As filed with the Securities and Exchange Commission on
October
27,1995.
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933
HAROLD'S STORES, INC.
(Exact name of issuer as specified in its charter)
Oklahoma 73-1308796
(State or other jurisdiction of (I.R.S.
Employer
incorporation or organization)
Identification
Number)
765 Asp, Norman, Oklahoma 73069
(Address of Principal Executive Offices) (Zip
Code)
1993 PERFORMANCE AND EQUITY INCENTIVE PLAN
(Full title of the
plan)
H. Rainey Powell
765 Asp
Norman, Oklahoma
73069 (405)
3294045
(Name, address and
telephone number of
agent for service)
Approximate date of proposed sale to public: From
time to time after effective date of this Registration Statement.
CALCULATION OF REGISTRATION
FEE
| | Proposed | Proposed
|
Title of | |Maximum Offer-| Maximum
|
Amount of
Securities to | Amount to be |ing Price Per | Aggregate
| Registration
be Registered | Registered | Share (1) |Offering Price
(1)| Fee
| | |
|
Common Stock | 600,000 | $9.9375 | $5,962,500
|
$2,056.03
$.01 par value | shares | |
|
(1) Estimated in accordance with Rule 457(h) solely for the
purpose of calculating the registration fee, calculated
based on the average of the high and low sales prices of
the Common Stock as reported on the American Stock Exchange
for October 24, 1995, which average
price was $9.9375 per share.
The contents of the Registrant's Registration
Statement on Form S-8 (File No. 33-68604) and Post
Effective Amendment No. 1 thereto, to the extent
relating to the 1993 Performance and Equity Incentive
Plan (the "1993 Plan") of the Registrant are
incorporated herein by reference. This
Registration Statement has been filed in
accordance with General Instruction E to Form S-8
for the purpose of registering the offer and sale
of additional shares of Common Stock of
Registrant that may be issued or sold by the
Registrant in connection with the 1993 Plan.
For a list of exhibits filed as part of this
Registration Statement, see the Exhibit Index hereto.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly
authorized in the City of Norman, State of
Oklahoma, on September 22, 1995.
HAROLD'S STORES, INC.
By: H. Rainey Powell
H. Rainey Powell
President, Chief
Operating Officer and
Secretary
Pursuant to the requirements of the
Securities Act of 1933, this Registration
Statement has been signed by the following persons
in the capacities and on the dates indicated.
Harold G. Powell Chairman of the
Board
September 22, 1995 of Directors
Harold G. Powell
Rebecca Powell Casey Chief Executive
Officer,
September 22, 1995 Director (Principal
Rebecca Powell Casey Executive Officer)
H.Rainey Powell President,Chief
Operating
September 22, 1995 Officer, Secretary and
H. Rainey Powell Director (Principal
Financial Officer)
Linda Daugherty Vice President and
September 22, 1995 Controller (Principal
Linda Daugherty Accounting
Officer)
Kenneth C.Row Director
September 22, 1995
Kenneth C. RowJames A. Agar
Director September 22, 1995
James A. Agar
Michael T. Casey
Director
September 22, 1995
Michael T. Casey
Robert B. Cullum, Jr.
Director
September 22, 1995
Robert B. Cullum, Jr.
Lisa Powell Hunt
Director
September 22, 1995
Lisa Powell Hunt
W. Howard Lester
Director
September 22, 1995
W. Howard Lester
Gary C. Rawlinson
Director
September 22, 1995
Gary C. Rawlinson
William F. Weitzel
Director
September 22, 1995
William F. Weitzel
EXHIBIT INDEX
Exhibit
No. Description
4.1 Certificate of Incorporation of
Registrant
(Incorporated by reference to Exhibit
3.1 of
Registrant's Registration Statement on
Form 8B, Registration No. 1-10892)
4.2 Bylaws of Registrant (Incorporated by
reference
to Exhibit 3.2 of Registrant's
Registration
Statement on Form 8-B, Registration No. 1-
10892) 4.3 1993 Performance and
Equity Incentive Plan
of
the
Registrant, as amended
5.1 Opinion of Crowe & Dunlevy, A
Professional
Corporation, on legality of securities
23.1 Consent of Crowe & Dunlevy, A
Professional
Corporation (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
EXHIBIT 4.3
As Amended by
Board Resolutions dated
April 28, 1995, and
Appro ved by Shareholders
on June 23, 1995
HAROLD'S STORES, INC.
1993 PERFORMANCE AND EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the 1993
Performance and Equity Incentive Plan (herein referred
to
as the "Plan") is to promote and advance the interest
of Harold's Stores, Inc. (the "Company") and its
shareholders by enabling the Company to attract,
retain and reward managerial and other key employees
and to strengthen the mutuality of interests between
such employees and the Company's shareholders. The
Plan is designed to meet this intent by offering
performancebased stock and cash incentives and
other equity-based incentive awards thereby providing a
proprietary interest in pursuing the long-term growth,
profitability and financial success of the Company. In
addition, the Plan is intended to secure, retain,
motivate and reward
Nonemployee Directors of Company through the grant of
Stock Options to Nonemployee Directors.
2. Definitions. For purposes of the Plan,
the
following terms shall have the meanings set forth below:
(a) "Award" or "Awards" means an
award or grant made to a Participant under Sections 6
through 10, inclusive, of the Plan.
(b) "Board" means the Board of
Directors of the Company.
(c) "Code" means the Internal Revenue
Code of 1986, as in effect from time to time or
any successor thereto,
together with rules, regulations and
interpretations promulgated thereunder.
(d) "Committee" means the Committee of
the Board constituted as provided in Section 3 of
the Plan.
