein by reference.
(c) Except for the transaction described in Item 4 hereof, none of
the Reporting Persons has effected any transactions in the Common Stock of the
Company during the past 60 days.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the shares of Common Stock, except the dividends from, or proceeds from the sale
of shares of Common Stock in each respective account managed by Bay Harbour and
the investment partnerships for which Bay Harbour acts as an investment advisor,
will be delivered into each such respective account or to such investment
partnership, as the case may be. Other than as described in Item 5 hereof, no
such individual account, investment partnership or limited partner thereof has
an interest in shares of Common Stock reported in this Schedule 13D representing
more than five percent of the Common Stock outstanding.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Bay Harbour, Whippoorwill and the Company are parties to a Registration
Rights Agreement dated as of January 28, 1999 (the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, each of Bay Harbour
and Whippoorwill may make a written request of the Company for registration with
the Securities and Exchange Commission under and in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), of
all or part of their registrable securities, which include the Common Stock (a
"Demand Registration"). Each of Bay Harbour and Whippoorwill shall be entitled
to two (2) Demand Registrations and unlimited piggyback and short form
registrations.
In addition, the response to Item 4 hereof is incorporated herein by
reference.
Except as described above, there are no contracts, arrangements,
understandings or relationships with respect to any securities of the Company
(a) among the Reporting Persons and, to the best of their knowledge, any of the
other persons identified pursuant to Item 2 above and (b) between (i) the
Reporting Persons and, to the best of their knowledge, any of the persons
identified pursuant to Item 2 above and (ii) any other person, other than the
agreements filed hereof as Exhibits 1 and 2.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT 1 Stockholders Agreement, dated as of February 1, 2000, among Bay
Harbour Management L.C., Whippoorwill Associates, Inc. and Allen
Questrom.
EXHIBIT 2 Restated Stockholders Agreement, effective as of November 13,
1998, between Bay Harbour Management L.C. and Whippoorwill
Associates, Inc.
EXHIBIT 3 Registration Rights Agreement, dated as of January 28, 1999, by
and among Barneys New York, Inc. and the Holders party thereto.
16
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EXHIBIT 4 Amended No. 1 to Registration Rights Agreement, dated February
1, 2000.
EXHIBIT 5 Joint Filing Agreement, dated March 27, 2000, by and among Bay
Harbour Management L.C., Tower Investment Group, Inc., Steven A.
Van Dyke, Douglas P. Teitelbaum, Bay Harbour 98-1, Ltd., Trophy
Hunter Investments, Ltd., Bay Harbour Investments, Ltd., Trophy
Hunters, Inc., BHB LLC and Bay Harbour Partners, Ltd.
17
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief of
the undersigned, the undersigned certifies that the information set forth in
this statement is true, complete and correct.
Dated as of: March 27, 2000 TOWER INVESTMENT GROUP, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: President
BAY HARBOUR MANAGEMENT L.C.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: President
/s/ Steven A. Van Dyke
----------------------
STEVEN A. VAN DYKE
/s/ Douglas P. Teitelbaum
-------------------------
DOUGLAS P. TEITELBAUM
TROPHY HUNTER INVESTMENTS, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BAY HARBOUR INVESTMENTS, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
18
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BAY HARBOUR 98-1, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
TROPHY HUNTERS, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BAY HARBOUR PARTNERS, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BHB LLC
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
19
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EXHIBIT INDEX
-------------
EXHIBIT NO. DESCRIPTION
- ----------- -----------
EXHIBIT 1 Stockholders Agreement, dated as of February 1, 2000, among Bay
Harbour Management L.C., Whippoorwill Associates, Inc. and Allen
Questrom.
EXHIBIT 2 Restated Stockholders Agreement, effective as of November 13,
1998, between Bay Harbour Management L.C. and Whippoorwill
Associates, Inc.
EXHIBIT 3 Registration Rights Agreement, dated as of January 28, 1999, by
and among Barneys New York, Inc. and the Holders party thereto.
EXHIBIT 4 Amended No. 1 to Registration Rights Agreement, dated February
1, 2000.
EXHIBIT 5 Joint Filing Agreement, dated March 27, 2000, by and among Bay
Harbour Management L.C., Tower Investment Group, Inc., Steven A.
Van Dyke, Douglas P. Teitelbaum, Bay Harbour 98-1, Ltd., Trophy
Hunter Investments, Ltd., Bay Harbour Investments, Ltd., Trophy
Hunters, Inc., BHB LLC and Bay Harbour Partners, Ltd.
EXHIBIT 1
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of February 1, 2000 (this
"Agreement"), among Bay Harbour Management L.C. for its managed accounts ("Bay
Harbour"), Whippoorwill Associates, Inc. as agent and/or general partner for its
discretionary accounts and as investment advisor to Whippoorwill/Barney's
Obligations Trust - 1996 ("Whippoorwill" and, together with Bay Harbour, the
"Initial Stockholders"), and Allen Questrom (collectively with his heirs and
testamentary assigns, "Questrom", and Questrom together with the Initial
Stockholders being referred to as the "Stockholders").
W I T N E S S E T H :
WHEREAS, each of the Initial Stockholders presently owns shares of
Common Stock, $.01 par value (the "Common Stock"), of Barneys New York, Inc., a
Delaware corporation ("Barneys"); and
WHEREAS, pursuant to an employment agreement (the "Employment
Agreement") of even date herewith between Barneys and Questrom, Questrom has
been and will be granted options to purchase shares of Common Stock; and
WHEREAS, the Stockholders wish to provide for certain arrangements with
respect to the shares of Common Stock now owned or to be acquired in the future
by any of them;
NOW, THEREFORE, in consideration of the agreements, premises and mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Disposition of Common Stock.
---------------------------
(a) Restriction on Transfer of Shares. Each Initial Stockholder
agrees that, except in a transaction (or transactions) permitted by the first
sentence of Section 1(b) below or contemplated by Section 2 below, such Initial
Stockholder shall not, during the term of this Agreement, without the written
consent of Questrom, either directly or indirectly, transfer, sell, assign,
mortgage, hypothecate, pledge, create a security interest in or lien upon,
encumber, donate, contribute, place in trust (including a voting trust), or
otherwise voluntarily or involuntarily dispose of (each, a "Transfer") any
shares of Common Stock held by such Stockholder.
(b) Permitted Dispositions. Each Initial Stockholder shall, without
regard to the provisions of Sections 2 and 3 hereof, be entitled to, upon not
less than 5 Business Days' written notice to each other Stockholder, (i)
directly or indirectly Transfer all or any portion of its shares of Common Stock
to any Affiliate of such Initial Stockholder or to the other Initial Stockholder
or any of its affiliates, (ii) in connection with the liquidation, partial
liquidation,
NY2:\449949\07\9N6L07!.DOC\21645.0001
<PAGE>
winding up or termination of any account for which it is agent, general partner
or investment advisor in accordance with the terms of such account or pursuant
to a direction by the holder or holders of such account, either (A) directly or
indirectly Transfer all the shares of Common Stock allocable to such account to
the beneficiaries thereof, or (B) sell any or all the shares of Common Stock
allocable to such account to a third party, and (iii) in connection with a
request for redemption or partial redemption by any account (or the holder or
holders of such account) for which it is agent, general partner or investment
advisor, either (A) directly or indirectly Transfer that portion of the shares
of Common Stock allocable to such account to the beneficiaries thereof, or (B)
sell any or all the shares of Common Stock allocable to such account to a third
party, in each case, to the extent necessary to satisfy such request; provided,
however, that any redemption made pursuant to clause (iii) may only be made to
the extent such Initial Stockholder is unable to satisfy such request for
redemption by Transferring securities other than shares of Common Stock, using
commercially reasonable efforts consistent with such Initial Stockholder's
investment diversification policies consistently applied in good faith; and
provided further, however, that any Transfer or sale of shares of Common Stock
pursuant to clauses (ii) or (iii) above (other than distributions in kind
pursuant to clauses (ii)(A) or (iii)(A) above) shall not be made without
compliance with Sections 2 or 3 hereof to the extent any such Transfer or sale
would result in a Change of Control of Barneys, as such term is defined in the
Employment Agreement. No distributions in kind pursuant to clauses (ii)(A) or
(iii)(A) above may be made to any person or entity who, as a result of such
distribution in kind, would (x) cause the Stockholders and their respective
affiliates to beneficially own, in the aggregate, less than 40% of the Voting
Stock (as defined in the Employment Agreement) of the Company, and (y) become
the beneficial owner of more than the Voting Stock of the Company beneficially
owned, directly or indirectly, by the Stockholders and their respective
affiliates. As used in this Agreement, the terms "beneficially own" and
"beneficial owner" are used as defined in Rule 13d-3 of the Securities Exchange
Act of 1934, as amended. In addition, each Initial Stockholder shall be entitled
to, without regard to the provisions of Section 2 hereof, (A) sell or offer to
sell all or any portion of its shares of Common Stock pursuant to a public
offering (a "Public Offering") registered under the Securities Act of 1933, as
amended (the "Securities Act"), and (B) publicly sell or offer to sell all or
any portion of its shares of Common Stock pursuant to Rule 144 of the Securities
Act (other than paragraph (h) thereof) provided that Barneys is a reporting
company pursuant to the Securities Exchange Act of 1934, as amended. As used in
this Agreement, the term (i) "Affiliate" means, with respect to any person or
entity, any other person or entity that, within the meaning of Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended, "controls,"
is "controlled by" or is under "common control with" such person or entity, and
(ii) "Business Day" means any day other than a Saturday, a Sunday, or any other
day on which banking institutions in New York City are required or authorized to
close by law or executive order.
