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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
AMENDING FORM 8-A
FILED FEBRUARY 26, 1993
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_____________________________________
BANCFIRST CORPORATION
(Exact name of registrant as specified in its charter)
OKLAHOMA 73-1221379
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 N. Broadway, Suite 200, Oklahoma City, Oklahoma
73102-8401
(Address of principal executive offices)
(Zip Code)
(405) 270-1086
(Registrant's telephone number, including area code)
_____________________________________
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(b) OF THE ACT
NONE
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(g) OF THE ACT
Title of each class Name of each exchange on which
To be so registered each class is to be registered
------------------- ------------------------------
Common Stock, par value $1.00 NASDAQ National Market System
per share
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Form 8-A/A, Amendment No. 1, is hereby filed by the Registrant, BancFirst
Corporation (the "Company" or the "Corporation") to supplement and amend the
information set forth in the Registration Statement on Form 8-A filed on
February 26, 1993 by the Company as follows:
Item 1. Description of Registrant's Securities to be Registered:
The description of the Company's $1.00 par value common stock ("Common
Stock") previously registered is amended to reflect that the Board of Directors
of the Company authorized an amendment to the Company's Certificate of
Incorporation and, on June 15, 1998, the stockholders approved such amendment at
the annual stockholders' meeting. Pursuant to such vote, the Company's
stockholders amended the Company's Certificate of Incorporation to:
(i) provide for the classification of the Company's Board of Directors
into three classes of directors serving staggered terms;
(ii) provide that stockholders may adopt, amend or repeal the Bylaws of
the Company only by the affirmative vote of at least 66 2/3% of the then-
outstanding capital stock entitled to vote for the election of directors;
(iii) limit the stockholders' ability to change the provisions of the
Company's Certificate of Incorporation, contemplated by (i) and (ii), above, by
requiring an affirmative vote of at least 66 2/3% of the then-outstanding
capital stock entitled to vote for the election of directors; and
(iv) adopt a "Fair Price Amendment" which requires that certain minimum
price and procedural requirements be observed by any party that acquires 15% or
more of the Company's Common Stock and then seeks to accomplish a merger or
other business combination or transaction that would eliminate or could
significantly change the interests of the remaining stockholders, unless
approved by a majority of Continuing Directors (as defined in the Certificate of
Incorporation). If the requirements of the Fair Price Amendment are not
observed by such an acquiring party, an increased stockholder vote would be
required as a condition for a subsequent Business Combination (as defined in the
Certificate of Incorporation). Specifically, the Fair Price Amendment requires
the affirmative vote of the holders of 66 2/3% of the shares of Common Stock
outstanding, including the affirmative vote of the holders of at least 66 2/3%
of the voting power of the then issued and voting stock not held by the
Interested Stockholder (as defined in the Certificate of Incorporation), to
approve a Business Combination involving an Interested Stockholder, except in
cases in which either certain price criteria and procedural requirements are
satisfied or the transaction is approved by a majority of the Continuing
Directors. In the event the procedural requirements were to be met or the
requisite approval of the Board of Directors were to be given with respect to a
particular Business Combination, the normal requirements of Oklahoma Law would
apply and, accordingly, the affirmative vote of the holders of only a majority
of the outstanding shares of Commons Stock entitled to vote would be required,
or, for certain transactions, no stockholder vote would be necessary.
The specific language of the amendments to the Certificate of Incorporation
is as set forth below:
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Article 7 of the Certificate of Incorporation of the Company was amended by
inserting a new Section (A) to read as follows:
ARTICLE 7
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A. The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for
defining and regulating the powers of the Corporation and its
directors and stockholders and are in furtherance and not in
limitation of the powers conferred upon the Corporation by statute:
1. NUMBER AND ELECTION OF DIRECTORS. The powers of the Corporation
shall be exercised by or under the authority of, and the business
and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. Subject to such rights of
holders of shares of one or more outstanding series of Preferred
Stock to elect one or more directors of the Corporation under
circumstances as shall be provided by or established pursuant to
the Certificate of Incorporation, the number of directors of the
Corporation that shall constitute the Board of Directors shall
not be less than three (3) nor more than twenty-five (25) and
shall be specified from time to time by resolution adopted by the
affirmative vote of a majority of the directors in office at the
time of adoption of such resolution. Whenever the holders of any
one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or
series, to elect directors at an Annual or Special Meeting of
Stockholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation, or the resolution or
resolutions adopted by the board of directors creating such class
or series, as the case may be, applicable thereto, and such
directors so elected shall not be divided into classes pursuant
to this Article unless expressly provided by such terms.
2. CLASSES AND TERMS OF DIRECTORS. The Board of Directors shall be
divided into 3 classes: Class I, Class II and Class III. The
terms of office of the directors initially classified shall be as
follows: that of Class I shall expire at the next annual meeting
of stockholders in 1999, Class II at the second succeeding annual
meeting of stockholders in 2000, and Class III at the third
succeeding annual meeting of the stockholders in 2001. At each
succeeding annual meeting of stockholders, successors to the
class of directors whose terms expire at that annual meeting
shall be elected for three-year terms.
