EXHIBIT 3.01
FEE: $50.00 FILED
(MINIMUM) DEC. 20, 1996
OKLAHOMA SECRETARY
OF STATE
RESTATED
CERTIFICATE OF INCORPORATION
FILE IN DUPLICATE
PRINT CLEARLY
SOS CORP. KEY:
- -----------------
PLEASE NOTE: This form MUST be filed with a letter from the Oklahoma Tax
----
Commission stating the franchise tax has been paid for the current fiscal year.
If the authorized capital is increased in excess of fifty thousand dollars
($50,000.00), the filing fee shall be an amount equal to one-tenth of one
percent (1/10 of 1%) of such increase.
TO THE SECRETARY OF THE STATE OF OKLAHOMA, 101 State Capital Bldg., Oklahoma
City, OK 73105:
The undersigned corporation, organized and existing under and by virtue of
the Oklahoma General Corporation Act for the purpose of adopting a restated
certificate of incorporation, does hereby submit:
1. A. The name of the corporation is : OGE Energy Corp.
---------------
B. As amended by this Restated certificate, the name of
the corporation has been changed to:
- --------------------------------------------------------------.
2. The name under which it was originally incorporated is:
OG&E Holding Corp.
------------------
3. The date of filing of its original certificate of incorporation is:
August 4, 1995.
---------------
4. The address of the registered office in the State of Oklahoma
and the name of the registered agent at such address is:
See Attached Restated Certificate of Incorporation
- -------------------------------------------------------------------------------
NAME NUMBER & STREET ADDRESS CITY COUNTY ZIP CODE
(P. O. BOXES ARE NOT ACCEPTABLE)
---
82
5. The duration of the corporation is: Perpetual
----------------------------------
(Perpetual unless otherwise stated)
6. The purpose or purposes for which the corporation is formed are:
See Attached Restated Certificate of Incorporation
7. The aggregate number of the authorized shares, itemized by class, par
value of shares, shares without par value, and series, if any, within
a class is:
NUMBER OF SHARES SERIES PAR VALUE PER SHARE
Common 125,000,000 $.01
Preferred 5,000,000 Series A - authorized $.01
1,250,000
TOTAL NO. SHARES: TOTAL AUTHORIZED CAPITAL: $1,300,000
130,000,000
The attached Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Title 18,. Sec. 1080 after being proposed by
the Directors and adopted by the shareholders in the manner and by the vote
prescribed in Title 18, Sec. 1077, and restates, integrates and further amends
the certificate of incorporation.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by its ____ President and attested by its ______ Secretary, this _____
day of ______________, 19___.
/s/ Steven E. Moore
-------------------------
By ____ President
-------------------------
(PLEASE PRINT NAME)
ATTEST:
/s/ Irma B. Elliott
- -----------------------------
____Secretary
Irma B. Elliott
- -----------------------------
(PLEASE PRINT NAME)
83
RESTATED
CERTIFICATE OF INCORPORATION
OF
OGE ENERGY CORP.
I.
The name of this corporation shall be "OGE Energy Corp."
II.
The address of its Registered Office in the State of Oklahoma is 101 North
Robinson, in the City of Oklahoma City, County of Oklahoma and the name of its
Registered Agent at such address is Ms. Irma B. Elliott.
III.
The purpose for which this corporation is formed is to engage in any lawful
act or activity for which corporations may be organized under the general
corporation law of Oklahoma.
IV.
A. AUTHORIZED CAPITAL STOCK. The total number of shares which the
corporation shall have the authority to issue shall be 130,000,000 shares, of
which 125,000,000 shares shall be Common Stock, without par value $.01 per
share, and 5,000,000 shares shall be Preferred Stock, par value $.01 per share.
B. COMMON STOCK. The Board of Directors is hereby authorized to cause
shares of Common Stock, par value $.01 per share, to be issued from time to time
for such consideration as may be fixed from time to time by the Board of
Directors, or by way of stock split pro rata to the holders of the Common Stock.
The Board of Directors may also determine the proportion of the proceeds
received from the sale of such stock which shall be credited upon the books of
the corporation to Capital or Capital Surplus.
