EXHIBIT A
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HAROLD'S STORES, INC.
STOCK OPTION AGREEMENT
This Agreement is made and entered into effective October 6, 2006
("EFFECTIVE DATE") by and between Harold's Stores, Inc., an Oklahoma corporation
("Company"), and Xxxxxx Xxxxxxxxx, an employee of Company ("EMPLOYEE").
WITNESSETH:
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WHEREAS, Company desires to grant Employee an option to purchase shares
of its Common Stock, par value $0.01 per share ("COMMON STOCK"), as hereinafter
provided, which option will be granted outside of the 2002 Performance and
Equity Incentive Plan (the "Plan"), but will be subject to the terms of the Plan
as if granted thereunder except as otherwise specifically provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the parties agree as follows:
1. Grant of Option. Subject to the terms contained herein, Company
hereby grants to Employee as of the date set forth above, the right and option,
herein called the "Option," to purchase all or any part of an aggregate of One
Million Nine Hundred Sixty Five One Hundred Sixty Five (1,965,165) shares of the
Common Stock. The right to purchase the underlying shares shall constitute a
Non-Qualified Stock Option, as defined in the Plan.
2. Purchase Price. The purchase price of the shares of Common Stock
covered by the Option shall be $0.435 per share, subject to adjustment as
provided in the Plan.
3. Term of Option. The Option shall become vested and exercisable
immediately upon grant as to twenty percent (20%) (393,033) of the total number
of shares subject to the Option and shall become vested and exercisable as to
additional increments of twenty percent (20%) (393,033) of the total number of
shares subject to the Option on the day immediately preceding each of the first,
second, third, and fourth anniversaries of the Effective Date. The option may be
exercised as to the aggregate number of shares then vested and exercisable,
subject to the terms of this Agreement and the Plan, at any time and from time
to time until ten (10) years after the Effective Date, or for such other period
set forth in Paragraph 5 hereof. Except as provided in Paragraph 5, the Option
may not be exercised at any time unless Employee shall have been in the
continuous employ of Company or any subsidiary of the Company from the Effective
Date through the date of the exercise of the Option.
4. Non-transferability. The Option shall not be assignable or
transferable by Employee, except by will or by the laws of descent and
distribution. During the life of Employee, the Option shall be exercisable only
by him or her.
5. Termination of Employment. In the event of termination of
employment of Employee for any reason, the portion of the Option that is vested
and exercisable at the time of termination of employment shall be exercisable by
Employee or his or her legal representative within three (3) months after the
date of termination of employment (within twelve (12) months after termination
in the case of termination due to disability, as determined by the Board of
Directors of the Company or the Compensation Committee of the Board of Directors
(the "COMMITTEE"), or death). However, if Employee terminates his or her
employment for "Good Reason" or if the Employee's employment is terminated by
the Company (other than for "Cause") after Employee has given notice to the
Company of termination for "Good Reason" (as such terms are defined in
Employee's Employment Agreement dated October 6, 2006 with the Company) then, to
the extent that the Option has not already become fully vested and exercisable,
one third (1/3) of the shares subject to the Option that had not vested prior to
termination of employment shall become fully vested and exercisable and may be
exercisable as provided in the first sentence of this Paragraph 5. In addition,
the Company by action of the Committee may in its sole discretion approve
acceleration of any then unvested installments of the Option. In no event, may
the Option be exercised more than ten (10) years after the Effective Date
hereof.
6. Reorganizations and Recapitalizations of Company. Subject to the
other provisions of this Agreement, the existence of the Option granted
hereunder shall not affect or restrict in any way the right or power of Company
or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in Company's capital
structure of its business or any merger or consolidation of Company, or any
issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Common Stock or the rights thereof, any issue of shares of Common
Stock or shares of any other class of capital stock or warrants or rights to
acquire such shares, or the dissolution or liquidation of Company, or any sale
or transfer of all or any part of its assets or business, or any corporate act
or proceeding, whether of a similar character or otherwise.