(e) "Common Stock" means the Common
Stock, par value $0.01 per share, of the Company
or any
security of the Company issued in substitution,
exchange or lieu thereof.
(f) "Company" means Harold's Stores,
Inc., a Delaware corporation, or any successor
corporation.
(g) "Deferred Compensation Stock
Option" means any Stock Option granted
pursuant to the provisions of Section 6 of the
Plan that is specifically designated as such.
(h) "Disability" means disability
as determined by the Committee in accordance with
standards and procedures similar to those under the
Company's longterm disability plan.
(i) "Exchange Act" means the
Securities Exchange Act of 1934, as amended and in
effect from time to time, or any successor statute.
(j) "Fair Market Value" means, if the
shares are traded on a national securities
exchange, the closing price of the shares on such
national securities exchange on the day on
which such value is to be determined or, if no
shares were traded on such day, on the next
preceding day on
which shares were traded, as reported by
National Quotation Bureau, Inc. or other national
quotation service. If the principal market for the
shares is the over-the-counter market, Fair Market
Value means the closing "asked" price of the shares
in the overthe-counter market on the date on which
such value is to be determined or, if such asked
price is not available, the last sales price on
such day or, if no shares were traded on such
day, on the next preceding day on which the shares
were traded, as reported by the National
Association of Securities Dealers Automatic
Quotation System (NASDAQ) or
other national quotation service. If at any time
shares of Common Stock are not traded on an
exchange or in the over-the-counter market,
Fair Market Value shall be the value determined by the
Committee, taking into consideration those factors
affecting or reflecting value which they deem
appropriate. For purposes of determining the exercise
price of an Incentive Stock Option, Fair Market Value
shall not under any circumstances exceed the amount
contemplated by Section 422(b)(4) of the Code.
(k) "Incentive Stock Option" means any Stock
Option granted pursuant to the provisions of Section 6
of the Plan that is intended to be and is specifically
designated as an "incentive stock option" within the
meaning of Section 422 of the Code.
(l) "Nonemployee Director" means each person
who is a member of the Board of Directors of Company but
who is not an employee of Company or a Subsidiary.
(m) "Non-Qualified Stock Option" means any
Stock Option granted pursuant to the provisions of
Section 6 of the Plan that is not an Incentive Stock
Option.
(n) "Participant" means an employee of
Company or a Subsidiary who is granted an Award under
the Plan, or a Nonemployee Director who is granted a
Stock Option pursuant to Section 6(h) of the Plan.
(o) "Performance Award" means an Award
granted pursuant to the provisions of Section 9 of the
Plan the vesting of which is contingent on performance
attainment.
(p) "Performance Equity Grant" means an Award
of units representing shares of Common Stock granted
pursuant to the provisions of Section 9 of the Plan.
(q) "Performance Unit Grant" means an Award
of monetary units granted pursuant to the provisions of
Section 9 of the Plan.
(r) "Plan" means this 1993 Performance and
Equity Incentive Plan of the Company, as set forth
herein and as it may be hereafter amended and from time
to time in effect.
(s) "Restricted Award" means an Award granted
pursuant to the provisions of Section 8 of the Plan.
(t) "Restricted Stock Grant" means an Award
of shares of Common Stock granted pursuant to the
provisions of Section 8 of the Plan.
(u) "Restricted Unit Grant" means an Award
of units representing shares of Common Stock
granted pursuant to the provisions of Section 8 of the
Plan.
(v) "Retirement" means retirement from
active employment with the Company and its
Subsidiaries on or after the normal retirement
date specified in the Company's retirement plan
for salaried employees or such earlier retirement
date as approved by the Committee for purposes of
this Plan.
(w) "Stock Appreciation Right" means an
Award to benefit from the appreciation of Common
Stock granted pursuant to the provisions of Section
7 of the Plan.
(x) "Stock Option" means an Award to
purchase
shares of Common Stock granted pursuant to
the
provisions of Section 6 of the Plan.
(y) "Subsidiary" means any corporation
or entity in which the Company directly or
indirectly controls 50% or more of the total voting
power of all classes of its stock having voting
power.
3. Administration.
(a) The Plan shall be administered by
the Committee to be appointed from time to time
by the Board. Members of the Committee shall
serve at the pleasure of the Board and the Board
may from time to time remove members from, or
add members to, the Committee. A majority of
the members of the Committee shall constitute a
quorum for the transaction
of business. Action approved in writing by a
majority of the members of the Committee then
serving shall be fully effective as if the action
had been taken by unanimous vote at a meeting duly
called and held.
(b) The Committee is authorized to
construe and interpret the Plan to promulgate,
amend and rescind rules and regulations relating to
the implementation of the Plan and to make all
other determinations necessary or advisable for the
administration of the Plan.The Committee may
designate persons other than members of the
Committee to carry out its responsibilities under
such conditions and limitations as it may
prescribe. Any determination, decision or action of
the Committee in connection with the
construction, interpretation, administration, or
application of the Plan shall be final, conclusive
and binding upon all persons
participating in the Plan and any person
validly claiming under or through persons
participating in the Plan. The Committee's
powers include, but are not limited to,
modifications, procedures and subplans as are
necessary to comply with provisions of federal and
state securities laws, including, but not limited
to, provisions of federal securities laws
applicable to executive officers who receive
Awards under the Plan. The Company shall effect
the granting of Awards under the Plan in
accordance with the determinations made by the
Committee, by execution of instruments in writing in
such form as approved by the Committee.
Notwithstanding this paragraph (b), and solely to
the extent necessary to satisfy the requirements
of Rule 16b-3 under the Exchange Act, the
Committee shall have no discretionary authority with
respect to the eligibility, amount, price or timing
of any Stock Options granted under the Plan to a
Nonemployee Director of Company.
