EXHIBIT 10.1
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SERIES 2006-A PREFERRED STOCK PURCHASE AGREEMENT
This Series 2006-A Preferred Stock Purchase Agreement (this
"Agreement") is made as of June 1, 2006, by and among Harold's Stores, Inc., an
Oklahoma corporation (the "Company"), and the investors listed on the Schedule
of Investors attached hereto (the "Investors").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of twenty-five thousand (25,000) shares of its Series 2006-A Preferred
Stock (the "2006-A Shares");
WHEREAS, the Investors desire to purchase the 2006-A Shares on the
terms and conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the 2006-A Shares to the
Investors on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
PURCHASE AND SALE OF SERIES 2006-A PREFERRED STOCK
1.1 Purchase and Sale of Series 2006-A Preferred. Subject to the terms
and conditions of this Agreement, at the Closing (as defined below), each
Investor agrees to purchase, and the Company agrees to sell and issue to each
Investor at a price per share of One Hundred Dollars ($100.00), the number of
2006-A Shares opposite each Investor's name for the aggregate purchase price set
forth on the Schedule of Investors attached hereto.
1.2 Conversion Price. The conversion price of the 2006-A Shares will be
based on the Average Market Price (as defined in the Certificate of Designation
for the 2006-A Shares) of the Corporation's Common Stock for the twenty (20)
trading days ending on the trading date immediately preceding the Closing Date.
SECTION 2
CLOSING
2.1 Closing. The purchase and sale of the 2006-A Shares (the "Closing")
shall occur simultaneously with the execution and delivery of this Agreement
(the "Closing Date").
2.2 Delivery. At the Closing, the Company shall deliver to each
Investor certificates representing the 2006-A Shares that such Investor is
purchasing against payment of the purchase price therefor by check or wire
transfer.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investors as of the
date hereof as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized and validly existing under the laws of the State of Oklahoma and is in
good standing under such laws. The Company has all requisite corporate power and
authority to own and operate its properties and assets, and to carry on its
business as presently conducted and as currently proposed to be conducted. The
Company is duly qualified and authorized to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the failure so
to qualify would have a material adverse effect on its business, properties,
prospects or financial condition.
3.2 Corporate Power. The Company has all requisite legal and corporate
power and authority to (a) execute and deliver this Agreement and the Third
Amendment to that certain Investor Rights Agreement dated as of February 28,
2001, as amended by that certain First Amendment to Investor Rights Agreement
dated as of August 2, 2002 and that certain Second Amendment to the Investor
rights Agreement dated February 5, 2003 among the Company, the Investors,
Xxxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, attached hereto as
Exhibit B (the "Third XXX Amendment"; such Investor Rights Agreement, as so
amended, is referred to herein as the "Investor Rights Agreement"), (b) sell and
issue the 2006-A Shares hereunder, (c) issue the additional 2006-A Shares to be
issued in satisfaction of dividends on the 2006-A Shares ("Dividend Stock"), (d)
issue the Common Stock (as herinafter defined) issuable upon conversion of the
2006-A Shares (the "Underlying Common Stock"), and (e) carry out and perform its
obligations under the terms of this Agreement and the Investor Rights Agreement
and the transactions contemplated hereby and thereby.