If the number of directors changes, any increase or decrease
shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible,
and any additional director of any class
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elected to fill a vacancy resulting from an increase in such
class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in
the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting
for the year in which his or her term expires and until his or
her successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement,
disqualification or removal for cause from office.
3. VACANCIES. Except as otherwise required by law, or by any
provisions established pursuant to the Certificate of
Incorporation with respect to the rights of holders of shares of
one or more outstanding series of Preferred Stock, newly created
directorships resulting from any increase in the authorized
number of directors of the Corporation and any vacancies on the
Board of Directors resulting from death, resignation, retirement,
disqualification or removal for cause from office of a director
of the Corporation shall be filled only by the affirmative vote
of at least a majority of the remaining directors of the
Corporation then in office, even if such remaining directors
constitute less than a quorum of the Board of Directors, or by
the sole remaining director.
4. REMOVAL. Any director may be removed from office only for cause
and only by the affirmative vote of not less than 66 2/3% of the
then-outstanding shares of stock of the Corporation entitled to
vote in the election of directors, voting together as a single
class, given at a meeting of the stockholders for that purpose.
Article 7 of the Certificate of Incorporation of the Company was also
amended by changing the prior Section (A) to become Section (B) and to read as
follows:
ARTICLE 7
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B. The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that, in addition to any vote of the holders of any
class or series of stock of this Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders
of at least 66 2/3% of the voting power of all of the then-outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class, shall be required to adopt, amend or repeal any provisions of
the Bylaws of the Corporation.
A new Article 9 was also added to the Certificate of Incorporation to read
as follows:
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ARTICLE 9
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BUSINESS COMBINATIONS; FAIR PRICE
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly
provided in paragraph B of this Article 9:
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined), or (b) any other corporation, partnership
or other entity (whether or not itself an Interested Stockholder)
which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder;
or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder, including all Affiliates of
the Interested Stockholder, of any assets of the Corporation or
any Subsidiary; or
3. the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder,
including all Affiliates of the Interested Stockholder, in
exchange for cash, securities or other property (or a combination
thereof), other than on a pro rata basis to all holders of Voting
Stock of the same class held by the Interested Stockholder
pursuant to a stock split, stock dividend or distribution of
warrants or rights and other than in connection with the exercise
or conversion of securities exercisable for or convertible into
securities of the Corporation or any of its subsidiaries which
securities have been distributed pro rata to all holders of
Voting Stock; or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliates of an Interested
Stockholder; or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not an Interested Stockholder
is a party thereto) which has the effect, directly or indirectly,
of increasing the proportionate share by more than one percent
(1%) of the issued and outstanding shares of any class of equity
or convertible securities of the Corporation or any Subsidiary
which are directly or indirectly owned by any Interested
Stockholder or one or more Affiliates of the Interested
Stockholder;
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shall require the affirmative vote of the holders of at least 66 2/3%
of the voting power of the then issued and outstanding Voting Stock,
as hereinafter defined, voting together as a single class, including
the affirmative vote of the holders of at least 66 2/3% of the voting
power of the then issued and outstanding Voting Stock not Beneficially
Owned directly or indirectly by an Interested Stockholder or any
Affiliate of any Interested Stockholder. Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be permitted, by law or in any agreement
with any national securities exchange or otherwise.
B. The provisions of Section A of this Article 9 shall not be applicable
to any particular Business Combination (as hereinafter defined), and
such Business Combination shall require only such affirmative vote as
is required by law or any other provision of this Certificate of
Incorporation, if the conditions specified in either of the following
paragraph 1 or 2 are met:
1. the Business Combination shall have been approved by a majority
of the Continuing Directors (as hereinafter defined); or
2. all of the following price and procedural conditions shall have
been met:
(a) the aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation
of the Business Combination of consideration other than
cash, to be received per share by the holders of Common
Stock in such Business Combination, shall be at least equal
to the higher of the following:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of Common Stock acquired by
it (A) within the two (2) year period immediately prior
to the first public announcement of the proposal of
such Business Combination (the "Announcement Date"), or
(B) in the transaction in which it became an Interested
Stockholder, whichever is higher; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder
(the "Determination Date"), whichever is higher. and
(b) after such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
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(i) there shall have been no failure to declare and pay
at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any issued
and outstanding preferred stock, except as approved
by a majority of the Continuing Directors;
(ii) there shall have been no reduction in the annual rate
of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the
Continuing Directors;
(iii) there shall have been an increase in the annual rate
of dividends as necessary fully to reflect any
recapitalization (including any reverse stock split),
reorganization or any similar reorganization which
has the effect of reducing the number of issued and
outstanding shares of the Common Stock, unless the
failure so to increase such annual rate is approved
by a majority of the Continuing Directors; and
(iv) such Interested Stockholder shall not have become the
Beneficial Owner of any additional Voting Stock
except as part of the transaction which results in
such Interested Stockholder becoming an Interested
Stockholder; and
(c) the consideration to be received by holders of a particular
class of issued and outstanding Voting Stock (including
Common Stock and other than Preferred Stock with respect to
which a majority of the Continuing Directors have approved a
Preferred Stock Designation creating such series that
expressly provides that the provisions of this Article shall
not apply) shall be in cash or in the same form as the
Interested Stockholder has previously paid for shares of
such class of Voting Stock (if the Interested Stockholder
has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such
class of Voting Stock previously acquired by it); and
(d) after such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have
received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such
Business Combination or otherwise; and
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(e) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
stockholders of the Corporation at least thirty (30) days
prior to the consummation of such Business Combination
(whether or not such proxy or information statement is
required to be marked pursuant to such Act or subsequent
provisions).
