Okla. Stat. tit. 18, § 18-1090.3

BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS

A. Notwithstanding any other provisions of this title, a

corporation shall not engage in any business combination with any

interested shareholder for a period of three (3) years following the

time that the person became an interested shareholder, unless:

1. Prior to that time, the board of directors of the

corporation approved either the business combination or the

transaction which resulted in the person becoming an interested

shareholder;

2. Upon consummation of the transaction which resulted in the

person becoming an interested shareholder, the interested

shareholder owned at least eighty-five percent (85%) of the

outstanding voting stock of the corporation at the time the

transaction commenced, excluding for purposes of determining the

outstanding voting stock, but not the outstanding voting stock owned

by the interested shareholder, those shares owned by:

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a. persons who are directors and also officers, and

b. employee stock plans in which employee participants do

not have the right to determine confidentially whether

shares held subject to the plan will be tendered in a

tender or exchange offer; or

3. At or subsequent to such time, the business combination is

approved by the board of directors and authorized at an annual or

special meeting of shareholders, and not by written consent, by the

affirmative vote of at least two-thirds (2/3) of the outstanding

voting stock which is not owned by the interested shareholder.

B. The restrictions contained in this section shall not apply

if:

1. The corporation’s original certificate of incorporation

contains a provision expressly electing not to be governed by this

section;

2. The corporation, by action of its board of directors,

adopted an amendment to its bylaws by November 30, 1991, expressly

electing not to be governed by this section, which amendment shall

not be further amended by the board of directors;

3. a. The corporation, with the approval of its

shareholders, adopts an amendment to its certificate

of incorporation or bylaws expressly electing not to

be governed by this section; provided that, in

addition to any other vote required by law, an

amendment to the certificate of incorporation or

bylaws must be adopted by the affirmative vote of a

majority of the outstanding voting stock of the

corporation.

b. In the case of a corporation that both:

(1) has never had a class of voting stock that falls

within any of the two categories set out in

paragraph 4 of this subsection, and

(2) has not elected by a provision in its original

certificate of incorporation or any amendment

thereto to be governed by this section, such

amendment shall become effective upon (i) in the

case of an amendment to the certificate of

incorporation, the date and time at which the

certificate filed in accordance with Section 1007

of this title becomes effective, or (ii) in the

case of an amendment to the bylaws, the date of

the adoption of such amendment.

c. In all other cases, an amendment adopted pursuant to

this paragraph shall become effective (i) in the case

of an amendment to the certificate of incorporation,

twelve (12) months after the date and time at which

the certificate filed in accordance with Section 1007

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of this title becomes effective, or (ii) in the case

of an amendment to the bylaws, twelve (12) months

after the date of the adoption of such amendment, and

in either case, the election not to be governed by

this section shall not apply to any business

combination between a corporation and any person who

became an interested shareholder of the corporation on

or before (i) in the case of an amendment to the

certificate of incorporation, the date and time at

which the certificate filed in accordance with Section

1007 of this title becomes effective, or (ii) in the
e election not to be governed by

this section shall not apply to any business

combination between a corporation and any person who

became an interested shareholder of the corporation on

or before (i) in the case of an amendment to the

certificate of incorporation, the date and time at

which the certificate filed in accordance with Section

1007 of this title becomes effective, or (ii) in the

case of an amendment to the bylaws, the date of the

adoption of such amendment. A bylaw amendment adopted

pursuant to this paragraph shall not be further

amended by the board of directors;

4. The corporation does not have a class of voting stock that

is:

a. listed on a national securities exchange, or

b. held of record by one thousand or more shareholders,

unless any of the foregoing results from action taken,

directly or indirectly, by an interested shareholder

or from a transaction in which a person becomes an

interested shareholder;

5. A person becomes an interested shareholder inadvertently

and:

a. as soon as practicable divests itself of ownership of

sufficient shares so that the person ceases to be an

interested shareholder, and

b. would not, at any time within the three-year period

immediately prior to a business combination between

the corporation and the person, have been an

interested shareholder but for the inadvertent

acquisition;

6. a. The business combination is proposed prior to the

consummation or abandonment of, and subsequent to the

earlier of the public announcement or the notice

required hereunder of, a proposed transaction which:

(1) constitutes one of the transactions described in

subparagraph b of this paragraph,

(2) is with or by a person who:

(a) was not an interested shareholder during the

previous three (3) years, or

(b) became an interested shareholder with the

approval of the corporation’s board of

directors or during the period described in

paragraph 7 of this subsection, and

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(3) is approved or not opposed by a majority of the

members of the board of directors then in office,

but not less than one, who were directors prior

to any person becoming an interested shareholder

during the previous three (3) years or were

recommended for election or elected to succeed

the directors by a majority of the directors.

b. The proposed transactions referred to in subparagraph

a of this paragraph are limited to:

(1) a share acquisition pursuant to Section 1090.1 of

this title, or a merger or consolidation of the

corporation, except for a merger in respect of

which, pursuant to subsection F or G of Section

1081 of this title, no vote of the shareholders

of the corporation is required,

(2) a sale, lease, exchange, mortgage, pledge,

transfer, or other disposition, in one

transaction or a series of transactions, whether

as part of a dissolution or otherwise, of assets

of the corporation or of any direct or indirect

majority-owned subsidiary of the corporation,

other than to any direct or indirect wholly owned

subsidiary or to the corporation, having an

aggregate market value equal to fifty percent

(50%) or more of either the aggregate market

value of all of the assets of the corporation

determined on a consolidated basis or the

aggregate market value of all the outstanding

stock of the corporation, or
ajority-owned subsidiary of the corporation,

other than to any direct or indirect wholly owned

subsidiary or to the corporation, having an

aggregate market value equal to fifty percent

(50%) or more of either the aggregate market

value of all of the assets of the corporation

determined on a consolidated basis or the

aggregate market value of all the outstanding

stock of the corporation, or

(3) a proposed tender or exchange offer for

outstanding stock of the corporation which

represents fifty percent (50%) or more of the

outstanding voting stock of the corporation. The

corporation shall give not less than twenty (20)

days’ notice to all interested shareholders prior

to the consummation of any of the transactions

described in divisions (1) or (2) of this

subparagraph; or

7. The business combination is with an interested shareholder

who became an interested shareholder at a time when the restriction

contained in this section did not apply by reason of any of

paragraphs 1 through 4 of this subsection; provided, however, that

this paragraph shall not apply if, at the time the interested

shareholder became an interested shareholder, the corporation’s

certificate of incorporation contained a provision authorized by

subsection C of this section.

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C. Notwithstanding paragraphs 1, 2, 3 and 4 of subsection B of

this section, a corporation may elect by a provision of its original

certificate of incorporation or any amendment thereto to be governed

by this section; provided, that any amendment to the certificate of

incorporation shall not apply to restrict a business combination

between the corporation and an interested shareholder of the

corporation if the interested shareholder became an interested

shareholder before the date and time at which the certificate filed

in accordance with Section 1007 of this title becomes effective.

D. As used in this section:

1. “Affiliate” means a person that directly, or indirectly

through one or more intermediaries, controls, or is controlled by,

or is under common control with, another person;

2. “Associate”, when used to indicate a relationship with any

person, means:

a. any corporation, partnership, unincorporated

association, or other entity of which the person is a

director, officer, or partner or is the owner of

twenty percent (20%) or more of any class of voting

stock,

b. any trust or other estate in which the person has at

least a twenty-percent beneficial interest or as to

which such person serves as trustee or in a similar

fiduciary capacity, and

c. any relative or spouse of the person, or any relative

of the spouse, who has the same residence as the

person;

3. “Business combination”, when used in reference to any

corporation and any interested shareholder of the corporation,

means:

a. any merger or consolidation of the corporation or any

direct or indirect majority-owned subsidiary of the

corporation with:

(1) the interested shareholder, or
tive or spouse of the person, or any relative

of the spouse, who has the same residence as the

person;

3. “Business combination”, when used in reference to any

corporation and any interested shareholder of the corporation,

means:

a. any merger or consolidation of the corporation or any

direct or indirect majority-owned subsidiary of the

corporation with:

(1) the interested shareholder, or

(2) any other corporation, partnership,

unincorporated association, or other entity if

the merger or consolidation is caused by the

interested shareholder and, as a result of the

merger or consolidation subsection A of this

section is not applicable to the surviving

entity,

b. any sale, lease, exchange, mortgage, pledge, transfer,

or other disposition, in one transaction or a series

of transactions, except proportionately as a

shareholder of the corporation, to or with the

interested shareholder, whether as part of a

dissolution or otherwise, of assets of the corporation

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or of any direct or indirect majority-owned subsidiary

of the corporation which assets have an aggregate

market value equal to ten percent (10%) or more of

either the aggregate market value of all the assets of

the corporation determined on a consolidated basis or

the aggregate market value of all the outstanding

stock of the corporation,

c. any transaction which results in the issuance or

transfer by the corporation or by any direct or

indirect majority-owned subsidiary of the corporation

of any stock of the corporation or of the subsidiary

to the interested shareholder, except:

(1) pursuant to the exercise, exchange, or conversion

of securities exercisable for, exchangeable for,

or convertible into stock of the corporation or

any subsidiary which securities were outstanding

prior to the time that the interested shareholder

became an interested shareholder,

(2) pursuant to a merger under subsection G of

Section 1081 of this title,

(3) pursuant to a dividend or distribution paid or

made, or the exercise, exchange, or conversion of

securities exercisable for, exchangeable for, or

convertible into stock of the corporation or any

subsidiary which security is distributed, pro

rata, to all holders of a class or series of

stock of the corporation subsequent to the time

the interested shareholder became an interested

shareholder,

(4) pursuant to an exchange offer by the corporation

to purchase stock made on the same terms to all

holders of the stock, or

(5) any issuance or transfer of stock by the

corporation; provided, however, that in no case

under divisions (3) through (5) of this

subparagraph shall there be an increase in the

interested shareholder’s proportionate share of

the stock of any class or series of the

corporation or of the voting stock of the

corporation,

d. any transaction involving the corporation or any

direct or indirect majority-owned subsidiary of the

corporation which has the effect, directly or

indirectly, of increasing the proportionate share of

the stock of any class or series, or securities

convertible into the stock of any class or series, or

the outstanding voting stock, of the corporation or of

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any subsidiary which is owned by the interested

shareholder, except as a result of immaterial changes

due to fractional share adjustments or as a result of

any purchase or redemption of any shares of stock not

caused, directly or indirectly, by the interested

shareholder,

e. any receipt by the interested shareholder of the

benefit, directly or indirectly, except

proportionately as a shareholder of the corporation,

of any loans, advances, guarantees, pledges, or other

financial benefits, other than those expressly

permitted in subparagraphs a through d of this

paragraph, provided by or through the corporation or

any direct or indirect majority-owned subsidiary, or
y receipt by the interested shareholder of the

benefit, directly or indirectly, except

proportionately as a shareholder of the corporation,

of any loans, advances, guarantees, pledges, or other

financial benefits, other than those expressly

permitted in subparagraphs a through d of this

paragraph, provided by or through the corporation or

any direct or indirect majority-owned subsidiary, or

f. any share acquisition by the interested shareholder

from the corporation or any direct or indirect

majority-owned subsidiary of the corporation pursuant

to Section 1090.1 of this title;

4. “Control” including the terms “controlling”, “controlled by”

and “under common control with”, means the possession, directly or

indirectly, of the power to direct or cause the direction of the

management and policies of a person, whether through the ownership

of voting stock, by contract, or otherwise. A person who is the

owner of twenty percent (20%) or more of the outstanding voting

stock of any corporation, partnership, unincorporated association or

other entity shall be presumed to have control of the entity, in the

absence of proof by a preponderance of the evidence to the contrary.

Notwithstanding the foregoing, a presumption of control shall not

apply where the person holds stock, in good faith and not for the

purpose of circumventing this section, as an agent, bank, broker,

nominee, custodian, or trustee for one or more owners who do not

individually or as a group have control of the entity;

5. a. “Interested shareholder” means:

(1) any person, other than the corporation and any

direct or indirect majority-owned subsidiary of

the corporation, that:

(a) is the owner of fifteen percent (15%) or

more of the outstanding voting stock of the

corporation, or

(b) is an affiliate or associate of the

corporation and was the owner of fifteen

percent (15%) or more of the outstanding

voting stock of the corporation at any time

within the three-year period immediately

prior to the date on which it is sought to

be determined whether the person is an

interested shareholder, and

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(2) the affiliates and associates of the person.