Each share of the Common Stock shall be equal in all respects to every
other share of the Common Stock. Subject to any special voting rights of the
holders of Preferred Stock fixed by or pursuant to the provisions of Section C
of this Article IV, the shares of Common Stock shall entitle the holders thereof
to one vote for each share upon all matters upon which shareholders have the
right to vote.
No holder of shares of Common Stock shall be entitled as such as a matter
of right to subscribe for or purchase any part of any new or additional issue of
stock, or securities convertible into stock, of any class whatsoever, whether
now or hereafter authorized, and whether issued for cash, property, services or
otherwise.
After the requirements with respect to preferential dividends on Preferred
Stock (fixed by or pursuant to the provisions of Section C of this Article IV),
if any, shall have been met and after the corporation shall have complied with
all the requirements, if any, with respect to the setting aside of sums as
sinking funds or redemption or purchase accounts (fixed by or pursuant to the
provisions of Section C of this Article IV) and subject further to any other
conditions which may be fixed by or pursuant to the provisions of Section C of
this Article IV, then, but not otherwise, the holders of Common Stock shall be
entitled to receive dividends, if any, as may be declared from time to time by
the Board of Directors.
84
After distribution in full of the preferential amount (fixed by or pursuant
to the provisions of Section C of this Article IV), if any, to be distributed to
the holders of Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
corporation, the holders of the Common Stock shall be entitled to receive all
the remaining assets of the corporation, tangible and intangible, of whatever
kind available for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
C. PREFERRED STOCK. Shares of Preferred Stock may be divided into and
issued in such series, on such terms and for such consideration as may from time
to time be determined by the Board of Directors of the corporation. Each series
shall be so designated as to distinguish the shares thereof from the shares of
all other series and classes. All shares of Preferred Stock shall be identical,
except as to variations between different series in the relative rights and
preferences as permitted or contemplated by the next succeeding sentence.
Authority is hereby vested in the Board of Directors of the corporation to
establish out of shares of Preferred Stock which are authorized and unissued
from time to time one or more series thereof and to fix and determine the
following relative rights and preferences of shares of each such series:
(1) the distinctive designation of, and the number of shares which
shall constitute, the series and the "stated value" or "nominal value," if
any, thereof;
(2) the rate or rates of dividends applicable to shares of such
series, which rate or rates may be expressed in terms of a formula or other
method by which such rate or rates shall be calculated from time to time,
and the dividend periods, including the date or dates on which dividends
are payable;
(3) the price at and the terms and conditions on which shares of such
series may be redeemed;
(4) the amount payable upon shares of such series in the event of the
involuntary liquidation of the corporation;
(5) the amount payable upon shares of such series in the event of the
voluntary liquidation of the corporation;
(6) sinking fund provisions for the redemption or purchase of shares
of such series;
(7) the terms and conditions on which shares of such series may be
converted, if such shares are issued with the privilege of conversion;
(8) the voting powers, if any, of the holders of shares of the series
which may, without limiting the generality of the foregoing, include (i)
the right to one or less than one vote per share on any or all matters
voted upon by the shareholders and (ii) the right to vote, as a series by
itself or together with other series of Preferred Stock or together with
all series of Preferred Stock as a class, upon such matters, under such
circumstances and upon such conditions as the Board of Directors may fix,
including, without limitation, the right, voting as a series by itself or
together with other series of Preferred Stock or together with all series
of Preferred Stock as a class, to elect one or more directors of this
corporation in the event there shall have been a failure to pay dividends
on any one or more series of Preferred Stock or under such other
circumstances and upon such conditions as the Board of Directors may
determine; provided, however, that in no event shall a share of Preferred
Stock have more than one vote; and
(9) any other such rights and preferences as are not inconsistent with
the Oklahoma General Corporation Act.
No holder of any share of any series of Preferred Stock shall be entitled
to vote for the election of directors or in respect of any other matter except
as may be required by the Oklahoma General Corporation Act, as
85
amended, or as is permitted by the resolution or resolutions adopted by the
Board of Directors authorizing the issue of such series of Preferred Stock.