C. For purposes of this Article 9 the following terms shall have the
following meanings:
1. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934.
2. "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations of the
Securities Exchange Act of 1934. In addition, a Person shall be
the "Beneficial Owner" of any Voting Stock which such Person or
any of its Affiliates or Associates has: (a) the right to acquire
(whether such 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; or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but
neither such Person nor any such Affiliate or Associate shall be
deemed to be the Beneficial Owner of any shares of Voting Stock
solely by reason of a revocable proxy granted for a particular
meeting of the stockholders, pursuant to a public solicitation of
proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate or Associate is
otherwise deemed the Beneficial Owner).
3. "Business Combination" shall mean any transaction described in
any one or more of clauses (1) through (5) of Section A of this
Article 9.
4. "Continuing Director" shall mean any member of the Board who is
unaffiliated with and is not the Interested Stockholder and was a
member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder, and any director
who is thereafter chosen to fill any vacancy on the Board or who
is elected and who, in either event, is unaffiliated with the
Interested Stockholder and in connection with his or her initial
assumption of office is recommended for appointment or election
by a majority of Continuing Directors then on the Board.
5. "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the thirty (30) day period
immediately preceding the date in
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question of a share of such stock on the Composite Tape for New
York Stock Exchange listed stocks, or, if such stock is not
quoted on the composite tape, on the New York Stock Exchange, or,
if such stock is not listed on such exchange, on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the thirty
(30) day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotation
System or any system then in use in its stead, or if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board in
accordance with Section D of this Article 9; and (b) in the case
of property other than cash or stock, the fair market value of
such property on the date in question as determined by the Board
in accordance with Section D of this Article 9.
6. "Interested Stockholder" shall mean any Person to or which:
(a) itself, or along with its Affiliates, is the Beneficial
Owner, directly or indirectly, of more than fifteen percent
(15%) of the then issued and outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within
the two (2) year period immediately prior to the date in
question was itself, or along with its Affiliates, the
Beneficial Owner, directly or indirectly, of fifteen percent
(15%) or more of the then issued and outstanding Voting
Stock; or
(c) is an assignee of or has otherwise succeeded to any Voting
Stock which was at any time within the two (2) year period
immediately prior to the date in question beneficially owned
by an Interested Stockholder, if such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
For the purpose of determining whether a Person is an Interested
Stockholder pursuant to paragraph 6 of this Section C, the number
of shares of Voting Stock deemed to be issued and outstanding
shall include shares deemed owned through application of
paragraph 2 of this Section C but shall not include any other
shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options or otherwise.
Notwithstanding anything to the contrary contained in this
Certificate of Incorporation, for purposes of this Certificate of
Incorporation, the term "Interested Stockholder" shall not, for
any purpose, include, and the
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provisions of Article 9(A) hereof shall not apply to: (a) the
Corporation or any Subsidiary; (b) any employee stock ownership
plan of the Corporation or any Subsidiary; or (c) any individual,
corporation, partnership or other person, entity or group which
"beneficially owned" on April 23, 1998, 15% or more of the
outstanding Common Stock of the Corporation.
7. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used
in paragraph B of this Article 9 shall include the shares of
Common Stock and/or the shares of any other class of issued and
outstanding Voting Stock retained by the holders of such shares.
8. "Person" shall mean any individual, firm, corporation,
partnership or other entity.
9. "Subsidiary" shall mean any corporation or other entity of which
the Corporation owns, directly or indirectly, securities that
enable the Corporation to elect a majority of the board of
directors or other persons performing similar functions of such
corporation or entity or that otherwise give to the Corporation
the power to control such corporation or entity.
10. "Voting Stock" means all issued and outstanding shares of capital
stock of the Corporation that pursuant to or in accordance with
this Certificate of Incorporation are entitled to vote generally
in the election of directors of the Corporation, and each
reference herein, where appropriate, to a percentage or portion
of shares of Voting Stock shall refer to such percentage or
portion of the voting power of such shares entitled to vote. The
issued and outstanding shares of Voting Stock shall not include
any shares of Voting Stock that may be issuable pursuant to any
agreement, or upon the exercise or conversion of any rights,
warrants or options or otherwise.
