Exhibit 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SOUTHWEST BANCORP, INC.
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA: The original certificate of
incorporation of Southwest Bancorp, Inc. was filed with the Secretary of State
on March 19, 1981.
ARTICLE I
Name
The name of the corporation is Southwest Bancorp, Inc. (herein, the
"Corporation").
ARTICLE II
Registered Office
The address of the Corporation's registered office in the State of
Oklahoma is 608 South Main Street, in the City of Stillwater, Payne County,
Oklahoma. The name of the Corporation's registered agent at such address is
Robert L. McCormick, Jr.
ARTICLE III
Powers
The purposes for which the Corporation is organized are to exercise all
powers of a bank holding company registered with the Board of Governors of the
Federal Reserve System under the Bank Holding Company Act of 1956, as amended,
and to engage in any and all activities allowed for such a bank holding company
under federal law and the Laws of the State of Oklahoma. The Corporation shall
have all the powers of a corporation organized under the Oklahoma General
Corporation Act.
ARTICLE IV
Term
The Corporation is to have perpetual existence.
ARTICLE V
Capital Stock
The aggregate number of shares of all classes of capital stock which
the Corporation has authority to issue is 22,000,000 of which 20,000,000 are to
be shares of common stock, $1.00 par value per share, of which 1,000,000 are to
be shares of serial preferred stock, $1.00 par value per share, and of which
1,000,000 shall be Class B serial preferred stock, $1.00 par value per share.
The shares may be issued by the Corporation from time to time as
approved by the board of directors of the Corporation without the approval of
the shareholders except as otherwise provided in this Article V or the rules of
a national securities exchange or association, if applicable. The consideration
for the issuance of the shares shall be paid to or received by the Corporation
in full before their issuance and shall not be less than the par value per
share. The consideration for the issuance of the shares shall be cash, services
rendered, personal property (tangible or intangible), real property, leases of
real property or any combination of the foregoing. In the absence of actual
fraud in the transaction, the judgment of the board of directors as to
the value of such consideration shall be conclusive. Upon payment of such
consideration such shares shall be deemed to be fully paid and nonassessable. In
the case of a stock dividend, the part of the surplus of the Corporation which
is transferred to stated capital upon the issuance of shares as a stock dividend
shall be deemed to be the consideration for their issuance.
A description of the different classes and series (if any) of the
Corporation's capital stock, and a statement of the relative powers,
designations, preferences and rights of the shares of each class and series (if
any) of capital stock, and the qualifications, limitations or restrictions
thereof, are as follows:
A. Common Stock. Except as provided in this Certificate of
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Incorporation, the holders of the common stock shall exclusively possess all
voting power. Each holder of shares of common stock shall be entitled to one
vote for each share held by such holders.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and sinking fund or retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock, and on any class
or series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends, but only when and as
declared by the board of directors of the Corporation.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class having preference
over the common stock in any such event, the full preferential amounts to which
they are respectively entitled, the holders of the common stock and of any class
or series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets shall be entitled, after payment or provision for payment
of all debts and liabilities of the Corporation, to receive the remaining assets
of the Corporation available for distribution, in cash or in kind.
Each share of common stock shall have the same relative powers,
preferences and rights as, and shall be identical in all respects with, all the
other shares of common stock of the Corporation.
