FIRST AMENDMENT TO VOTING AGREEMENT
Exhibit 10.4
FIRST AMENDMENT
TO
This First Amendment ("Amendment") to the Voting Agreement is made and entered into as the 2nd day of August, 2002 (the "Effective Date") by and among Harold's Stores, Inc., an Oklahoma corporation (the "Company"), Inter-Him, N.V. ("Inter-Him"), the individuals and entities listed on the Schedule of Family Shareholders attached hereto as Exhibit A (collectively, the "Family Shareholders"), and W. Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx (collectively, the "New Investors"), in order to amend the Voting Agreement (the "Voting Agreement") dated as of February 28, 2001 by and among the Company, Inter-Him and the Family Shareholders.
WITNESSETH:
WHEREAS, the Company, Inter-Him and the Family Shareholders entered into the Voting Agreement in connection with the transactions contemplated in that certain Series 2001-A Preferred Stock Purchase Agreement dated as of February 28, 2001 (the "2001 Preferred Stock Purchase Agreement"), whereby the Company sold 300,000 shares of Series 2001-A Preferred Stock of the Company to Inter-Him;
WHEREAS, the Voting Agreement sets forth certain agreements of the Family Shareholders and Inter-Him regarding the election of members of the Board of Directors of the Company;
WHEREAS, the Company now desires to issue 21500,000 shares of Series 2002-A Preferred Stock to Inter-Him and the New Investors, as contemplated in that certain Series 2002-A Preferred Stock Purchase Agreement dated as of June 26, 2002 (the "2002 Preferred Stock Purchase Agreement"), and Inter-Him and the New Investors desire to acquire such shares of Series 2002-A Preferred Stock as so contemplated;
WHEREAS, in connection with the 2002 Preferred Stock Purchase Agreement, Inter-Him and its transferee, W. Xxxxxx Xxxxxx, have agreed to surrender their shares of the Series 2001-A Preferred Stock of the Company in exchange for an equal number of shares of the Amended Series 2001-A Preferred Stock of the Company, which the Company will issue to them upon cancellation of all of the Series 2001-A Preferred Stock;
WHEREAS, it is desirable and in the mutual best interests of the Company, Inter-Him, the Family Shareholders and the New Investors to amend the Voting Agreement to include the New Investors as Investors thereunder, to eliminate certain voting obligations of the Family Shareholders contained therein and to provide for certain other matters; and
WHEREAS, Inter-Him holds more than the minimum number of shares of Common Stock and Series 2001-A Preferred Stock (on an as-converted basis) of the Company, and the Family Shareholders executing this Amendment hold more than the minimum number of shares of Common Stock of the Company, required in order to amend the Voting Agreement pursuant to Section 3.8 thereof.
NOW, THEREFORE, in consideration of the recitals and agreements contained herein and the benefits to be derived from the mutual observance of the provisions of this Amendment and the Voting Agreement, the parties agree as follows:
1. Certain Definitions. From and after the Effective Date, the meaning of the following terms defined in the Voting Agreement shall be deleted, with the definitions set forth below substituted therefor:
(a) "Investors" shall mean Inter-Him and the New Investors;
(b) "Preferred Purchase Agreement" shall mean both the 2001 Preferred Stock Purchase Agreement and the 2002 Preferred Stock Purchase Agreement; and
(c) "Preferred Stock" shall mean the shares of Amended Series 2001-A Preferred Stock, $.01 par value, and the shares of Series 2002-A Preferred Stock, $.01 par value, but shall no longer include any reference to the Series 2001-A Preferred Stock of the Company.
2. Composition of the Board of Directors. Effective as of the Effective Date, Section 1.1 of the Voting Agreement shall be amended in its entirety to read as follows:
"1.1 General. For so long as the Family Shareholders or their lineal descendants (including trusts for the benefit of such persons) continue to own, beneficially or of record, in the aggregate at least ten percent (10%) of the Common Stock (assuming that all outstanding shares of Preferred Stock are converted into Common Stock), a majority-in-interest of the Family Shareholders shall designate one (1) individual to serve on the Board of Directors of the Company, and the Investors agree to vote or act with respect to their shares of capital stock of the Company, whether now held or hereafter acquired, so as to elect such designee to the Board of Directors of the Company."