D. The Continuing Directors of the Corporation shall have the power and
duty to determine for the purposes of this Article 9, on the basis of
information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article 9, including,
without limitation:
(i) whether a Person is an Interested Stockholder;
(ii) the number of shares of Voting Stock beneficially owned by any
Person;
(iii) whether a Person is an Affiliate or Associate of another;
(iv) whether the applicable conditions set forth in paragraph 2 of
paragraph B of this Article 9 have been met with respect to any
Business Combination;
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(v) the Fair Market Value of stock or other property in accordance
with paragraph 6 of paragraph C of this Article 9.
E. Nothing contained in this Article 9 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
F. In addition to any affirmative vote required by applicable law and in
addition to any vote of the holders of any series of Preferred Stock
provided for or fixed pursuant to the provisions of Article 5 of this
Certificate of Incorporation, any alteration, amendment or repeal
relating to this Article 9 must be approved by the affirmative vote of
the holders of at least 66 2/3% of the combined voting power of the
issued and outstanding shares of Voting Stock, voting together as a
single class.
Finally, a new Article 10 was added to the Certificate of Incorporation to
read as follows:
ARTICLE 10
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Article 7, Sections (A) and (B), of the Certificate of
Incorporation may be (and may only be) amended by the affirmative vote
of the holders of at least 66 2/3% of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single
class.
Item 2. Exhibits.
Exhibit 1. Second Amended and Restated Certificate of Incorporation of
BancFirst Corporation, filed July 24, 1998.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement on Form
8-A/A, Amendment No. 1, to be signed on its behalf by the undersigned, thereto
duly authorized.
Date: July 24, 1998 BANCFIRST CORPORATION
By: /s/ Joe T. Shockley
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Joe T. Shockley
Executive Vice President and
Chief Financial Officer
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EXHIBIT 1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF BANCFIRST CORPORATION
TO THE SECRETARY OF STATE OF OKLAHOMA:
BancFirst Corporation, which was originally incorporated in the State of
Oklahoma under the name United Community Corporation by filing its original
Articles of Incorporation with the Secretary of State of Oklahoma on July 12,
1984, hereby further amends and restates its Certificate of Incorporation in
accordance with a resolution adopted by the Board of Directors of this
Corporation and approved by the shareholders on June 15, 1998, all in accordance
with Sections 1077 and 1080 of Title 18 of the Oklahoma General Corporation Act,
Okla. Stat. tit. 18, (S)1001 et seq. (the "Oklahoma General Corporation Act"),
to read in full as follows.
ARTICLE 1
The name of the Corporation is: BancFirst Corporation.
ARTICLE 2
The address of its registered office in the State of Oklahoma is 101 North
Broadway, Suite 200, Oklahoma City, Oklahoma 73102, and the name of its
registered agent at such address is Randy P. Foraker.
ARTICLE 3
The period of existence of this Corporation shall be perpetual.
ARTICLE 4
The purposes for which this Corporation is formed are:
To subscribe or cause to be subscribed for, and to take, purchase and
otherwise acquire, own, hold, use, sell, assign, transfer, exchange, distribute
and otherwise dispose of, the whole or any part of the shares of the capital
stock, bonds, coupons, mortgages, deeds of trust, debentures, securities,
obligations, evidences of indebtedness, notes, good will, rights, assets and
property of any and every kind, or any part thereof, together with the shares,
rights, units or interests in or in respect of any trust estate, now or
hereafter existing, and whether created by the laws of the State of Oklahoma or
of any other state, territory or county; and to operate, manage and control such
properties, or any of them, either in the name of such other corporation or
corporations or in the name of this Corporation, and while the owner of any of
said shares of capital stock, to exercise all of the rights, powers, and
privileges of ownership of every kind and description, including the right to
vote thereon with power to designate some person or persons for that purpose
from time to time and to the same extent as natural persons might or could do.
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To acquire, by purchase or otherwise, the good will, business, property
rights, franchises and assets of every kind, with or without undertaking, either
wholly or in part, the liabilities of any person, firm, association or
corporation; and to acquire any property or business as a going concern or
otherwise: (a) by purchase of the assets thereof wholly or in part; (b) by
acquisition of the shares or any part thereof; or (c) in any other manner and to
pay for the same in cash or in the shares or bonds or other evidences of
indebtedness of this Corporation, or otherwise; to hold, maintain and operate,
or in any manner dispose of the whole or any part of the good will, business
rights and property so acquired and to conduct in any lawful manner, the whole
or any part of any business so acquired; and to exercise all of the powers
necessary or convenient in and about the management of such business.
From time to time to apply for, purchase, acquire by assignment, transfer
or otherwise, exercise, carry out and enjoy any benefit, right, privilege,
prerogative or power conferred by, acquired under or granted by any statute,
ordinance, order, license, power, government or authority or governmental agency
or corporation or other public body that may be empowered to enact, make or
grant; to pay for, aid in, and contribute toward carrying the same into effect;
and to appropriate any of this Corporation's shares, bonds and/or assets to
defray the costs, charges and expenses thereof. To borrow and lend money and to
make all necessary contracts either to borrow or to loan money, and to secure to
take security for the same as the Corporation may desire.