B. Serial Preferred Stock. Except as provided in this Certificate of
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Incorporation, the board of directors of the Corporation is authorized, by
resolution or resolutions from time to time adopted, to provide for the issuance
of serial preferred stock in series and to fix and state the powers,
designations, preferences and relative, participating, optional or other special
rights of the shares of each such series, and the qualifications, limitations or
restrictions thereof, including, but not limited to, determination of any of the
following:
(1) the distinctive serial designation and the number of shares
constituting such series;
(2) the dividend rates or the amount of dividends to be paid on
the shares of such series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment
date or dates for dividends, and the participating or other
special rights, if any, with respect to dividends;
(3) the voting powers, full or limited, if any, of the shares of
such series;
(4) whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions
upon which such shares may be redeemed;
(5) the amount or amounts payable upon the shares of such series
in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(6) whether the shares of such series shall be entitled to the
benefits of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and, if so entitled,
the amount of such fund and the manner of its application,
including the price or prices at which such shares may be
redeemed or purchased through the application of such funds;
(7) whether the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or
any other series of the same or any other class of classes of
stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the
adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of
such conversion or exchange;
(8) the subscription or purchase price and form of consideration
for which the shares of such series shall be issued; and
(9) whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued
shares of serial preferred stock and whether such shares may
be reissued as shares of the same or any other series of
serial preferred stock.
Each share of each series of serial preferred stock shall have the same
relative powers, preferences and rights as, and shall be identical in all
respects with, all the other shares of the Corporation of the same series.
C. Class B Serial Preferred Stock. Except as provided in this
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Certificate of Incorporation, the board of directors of the Corporation is
authorized, by resolution or resolutions from time to time adopted, to provide
for the issuance of Class B serial preferred stock in one or more series, and to
fix and state the powers, designations, preferences and relative, participating,
optional or other special rights of the shares of each series, and the
qualifications, limitations and restrictions thereof, including , but not
limited to, determination of any of the following:
(1) the distinctive serial designation and the number of shares
constituting each series;
(2) the dividend rates or the amounts of dividends to be paid on
the shares of such series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment
date or dates for dividends, and the participating or other
special rights, if any, with respect to dividends;
(3) the voting powers, full or limited, if any, of the shares of
such series;
(4) whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions
upon which such shares may be redeemed;
(5) the amount or amounts payable upon the shares of such series
in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(6) whether the shares of such series shall be entitled to the
benefits of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and, if so entitled,
the amount of such fund and the manner of its application,
including the price or prices at which such shares may be
redeemed or purchased through the application of such funds;
(7) whether the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or
into any other series of the same or any other class or
classes of stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and any other
terms and conditions of such conversion or exchange;
(8) the subscription or purchase price and the form of
consideration for which the shares of such series shall be
issued; and
(9) whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued
shares of Class B serial preferred stock and whether such
shares may be reissued as shares of the same or any other
series of Class B serial preferred stock.
Each share of each series of Class B serial preferred stock shall have
the same relative powers, preferences and rights as, and shall be identical in
all respects with, all of the other shares of the Corporation of the same
series.
Notwithstanding anything to the contrary contained herein or in any
resolution of the board of directors providing for the issuance of any series of
Class B serial preferred stock, all shares of Class B serial preferred stock, of
any series, shall rank junior in respect of the payment of dividends and
payments to be received upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation to all shares of the Corporation's
9.20% Redeemable Cumulative Preferred Stock, Series A, or any class or series of
capital stock ranking prior to or on a parity with such 9.20% Redeemable
Cumulative Preferred Stock, Series A.
Except as may be expressly provided in the resolution of the board of
directors providing for the issuance of any series of Class B serial preferred
stock, the number of shares of Class B serial preferred stock authorized hereby
may be increased or decreased, but not below the number of shares of all series
of Class B serial preferred stock outstanding as of the date of such decrease,
upon the vote of a majority of the shares of common stock and any other class
entitled to vote with the common stock generally in respect of amendments
hereof, and without the separate vote or approval of the Class B serial
preferred stock, or of any series of Class B serial preferred stock, voting
separately as a class.
ARTICLE VI
Preemptive Rights
Holders of the capital stock of the Corporation shall not be entitled
to preemptive rights with respect to any shares or other securities of the
Corporation which may be issued or any securities convertible into any such
shares, including, without limitation, warrants, subscription rights and options
to acquire shares.
