Exhibit 4.1
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WARRANT AGREEMENT
by and between
BARNEYS NEW YORK, INC.
and
AMERICAN STOCK
TRANSFER & TRUST COMPANY
as Warrant Agent
1,013,514 Warrants
Dated as of January 28, 1999
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS................................................. 1
ARTICLE 2 ISSUANCE OF WARRANTS........................................ 5
2.1 Initial Issuance............................................ 5
2.2 Initial Share Amount........................................ 5
2.3 Form of Warrant Certificates................................ 5
2.4 Execution of Warrant Certificates........................... 5
2.5 Countersignature of Warrant Certificates.................... 6
ARTICLE 3 EXERCISE PERIOD............................................. 6
3.1 Exercise Period............................................. 6
ARTICLE 4 EXERCISE PRICE.............................................. 6
ARTICLE 5 EXERCISE OF WARRANTS........................................ 7
5.1 Manner of Exercise.......................................... 7
5.2 When Exercise Effective..................................... 7
5.3 Delivery of Certificates, Etc............................... 7
5.4 Fractional Shares........................................... 8
ARTICLE 6 ADJUSTMENT OF THE AMOUNT OF COMMON STOCK
ISSUABLE AND THE EXERCISE PRICES UPON EXERCISE.............. 8
6.1 Stock Dividends, Split-ups and Combinations of
Shares...................................................... 8
6.2 Distributions............................................... 9
6.3 Exercise Price Adjustment................................... 9
6.4 Adjustments for Mergers and Consolidations.................. 10
6.5 Calculation to Nearest Cent and One-hundredth of
Share....................................................... 10
6.6 Notice of Adjustment in Exercise Price...................... 10
6.7 Other Notices............................................... 11
6.8 No Change in Warrant Terms on Adjustment.................... 11
6.9 Treasury Shares............................................. 11
ARTICLE 7 CONSOLIDATION, MERGER, ETC.................................. 11
ARTICLE 8 NO DILUTION OR IMPAIRMENT................................... 12
ARTICLE 9 REPORTS..................................................... 13
ARTICLE 10 NOTIFICATION OF CERTAIN EVENTS.............................. 13
10.1 Corporate Action............................................ 13
10.2 Available Information....................................... 14
ARTICLE 11 RESERVATION OF STOCK........................................ 15
11.1 Reservation; Due Authorization, Etc......................... 15
11.2 Compliance with Law......................................... 15
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ARTICLE 12 PAYMENT OF TAXES............................................ 15
ARTICLE 13 LOSS OR MUTILATION.......................................... 16
ARTICLE 14 WARRANT REGISTRATION........................................ 16
14.1 Registration................................................ 16
14.2 Transfer or Exchange........................................ 17
14.3 Valid and Enforceable....................................... 17
14.4 Endorsement................................................. 17
14.5 No Service Charge........................................... 17
14.6 Cancellation................................................ 17
ARTICLE 15 WARRANT AGENT............................................... 18
15.1 Obligations Binding......................................... 18
15.2 No Liability................................................ 18
15.3 Instructions................................................ 19
15.4 Agents...................................................... 19
15.5 Cooperation................................................. 19
15.6 Agent Only.................................................. 19
15.7 Right to Counsel............................................ 19
15.8 Compensation................................................ 19
15.9 Accounting.................................................. 20
15.10 No Conflict................................................. 20
15.11 Resignation; Termination.................................... 20
15.12 Change of Warrant Agent..................................... 21
15.13 Successor Warrant Agent..................................... 21
ARTICLE 16 REMEDIES, ETC............................................... 22
16.1 Remedies.................................................... 22
16.2 Warrant Holder Not Deemed a Stockholder..................... 22
16.3 Right of Action............................................. 22
ARTICLE 17 MISCELLANEOUS............................................... 23
17.1 Notices..................................................... 23
17.2 Governing Law and Consent to Forum.......................... 23
17.3 Benefits of this Agreement.................................. 24
17.4 Agreement of Holders of Warrant Certificates................ 24
17.5 Counterparts................................................ 24
17.6 Amendments.................................................. 24
17.7 Consent to Jurisdiction..................................... 25
17.8 Certain Covenants of the Company............................ 25
17.9 Headings.................................................... 25
EXHIBITS
Exhibit A: Form of Warrant Certificate
WARRANT AGREEMENT
THIS WARRANT AGREEMENT, is made and entered into as of January 28, 1999
(the "Agreement"), by and between BARNEYS NEW YORK, INC., a Delaware corporation
(the "Company"), and American Stock Transfer & Trust Company, as Warrant Agent
(the "Warrant Agent").
WITNESSETH:
WHEREAS, in connection with the financial restructuring of Barney's, Inc.,
a New York corporation ("Barneys") and a subsidiary of the Company and certain
of its subsidiaries pursuant to Barneys' plan of reorganization (the "Plan") and
pursuant to its Chapter 11 Case (as defined herein), the Company proposes to
issue warrants which are exercisable to purchase up to 1,013,514 shares of
Common Stock (as defined herein), subject to adjustment as provided herein (the
"Warrants"), to the holders of certain allowed unsecured claims (the "Claims")
in partial exchange for such Claims and in accordance with the Plan; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to act, in connection with the
issuance, transfer, exchange, replacement and exercise of the Warrant
Certificates and other matters as provided herein; and
WHEREAS, the Company desires to enter into this Agreement to set forth the
terms and conditions of the Warrants and the rights of the holders thereof;
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements set forth herein, the Company and the Warrant Agent hereby
agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms have the following respective
meanings:
"AFFILIATE" means with respect to any Person, any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, (a) "control" when
used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting Common Stock (or
equivalent equity interests), by contract or otherwise, and the terms
"controlling" or "controlled" have meanings correlative to the foregoing, and
(b) a subsidiary of a Person is an Affiliate of such Person and of each other
subsidiary of that Person.
"AGREEMENT" means this Warrant Agreement, as the same may be amended or
modified from time to time hereafter.
"BANKRUPTCY CODE" means title 11, United States Code.
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of New York.
"BARNEYS" has the meaning set forth in the recitals hereto.
"BUSINESS DAY" means any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York City, New York are authorized
or required by law to be closed; PROVIDED THAT, in determining the period within
which certificates or Warrants are to be issued and delivered at a time when
shares of Common Stock (or Other Securities) are listed or admitted to trading
on any national securities exchange or in the over-the-counter market and in
determining the Fair Value of any securities listed or admitted to trading on
any national securities exchange or in the over-the-counter market, "Business
Day" shall mean any day when the principal exchange on which such securities are
then listed or admitted to trading is open for trading or, if such securities
are traded in the over-the-counter market in the United States, such market is
open for trading; AND PROVIDED, FURTHER, that any reference in this Agreement to
"days" (unless Business Days are specified) shall mean calendar days.