To issue bonds, notes, debentures, or other obligations of this Corporation
from time to time for any of the objects or purposes of this Corporation, and to
secure the same by mortgage, deed of trust, pledge or otherwise, or to issue the
same unsecured; to purchase or otherwise acquire its own bonds, debentures, or
other evidences of its indebtedness or obligations; to purchase, hold, sell,
transfer and reissue shares of its own capital stock to the extent and in the
manner provided by the laws of the State of Oklahoma as the same are now in
force or may hereafter be amended.
To engage in any lawful act or activity and to pursue any lawful purpose
for which a corporation may be formed under the Oklahoma General Corporation
Act.
To engage in and conduct any lawful business for profit at such places and
in such manner as its directors shall determine, and in so doing enter into any
general, special or limited partnership as a general, special or limited
partner; or into any association or arrangement for sharing profits, union of
interest, reciprocal concessions or transactions capable of being conducted so
as to benefit, directly or indirectly, the Corporation.
To raise or procure funds from other individuals, firms, associations or
corporations to be invested in any business in which this Corporation might
engage, for and on behalf of the parties investing such funds as individual
owners or in one or more joint ventures, general partnerships, limited
partnerships, syndicates or other associations or other corporations, whether
the corporation is or is not a co-owner, joint venturer, associate, partner or
shareholder in the business in which such funds are levied.
To guarantee, co-sign and be surety for the debts, dues and obligations of
its subsidiaries, affiliates, parent corporations, shareholders, partners,
whether general, special or limited, joint
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co-ventures, co-tenants, and any other persons, firms or corporations, the
obtaining of a loan commitment or contract by which will beneficially affect
this Corporation or its shareholders; provided, it shall not be the purpose of
this Corporation to transact a business of insurance or to do any act prohibited
by law to a business corporation.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in no wise limited or restricted by reference to,
or inference from the terms of any other clause in this or any other article of
this Amended and Restated Certificate of Incorporation, but the objects and
purposes specified in each of the foregoing clauses of this article shall be
regarded as independent powers as well as objects and purposes and the
enumeration of specific powers, objects and purposes is in addition to and not
in limitation of the powers conferred by the provisions of the Oklahoma General
Corporation Act.
ARTICLE 5
A. The aggregate number of shares of all classes which the Corporation shall
have authority to allot is 18,400,000. The designation of each class, the
number of shares of each class, the par value of each class and the total
authorized capital of the Corporation are as follows:
NUMBER OF PAR TOTAL PAR VALUE
CLASS SHARES VALUE AUTHORIZED
- -------------------------------- ---------- --------- ---------------
Senior Preferred Stock 10,000,000 $1.00 $10,000,000
10% Cumulative Preferred Stock 900,000 $5.00 4,500,000
Common Stock 7,500,000 $1.00 7,500,000
--------- ---------
Total 18,400,000 $22,000,000
========== ===========
B. Senior Preferred Stock:
1. The Senior Preferred Stock may be issued from time to time in one or
more series with such designation for each such series as shall be stated
and expressed in the resolution or resolutions providing for the issue of
each such series adopted by the Board of Directors. The Board of Directors
in any such resolution or resolutions is expressly authorized to state and
express for each such series:
(a) The number of shares constituting that series;
(b) The voting powers, if any, of the holders of stock of such series;
(c) The rate per annum and the times at and conditions upon which the
holders of stock of such series shall be entitled to receive
dividends, and whether such dividends shall be cumulative or
noncumulative and if cumulative the terms upon which such dividends
shall be cumulative;
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(d) The price or prices and the time or times at and the manner in
which the stock of such series shall be redeemable;
(e) The rights to which the holders of the shares of stock of such
series shall be entitled upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) The terms, if any, upon which shares of stock of such series shall
be convertible into, or exchangeable for, shares of stock of any other
class or classes or of any other series of the same or any other class
or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any; and
(g) Any other powers, designations, preferences and relative,
participating, optional, or other special rights, and qualifications,
limitations or restrictions thereof which shall not be inconsistent
with the laws of Oklahoma or with the provisions of this Amended and
Restated Certificate of Incorporation.
2. Shares of any series of Senior Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or which, if
convertible or exchangeable, have been converted into or exchanged for
shares of stock of any other class or classes shall have the status of
authorized and unissued shares of Senior Preferred Stock of the same series
and may be reissued as a part of the series of which they were originally a
part or may be reclassified and reissued as part of a new series of Senior
Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Senior Preferred Stock, all
subject to the conditions and the restrictions on issuance set forth in the
resolution or resolutions adopted by the Board of Directors providing for
the issue of any series of Preferred Stock.
C. 10% Cumulative Preferred Stock:
The 10% Cumulative Preferred Stock ("10% Preferred Stock") of the
Corporation shall be entitled to receive dividends at the annual rate of 10%,
which dividends shall be cumulative and payable semi-annually in January and
July on the fifteenth day of such months for dividends accrued as of the end of
the month next preceding the date of payment out of the earnings of the
Corporation and in preference to any dividends upon the Common Stock. No cash
dividends shall be paid upon the Common Stock if the payment of dividends on 10%
Preferred Stock shall be in arrears. In the case of liquidation or dissolution
of the Corporation, the holders of 10% Preferred Stock shall be entitled to be
paid in full both the par value of such shares and the dividends accrued but
unpaid before any amount shall be paid to the holders of the Common Stock. The
shares of 10% Preferred Stock shall not be subject to conversion into any other
securities of the Corporation. The shares of 10% Preferred Stock are subject to
redemption at the option of the Corporation, in whole or in part, upon payment
of the par value thereof and accrued dividends. 10% Preferred Stock shall have
no voting rights, except as otherwise required by law.