ARTICLE VII
Repurchase of Shares
The Corporation may from time to time, pursuant to authorization by the
board of directors of the Corporation and without action by the shareholders,
purchase or otherwise acquire shares of any class, bonds, debentures, notes,
scrip, warrants, obligations, evidences of indebtedness, or other securities of
the Corporation in such manner, upon such terms, and in such amounts as the
board of directors shall determine; subject, however, to such limitations or
restrictions, if any, as are contained in the express terms of any class of
shares of the Corporation outstanding at the time of the purchase or acquisition
in question or as are imposed by law.
ARTICLE VIII
Meetings of Shareholders; Cumulative Voting
A. Notwithstanding any other provision of this Certificate of
Incorporation or the bylaws of the Corporation, no action required to be taken
or which may be taken at any annual or special meeting of shareholders of the
Corporation may be taken without a meeting, and the power of shareholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied.
B. Special meetings of the shareholders of the Corporation for any
purpose or purposes may be called at any time by the board of directors of the
Corporation, or by a committee of the board of directors which has been duly
designated by the board of directors and whose powers and authorities, as
provided in a resolution of the board of directors or in the bylaws of the
Corporation, include the power and authority to call such meetings, but such
special meetings may not be called by any other person or persons.
C. There shall be cumulative voting by shareholders of any class or
series in the election of directors of the Corporation. At all times each holder
of common stock of the Corporation shall be entitle to one(1) vote for each
share of such stock standing in his name on the books of the Corporation. At all
elections of Directors of the Corporation, the number of votes which (except for
this provision) he would then be entitled to cast for the election of Directors
with respect to his shares, multiplied by the number of Directors upon whose
election he is then entitled to vote, and he may cast all or such votes for a
single candidate or may distribute them among some or all of the candidates as
he may see fit.
D. Meetings of shareholders may be held within or without the State of
Oklahoma, as the bylaws may provide.
ARTICLE IX
Notice for Nominations and Proposals
A. Nominations for the election of directors and proposals for any new
business to be taken up at any annual or special meeting of shareholders may be
made by the board of directors of the Corporation or by any shareholder of the
Corporation entitled to vote generally in the election of directors. In order
for a shareholder of the Corporation to make any such nominations and/or
proposals, he or she shall give notice thereof in writing, delivered or mailed
by first class United States mail, postage prepaid, to the Secretary of the
Corporation not less than 30 days nor more than 60 days prior to any such
meeting; provided, however, that if less than 40 days' notice of the meeting is
given to shareholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of the
tenth day following the day on which notice of the meeting was mailed to
shareholders. Each such notice given by a shareholder with respect to
nominations for the election of directors shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee. In addition, the shareholder making
such nomination shall promptly provide any other information reasonably
requested by the Corporation.
B. Each such notice given by a shareholder to the Secretary with
respect to business proposals to bring before a meeting shall set forth in
writing as to each matter: (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (ii) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business; (iii) the class and number of shares
of the Corporation which are beneficially owned by the shareholder; and (iv) any
material interest of the shareholder in such business. Notwithstanding anything
in this Certificate of Incorporation to the contrary, no business shall be
conducted at the meeting except in accordance with the procedures set forth in
this Article IX.
C. The Chairman of the annual or special meeting of shareholders may,
if the facts warrant, determine and declare to such meeting that a nomination or
proposal was not made in accordance with the foregoing procedure, and, if he
should so determine, he shall so declare to the meeting, and the defective
nomination or proposal shall be disregarded and laid over for action at the next
succeeding adjourned, special or annual meeting of the shareholders taking place
thirty days or more thereafter. This provision shall not require the holding of
any adjourned or special meeting of shareholders for the purpose of considering
such defective nomination or proposal.
ARTICLE X
Directors
A. Number; Vacancies. The number of directors of the Corporation shall
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be such number, not less than three nor more than twenty-one (exclusive of
directors, if any, to be elected by holders of preferred stock of the
Corporation, voting separately as a class), as shall be provided from time to
time in or in accordance with the bylaws, provided that no decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director, and provided further that no action shall be taken to
decrease or increase the number of directors from time to time unless at least
two-thirds of the directors then in office shall concur in said action.