4. Plan Duration; Common Stock Subject to Plan.
(a) Term. The Plan shall terminate
on
November 30, 2002, except with respect to Awards
then outstanding.
(b) Shares of Common Stock Subject to
Plan.
The maximum number of shares of Common Stock in
respect of which Awards may be granted under the
Plan, subject to adjustment as provided in
Section 15 of the Plan, is
1,000,000.
If any Awards are forfeited,
terminated, expire unexercised, settled in cash in
lieu of stock or exchanged for other Awards, the
shares of Common Stock which were theretofor
subject to such Awards shall again be available for
Awards under the Plan to the extent of such
forfeiture or expiration of such Awards. Further,
any shares of Common Stock which are used as full
or partial payment to the Company by a Participant
of the purchase price of shares of Common Stock
upon exercise of a Stock Option shall again be
available for Awards under the Plan, as shall any
shares covered by Stock Appreciation Rights which
are not issued as payment upon exercise.
Common Stock which may be issued under
the Plan may be either authorized and unissued
shares or issued shares which have been reacquired
by the Company. No fractional shares of Common
Stock shall be issued under the Plan.
5. Eligibility. Persons eligible for
Awards
under the Plan shall consist of managerial and other
key employees of the Company and/or its Subsidiaries
who hold positions of significant responsibilities or
whose performance or potential contribution, in the sole
judgment of the Committee, will benefit the future
success of the Company. In addition, all Nonemployee
Directors of Company shall be eligible for Stock
Options under the Plan in accordance solely with the
provision of Section 6(h) hereof.
6. Stock Options. Stock Options granted
under
the Plan may be in the form of Incentive Stock Options,
Non Qualified Stock Options, Deferred Compensation Stock
Options, Nonemployee Director Options and such Stock
Options shall be subject to the following terms and
conditions and shall contain such additional terms and
conditions,not inconsistent with the express provisions
of the Plan, as the Committee shall deem desirable:
(a) Grant. Stock Options may be
granted under the Plan on such terms and
conditions not inconsistent with the provisions of
the Plan and in such form as the Committee may
from time to time approve. Stock Options may be
granted alone, in addition to or in tandem with
other Awards under the Plan.
(b) Stock Option Price. The option
exercise price per share of Common Stock
purchasable under a Stock Option shall be
determined by the Committee at the time of grant,
but in no event shall the exercise price of an
Incentive Stock Option be less than one hundred
percent (100%) of the Fair Market Value of the
Common Stock on the
date of the grant of such Stock Option.
(c) Option Term. The term of each
Stock
Option shall be fixed by the Committee; except that
the term of Incentive Stock Options shall not
exceed ten (10) years after the date the Incentive
Stock Option is granted.
(d) Exercisability. A Stock Option shall
be exercisable at such time or times and subject to
such terms and conditions as shall be determined
by the Committee at the date of grant. Except as
provided in
Section 13 of this Plan, no Stock Option may be
exercised unless the holder thereof is at the time of
such exercise in the employ of the Company or a
Subsidiary and has been continuously so employed since
the date such Stock Option was granted.
(e) Method of Exercise. A Stock Option may
be exercised, in whole or in part, by giving written
notice of exercise to the Company specifying the number
of shares to be purchased. Such notice shall be
accompanied by payment in full of the purchase price in
cash or, if acceptable to the Committee in its sole
discretion, in shares of Common Stock already owned by
the Participant, or by surrendering outstanding Awards
denominated in stock or stock units. The Committee may
also permit Participants, either on a selective or
aggregate basis, to simultaneously exercise Options and
sell the shares of Common Stock thereby acquired,
pursuant to a brokerage or similar arrangement, approved
in advance by the Committee, and use the proceeds from
such sale as payment of the purchase price of such
shares.
(f) Special Rules for Incentive Stock
Options. With respect to Incentive Stock Options
granted under the Plan, the following additional
provisions shall apply:
(i) The aggregate Fair Market Value
(determined as of the date the Incentive Stock
Option is granted) of the number of shares with
respect to which Incentive Stock Options are
exercisable for the first time by a Participant
during any calendar year shall not exceed One
Hundred Thousand Dollars ($100,000) or such other
limit as may be required by the Code;
(ii) If at the time an Incentive Stock
Option is granted, the Participant owns stock
possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of
Company, then the terms of the Incentive Stock
Option shall specify that the exercise price shall
be at least 110% of the Fair Market Value of the
Common Stock subject to the Incentive Stock Option
and such Incentive Stock Option shall not be
exercisable after the expiration of five (5) years
from the date granted; and
(iii)The Committee shall include any
other terms and conditions as may be required in
order that the Incentive Stock Options qualify
under Section 422 of the Code or successor
provision.
(g) Deferred Compensation Stock Options.
Deferred Compensation Stock Options are intended to
provide a means by which compensation payments can be
deferred to future dates. The number of shares of
Common Stock subject to a Deferred Compensation Stock
Option shall be determined by the Committee, in its sole
discretion, in accordance with the following formula:
Amount of Compensation to be Deferred = Number of (Fair
Market Value - Exercise Price) Optioned Shares
Amounts of compensation deferred may include amounts
earned under Awards granted under the Plan or under any
other compensation plan, program or arrangement of the
Company as permitted by the Committee.
Deferred Compensation Stock Options will be
granted only if the Committee has reasonably determined
that a recipient of such an option will not be deemed at
the date of grant to be in receipt of the amount of
income being deferred for purposes of the Code.
(h) Nonemployee Director Options.