3.3 Capitalization and Voting Rights. The authorized capital stock of
the Company consists of 25,000,000 shares of common stock, $0.01 par value (the
"Common Stock"), of which 6,223,508 shares (excluding 205 shares held in
treasury) are issued and outstanding, and 1,000,000 shares of Preferred Stock,
$0.01 par value, 500,000 shares of which are presently designated as Amended
Series 2001-A Preferred Stock (the "Amended Series 2001-A Preferred"), 300,000
shares of which are presently designated as Series 2002-A Preferred Stock (the
"Series 2002-A Preferred"), 100,000 shares of which are presently designated as
series 2003-A Preferred Stock (the "Series 2003-A Preferred") and 100,000 shares
of which are presently designated as Series 2006-A Preferred Stock (the "Series
2006-A Preferred"). There are currently 341,296 shares of Amended Series 2001-A
Preferred, 227,372 shares of Series 2002-A Preferred, and 55,673 shares of
Series 2003-A Preferred issued and outstanding. There are 20,000 shares and
30,000 shares of Series 2003-A Preferred and Series 2006-A Preferred,
respectively, reserved for issuance upon exercise of options granted to RonHow,
LLC to convert certain loan participations into such shares. None of the shares
of Series 2006-A Preferred are
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currently issued and outstanding, but at the Closing, 25,000 shares of Series
2006-A Preferred will be issued and sold to the Investors as provided in Section
1.2 hereof. All issued and outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in
compliance with applicable federal and state securities law. The Company has
reserved all of its authorized but unissued shares of Common Stock (other than
shares reserved for issuance under the 2002 Performance and Equity Incentive
Plan) for issuance as Underlying Common Stock and has reserved the balance of
the authorized shares of each series of Preferred Stock for issuance as Dividend
Stock on the respective series. The Series 2006-A Preferred shall have the
rights, preferences, privileges and restrictions set forth in the Certificate of
Designation creating such Series 2006-A Preferred and the Investor Rights
Agreement.
3.4 Authorization. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Investor Rights Agreement by
the Company, the authorization, sale, issuance (or reservation for issuance) and
delivery of the 2006-A Shares and the Dividend Stock and the Underlying Common
Stock with respect thereto and the performance of all of the Company's
obligations hereunder and under the Investor Rights Agreement has been taken
prior to or will be taken at the Closing. This Agreement and the Investor Rights
Agreement constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
3.5 Valid Issuance of Stock. The 2006-A Shares, when issued, sold and
delivered in compliance with the provisions of this Agreement, will be duly and
validly issued, fully paid and nonassessable and issued in compliance with all
applicable federal and state securities laws. The Dividend Stock and the
Underlying Common Stock with respect to the 2006-A Shares have been duly and
validly reserved and, when issued in compliance with the provisions of the
Amendments, will be duly and validly issued, fully paid and nonassessable and
issued in compliance with all applicable federal and state securities laws. The
2006-A Shares and the Dividend Stock and the Underlying Common Stock with
respect thereto will be free and clear of any liens or encumbrances upon
issuance; provided, however, that the 2006-A Shares and the Dividend Stock and
the Underlying Common Stock with respect thereto may be subject to restrictions
on transfer under applicable state and/or federal securities laws and under the
Investor Rights Agreement. Except as set forth in the Investor Rights Agreement
and subject to restrictions on transfer under applicable state and/or federal
securities laws, the 2006-A Shares are not subject to any preemptive rights,
rights of first refusal or restrictions on transfer.
3.6 Offering. Subject to the accuracy of the representations of the
Investors set forth in Section 4 below, the Company has complied and will comply
with all applicable United States federal and state securities laws in
connection with the offer, issuance and sale of the 2006-A Shares in connection
with this Agreement. The Company has not, either directly or through any agent,
offered any securities to, or otherwise approached, negotiated or communicated
in respect of any securities with, any person so as thereby to require that the
offer or sale of the 2006-A Shares be registered pursuant to the provisions of
Section 5 of the Securities Act of 1933, as amended (the "Securities Act").
Subject to the accuracy of the representations of the Investors
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set forth in Section 4 below, the offer, sale and issuance of the 2006-A Shares
(and of the Dividend Stock and the Underlying Common Stock with respect thereto)
in conformity with the terms of this Agreement are exempt from the registration
requirements of Section 5 of the Securities Act and all applicable state
securities laws.
3.7 Registration Rights and Voting. Except as provided in the Investor
Rights Agreement, the Company is not under any obligation and has not granted
any rights to register under the Securities Act any of its presently outstanding
securities or any of its securities that may subsequently be issued. To the
Company's knowledge, except for the Voting Agreement last amended in connection
with the issuance of the Amended Series 2001-A Preferred and the Series 2002-A
Preferred, no shareholder of the Company is a party to any agreement with
respect to the voting of the Company's securities.