Vacancies in the board of directors of the Corporation, however caused, and
newly created directorships shall be filled by a vote of two-thirds of the
directors then in office, whether or not a quorum, and any director so chosen
shall hold office for a term expiring at the annual meeting of shareholders at
which the term of the class to which the director has been chosen expires and
when the director's successor is elected and qualified.
B. Classified Board. The board of directors of the Corporation elected
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at the 1994 annual meeting of stockholders and thereafter shall be divided into
three classes of directors which shall be designated Class I, Class II and Class
III. The members of each class shall be elected for a term of three years and
until their successors are elected and qualified. Such classes shall be as
nearly equal in number as the then total number of directors constituting the
entire board of directors shall permit, with the terms of office of all members
of one class expiring each year. When the number of directors is changed, the
board of directors shall determine the class or classes to which the increased
or decreased number of directors shall be apportioned; provided that the
directors in each class shall be as nearly equal in number as possible;
provided, further, that no decrease in the number of directors shall affect the
term of any director then in office. At the 1994 annual meeting of shareholders,
directors of Class I shall be elected to hold office for a term expiring at the
third succeeding annual meeting thereafter. At the 1995 annual meeting of
shareholders, directors of Class II shall be elected to hold office for a term
expiring at the third succeeding annual meeting thereafter. At the 1996 annual
meeting of shareholders, directors of Class III shall be elected to hold office
for a term expiring at the third succeeding annual meeting thereafter.
Thereafter, at each succeeding annual meeting, directors of each class shall be
elected for three year terms. Notwithstanding the foregoing, the director whose
term shall expire at any annual meeting shall continue to serve until such time
as his successor shall have been duly elected and shall have qualified unless
his position on the board of directors shall have been abolished by action taken
to reduce the size of the board of directors prior to said meeting.
Should the number of directors of the Corporation be reduced, the
directorship(s) eliminated shall be allocated among classes as appropriate so
that the number of directors in each class is as specified in the immediately
preceding paragraph. The board of directors shall designate, by the name of the
incumbent(s), the position(s) to be abolished. Notwithstanding the foregoing, no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Should the number of directors of the Corporation be
increased, the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as specified in the
immediately preceding paragraph.
Whenever the holders of any one or more series of preferred stock of
the Corporation shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the board of directors shall consist of
said directors so elected in addition to the number of directors fixed as
provided in this Article X. Notwithstanding the foregoing, and except as
otherwise may be required by law, whenever the holders of any one or more series
of preferred stock of the Corporation shall have the right, voting separately as
a class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of shareholders.
ARTICLE XI
Removal of Directors
Notwithstanding any other provision of this Certificate of
Incorporation or the bylaws of the Corporation, any director or the entire board
of directors of the Corporation may be removed at any time, but only for cause
and only by the affirmative vote of the holders of at least 80% of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the shareholders called for that purpose.
Notwithstanding the foregoing, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the preceding
provisions of this Article XI shall not apply with respect to the director or
directors elected by such holders of preferred stock.
ARTICLE XII
Approval of Certain Transactions
The affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding shares of voting stock of the Corporation is required
to authorize (a) a merger or consolidation of the Corporation with, or (b) a
sale, exchange or lease of all or substantially all of the assets of the
Corporation to, any person or entity unless approval of any transaction
enumerated in clauses (a) or (b) above is recommended by at least a majority of
the entire Board of Directors. For purposes of this Article XII, "substantially
all of the assets" shall mean assets having a fair market value or book value,
whichever is greater, of twenty-five percent (25%) or more of the total assets
of the Corporation as reflected on a balance sheet of the Corporation as of a
date no earlier than forty-five (45) days prior to any acquisition of such
assets.
ARTICLE XIII
Approval of Business Combinations with Certain Parties
The shareholder vote required to approve Business Combinations (as
hereinafter defined) shall be as set forth in this section.