D. OTHER PROVISIONS
(1) The relative powers, preferences, and rights of each series
of Preferred Stock in relation to the powers, preferences and rights of each
other series of Preferred Stock shall, in each case, be as fixed from time to
time by the Board of Directors in the resolution or resolutions adopted pursuant
to authority granted in Section C of this Article IV, and the consent by class
or series vote or otherwise, of the holders of the Preferred Stock or such of
the series of the Preferred Stock as are from time to time outstanding shall not
be required for the issuance by the Board of Directors of any other series of
Preferred Stock whether the powers, preferences and rights of such other series
shall be fixed by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of them,
provided, however, that the Board of Directors may provide in such resolution or
resolutions adopted with respect to any series of Preferred Stock that the
consent of the holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(2) Subject to the provisions of paragraph 1 of this Section D, shares
of any series of Preferred Stock may be issued from time to time as the Board of
Directors shall determine and on such terms and for such consideration as shall
be fixed by the Board of Directors.
(3) Common Stock may be issued from time to time as the Board of
Directors shall determine and on such terms and for such consideration as shall
be fixed by the Board of Directors.
(4) No holder of any of the shares of any class or series of shares or
securities convertible into such shares of any class or series of shares, or of
options, warrants or other rights to purchase or acquire shares of any class or
series of shares or of other securities of the corporation shall have any
preemptive right to purchase, acquire, subscribe for any unissued shares of any
class or series or any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the corporation of any
class or series, or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for shares of any class or series,
or carrying any right to purchase or acquire shares of any class or series, but
any such unissued shares, additional authorized issue of shares of any class or
series of shares or securities convertible into or exchangeable for shares, or
carrying any right to purchase or acquire shares, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, and upon such terms, as may be deemed advisable by
the Board of Directors in the exercise of its sole discretion.
(5) The corporation reserves the right to increase or decrease its
authorized capital shares, or any class or series thereof or to reclassify the
same and to amend, alter, change or repeal any provision contained in the
Certificate of Incorporation or in any amendment thereto, in the manner now or
hereafter prescribed by law, but subject to such conditions and limitations as
are hereinbefore prescribed, and all rights conferred upon shareholders in the
Certificate of Incorporation of this corporation, or any amendment thereto, are
granted subject to this reservation.
V.
The name and mailing address of the sole incorporator is:
Ms. Nina Zalenski
321 North Clark Street
Suite 3400
Chicago, Illinois 60610
86
VI.
A. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
(1) In addition to any affirmative vote required by law or this Article
VI or any other Article hereof, and except as otherwise expressly provided in
Section B of this Article VI:
(a) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Shareholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets of the corporation or any Subsidiary having
an aggregate Fair Market Value of $25,000,000 or more; or
(c) 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
Shareholder or any Affiliate of any Interested Shareholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $25,000,000 or more, other
than the issuance of securities upon the conversion of convertible
securities of the corporation or any Subsidiary which were not acquired
by such Interested Shareholder (or such Affiliate) from the corporation
or a Subsidiary; or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested Shareholder;
or
(e) 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 with or into or otherwise involving
an Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of stock or securities convertible into
stock of the corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any Affiliate of any
Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of stock of the corporation entitled to
vote generally in the election of directors (the "Voting Stock"), voting
together as a single class (it being understood that for purposes of this
Article VI, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article IV hereof). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, by any provision hereof, or in any
agreement with any national securities exchange or otherwise.
(2) The term "Business Combination" as used in this Article VI shall
mean any transaction which is referred to in any one or more subparagraphs (a)
through (e) of paragraph 1 of this Section A.
B. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section A of
this Article VI shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote as is
required by law and any other provision of any Article hereof, if all of the
conditions specified in either of the following paragraphs 1 and 2 are met:
(1) The Business Combination shall have been approved by a majority of
the Disinterested Directors (as hereinafter defined).
