1
EXHIBIT H
FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
This First Amendment ("Amendment") to the Amended and Restated
Stockholders' Agreement is made and entered into as the 28th day of February,
2001 by and among the signatories hereto in order to amend the Harold's Stores,
Inc. First Amended and Restated Stockholders' Agreement dated June 15, 1998 (the
"Stockholders' Agreement").
WITNESSETH:
WHEREAS, Harold's Stores, Inc. (the "Company") has entered into a
Series 2001-A Preferred Stock Purchase Agreement dated February 23, 2001 (the
"Preferred Stock Purchase Agreement") whereby the Company will sell to the
Investor named therein (the "Investor") 300,000 shares of Series 2001-A
Preferred Stock of the Company;
WHEREAS, in connection with the Preferred Stock Purchase Agreement the
parties hereto propose to enter into with the Investor a Voting Agreement (the
"Voting Agreement") and a Right of First Refusal Agreement (the "Right of First
Refusal Agreement");
WHEREAS, in connection with the execution and delivery of the Voting
Agreement and the Right of First Refusal Agreement, the parties hereto desire to
enter into this Amendment to provide for certain amendments to Stockholders'
Agreement in order to permit, and to eliminate any conflicts with, the
covenants, agreements and transactions provided for in the Voting Agreement and
the Right of First Refusal Agreement; and
WHEREAS, the parties hereto hold more than the minimum number of shares
subject to the Stockholders' Agreement that are required in order to amend the
Stockholders' Agreement pursuant to Section 9 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 Stockholders' Agreement, the parties
agree as follows:
1. Effective Date. This Amendment and the matters provided for
herein shall become effective only upon the closing under the Preferred Stock
Purchase Agreement and the execution and delivery of the Voting Agreement and
Right of First Refusal Agreement in connection therewith (such time being
referred to herein as the "Effective Date").
2. Voting. The Stockholders' Agreement is hereby amended
effective as of the Effective Date to eliminate in its entirety Section 4 of the
Stockholders' Agreement pertaining to the voting of the shares that are subject
to the Stockholders' Agreement, and the Stockholders' Agreement shall no longer
affect the voting of, or expression of written consent with respect to, any of
such shares in any manner whatsoever. Any and all proxies previously granted in
2
connection with and pursuant to the Stockholders' Agreement shall be
automatically revoked and shall be of no further force or effect.
3. Right to Sell Stock. Nothing in this Amendment or the Right of
First Refusal Agreement shall relieve any Stockholder from compliance with the
Stockholders' Agreement in connection with the disposition of any shares that
are subject to the Stockholders' Agreement; provided, however, that in the event
of any conflict between the Right of First Refusal Agreement and the
Stockholders Agreement, the Right of First Refusal Agreement shall control. Any
shares acquired by the "Series A Holders" (as defined in the Right of First
Refusal Agreement") pursuant to and in accordance with Section 1 of the Right of
First Refusal Agreement shall cease to be subject to or bound by the
restrictions of this Agreement. In addition, without limiting the foregoing, any
shares that are first offered to the Stockholders pursuant to Section 5 of the
Stockholders' Agreement (which offer if accepted would constitute a
"non-applicable" transfer pursuant to Section 2.1(a) of the Right of First
Refusal Agreement) and then offered to the Series A Holders pursuant to Section
1 of the Right of First Refusal Agreement and that are not purchased initially
by the Stockholders or subsequently by the Series A Holders may be disposed of
in accordance with the provisions of Section 1 of the Right of First Refusal
Agreement in the manner and within the time periods permitted thereby and the
provisions of Section 5.2 (b) of the Stockholders' Agreement shall be deemed to
be amended to so permit. Any of such shares not sold in such manner shall again
become subject to the restrictions of the Stockholders Agreement.
4. Defined Terms. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to them in the
Stockholders' Agreement.
5. Other Terms of Stockholder's Agreement. Except for the
amendments set forth herein, all other provisions of the Stockholder's Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
6. Counterpart Execution. This Agreement 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.
7. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Oklahoma.
2
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
/s/ H. Xxxxxx Xxxxxx, Attorney in Fact for 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/ H. Xxxxxx Xxxxxx, Attorney in Fact for 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
/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
/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
3
4
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
4
934682