"CHAPTER 11 CASE" means the case under Chapter 11 of the Bankruptcy Code
concerning Barneys which was commenced on January 10, 1996 before the Bankruptcy
Court.
"CLAIMS" has the meaning set forth in the recitals hereto.
"COMMON STOCK" means the Company's Common Stock, par value $0.01 per
share, as authorized from and after the Effective Date.
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act or the Exchange Act,
whichever is the relevant statute for the particular purpose.
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"COMPANY" has the meaning set forth in the preamble hereof.
"EFFECTIVE DATE" has the meaning specified in the Plan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be amended and in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
"EXERCISE PERIOD" has the meaning specified in Article 3.
"EXERCISE PRICE" has the meaning specified in Article 4.
"FAIR VALUE" means (i) with respect to Common Stock or any Other Security,
in each case if such security is listed on one or more stock exchanges or quoted
on the National Market System or Small Cap Market of NASDAQ (the "NASDAQ
Market"), the average of the closing sales prices of a share of such Common
Stock or, if an Other Security in the minimum denomination in which such
security is traded, on the primary national or regional stock exchange on which
such security is listed or on the NASDAQ Market if quoted thereon or (ii) if the
Common Stock or Other Security, as the case may be, is not so listed or quoted
but is traded in the over-the-counter market (other than the NASDAQ Market), the
average of the closing bid and asked prices of a share of such Common Stock or
Other Security, in each case for the 30 Business Days (or such lesser number of
Business Days as such Common Stock or other security shall have been so listed,
quoted or traded) next preceding the date of measurement; PROVIDED, HOWEVER,
that if no such sales price or bid and asked prices have been quoted during the
preceding 30-day period or there is otherwise no established trading market for
such security, then "Fair Value" means the value of such Common Stock or Other
Security as determined reasonably and in good faith by the Board of Directors of
the Company; AND PROVIDED, FURTHER, HOWEVER, that in the event the current
market price of a share of such Common Stock or of the minimum traded
denomination of such Other Security is determined during a period following the
announcement by the Company of (i) a dividend or distribution on the Common
Stock or Other Security payable in shares of Common Stock or in such Other
Security, or (ii) any subdivision, combination or reclassification of the Common
Stock or Other Security, and prior to the expiration of 30 Business Days after
the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each
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such case, the "Fair Value" shall be appropriately adjusted to take into account
ex-dividend trading. Anything herein to the contrary notwithstanding, in case
the Company shall issue any shares of Common Stock, rights, options, or Other
Securities in connection with the acquisition by the Company of the stock or
assets of any other Person or the merger of any other Person into the Company,
the Fair Value of the Common Stock or Other Securities so issued shall be
determined as of the date the number of shares of Common Stock, rights, options
or Other Securities was determined (as set forth in a written agreement between
the Company and the other party to the transaction) rather than on the date of
issuance of such shares of Common Stock, rights, options or Other Securities.
"ORIGINAL ISSUE DATE" has the meaning specified in Section
2.1.
"OTHER SECURITIES" means any stock (other than Common Stock) and other
securities of the Company or any other Person (corporate or otherwise) that the
holders of the Warrants at any time shall be entitled to receive or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or that at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities.
"PERSON" means any individual, partnership, association, joint venture,
corporation, business trust, unincorporated organization, government or
department, agency or subdivision thereof, or other person or entity.
"PLAN" means the Second Amended Joint Plan of Reorganization of Barneys,
as confirmed by order of the Bankruptcy Court entered on December 21, 1998.
"PUBLIC OFFERING" means any offering of Common Stock (or Other Securities)
to the public pursuant to an effective registration statement under the
Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be amended and in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such successor Federal statute.
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"WARRANT AGENT" has the meaning set forth in the preamble
hereof.
"WARRANT CERTIFICATES" has the meaning specified in Section
2.3.
"WARRANTS" has the meaning set forth in the recitals hereto.
ARTICLE 2
ISSUANCE OF WARRANTS
2.1 INITIAL ISSUANCE. On the date hereof (the "Original Issue Date"),
which is also the Effective Date, the Company shall, pursuant to the Plan,
deliver to the Company's disbursing agent under the Plan for re-distribution to
the holders of the Claims a global certificate for an aggregate of 1,013,514
Warrants.
2.2 INITIAL SHARE AMOUNT. The number of shares of Common Stock purchasable
upon exercise of the Warrants shall be one (1) Warrant to one (1) share of
Common stock, subject to adjustments from and after the Original Issue Date as
provided in Article 6 of this Agreement.
2.3 FORM OF WARRANT CERTIFICATES. The Warrants shall be evidenced by
certificates substantially in the form attached hereto as EXHIBIT A (the
"Warrant Certificates"). Each Warrant Certificate shall be dated as of the date
on which it is countersigned by the Warrant Agent, which shall be on the
Original Issue Date or, in the event of a division, exchange, substitution or
transfer of any of the Warrants, on the date of such event. The Warrant
Certificate may have such further legends and endorsements stamped, printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation pursuant thereto or with any
rule or regulation of any securities exchange on which the Warrants may be
listed.
2.4 EXECUTION OF WARRANT CERTIFICATES. Warrant Certificates shall be
executed on behalf of the Company by its Chairman of the Board, Vice Chairman of
the Board, President, any Vice President, Treasurer or Secretary, either
manually or by facsimile signature printed thereon. In case any such officer of
the Company whose signature shall have been placed upon any Warrant Certificate
shall cease to be such officer of the Company before countersignature by the
Warrant Agent or issuance and
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delivery thereof, such Warrant Certificate nevertheless may be countersigned by
the Warrant Agent and issued and delivered with the same force and effect as
though such person had not ceased to be such officer of the Company.
2.5 COUNTERSIGNATURE OF WARRANT CERTIFICATES. Warrant Certificates shall
be manually countersigned by an authorized signatory of the Warrant Agent and
shall not be valid for any purpose unless so countersigned. Such manual
countersignature shall constitute conclusive evidence of such authorization. The
Warrant Agent is hereby authorized to countersign, in accordance with the
provisions of this Section 2.5, and deliver any new Warrant Certificates, as
directed by the Company pursuant to Section 2.1 and as and when required
pursuant to the provisions of Articles 13 and 14. Each Warrant Certificate
shall, when manually countersigned by an authorized signatory of the Warrant
Agent, entitle the registered holder thereof to exercise the rights as the
holder of the number of Warrants set forth thereon, subject to the provisions of
this Agreement.
ARTICLE 3
EXERCISE PERIOD
3.1 EXERCISE PERIOD. Each Warrant shall entitle the holder thereof to
purchase from the Company one (1) share of Common Stock (subject to the
adjustments provided herein), at any time during the period that commences on
the first Business Day that is one (1) day after the Original Issue Date, and
that terminates at 5:00 p.m., New York City time on May 15, 2000 (the "Exercise
Period").