(c) Condition Precedent to Certain Permitted Dispositions. In the event
of any disposition pursuant to Section 1(b)(i) hereof, the transferee (and all
subsequent transferees permitted pursuant to Section 1(b)(i)) shall be bound and
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<PAGE>
obligated by, and shall be entitled to the rights and benefits afforded to the
Stockholders under the terms and provisions of, this Agreement. As a condition
precedent to any disposition by any Initial Stockholder of shares of Common
Stock permitted pursuant to Section 1(b)(i) above, each purchaser, transferee or
donee (other than a Stockholder who is already a party hereto) shall agree in
writing to be bound by all of the provisions and conditions of this Agreement
applicable to the transferor and shall become a Stockholder hereunder, and no
such purchaser, transferee or donee shall be permitted to effect any transfer,
sale or exchange of shares of Common Stock which the Stockholders are not
permitted to make under this Agreement.
2. Tag-Along Right.
---------------
(a) No Initial Stockholder shall Transfer any Common Stock, in a
single transaction or related series of transactions, to any third party unless
the Transfer is a bona fide sale to a party which is not an Affiliate of Barneys
or any Stockholder which was negotiated on an arms-length basis, and the terms
and conditions of such sale, (the "Third Party Disposition") to such third party
shall contain an offer to Questrom to include in such Third Party Disposition
such number of shares of Common Stock as is determined in accordance with
Section 2(b) below. At least 5 Business Days prior to effecting any Third Party
Disposition, such Initial Stockholder (the "Selling Stockholder") shall promptly
cause the terms and conditions of the Third Party Disposition to be reduced to a
reasonably detailed writing (which writing shall identify the third party
purchaser and shall include the offer to Questrom to purchase or otherwise
acquire its shares of Common Stock, according to the terms and subject to the
conditions of this Section 2), and shall deliver, or cause the third party to
deliver, written notice (the "Notice") of the terms of such Third Party
Disposition to Questrom. The Notice shall be accompanied by a true and correct
copy of the agreement, if any, embodying the terms and conditions of the
proposed Third Party Disposition or such written summary thereof if there is no
agreement. At any time after receipt of the Notice (but in no event later than 5
Business Days after receipt), Questrom may accept the offer included in the
Notice for up to such number of his shares of Common Stock, as determined in
accordance with the provisions of Section 2(b) below, by furnishing irrevocable
written notice of such acceptance to the Selling Stockholder and to the third
party. It is understood, however, that Questrom shall not be required to sell
his shares if the Third Party Disposition is not consummated by the Selling
Stockholder. If either Initial Stockholder is considering a possible Third Party
Disposition pursuant to which Questrom would have rights under this Section 2,
such Initial Stockholder agrees that, as soon as reasonably possible after its
receipt of an offer or proposal (other than ordinary broker inquiries) relating
to such potential Third Party Disposition, it will forward information relating
thereto to Questrom. The Initial Stockholders further agree to discuss with and,
to the extent in writing, provide copies of their assessments and evaluations of
such potential Third Party Disposition to Questrom. Questrom agrees that he will
not effectuate any sale of his shares of Common Stock to such potential
purchaser other than in accordance with the provisions of this Section 2, unless
the Initial Stockholders elect not to proceed with such Third Party Disposition.
3
<PAGE>
(b) In the event that Questrom elects to accept the offer included in
the Notice described in Section 2(a) above, Questrom shall have the right to
sell, transfer or otherwise dispose of such number of his shares of Common Stock
pursuant to, and upon consummation of, the Third Party Disposition which is
equal to the product of (X) the total number of shares of Common Stock owned by
him and (Y) a fraction, the numerator of which shall equal the total number of
shares of Common Stock to be sold by the Initial Stockholders to the third
party, and the denominator of which shall equal the total number of shares of
Common Stock owned by all the Initial Stockholders. If the third party purchaser
is not willing to purchase such additional shares, the number of shares to be
sold by the Selling Stockholder and Questrom shall be proportionately reduced.
(c) The purchase of shares of Common Stock pursuant to this Section 2
shall be made on the same terms (including, without limitation, the per share
consideration and method of payment, and the date of sale, transfer or other
disposition), and subject to the same conditions, if any, as are provided to the
Selling Stockholder and stated in the Notice.
(d) Upon the consummation of the disposition of shares of Common
Stock to the third party pursuant to the Third Party Disposition, the Selling
Stockholder shall (i) cause the third party to remit directly to Questrom the
sales price of its shares of Common Stock disposed of pursuant thereto, and (ii)
furnish such other evidence of the completion and time of completion of such
disposition and the terms thereof as may reasonably be requested by Questrom.
(e) If Questrom has not delivered to the Selling Stockholder and to
the third party written notice of his acceptance of the offer contained in the
Notice within 5 Business Days after the receipt of such Notice, he shall be
deemed to have waived any and all rights pursuant to this Section 2 with respect
to the disposition of his shares of Common Stock described in the Notice, and
the Selling Stockholder shall have 30 days (calculated from the first day next
succeeding the expiration of the 5 Business Day acceptance period described
above), in which to complete the disposition of the aggregate amount of shares
of Common Stock described in the Notice to the third party identified in the
Notice, on terms not more favorable to the Selling Stockholder than those which
were set forth in the Notice. If Questrom has delivered irrevocable written
notice of acceptance as described in the preceding sentence and, if after 30
days following receipt of the Notice, the Selling Stockholder and the third
party shall not have completed the disposition of shares of Common Stock to be
sold in connection therewith in accordance with the terms of the Third Party
Disposition, all the restrictions on the disposition of shares of Common Stock
contained in this Section 2 shall again be in force and effect and Questrom
shall no longer be required to effectuate such sale.
3. Drag-Along Sales.
----------------
(a) If the Initial Stockholders elect to Transfer at least
seventy-five percent (75%) of their shares of Common Stock in a bona-fide
arm's-length transaction to any third party which is not an Affiliate of Barneys
or any Stockholder (the "Purchaser") other than pursuant to Section 1(b) hereof,
4
<PAGE>
then, at the election of both of the Initial Stockholders, Questrom shall be
required to sell (a "Drag Along Sale") that number of shares of Common Stock
equal to the product of (x) a fraction, the numerator of which equals the number
of shares of Common Stock to be Transferred by the Initial Stockholders pursuant
to this Section 3(a), and the denominator of which equals the total number of
shares owned by the Initial Stockholders at the time of such election, and (y)
the number of shares of Common Stock then held by Questrom ("Drag Along
Shares"), for the same consideration, and on the same terms and conditions, upon
which the Initial Stockholders propose to dispose of their shares of Common
Stock; provided, however, that Questrom shall have no obligation pursuant to
this Section 3 unless (x) upon the consummation of the Drag Along Sale, Questrom
shall receive the same forms and amounts of consideration per share as the
Initial Stockholders and their Affiliates, or if any Initial Stockholder or any
of their Affiliates are given an option as to the form and amount of
consideration to be received per share, Questrom shall be given the same option
and (y) no Initial Stockholder or any of their Affiliates shall receive any
other form of disproportionate benefit in connection with such Drag Along Sale.
If either Initial Stockholder is considering a possible Transfer pursuant to
which Questrom would have a Drag Along Sale obligation under this Section 3,
such Initial Stockholder agrees that, as soon as reasonably possible after its
receipt of an offer or proposal (other than ordinary broker inquiries), relating
to such potential Transfer, it will forward information relating thereto to
Questrom. The Initial Stockholders further agree to discuss with and, to the
extent in writing, provide copies of their assessments and evaluations of such
potential Transfer to Questrom. Questrom agrees that he will not effectuate any
sale of his shares of Common Stock to such potential purchaser other than in
accordance with the provisions of this Section 3, unless the Initial
Stockholders elect not to proceed with such Transfer.
