EXHIBIT B-2
AMENDED AND RESTATED
VOTING AGREEMENT
This Amended and Restated Voting Agreement (this "Agreement") is made
and entered into as the 2nd day of May, 2003 by and among Harold's Stores, Inc.,
an Oklahoma corporation (the "Company"), Inter-Him N.V. ("Inter-Him"), W. Xxxxxx
Xxxxxx ("Xxxxxx"; Xxxxxx and Inter-Him are collectively referred to herein as
the "Investors"), Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx
(collectively, the "Other Preferred Holders"), Xxxxxxx Xxxxxx Xxxxx ("Xxxxx"),
and the individuals and entities listed as Family Shareholders on the signature
pages attached hereto (collectively, the "Family Shareholders"), in order to
amend and restate that certain Voting Agreement dated as of February 28, 2001 by
and among the Company, Inter-Him, Xxxxx and the Family Shareholders, as amended
by that certain First Amendment to Voting Agreement dated as of August 2, 2002
by and among the Company, the Investors, the Other Preferred Holders, Xxxxx and
the Family Shareholders (as so amended, the "Prior Agreement").
WITNESSETH:
WHEREAS, the last amendment to the Prior Agreement occurred in
connection with the closing of the transactions contemplated in that certain
Series 2002-A Preferred Stock Purchase Agreement dated as of June 26, 2002, on
August 2, 2002;
WHEREAS, at such time, the Company, the Investors, the Other Preferred
Holders, Xxxxx and the Family Shareholders entered into the First Amendment in
order to specifically include Xxxxxx and the Other Preferred Holders as
"Investors" under the Prior Agreement, to eliminate certain voting obligations
of Xxxxx and the Family Shareholders contained therein and to provide for
certain other matters;
WHEREAS, the Company, the Investors, the Other Preferred Holders, Xxxxx
and the Family Shareholders now believe it is in their mutual best interests to
amend the Voting Agreement to eliminate the Other Preferred Holders and the
Family Shareholders as parties thereunder; and
WHEREAS, the Investors hold more than the minimum number of shares of
Common Stock, and Amended Series 2001-A Preferred Stock and Series 2002-A
Preferred Stock (on an as-converted basis), of the Company, and Xxxxx and the
Family Shareholders executing this Agreement hold more than the minimum number
of shares of Common Stock of the Company, required in order to amend the Prior
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 Agreement, the parties agree as follows:
SECTION 1.
DEFINITIONS
In addition to the terms defined above, as used in this Agreement, the
following terms have the meanings set forth below:
1.1. "Common Stock" means the common stock, par value $0.01 per share,
of the Company.
1.2 "Preferred Stock" means the Amended Series 2001-A Preferred Stock,
par value $0.01 per share, and the Series 2002-A Preferred Stock, par value
$0.01 per share, of the Company.
SECTION 2.
COMPOSITION OF THE BOARD OF DIRECTORS
2.1 General. For so long as Xxxxx and the Family Shareholders, and the
lineal descendants of any of the foregoing (including trusts for the benefit of
any such persons), continue to own, beneficially or of record, in the aggregate
at least ten percent (10%) of the outstanding Common Stock (assuming the
conversion of all outstanding shares of Preferred Stock into Common Stock),
Xxxxx shall designate one (1) individual to serve on the Board of Directors of
the Company, and the Investors shall 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 Company's Board of Directors.
2.2 Vacancy. In the event of any termination, removal or resignation of
any director, the Investors and Xxxxx 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, whether pursuant to this Agreement, the
terms of the Preferred Stock or otherwise.
2.3 Legends. Each certificate representing the Investors' or Casey's
shares of Common Stock, Preferred Stock or any other capital stock of the
Company, whether now owned or hereafter acquired, other than certificates that
were on the date of the Prior Agreement issued in "street name" and under which
the Investors or Xxxxx 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.
-2-
2.4 Election of Directors Generally. Nothing contained herein shall
limit (a) 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 2.1 hereof, or (b) the right of Xxxxx, any of the
Family Shareholders or any of the Other Preferred Holders to vote or otherwise
participate in the election of the Company's directors in accordance with the
provisions of the Company's Certificate of Incorporation.
2.5 Termination; Successors. The provisions of Section 2.1 shall
terminate with respect to Xxxxx and rights in favor of Xxxxx upon the date that
Xxxxx and the Family Shareholders, and the lineal descendants of any of the
foregoing (including trusts for the benefit of any such persons), do not
continue to own, beneficially or of record, in the aggregate at least ten
percent (10%) of the outstanding Common Stock (assuming the conversion of all
outstanding shares of Preferred Stock into Common Stock). As a result of the
amendment to Section 1.1 of the Prior Agreement effected by Section 2.1 hereof,
the Other Preferred Holders shall be deemed to be released from their
obligations under the Prior Agreement and this Agreement shall serve as a
termination of the Prior Agreement with respect to the Other Preferred Holders.