Notwithstanding anything elsewhere in the Plan to the
contrary, each Nonemployee Director shall be eligible
for grants of Stock Options under the Plan solely in
accordance with this provision. The following
subparagraphs of this paragraph shall apply to the
granting of Stock Options to Nonemployee Directors
("Nonemployee Director Options"):
(i) Grant of Options. Each individual
who is a Nonemployee Director on the date of the
1995 annual meeting of shareholders of Company
shall receive an initial option grant to purchase
4,500 shares of the Common Stock of Company
immediately following such
meeting. Each
individual who becomes a Nonemployee Director
subsequent to the 1995 annual meeting of
shareholders of Company shall receive an initial
option grant to purchase 4,500 shares of the Common
Stock immediately following the date of his
election to the Board. Each Nonemployee Director
also shall receive subsequent grants of stock
options to purchase 1,500 shares of the Common
Stock immediately following each annual meeting of
shareholders of Company at which such Nonemployee
Director is re-elected to the Board. All Stock
Options granted to the Nonemployee Directors shall
constitute Non-Qualified Stock Options.
(ii) Exercise Price. The purchase price
for each share placed under a Stock Option for a
Nonemployee Director shall be equal to 100% of the
Fair Market Value of such share on the date the
Stock Option is granted.
(iii) Vesting and Term. Each Nonemployee
Director Option shall become vested and exercisable
in full on the date six months after the date of
grant. The term of each Stock Option granted to a
Nonemployee Director shall be ten (10) years from
the date of grant, subject to earlier termination
in accordance with this subparagraph (iii) below.
Options may be exercised solely by the Nonemployee
Director during his lifetime, or in the event of
his legal incapacity, by his legal representative,
or
after his death, by the person or persons
entitled thereto under his will or the laws of
descent and distribution. In the event of the
death of a Nonemployee Director while a member of
the Board, any unvested portion of the Stock Option
as of the date of death shall be vested as of the
date of death, and the option shall be exercisable
in full by the heirs or other legal representatives
of the Nonemployee Director within twelve months
following the date of death. In the event of
termination of a Nonemployee Director as a member of
the Board for any reason other than death or removal
from the Board for cause in accordance with applicable law
and the Certificate of Incorporation and By-laws of
Company, such option shall be exercisable by the
Nonemployee
Director or his legal representative within three
months of the date of termination as to all then vested
portions. If a Nonemployee Director is removed from the
Board for cause, the Stock Option shall terminate as of
the effective date of removal for cause and the
optionee shall have no further rights to exercise any
portion of the Stock Option. Notwithstanding the
foregoing provisions of this subparagraph
(iii), in no event may a Stock Option be
exercised more than ten years after the date of
grant.
(iv) Method of Exercise.
Nonemployee Director Options may be exercised in the
manner provided in paragraph (e) of this Section 6
("Method of Exercise").
(v) Other Provisions. All
Nonemployee Director Options shall be subject
to the other provisions of the Plan that are
not inconsistent with the provisions of
this paragraph (h); provided, however, that
the Committee shall not have discretionary
authority, as otherwise provided by the
provisions of this Plan, to make any
determination that would alter the effects of
a provision of the Plan as to a Nonemployee
Director Option.
7. Stock Appreciation Rights. The grant of
Stock
Appreciation Rights under the Plan shall be subject to
the following terms and conditions and shall contain
such additional terms and conditions, not inconsistent
with the express terms of the Plan, as the Committee
shall deem desirable:
(a) Stock Appreciation Rights. A
Stock Appreciation Right is an Award entitling a
Participant to receive an amount equal to (or if the
Committee shall determine at the time of grant, less
than) the excess of the Fair Market Value of a share
of Common Stock on the date of exercise over the
Fair Market Value of a share of Common Stock on
the date of grant of the Stock Appreciation Right,
or such other price as set by the Committee,
multiplied by the number of shares of Common Stock
with respect to which the Stock Appreciation Right
shall have been exercised.
(b) Grant. A Stock Appreciation Right may
be granted in tandem with, in addition to or
completely independent of a Stock Option or any
other
Award under the Plan.
(c) Exercise. A Stock Appreciation Right
may be exercised by a Participant in
accordance with
procedures established by the Committee. In the case
of the grant of a Stock Appreciation Right to an
officer
who is subject to Section 16(b) of the Exchange
Act, (i) the Stock Appreciation Right shall not be
exercisable within the first six (6) months after the
date of grant, except in the event of the death or
Disability of the Participant; and (ii) no payment
in the form of cash may be made upon the exercise of
a Stock Appreciation Right at any time unless such
exercise is made during the period beginning on the
third business day and ending on the twelfth
business day following the date of release for
publication of the Corporation's quarterly or annual
statement of earnings, or unless the Committee
has provided that the Stock Appreciation Right
shall be automatically exercised on one or more
specified dates outside of the control of the
Participant.
(d) Form of Payment. Payment upon
exercise of a Stock Appreciation Right may be made
in cash, in shares of Common Stock, a Deferred
Compensation Stock Option or any combination
thereof, as the Committee shall determine;
provided, however, that any Stock Appreciation
Right exercised upon or subsequent to the occurrence
of a Change in Control (as defined in Section 16
hereof) shall be paid in cash.
8. Restricted Awards. Restricted Awards
granted
under the Plan may be in the form of either Restricted
Stock Grants or Restricted Unit Grants. Restricted Awards
shall be subject to the following terms and conditions
and shall contain such additional terms and
conditions, not inconsistent with the express
provisions of the Plan, as the Committee shall deem
desirable:
(a) Restricted Stock Grants. A
Restricted Stock Grant is an Award of shares of
Common Stock transferred to a Participant subject to
such terms and conditions as the Committee
deems appropriate, including, without limitation,
restrictions on the sale, assignment, transfer or
other disposition of such shares and the
requirement that the Participant forfeit such shares
back to the Company
upon termination of
employment for specified reasons within a specified
period of time.
