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EXHIBIT B
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
February 28, 2001, among Harold's Stores, Inc., an Oklahoma corporation (the
"Company"), the Investors listed on the Schedule of Investors attached hereto
(collectively, the "Investors"), and the individuals and entities set forth on
the Schedule of Family Shareholders attached hereto (collectively, the "Family
Shareholders").
RECITALS
WHEREAS, the Company and the Investors have entered into a Series
2001-A Preferred Stock Purchase Agreement (the "Preferred Purchase Agreement"),
whereby the Company will sell to the Investors, and the Investors will purchase
from the Company, 300,000 shares of the Series 2001-A Preferred Stock, $.01 par
value per share (the "Preferred Stock"), of the Company (the "Financing");
WHEREAS, the Preferred Purchase Agreement requires, as a condition to
closing the Financing, that the parties hereto enter into this Agreement; and
WHEREAS, the Family Shareholders desire to induce the Investors to
consummate the Financing.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties and covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.
COMPOSITION OF THE BOARD OF DIRECTORS
1.1 General. During the term of this Agreement as provided in
Section 1.5, the Investors and the Family Shareholders 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 the following individuals to the Company's
Board of Directors:
(a) The Investors shall designate to serve on the Board
of Directors the number of individuals specified in the Certificate of
Designations creating the Preferred Stock; and
(b) 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 10% of the Common
Stock (assuming that all outstanding shares of
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Preferred Stock are converted into Common Stock), a majority-in-interest of the
Family Shareholders shall designate one individual to serve on the Board of
Directors.
1.2 Vacancy. In the event of any termination, removal or
resignation of any director, the Investors and the Family Shareholders shall
take all actions necessary and appropriate to cause such vacancy to be filled in
the manner by which such director was elected and designated pursuant to the
terms of this Agreement.
1.3 Legends. Each certificate representing the Investors' or
Family Shareholders' shares, whether now held or hereafter acquired, other than
certificates that are as of the date of this Agreement issued in "street name"
and under which the Investors or Family Shareholders beneficially own shares,
and any certificates issued to their successors and assigns who remain bound by
this Agreement, shall be endorsed by the Company with a legend reading
substantially as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND
AMONG THE COMPANY AND CERTAIN SHAREHOLDERS OF THE COMPANY (A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH VOTING
AGREEMENT."
1.4 Election of Directors Generally. Nothing contained herein
shall limit (i) the Investors' right to vote or otherwise participate in the
election of the Company's directors, other than with respect to the director to
be elected pursuant to Section 1.1(b) or (ii) the Family Shareholders' right to
vote or otherwise participate in the election of the Company's directors other
than the directors elected separately by the holders of the Preferred Stock.
1.5 Termination; Successors. The provisions of Section 1 of this
Agreement shall terminate as follows:
(a) The provisions of Section 1.1(a) and 1.2 shall
terminate with respect to the Investors and rights in favor of the Investors for
so long as they are not entitled to designate any directors pursuant to the
Certificate of Designations creating the Preferred Stock.
(b) The provisions of Section 1.1(b) and 1.2 shall
terminate with respect to the Family Shareholders and rights in favor of the
Family Shareholders upon the date that the Family Shareholders and their lineal
descendants (including trusts for the benefit of such persons) do not continue
to own, beneficially or of record, in the aggregate at least 10% of the Common
Stock (assuming that all outstanding shares of Preferred Stock are converted
into Common Stock).
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SECTION 2
VOTING AND PROXIES
2.1 Irrevocable Proxies. Until the termination of this Section 2.1
as provided in Section 2.5, each of Xxxxxxx Xxxxxx Xxxxx and Xxxxxxx X. Xxxxx
(collectively, the "Proxy Family Shareholders") shall execute and deliver to the
Investors an irrevocable proxy to vote all shares of capital stock of the
Company held by the Proxy Family Shareholders at any time that this Section 2.1
is binding upon them. Such proxy shall be in the form attached hereto as Exhibit
A and shall appoint a representative or representatives selected by the
Investors in their sole discretion, with full power of substitution, acting
jointly or singly, to vote all shares of capital stock of the Company that may
be eligible to be cast by each of the Proxy Family Shareholders at any annual,
special or other meeting of shareholders of the Company or pursuant to any
request to sign an action by written consent in lieu of such a meeting;
provided, however, that such proxy shall not extend to or affect the rights of
the Proxy Family Shareholders to participate in the designation or to vote in
favor of the election of the director to be designated by the Family
Shareholders as provided herein.