ARTICLE 4
EXERCISE PRICE
4.1 The Exercise Price for the Warrants shall be $8.68 per share (in each
case subject to adjustment pursuant to Article 6 hereof).
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ARTICLE 5
EXERCISE OF WARRANTS
5.1 MANNER OF EXERCISE. All or any of the Warrants represented by a
Warrant Certificate may be exercised by the registered holder thereof during
normal business hours on any Business Day, by surrendering such Warrant
Certificate, with the subscription form set forth therein duly executed by such
holder, by hand or by mail to the Warrant Agent at its office addressed to ▇▇▇▇
▇▇▇▇▇▇, or, if such exercise shall be in connection with an underwritten Public
Offering, at the location designated by the Company. Such Warrant Certificate
shall be accompanied by payment in respect of each Warrant that is exercised,
which shall be made by certified or official bank or bank cashier's check
payable to the order of the Company, except as otherwise provided herein. Such
payment shall be in an amount equal to the product of the number of shares of
Common Stock (without giving effect to any adjustment therein) designated in
such subscription form multiplied by the original Exercise Price for the
Warrants being exercised (plus such additional consideration as may be provided
herein). Upon such surrender and payment, such holder shall thereupon be
entitled to receive the number of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock (or Other Securities) determined as
provided in Articles 2 and 3, and as and if adjusted pursuant to Article 6.
5.2 WHEN EXERCISE EFFECTIVE. Each exercise of any Warrant pursuant to
Section 5.1 shall be deemed to have been effected immediately prior to the close
of business on the Business Day on which the Warrant Certificate representing
such Warrant, duly executed, with accompanying payment shall have been delivered
as provided in Section 5.1, and at such time the Person or Persons in whose name
or names the certificate or certificates for Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 5.3 shall be deemed
to have become the holder or holders of record thereof.
5.3 DELIVERY OF CERTIFICATES, ETC. (a) As promptly as practicable after
the exercise of any Warrant, and in any event within five (5) Business Days
thereafter (or, if such exercise is in connection with an underwritten Public
Offering, concurrently with such exercise), the Company at its expense (other
than as to payment of transfer taxes which will be paid by the holder) will
cause to be issued and delivered to such holder, or as such holder may otherwise
direct in writing (subject to Article 13),
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(i) a certificate or certificates for the number of shares of Common
Stock (or Other Securities) to which such holder is entitled, and
(ii) if less than all the Warrants represented by a Warrant
Certificate are exercised, a new Warrant Certificate or Certificates of
the same tenor and for the aggregate number of Warrants that were not
exercised, executed and countersigned in accordance with Sections 2.4 and
2.5.
(b) The Warrant Agent shall countersign any new Warrant Certificate,
register it in such name or names as may be directed in writing by such holder,
and shall deliver it to the person entitled to receive the same in accordance
with this Section 5.3. The Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates executed on behalf of the
Company for such purpose.
5.4 FRACTIONAL SHARES. No fractional shares of Common Stock (or Other
Securities) shall be issued upon any exercise of Warrants. If more than one
Warrant Certificate shall be delivered for exercise at one time by the same
holder, the number of full shares or securities that shall be issuable upon
exercise shall be computed on the basis of the aggregate number of Warrants
exercised. As to any fraction of a share of Common Stock (or Other Securities),
the Company shall pay a cash adjustment in respect thereto in an amount equal to
the product of the Fair Value per share of Common Stock (or Other Securities) as
of the Business Day next preceding the date of such exercise multiplied by such
fraction of a share.
ARTICLE 6
ADJUSTMENT OF THE AMOUNT OF COMMON STOCK
ISSUABLE AND THE EXERCISE PRICES UPON EXERCISE
6.1 STOCK DIVIDENDS, SPLIT-UPS AND COMBINATIONS OF SHARES. If after the
date hereof the number of outstanding shares of Common Stock is increased by a
dividend or share distribution, in each case payable in shares of Common Stock,
or by a split-up or other reclassification of shares of Common Stock, then, in
the case of such events, the amount of Common Stock issuable for each Warrant
and the Exercise Price will be adjusted as follows: on the day following the
date fixed for the determination of holders of shares of Common Stock entitled
to receive such dividend or share distribution, and in the cases of split-ups,
combinations and other reclassifications, on the day following the effective
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date thereof: (a) the Exercise Price in effect immediately prior to such action
shall be adjusted to a new Exercise Price that bears the same relationship to
the Exercise Price in effect immediately prior to such event as the total number
of shares of Common Stock outstanding immediately prior to such action bears to
the total number of shares of Common Stock outstanding immediately after such
event, and (b) the number of shares of Common Stock purchasable upon the
exercise of any Warrant after such event shall be the number of Shares of Common
Stock obtained by multiplying the number of shares of Common Stock purchasable
immediately prior to such adjustment upon the exercise of such Warrant by the
Exercise Price in effect immediately prior to such adjustment and dividing the
product so obtained by the Exercise Price in effect after such adjustment.
6.2 DISTRIBUTIONS. If after the date hereof the Company shall distribute
to all holders of its shares of Common Stock evidences of its indebtedness or
assets (excluding cash distributions made as a dividend payable out of earnings
or out of surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company) or rights to subscribe to shares
of Common Stock expiring more than 45 days after the issuance thereof, then in
each such case the Exercise Price in effect immediately prior to such
distribution shall be decreased to an amount determined by multiplying such
Exercise Price by a fraction, the numerator of which is the Fair Value of a
share of the Common Stock at the date of such distribution less the Fair Value
per share of Common Stock outstanding at such date of the assets or evidences of
indebtedness so distributed or of such subscription rights (as determined by the
board of directors of the Company, whose determination shall be conclusive, and
described in a statement filed with the Warrant Agent) and the denominator of
which is the Fair Value of a share of Common Stock at such date. Such adjustment
shall be made whenever any such distribution is made, and shall become effective
retroactively on the date immediately after the record date for the
determination of stockholders entitled to receive such distribution.
6.3 EXERCISE PRICE ADJUSTMENT. Except in the case of increases of shares
covered by Section 6.1 (as to which the adjustment provisions of such Section
shall apply), whenever the number of shares of Common Stock (or Other
Securities) into which a Warrant is exercisable is adjusted as provided in this
Article 6, then the Exercise Price payable upon exercise of the Warrant shall
simultaneously be adjusted by multiplying such Exercise Price immediately prior
to such adjustment by a fraction, the numerator of which shall be the number of
shares of Common Stock (or Other Securities) into which such Warrant was
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exercisable immediately prior to such adjustment, and the denominator of which
shall be the number of shares of Common Stock (or Other Securities) into which
such Warrant was exercisable immediately thereafter.