(b) Restricted Unit Grants. A
Restricted Unit Grant is an Award of units (with
each unit having a value equivalent to one share of Common
Stock) granted to a Participant subject to such terms and
conditions as the Committee deems appropriate, including,
without limitation, the requirement that the Participant
forfeit such units upon termination
of employment for specified reasons within a
specified period of time.
(c) Grants of Awards. Restricted Awards may be
granted under the Plan in such form and on such terms and
conditions as the Committee may from time to time approve.
Restricted Awards may be granted alone, in addition to or
in tandem with other Awards under the Plan. Subject to the
terms of the Plan, the Committee shall determine the number
of Restricted Awards to be granted to a Participant and the
Committee may impose different terms and conditions
on any
particular
Restricted Award made to any Participant. Each
Participant receiving a Restricted Stock Grant shall be issued
a stock certificate in respect of such shares of Common
Stock. Such certificate shall be registered in the name of
such Participant, shall be accompanied by a stock power duly
executed by such Participant, shall bear an appropriate
legend referring to the terms,
conditions and restrictions applicable to such Award, and
shall be held in custody by the Company until the
restrictions thereon shall have lapsed.
(d) Restriction Period. Restricted Awards
shall provide that in order for a Participant to vest in such
Awards, the Participant must remain in the
employment of the Company or its Subsidiaries, subject to
relief for specified reasons, for such time period commencing
on the date of the
Award and ending on such later date or dates as the
Committee may designate at
the time of the Award ("Restriction Period"). During
the Restriction period, a Participant may not
sell, assign, transfer, pledge, encumber or
otherwise dispose of shares of Common Stock
received under a Restricted Stock Grant. The Committee, in
its sole discretion, may provide for the lapse of
restrictions in installments during the Restriction
Period. Upon expiration of the applicable Restriction
period (or lapse of restrictions during the
Restriction Period where the restrictions lapse in
installments) the Participant shall be
entitled to receive his or her
Restricted Award or portion
thereof, as the case may be.
(e) Payment of Awards. A Participant shall
be entitled to receive payment for a
Restricted Unit
Grant (or portion thereof) in an amount
equal to the
aggregate Fair Market Value of the shares
of Common
Stock covered by such Award upon
expiration of the
applicable Restriction Period. Payment in
settlement of a Restricted Unit
Grant shall be made as soon as
practicable following the conclusion of the
respective
Restriction Period in cash, in shares of Common Stock
equalto the number of units granted under the Restricted
Unit Grant with respect to which such payment is made, a
Deferred Compensation
Stock Option or in any combination thereof, as the
Committee in its sole
discretion shall determine.
With respect to a Restricted Stock
Grant, the Committee may also, in its
discretion,permit a Participant to elect to
receive, in lieu of shares ofunrestricted stock
at the conclusion of a Restriction Period, a cash
payment equal to the Fair Market Value of the
Restricted Stock vesting on the date the
restrictions lapse.
(f) Rights as a Shareholder. A
Participant
shall have, with respect to the shares of
Common Stock received under a Restricted
Stock Grant, all of the rights of a
shareholder of the Company, including the
right to vote the shares, and the right to
receive any cash dividends. Stock dividends
issued with respect to the shares covered by a
Restricted Stock Grant shall be treated as
additional shares under the Restricted Stock
Grant and shall be subject to the same
restrictions and other terms and conditions
that apply to shares under the Restricted
Stock Grant with respect to which such
dividends are issued.
9. Performance Awards.
Performance Awards granted under the Plan
may be in the form of either Performance
Equity
Grants or Performance nit Grants. Performance
Awards shall be subject to
the
following terms and conditions and shall
contain such additional terms and conditions, not
inconsistent with the express provisions of the
Plan, as the Committee shall deem desirable:
(a) Performance Equity Grants. A
Performance Equity Grant is an
Award of units (with each unit equivalent in
value to one share of Common Stock)
granted to a Participant subject to such terms
and conditions as the Committee deems
appropriate,including, without
limitation, the requirement that the Participant
forfeit such units or a portion of such units in
the event certain performance criteria are not met
within a designated period of time.
(b) Performance Unit Grants. A
Performance Unit Grant is
an
Award of units (with each unit representing
such monetary amount as designated
by
the Committee) granted to a Participant subject
to such terms and conditions as the Committee
deems appropriate, including, without limitation,
the requirement that the Participant
forfeit such units or a portion of
such units in the event certain performance
criteria are not met within a
designated period of time.
(c) Grants of Awards. Performance
Awards may e granted under the Plan in such form
as the
Committee may from time to
time approve. Performance Awards may be
granted alone, in addition to or in tandem with
other Awards under the Plan. Subject to the
terms of the Plan, the
Committee shall determine the
number of Performance Awards to be granted to a
Participant and the Committee
may
impose different terms and conditions on any
particular Performance Award made to any
Participant.
(d) Performance Goals and
Performance Periods. Performance Awards shall
provide that in order for a
Participant to vest in such Awards the Company
and/or the individual Participant, or his or
her
division or unit, must achieve certain
performance goals
("Performance
Goals") over a designated performance
period ("Performance Period"). The Performance
Goals
and Performance Period shall be established by
the Committee, in its sole discretion. The
Committee shall establish
Performance Goals for each
Performance Period before, or
as
soon as practicable after, the
commencement of the Performance Period. The
Committee shall also establish a schedule or
schedules for such Performance
Period setting forth the portion of the
Performance Award which
will be earned or forfeited
based on the degree of achievement of the
Performance Goals actually
achieved or exceeded. In setting
Performance Goals, the
Committee may use such measures
of performance in such manner as it deems
appropriate, such as, for example, return on
equity, earnings growth,
revenue
growth, comparisons to peer companies or
prior period performance of the Participant or his
or her division or unit. During the Performance
Period, the Committee shall have the authority to
adjust upward or downward the
Performance Goals in such manner as it deems
appropriate.