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D. Common Stock:
Each share of Common Stock of the Corporation shall be equal in all
respects to each other share of Common Stock. The holders of Common Stock shall
be entitled to one vote for each share of Common Stock held with respect to all
matters as to which the Common Stock is entitled to vote. The Common Stock shall
be subject to the prior rights of 10% Cumulative Preferred Stock and the Senior
Preferred Stock as declared in this Article Five.
ARTICLE 6
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
shareholders or any class of them, any court of equitable jurisdiction within
the State of Oklahoma may, on the application in a summary way of this
Corporation or of any creditor or shareholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 1106 of the Oklahoma General Corporation Act or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 1100 of the Oklahoma General
Corporation Act, order a meeting of the creditors or class of creditors, and/or
of the shareholders or class of shareholders of this Corporation, as the case
may be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the shareholders or class of shareholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
shareholders or class of shareholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE 7
A. The following provisions are inserted for the management of the business
and for the conduct of the affairs of the Corporation and for defining and
regulating the powers of the Corporation and its directors and stockholders and
are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
1. NUMBER AND ELECTION OF DIRECTORS. The powers of the Corporation shall
be exercised by or under the authority of, and the business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors. Subject to such rights of holders of shares of one or more
outstanding series of Preferred Stock to elect one or more directors of the
Corporation under circumstances as shall be provided by or established
pursuant to the Certificate of Incorporation, the number of directors of
the Corporation that shall constitute the Board of Directors shall not be
less than three (3) nor more than twenty-five (25) and shall be specified
from time to time by resolution adopted by the affirmative vote of a
majority of the directors in office at the time of adoption of such
resolution.
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Whenever the holders of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by
class or series, to elect directors at an Annual or Special Meeting of
Stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of this
Certificate of Incorporation, or the resolution or resolutions adopted by
the Board of Directors creating such class or series, as the case may be,
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article unless expressly provided by such terms.
2. CLASSES AND TERMS OF DIRECTORS. The Board of Directors shall be
divided into 3 classes: Class I, Class II and Class III. The terms of
office of the directors initially classified shall be as follows: that of
Class I shall expire at the next annual meeting of stockholders in 1999,
Class II at the second succeeding annual meeting of stockholders in 2000,
and Class III at the third succeeding annual meeting of the stockholders in
2001. At each succeeding annual meeting of stockholders, successors to the
class of directors whose terms expire at that annual meeting shall be
elected for three-year terms.
If the number of directors changes, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which his or her term expires and
until his or her successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or
removal for cause from office.
3. VACANCIES. Except as otherwise required by law, or by any provisions
established pursuant to the Certificate of Incorporation with respect to
the rights of holders of shares of one or more outstanding series of
Preferred Stock, newly created directorships resulting from any increase in
the authorized number of directors of the Corporation and any vacancies on
the Board of Directors resulting from death, resignation, retirement,
disqualification or removal for cause from office of a director of the
Corporation shall be filled only by the affirmative vote of at least a
majority of the remaining directors of the Corporation then in office, even
if such remaining directors constitute less than a quorum of the Board of
Directors, or by the sole remaining director.
4. REMOVAL. Any director may be removed from office only for cause and
only by the affirmative vote of not less than 66 2/3% of the then-
outstanding shares of stock of the Corporation entitled to vote in the
election of directors, voting together as a single class, given at a
meeting of the stockholders for that purpose.
B. The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. The stockholders shall also have power to adopt,
amend or repeal the Bylaws of the Corporation; provided, however, that, in
addition to any vote of the holders of any class or series of stock of this
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote
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of the holders of at least 66 2/3% of the voting power of all of the then-
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to adopt, amend or repeal any provisions of the Bylaws of the
Corporation.
C. A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 1053 of the Oklahoma General Corporation
Act, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Oklahoma General Corporation Act is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Oklahoma
General Corporation Act, as so amended. Any repeal or modification of this
paragraph C, Article 7 by the shareholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE 8
All provisions of the Oklahoma General Corporation Act will apply to the
Corporation and its stockholders to the fullest extent, and from and after
January 3, 1994 (the date of filing with the Secretary of State of the State of
Oklahoma of an amendment to the Amended and Restated Certificate of
Incorporation of the Corporation containing the provisions of this Article 8),
the provisions of the Oklahoma Business Corporation Act, Okla. Stat. tit. 18,
(S)1.1 et seq. (repealed 1986), and any and all rights, privileges or immunities
thereunder, shall be of no further force or effect with regard to the
Corporation and its stockholders; provided, however, any and all actions taken
by the Corporation prior to the adoption of this Article 8 are hereby ratified,
confirmed and approved.