A. (1) Except as otherwise expressly provided in this Article XIII, the
affirmative vote of the holders of (i) at least 80% of the outstanding
shares entitled to vote thereon (and, if any class or series of shares
is entitled to vote thereon separately, the affirmative vote of the
holders of at least 80% of the outstanding shares of each such class or
series), and (ii) at least a majority of the outstanding shares
entitled to vote thereon, not including shares deemed beneficially
owned by a Related Person (as hereinafter defined), shall be required
in order to authorize any of the following:
(a) any merger or consolidation of the Corporation
with or into a Related Person (as hereinafter defined);
(b) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage, or any
other capital device, of all or any Substantial Part (as
hereinafter defined) of the assets of the Corporation
(including without limitation any voting securities of a
subsidiary) or of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related Person
with or into the Corporation or a subsidiary of the
Corporation;
(d) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a
Related Person to the Corporation or a subsidiary of the
Corporation;
(e) the issuance of any securities of the Corporation
or a subsidiary of the Corporation to a Related Person;
(f) the acquisition by the Corporation or a
subsidiary of the Corporation of any securities of a Related
Person;
(g) any reclassification of the common stock of the
Corporation, or any recapitalization involving the common
stock of the Corporation; and
(h) any agreement, contract or other arrangement
providing for any of the transactions described in this
Article XIII.
(2) Such affirmative vote shall be required notwithstanding
any other provision of this Certificate of Incorporation, any provision
of law, or any agreement with any regulatory agency or national
securities exchange which might otherwise permit a lesser vote or no
vote.
(3) The term "Business Combination" as used in this Article
XIII shall mean any transaction which is referred to in any one or more
of subparagraphs A(1)(a) through (h) above.
B. The provisions of paragraph A shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by any other provision of this
Certificate of Incorporation, any provision of law, or any agreement with any
regulatory agency or national securities exchange, if the Business Combination
shall have been approved by two-thirds of the Continuing Directors (as
hereinafter defined); provided, however, that such approval shall only be
effective if obtained at a meeting at which a Continuing Director Quorum (as
hereinafter defined) is present.
C. For the purposes of this Article XIII the following definitions
apply:
(1) The term "Related Person" shall mean and include (a) any
individual, corporation, partnership or other person or entity which
together with its "affiliates" (as that term is defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act
of 1934), "beneficially owns" (as that term is defined in Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of
1934) in the aggregate 10% or more of the outstanding shares of the
common stock of the Corporation; and (b) any "affiliate" (as that term
is defined in Rule 12b-2 under the Securities Exchange Act of 1934) of
any such individual, corporation, partnership or other person or
entity. Without limitation, any shares of the common stock of the
Corporation which any Related Person has the right to acquire pursuant
to any agreement, or upon exercise or conversion rights, warrants or
options, or otherwise, shall be deemed "beneficially owned" by such
Related Person.
(2) The term "Substantial Part" shall mean more than 25
percent of the total assets of the Corporation, as of the end of its
most recent fiscal year ending prior to the time the determination is
made.
(3) The term "Continuing Director" shall mean any member of
the board of directors of the Corporation who is unaffiliated with the
Related Person and was a member of the board prior to the time that the
Related Person became a Related Person, and any successor of a
Continuing Director who is unaffiliated with the Related Person and is
recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the board.
(4) The term "Continuing Director Quorum" shall mean
two-thirds of the Continuing Directors capable of exercising the powers
conferred on them.
D. In addition to Sections A, B, and C of this Article XIII, the
provisions of Section 1090.3 of the Oklahoma General Corporation Act, as in
effect on the date of this Certificate of Incorporation or as hereafter amended,
shall apply to any Business Combination in which the Corporation may engage.