All references in the Voting Agreement to Sections 1.1(a) or 1.1(b) shall be deemed to be references to Section 1.1 as so amended.
3. Ownership of Capital Stock. Effective as of the Effective Date, Section 2.7 of the Voting Agreement is hereby deleted in its entirety, and shall have no further force or effect.
4. Substitution of Schedule of Investors. The Schedule of Investors attached to the Voting Agreement shall be deleted and replaced with the Schedule of Investors attached to this Amendment as Exhibit B.
5. Other Terms of Voting Agreement. Except for the amendments set forth herein, all other provisions of the Voting Agreement shall remain in full force and effect and shall be otherwise unaffected hereby.
6. Counterpart Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.
Signature page follows this page.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date above set forth.
"COMPANY" Harold's Stores, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Chief Executive Officer
"INTER-HIM" Inter-Him, N.V.
By: /s/ Xxxxxx xx Xxxx
Xxxxxx xx Xxxx
"NEW INVESTORS" /s/ W. Xxxxxx Xxxxxx
W. Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
"FAMILY SHAREHOLDERS" /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, individually and as Trustee under the Xxxxxx X. Xxxxxx Family Revocable Trust, UA dated 9/7/93, and under the Xxxxxx X. Xxxxxx Revocable Trust dated 9/8/93
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, individually and as Trustee under the Xxxxxx X. Xxxxxx Revocable Trust dated 9/8/93
/s/ Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, individually and as custodian for Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx under the Texas UGMA
Xxxxxxx X. Xxxxx, individually and as Trustee under the H. Xxxxxx Xxxxxx and Xxxx X. Xxxxxx 1997 Irrevocable Trust
/s/ H. Xxxxxx Xxxxxx
H. Xxxxxx Xxxxxx, individually and as custodian for Xxxxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx under the Oklahoma UTMA
Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxx Xxxx
Xxxx Xxxxxx Xxxx, individually and as custodian for Miles X. Xxxx, Xxxxxxx X. Xxxx and Xxxxxx X. Xxxx under the Texas UGMA
/s/ Xxxx X. Xxxx
Xxxx X. Xxxx
Arvest Trust Company, N.A., as Trustee*
By: /s/ El Xxxxx Xxxxxxx
Name: El Xxxxx Xxxxxxx
Title: Vice President and Trust Officer
*Executed as Trustee with respect to:
Xxxxxxxxx X. Xxxxxx Trust A
Xxxxxxxxx X. Xxxxxx Trust B
Exhibit A
Schedule of Family Shareholders
Name and Address of each Family Shareholder:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx Xxxxx
0000 Xxxxxxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxx
Xxxxxx, XX 00000
H. Xxxxxx Xxxxxx
0000 Xxx Xxx Xxxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxx
0000 Xxx Xxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Xxxxxx Xxxx
0000 Xxxxxxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxx
0000 Xxxxxxxxx
Xxxxxx, XX 00000
Arvest Trust Company, N.A., as Trustee
000 Xxxx Xxxx Xxxxxx
P.O. Drawer 900
Norman, OK 73069
Exhibit B
Schedule of Investors
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Name and Address of each Investor: |
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INTER-HIM, N.V. Switzerland Representative Office Im Xxxxxxxxx 00 Xxxxxxxx XX - 0000 Xxxxx Xxxxxxx Attn.: Xx. Xxxxxx Xxxxxxxxxx Telecopy: x00 00 000 0000 |
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W. Xxxxxx Xxxxxx 0000 Xxx Xxxx Xxxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Telecopy: (000) 000-0000 |
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Xxxxxxx X. Xxxxxx 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxxx 00000 Telecopy: (000) 000-0000 |
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Xxxxx X. Xxxxxxx 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 00000 Telecopy: (000) 000-0000 |
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Xxxxxxxx X. Xxxxxxx 00 Xxxx 00xx Xxxxxx Xxxxx 00X Xxx Xxxx, Xxx Xxxx 00000-0000 Telecopy: (000) 000-0000 |
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