ARTICLE 9
BUSINESS COMBINATIONS; FAIR PRICE
A. In addition to any affirmative vote required by law or this Certificate of
Incorporation, and except as otherwise expressly provided in paragraph B of this
Article 9:
1. any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined), or (b) any other corporation, partnership or other entity
(whether or not itself an Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate (as hereinafter defined) of
an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, including all
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Affiliates of the Interested Stockholder, of any assets of the Corporation
or any Subsidiary; or
3. the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder, including all
Affiliates of the Interested Stockholder, in exchange for cash, securities
or other property (or a combination thereof), other than on a pro rata
basis to all holders of Voting Stock of the same class held by the
Interested Stockholder pursuant to a stock split, stock dividend or
distribution of warrants or rights and other than in connection with the
exercise or conversion of securities exercisable for or convertible into
securities of the Corporation or any of its subsidiaries which securities
have been distributed pro rata to all holders of Voting Stock; or
4. the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation proposed by or on behalf of an Interested Stockholder or
any Affiliates of an Interested Stockholder; or
5. any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of
the Corporation with any of its Subsidiaries or any other transaction
(whether or not an Interested Stockholder is a party thereto) which has the
effect, directly or indirectly, of increasing the proportionate share by
more than one percent (1%) of the issued and outstanding shares of any
class of equity or convertible securities of the Corporation or any
Subsidiary which are directly or indirectly owned by any Interested
Stockholder or one or more Affiliates of the Interested Stockholder; shall
require the affirmative vote of the holders of at least 66 2/3% of the
voting power of the then issued and outstanding Voting Stock, as
hereinafter defined, voting together as a single class, including the
affirmative vote of the holders of at least 66 2/3% of the voting power of
the then issued and outstanding Voting Stock not Beneficially Owned
directly or indirectly by an Interested Stockholder or any Affiliate of any
Interested Stockholder. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be permitted, by law or in any agreement with any national
securities exchange or otherwise.
B. The provisions of Section A of this Article 9 shall not be applicable to
any particular Business Combination (as hereinafter defined), and such Business
Combination shall require only such affirmative vote as is required by law or
any other provision of this Certificate of Incorporation, if the conditions
specified in either of the following paragraph 1 or 2 are met:
1. the Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined); or
2. all of the following price and procedural conditions shall have been
met:
(a) the aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the
Business Combination of
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consideration other than cash, to be received per share by the holders
of Common Stock in such Business Combination, shall be at least equal
to the higher of the following:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any
shares of Common Stock acquired by it (A) within the two (2)
year period immediately prior to the first public
announcement of the proposal of such Business Combination
(the "Announcement Date"), or (B) in the transaction in
which it became an Interested Stockholder, whichever is
higher; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher.
(b) after such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
(i) there shall have been no failure to declare and pay at the
regular date therefor any full quarterly dividends
(whether or not cumulative) on any issued and outstanding
preferred stock, except as approved by a majority of the
Continuing Directors;
(ii) there shall have been no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as
approved by a majority of the Continuing Directors;
(iii) there shall have been an increase in the annual rate of
dividends as necessary fully to reflect any
recapitalization (including any reverse stock split),
reorganization or any similar reorganization which has the
effect of reducing the number of issued and outstanding
shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the
Continuing Directors; and
(iv) such Interested Stockholder shall not have become the
Beneficial Owner of any additional Voting Stock except as
part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(c) the consideration to be received by holders of a particular class
of issued and outstanding Voting Stock (including Common Stock and
other than Preferred Stock with respect to which a majority of the
Continuing Directors have approved a
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Preferred Stock Designation creating such series that expressly
provides that the provisions of this Article shall not apply) shall be
in cash or in the same form as the Interested Stockholder has
previously paid for shares of such class of Voting Stock (if the
Interested Stockholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock
previously acquired by it); and
(d) after such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise; and
(e) a proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall
be mailed to stockholders of the Corporation at least thirty (30) days
prior to the consummation of such Business Combination (whether or not
such proxy or information statement is required to be marked pursuant
to such Act or subsequent provisions).
C. For purposes of this Article 9 the following terms shall have the following
meanings:
1. "Affiliate" or "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934.
2. "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations of the Securities Exchange
Act of 1934. In addition, a Person shall be the "Beneficial Owner" of any
Voting Stock which such Person or any of its Affiliates or Associates has:
(a) the right to acquire (whether such 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; or (b) the right to vote pursuant to any
agreement, arrangement or understanding (but neither such Person nor any
such Affiliate or Associate shall be deemed to be the Beneficial Owner of
any shares of Voting Stock solely by reason of a revocable proxy granted
for a particular meeting of the stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate or Associate is otherwise deemed
the Beneficial Owner).
3. "Business Combination" shall mean any transaction described in any one
or more of clauses (1) through (5) of Section A of this Article 9.