87
(2) All of the following 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 any consideration other than cash to be
received per share by 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 (as
hereinafter defined) (including the brokerage commissions,
transfer taxes and soliciting dealers' fees) paid in order to
acquire any shares of Common Stock beneficially owned by the
Interested Shareholder which were acquired beneficially by
such Interested Shareholder (X) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement Date")
or (Y) in the transaction in which it became an Interested
Shareholder, 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 Shareholder became an Interested Shareholder
(such later date is referred to in this Article VI as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Voting Stock other than
the Common Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this subparagraph
(b) shall be required to be met with respect to every such class or
series of outstanding Voting Stock, whether or not the Interested
Shareholder beneficially owns any shares of a particular class or
series of Voting Stock):
I. (if applicable) the Highest Per Share Price (as
hereinafter defined) (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid in order to
acquire any shares of such class or series of Voting Stock
beneficially owned by the Interested Shareholder which were
acquired beneficially by such Interested Shareholder (X)
within the two-year period immediately prior to the
Announcement Date or (Y) in the transaction in which it became
an Interested Shareholder, whichever is higher;
II. (if applicable) the highest preferential amount
per share to which the holders of shares of such class or
series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the corporation; and
III. the Fair Market Value per share of such class or
series of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(c) The consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as was previously
paid in order to acquire beneficially shares of such class or series of
Voting Stock that are beneficially owned by the Interested Shareholder
and, if the Interested Shareholder beneficially owns shares of any
class or series of Voting Stock that were acquired with varying forms
of consideration, the form of consideration to be received by holders
of such class or series of Voting Stock shall be either cash or the
form used to acquire beneficially the largest number of shares of such
class or series of Voting Stock beneficially acquired by it prior to
the Announcement Date.
(d) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested Directors,
there shall have been no failure to declare and pay at the regular
dates therefor the full amount of any dividends (whether or not
cumulative) payable on any class or series of stock having a preference
88
over the Common Stock as to dividends or upon liquidation; (ii) there
shall have been (x) 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
Disinterested Directors, and (y) an increase in such annual rate of
dividends (as necessary to prevent any such reduction) in the event of
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate was approved
by a majority of the Disinterested Directors; and (iii) such Interested
Shareholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Shareholder becoming an Interested
Shareholder.
(e) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionally 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.
(f) 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 public shareholders of the corporation
at least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
C. CERTAIN DEFINITIONS. For the purposes of this Article VI:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Shareholder" shall mean any person (other than
the corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly of
more than 10% of the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock that were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
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.
(3) A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (i) 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 (ii) the right to vote or direct the vote pursuant to any agreement,
arrangement or understanding; or
89
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purposes of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(4) For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph 2 of this Section C, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph 3 of this Section C but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding or upon exercise of conversion rights, warrants or
options, or otherwise.
(5) "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, as in effect on November 16, 1995.
(6) "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the corporation or by a
Subsidiary of the corporation or by the corporation and one or more
Subsidiaries; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph 2 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the corporation.
(7) "Disinterested Director" means any member of the Board of Directors
of the corporation who is unaffiliated with, and not a nominee or representative
of, the Interested Shareholder and was a member of the Board of Directors prior
to the time that the Interested Shareholder became an Interested Shareholder,
and any successor of a Disinterested Director who is unaffiliated with, and not
a nominee or representative of, the Interested Shareholder and who is
recommended to succeed a Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
(8) "Fair Market Value" means: (a) in the case of stock, the highest
closing sale price during the 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 sales price or bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, 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 a majority of the Disinterested Directors
in good faith, in each case with respect to any class of stock, appropriately
adjusted for any dividend or distribution in shares of such stock or any stock
split or reclassification of outstanding shares of such stock into a greater
number of shares of such stock or any combination or reclassification of
outstanding shares of such stock into a smaller number of shares of such stock;
and (b) in the case of stock of any class or series which is not traded on any
United States registered securities exchange nor in the over-the-counter market
or 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 a majority of the
Disinterested Directors in good faith.
(9) References to "Highest Per Share Price" shall in each instance,
with respect to any class of stock, reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number of
shares of such stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such stock.
(10) In the event of any Business Combination in which the corporation
survives, the phrase "consideration other than cash to be received" as used in
subparagraphs (a) and (b) of paragraph 2 of Section B of this Article VI shall
include the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
90
D. POWERS OF THE BOARD OF DIRECTORS. A majority of the Disinterested
Directors of the corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article VI, including without limitation, (a)
whether a person is an Interested Shareholder, (b) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether the assets which are the subject
of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $25,000,000 or more
and (e) whether the requirements of Section B of this Article VI have been met.
E. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Article VI shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
F. AMENDMENT OR REPEAL. Notwithstanding any other provisions of this
Article VI or of any other Article hereof, or of the By-laws of the corporation
(and notwithstanding the fact that a lesser percentage may be specified from
time to time by law, this Article VI, any other Article hereof, or the By-laws
of the corporation), the provisions of this Article VI may not be altered,
amended or repealed in any respect, nor may any provision inconsistent therewith
be adopted, unless such alteration, amendment, repeal or adoption is approved by
the affirmative vote of the holders of at least 80% of the combined voting power
of the then outstanding Voting Stock, voting together as a single class.