6.4 ADJUSTMENTS FOR MERGERS AND CONSOLIDATIONS. In case the Company, after
the date hereof, shall merge or consolidate with another Person, then, in the
case of any such transaction, proper provision shall be made so that, upon the
basis and terms and in the manner provided in this Warrant Agreement, the
holders of the Warrants, upon the exercise thereof at any time after the
consummation of such transaction (subject to the Exercise Period), shall be
entitled to receive (at the aggregate Exercise Price in effect at the time of
the transaction for all Common Stock or Other Securities issuable upon such
exercise immediately prior to such consummation), in lieu of the Common Stock or
Other Securities issuable upon such exercise prior to such consummation, the
greatest amount of securities, cash or other property to which such holder would
have been entitled as a holder of Common Stock (or Other Securities) upon such
consummation if such holder had exercised the rights represented by the Warrants
held by such holder immediately prior thereto, subject to adjustments
(subsequent to such consummation) as nearly equivalent as possible to the
adjustments provided for in Sections 6.1 and 6.2 hereof.
6.5 CALCULATION TO NEAREST CENT AND ONE-HUNDREDTH OF SHARE. All
calculations under this Article 6 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
6.6 NOTICE OF ADJUSTMENT IN EXERCISE PRICE. Whenever the Exercise Price
and securities issuable shall be adjusted as provided in this Article 6, the
Company shall forthwith file with the Warrant Agent a statement, signed by the
Chairman of the Board, Vice Chairman of the Board, the President or any Vice
President of the Company and by its Treasurer or an Assistant Treasurer or its
Secretary or an Assistant Secretary, stating in detail the facts requiring such
adjustment, the Exercise Price that will be effective after such adjustment and
the impact of such adjustment on the number and kind of securities issuable upon
exercise of the Warrants. The Company shall also cause a notice setting forth
any such adjustments to be sent by mail, first class, postage prepaid, to each
registered holder of Warrants at its address appearing on the Warrant register.
The Warrant Agent shall have no duty with respect to any statement filed with it
except to keep the same on file and available for inspection by registered
holders of Warrants during reasonable
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business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of a Warrant to determine whether any facts exist
which may require any adjustment to the Exercise Price or securities issuable,
or with respect to the nature or extent of any adjustment of the Exercise Price
or securities issuable when made or with respect to the method employed in
making such adjustment.
6.7 OTHER NOTICES. In case the Company after the date hereof shall propose
to take any action of the type described in Sections 6.1, 6.2 or 6.3 of this
Article 6, the Company shall give notice to the Warrant Agent and to each
registered holder of a Warrant in the manner set forth in subsection 6.6 of this
Article 6, which notice shall specify, in the case of action of the type
specified in subsection 6.2 or 6.3, the date on which a record shall be taken
with respect to any such action. Such notice shall be given, in the case of any
action of the type specified in subsection 6.2 or 6.3, at least ten (10) days
prior to the record date with respect thereto. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of any such
action. Where appropriate, such notice may be given in advance and may be
included as part of a notice required to be mailed under the provisions of
subsection 6.6 of this Article 6.
6.8 NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective of any
adjustments in the Exercise Price or the number of shares of Common Stock (or
any inclusion of Other Securities) issuable upon exercise, Warrants theretofore
or thereafter issued may continue to express the same prices and number of
shares as are stated in the similar Warrants issuable initially, or at some
subsequent time, pursuant to this Agreement, and the Exercise Price and such
number of shares issuable upon exercise specified thereon shall be deemed to
have been so adjusted.
6.9 TREASURY SHARES. Shares of Common Stock at any time owned by the
Company shall not be deemed to be outstanding for the purposes of any
computation under this Article 6.
ARTICLE 7
CONSOLIDATION, MERGER, ETC.
Notwithstanding anything contained herein to the contrary, the Company
will not effect a merger or consolidation unless, prior to the consummation of
such transaction, each Person (other than the Company) which may be required to
deliver any Common
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Stock, Other Securities, securities, cash or property upon the exercise of this
Warrant as provided herein shall assume, by written instrument delivered to the
Warrant Agent, the obligations of the Company under this Warrant Agreement and
under each of the Warrants, including, without limitation, the obligation to
deliver such shares of Common Stock, Other Securities, cash or property as may
be required pursuant to Article 6 hereof.
ARTICLE 8
NO DILUTION OR IMPAIRMENT
The Company will not, by amendment of its certificate of incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issuance or sale of securities or any other voluntary action or
omission, avoid or seek to avoid the observance or performance of any of the
terms of this Agreement or any of the Warrants issued hereunder, but will at all
times in good faith observe and perform all such terms and take all such action
as may be necessary or appropriate in order to protect the rights of each holder
of a Warrant against dilution or other impairment of the kind specified herein
PROVIDED, HOWEVER, that, subject to compliance with the applicable provisions of
this Agreement, the Company shall not be prohibited by this Article 8 or by any
provision of this Agreement from making decisions providing for, INTER ALIA, the
merger or consolidation of the Company or the sale of its assets which
transactions, in the judgment of the Company's board of directors, are in the
best interests of the Company and stockholders. Without limiting the generality
of the foregoing, the Company (a) will not permit the par value of any shares of
stock receivable upon the exercise of any Warrant to exceed the amount payable
therefor upon such exercise, (b) will take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of stock upon the exercise of all of the Warrants
from time to time outstanding and (c) will not take any action that results in
any adjustment of the shares issuable upon exercise of the Warrants (or which
entitles the holders of the Warrants to receive Other Securities upon such
exercise) if the total number of shares of Common Stock (or Other Securities)
issuable after the action upon the exercise of all of the Warrants would exceed
the total number of shares of Common Stock (or Other Securities) then authorized
by the Company's certificate of incorporation and available for the purpose of
issuance upon such exercise.
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ARTICLE 9
REPORTS
In each case of any adjustment or readjustment in the shares of Common
Stock (or Other Securities) issuable upon the exercise of the Warrants, the
Company at its expense will promptly compute such adjustment or readjustment
after giving effect to such in accordance with the terms of this Agreement and
shall prepare a report setting forth such adjustment or readjustment and showing
in reasonable detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based. The Company will forthwith mail a copy
of each such report to the Warrant Agent, which shall promptly mail a copy to
each holder of a Warrant. The Warrant Agent will cause the same to be available
for inspection at its principal office during normal business hours by any
holder of a Warrant or any prospective purchaser of a Warrant designated by the
holder thereof.
