<PAGE> 1
EXHIBIT A
OKLAHOMA STATUTES
Cite As: 18 O.S. Section 1091 (OSCN 1999)
--------------------------------------------------------------------------------
TITLE 18. CORPORATIONS.
--------------------------------------------------------------------------------
Chapter 22
Oklahoma General Corporation Act
Section 1091. Appraisal Rights
A. Any shareholder of a corporation of this state who holds shares of stock on
the date of the making of a demand pursuant to the provisions of subsection D of
this section with respect to the shares, who continuously holds the shares
through the effective date of the merger or consolidation, who has otherwise
complied with the provisions of subsection D of this section and who has neither
voted in favor of the merger or consolidation nor consented thereto in writing
pursuant to the provisions of Section 1073 of this title shall be entitled to an
appraisal by the district court of the fair value of the shares of stock under
the circumstances described in subsections B and C of this section. As used in
this section, the word "shareholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and "depository receipt" means an instrument issued by a depository
representing an interest in one or more shares, or fractions thereof, solely of
stock of a corporation, which stock is deposited with the depository The
provisions of this subsection shall be effective only with respect to mergers or
consolidations consummated pursuant to an agreement of merger or consolidation
entered into after November 1, 1988.
B. 1. Except as otherwise provided for in this subsection, appraisal rights
shall be available for the shares of any class or series of stock of a
constituent corporation in a merger or consolidation, or of the acquired
corporation in a share acquisition, to be effected pursuant to the provisions of
Section 1081 other than a merger effected pursuant to subsection G of Section
1081, and Sections 1082, 1086, 1087, 1090.1 or 1090.2 of this title.
2. a. No appraisal rights under this section shall be
available for the shares of any class or series of stock which
stock, or depository receipts in respect thereof, at the
record date fixed to determine the shareholders entitled to
receive notice of and to vote at the meeting of shareholders
to act upon the agreement of merger or consolidation, were
either:
(1) listed on a national securities exchange
or designated as a national market system
security or an interdealer quotation system
by the National Association of Securities
Dealers, Inc.; or
(2) held of record by more than two thousand
holders.
No appraisal rights shall be available for any shares of stock
of the constituent corporation surviving a merger if the
merger did not require for its approval the vote of the
shareholders of the surviving corporation as provided in
subsection G of Section 1081 of this title.
b. In addition, no appraisal rights shall be available for any
shares of stock, or depository receipts in respect thereof, of
the constituent corporation surviving a merger if the merger
did not require for its approval the vote of the shareholders
of the surviving corporation as provided for in subsection F
of Section 1081 of this title.
<PAGE> 2
3. Notwithstanding the provisions of paragraph 2 of this subsection, appraisal
rights provided for in this section shall be available for the shares of any
class or series of stock of a constituent corporation if the holders thereof are
required by the terms of an agreement of merger or consolidation pursuant to the
provisions of Sections 1081, 1082, 1086, 1087, 1090.1 or 1090.2 of this title to
accept for the stock anything except:
a. shares of stock of the corporation surviving or resulting
from such merger or consolidation or depository receipts
thereof, or
b. shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock or
depository receipts at the effective date of the merger or
consolidation will be either listed on a national securities
exchange or designated as a national market system security on
an interdealer quotation system by the National Association of
Security Dealers, Inc. or held of record by more than two
thousand holders, or
c. cash in lieu of fractional shares or fractional depository
receipts described in subparagraphs a and b of this paragraph,
or
d. any combination of the shares of stock, depository
receipts, and cash in lieu of the fractional shares or
depository receipts described in subparagraphs a, b and c of
this paragraph.
4. In the event all of the stock of a subsidiary Oklahoma corporation party to a
merger effected pursuant to the provisions of Section 1083 of this title is not
owned by the parent corporation immediately prior to the merger, appraisal
rights shall be available for the shares of the subsidiary Oklahoma corporation.
C. Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections D and E
of this section, shall apply as nearly as is practicable.