(b) The Initial Stockholders shall deliver to Questrom written notice
(the "Drag Along Notice") of any sale to be made pursuant to Section 3(a), which
notice shall set forth the consideration to be paid by the Purchaser for each
share of Common Stock, the number of shares of Common Stock to be Transferred by
each Initial Stockholder, and the other terms and conditions, if any, of such
transaction. Within five (5) Business Days after the date of such notice,
Questrom shall promptly deliver to the Initial Stockholders a limited
power-of-attorney authorizing the Initial Stockholders to dispose of such Drag
Along Shares to the Purchaser and to execute all other documents required to be
executed in connection with such transaction. Pending consummation of the Drag
Along Sale, the Initial Stockholders shall promptly notify Questrom of any
changes in the proposed timing for the Drag Along Sale and any other material
developments in connection therewith.
(c) If, within thirty (30) days after receipt of the Drag Along
Notice by Questrom, no sale of the shares of Common Stock owned by the Initial
Stockholders in accordance with the provisions of this Section 3 shall have been
completed, (i) the Initial Stockholders shall promptly return to Questrom any
certificates or documents previously delivered by Questrom to the Initial
5
<PAGE>
Stockholders, and (ii) all of the provisions of this Section 3 shall again be in
full force and effect.
(d) Simultaneously with the consummation of the sale of shares of
Common Stock pursuant to this Section 3, the Initial Stockholders shall cause
the Purchaser to remit directly to Questrom the consideration with respect to
the Drag Along Shares and shall furnish such other evidence of the completion
and time of completion of such sale and the terms and conditions, if any,
thereof as may reasonably be requested by Questrom. The Initial Stockholders
shall be primarily liable to Questrom for the full amount of such consideration
to the extent that such consideration is received by the Initial Stockholders.
4. Voting. On each matter submitted to a vote of the stockholders of
Barneys, Questrom agrees that he shall vote, direct the vote of, or furnish a
consent with respect to, 50% of all shares of Common Stock owned by him in the
manner directed by Bay Harbour, and 50% of all shares of Common Stock owned by
him in the manner directed by Whippoorwill. Such direction shall in each case be
given by Bay Harbour or Whippoorwill, as the case may be, by the delivery of
notice to Questrom in advance of the vote on each such matter. The provisions of
this Section 4 shall terminate on the earlier of (i) the later of January 31,
2003 or the expiration date of the Stockholders Agreement, dated as of November
13, 1998, between Bay Harbour and Whippoorwill, as the same may be amended,
restated, supplemented, modified or extended from time to time (the "Initial
Stockholders Agreement"), and (ii) a Change of Control (as such term is defined
in the Employment Agreement).
5. Equitable Relief. It is hereby acknowledged that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed fully by the parties hereto in accordance with the terms specified
herein, and that monetary damages are an inadequate remedy for breach of this
Agreement because of the difficulty of ascertaining and quantifying the amount
of damage that will be suffered by the parties relying hereon in the event that
the undertakings and provisions contained in this Agreement were breached or
violated. Accordingly, each party hereto hereby agrees that each other party
hereto shall be entitled to an injunction or injunctions to restrain, enjoin and
prevent breaches of the undertakings and provisions hereof and to enforce
specifically the undertakings and provisions hereof in any court of the United
States or any state having jurisdiction over the matter; it being understood
that such remedies shall be in addition to, and not in lieu of, any other rights
and remedies available at law or in equity.
6. Miscellaneous.
-------------
(a) Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be made in
writing by personal-delivery, first-class mail (registered or certified, with
return receipt requested), telecopier (with "answer back" confirmation), or
overnight air courier guaranteeing next day delivery, to the address of such
party appearing under its or his name on Annex I hereto (or to such other
6
<PAGE>
address as may be designated in writing by any party in accordance with this
Section 6(a)). Such notices or communications shall be effective and deemed
given upon delivery to said address.
(b) Complete Agreement; Amendment. This Agreement constitutes the
complete understanding of the parties with respect to its subject matter and
supersedes any other agreement or understanding relating thereto, other than the
Initial Stockholders Agreement. No amendment, change or modification of this
Agreement shall be valid, binding or enforceable, unless the same shall be in
writing and signed by each of the Stockholders.
(c) Termination. Other than as provided in Section 4 hereof, this
Agreement may be terminated (i) at any time by an instrument in writing signed
by each of the Stockholders, or (ii) by any Stockholder on the date on which the
Initial Stockholders, together with their Affiliates, hold, in the aggregate,
less than 10% of the Common Stock then outstanding.
(d) Waiver. No failure or delay on the part of any Stockholder in
exercising any right, power or privilege hereunder, and no course of dealing
among the Stockholders, shall operate as a waiver thereof nor shall any single
or partial exercise of any right, power or privilege hereunder preclude the
simultaneous or later exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights and remedies which any Stockholder would otherwise have.
(e) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
(f) Governing Law; Waivers. 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 federal or New York State courts located 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 6(a) hereof. The parties hereto waive all right to trial
by jury in any action or proceeding to enforce or defend any rights hereunder.
(g) Benefit and Binding Effect. All of the terms and provisions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns including any permitted
transferee of their shares of Common Stock pursuant to Section 1(b)(i) hereof.
Notwithstanding anything to the contrary contained herein, none of
Whippoorwill's rights or obligations hereunder shall apply with respect to any
account which is in the process of liquidating, winding up or terminating, which
accounts own in the aggregate not more than approximately $4,600,000 in Common
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Stock. References herein to a Stockholder shall include such Stockholder and any
of its successors and assigns pursuant hereto.
(h) Severability. Whenever 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 is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(i) After-Acquired Shares. All of the provisions of this Agreement
shall apply to all of the shares of capital stock of Barneys now owned either
directly or indirectly or which may be issued to or acquired by a Stockholder
either directly or indirectly in consequence of any additional issuance
(including, without limitation, by exercise of a right, option or warrant),
purchase, exchange, conversion or reclassification of stock, corporate
reorganization, or any other form of recapitalization, consolidation, merger,
stock split or stock dividend, or which are acquired either directly or
indirectly by a Stockholder in any other manner and for the purposes hereof the
term "Common Stock" shall include any and all such capital stock.
8
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
BAY HARBOUR MANAGEMENT L.C., for its Managed Accounts
By: /s/ Douglas Teitelbaum
-----------------------------------
Name: Douglas Teitelbaum
Title: Principal and Portfolio
Manager
WHIPPOORWILL ASSOCIATES, INC., as agent and/or
general partner for its discretionary accounts and as
investment advisor to Whippoorwill/Barney's
Obligations Trust - 1996
By: /s/ David Strumwasser
-----------------------------------
Name: David Strumwasser
Title: Managing Director
/s/ Allen Questrom
-----------------------------------
ALLEN QUESTROM
9
<PAGE>
ANNEX I
-------
Stockholders
- ------------
If to Bay Harbour, to it at the following address:
Bay Harbour Management L.C.
885 Third Avenue, 34th Floor
New York, New York 10022
Attention: Douglas P. Teitelbaum
Telecopier: (212) 371-7497
Telephone Confirmation: (212) 371-2211
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Ted S. Waksman, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8000
If to Whippoorwill, to it at the following address:
Whippoorwill Associates, Inc.
11 Martine Avenue
White Plains, New York 10606
Attention: David A. Strumwasser
Telecopier: (914) 683-1242
Telephone Confirmation: (914) 683-1002
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Ted S. Waksman, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8000
10
<PAGE>
If to Questrom, to him at the following address:
Allen Questrom
200 East 69th Street
Apartment 43A
New York, New York 10021
Telecopier: (212) 582-8364
Telephone Confirmation: (212) 628-2848
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Roger C. Siske, Esq.
Telecopier: (312) 876-7934
Telephone Confirmation: (312) 876-8000
or to such other address as any of the parties hereto shall have specified by
notice in writing to the others.
11
EXHIBIT 2
RESTATED STOCKHOLDERS AGREEMENT
RESTATED STOCKHOLDERS AGREEMENT, effective as of November 13, 1998
(this "Agreement"), between Bay Harbour Management L.C. for its managed accounts
("Bay Harbour") and Whippoorwill Associates, Inc. as agent and/or general
partner for its discretionary accounts ("Whippoorwill" and, together with Bay
Harbour, the "Stockholders").
W I T N E S S E T H :
WHEREAS, Barneys New York, Inc., a to-be-formed Delaware corporation
("Barneys"), will be, upon effectiveness of the Plan referred to below,
authorized to issue shares of common stock, $.01 par value (the "Common Stock"),
in accordance with the Second Amended Joint Plan of Reorganization for Barney's,
Inc. dated as of November 13, 1998 and filed with the United States Bankruptcy
Court for the Southern District of New York (the "Bankruptcy Court"), on
November 13, 1998 (the "Plan;" except as otherwise provided herein, terms
defined in the Plan are used herein as so defined); and
WHEREAS, each of Bay Harbour and Whippoorwill presently own or hold
beneficial interests in General Unsecured Claims against the Debtors ("Claims");
and
WHEREAS, pursuant to the Plan, it is contemplated that each of Bay
Harbour and Whippoorwill will be issued shares of Common Stock in exchange for
their Claims; and
WHEREAS, Bay Harbour and Whippoorwill wish to provide for certain
arrangements with respect to the shares of Common Stock to be acquired in the
future by either of them;
NOW, THEREFORE, in consideration of the agreements, premises and mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Effectiveness; Disposition of Shares.