VII.
A. ELECTION AND TERMS OF DIRECTORS. Except as may otherwise be provided
in or fixed by or pursuant to the provisions of Article IV hereof relating to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect directors
under specified circumstances, the directors shall be classified, with respect
to the time for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be provided in the manner specified in the
By-laws of the corporation, one class to be originally elected for a term
expiring at the annual meeting of shareholders to be held in 1996, another class
to be originally elected for a term expiring at the annual meeting of
shareholders to be held in 1997, and another class to be originally elected for
a term expiring at the annual meeting of shareholders to be held in 1998, with
each class to hold office until its successor is elected and qualified. At each
annual meeting of shareholders of the corporation and except as may otherwise be
provided in or fixed by or pursuant to the provisions of Article IV hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, the successors of the class of
directors whose term expires at that meeting shall be elected to hold office for
a term expiring at the annual meeting of shareholders held in the third year
following the year of their election.
B. SHAREHOLDER NOMINATION OF DIRECTOR CANDIDATES AND INTRODUCTION OF
BUSINESS. Advance notice of shareholder nominations for the election of
directors, and advance notice of business to be brought by shareholders
before an annual meeting of shareholders, shall be given in the manner provided
in the By-laws of the corporation.
C. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as may otherwise
be provided in or fixed by or pursuant to the provisions of Article IV hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances: (i) newly created directorships
resulting from any increase in the number of directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors; (ii) any director elected in accordance with the preceding clause
(i) shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the
91
vacancy occurred and until such director's successor shall have been elected and
qualified; and (iii) no decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
D. REMOVAL. Except as may otherwise be provided in or fixed by or
pursuant to the provisions of Article IV hereof relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances, any director may be removed from office, with or without cause,
only by the affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of the corporation's stock entitled
to vote generally, voting together as a single class. Whenever in this Article
VII or in Article VIII hereof or in Article IX hereof, the phrase "the then
outstanding shares of the corporation's stock entitled to vote generally" is
used, such phrase shall mean each then outstanding share of Common Stock and of
any other class or series of the corporation's stock that is entitled to vote
generally in the election of directors and whose voting privileges are not
generally restricted by any of the provisions of any Article hereof.
E. AMENDMENT OR REPEAL. Notwithstanding any other provisions of this
Article VII or of any other Article hereof or of the By-laws of the corporation
(and notwithstanding the fact that a lesser percentage may be specified from
time to time by law, this Article VII, any other Article hereof, or the By-laws
of the corporation), the provisions of this Article VII may not be altered,
amended or repealed in any respect, nor may any provision inconsistent therewith
be adopted, unless such alteration, amendment, repeal or adoption is approved by
the affirmative vote of the holders of at least 80% of the combined voting power
of the then outstanding shares of the corporation's stock entitled to vote
generally, voting together as a single class.
VIII.
Any action required or permitted to be taken by the shareholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and, except as otherwise mandated by Oklahoma law, may not be effected
without such a meeting by any consent in writing by such holders. Except as
otherwise mandated by Oklahoma law and except as may otherwise be provided in or
fixed by or pursuant to the provisions of Article IV hereof relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, special meetings of shareholders of the corporation may
be called only by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors or by the President of the
corporation. Notwithstanding any other provisions of this Article VIII or of any
other Article hereof or of the By-laws of the corporation (and notwithstanding
the fact that a lesser percentage may be specified from time to time by law,
this Article VIII, any other Article hereof, or the By-laws of the corporation),
the provisions of this Article VIII may not be altered amended or repealed in
any respect, nor may any provision inconsistent therewith be adopted, unless
such alteration, amendment, repeal or adoption is approved by the affirmative
vote of the holders of at least 80% of the combined voting power of the then
outstanding shares of the corporation's stock entitled to vote generally, voting
together as a single class.
IX.