ARTICLE 10
NOTIFICATION OF CERTAIN EVENTS
10.1 CORPORATE ACTION. In the event of:
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a regular periodic dividend payable in cash
out of earned surplus) or other distribution of any kind, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right or interest of
any kind; or
(b) (i) any capital reorganization of the Company, (ii) any
reclassification of the capital shares of the Company (other than a change in
par value or from par value to no par value or from no par value to par value or
as a result of a split-up or combination), (iii) the consolidation or merger of
the Company with or into any other corporation (other than a consolidation or
merger in which the Company is the continuing corporation and which does not
result in any change in the shares of Common Stock), (iv) the sale of the
properties and assets of the Company as, or substantially as, an entirety to
another Person, or (v) an exchange offer for Common Stock (or Other Securities);
or
13
(c) the voluntary or involuntary dissolution, liquidation, or winding up
of the Company, the Company shall cause to be filed with the Warrant Agent and
mailed to each holder of a Warrant a notice specifying (x) the date or expected
date on which any such record is to be taken for the purpose of such dividend,
distribution, rights, event, transaction or amendment (or vote thereon) and the
amount and character of any such dividend, distribution, exchange, rights, or
vote, or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, exchange
or rights are to be determined, and the amount and character of such dividend,
distribution or rights, or (y) the date or expected date on which any such
reorganization, reclassification, recapitalization, consolidation, merger, sale,
transfer, exchange offer, dissolution, liquidation or winding up is expected to
become effective, and the time, if any such time is to be fixed, as of which
holders of record of Common Stock (or Other Securities) shall be entitled to
exchange their shares of Common Stock (or Other Securities) for the securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, sale, transfer, exchange offer,
dissolution, liquidation or winding up. Such notice shall be delivered not less
than twenty (20) days prior to such date therein specified, in the case of any
such date referred to in clause (x) of the preceding sentence, and not less than
thirty (30) days prior to such date therein specified, in the case of any such
date referred to in clause (y) of the preceding sentence. Failure to give such
notice within the time provided or any defect therein shall not affect the
legality or validity of any such action.
10.2 AVAILABLE INFORMATION. The Company shall promptly file with the
Warrant Agent copies of its annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not required to make such filings, the Company shall promptly
deliver to the Warrant Agent copies of any annual, quarterly or other reports
and financial statements that are generally provided to holders of equity or
debt securities of the Company (other than bank or similar institutional debt)
in their capacity as holders of such securities.
14
ARTICLE 11
RESERVATION OF STOCK
11.1 RESERVATION; DUE AUTHORIZATION, ETC. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock (or out of authorized Other Securities), solely for
issuance and delivery upon exercise of Warrants, the full number of shares of
Common Stock (and Other Securities) from time to time issuable upon the exercise
of all Warrants and any other outstanding warrants, options or similar rights,
from time to time outstanding. All shares of Common Stock (and Other Securities)
shall be duly authorized and, when issued upon such exercise, shall be duly and
validly issued, and (in the case of shares) fully paid and nonassessable, and
free from all taxes, liens, charges, security interests, encumbrances and other
restrictions created by or through the Company.
11.2 COMPLIANCE WITH LAW. The Company will use its best efforts, at its
expense and on a continual basis, to assure that all shares of Common Stock (and
Other Securities) that may be issued upon exercise of Warrants may be so issued
and delivered without violation of any Federal or state securities law or
regulation, or any other law or regulation applicable to the Company or any of
its subsidiaries, PROVIDED THAT with respect to any such exercise involving a
sale or transfer of Warrants or any such securities issuable upon such exercise,
the Company shall have no obligation to register such Warrants or securities
under any such securities law.
ARTICLE 12
PAYMENT OF TAXES
The Company will pay any and all documentary stamp or similar issue taxes
payable to the United States of America or any State, or any political
subdivision or taxing authority thereof or therein, in respect of the issuance
or delivery of shares of Common Stock (or Other Securities) on exercise of
Warrants, PROVIDED, that the Company shall not be required to pay any tax that
may be payable in respect of any transfer of a Warrant or any transfer involved
in the issuance and delivery of Common Stock (or Other Securities) in a name
other than that of the registered holder of the Warrants to be exercised, and no
such issuance or delivery shall be made unless and until the person requesting
such issuance has paid to the Company the
15
amount of any such tax or has established, to the reasonable satisfaction of the
Company, that such tax has been paid.
ARTICLE 13
LOSS OR MUTILATION
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of an indemnity bond reasonably
satisfactory to them in form or amount, and (in the case of mutilation) upon
surrender and cancellation thereof, then, in the absence of notice to the
Company or the Warrant Agent that the Warrants represented thereby have been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Warrant Agent and, upon the Company's request, an authorized signatory of the
Warrant Agent shall manually countersign and deliver, to the registered holder
of the lost, stolen, destroyed or mutilated Warrant Certificate, in exchange for
or in lieu thereof, a new Warrant Certificate of the same tenor and for a like
aggregate number of Warrants. Upon the issuance of any new Warrant Certificate
under this Article 13, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the reasonable fees and expenses of
the Warrant Agent) in connection therewith. Every new Warrant Certificate
executed and delivered pursuant to this Article 13 in lieu of any lost, stolen
or destroyed Warrant Certificate shall be entitled to the same benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates, whether or not the allegedly lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone. The provisions of this
Article 13 are exclusive and shall preclude (to the extent lawful) all other
rights or remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
ARTICLE 14
WARRANT REGISTRATION
14.1 REGISTRATION. The Warrant Certificates shall be issued in registered
form only and shall be registered in the names of the record holders of the
Warrant Certificates to whom they are to be delivered. The Company shall
maintain or cause to be
16
maintained a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Warrants and of
transfers or exchanges of Warrant Certificates as provided in this Agreement.
Such register shall be maintained at the office of the Company or the Warrant
Agent located at the respective address therefor as provided in Section 17.1.
Such register shall be open for inspection upon notice at all reasonable times
by the Warrant Agent and each holder of a Warrant.
14.2 TRANSFER OR EXCHANGE. Subject to Section 2.1 hereof, at the option of
the holder, Warrant Certificates may be exchanged or transferred for other
Warrant Certificates for a like aggregate number of Warrants, upon surrender of
the Warrant Certificates to be exchanged at the office of the Company or the
Warrant Agent maintained for such purpose at the respective address therefor as
provided in Section 17.1, and upon payment of the charges herein provided.
Whenever any Warrant Certificates are so surrendered for exchange or transfer,
the Company shall execute, and an authorized signatory of the Warrant Agent
shall manually countersign and deliver, the Warrant Certificates that the holder
making the exchange is entitled to receive.
14.3 VALID AND ENFORCEABLE. All Warrant Certificates issued upon any
registration of transfer or exchange of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such registration of transfer or exchange.
14.4 ENDORSEMENT. Every Warrant Certificate surrendered for registration
of transfer or exchange shall (if so required by the Company or the Warrant
Agent) be duly endorsed, or be accompanied by an instrument of transfer in form
reasonably satisfactory to the Company and the Warrant Agent and duly executed
by the registered holder thereof or such holder's officer or representative duly
authorized in writing.