ARTICLE XIV
Evaluation of Business Combinations
In connection with the exercise of its judgment in determining what is
in the best interests of the Corporation and of the shareholders, when
evaluating a Business Combination (as defined in Article XIII) or a tender or
exchange offer, the board of directors of the Corporation may, in addition to
considering the adequacy of the amount to be paid in connection with any such
transaction, consider all of the following factors and any other factors which
it deems relevant; (i) the social and economic effects of the transaction on the
Corporation and its subsidiaries, employees, depositors, loan and other
customers, creditors and other elements of the communities in which the
Corporation and its subsidiaries operate or are located; (ii) the business and
financial condition and earnings prospects of the acquiring person or entity,
including, but not limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition and other likely financial obligations of the acquiring person or
entity and the possible effect of such conditions upon the Corporation and its
subsidiaries and the other elements of the communities in which the Corporation
and its subsidiaries operate or are located; and (iii) the competence,
experience, and integrity of the acquiring person or entity and its or their
management.
ARTICLE XV
Indemnification
A. Persons. The Corporation shall indemnify, to the extent provided in
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paragraphs B, D or F:
(1) any person who is or was a director, officer, employee, or
agent of the Corporation; and
(2) any person who serves or served at the Corporation's
request as a director, officer, employee, agent, partner or trustee of
another corporation, partnership, joint venture, trust or other
enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
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completed action or suit by or in the right of the Corporation against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the Corporation shall indemnify him if he satisfies the standard in paragraph C,
for expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit.
C. Standard -- Derivative Suits. In case of a threatened, pending or
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completed action or suit by or in the right of the Corporation, a person named
in paragraph A shall be indemnified only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the
subject of the action or suit, and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Corporation,
including, but not limited to, the taking of any and all actions in
connection with the Corporation's response to any tender offer or any
offer or proposal of another party to engage in a Business Combination
(as defined in Article XIII) not approved by the board of directors.
However, he shall not be indemnified in respect of any claim, issue or
matter as to which he has been adjudged liable to the Corporation
unless (and only to the extent that) the court in which the action or
suit was brought shall determine, upon application, that despite the
adjudication but in view of all the circumstances, he is fairly and
reasonably entitled to indemnity for such expenses as the court shall
deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending or
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completed suit, action or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in paragraph A by reason of his holding a position named in paragraph A, the
Corporation shall indemnify him if he satisfies the standard in paragraph E, for
amounts actually and reasonably incurred by him in connection with the defense
or settlement of the nonderivative suit, including, but not limited to (i)
expenses (including attorneys' fees), (ii) amounts paid in settlement, (iii)
judgments, and (iv) fines.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit, a
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person named in paragraph A shall be indemnified if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, including, but not limited to, the taking of any and all
actions in connection with the Corporation's response to any tender
offer or any offer or proposal of another party to engage in a Business
Combination (as defined in Article XIII) not approved by the board of
directors, and, with respect to any criminal action or proceeding, he
had no reasonable cause to believe his conduct was
unlawful. The termination of a nonderivative suit by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
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equivalent shall not, of itself, create a presumption that the person
failed to satisfy the standard of this subparagraph E(2).
F. Determination That Standard Has Been Met. A determination that the
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standard of paragraph C or E has been satisfied may be made by a court. Or,
except as stated in subparagraph C(2) (second sentence), the determination may
be made by:
(1) the board of directors by a majority vote of a quorum
consisting of directors of the Corporation who were not parties to the
action, suit or proceeding; or
(2) independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in
a written opinion; or
(3) the shareholders of the Corporation.
G. Proration. Anyone making a determination under paragraph F may
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determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation shall pay in advance any expenses
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(including attorneys' fees) which may become subject to indemnification under
paragraphs A through G if:
(1) the board of directors authorizes the specific payment;
and
(2) the person receiving the payment undertakes in writing to
repay the same if it is ultimately determined that he is not entitled
to indemnification by the Corporation under paragraphs A through G.