2.2 Next Annual Meeting Vote. The Family Shareholders hereby agree
that they will vote all shares of capital stock of the Company that may be
eligible to be cast by each of them at the Company's 2001 annual meeting of
shareholders (the "2001 Annual Meeting") in favor of the approval of certain
conversion rights provided for in the Certificate of Designations creating the
Preferred Stock that, if approved by the shareholders, would grant to the
holders of the Preferred Stock rights to convert their shares of Preferred Stock
into Common Stock. Upon the request of the Investors, such persons shall
promptly execute and deliver one or more irrevocable proxies (in form and
substance satisfactory to the Investors), together with any and all other
agreements, documents or instruments deemed necessary or desirable by the
Investors, to vote all shares of Common Stock that may be cast by each of them
at the 2001 Annual Meeting for the approval of such conversion rights.
2.3 Irrevocable Proxy is Coupled With an Interest. Any irrevocable
proxies granted pursuant to this Agreement are and shall be coupled with an
interest sufficient in law to support an irrevocable proxy, and are and shall be
granted in consideration of and as an inducement to cause the Investors to enter
into this Agreement and the Preferred Purchase Agreement and to consummate the
Financing.
2.4 Revocation of Prior Proxies. Except for any proxies that may
be granted pursuant to Sections 2.1 or 2.2 hereof, (i) the proxies granted
hereunder shall revoke all other proxies granted by such person at any time with
respect to the shares of capital stock of the Company and (ii) no subsequent
proxies will be given with respect thereto by such person (except for other
proxies that may be granted from time to time to any of the holders of the
Preferred Stock).
2.5 Termination of Irrevocable Proxies. The proxies described in
Section 2.1 shall be irrevocable and shall not terminate until the later of (a)
three years after the date of this Agreement or (b) one year after the
termination of Xxxxxxx Xxxxxx Xxxxx'x employment with the Company. The proxies
described in Section 2.2 shall be irrevocable and shall not terminate until the
conclusion of the 2001 Annual Meeting.
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2.6 Filings with Securities and Exchange Commission. In the event
that the Investors or their counsel determine that the execution and delivery of
this Agreement or the giving of any proxies as provided herein shall constitute
or form a "group," as such term is defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, and for as long as such group is deemed to
exist, each such person that the Investors or their counsel determine to be
members of such group shall agree to:
(a) furnish to the Investors or their counsel such
information regarding such person or the shares of Common Stock beneficially
owned by such person as the Investors or their counsel shall request in order to
prepare all necessary or appropriate reports, schedules or other filings with
the Securities and Exchange Commission (the "Commission"), including any
amendments thereto;
(b) execute and deliver all filings, joint filing
agreements, powers of attorney, or other agreements, documents or instruments as
the Investors or their counsel shall request in order to prepare, file or cause
to be filed with the Commission the documents described in Section 2.6(a);
(c) agree to file such reports, schedules or other
filings jointly with the Investors if so requested by the Investors or their
counsel; and
(d) do or cause to be done all things necessary, proper
or advisable to effectuate the purpose and intent of this Section 2.6 and to
cooperate fully with the Investors and their counsel and other agents or
representatives in connection with any steps required to be taken as part of
such person's obligations hereunder.
2.7 Ownership of Capital Stock. Each of the Family Shareholders
hereby represents and warrants to the Investors that such Family Shareholder's
ownership of shares of Common Stock is as set forth on Exhibit F to the
Preferred Purchase Agreement. Further, each Family Shareholder whose shares of
Common Stock have been pledged or hypothecated to any other person hereby
represents and warrants that, as of the date hereof, no default of or under, or
violation of any agreement with respect to, such pledge or hypothecation exists,
which such default or violation has not been cured or waived in writing by the
pledgee or pledgees with respect to such pledge or hypothecation.
SECTION 3.
MISCELLANEOUS
3.1 Enforceability/Severability. The parties hereto agree that
each provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of this Agreement
shall nonetheless be held to be prohibited by or invalid under applicable law
(a) such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, and (b) the parties shall, to the extent
permissible by applicable
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law, amend this Agreement, or enter into a voting trust agreement under which
shares of the Investors and the Family Shareholders shall be transferred to the
voting trust created thereby, so as to make effective and enforceable the intent
of this Agreement.
3.2 Remedies. Each party hereto will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision hereof, and to exercise all other rights existing in its
favor. Each party hereto agrees and acknowledges that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that
each holder may, in its sole discretion, apply for specific performance and
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
3.3 Successors and Assigns. 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. Without limiting
the foregoing, the this Agreement shall inure to the benefit of any assignee or
transferee of the Preferred Stock, and each such assignee shall be deemed to be
an "Investor" for purposes of this Agreement, provided that if the assignee is a
third party unaffiliated with the assignor, then Section 1.1(b) shall only bind
such assignee as to the votes entitled to be cast by the Preferred Stock so
assigned and any shares of Common Stock into which they are converted (subject
to the following sentence). This Agreement shall not apply to any shares of
Common Stock that are transferred in a transaction that does not result in the
continued applicability of the Right of First Refusal Agreement executed and
delivered pursuant to the Preferred Purchase Agreement, or that are sold or
otherwise transferred by the Investors into the public securities markets or to
an unaffiliated third party. Subject to the foregoing, any assignee to or
transferee of any of the shares of capital stock of the Company to which this
Agreement applies shall, as a condition to such assignment or transfer, execute
and deliver a copy of this Agreement and any proxies required hereby at or prior
to the consummation of such assignment or transfer. Any attempted assignment or
transfer effected without complying with the foregoing sentence shall be null
and void.
