FIRST AMENDMENT TO RIGHT OF FIRST REFUSAL AGREEMENT
Exhibit 10.3
FIRST AMENDMENT
TO
RIGHT OF FIRST REFUSAL AGREEMENT
This First Amendment ("Amendment") to the Right of First Refusal Agreement is made and entered into as of 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"), W. Xxxxxx Xxxxxx ("Xxxxxx"), an individual, and the individuals and entities listed on the Schedule of Family Shareholders attached hereto as Exhibit A (collectively, the "Family Shareholders"), in order to amend that certain Right of First Refusal Agreement (the "Right of First Refusal 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 Right of First Refusal 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 Right of First Refusal Agreement sets forth certain agreements of the Family Shareholders and Inter-Him regarding certain transfers of common stock of the Company by the Family Shareholders;
WHEREAS, subsequent to Inter-Him's purchase of the Series 2001-A Preferred Stock pursuant to the Series 2001-A Preferred Stock Purchase Agreement, Inter-Him transferred 37,500 shares of the Series 2001-A Preferred Stock to Xxxxxx;
WHEREAS, the Company, Inter-Him, Xxxxxx and certain other parties have entered into that certain Series 2002-A Preferred Stock Purchase Agreement dated as of June 26, 2002 (the "2002 Preferred Stock Purchase Agreement");
WHEREAS, in connection with the 2002 Preferred Stock Purchase Agreement, Inter-Him and 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, Xxxxxx and the Family Shareholders to amend the Right of First Refusal Agreement to continue the rights of Inter-Him and Xxxxxx thereunder in the new Amended Series 2001-A Preferred Stock; and
WHEREAS, Inter-Him and Xxxxxx together hold more than the minimum number of shares of Common Stock and Series 2001-A Preferred Stock 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 Right of First Refusal Agreement pursuant to Section 3.6 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 Right of First Refusal Agreement, the parties agree as follows:
1. Certain Definitions. From and after the Effective Date, "Preferred Stock," as such term is used in the Right of First Refusal Agreement, shall mean the Company's Amended Series 2001-A Preferred Stock, $.01 par value, as well as any other preferred stock or other security of the Company issued in exchange therefor or in replacement thereof, but in no event shall "Preferred Stock" include the Series 2002-A Preferred Stock of the Company.
2. Other Terms of Right of First Refusal Agreement. Except for the amendment set forth herein, all other provisions of the Right of First Refusal Agreement shall remain in full force and effect and shall be otherwise unaffected hereby.
3. Counterpart Execution. This Amendment 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
"XXXXXX" /s/ W. Xxxxxx Xxxxxx
W. Xxxxxx Xxxxxx
"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
X.X. Xxxxxx 000
Xxxxxx, XX 00000