14.5 NO SERVICE CHARGE. No service charge shall be made for any
registration of transfer or exchange of Warrant Certificates.
14.6 CANCELLATION. Any Warrant Certificate surrendered for registration of
transfer, exchange or the exercise of the Warrants represented thereby shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
cancelled by the Warrant Agent. Any such Warrant Certificate shall not be
reissued by the Company and,
17
except as provided in this Article 14 in case of an exchange or transfer, in
Article 13 in case of a mutilated Warrant Certificate and in Article 3 in case
of the exercise of less than all the Warrants represented thereby, no Warrant
Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time or otherwise dispose of such cancelled
Warrant Certificates in a manner reasonably satisfactory to the Company.
ARTICLE 15
WARRANT AGENT
15.1 OBLIGATIONS BINDING. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the terms and conditions set forth in
this Article 15. The Company, and the holders of Warrants by their acceptance
thereof, shall be bound by all of such terms and conditions.
15.2 NO LIABILITY. The Warrant Agent shall not by countersigning Warrant
Certificates or by any other act hereunder be accountable with respect to or be
deemed to make any representations as to the validity or authorization of the
Warrants or the Warrant Certificates (except as to its countersignature
thereon), as to the validity, authorization or value (or kind or amount) of any
Common Stock or of any Other Securities or other property delivered or
deliverable upon exercise of any Warrant, or as to the purchase price of such
Common Stock, securities or other property. The Warrant Agent shall not (i) be
liable for any recital or statement of fact contained herein or in the Warrant
Certificates or for any action taken, suffered or omitted by the Warrant Agent
in good faith in the belief that any Warrant Certificate or any other document
or any signature is genuine or properly authorized, (ii) be responsible for
determining whether any facts exist that may require any adjustment of the
purchase price and the number of shares of Common Stock purchasable upon
exercise of Warrants, or with respect to the nature or extent of any such
adjustments when made, or with respect to the method of adjustment employed,
(iii) be responsible for any failure on the part of the Company to issue,
transfer or deliver any Common Stock or Other Securities or property upon the
surrender of any Warrant for the purpose of exercise or to comply with any other
of the Company's covenants and obligations contained in this Agreement or in the
Warrant Certificates or (iv) be liable for any act or omission in connection
with this Agreement except for its own bad faith, negligence or willful
misconduct.
18
15.3 INSTRUCTIONS. The Warrant Agent is hereby authorized to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, Vice Chairman of the Board, President, any Vice
President, Treasurer or any Assistant Treasurer of the Company and to apply to
any such officer for advice or instructions. The Warrant Agent shall not be
liable for any action taken, suffered or omitted by it in good faith in
accordance with the instructions of any such officer.
15.4 AGENTS. The Warrant Agent may execute and exercise any of the rights
and powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, agents or employees, provided reasonable care has been
exercised in the selection and in the continued employment of any such attorney,
agent or employee. The Warrant Agent shall not be under any obligation or duty
to institute, appear in, or defend any action, suit or legal proceeding in
respect hereof, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper. The Warrant
Agent shall promptly notify the Company in writing of any claim made or action,
suit or proceeding instituted against the Warrant Agent arising out of or in
connection with this Agreement.
15.5 COOPERATION. The Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further acts, instruments and assurances as may reasonably be required by the
Warrant Agent in order to enable the Warrant Agent to carry out or perform its
duties under this Agreement.
15.6 AGENT ONLY. The Warrant Agent shall act solely as agent. The Warrant
Agent shall not be liable except for the performance of such duties as are
specifically set forth herein, and no implied covenants or obligations shall be
read into this Agreement against the Warrant Agent, whose duties and obligations
shall be determined solely by the express provisions hereof.
15.7 RIGHT TO COUNSEL. The Warrant Agent may at any time consult with
legal counsel satisfactory to it (who may be legal counsel for the Company) and
the Warrant Agent shall incur no liability or responsibility to the Company or
to any Warrant holder for any action taken, suffered or omitted by the Warrant
Agent in good faith in accordance with the opinion or advice of such counsel.
15.8 COMPENSATION. The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse the Warrant Agent for
its reasonable expenses
19
hereunder; and further agrees to indemnify the Warrant Agent and hold it
harmless against any and all liabilities, including, but not limited to,
judgments, costs and reasonable counsel fees, for anything done, suffered or
omitted by the Warrant Agent in the execution of its duties and powers
hereunder, except for any such liabilities that arise as a result of the Warrant
Agent's bad faith, negligence or willful misconduct.
15.9 ACCOUNTING. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
moneys received by the Warrant Agent on behalf of the Company on the purchase of
shares of Common Stock (or Other Securities) through the exercise of Warrants.
15.10 NO CONFLICT. The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
15.11 RESIGNATION; TERMINATION. The Warrant Agent may resign its duties
and be discharged from all further duties and liabilities hereunder (except
liabilities arising as a result of the Warrant Agent's bad faith, negligence or
willful misconduct), after giving thirty (30) days' prior written notice to the
Company. The Company may remove the Warrant Agent upon thirty (30) days' written
notice, and the Warrant Agent shall thereupon in like manner be discharged from
all further duties and liabilities hereunder, except as to liabilities arising
as a result of the Warrant Agent's bad faith, negligence or willful misconduct.
The Company shall cause to be mailed (by first class mail, postage prepaid) to
each registered holder of a Warrant at such holder's last address as shown on
the register of the Company, at the Company's expense, a copy of such notice of
resignation or notice of removal, as the case may be. Upon such resignation or
removal the Company shall promptly appoint in writing a new warrant agent. If
the Company shall fail to make such appointment within a period of thirty (30)
days after it has been notified in writing of such resignation by the resigning
Warrant Agent or after such removal, then the holder of any Warrant may apply to
any court of competent jurisdiction for the appointment of a new warrant agent.
Pending appointment of a successor to the Warrant Agent, either by the Company
or by such
20
a court, the duties of the Warrant Agent shall be carried out by the Company.
Any successor warrant agent, whether appointed by the Company or by such a
court, shall be a corporation, incorporated under the laws of the United States
or of any state thereof and authorized under such laws to exercise corporate
trust powers, be subject to supervision and examination by Federal or state
authority, and have a combined capital and surplus of not less than $100,000,000
as set forth in its most recent published annual report of condition. After
acceptance in writing of such appointment by the new warrant agent it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall be necessary
or expedient to execute and deliver any further assurance, conveyance, act or
deed, the same shall be done at the expense of the Company and shall be legally
and validly executed and delivered by the resigning or removed Warrant Agent.
Not later than the effective date of any such appointment the Company shall file
notice thereof with the resigning or removed Warrant Agent and shall forthwith
cause a copy of such notice to be mailed (by first class, postage prepaid) to
each registered holder of a Warrant at such holder's last address as shown on
the register of the Company. Failure to give any notice provided for in this
Section 15.11, or any defect in any such notice, shall not affect the legality
or validity of the resignation of the Warrant Agent or the appointment of a new
warrant agent, as the case may be.