The Board of Directors shall have power to adopt, amend and repeal the
By-laws of the corporation to the maximum extent permitted from time to time by
Oklahoma law; provided, however, that any By-laws adopted by the Board of
Directors under the powers conferred hereby may be amended or repealed by the
Board of Directors or by the shareholders having voting power with respect
thereto, except that, and notwithstanding any other provisions of this Article
IX or of any other Article hereof or of the By-laws of the corporation (and
notwithstanding the fact that a lesser percentage may be specified from time to
time by law, this Article IX, any other Article hereof or the By-laws of the
corporation), no provision of Section 1.1 of Article 1 of the By-laws, or of
Section 4.2, Section 4.12 or Section 4.14 of Article IV of the By-laws, or of
Section 5.2 or Section 5.3 of Article V the By-laws may be altered, amended or
repealed in any respect, nor may any provision inconsistent therewith be
adopted, unless such alteration, amendment, repeal or adoption is approved by
the affirmative vote of the holders of at least 80% of the combined voting power
of the then outstanding shares of the corporation's stock entitled to vote
92
generally, voting together as a single class. Notwithstanding any other
provisions of this Article IX or of any other Article hereof or of the By-laws
of the corporation (and notwithstanding the fact that a lesser percentage may be
specified from time to time by law, this Article IX, any other Article hereof or
the By-laws of the corporation), the provisions of this Article IX may not be
altered, amended or repealed in any respect, nor may any provision inconsistent
therewith be adopted, unless such alteration, amendment, repeal or adoption is
approved by the affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of the corporation's stock entitled
to vote generally, voting together as a single class.
X.
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 any improper
personal benefit. If the Oklahoma General Corporation Act is amended after
approval by the shareholders of this Article 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 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.
XI.
A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director, officer or employee of the corporation or is or was serving at the
request of the corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the corporation to the fullest extent authorized by the Oklahoma
General Corporation Act, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the corporation to provide broader indemnification rights than such law
permitted the corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who had ceased to be a director, officer or
employee and shall inure to the benefit of the indemnitee's heirs, executor and
administrators; provided, however, that, except as provided in Section B of this
Article XI with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation. Any person
who is or was a director or officer of a subsidiary of the corporation shall be
deemed to be serving in such capacity at the request of the corporation for
purposes of this Article XI. The right to indemnification conferred in this
Article shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Oklahoma General Corporation Act requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service with respect to an employee benefit plan)
shall be made only upon delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from
93
which there is no further right to appeal (hereinafter, a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Article or otherwise. The rights to indemnification and advancement of
expenses conferred in this Section A shall be a contract right.
B. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section A of
this Article XI is not paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit or in a suit brought by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
also shall be entitled to be paid the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
in (ii) any suit by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in the Oklahoma General Corporation
Act. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Oklahoma General Corporation Act, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Article XI or otherwise shall be on the
corporation.
C. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article XI shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, these Articles of Incorporation, any By-law, any agreement, any vote of
shareholders or disinterested directors or otherwise.
D. INSURANCE. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Oklahoma General Corporation Act.
E. INDEMNIFICATION OF AGENTS. The corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any agent of the
corporation and to any person serving at the request of the corporation as an
agent of another corporation or of a partnership, joint venture, trust or other
enterprise to the fullest extent of the provisions of this Article XI with
respect to the indemnification and advancement of expenses of directors,
officers and employees of the corporation.
F. REPEAL OR MODIFICATION. Any repeal or modification of any provision
of this Article XI by the shareholders of the corporation shall not adversely
affect any rights to indemnification and to advancement of expenses that any
person may have at the time of such repeal or modification with respect to any
acts or omissions occurring prior to such repeal or modification.
XII.