(e) Payment of Awards. In the case of a
Performance Equity Grant,
the Participant shall be
entitled to receive payment for each unit earned
in an amount equal to the aggregate Fair Market
Value of the shares of
Common Stock covered by such Award at the time such
Award is vested or otherwise required to be settled
in accordance with its terms. In the
case of a Performance
Unit Grant, the Participant shall be
entitled to receive payment for each unit earned
in
an amount equal to the dollar value of each unit
times the number
of units earned. Payment in settlement of a
Performance Award shall be made as soon as
practicable following the conclusion of the
respective Performance Period in
cash, in shares of Common Stock, a Deferred
Compensation Stock Option or in any combination
thereof, as the Committee in its sole discretion
shall determine.
10. Other Stock-Based and Combination Awards.
(a) The Committee may grant other
Awards
under the Plan pursuant to which Common Stock is or
may in the future be acquired, or Awards
denominated in stock units, including ones valued
using measures other than market value. Such Other
Stock-Based Grants may be granted either alone, in
addition to or in tandem with any other type of
Award Granted under the Plan.
(b) The Committee may also grant Awards
under the Plan in tandem or combination with other
Awards or in exchange of Awards, or in tandem or
combination with, or as
alternatives to grants or rights under any other
employee plan of the Company, including the plan of
any acquired entity.
(c) Subject to the provisions of the
Plan, the Committee shall have authority to
determine the individuals to whom and the time or
times at which such Awards
shall be made, the number of shares of Common
Stock to be granted or covered pursuant to such
Awards, and any and all other conditions and/or
terms of the Awards.
11. Deferral Elections. The Committee may
permit a Participant to elect to defer his or her
receipt of the payment of
cash or the delivery of shares of Common Stock
that would otherwise be due to such Participant by virtue
of the earn out or exercise of an Award made under the
Plan. If any such election is permitted, the Committee
shall establish rules and procedures for such payment
deferrals, including, but not limited to, the possible
(a) payment or crediting of reasonable interest on
such deferred amounts credited in cash, (b) the
payment or crediting of dividend equivalents in respect
of deferrals credited in units of Common Stock, and (c)
granting of Deferred Compensation Stock Options.
12. Dividend Equivalents. Awards of
Stock Options, Stock Appreciation Rights, Restricted
Unit Grants, Performance Equity Grants, and other stock-
based Awards may, in the
discretion of the Committee, earn dividend
equivalents. In respect of any such Award which is
outstanding on a dividend record date for Common Stock,
the Participantmay be credited with an amount equal
to the amount of cash or stock dividends that would have
been paid on the shares of Common Stock covered by such
Award had such covered shares been issued and
outstanding on such dividend record date. The
Committee shall establish such rules and procedures
governing the crediting of dividend equivalents,
including the timing, form of payment and payment
contingencies of such dividend equivalents, as it deems
are appropriate or necessary.
13. Termination of Employment. The terms
and conditions under which an Award may be exercised
after a Participant's termination of employment shall be
determined by the Committee.
In the case of an Incentive Stock Option,
such Award shall expire no later than the date three
months after the termination of the Participant's
employment for any reason other than death or
Disability. In the event of termination of the
Participant's employment by reason of death or
Disability, the Incentive Stock Option shall expire on
the earlier of the expiration of (i) the date specified
in the Award which in no event shall be later than 12
months after the date of such termination, or (ii)
the term specified in Section 6(c) of this Plan.
Notwithstanding any other provision to
the
contrary, in the event a Participant's employment with
the Company or a Subsidiary terminates for any reason
within six (6) months of the date of grant of any
Award held by the Participant, such Award shall expire
as of the date of such termination of employment and
the Participant and the
Participant's legal representative or beneficiary
shall forfeit any and all rights pertaining to such
Award.
14. Non-transferability of Awards. No Award
under
the Plan, and no rights or interests therein, shall
be assignable or transferable by a Participant except by
will or the laws of descent and distribution. During the
lifetime of a Participant, Stock Options and Stock
Appreciation Rights are exercisable only by, and
payments in settlement of Awards will be payable only
to, the Participant or his legal representative.
15. Adjustments Upon Changes in
Capitalization,
Etc.
(a) The existence of the Plan and the
Awards granted hereunder shall not affect or restrict in
any way the right or power of the Board or the
shareholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other
change in the Company's capital structure or its
business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting the Company's
capital stock or the rights thereof, the dissolution
or liquidation of the Company or any sale or transfer
of all or any part of its assets or business, or any
other corporate act or proceeding.
(b) In the event of any change
in
capitalization affecting the Common Stock of
the
Company, such as a stock dividend, stock
split,
recapitalization, merger, consolidation, split
up,
combination or exchange of shares or other form
of reorganization, or any other change affecting the
Common Stock, such proportionate adjustments, if
any,
as the Board in its discretion may deem
appropriate to reflect such change shall be made
with respect to the aggregate number of shares of
Common Stock for which Awards in respect thereof
may be granted under the Plan, the maximum
number of shares of Common Stock which may be sold
or awarded to any Participant, the number of shares
of Common Stock covered by each outstanding Award,
and the price per share in respect of outstanding
Awards.
(c) The Committee may also make
such adjustments in the number of shares covered by, and
the price or other value of any outstanding Awards in
the event of a spin-off or other distribution (other
than
normal cash dividends) of Company assets to
shareholders. In the event that another corporation or
business entity is being acquired by the Company, and
the Company agrees to assume outstanding employee stock
options and/or stock appreciation rights and/or the
obligation to make future grants of options or rights to
employees of the acquired entity, the aggregate number
of shares of Common Stock available for Awards under
Section 4 of the Plan may be increased accordingly.