-------------------------------------
(a) Effectiveness. Except as set forth in the immediately following
sentence, this Agreement shall not become effective until the Effective Date.
Notwithstanding the immediately preceding sentence, each Stockholder agrees
that, during the period commencing on the date hereof and ending on the first to
occur of (i) the Effective Date, (ii) January 29, 1999 (or such later date to
which the condition precedent set forth in Section 32.2(l) of the Plan is
extended), or (iii) the withdrawal by them of the Plan, it will not, either
directly or indirectly, acquire or sell or otherwise transfer any Claims without
the prior written consent of the other Stockholder, except for sales or other
NY2:\884043\01\$Y4R02!.DOC\21645.0001
<PAGE>
transfers of any Claims in connection with the liquidation, partial liquidation,
winding up or termination of any account for which a Stockholder is agent,
general partner or investment advisor in accordance with the terms of such
account or pursuant to a direction by the holder or holders of such account.
(b) Restriction on Transfer of Shares. Each Stockholder agrees that,
except in a transaction (or transactions) permitted by the first sentence of
Section 1(c) below, (i) for a period beginning on the Effective Date and ending
on the first anniversary of the Effective Date, such Stockholder shall not,
without the written consent of each other Stockholder, either directly or
indirectly, transfer, sell, assign, mortgage, hypothecate, pledge, create a
security interest in or lien upon, encumber, donate, contribute, place in trust
(including a voting trust), or otherwise voluntarily or involuntarily dispose of
(each, a "Transfer") any shares of Common Stock held by such Stockholder, and
(ii) after such one year period, except in a transaction (or transactions)
contemplated by Sections 2, 3 or 9 below, such Stockholder shall not during the
term of this Agreement either directly or indirectly, Transfer any shares of
Common Stock held by such Stockholder. In addition, each Stockholder agrees to
promptly notify each other Stockholder upon commencement by it of discussions
with an underwriter regarding the Transfer by such Stockholder of the shares of
Common Stock held by it.
(i) Permitted Dispositions. Each Stockholder shall, without regard to
the provisions of Sections 2, 3 and 9 hereof, be entitled to, upon not less than
5 Business Days' written notice to each other Stockholder, (i) directly or
indirectly Transfer all or any portion of its shares of Common Stock to any
Affiliate of such Stockholder or to any other Stockholder, (ii) in connection
with the liquidation, partial liquidation, winding up or termination of any
account for which it is agent, general partner or investment advisor in
accordance with the terms of such account or pursuant to a direction by the
holder or holders of such account, either (A) directly or indirectly Transfer
all the shares of Common Stock allocable to such account to the beneficiaries
thereof or, (B) subject to the provisions of Section 2 below, sell any or all
the shares of Common Stock allocable to such account to a third party, and (iii)
in connection with a request for redemption or partial redemption by any account
(or the holder or holders of such account) for which it is agent, general
partner or investment advisor, either (A) directly or indirectly Transfer that
portion of the shares of Common Stock allocable to such account to the
beneficiaries thereof or, (B) subject to the provisions of Section 2 below, sell
any or all the shares of Common Stock allocable to such account to a third
party, in each case, to the extent necessary to satisfy such request; provided,
however, that any redemption made pursuant to clause (iii) may only be made to
the extent such Stockholder is unable to satisfy such request for redemption by
Transferring securities other than shares of Common Stock, using commercially
reasonable efforts consistent with such Stockholder's investment diversification
policies consistently applied in good faith. In addition, each Stockholder shall
be entitled to (A) without regard to the provisions of Sections 2 or 3 hereof
(but subject to the provisions of Section 9 hereof), sell or offer to sell all
or any portion of its shares of Common Stock pursuant to a public offering (a
"Public Offering") registered under the Securities Act of 1933, as amended (the
2
<PAGE>
"Securities Act"), and (B) without regard to the provisions of Sections 3 or 9
hereof, publicly sell or offer to sell all or any portion of its shares of
Common Stock pursuant to Rule 144 of the Securities Act (other than paragraph
(h) thereof) provided that Barneys is a reporting company pursuant to the
Securities Exchange Act of 1934, as amended.
(c) Condition Precedent to Certain Permitted Dispositions. In the
event of any disposition pursuant to Section 1(c)(i) hereof, the transferee (and
all subsequent transferees permitted pursuant to Section 1(c)(i)) shall be bound
and obligated by, and shall be entitled to the rights and benefits afforded to
the Stockholders under the terms and provisions of, this Agreement. As a
condition precedent to any disposition by any Stockholder of shares of Common
Stock permitted pursuant to Section 1(c)(i) above, each purchaser, transferee or
donee (other than an Stockholder who is already a party hereto) shall agree in
writing to be bound by all of the provisions and conditions of this Agreement
applicable to the transferor and shall become a Stockholder hereunder, and no
such purchaser, transferee or donee shall be permitted to effect any transfer,
sale or exchange of shares of Common Stock which the Stockholders are not
permitted to make under this Agreement.
2. Right of First Offer Regarding Common Shares.
--------------------------------------------
(a) Sale by Stockholders. If, at any time, a Stockholder (a "Seller")
proposes to Transfer to a third party (other than pursuant to an underwritten
Public Offering on a firm commitment basis (a "Firm Commitment Public
Offering"), which is governed by Section 9 below) any Common Stock in one or
more transactions, the Seller shall provide written notice of the proposed
Transfer to each other Stockholder other than an Affiliate of the Seller (each,
an "Offeree"). Following receipt of such notice, each Offeree shall have an
exclusive 5 Business Day period during which to make an offer to acquire such
Offeree's pro rata portion (based on the number of shares owned by such
Offerees) of the Common Stock proposed to be Transferred or in such other
proportions as they may agree. If either (i) the Offerees do not make offers
for, collectively, all the Common Stock proposed to be Transferred, or (ii) the
price offered by the third party purchaser is at least 10% greater than the
offers made by the Offerees for, collectively, all the Common Stock proposed to
be Transferred, then the Seller may thereafter Transfer the Common Stock
proposed to be Transferred. If the price offered by the third party purchaser is
greater (but less than 10% greater) than the offers made by the Offerees for,
collectively, all the Common Stock proposed to be Transferred, then, following
receipt of a second notice provided pursuant to this Section 2(a) (which notice
shall include the identity (if known) of, and the price offered by, the third
party purchaser), each Offeree shall have an additional exclusive 3 Business Day
period during which to make an offer to acquire such Offeree's pro rata portion
(based on the number of shares of Common Stock owned by each Offeree) of the
Common Stock proposed to be Transferred or in such other proportions as they may
agree at such third party price. If the price offered by the third party
purchaser is equal to or less than the offers made by the Offerees for,
collectively, all the Common Stock proposed to be Transferred, then the Seller
shall sell such shares to the Offerees. If the Seller does not effectuate such
Transfer within 90 days in the case of a Transfer pursuant to a Public Offering
or within 45 days in the case of a Transfer other than pursuant to a Public
3
<PAGE>
Offering, in each case after the expiration of the 5 Business Day period, or the
3 Business Day period, as the case may be, referred to above, the Seller must
again comply with this Section 2(a) prior to effectuating any such Transfer.
(b) Closing. (i) If after giving effect to the provisions of this
Section 2, the Offerees shall have agreed to purchase all (and not less than
all) of the Seller's Common Stock proposed to be Transferred, each Offeree shall
give written notice containing its offer within such 5 Business Day period, or
such 3 Business Day period, as the case may be (the "Purchase Notice") to the
Seller and the consummation of such purchases shall take place pursuant to this
Section 2(b), unless the Seller elects not to consummate such transaction by
written notice to the Offerees. Such election by Seller not to consummate may be
made at any time prior to a sale.
(ii) Unless otherwise agreed to by the parties, the consummation of
any disposition of the Seller's Common Stock (the "Closing") to each Offeree
pursuant to this Section 2 shall take place at Weil, Gotshal & Manges LLP, 767
Fifth Avenue, New York, New York 10153 within 3 Business Days after the date of
the Purchase Notice. At the Closing, each Offeree shall deliver a certified or
bank cashier's check or payment by wire transfer of federal funds in the
appropriate amount to the Seller against the simultaneous delivery of
certificates representing the Common Stock being purchased, duly endorsed and in
proper form for transfer, free and clear of all liens, claims and encumbrances,
except as provided by this Agreement.
(iii) The obligation of the parties hereto to consummate the closing
of any of the sales of Common Stock shall be subject to (A) the expiration or
termination of any applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and (B) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining the consummation of any such
transaction then being in effect.