3.8 Takeover Status. No "fair price," "moratorium," "control share
acquisition" or other similar anti-takeover statute or regulation enacted under
state or federal laws or applicable stock exchange rules or regulations,
including, without limitation, Sections 1145 through 1155 of the Oklahoma
General Corporation Act, is applicable to the transactions contemplated hereby.
3.9 Governmental Consents. No consent, approval, qualification or
authorization of registration, designation, declaration or filing with any
local, state or federal governmental authority on the part of the Company is
required in connection with the valid execution, delivery or performance of this
Agreement or the Investor Rights Agreement, or the offer, sale or issuance of
the 2006-A Shares or the Dividend Stock or the Underlying Common Stock with
respect thereto, or the consummation of any transaction contemplated hereby,
except such additional filings as will be made by the Company to comply with
applicable state and federal securities laws and rules of the American Stock
Exchange, and with applicable general corporation laws of the various states.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor, severally and not jointly, represents and warrants to
the Company as follows:
4.1 Investment Experience. The Investor is capable of evaluating the
merits and risks of its investment in the Company and has the capacity to
protect its own interests. The Investor is an "accredited investor" as defined
in Rule 501 of Regulation D promulgated under the Securities Act. The Investor
is able to bear the economic risk of losing its entire investment in the
Company, which is not disproportionate to the Investor's net worth.
4.2 Investment. The Investor is acquiring the 2006-A Shares for
investment for the Investor's own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any distribution thereof.
The Investor understands that the 2006-A Shares and the Dividend Stock and the
Underlying Common Stock with respect thereto have not been, and will not be when
issued, registered under the Securities Act or any state securities laws by
reason of specific exemptions from the registration provisions of the Securities
Act and such state laws,
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the availability of which depends upon, among other things, the bona fide nature
of the investment intent and the accuracy of the representations as expressed
herein.
4.3 Rule 144. The Investor is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, which may include, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than two years after a party
has purchased and paid for the security to be sold, the sale being effected
through a "broker's transaction" or in transactions directly with a "market
maker" and the number of shares being sold during any three (3) month period not
exceeding specified limitations.
4.4 Access to Information. The Investor has had an opportunity to
discuss the Company's management, business plan and financial condition with the
Company's management. The Investor understands that a purchase of the 2006-A
Shares involves a high degree of risk, and there can be no assurance that the
Company's business objectives will be obtained.
4.5 Authorization. The Investor has all requisite legal power and
authority to execute and deliver this Agreement and the Third XXX Amendment and
to carry out and perform its obligations under the terms of this Agreement and
the Investor Rights Agreement and the transactions contemplated hereby and
thereby. This Agreement and the Third XXX Amendment, when executed and delivered
by the Investor, will each constitute a valid and legally binding obligation of
the Investor, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
4.6 Legends. It is understood that each certificate representing the
2006-A Shares and the Dividend Stock and the Underlying Common Stock with
respect thereto shall bear a legend to the following effect:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR THE AVAILABILITY OF AN EXEMPTION
THEREFROM.
SECTION 5
CONDITIONS OF THE INVESTORS' OBLIGATIONS AT CLOSING
The obligations of the Investors under this Agreement are subject to
the fulfillment at or before the Closing of each of the following conditions:
5.1 Securities Law Compliance. The Company shall have complied with,
and the offer and sale of the 2006-A Shares shall be exempt under, all
applicable federal and state securities laws.
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5.2 Proceedings Satisfactory. All corporate and legal proceedings taken
by the Company in connection with the transactions contemplated by this
Agreement and all documents and papers relating to such transactions shall be
satisfactory to the Investors, in the reasonable exercise of the judgment of the
Investors.
5.3 Consents and Waivers. The Company shall have obtained any and all
consents (including the consent of the holders of the Amended Series 2001-A
Preferred, the Series 2002-A Preferred, the Series 2003-A Preferred and all
governmental or regulatory consents, approvals or authorizations required in
connection with the valid execution and delivery of this Agreement and the Third
XXX Amendment), permits and waivers (including the waiver by the holders of the
Amended Series 2001-A Preferred, the Series 2002-A Preferred and the Series
2003-A Preferred of any preemptive rights such holders may have by virtue of
their ownership of such shares) necessary or appropriate for consummation of the
transactions contemplated by this Agreement, other than any such consents,
permits or waivers as to which the failure to obtain would not have a material
adverse effect on the Company or the transactions contemplated by this
Agreement, and the same shall be effective as of the Closing Date and not
rescinded.