SECTION 3.
VOTING AND PROXIES
3.1 Irrevocable Proxies. Until the termination of this Section 3.1 as
provided in Section 3.4, the irrevocable proxies given to the Investors pursuant
to the Prior Agreement by Xxxxx and her husband Xxxxxxx X. Xxxxx to vote all
shares of capital stock of the Company held or acquired by them shall continue
in effect.
3.2 Irrevocable Proxy is Coupled With an Interest. Any irrevocable
proxies granted pursuant to the Prior Agreement were, are and shall be coupled
with an interest sufficient in law to support an irrevocable proxy, and were,
are and shall be granted in consideration of and as an inducement to cause the
Investors to enter into the Prior Agreement and this Agreement.
3.3 Revocation of Prior Proxies. Except for any additional or
replacement proxies that may be granted with respect to the existing proxies
referred to in Section 3.1 hereof, (a) the proxies described in Section 3.1
shall revoke all other proxies granted by such person at any time with respect
to the shares of capital stock of the Company, and (b) 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).
3.4 Termination of Irrevocable Proxies. The proxies described in
Section 3.1 shall be irrevocable and shall not terminate until the conclusion of
the Company's 2003 annual meeting of shareholders.
3.5 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
-3-
and regulations promulgated thereunder, and for as long as such group is deemed
to exist, Xxxxx agrees to:
(a) furnish to the Investors or their counsel such information
regarding Xxxxx or the shares of Common Stock beneficially owned by
Xxxxx 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 3.5(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 3.5 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 Casey's obligations hereunder.
SECTION 4.
MISCELLANEOUS
4.1 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 law, amend this Agreement, or enter into a voting
trust agreement under which shares of the Investors shall be transferred to the
voting trust created thereby, so as to make effective and enforceable the intent
of this Agreement.
4.2 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.
4.3 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,
this Agreement shall inure to the benefit of any assignee
-4-
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 2.1 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 sold or otherwise transferred by the Investors into the
public securities markets or to an unaffiliated third party. Subject to the
foregoing, any assignee 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 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.
4.4 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.
4.5 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.
4.6 Headings. The section headings of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
4.7 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 (a) if to the Company, as follows:
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
(b) if to Xxxxx, as follows:
Xxxxxxx Xxxxxx Xxxxx
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
-5-
and (c) 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 copies to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Pile, Esq.
Telecopy: (000) 000-0000
and
Xxxxxx X. Xxxxxxxx, President
Ronus, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
4.8 Amendment of Agreement. Any provision of this Agreement may be
amended by a written instrument signed by the Company, Xxxxx and 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.
4.9 Entire Agreement. This Agreement constitutes the entire agreement
among Xxxxx, the Investors and the Company relative to the subject matter hereof
and supersedes any previous agreements or negotiations among the parties. In
particular, except as specifically provided to the contrary, the provisions of
the Prior Agreement shall be deemed null and void.
Signature page follows this page.
-6-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above set forth.
"COMPANY" Harold's Stores, Inc.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Chief Executive Officer
"INVESTORS" Inter-Him, N.V.
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Director
/s/ W. Xxxxxx Xxxxxx
-------------------------------------------
W. Xxxxxx Xxxxxx
"OTHER PREFERRED HOLDERS" /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxxx X. Xxxxxxx
"XXXXX" /s/ Xxxxxxx Xxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxxx Xxxxx
"FAMILY
SHAREHOLDERS" /s/ Xxxxxxx Xxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxxx Xxxxx, as custodian for
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and
Xxxxx X. Xxxxx under the Texas UGMA
First Signature Page to Amended and Restated Voting Agreement
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx, individually and as
Trustee under the Xxxxxx X. Xxxxxx Revocable
Trust dated 9/8/1993
/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
-------------------------------------------
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/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President and Trust
Officer
*Executed as Trustee with respect to:
Xxxxxxxxx X. Xxxxxx Trust A
Xxxxxxxxx X. Xxxxxx Trust B
Second Signature Page to Amended and Restated Voting Agreement
EXHIBIT A
SCHEDULE OF INVESTORS
Name and Address of each Investor:
INTER-HIM, N.V.
Switzerland Representative Office
Im Xxxxxxxxx 00
Xxxxxxxx
XX - 0000 Xxxxx
Xxxxxxx
Attn.: Xx. Xxxxxx Xxxxxxxxxx
Telecopy: x00 00 000 0000
W. Xxxxxx Xxxxxx
0000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