(iv) Notwithstanding anything to the contrary contained herein, if
(A) any waiting period under the HSR Act applicable to the consummation of any
such transaction pursuant to this Section 2 shall not have expired or been
terminated, or (B) any preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining the
consummation of any such transaction shall be in effect, in any case, as of the
date specified in this Section 2 for the consummation of such transaction, such
date shall be deemed to be 3 Business Days following the latest to occur of (x)
the expiration or termination of the waiting period, (y) the expiration or
termination of such order or injunction, and (z) the receipt of such material
approvals; provided, however, that the closing for such transaction shall not be
delayed more than 60 days after the date specified in this Section 2.
4
<PAGE>
3. Tag-Along Right.
---------------
(a) In addition to the requirements of Section 2 hereof (and subject
to the second sentence of Section 1(c)), no Stockholder shall Transfer any
Common Stock, in a single transaction or related series of transactions, to any
third party unless the terms and conditions of such sale, transfer or other
disposition (the "Third Party Disposition") to such third party shall contain an
offer to each other Stockholder (each, an "Included Stockholder"), to include in
such Third Party Disposition such number of shares of Common Stock as is
determined in accordance with Section 3(b) below. At least 5 Business Days prior
to effecting any Third Party Disposition, such Stockholder (the "Selling
Stockholder") shall promptly cause the terms and conditions of the Third Party
Disposition to be reduced to a reasonably detailed writing (which writing shall
identify the third party purchaser and shall include the offer to each Included
Stockholder to purchase or otherwise acquire its shares of Common Stock,
according to the terms and subject to the conditions of this Section 3), and
shall deliver, or cause the third party to deliver, written notice (the
"Notice") of the terms of such Third Party Disposition to each Included
Stockholder. The Notice shall be accompanied by a true and correct copy of the
agreement, if any, embodying the terms and conditions of the proposed Third
Party Disposition or such written summary thereof if there is no agreement. At
any time after receipt of the Notice (but in no event later than 5 Business Days
after receipt), each Included Stockholder may accept the offer included in the
Notice for up to such number of its shares of Common Stock, as determined in
accordance with the provisions of Section 3(b) below, by furnishing irrevocable
written notice of such acceptance to the Selling Stockholder and to the third
party. It is understood, however, that the Included Stockholder shall not be
required to sell its shares if the Third Party Disposition is not consummated by
the Selling Stockholder.
(b) In the event that an Included Stockholder elects to accept the
offer included in the Notice described in Section 3(a) above, such Included
Stockholder shall have the right to sell, transfer or otherwise dispose of such
number of its shares of Common Stock pursuant to, and upon consummation of, the
Third Party Disposition which is equal to the product of (X) the total number of
shares of Common Stock owned by such Included Stockholder and (Y) a fraction,
the numerator of which shall equal the total number of shares of Common Stock to
be sold to the third party, and the denominator of which shall equal the total
number of shares of Common Stock owned by all the Stockholders. If the third
party purchaser is not willing to purchase such additional shares, the number of
shares to be sold by the Selling Stockholder and each Included Stockholder shall
be proportionately reduced.
(c) The purchase of shares of Common Stock pursuant to this Section 3
shall be made on the same terms (including, without limitation, the per share
consideration and method of payment, and the date of sale, transfer or other
disposition), and subject to the same conditions, if any, as are provided to the
Selling Stockholder and stated in the Notice.
5
<PAGE>
(d) Upon the consummation of the disposition of shares of Common
Stock to the third party pursuant to the Third Party Disposition, the Selling
Stockholder shall (i) cause the third party to remit directly to each Included
Stockholder the sales price of its shares of Common Stock disposed of pursuant
thereto, and (ii) furnish such other evidence of the completion and time of
completion of such disposition and the terms thereof as may reasonably be
requested by such Included Stockholder.
(e) If an Included Stockholder has not delivered to the Selling
Stockholder and to the third party written notice of its acceptance of the offer
contained in the Notice within 5 Business Days after the receipt of such Notice,
it shall be deemed to have waived any and all rights pursuant to this Section 3
with respect to the disposition of its shares of Common Stock described in the
Notice, and the Selling Stockholder shall have 30 days (calculated from the
first day next succeeding the expiration of the 5 Business Day acceptance period
described above), in which to complete the disposition of the aggregate amount
of shares of Common Stock described in the Notice to the third party identified
in the Notice, on terms not more favorable to the Selling Stockholder than those
which were set forth in the Notice. If the Included Stockholder has delivered
irrevocable written notice of acceptance as described in the preceding sentence
and, if after 30 days following receipt of the Notice, the Selling Stockholder
and the third party shall not have completed the disposition of shares of Common
Stock to be sold in connection therewith in accordance with the terms of the
Third Party Disposition, all the restrictions on the disposition of shares of
Common Stock contained in this Section 3 shall again be in force and effect and
the Included Stockholder shall no longer be required to effectuate such sale.
4. Acquisition of Additional Shares. In the event that any Stockholder
proposes to acquire additional shares of Common Stock (a "Tag-Along Purchase")
in a single transaction or in a related series of transactions (other than
pursuant to options granted pursuant to the Plan), such Stockholder (the
"Purchasing Party") shall notify each other Stockholder (each, a "Tag-Along
Purchaser"), describing in such notification the material terms of such proposed
purchase. Each Tag-Along Purchaser shall have the option, exercisable by written
notice to the Purchasing Party, within 5 Business Days after the Purchasing
Party notifies each Tag-Along Purchaser of its intention to effect such
purchase, to require the Purchasing Party to provide as part of its proposed
purchase that each Tag-Along Purchaser be given the right to participate, pro
rata in proportion to the respective number of shares of Common Stock owned by
each Stockholder, in such transaction or series of transactions on the same
terms and conditions as the Purchasing Party. If such option is exercised by any
Tag-Along Purchaser, the Purchasing Party shall not proceed with such purchase
unless the Tag-Along Purchaser is given the right so to participate.
Notwithstanding anything contained herein to the contrary, a Purchasing Party
may satisfy its obligations to each Tag-Along Purchaser pursuant to this Section
4 by purchasing all the shares of Common Stock which are the subject of a
Tag-Along Purchase and offering each Tag-Along Purchaser the option to purchase
from it its pro rata portion (in proportion to the respective number of shares
of Common Stock owned by each Stockholder) of such shares of Common Stock on the
same terms and conditions as the Purchasing Party.
6
<PAGE>
5. Board of Directors.
------------------
(a) The Stockholders hereby agree that at all times after the
Effective Date the Board of Directors of Barneys (the "Board") shall consist of
11 directors. Promptly after the Effective Date, the Stockholders shall take all
actions necessary to elect, or to cause the Board to approve and appoint, the
designees described below to be the members of the Board:
(i) three directors designated by Bay Harbour;
(ii) three directors designated by Whippoorwill;
(iii) one director designated by Isetan of America, Inc. ("Isetan"),
for so long as that letter agreement, to be entered into in connection with the
Plan and which shall be substantially in the form of Annex II hereto, from Bay
Harbour, Whippoorwill and Barneys and addressed to Isetan, shall be in effect;
(iv) one director who shall be the chief executive officer of
Barneys; and
(v) three independent directors to be mutually selected by Bay
Harbour and Whippoorwill.
(b) In the event that a vacancy is created on the Board at any time
by the death, disability, retirement, resignation or removal of any member of
the Board, or for any other reason there shall exist or occur any vacancy on the
Board, each Stockholder hereby agrees to cause the directors designated by them
to vote for the individual designated to fill such vacancy and serve as a
director by the Stockholders that had designated (pursuant to Section 5(a)
hereof) the director whose death, disability, retirement, resignation or removal
resulted in such vacancy on the Board (in the manner set forth in Section 5(a)
hereof).
(c) Each Stockholder hereby agrees to take all actions necessary to
call, or cause Barneys and the appropriate officers and directors of Barneys to
call, an annual meeting (and when circumstances so require, a special meeting)
of Stockholders of Barneys and to vote all shares of voting securities owned or
held of record by such Stockholder at any such meeting and at any other annual
or special meeting of stockholders in favor of, or take all actions by written
consent in lieu of any such meeting as may be necessary to cause, the election
as members of the Board of those individuals so designated in accordance with,
and to otherwise effect the intent of, this Section 5.
7
<PAGE>
6. Limitations On Certain Actions. No Stockholder shall vote the shares
of Common Stock held by it in favor of Barneys taking any of the following
actions without the consent of each other Stockholder:
(a) amending, altering or changing Barneys' Certificate of
Incorporation or By-Laws; or
(b) consummating (i) the sale of all or substantially all of the
business, assets or capital stock (whether by sale, merger, exchange,
consolidation or similar transaction) of Barneys or Barneys and its subsidiaries
on a consolidated basis, (ii) a merger in which the outstanding voting stock of
Barneys is exchanged for cash, other securities or any other property, or (iii)
a merger in which Barneys' stockholders immediately prior thereto own less than
a majority of the outstanding voting stock of the survivor (each, a
"Disposition"); provided, however, that the foregoing shall not apply to a
proposed Disposition for an aggregate purchase price equal to or greater than
the amount set forth on Schedule A hereto, in which case if one Stockholder
wants to proceed with such Disposition, upon written notice from such
Stockholder accompanied by a copy of the proposed agreement for such Disposition
or a written summary of the proposed terms thereof, all Stockholders will vote
for it and will use their commercially reasonable efforts to cause the directors
designated by them (subject to the fiduciary duties of each such director) to
vote in favor of such proposed Disposition.
