As filed with the Securities and Exchange Commission on November 8, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BARNEYS NEW YORK, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-4040818
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
575 FIFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 450-8606
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
BARNEYS NEW YORK, INC.
STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
(Full Title of Plan)
MARC H. PERLOWITZ
EXECUTIVE VICE PRESIDENT - GENERAL COUNSEL AND
HUMAN RESOURCES AND SECRETARY
BARNEYS NEW YORK, INC.
575 FIFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 339-7300
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
TED S. WAKSMAN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Aggregate Offering Registration Fee
Per Share(2) Price(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 300,000 shares $8.68 $2,604,000 $724.00
================================================================================================================================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933. (2) Estimated pursuant to Rule 457(h) under the Securities Act of
1933, based upon the price at which the options may be exercised.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1.
The documents containing the information specified in Part
I of this Registration Statement will be sent or given to non-employee directors
as specified by Rule 428(b)(1). Such documents are not required to be and are
not filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 2.
Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement
(which documents are incorporated by reference in this Section 10(a)
Prospectus), other documents required to be delivered to eligible non-employee
directors pursuant to Rule 428(b) or additional information about the Barneys
New York, Inc. Stock Option Plan for Nonemployee Directors and its
administrators are available without charge by contacting:
Marc H. Perlowitz
Barneys New York, Inc.
575 Fifth Avenue
New York, New York 10017
(212) 450-8606
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by
Barneys New York, Inc. (the "Company") are incorporated herein by reference:
(a) The Company's Registration Statement on Form 10 filed with the
Commission on June 1, 1999, as amended on October 13, 1999
(the "Form 10").
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 1, 1999.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended July 31, 1999.
(d) The description of the Company's Common Stock, par value $0.01
per share (the "Common Stock"), contained in the Form 10 filed
with the Commission pursuant to Section 12 of the Exchange Act
of 1934 (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of
the State of Delaware permits a corporation to indemnify certain persons made a
party to an action, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. In the case
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of an action by or in the right of the corporation, no indemnification may be
made in respect of any matter as to which that person was adjudged liable to the
corporation unless the Delaware Court of Chancery or the court in which the
action was brought determines that despite the adjudication of liability that
person is fairly and reasonably entitled to indemnity for proper expenses. To
the extent that person has been successful in the defense of any matter, that
person shall be indemnified against expenses actually and reasonably incurred by
him.
The Certificate of Incorporation provides for the
indemnification, to the fullest extent permitted by the Delaware General
Corporation Law ("DGCL"), of all persons who may be indemnified by the Company
under the DGCL, which would include the directors, officers, employees and
agents of the Company. The indemnification provided by the Certificate of
Incorporation does not limit or exclude any rights, indemnities or limitations
of liability to which any person may be entitled, whether as a matter of law,
under the By-Laws, by agreement, vote of the stockholders or disinterested
directors of the Company or otherwise. The Certificate of Incorporation also
does not absolve directors of liability for (1) any breach of the directors'
duty of loyalty to the Company or its stockholders, (2) acts or omissions which
are not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) any matter in respect of which such director shall be
liable under Section 174 of Title 8 of the DGCL or any amendment thereto or
successor provision thereto, which makes directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions in certain
circumstance and expressly sets forth a negligence standard with respect to such
liability, or (4) any transaction from which the director derived an improper
personal benefit.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or persons
controlling the Company as disclosed above, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Certificate of Incorporation of the Company
(incorporated by reference to the Form 10.
4(b) - By-Laws of the Company (incorporated by
reference to the Form 10.
4(c) - Barneys New York, Inc. Stock Option Plan for
Nonemployee Directors (incorporated by
reference to the Form 10.
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<PAGE>
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP
(included in Exhibit 5).
24 - Power of Attorney (included as part of the
signature page to this Registration
Statement and incorporated herein by
reference).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement.;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed with or furnished to the
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Commission by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of New York, State of New York, on this 5th day of
November, 1999.
BARNEYS NEW YORK, INC.
By: /s/ Marc H. Perlowitz
--------------------------------
Name: Marc H. Perlowitz
Title: Executive Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Marc H. Perlowitz and
Steven Feldman, acting individually, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Allen I. Questrom President, Chairman of the Board, Director and Chief November 5, 1999
- ----------------------------------- Executive Officer (Principal Executive Officer)
Allen I. Questrom
/s/ Steven Feldman Interim Chief Financial Officer and Senior Vice November 5, 1999
- ----------------------------------- President (Principal Financial and Accounting Officer)
Steven Feldman
/s/ Shelley F. Greenhaus November 5, 1999
- -----------------------------------
Shelley F. Greenhaus Director
/s/ John Halpern November 5, 1999
- -----------------------------------
John Halpern Director
/s/ Yasuo Okamoto November 5, 1999
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Yasuo Okamoto Director
/s/ Carl Spielvogel November 5, 1999
- -----------------------------------
Carl Spielvogel Director
/s/ David A. Strumwasser November 5, 1999
- -----------------------------------
David A. Strumwasser Director
/s/ Robert J. Tarr, Jr. November 5, 1999
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Robert J. Tarr, Jr. Director
/s/ Douglas P. Teitelbaum November 5, 1999
- -----------------------------------
Douglas P. Teitelbaum Director
/s/ Steven A. VanDyke November 5, 1999
- -----------------------------------
Steven A. Van Dyke Director
/s/ Shelby S. Werner November 5, 1999
- -----------------------------------
Shelby S. Werner Director
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4(a) - Certificate of Incorporation of the Company (incorporated by
reference to the Company's Registration Statement on Form 10
(the "Form 10") filed with the Commission on June 1, 1999).
4(b) - By-Laws of the Company (incorporated by reference to the Form
10).
4(c) - Barneys New York, Inc. Stock Option Plan for Nonemployee
Directors (incorporated by reference to the Form 10).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
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Exhibit 5
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY
10153-0119
(212) 310-8000
FAX: (212) 310-8007
November 5, 1999
Barneys New York, Inc.
575 Fifth Avenue
New York, NY 10017
Ladies and Gentlemen:
We have acted as counsel to Barneys New York, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing of the Registration Statement of the Company on Form S-8 under the
Securities Act of 1933 (the "Registration Statement") relating to the Barneys
New York, Inc. Stock Option Plan for Nonemployee Directors. Capitalized terms
defined in the Registration Statement and used (but not otherwise defined)
herein are used herein as so defined.
In so acting, we have examined originals or copies
(certified or otherwise identified to our satisfaction) of the Registration
Statement and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such inquiries
of such officers and representatives, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the 300,000 shares of Common Stock,
par value $0.01 per share, of the Company (the "Common Stock") to be issued and
sold by the Company pursuant to the Registration Statement have been duly
authorized and, when issued and sold as contemplated by the Registration
Statement and the Barneys New York, Inc. Stock Option Plan for Nonemployee
Directors, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this letter as an exhibit
to the Registration Statement and to any and all references to our firm in the
Prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Barneys New York, Inc. Stock Option Plan for Nonemployee
Directors for the registration of 300,000 shares of its common stock and to the
incorporation be reference therein of our report dated May 24, 1999, with
respect to the consolidated financial statements of Barneys New York, Inc.
included in its Registration Statement (Form 10) for the six months ended
January 30, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, NY
November 5, 1999
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