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4. "Continuing Director" shall mean any member of the Board who is
unaffiliated with and is not the Interested Stockholder and was a member of
the Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any director who is thereafter chosen to fill
any vacancy on the Board or who is elected and who, in either event, is
unaffiliated with the Interested Stockholder and in connection with his or
her initial assumption of office is recommended for appointment or election
by a majority of Continuing Directors then on the Board.
5. "Fair Market Value" shall mean: (a) in the case of stock, the highest
closing sale price during the thirty (30) day period immediately preceding
the date in question of a share of such stock on the Composite Tape for New
York Stock Exchange listed stocks, or, if such stock is not quoted on the
composite tape, on the New York Stock Exchange, or, if such stock is not
listed on such exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during the
thirty (30) day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotation System or any
system then in use in its stead, or if no such quotations are available,
the fair market value on the date in question of a share of such stock as
determined by the Board in accordance with Section D of this Article 9; and
(b) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined by the Board in
accordance with Section D of this Article 9.
6. "Interested Stockholder" shall mean any Person to or which:
(a) itself, or along with its Affiliates, is the Beneficial Owner,
directly or indirectly, of more than fifteen percent (15%) of the then
issued and outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two
(2) year period immediately prior to the date in question was itself,
or along with its Affiliates, the Beneficial Owner, directly or
indirectly, of fifteen percent (15%) or more of the then issued and
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any Voting Stock
which was at any time within the two (2) year period immediately prior
to the date in question beneficially owned by an Interested
Stockholder, if such assignment or succession shall have occurred in
the course of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of 1933.
For the purpose of determining whether a Person is an Interested
Stockholder pursuant to paragraph 6 of this Section C, the number of shares
of Voting Stock deemed to be issued and outstanding shall include shares
deemed owned through application of paragraph 2 of this Section C but shall
not include any other shares of Voting Stock that may be issuable
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pursuant to any agreement, arrangement or understanding, or upon exercise
of conversion rights, warrants or options or otherwise.
Notwithstanding anything to the contrary contained in this Certificate of
Incorporation, for purposes of this Certificate of Incorporation, the term
"Interested Stockholder" shall not, for any purpose, include, and the
provisions of Article 9(A) hereof shall not apply to: (a) the Corporation
or any Subsidiary; (b) any employee stock ownership plan of the Corporation
or any Subsidiary; or (c) any individual, corporation, partnership or other
person, entity or group which "beneficially owned" on April 23, 1998, 15%
or more of the outstanding Common Stock of the Corporation.
7. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in
paragraph B of this Article 9 shall include the shares of Common Stock
and/or the shares of any other class of issued and outstanding Voting Stock
retained by the holders of such shares.
8. "Person" shall mean any individual, firm, corporation, partnership or
other entity.
9. "Subsidiary" shall mean any corporation or other entity of which the
Corporation owns, directly or indirectly, securities that enable the
Corporation to elect a majority of the Board of Directors or other persons
performing similar functions of such corporation or entity or that
otherwise give to the Corporation the power to control such corporation or
entity.
10. "Voting Stock" means all issued and outstanding shares of capital
stock of the Corporation that pursuant to or in accordance with this
Certificate of Incorporation are entitled to vote generally in the election
of directors of the Corporation, and each reference herein, where
appropriate, to a percentage or portion of shares of Voting Stock shall
refer to such percentage or portion of the voting power of such shares
entitled to vote. The issued and outstanding shares of Voting Stock shall
not include any shares of Voting Stock that may be issuable pursuant to any
agreement, or upon the exercise or conversion of any rights, warrants or
options or otherwise.
D. The Continuing Directors of the Corporation shall have the power and duty
to determine for the purposes of this Article 9, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Article 9, including, without limitation:
1. whether a Person is an Interested Stockholder;
2. the number of shares of Voting Stock beneficially owned by any Person;
3. whether a Person is an Affiliate or Associate of another;
4. whether the applicable conditions set forth in paragraph 2 of paragraph
B of this Article 9 have been met with respect to any Business Combination;
and
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5. the Fair Market Value of stock or other property in accordance with
paragraph 6 of paragraph C of this Article 9.
E. Nothing contained in this Article 9 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
F. In addition to any affirmative vote required by applicable law and in
addition to any vote of the holders of any series of Preferred Stock provided
for or fixed pursuant to the provisions of Article 5 of this Certificate of
Incorporation, any alteration, amendment or repeal relating to this Article 9
must be approved by the affirmative vote of the holders of at least 66 2/3% of
the combined voting power of the issued and outstanding shares of Voting Stock,
voting together as a single class.
ARTICLE 10
Article 7, Sections (A) and (B), of the Certificate of Incorporation may be
(and may only be) amended by the affirmative vote of the holders of at least 66
2/3% of the voting power of all of the then-outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
IN WITNESS WHEREOF, said BancFirst Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by David E. Rainbolt, its
President, and attested by Randy Foraker, its Assistant Secretary, this 23rd day
of July, 1998.
BancFirst Corporation
By: /s/ David E. Rainbolt
--------------------------------
David E. Rainbolt, President
ATTEST:
[Seal]
/s/ Randy Foraker
- -----------------------------------
Randy Foraker, Assistant Secretary
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