Of the then allotted shares of Preferred Stock described in Article IV
hereof, the Board of Directors on August 7, 1995, established a series of
Preferred Stock in the amount and with the designation, voting powers,
94
preferences and relative, participating, options or other special rights and the
qualifications, limitations or restrictions as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated "Series A Preferred Stock" and the number of shares constituting such
series shall be 1,250,000. Shares of Series A Preferred Stock shall have a par
value of $.01 per share.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the possible prior and superior rights of the holders of
any shares of preferred stock of the Company ranking prior and superior to the
shares of Series A Preferred Stock with respect to dividends, each holder of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for that purpose: (i)
quarterly dividends payable in cash on January 20, April 20, July 20 and October
20 in each year (each such date being a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of such share of Series A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $5.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends declared on shares of the Common Stock of the
Company, par value $.01 per share (the "Common Stock"), since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of a share of Series A
Preferred Stock and (ii) subject to the provision for adjustment hereinafter set
forth, quarterly distributions (payable in kind) on each Quarterly Dividend
Payment Date in an amount per share equal to 100 times the aggregate per share
amount of all non-cash dividends or other distributions (other than a dividend
payable in shares of Common stock or a subdivision of the outstanding shares of
Common Stock, by reclassification or otherwise) declared on shares of Common
Stock since the immediately preceding Quarterly Dividend Payment Date, or with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of a share of Series A Preferred Stock. If the quarterly Dividend Payment Date
is a Saturday, Sunday or legal holiday, then such Quarterly Dividend Payment
Date shall be the first immediately preceding calendar day which is not a
Saturday, Sunday or legal holiday. In the event that the Company shall at any
time after August 7, 1995 (the "Rights Declaration Date") (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine
outstanding shares of Common Stock into a smaller number of shares, then in each
such case, the amount to which the holder of a share of Series A Preferred Stock
was entitled immediately prior to such event pursuant to the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which shall be the number of shares of Common Stock that are outstanding
immediately after such event, and the denominator of which shall be the number
of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on shares of
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the shares of Common Stock (other than a
dividend payable in shares of Common Stock); PROVIDED, HOWEVER, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding share of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of such share of Series A
Preferred Stock, unless the date of issuance of such share is prior to the
record date for the first Quarterly Dividend Payment Date, in which case,
dividends on such share shall begin to accrue from the date of issuance of such
share, or unless the date of issuance is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
shares of Series A Preferred Stock in an amount less than the aggregate amount
of all such
95
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all shares of Series A Preferred Stock at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for the payment
thereof.
(D) Dividends payable on the Series A Preferred Stock for the initial
dividend period and for any period less than a full quarterly period, shall be
computed on the basis of a 360-day year of 30-day months.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Each share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders of
the Company.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
shareholders of the Company.
(C) If at the time of any annual meeting of shareholders for the
election of directors a "default in preference dividends" on the Series A
Preferred Stock shall exist, the holders of the Series A Preferred Stock shall
have the right at such meeting, voting together as s single class, to the
exclusion of the holders of Common Stock, to elect two (2) directors of the
Company. Such right shall continue until there are no dividends in arrears upon
the Series A Preferred Stock. Either or both of the two directors to be elected
by the holders of Series A Preferred Stock may be to fill a vacancy or vacancies
created by an increase by the Board of Directors in the number of directors
constituting the Board of Directors. Each director elected by the holders of
Preferred Stock (a "Preferred Director") shall continue to serve as such
director for the full term for which he or she shall have been elected,
notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding Series A Preferred Stock voting together as a single class, at a
meeting of the shareholders or of the holders of Preferred Stock called for the
purpose. So long as a default in preference dividends on the Series A Preferred
Stock shall exist, (i) any vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (ii)) by an instrument in
writing signed by the remaining Preferred Director and filed with the Company
and (ii) in the case of the removal of any Preferred Director, the vacancy may
be filled by the vote of the holders of the outstanding Series A Preferred Stock
voting together as a single class, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
For the purposes hereof, a "default in preference dividends" on the Preferred
Stock shall be deemed to have occurred whenever the amount of accrued and unpaid
dividends upon the Series A Preferred Stock shall be equivalent to six (6) full
quarterly dividends or more, and having so occurred, such default shall be
deemed to exist thereafter until, but only until, all accrued dividends on all
Series A Preferred Stock then outstanding shall have been paid to the end of the
last preceding quarterly dividend period. The provisions of this paragraph (C)
shall govern the election of Directors by holders of Series A Preferred Stock
during any default in preference dividends notwithstanding any provisions of the
Company's Certificate of Incorporation to the contrary.