5.4 Third XXX Amendment. The Company and the Investors shall have
entered into the Third XXX Amendment.
5.5 Exchange Notifications. The Company shall have given all
appropriate notifications to the American Stock Exchange, and all applicable
waiting periods shall have lapsed or other requirements of the American Stock
Exchange shall have been satisfied, in order to permit the transactions
contemplated by this Agreement and the continued listing of the Common Stock.
5.6 Diligence. The Investors shall have completed all due diligence to
their satisfaction.
SECTION 6
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company under this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions:
6.1 Securities Law Compliance. The offer and sale of the 2006-A Shares
pursuant to this Agreement shall be exempt under all applicable federal and
state securities laws as necessary to offer and sell the 2006-A Shares to the
Investors.
6.2 Consents and Waivers. The Company shall have obtained any and all
consents (including the consent of the holders of the Amended Series 2001-A
Preferred, the Series 2002-A Preferred, the Series 2003-A Preferred and all
governmental or regulatory consents, approvals or authorizations required in
connection with the valid execution and delivery of this Agreement and the Third
XXX Amendment), permits and waivers (including the waiver by the holders of the
Amended Series 2001-A Preferred, the Series 2002-A Preferred and the Series
2003-A Preferred of any preemptive rights such holders may have by virtue of
their ownership of such shares) necessary or appropriate for consummation of the
transactions contemplated by this Agreement, other than any such consents,
permits or waivers as to which the failure to obtain would not have
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a material adverse effect on the Company or the transactions contemplated by
this Agreement, and the same shall be effective as of the Closing Date and not
rescinded.
6.3 Third XXX Amendment. The Company and the Investors shall have
entered into the Third XXX Amendment.
6.4 Exchange. All applicable waiting periods, if any, under the rules
of the American Stock Exchange shall have lapsed or other requirements of the
American Stock Exchange shall have been satisfied as necessary in order to
permit the transactions contemplated by this Agreement and the continued listing
of the Common Stock.
SECTION 7
POST-CLOSING COVENANTS OF THE COMPANY
7.1 Securities Laws Compliance. The Company shall make in a timely
manner any filings required by the securities or blue sky laws of any applicable
jurisdiction.
7.2 Reservation of Shares. The Company shall at all times reserve and
keep available out of its authorized but unissued shares (i) such number of
shares of Series 2006-A Preferred as shall from time to time to be sufficient to
permit the payment of dividends on the Series 2006-A Preferred in Dividend
Stock, and (ii) such number of shares of Underlying Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
the Series 0000-X Xxxxxxxxx; and if at any time the number of authorized but
unissued shares of Series 2006-A Preferred or Common Stock shall not be
sufficient to effect the payment of dividends or conversion of all then
outstanding shares of the Series 2006-A Preferred, in addition to such other
remedies as shall be available to the holder of such Series 2006-A Preferred,
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares to such
number of shares as shall be sufficient for such purposes.
7.3 Other Information. So long as the Investors or their affiliates
hold any 2006-A Shares, the Company will provide, and will cause its accountants
and other representatives at the Company's expense to provide, any information
and consents regarding the Company that the Investors need to fulfill their
respective obligations under applicable federal and state securities laws.
7.4 Shareholder Approval. The Company agrees to submit the conversion
terms of the 2006-A Shares to its shareholders for approval at its 2007 annual
meeting or prior thereto in the event of any attempted conversion of 2006-A
Shares which, separately or in the aggregate with other conversions of 2006-A
Shares, would result in the Company issuing shares of Common Stock in conversion
of Series 2006-A Preferred in an amount equal to or in excess of twenty percent
(20%) of the amount of Common Stock then outstanding.