7. Change In Control. Anything herein to the contrary
notwithstanding, to the extent not already vested and exercisable, the Option
shall become fully vested and exercisable immediately prior to the occurrence of
a Change in Control (as defined below); provided that if an earlier date is
fixed as the record date for the ownership of stock of the Company eligible to
participate in the Change in Control, the Option shall become fully vested and
exercisable in time to enable Employee to become an eligible stockholder on such
record date with respect to the shares subject to the Option. For purposes of
this Agreement, the term "CHANGE IN CONTROL" shall mean (i) the date any entity
or person, including a group as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, shall become the beneficial owner of, or shall have
obtained voting control over more than 50% of the outstanding common stock of
the Company; or (ii) the effective date of (a) any merger, consolidation or
other reorganization of the Company with another corporation in which the
Company is not the continuing or surviving corporation or pursuant to which any
common shares of the Company would be converted into cash, securities or other
property of another corporation, other than a merger, consolidation or
reorganization of the Company in which holders of Company common stock
immediately prior to the merger,
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consolidation or reorganization have more than 50% of the outstanding common
stock of the surviving corporation immediately after the transaction, or (b) any
sale or other disposition of substantially all of the assets of the Company to
any person other than a person whose outstanding common stock is more than 50%
owned by persons who were holders of outstanding Company common stock
immediately before such sale or disposition. PROVIDED, the exercise of any
options, warrants or conversion rights currently outstanding by holders of the
Company's outstanding preferred stock or convertible debt or warrants (the
"INVESTOR GROUP") shall not constitute a Change in Control for purposes of this
Agreement; PROVIDED, FURTHER, the following circumstances shall not be deemed to
constitute a Change in Control: (i) any dilution of the stock ownership or
voting rights of the Investor Group as long as the Investor Group (or one or
more of its existing members as of the date of this Agreement) owns in the
aggregate at least thirty percent (30%) of the common stock and preferred stock
on an as converted basis; or (ii) the transfer by Xxxxxx xx Xxxx of his interest
in the Investor Group to any entity or group of entities in which de Waal,
directly or indirectly, has a controlling interest..
8. Method of Exercising Option. The Option may be exercised, in
whole or in part, by written notification to Company. The written notice of
election to exercise shall be accompanied by cash or a certified or cashier's
check for the aggregate purchase price of the number of shares being purchased,
or upon exercise of the Option, Employee may, with approval of the Committee,
pay for the shares: (i) by tendering Common Stock of Company already owned by
Employee with such Common Stock to be valued based on the shares tendered at the
Fair Market Value (as defined below) determined on the date the Option is
exercised; or (ii)surrendering a portion of the Option with such surrendered
Option to be valued based on the difference between the Fair Market Value of the
shares underlying the surrendered Option on the date of exercise and the
aggregate option purchase price of the shares underlying the surrendered Option
("SURRENDER VALUE"); or (iii) with a combination of cash, Common Stock and
surrender of a portion of the Option. The Committee may also permit Employee to
simultaneously exercise the Option and sell the shares of Common Stock thereby
acquired, pursuant to a brokerage or similar arrangement, approved in advanced
by the Committee, and use the proceeds from such sale as payment of the purchase
price of the shares being acquired upon exercise of the Option.
The Company may require as a condition to the issuance of any
shares of Common Stock upon exercise of the Option that Employee remit an amount
sufficient, in the Company's opinion, to satisfy all applicable FICA, federal,
state or other withholding tax requirements related to the exercise of the
Option. If approved by the Committee, Employee may satisfy such obligation in
whole or in part by surrendering a portion of the Option covering shares having
a Surrender Value equal to the amount of such requirement.
9. Rights as a Shareholder. Employee shall have no rights as a
shareholder with respect to any shares covered by the Option until the date of
issuance of a stock certificate to him or her for such shares.
10. Subsidiary. As used herein, the term "subsidiary" shall mean any
present or future corporation in which Company has a proprietary interest (but
only if Company owns, directly or indirectly, stock possessing at least fifty
percent (50%) of the total combined voting power of all
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classes of stock in such corporation), as the Board of Directors of Company
shall determine from time to time.
11. Fair Market Value. "Fair Market Value" means, if the shares of
Common Stock are traded on a national securities exchange, the closing price of
the shares on such national securities exchange on the day on which such value
is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded. If the principal market for the
shares is the over-the-counter market, including the OTC Bulletin Board or the
Pink Sheets, Fair Market Value means the mean between the closing "bid" and
"asked" price of the shares in the over-the-counter market on the date on which
such value is to be determined or, if such bid and asked price is not available,
the last sales price on such day, or on the next preceding day on which the
shares were traded. If at any time shares of Common Stock are not traded on an
exchange or in the over-the-counter market, Fair Market Value shall be the value
determined by the Committee, taking into consideration those factors affecting
or reflecting value which they deem appropriate.
12. Option Plan. This Option is not being granted pursuant to the
Plan, because the Plan does not have sufficient shares available for such grant.
However, the terms of the Option and the rights and responsibilities of the
parties hereto shall be governed by the Plan as if it applied to the Option to
the extent not expressly set forth herein.
IN WITNESS WHEREOF the parties hereto have executed this Stock Option
Agreement effective as of the day and year first above written.
COMPANY:
HAROLD'S STORES, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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