b. “Interested shareholder” shall not mean:

(1) any person who:

(a) owned shares in excess of the fifteen

percent (15%) limitation set forth herein as

of, or acquired such shares pursuant to a

tender offer commenced prior to, September

1, 1991, or pursuant to an exchange offer

announced prior to September 1, 1991, and

commenced within ninety (90) days thereafter

and either:

i. continued to own shares in excess of

the fifteen percent (15%) limitation or

would have but for action by the

corporation, or

ii. is an affiliate or associate of the

corporation and so continued, or so

would have continued but for action by

the corporation, to be the owner of

fifteen percent (15%) or more of the

outstanding voting stock of the

corporation at any time within the

three-year period immediately prior to

the date on which it is sought to be

determined whether the person is an

interested shareholder, or
is an affiliate or associate of the

corporation and so continued, or so

would have continued but for action by

the corporation, to be the owner of

fifteen percent (15%) or more of the

outstanding voting stock of the

corporation at any time within the

three-year period immediately prior to

the date on which it is sought to be

determined whether the person is an

interested shareholder, or

(b) acquired the shares from a person described

in subdivision (a) of this division by gift,

inheritance, or in a transaction in which no

consideration was exchanged, or

(2) any person whose ownership of shares in excess of

the fifteen percent (15%) limitation set forth

herein is the result of action taken solely by

the corporation; provided, that the person shall

be an interested shareholder if thereafter the

person acquires additional shares of voting stock

of the corporation, except as a result of further

corporate action not caused, directly or

indirectly, by the person.

c. For the purpose of determining whether a person is an

interested shareholder, the stock of the corporation

deemed to be outstanding shall include stock deemed to

be owned by the person through application of

paragraph 9 of this subsection, but shall not include

any other unissued stock of the corporation which may

be issuable pursuant to any agreement, arrangement, or

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understanding, or upon exercise of conversion rights,

warrants, or options, or otherwise;

6. “Person” means any individual, corporation, partnership,

unincorporated association, any other entity, any group and any

member of a group;

7. “Stock” means, with respect to any corporation, capital

stock and, with respect to any other entity, any equity interest;

8. “Voting stock” means, with respect to any corporation, stock

of any class or series entitled to vote generally in the election of

directors and, with respect to any entity that is not a corporation,

any equity interest entitled to vote generally in the election of

the governing body of the entity. Every reference to a percentage

of voting stock refers to the percentage of the votes of the voting

stock; and

9. “Owner” including the terms “own” and “owned”, when used

with respect to any stock, means a person who individually or with

or through any of its affiliates or associates:

a. beneficially owns the stock, directly or indirectly,

or

b. has:

(1) the right to acquire the stock, whether the right

is exercisable immediately or only after the

passage of time, pursuant to any agreement,

arrangement, or understanding, or upon the

exercise of conversion rights, exchange rights,

warrants, or options, or otherwise; provided,

however, that a person shall not be deemed the

owner of stock tendered pursuant to a tender or

exchange offer made by the person or any of the

person’s affiliates or associates until the

tendered stock is accepted for purchase or

exchange, or
agreement,

arrangement, or understanding, or upon the

exercise of conversion rights, exchange rights,

warrants, or options, or otherwise; provided,

however, that a person shall not be deemed the

owner of stock tendered pursuant to a tender or

exchange offer made by the person or any of the

person’s affiliates or associates until the

tendered stock is accepted for purchase or

exchange, or

(2) the right to vote the stock pursuant to any

agreement, arrangement or understanding;

provided, however, that a person shall not be

deemed the owner of any stock because of the

person’s right to vote the stock if the

agreement, arrangement or understanding to vote

the stock arises solely from a revocable proxy or

consent given in response to a proxy or consent

solicitation made to ten or more persons, or

c. has any agreement, arrangement or understanding for

the purpose of acquiring, holding or voting, except

voting pursuant to a revocable proxy or consent as

described in division (2) of subparagraph b of this

paragraph, or disposing of the stock with any other

person that beneficially owns, or whose affiliates or

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associates beneficially own, directly or indirectly,

the stock.

E. No provisions of a certificate of incorporation or bylaw

shall require, for any vote of shareholders required by this

section, a greater vote of shareholders than that specified in this

section.