15.12 CHANGE OF WARRANT AGENT. If at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrant Certificates shall
have been countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant Certificates so
countersigned; and if at that time any of the Warrant Certificates shall not
have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such
cases such Warrant Certificates shall have the full force and effect provided in
the Warrant Certificates and this Agreement.
15.13 SUCCESSOR WARRANT AGENT. Any corporation into which the Warrant
Agent or any new warrant agent may be merged or any corporation resulting from
any consolidation to which the Warrant Agent or any new warrant agent shall be a
party or any corporation succeeding to all or substantially all the agency
business of the Warrant Agent or any new warrant agent shall be a successor
Warrant Agent under this Agreement without any further act, PROVIDED, that such
corporation would be eligible for
21
appointment as a new warrant agent under the provisions of Section 15.11 of this
Article 15. The Company shall promptly cause notice of the succession as Warrant
Agent of any such successor Warrant Agent to be mailed (by first class mail,
postage prepaid) to each registered holder of a Warrant at its last address as
shown on the register of the Company.
ARTICLE 16
REMEDIES, ETC.
16.1 REMEDIES. The Company stipulates that the remedies at law of each
holder of a Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant Agreement are not and will not be adequate and that, to the fullest
extent permitted by law, such terms may be specifically enforced by a decree for
the specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
16.2 WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Prior to the exercise of the
Warrants represented thereby no holder of a Warrant Certificate, as such, shall
be entitled to any rights of a stockholder of the Company, including, but not
limited to, the right to vote, to receive dividends or other distributions, to
exercise any preemptive right or, except as otherwise provided herein, to
receive any notice of meetings of stockholders, and no such holder shall be
entitled to receive notice of any proceedings of the Company except as provided
in this Agreement. Nothing contained in this Agreement shall be construed as
imposing any liabilities on such holder to purchase any securities or as a
stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
16.3 RIGHT OF ACTION. All rights of action in respect of this Agreement
are vested in the registered holders of the Warrants. Any registered holder of
any Warrant, without the consent of the Warrant Agent or the registered holder
of any other Warrant, may in such holder's own behalf and for such holder's own
benefit enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such
holder's right to exercise such holder's Warrants in the manner provided in the
Warrant Certificate representing such Warrants and the Company's obligations
under this Agreement and the Warrants.
22
ARTICLE 17
MISCELLANEOUS
17.1 NOTICES. Any notice, demand or delivery authorized by this Agreement
shall be sufficiently given or made if sent by first class mail, postage
prepaid, addressed to any registered holder of a Warrant at such holder's last
known address appearing on the register of the Company, and to the Company or
the Warrant Agent as follows:
If to the Company:
Barneys New York, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Warrant Agent:
American Stock Transfer & Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as shall have been furnished in writing, in accordance
with this Section 17.1, to the party giving or making such notice, demand or
delivery.
17.2 GOVERNING LAW AND CONSENT TO FORUM. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE COMPANY AND THE WARRANT AGENT EACH
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PERSON TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
23
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
17.3 BENEFITS OF THIS AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent and their respective
successors and assigns, and the registered and beneficial holders from time to
time of the Warrants and of holders of the Common Stock, where applicable.
Nothing in this Agreement is intended or shall be construed to confer upon any
other person, any right, remedy or claim under or by reason of this Agreement or
any part hereof.
17.4 AGREEMENT OF HOLDERS OF WARRANT CERTIFICATES. Every holder of a
Warrant Certificate, by accepting the same, covenants and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that the Warrant Certificates are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement,
and the Company and the Warrant Agent may deem and treat the person in whose
name the Warrant Certificate is registered as the absolute owner for all
purposes whatsoever and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
17.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each such counterpart shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
17.6 AMENDMENTS. The Warrant Agent may, without the consent or concurrence
of the holders of the Warrants, by supplemental agreement or other writing, join
with the Company in making any amendments or modifications of this Agreement
that they shall have been advised by counsel (a) are required to cure any
ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake or manifest error herein contained and which do not
accurately reflect the understanding of the parties hereto, (b) add to the
covenants and agreements of the Company in this Agreement further covenants and
agreements of the Company thereafter to be observed, or surrender any rights or
power reserved to or conferred upon the Company in this Agreement or (c) do not
and will not adversely affect, alter or change the rights, privileges or
immunities of the registered holders of Warrants or of any person entitled to
the benefits of this Agreement who has not assented to such change, in writing.
This Agreement may otherwise be amended by the Company and the Warrant Agent
only with the consent of the holders of a majority of the then outstanding
Warrants. Notwithstanding the foregoing,
24
the consent of each holder of a Warrant affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the number
of shares of Common Stock (or Other Securities) purchasable upon exercise of
Warrants would be decreased (other than pursuant to adjustments provided
herein). The Warrant Agent shall join with the Company in the execution and
delivery of any such amendment unless such amendment affects the Warrant Agent's
own rights, duties or immunities hereunder, in which case the Warrant Agent may,
but shall not be required to, join in such execution and delivery. Upon
execution and delivery of any amendment pursuant to this Section 17.6, such
amendment shall be considered a part of this Agreement for all purposes and
every holder of a Warrant Certificate theretofore or thereafter countersigned
and delivered hereunder shall be bound thereby.
17.7 CONSENT TO JURISDICTION. The parties hereby expressly acknowledge and
agree that, to the extent permitted by applicable law, the Bankruptcy Court
shall have exclusive jurisdiction to hear and determine any and all disputes
concerning the distribution of Warrants hereunder to holders of Claims pursuant
to the Plan. The Warrant Agent hereby consents to the jurisdiction of the
Bankruptcy Court with respect to any such disputes and waives any argument of
lack of such jurisdiction.
17.8 CERTAIN COVENANTS OF THE COMPANY. The Company covenants and agrees
that, for so long as any of the Warrants shall remain outstanding, the Company
will not, without the approval of a majority of the Company's independent
directors (i.e., those directors who are not Affiliates of Bay Harbour
Management L.C., Whippoorwill Associates, Inc., Isetan Company Ltd. or any other
Affiliate of the Company, nor employees of the Company), issue shares of Common
Stock to any Affiliate of the Company at a purchase price less than the Fair
Value thereof; PROVIDED, HOWEVER, that the foregoing approval shall not be
required at any time that the Company has no independent directors.
17.9 HEADINGS. The table of contents hereto and the descriptive headings
of the several sections hereof are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
BARNEYS NEW YORK, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FORM OF FACE OF WARRANT CERTIFICATE]
Warrant Number of Warrant(s):
No. ______ ______
Exercisable During the Period Commencing _________
and Terminating at 5:00 p.m. _________
except as provided below
WARRANT TO PURCHASE
COMMON STOCK
OF
BARNEYS NEW YORK, INC.