I. Nonexclusive. The indemnification and advance payment of expenses
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provided by paragraphs A through H shall not be exclusive of any other rights to
which a person may be entitled by law, bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification provided by this Article XV shall
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be deemed to be a contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of this Article XV
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by paragraphs A
through H shall continue as to a person who has ceased to hold a position named
in paragraph A and shall inure to his heirs, executors and administrators.
K. Insurance. The Corporation may purchase and maintain insurance on
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behalf of any person who holds or who has held any position named in paragraph
A, against any liability incurred by him in any such position, or arising out of
his status as such, whether or not the Corporation would have power to indemnify
him against such liability under paragraphs A through H.
L. Savings Clause. If this Article XV or any portion hereof shall be
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invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation or person who serves or served at the Corporation's
request as a director, officer, employee, agent, partner or trustee of another
corporation, partnership, joint venture, trust or other enterprise as to costs,
charges, and expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement with respect to any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, including an action by or in
the right of the Corporation to the full extent permitted by any applicable
portion of this Article XV that shall not have been invalidated and to the full
extent permitted by applicable law.
ARTICLE XVI
Limitations on Directors' Liability
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: (i) for any breach of the director's duty of loyalty
to the Corporation or its shareholders, (ii) for acts or omissions that are not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) under Section 1053 or 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 after the date of
filing of this Certificate of Incorporation to further eliminate or limit 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 the foregoing paragraph 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 XVII
Applicability of Sections 1145 through 1155 of Oklahoma General
Corporation Act.
The provisions of Sections 1145 through 1155 of the Oklahoma General
Corporation Act, as in effect on the date of this Certificate of Incorporation
or as hereafter amended, shall not apply to the Corporation as of December 31,
1993 and thereafter.
ARTICLE XVIII
Amendment of Bylaws
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the Corporation is expressly authorized to
adopt, repeal, alter, amend and rescind the bylaws of the Corporation by a vote
of a majority of the board of directors. Notwithstanding any other provision of
this Certificate of Incorporation or the bylaws of the Corporation (and
notwithstanding the fact that some lesser percentage may be specified by law),
the bylaws shall not be adopted, repealed, altered, amended or rescinded by the
shareholders of the Corporation except by the affirmative vote of the holders of
not less than 80% of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the shareholders called for that
purpose (provided that notice of such proposed adoption, repeal, alteration,
amendment or rescission is included in the notice of such meeting), or, as set
forth above, by the board of directors.
ARTICLE XIX
Amendment of Certificate of Incorporation
The Corporation reserves the right to repeal, alter, amend or rescind
any provision contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by law, and all rights conferred on shareholders herein
are granted subject to this reservation. Notwithstanding the foregoing, the
provisions set forth in Articles X, XI, XII, XIII, XV, XVI, XVII, XVIII, and
this Article XIX may not be repealed, altered, amended or rescinded in any
respect unless the same is approved by the affirmative vote of the holders of
not less than 80% of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as a single class) cast at a meeting of the shareholders called for that
purpose (provided that notice of such proposed adoption, repeal, alteration,
amendment or rescission is included in the notice of such meeting), except, with
the prior approval of a majority of the Continuing Directors, as defined in
Article XIII, the provisions set forth in Article XIII may be repealed, altered,
amended or rescinded with the approval of the affirmative vote of the holders of
a majority of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors cast at a meeting of the
shareholders called for that purpose.
ARTICLE XX
This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of OKLA. STAT. tit. 18, ss. 1080
(1996) by the Board of Directors without a vote of the shareholders, and only
restates and integrates, and does not further amend, the provisions of the
Amended and Restated Certificate of Incorporation of Southwest Bancorp., Inc. as
up to the time of adoption amended or supplemented. There is no discrepancy
between those provisions and the provisions of this Amended and Restated
Certificate of Incorporation.
Dated this 26th day of August, 1999_/
(SEAL)
ATTEST: SOUTHWEST BANCORP, INC.
/s/ Deborah T. Bradley By /s/ Rick J. Green
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Deborah T. Bradley, Secretary Rick J. Green, President