SECTION 8
MISCELLANEOUS
8.1 Good Faith; Cooperation; Further Assurances. The parties will in
good faith undertake to perform their obligations in this Agreement, to satisfy
all conditions and to cause
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the transactions contemplated by this Agreement to be carried out promptly in
accordance with its terms. The parties will cooperate fully with each other and
their respective representatives in connection with any actions required to be
taken as part of their respective obligations under this Agreement. Each party
will at the Closing and from time to time after the Closing, deliver to the
other such further instruments necessary or desirable, in the reasonable opinion
of the requesting party and at the expense of the requesting party, to
consummate or document the transactions contemplated by this Agreement.
8.2 Entire Agreement; Successors and Assigns. This Agreement and the
exhibits hereto and the Investor Rights Agreement constitute the entire
agreement between the Company and the Investors relative to the subject matter
hereof and supersede any previous agreement between the Company and the
Investors regarding such subject matter. Subject to the exceptions specifically
set forth in this Agreement, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective executors,
administrators, heirs, successors and assigns of the parties.
8.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma without regard to the
conflicts of laws principles thereof.
8.4 Counterparts. This Agreement may be executed in counterparts and by
facsimile signatures, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
8.5 Headings. The section headings of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
8.6 Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery, or by delivery by overnight courier, or telecopy (with confirmation of
receipt), or five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed:
if to the Company: Harold's Stores, Inc.
765 Asp
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
with copy to: Xxxxxxx X. Xxxxxxx
Xxxxx & Xxxxxxx, P.C.
00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
and if to the Investors, to the respective Investor's address as set forth on
the Schedule of Investors, or at or at such other address as the parties may
designate by written notice to the other parties, with a copy to:
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Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Pile
Facsimile: (000) 000-0000
and
Xxxxxx X. Xxxxxxxx, President
Ronus, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
8.7 Survival of Warranties. The representations and warranties of the
parties contained in or made pursuant to this Agreement shall survive for a
period of one (1) year from the date of the Closing.
8.8 Amendment of Agreement. Any provision of this Agreement may be
amended by a written instrument signed by the Company and by persons holding not
less than two-thirds of the aggregate of (a) the then outstanding 2006-A Shares
(voting on an as-converted to Common Stock basis) plus (b) the then outstanding
shares of Common Stock into which the 2006-A Shares have been converted, other
than shares of Common Stock that have been sold to the public.
8.9 Finders' Fees. The Company and the Investors will indemnify each
other against all liabilities incurred by one party with respect to claims
related to investment banking or finders' fees in connection with the
transactions contemplated by this Agreement, arising out of arrangements between
the party asserting such claims and the indemnifying party, and all costs and
expenses (including reasonable fees of counsel) of investigating and defending
such claims.
8.10 Expenses. The Company will pay all out-of-pocket fees and expenses
(including attorneys' fees) incurred by the Investors in connection with the due
diligence, negotiation, documentation, closing, administration and enforcement
of the transactions contemplated by this Agreement and the Investor Rights
Agreement; provided, however, that the Company shall only pay attorneys' fees
incurred by the Investors for the review of the transaction documents by the law
firm of Xxxxxxxxxx, Xxxxxx and Xxxxxxx, LLP.
SIGNATURE PAGE FOLLOWS THIS PAGE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above set forth.
"COMPANY" Harold's Stores, Inc.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx, Chief Executive Officer
"INVESTORS" Inter-Him, N.V.
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxxx
/s/ W. Xxxxxx Xxxxxx
---------------------------------------
W. Xxxxxx Xxxxxx
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SCHEDULE OF INVESTORS
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Number of Aggregate
Investor Name and Address 2006-A Shares Purchase Price
------------------------- ------------- --------------
INTER-HIM, N.V. 12,500 $ 1,250,000
Switzerland Representative Office
Im Xxxxxxxxx 00
Xxxxxxxx
XX - 0000 Xxxxx
Xxxxxxx
Attn: Xx. Xxxxxx Xxxxxxxxxx
Facsimile: x00 00 000 0000
W. Xxxxxx Xxxxxx 12,500 $ 1,250,000
0000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
TOTAL: 50,000 $ 2,500,000