This Certifies that __________ or registered assigns, is the owner of the
number of WARRANTS set forth above, each of which represents the right, at any
time after ________ (the "Original Issue Date") and on or before 5:00 p.m., New
York City time, on May 15, 2000 (the "Exercise Period"), to purchase from
Barneys New York, Inc., a Delaware corporation (the "Company"), at the price of
$ _____ per share (the "Exercise Price"), one share of Common Stock, $0.01 par
value, of the Company as such stock was constituted as of the Original Issue
Date, subject to adjustment as provided in the Warrant Agreement hereinafter
referred to, upon surrender hereof, with the subscription form on the reverse
hereof duly executed, by hand or by mail to [INSERT NAME AND ADDRESS OF WARRANT
AGENT], or to any successor thereto, as the warrant agent under the Warrant
Agreement, at the office of such successor maintained for such purpose (any such
warrant agent being herein called the "Warrant Agent") (or, if such exercise
shall be in connection with an underwritten Public Offering of shares of such
Common Stock (or Other securities) (as such term and other capitalized terms
used herein are defined in the Warrant Agreement) subject to the Warrant
Agreement, at the location at which the Company shall have agreed to deliver
such securities), and simultaneous payment in full (by certified or official
bank or bank cashier's check payable to the order of the Company) of the
Exercise Price in respect of each Warrant represented by this Warrant
Certificate that is so exercised, all subject to the terms and conditions hereof
and of the Warrant Agreement.
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Upon any partial exercise of the Warrants represented by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate representing the Warrants that were not exercised.
No fractional shares may be issued upon the exercise of rights to purchase
hereunder, and as to any fraction of a share otherwise issuable, the Company
will make a cash adjustment in lieu of such issuance, as provided in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with a Warrant
Agreement, dated as of __________, 199_ (the "Warrant Agreement"), between the
Company and __________, as Warrant Agent, and is subject to the terms and
provisions contained therein, all of which terms and provisions the holder of
this Warrant Certificate consents to by acceptance hereof. Copies of the Warrant
Agreement are on file at the above-mentioned office of the Warrant Agent and may
be obtained by writing to the Warrant Agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Dated: BARNEYS NEW YORK, INC.
By:
-----------------------------------
Title:
Countersigned:
--------------------------------
as Warrant Agent
By:
----------------------------
Authorized Signatory
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[FORM OF REVERSE OF WARRANT CERTIFICATE]
BARNEYS NEW YORK, INC.
The transfer of this Warrant Certificate and all rights hereunder is
registrable by the registered holder hereof, in whole or in part, on the
register of the Company upon surrender of this Warrant Certificate at the office
or agency of the Company or the office of the Warrant Agent maintained for such
purpose at [INSERT NAME AND ADDRESS OF WARRANT AGENT], attention:
____________________, duly endorsed or accompanied by a written instrument of
transfer duly executed and in form satisfactory to the Company and the Warrant
Agent, by the registered holder hereof or his attorney duly authorized in
writing and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer or registration thereof. Upon any partial
transfer the Company will cause to be delivered to such holder a new Warrant
Certificate or Certificates with respect to any portion not so transferred.
This Warrant Certificate may be exchanged at the office or agency of the
Company or the office of the Warrant Agent maintained for such purpose at
[INSERT NAME AND ADDRESS OF WARRANT AGENT], attention: ____________________, for
Warrant Certificates representing the same aggregate number of Warrants, each
new Warrant Certificate to represent such number of Warrants as the holder
hereof shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the holder of
this Warrant Certificate, as such, shall not be entitled to any rights of a
stockholder of the Company, including, but not limited to, the right to vote, to
receive dividends or other distributions, to exercise any preemptive right or,
except as provided in the Warrant Agreement, to receive any notice of meetings
of stockholders, and shall not be entitled to receive notice of any proceedings
of the Company except as provided in the Warrant Agreement. Nothing contained
herein shall be construed as imposing any liabilities upon the holder of this
Warrant Certificate to purchase any securities or as a stockholder of the
Company, whether such liabilities are asserted by the Company or by creditors or
stockholders of the Company or otherwise.
This Warrant Certificate shall he void and all rights represented hereby
shall cease unless exercised on or before the close of business on
______________, 200_.
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This Warrant Certificate shall not be valid for any purpose until it shall
have been manually countersigned by an authorized signatory of the Warrant
Agent.
Witness the facsimile seal of the Company and the signature of its duly
authorized officer.
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SUBSCRIPTION FORM
(TO BE EXECUTED ONLY UPON EXERCISE OF WARRANT)
TO BARNEYS NEW YORK, INC.
______________________________, as Warrant Agent
Attention: ____________________
The undersigned (i) irrevocably exercises the Warrants represented by the
within Warrant Certificate, (ii) purchases one share of Common Stock of Barneys
New York, Inc. (before giving effect to the adjustments provided in the Warrant
Agreement referred to in the within Warrant Certificate) for each Warrant so
exercised and herewith makes payment in full of the purchase price of $_____ per
share, in respect of each Warrant so exercised as provided in the Warrant
Agreement (such payment being by certified or official bank or bank cashier's
check payable to the order of Barneys New York, Inc.), all on the terms and
conditions specified in the within Warrant Certificate and the Warrant
Agreement, (iii) surrenders this Warrant Certificate and all right, title and
interest therein to Barneys New York, Inc. and (iv) directs that the securities
or other property deliverable upon the exercise of such Warrants be registered
or placed in the name and at the address specified below and delivered thereto.
Dated: ____________, ____
-----------------------------------
(Owner)*
-----------------------------------
(Signature of Authorized
Representative)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
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Securities or property to be
issued and delivered to:
-----------------------------------
Signature Guaranteed**
Please insert social
security or other
identifying number
-----------
Name ___________________________________________________________________________
Street Address _________________________________________________________________
City, State and Zip Code _______________________________________________________
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns and transfers unto the Assignee named
below all of the rights of the undersigned under the within Warrant Certificate,
with respect to the number of warrants set forth below:
Name of No. of
Assignee Address Warrants
-------- ------- --------
Please insert social
security or other
identifying number
of Assignee
-----------
and does hereby irrevocably constitute and appoint __________ attorney to make
such transfer on the books of Barneys New York, Inc. maintained for the purpose,
with full power of substitution in the premises.
Dated: ____________, ____
Name ___________________________*
Signature of Authorized
Representative __________________
Signature Guaranteed __________**
* The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every
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particular, without alteration or enlargement or any change whatsoever.
** The signature must be guaranteed by a securities transfer agents
medallion program ("stamp") participant or an institution receiving prior
approval from the Warrant Agent.
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