7. Chief Executive Officer. The Stockholders hereby agree to use their
commercially reasonable efforts to cause the Board (subject to the fiduciary
duties of each member thereof) to neither approve nor appoint a person to the
office of Chief Executive Officer of Barneys unless all Stockholders approve of
such appointment.
8. Stockholders' Representations and Warranties. Each Stockholder
represents and warrants to each of the other Stockholders that:
(a) There are no agreements to which such Stockholder is a party with
respect to the voting, ownership or transfer of the capital stock of Barneys
owned by such Stockholder or with respect to any other aspect of Barneys
affairs, other than this Agreement or as referred to in the Plan.
(b) It is duly organized, validly existing and in good standing under
the laws of the state of its incorporation or organization and has all requisite
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) The execution, delivery and performance of this Agreement have
been duly authorized by it, and no other proceeding is necessary for the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by it and constitutes a valid and binding obligation
of such Stockholder, enforceable against it in accordance with its terms.
8
<PAGE>
(d) Neither the execution and delivery of this Agreement by it nor
the consummation of the transactions contemplated hereby will conflict with or
violate (i) any provision of its organizational documents or (ii) any law, rule,
regulation, ordinance, order, writ, injunction, judgment or decree applicable to
it or by which its properties or assets may be bound or affected.
Bay Harbor represents to Whippoorwill that it owns, holds beneficial
interests in, or is under contract to acquire an aggregate of $73,603,827.42 in
Claims, and Whippoorwill represents to Bay Harbour that it owns, holds
beneficial interests in or is under contract to acquire an aggregate of
$71,330,056.38 in Claims.
9. Right of First Refusal.
(a) (i) Simultaneously with the making by a Stockholder of a request
for required or incidental registration pursuant to a Firm Commitment Public
Offering of shares of Common Stock pursuant to Sections 2 or 3 of the
Registration Rights Agreement, to be entered into in connection with the Plan
and which shall be substantially in the form of Annex III hereto, by and among
Barneys and the holders listed on the signature pages thereof (the "Registration
Rights Agreement"), such Stockholder (a "Demanding Stockholder") shall provide
written notice of such request to each other Stockholder (each, a "Demand
Offeree"), which notice may be accompanied by a letter from the underwriter
(which shall be a nationally recognized underwriter) of the offering (the
"Underwriter") setting forth, in such underwriter's good faith judgment, the
expected midpoint (the "Midpoint") of the range of the gross offering price of
the shares of Common Stock being registered. Following receipt of such notice,
each Demand Offeree shall have, for a period of 5 Business Days, a right of
first refusal to purchase the shares of Common Stock sought to be registered by
the Demanding Stockholder at a price equal to the Midpoint.
(ii) If the Underwriter does not provide the letter described in
paragraph (i) above, the Demanding Stockholder shall (A) nevertheless provide
the notice described in clause (i) above and (B) deliver to each Demand Offeree
a copy of an initial preliminary prospectus relating to the offering (the
"Prospectus") simultaneously with the filing thereof with the Securities and
Exchange Commission (the "SEC") or, alternatively, a letter from the Underwriter
as set forth in paragraph (b) (ii) below within the time period set forth
therein. Following receipt of the Prospectus and/or letter, each Demand Offeree
shall have, for a period of 5 Business Days, a right of first refusal to
purchase the shares of Common Stock sought to be registered by the Demanding
Stockholder at a price equal to the Midpoint, or, if the Prospectus or letter
states that the shares of Common Stock to be offered thereby will be offered at
the "market price" thereof, then each Demand Offeree shall have the right to
purchase its pro rata portion of such shares of Common Stock at the average of
the closing sales prices of a share of such Common Stock for the 20 trading days
next preceding the date of measurement. Upon the expiration of the 5 Business
Day period referred to in the immediately preceding sentence, the Demand
Offerees shall have no further rights under this Section 9.
9
<PAGE>
(b) If the Underwriter's letter is delivered pursuant to paragraph
(a)(i) above, but the Demand Offeree does not exercise the rights provided in
paragraph (a)(i) above, the Demanding Stockholder shall deliver to each Demand
Offeree either (i) a copy of the Prospectus simultaneously with the filing
thereof with the SEC, or (ii) not more than 10 Business Days prior to the date
of the anticipated filing of the Prospectus with the SEC, a letter from the
Underwriter either setting forth, in its good faith judgment, the Midpoint, or
stating that the shares of Common Stock to be offered thereby will be offered at
the market price. If the Midpoint or the market price, as the case may be, is
lower than the Midpoint or market price set forth in the letter referred to in
paragraph (a)(i) above by 5% or more, each Demand Offeree shall have, for a
period of 3 Business Days, an additional right of first refusal to purchase the
shares of Common Stock sought to be registered by the Demanding Stockholder.
Upon the expiration of the 3 Business Day period referred to in the immediately
preceding sentence, the Demand Offerees shall have no further rights under this
Section 9.
(c) Closing. (i) If after giving effect to the provisions of this
Section 9, the Demand Offerees shall have agreed to purchase all (and not less
than all) of the Demanding Stockholder's Common Stock proposed to be registered,
each Demand Offeree shall give written notice containing its offer within such 5
Business Day period, or such 3 Business Day period, as the case may be (the
"Section 9 Notice") to the Demanding Stockholder and the consummation of such
purchase shall take place pursuant to this Section 9(c).
(ii) Unless otherwise agreed to by the parties, the consummation of
any disposition of the Demanding Stockholder's Common Stock (the "Section 9
Closing") to each Demand Offeree pursuant to this Section 9 shall take place at
Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153 within 3
Business Days after the date of the Section 9 Notice. At the Section 9 Closing,
each Demand Offeree shall deliver a certified or bank cashier's check or payment
by wire transfer of federal funds in the appropriate amount to the Demanding
Stockholder against the simultaneous delivery of certificates representing the
Common Stock being purchased, duly endorsed and in proper form for transfer,
free and clear of all liens, claims and encumbrances, except as provided by this
Agreement.
(iii) The obligation of the parties hereto to consummate the closing
of any of the sales of Common Stock shall be subject to (A) the expiration or
termination of any applicable waiting periods under the HSR Act, and (B) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining the consummation of any such
transaction then being in effect.
(iv) Notwithstanding anything to the contrary contained herein, if
(A) any waiting period under the HSR Act applicable to the consummation of any
such transaction pursuant to this Section 9 shall not have expired or been
terminated, or (B) any preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining the
consummation of any such transaction shall be in effect, in any case, as of the
date specified in this Section 9 for the consummation of such transaction, such
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date shall be deemed to be 3 Business Days following the latest to occur of (x)
the expiration or termination of the waiting period, (y) the expiration or
termination of such order or injunction, and (z) the receipt of such material
approvals; provided, however, that the closing for such transaction shall not be
delayed more than 60 days after the date specified in this Section 9.
10. Equitable Relief. It is hereby acknowledged that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed fully by the parties hereto in accordance with the terms specified
herein, and that monetary damages are an inadequate remedy for breach of this
Agreement because of the difficulty of ascertaining and quantifying the amount
of damage that will be suffered by the parties relying hereon in the event that
the undertakings and provisions contained in this Agreement were breached or
violated. Accordingly, each party hereto hereby agrees that each other party
hereto shall be entitled to an injunction or injunctions to restrain, enjoin and
prevent breaches of the undertakings and provisions hereof and to enforce
specifically the undertakings and provisions hereof in any court of the United
States or any state having jurisdiction over the matter; it being understood
that such remedies shall be in addition to, and not in lieu of, any other rights
and remedies available at law or in equity.
11. Miscellaneous.
-------------
(a) Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be made in
writing by personal-delivery, first-class mail (registered or certified, with
return receipt requested), telecopier (with "answer back" confirmation), or
overnight air courier guaranteeing next day delivery, to the address of such
party appearing under its name on Annex I hereto (or to such other address as
may be designated in writing by any party in accordance with this Section
11(a)). Such notices or communications shall be effective and deemed given upon
delivery to said address.
(b) Complete Agreement; Amendment. This Agreement constitutes the
complete understanding of the parties with respect to its subject matter and
supersedes any other agreement or understanding relating thereto and amends and
restates the original Stockholders Agreement dated as of November 13, 1998. No
amendment, change or modification of this Agreement shall be valid, binding or
enforceable, unless the same shall be in writing and signed by each of the
Stockholders.