3.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws, of the State of Oklahoma without giving
effect to the principles of conflicts of laws.
3.5 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
3.6 Headings. The section headings of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
3.7 Notices. Any notice required or permitted hereunder shall be
given in writing and shall be conclusively deemed effectively given upon
personal delivery, or delivery by overnight courier, or five (5) days after
deposit in the United States mail, by registered or certified mail, postage
prepaid, addressed (i) if to the Company, as follows:
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Harold's Stores, Inc.
765 Asp
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to: Xxxxx & Xxxxxxx
0000 Mid-America Tower
00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) if to a Family Shareholder, to such Family Shareholder's address as set
forth on the Schedule of Family Shareholders, and (iii) if to an Investor, to
such Investor's address as set forth on the Schedule of Investors, or at such
other address as the parties may designate by ten (10) days' advance written
notice to the other parties, with a copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
and
Xxxxxx Xxxxxxxx Consulting LLC
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
3.8 Amendment of Agreement. Any provision of this Agreement may be
amended by a written instrument signed by the Company, the Family Shareholders
holding at least a majority of the outstanding shares of Common Stock held by
the Family Shareholders, and the Investors holding at least a majority of the
then outstanding shares of Common Stock and Preferred Stock (on an as-converted
basis) held by the Investors.
3.9 Entire Agreement. This Agreement constitutes the entire
agreement among the Family Shareholders, the Investors and the Company relative
to the subject matter hereof and supersedes any previous agreements or
negotiations among the parties, provided that the "lock-up" letter agreements
delivered by the Family Shareholders to Inter-Him, N.V. shall not be superseded
by this Agreement.
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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/ H. Xxxxxx Xxxxxx
------------------------------------
Name: H. Xxxxxx Xxxxxx
------------------------------------
Title: President
------------------------------------
"INVESTORS"
INTER-HIM, N.V.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
"FAMILY SHAREHOLDERS"
/s/ H. Xxxxxx Xxxxxx Attorney in Fact for
-------------------------------------------
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/ H. Xxxxxx Xxxxxx Attorney in Fact for
-------------------------------------------
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
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
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
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/s/ Xxxx X. Xxxxxx
-------------------------------------------
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/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Sr. Vice President
------------------------------------
*Executed as Trustee with respect to:
Xxxxxxxxx X. Xxxxxx Trust A
Xxxxxxxxx X. Xxxxxx Trust B
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SCHEDULE OF INVESTORS
INVESTOR NAME AND ADDRESS
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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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
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
February ____, 2001
[INVESTOR REPRESENTATIVE]
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Ladies and Gentlemen:
Reference is made to that certain Voting Agreement by and among the
undersigned, the other Family Shareholders (as defined in the Voting Agreement)
and the Investors (as defined in the Voting Agreement), dated of even date
herewith (the "Voting Agreement"), for a statement of terms and conditions upon
which this proxy is given
Pursuant to Section 2.1 of the Voting Agreement, the undersigned hereby
irrevocably appoints you as attorney and proxy, with full power of substitution,
from the date hereof and until the later of (1) the expiration of three years
after the date hereof and (2) one year from the date of the termination of the
employment of Xxxxxxx Xxxxxx Xxxxx with Harold's Stores, Inc., an Oklahoma
corporation (the "Company"), to vote or express written consent or dissent in
such manner as such attorney and proxy, or its substitute, shall, in its sole
discretion, deem proper and otherwise act (including pursuant to any corporate
action in writing without a meeting) with respect to all of the shares of
capital stock of the Company (the "Shares") which the undersigned is entitled to
vote at any meeting of shareholders (whether annual or special and whether or
not an adjourned meeting) of the Company or pursuant to written action taken in
lieu of any such meeting or otherwise. This proxy is irrevocable, is coupled
with an interest sufficient in law to support an irrevocable proxy, and is
granted in consideration of and as an inducement to cause you to enter into the
transactions contemplated by the Voting Agreement and the Preferred Purchase
Agreement (as defined in the Voting Agreement). This proxy shall revoke any
other proxy granted by the undersigned at any time with respect to the Shares
and no subsequent proxies will be given with respect thereto by the undersigned,
except as otherwise contemplated by the Voting Agreement. In addition, for so
long as this proxy is in effect, the undersigned shall take all actions
necessary to vote the Shares pursuant to instructions received from you.
This irrevocable proxy shall continue in full force and effect until
Section 2.1 of the Voting Agreement has been terminated as provided therein.
Very truly yours,
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Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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