16. Change in Control.
(a) In the event of a Change in Control (as
defined below) of the Company, and except as the Board
may expressly provide otherwise, (i) all Stock Options
and Stock Appreciation Rights then outstanding shall
become fully exercisable as of the date of the Change in
Control, whether or not then exercisable, (ii) all
restrictions and conditions of all Restricted Stock
Grants and Restricted Unit Grants then outstanding shall
be deemed satisfied as of the date of the Change in
Control, and (iii) all Performance Equity Grants and
Performance Unit Grants shall be deemed to have been
fully earned as of the date of the Change in Control,
subject to the limitation that any Award which has been
outstanding less than six (6) months on the date of the
Change in Control shall not be afforded such treatment.
(b) A "Change in Control" of the Company
shall have occurred if any Acquiring Person (other than
the Company, any Subsidiary, any employee benefit plan
of the Company or of any Subsidiary, or any person or
entity organized, appointed or established by the
Company or any Subsidiary for or pursuant to the terms
of any such plans), alone or together with ts
Affiliates and Associates, shall become the beneficial
owner of thirty-five percent (35%) or more of the shares
of Common Stock then outstanding (except pursuant to an
offer for all outstanding shares of the Company's Common
Stock at a price and upon such terms and conditions as a
majority of the Continuing Directors determine to be in
the best interests of the Company and its shareholders,
(other than the Acquiring Person or any Affiliate or
Associate thereof on whose behalf the offer is being
made)), and the Continuing Directors no longer
constitute a majority of the Board.
(c) "Acquiring Person" means any person (any
individual, firm, corporation or other entity) who or
which, together with all Affiliates and Associates,
shall be the beneficial owner of a substantial block
ofthe Company's Common Stock; provided, however,
that Acquiring Person shall not mean Harold G. Powell or
any Affiliate, Associate, spouse, or lineal descendant
of
Harold G. Powell, including an adopted child of a lineal
descendant.
(d) "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the
Exchange Act.
(e) "Continuing Director" means (i) any
individual who is a member of the Board, while such
individual is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of
an Acquiring Person, or a representative or nominee
of an Acquiring Person or of any such Affiliate or
Associate and was a member of the Board prior to the
occurrence of the Change in Control date, or (ii) any
successor of a Continuing Director, while such successor
is a member of the Board, and who is not an Acquiring
Person, or an Affiliate or Associate, and is
recommended or elected to succeed the Continuing
Director by a majority of the Continuing Directors.
17. Amendment and Termination. The Board may
at any time at its sole discretion submit the Plan
for the approval of the shareholders of the Company,
terminate the Plan, or amend it from time to time in
such respects as the Board may deem advisable,
including, without limitation, amendments to the Plan
to bring the Plan into compliance with, to take
advantage of
exemptions or special treatment afforded under or to
take into account changes in applicable securities,
federal income tax laws and other applicable laws. To
the extent permitted by applicable law, the Board's
ability to effect such amendments or modifications to
the Plan shall expressly extend to and include
corresponding amendments or modifications to the terms of
existing Awards.
Notwithstanding the foregoing, solely to the
extent necessary to satisfy the requirements of Rule 16b-
3 under the Exchange Act, the Board may not act more than
once every six (6) months to amend the provisions of
the
Plan relating to the eligibility, amount, price or
timing of grants of Stock Options to Nonemployee
Directors.
18. Loans for Exercise of Options. The
Committee may, in its discretion, allow Participants to
execute notes payable to the Company in full or
partial payment for the shares of Common Stock
acquired in connection with the exercise of
Stock Options granted
under the Plan. In no event, however, may such loan
exceed the amounts allowable to be loaned by the Company
to such individual for the purposes stated hereunder as
provided by any regulation of the United States Treasury
or other State or Federal statute. The terms of any
such loan, including the interest rate, security and
repayment terms, will be subject to the discretion of
the Committee.
19. Miscellaneous.
(a) Tax Withholding. The Company shall
have the right to deduct from any settlement,
including the delivery or vesting of shares, made
under the Plan any federal, state or local taxes
of any kind required by law to be withheld with
respect to such payments or to take such other
action as may be necessary in the opinion of the
Company to satisfy all obligation for the payment
of such taxes. If Common Stock is used to
satisfy
tax withholding, such stock shall be valued
based on the Fair Market Value when the tax
withholding is required to be made.
(b) No Right to Employment. Neither
the adoption of the Plan nor the granting of any
Award shall confer upon any employee of the
Company or any
Subsidiary any right to continued employment with
the Company or any Subsidiary, as the case may be,
nor shall it interfere in any way with the right of
the Company or a Subsidiary to terminate the
employment of any of its
employees at any time, with or without cause.
(c) Unfunded Plan. The Plan shall be
unfunded and the Company shall not be required
to
segregate any assets that may at any time be
represented
by Awards under the Plan. Any liability of the
Company to any person with respect to any Award
under
the Plan
shall be based solely upon any contractual
obligations that may be effected pursuant to the
Plan. No such obligation of the Company shall be
deemed to be secured by any pledge of, or other
encumbrance on, any property of the Company.
(d) Payments to Trust. The
Committee is authorized to cause to be established
a trust agreement or several trust agreements
whereunder the Committee may make payments of
amounts due or to become due to
Participants in the Plan.