(c) Termination. This Agreement may be terminated (i) at any time by
an instrument in writing signed by each of the Stockholders, or (ii) by any
Stockholder upon the earliest of (A) the date which is 3 1/2 years after the
Effective Date, (B) the date on which any Stockholder, together with its
Affiliates, holds, in the aggregate, less than 5% of the Common Stock then
outstanding, and (C) the date on which any Stockholder, together with its
Affiliates, holds, in the aggregate, less than 50% of the Common Stock held by
them on the Effective Date.
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(d) Waiver. No failure or delay on the part of any Stockholder in
exercising any right, power or privilege hereunder, and no course of dealing
among the Stockholders, shall operate as a waiver thereof nor shall any single
or partial exercise of any right, power or privilege hereunder preclude the
simultaneous or later exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights and remedies which any Stockholder would otherwise have.
(e) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
(f) Governing Law; Waivers. 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 federal or New York State courts located 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(a) hereof. The parties hereto waive all right to
trial by jury in any action or proceeding to enforce or defend any rights
hereunder.
(g) Benefit and Binding Effect. All of the terms and provisions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns, including any permitted
transferee of their shares of Common Stock pursuant to Section 1(c)(i) hereof.
Notwithstanding anything to the contrary contained herein, none of
Whippoorwill's rights or obligations hereunder shall apply with respect to any
account which is in the process of liquidating, winding up or terminating, which
accounts own in the aggregate not more than approximately $4,600,000 in Claims.
References herein to a Stockholder shall include such Stockholder and any of its
successors and assigns pursuant thereto.
(h) Severability. Whenever 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 is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(i) After-Acquired Shares. All of the provisions of this Agreement
shall apply to all of the shares of capital stock of Barneys now owned either
directly or indirectly or which may be issued to or acquired by a Stockholder
either directly or indirectly in consequence of any additional issuance
(including, without limitation, by exercise of a right, option or warrant),
purchase, exchange, conversion or reclassification of stock, corporate
reorganization, or any other form of recapitalization, consolidation, merger,
stock split or stock dividend, or which are acquired either directly or
indirectly by a Stockholder in any other manner.
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(j) Approvals and Consents. The Stockholders hereby agree, for
themselves, their successors, heirs and legal representatives, to vote at
stockholders' and Board meetings of Barneys, to prepare, execute and deliver or
cause to be prepared, executed and delivered such further instruments and
documents, to take such other actions and to adopt such by-laws and provisions
of the certificate of incorporation as may be reasonably required to more
effectively carry out the intent and purposes of this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
March 27, 2000, effective as of the date first written above.
BAY HARBOUR MANAGEMENT L.C.,
for its Managed Accounts
By: /s/ Steven Van Dyke
----------------------------------
Name: Steven Van Dyke
Title: Principal and Portfolio
Manager
WHIPPOORWILL ASSOCIATES, INC., as agent and/or
general partner for its discretionary accounts
By: /s/ David Strumwasser
----------------------------------
Name: David Strumwasser
Title: Managing Director
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ANNEX I
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Stockholders
- ------------
If to Bay Harbour, to it at the following address:
Bay Harbour Management L.C.
885 Third Avenue, 34th Floor
New York, New York 10022
Attention: Douglas P. Teitelbaum
Telecopier: (212) 371-7497
Telephone Confirmation: (212) 371-2211
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Ted S. Waksman, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8000
If to Whippoorwill, to it at the following address:
Whippoorwill Associates, Inc.
11 Martine Avenue
White Plains, New York 10606
Attention: David A. Strumwasser
Telecopier: (914) 683-1242
Telephone Confirmation: (914) 683-1002
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Ted S. Waksman, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8000
or to such other address as any of the parties hereto shall have specified by
notice in writing to the others.
EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of January 28, 1999, by and
among Barneys New York, Inc., a Delaware corporation ("Company"), and the
holders listed on the signature pages hereof (collectively, the "Holders").
W I T N E S S E T H :
WHEREAS, certain affiliates of Company are currently debtors in
certain cases under chapter 11 of Title 11 of the U.S. Code in the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"),
which cases are being jointly administered as IN RE BARNEY'S INC., ET AL., Case
Nos. 96-B-40113 through 40133 (JLG); and
WHEREAS, pursuant to the Second Amended Joint Plan of Reorganization
dated November 13, 1998, as amended, and filed in the Bankruptcy Court (the
"Plan"), at the Effective Date (as defined in the Plan), each of the Holders
will receive shares of Common Stock, par value $.01 per share, of Company (the
"Shares") and/or options or warrants to acquire Shares; and
WHEREAS, the Plan provides for the entry by Company and the
Holders into this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Plan are used herein as therein defined, and the following
shall have (unless otherwise provided elsewhere in this
Registration Rights 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.
<PAGE>
"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.
"Holder" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"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 subsidivision thereof.
"Registrable Securities" shall mean Shares beneficially owned by the
Holders at the Effective Date or at any time thereafter, including without
limitation, Shares resulting from the exercise of any options or warrants held
by a Holder. 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.
"Series 1 Holders" shall mean those Holders listed as Series 1
Holders on the signature pages hereto.
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"Series 2 Holders" shall mean those Holders listed as Series 2
Holders on the signature pages hereto.
"Short Form Registration Statement" shall have the meaning set forth
in Section 2.
2. REQUIRED REGISTRATION. After receipt of a written request from
one or more Series 1 Holders (as listed on the signature page hereof) or any
Affiliate thereof 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 held by such Series 1 Holder
and its Affiliates, and specifying the intended method or methods of disposition
thereof, Company shall promptly, but in no event later than fifteen (15)
Business Days following receipt of such request, notify all Holders in writing
of the receipt of such request and each such Holder, in lieu of exercising its
rights under Section 3, may elect (by written notice sent to Company within ten
(10) Business Days from the date of such Holder's receipt of the aforementioned
Company's notice) to have Registrable Securities belonging to such Holder
included in such registration thereof pursuant to this Section 2 (subject to the
penultimate sentence of Section 3). Thereupon 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 such Holders 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
Company shall not be required to effect more than two (2) registrations of any
Registrable Securities for each Series 1 Holder pursuant to this Section 2,
unless Company shall be eligible to file a Registration Statement on Form S-3
(or other comparable short form) under the Securities Act (a "Short Form
Registration Statement"), in which event there shall be no limit on the number
of such registrations pursuant to this Section 2.
3. INCIDENTAL REGISTRATION. If Company at any time proposes to
file on its behalf and/or on behalf of any of its security holders, including
without limitation, the Series 1 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 all Holders (other than those Holders, if any,
who are Demanding Security Holders) 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
such Holders may request.
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Each Holder desiring to have Registrable Securities registered under
this Section 3 shall advise Company in writing within ten (10) Business 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 each Holder
participating in such registration shall reduce the amount of securities it
intended to distribute through such offering, pro rata on the basis of the
number of shares of Registrable Securities to be offered for the account of such
Holder. Except as otherwise provided in Section 5, all expenses of such
registration shall be borne by Company.
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 the holders 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 any Holders participating in such
registration 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 such Holders
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
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<PAGE>
laws of such jurisdictions within the United States and Puerto Rico as each
Holder owning such Registrable Securities 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
such Holder to consummate the disposition in such jurisdiction of the
Registrable Securities covered by such Registration Statement;
(e) furnish, at the request of any Holder requesting
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 the
Holders making such request, in customary form and covering matters of the type
customarily covered in such legal opinions; and (2) a comfort letter dated such
date, from the independent certified public accountants who have issued an audit
report on Company's financial statements included or incorporated by reference
in the Registration Statement, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters, then to the
Holder making such request and, if such accountants refuse to deliver such
letter to such Holder, then to Company in a customary form and covering matters
of the type customarily covered by such comfort letters and as the underwriters
or such Holder 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 such Holders 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 the Holders of a majority of the Registrable Securities being so
registered 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 or the NASDAQ National Market, as applicable, on which Company's equity
securities are
5
<PAGE>
then listed at the time of the sale of such Registrable Securities pursuant to
such Registration Statement;
(i) notify the Holders participating in such registration,
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 the Holders
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; and
(j) 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 any Holder that such
Holder shall furnish to Company such information regarding the Registrable
Securities held by such Holder 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.
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, the reasonable fees and expenses of one counsel for the
selling Series 1 Holders (selected by those holding a majority of the Shares
being registered), 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 one
hundred eighty (180) days after the effective date of such Registration
Statement because any Holder has not effected the disposition of the securities
requested to be registered shall be paid by such Holder; and
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(b) Company shall not be liable for any fees, discounts or
commissions to any underwriter or any fees or disbursements of counsel for any
underwriter in respect of the Registrable Securities sold by a Holder owning
such Registrable Securities.