D. Appraisal rights shall be perfected as follows:
1. If a proposed merger or consolidation for which appraisal
rights are provided under this section is to be submitted for
approval at a meeting of shareholders, the corporation, not
less than twenty (20) days prior to the meeting, shall notify
each of its shareholders entitled to the appraisal rights that
appraisal rights are available for any or all of the shares of
the constituent corporations, and shall include in the notice
a copy of this section. Each shareholder electing to demand
the appraisal of the shares of the shareholder shall deliver
to the corporation, before the taking of the vote on the
merger or consolidation, a written demand for appraisal of the
shares of the shareholder. The demand will be sufficient if it
reasonably informs the corporation of the identity of the
shareholder and that the shareholder intends thereby to demand
the appraisal of the shares of the shareholder. A proxy or
vote against the merger or consolidation shall not constitute
such a demand. A shareholder electing to take such action must
do so by a separate written demand as herein provided. Within
ten (10) days after the effective date of the merger or
consolidation, the surviving or resulting corporation shall
notify each shareholder of each constituent corporation who
has complied with the provisions of this subsection and has
not voted in favor of or consented to the merger or
consolidation as of the date that the merger or consolidation
has become effective; or
<PAGE> 3
2. If the merger or consolidation is approved pursuant to the
provisions of Section 1073 or 1083 of this title, each
constituent corporation, either before the effective date of
the merger or consolidation or within ten (10) days
thereafter, shall notify each of the holders of any class or
series of stock of such constituent corporation who are
entitled to appraisal rights of the approval of the merger or
consolidation and that appraisal rights are available for any
or all of the shares of the class or series of stock of the
constituent corporation, and shall include in such notice a
copy of this section; provided if the notice is given on or
after the effective date of the merger or consolidation, the
notice shall be given by the surviving or resulting
corporation to all the holders of any class or series of stock
of a constituent corporation that are entitled to appraisal
rights. The notice may, and, if given on or after the
effective date of the merger or consolidation, shall also
notify the shareholders of the effective date of the merger or
consolidation. Any shareholder entitled to appraisal rights
may, within twenty (20) days after the date of mailing of the
notice, demand in writing from the surviving or resulting
corporation the appraisal of the holder's shares. The demand
will be sufficient if it reasonably informs the corporation of
the identity of the shareholder and that the shareholder
intends to demand the appraisal of the holder's shares. If the
notice does not notify shareholders of the effective date of
the merger or consolidation either:
a. each constituent corporation shall send a
second notice before the effective date of
the merger or consolidation notifying each
of the holders of any class or series of
stock of the constituent corporation that
are entitled to appraisal rights of the
effective date of the merger or
consolidation, o
b. the surviving or resulting corporation
shall send a second notice to all holders on
or within ten (10) days after the effective
date of the merger or consolidation;
provided, however, that if the second notice
is sent more than twenty (20) days following
the mailing of the first notice, the second
notice need only be sent to each shareholder
who is entitled to appraisal rights and who
has demanded appraisal of the holder's
shares in accordance with this subsection.
An affidavit of the secretary or assistant
secretary or of the transfer agent of the
corporation that is required to give either
notice that the notice has been given shall,
in the absence of fraud, be prima facie
evidence of the facts stated therein. For
purposes of determining the shareholders
entitled to receive either notice, each
constituent corporation may fix, in advance,
a record date that shall be not more than
ten (10) days prior to the date the notice
is given; provided, if the notice is given
on or after the effective date of the merger
or consolidation, the record date shall be
the effective date. If no record date is
fixed and the notice is given prior to the
effective date, the record date shall be the
close of business on the day next preceding
the day on which the notice is given.
E. Within one hundred twenty (120) days after the effective date of the merger
or consolidation, the surviving or resulting corporation or any shareholder who
has complied with the provisions of subsections A and D of this section and who
is otherwise entitled to appraisal rights, may file a petition in district court
demanding a determination of the value of the stock of all such shareholders;
provided, however, at any time within sixty (60) days after the effective date
of the merger or consolidation, any shareholder shall have the right to withdraw
the demand of the shareholder for appraisal and to accept the terms offered upon
the merger or consolidation. Within one hundred twenty (120) days after the
effective date of the merger or consolidation, any
<PAGE> 4
shareholder who has complied with the requirements of subsections A and D of
this section, upon written request, shall be entitled to receive from the
corporation surviving the merger or resulting from the consolidation a statement
setting forth the aggregate number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal have been received
and the aggregate number of holders of the shares. The written statement shall
be mailed to the shareholder within ten (10) days after the shareholder's
written request for a statement is received by the surviving or resulting
corporation or within ten (10) days after expiration of the period for delivery
of demands for appraisal pursuant to the provisions of subsection D of this
section, whichever is later.