(e) Annulment of Awards. The grant of
any Award under the Plan payable in cash is
provisional until cash is paid in settlement
thereof. The grant of any Award payable in Common
Stock is provisional until the
Participant becomes entitled
to the certificate in settlement
thereof. In the event the employment of a
Participant is terminated for cause (as defined
below), any Award which is provisional shall be
annulled as of the date of such termination for
cause. For the purpose of this Section 18(e), the
term "terminated for cause" means any
discharge for violation of the policies and
procedures of the Company or for other job
performance
or conduct which is detrimental to the best
interests of the Company, as determined by the
Committee in its sole discretion.
(f) Engaging in Competition With Company.
In the event a Participant terminates his or her
employment with the
Company or a Subsidiary for any reason
whatsoever (except after a Change in Control),
and
within eighteen (18) months after the date
thereof accepts employment with any significant
competitor of, or otherwise engages in material
competition with, the Company or a
Subsidiary, the Committee, in its sole
discretion, may require such Participant to return
to
the Company the economic value of any Award which
is realized or obtained (measured at the date of
exercise, vesting or
payment) by such Participant at any time
during the period beginning on that date which is
six months prior to the date of such
Participant's
termination of employment with the Company or
a
Subsidiary.
(g) Other Company Benefit and
Compensation Programs.
Payments and other benefits received by a
Participant under an Award made pursuant to the
Plan
shall not be deemed a part of a Participant's
regular, recurring compensation for purposes of the
termination indemnity or severance pay law of any
country and shall not be included in, nor have
any effect on, the determination of benefits
under any other employee benefit plan or
similar arrangement provided by the Company or a
Subsidiary unless expressly so provided by such
other plan or arrangements, or except where the
committee expressly determines that inclusion of
an Award or portion of an Award should be
included to accurately reflect competitive
compensation practices or to recognize that an
Award has been made in lieu of a portion of
competitive annual cash compensation. Awards under
the Plan
may be made in combination with or in
tandem with, or as alternatives to, grants, awards
or payments under any other Company or Subsidiary
plans. The Plan notwithstanding, the Company or any
Subsidiary may adopt
such other compensation programs and additional
compensation arrangements as it deems
necessary to attract, retain and reward employees
for
their service with the Company and its Subsidiaries.
(h) Securities Law Restrictions. No
shares of Common Stock shall be issued under the
Plan unless
counsel for the Company shall be satisfied that
such issuance will be in compliance with applicable
Federal and state securities laws. Certificates
for shares of Common Stock delivered under the Plan
may be subject to such stop-transfer orders and
other restrictions as the Committee may deem
advisable
under the rules, regulations, and other
requirements of the Securities and Exchange
Commission, any stock exchange upon which the
Common Stock is then listed, and any applicable
Federal or state securities law. The Committee
may cause a legend or legends to be put on
any such certificates to make appropriate
reference to such restrictions.
(i) Compliance With Rule 16b-3. With
respect to persons subject to Section 16(b) of the
Exchange Act, transactions under the Plan are
intended to comply with all applicable
conditions of Rule 16b-3 or its
successors
under the Exchange Act. To the extent any
provision of the Plan or action by the Board
of Directors or the Committee fails to so
comply, such provision or action shall be deemed
null and void, to the extent permitted by law and
deemed advisable by the Board of Directors or the
Committee.
(j) Award Agreement. Each
Participant receiving an Award under the Plan shall
enter into an agreement with the Company in a
form specified by the Committee agreeing to
the terms
and conditions of the Award and such related
matters as the Committee shall, in its sole
discretion, determine.
(k) Costs of Plan. The costs and
expenses of administering the Plan shall be borne by
the Company.
(l) Governing Law. The Plan and all
actions taken thereunder shall be governed by and
construed in accordance with the laws of the State
of
Delaware.
(m) Effective Date. The Plan was
adopted by the Board of Directors on
May 25,
1993, subject to
approval of the stockholders of the Company at the
1993 annual meeting or any adjournment thereof.
EXHIBIT 5.1
October 25, 1995
Harold's Stores, Inc.
765 Asp
P.O. Drawer 2970
Norman, Oklahoma 73069
Re: Harold's Stores, Inc. - Registration
Statement on Form S-8 Relating to 600,000 Shares of
Common Stock Issuable in Connection with the 1993
Performance and Equity Incentive Plan (the
"1993 Plan")
Ladies and Gentlemen:
We have acted as counsel to Harold's Stores,
Inc. (the "Company") in connection with the offer and
sale of securities of the Company pursuant to a
Registration Statement on Form S-8 (the "Registration
Statement") relating to the 1993 Plan. We
understand that the Registration Statement
will be filed on or
about October 27, 1995. You have requested our
opinion as to certain matters in connection with
the Registration Statement.
We have examined, and are familiar with,
the originals or copies, the authenticity of which
have been established to our satisfaction, of all
documents and other instruments we have deemed necessary
to express the opinions hereinafter set forth. We have
assumed the accuracy and completeness of such
documents and instruments and of the information
contained therein.
Based on the foregoing, and upon consideration
of applicable law, it is our opinion that the 600,000
authorized but unissued shares of Common Stock, par value
$.01 per share ("Common Stock"), of the Company
authorized for issuance under the 1993 Plan and covered
by the Registration Statement will, when issued in the
manner described in the 1993 Plan and upon payment
therefor and delivery thereof as provided in the 1993
Plan, be validly issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion
as an exhibit to the above-captioned Registration
Statement and to the reference to our firm therein and
any amendments thereto.
Very truly yours,
Crowe & Dunlevy CROWE &
DUNLEVY
A Professional Corporation
EXHIBIT 23.2
CONSENT OF INDEPENDENT
AUDITORS The Board of Directors
Harold's Stores, Inc.:
We consent to the use of our report incorporated
herein by reference and the reference to our firm
under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Oklahoma City, Oklahoma
October 27, 1995