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 the Holder owning such Registrable Securities, such
Holder's Affiliates, directors, officers and agents, and each other Person
(including each underwriter) who participated in the offering of such
Registrable Securities and each other Person, if any, who controls such Holder
or such participating person within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Holder or any such Affiliate, director, officer, agent or participating person
or controlling 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, 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, and shall reimburse such Holder or such Affiliate, director,
officer, agent or participating person or controlling person for any legal or
any other expenses reasonably incurred by such Holder or such Affiliate,
director, officer, agent or participating person or controlling 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
written information furnished to Company by such Holder 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 such Holder
or such Affiliate, director, officer, agent or participating person or
controlling person, and shall survive the transfer of such Registrable
Securities by such Holder.
(b) Each Holder, 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
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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 information in writing provided to Company by
such Holder 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) below, no
Holder shall 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 such Holder 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. 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).
8
<PAGE>
(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.
(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
<PAGE>
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 any Holder if, in the opinion of counsel to Company
reasonably satisfactory to the Holder and its counsel (or, if the Holder has
engaged an investment banking firm, to such investment banking firm and its
counsel), the sale or other disposition of such Holder's Registrable Securities,
in the manner proposed by such Holder (or by such investment banking firm), may
be effected without registering such Registrable Securities under the Securities
Act; and
(b) Company shall not be obligated to register the
Registrable Securities of any Holder pursuant to Section 2 if Company has had a
Registration Statement, under which such Holder 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.
(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 the Series 1 Holders holding a majority of the Registrable
Securities being so registered 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, the Series 1 Holders
participating in such registration 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 to the effect and to the extent provided in Section 6 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 4(e) hereof. The Holders shall cooperate with
Company in the negotiation of the underwriting agreement and shall be parties to
such underwriting agreement.
(c) In connection with each registration pursuant to
Section 3, if Company or the Series 1 Holders, as the case may be, propose to
distribute any of their
10
<PAGE>
securities through one or more underwriters, Company or the Series 1 Holders, as
the case may be, shall, subject to the second paragraph of Section 3, arrange
for such underwriters to include all the Registrable Securities proposed to be
offered and sold by the Series 2 Holders with the other securities of the
Company or the Series 1 Holders to be distributed by such underwriters. The
Series 2 Holders shall be parties to the underwriting agreement between the
Company or the Series 1 Holders and such underwriters; provided, however, that
the Series 2 Holders may designate a minimum offering price and maximum
underwriting or selling discounts and commissions at which they have agreed to
sell their Registrable Securities.
(d) In each underwriting agreement referred to in Section
8(b) or 8(c) hereof, the Series 2 Holders, at their option, may require that any
or all of the representations and warranties by, and the other agreements on the
part of, Company or the Series 1 Holders, as the case may be, to and for the
benefit of such underwriters shall also be made to and for the benefit of the
Series 2 Holders, and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall be
conditions precedent to the obligations of the Series 2 Holders. The Series 2
Holders shall not be required to make any representations or warranties to or
agreements with Company, the Series 1 Holders or the underwriters other than
representations, warranties or agreements regarding the Series 2 Holders, their
Registrable Securities and their intended method or methods or distribution and
any other representation required by law, or to furnish any indemnity or
contribution to any Person which is broader than the indemnity and contribution
furnished by the Series 2 Holders in Section 6.
9. RESTRICTIONS ON SALE AFTER PUBLIC OFFERING. Except for
transfers made in transactions exempt from the registration requirements under
the Securities Act (other than Rule 144 thereunder), Company and each Holder
hereby agree not to offer, sell, contract to sell or otherwise dispose of any
Shares or other equity securities of Company, or securities convertible into or
exchangeable or exercisable for Shares or such other equity securities,
including without limitation, any sale pursuant to a brokerage transaction under
Rule 144 under the Securities Act, within 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 any Holders, except pursuant to such
prospectus or with the written consent of the managing underwriter or
underwriters for such offering.
10. RULE 144. So long as Company has securities registered under
the Exchange Act, it shall take all actions reasonably necessary to enable the
Holders 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 any Holder, Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements.
11
<PAGE>
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 the Holders in this Agreement. Company has not
previously entered into any agreement with respect to any of its securities
granting any registration rights to any person.
(b) REMEDIES. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate. In any action or proceeding brought to enforce
any provision 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 each initial
Series 1 Holder and initial Series 2 Holder affected thereby. To the extent
permitted by law, no failure to exercise, and no delay on the part of any Holder
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 any Holder, Company or any other Person shall operate as
a waiver of any right of any Holder. 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 any Holder at its last known address in the United
States appearing on the books of Company maintained for such purpose.
12
<PAGE>
(ii) If to Company at
Barneys New York, Inc.
575 Fifth Avenue
New York, New York 10017
Attention: Marc H. Perlowitz, Esq.
Telecopier: 212-450-8480
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.
(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.
13
<PAGE>
(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 Holders have executed this Agreement
as of the date first above written.
BARNEYS NEW YORK, INC.
By: /s/ Edward Lambert
-----------------------------------------
Edward Lambert
Executive Vice President and Chief
Financial Officer
HOLDERS:
SERIES 1 HOLDERS:
BAY HARBOUR MANAGEMENT L.C.,
for its Managed Accounts
By: /s/ Douglas P. Teitelbaum
-----------------------------------------
Name: Douglas P. Teitelbaum
Title: Principal & Portfolio Manager
WHIPPOORWILL/BARNEYS
OBLIGATIONS TRUST - 1996
By: WHIPPOORWILL ASSOCIATES, INC., as
agent and/or general partner for its
discretionary accounts and as
investment advisor to Whippoorwill/
Barney's Obligations Trust - 1996
By: /s/ David Strumwasser
-----------------------------------------
Name: David Strumwasser
Title: Managing Director
SERIES 2 HOLDERS:
ISETAN OF AMERICA INC.
By: /s/ Toshiaki Nakagawa
-----------------------------------------
Name: Toshiaki Nakagawa
Title: President
14
EXHIBIT 4
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
------------------------------------------------
Amendment No. 1, dated as of February 1, 2000 (this "Amendment"), to
that certain Registration Rights Agreement, dated as of January 28, 1999 (the
"Agreement") by and among Barneys New York, Inc., a Delaware corporation
("Company"), and the holders listed on the signature pages thereof
(collectively, the "Holders").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Company and the Series 1 Holders desire to amend the
Agreement, as it relates to the Series 1 Holders, as set forth below;
NOW, THEREFORE, in consideration of the premises and agreements
hereinafter contained, it is agreed as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined
in this Amendment shall have the meanings ascribed thereto in the Agreement.
2. Amendment of Section 2. Section 2 of the Agreement is hereby amended
to add the following sentence to the end thereof:
Each Series 1 Holder 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 such Series 1 Holder shall be subject to reduction
as set forth in the third sentence of the second paragraph of Section
3.
3. Effect of Amendment. Except as amended hereby, the Agreement shall
remain and continue in full force and effect.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same document.
NY2:\600180\01\CV3_01!.DOC\21645.0001
<PAGE>
IN WITNESS WHEREOF, Company and the Series 1 Holders have executed this
Agreement as of the date first above written.
BARNEYS NEW YORK, INC.
By: /s/ Marc H. Perlowitz
-------------------------------
Name: Marc H. Perlowitz
Title: Executive Vice President
BAY HARBOUR MANAGEMENT L.C., for its
Managed Accounts
By: /s/ Douglas P. Teitelbaum
-------------------------------
Name: Douglas P. Teitelbaum
Title: Principal and Portfolio
Manager
WHIPPOORWILL ASSOCIATES, INC., as agent
and/or general partner for its discretionary
accounts and as investment advisor to
Whippoorwill/Barney's Obligations Trust -
1996
By: /s/ David Strumwasser
---------------------------------
Name: David Strumwasser
Title: Managing Director
2
EXHIBIT 5
Joint Filing Agreement
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint filing agreements.
The undersigned acknowledge that each shall be responsible for the timely filing
of such amendments, and for the completeness and accuracy of the information
concerning it contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning the others, except to
the extent that it knows or has reason to believe that such information is
inaccurate.
This Agreement may be executed in counterparts and each of such
counterparts taken together shall constitute one and the same instrument.
Dated as of: March 27, 2000 TOWER INVESTMENT GROUP, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: President
BAY HARBOUR MANAGEMENT L.C.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: President
/s/ Steven A. Van Dyke
----------------------
STEVEN A. VAN DYKE
/s/ Douglas P. Teitelbaum
-------------------------
DOUGLAS P. TEITELBAUM
<PAGE>
TROPHY HUNTER INVESTMENTS, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BAY HARBOUR INVESTMENTS, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BAY HARBOUR 98-1, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
TROPHY HUNTERS, INC.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BAY HARBOUR PARTNERS, LTD.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
BHB LLC
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven A. Van Dyke
Title: Authorized Signatory