F. Upon the filing of any such petition by a shareholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which, within
twenty (20) days after such service, shall file in the office of the court clerk
of the district court in which the petition was filed a duly verified list
containing the names and addresses of all shareholders who have demanded payment
for their shares and with whom agreements regarding the value of their shares
have not been reached by the surviving or resulting corporation. If the petition
shall be filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The court clerk, if so ordered by the
court, shall give notice of the time and place fixed for the hearing on the
petition by registered or certified mail to the surviving or resulting
corporation and to the shareholders shown on the list at the addresses therein
stated. Notice shall also be given by one or more publications at least one (1)
week before the day of the hearing, in a newspaper of general circulation
published in the City of Oklahoma City, Oklahoma, or other publication as the
court deems advisable. The forms of the notices by mail and by publication shall
be approved by the court, and the costs thereof shall be borne by the surviving
or resulting corporation.
G. At the hearing on the petition, the court shall determine the shareholders
who have complied with the provisions of this section and who have become
entitled to appraisal rights. The court may require the shareholders who have
demanded an appraisal for their shares and who hold stock represented by
certificates to submit their certificates of stock to the court clerk for
notation thereon of the pendency of the appraisal proceedings; and if any
shareholder fails to comply with this direction, the court may dismiss the
proceedings as to that shareholder.
H. After determining the shareholders entitled to an appraisal, the court shall
appraise the shares, determining their fair value exclusive of any element of
value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining the fair value, the
court shall take into account all relevant factors. In determining the fair rate
of interest, the court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any shareholder entitled to participate
in the appraisal proceeding, the court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the shareholder entitled to an appraisal. Any
shareholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to the provisions of subsection F of this section and who
has submitted the certificates of stock of the shareholder to the court clerk,
if required, may participate fully in all proceedings until it is finally
determined that the shareholder is not entitled to appraisal rights pursuant to
the provisions of this section.
I. The court shall direct the payment of the fair value of the shares, together
with interest, if any, by the surviving or resulting corporation to the
shareholders entitled thereto. Interest may be simple or compound, as the court
may direct. Payment shall be made to each shareholder, in the case of holders of
uncertificated stock immediately, and in the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing the stock. The court's decree may be enforced as other
decrees in the district court may be enforced, whether the surviving or
resulting corporation be a corporation of this state or of any other state.
<PAGE> 5
J. The costs of the proceeding may be determined by the court and taxed upon the
parties as the court deems equitable in the circumstances. Upon application of a
shareholder, the court may order all or a portion of the expenses incurred by
any shareholder in connection with the appraisal proceeding, including, without
limitation, reasonable attorney's fees and the fees and expenses of experts, to
be charged pro rata against the value of all of the shares entitled to an
appraisal.
K. From and after the effective date of the merger or consolidation, no
shareholder who has demanded appraisal rights as provided for in subsection D of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock, except dividends or
other distributions payable to shareholders of record at a date which is prior
to the effective date of the merger or consolidation; provided, however, that if
no petition for an appraisal shall be filed within the time provided for in
subsection E of this section, or if the shareholder shall deliver to the
surviving or resulting corporation a written withdrawal of the shareholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within sixty (60) days after the effective date of the merger or consolidation
as provided for in subsection E of this section or thereafter with the written
approval of the corporation, then the right of the shareholder to an appraisal
shall cease; provided further, no appraisal proceeding in the district court
shall be dismissed as to any shareholder without the approval of the court, and
such approval may be conditioned upon such terms as the court deems just.
L. The shares of the surviving or resulting corporation into which the shares of
any objecting shareholders would have been converted had they assented to the
merger or consolidation shall have the status of authorized and unissued shares
of the surviving or resulting corporation.
HISTORICAL DATA
--------------------------------------------------------------------------------
Added by Laws 1986, c. 292, Section 91, eff. Nov. 1, 1986. Amended by Laws 1987,
c. 146, Section 7, operative Nov. 1, 1987; Laws 1988, c. 323, Section 19, eff.
Nov. 1, 1988; Laws 1990, c. 328, Section 6, eff. Sept. 1, 1990; Amended by Laws
1998, c. 422, Section 21, eff. November 01,1998 (superseded document available).