(D) Except as set forth herein, holders of shares of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of shares
of Common Stock as set forth herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Until all accrued and unpaid dividends and distributions, whether
or not declared, on outstanding shares of Series A Preferred Stock shall have
been paid in full, the Company shall not:
96
(i) declare or pay any dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of junior stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of parity stock, except dividends paid
ratably on shares of Series A Preferred Stock and shares of all such
parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of such Series A Preferred
Stock and all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any junior stock, PROVIDED, HOWEVER, that the
Company may at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any other junior stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock or any shares of parity stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued Preferred Stock and
may be reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth in the Certificate of
Incorporation of the Company creating a series of Preferred Stock or any similar
shares or as otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company, no distributions shall be made (i) to the holders of
shares of junior stock unless the holders of Series A Preferred Stock shall have
received, subject to adjustment as hereinafter provided in paragraph (B), the
greater of either (a) $100.00 per share plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, or (b) an amount per share equal to 100 times the aggregate per
share amount to be distributed to holders of shares of Common Stock or (ii) to
the holders of shares of parity stock, unless simultaneously therewith
distributions are made ratably on shares of Series A Preferred Stock and all
other shares of such parity stock in proportion to the total amounts to which
the holders of shares of Series A Preferred Stock are entitled under clause
(i)(a) of this sentence and to which the holders of shares of such parity stock
are entitled, in each case, upon such liquidation, dissolution or winding up.
(B) In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case, the aggregate amount to which holders of
Series A Preferred Stock were entitled immediately prior to such event pursuant
to clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted by
multiplying such amount by a fraction, the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event, and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
97
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transactions in which the
shares of Common Stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case, each share of
Series A Preferred Stock shall at the same time be similarly exchanged for or
converted into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is converted or
exchanged. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case, the amount set forth in the immediately
preceding sentence with respect to the exchange or conversion of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which shall be the number of shares of Common Stock
that are outstanding immediately after such event, and the denominator of which
shall be the number of shares of Common Stock that were outstanding immediately
prior to such event.
SECTION 8. REDEMPTION. The shares of Series A Preferred Stock shall not
be redeemable.
SECTION 9. RANKING. The shares of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any other class of
preferred stock that hereafter may be issued by the Company as to the payment of
dividends and the distribution of assets, unless the terms of any such series or
class shall provide otherwise.
SECTION 10. AMENDMENT. The provisions of this Certificate of
Designation shall not hereafter be amended, either directly or indirectly, or
through merger or consolidation with another corporation, in any manner that
would alter or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least a majority of the outstanding shares of Series A
Preferred Stock, voting separately as a class.
SECTION 11. FRACTIONAL SHARES. The Series A Preferred Stock may be
issued in fractions of a share, which fractions shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions, and to have the benefit of all
other rights of holders of Series A Preferred Stock.
SECTION 12. CERTAIN DEFINITIONS. As used herein with respect to the
Series A Preferred Stock, the
following terms shall have the following meanings:
(1) The term " junior stock" (i) as used in Section 4, shall mean the
Common Stock and any other class or series of capital stock of the Company
hereafter authorized or issued over which the Series A Preferred Stock has
preference or priority as to the payment of dividends, and (ii) as used in
Section 6, shall mean the Common Stock and any other class or series of capital
stock of the Company over which the Series A Preferred Stock has preference or
priority in the distribution of assets on any liquidation, dissolution or
winding up of the Company.
(2) The term "parity stock" (i) as used in Section 4, shall mean any
class or series of stock of the Company hereafter authorized or issued ranking
PARI PASSU with the Series A Preferred Stock as to dividends, and (ii) as used
in Section 6, shall mean any class or series of stock of the Company ranking
PART PASSU with the Series A Preferred Stock in the distribution of assets on
any liquidation, dissolution or winding up.
98
CERTIFICATE OF ACQUISITION
--------------------------
This Certificate of Acquisition is filed this 30th day of December,
1996 by OGE Energy Corp., pursuant to Okla. Stat. tit. 18, ss.ss.1090.1(C) and
1007.
1. OGE Energy Corp., an Oklahoma Corporation ("OGE Energy"), and
Oklahoma Gas and Electric Company, an Oklahoma corporation ("OG&E"), are parties
to an Agreement and Plan Of Share Acquisition dated December 23, 1996
("Agreement").
2. The Agreement has been adopted by the Boards of Directors of OGE
Energy and OG&E, approved by the shareowners of OGE Energy and OG&E, and
certified, executed, and acknowledged by OGE Energy Corp. and OG&E in accordance
with the provisions of Okla. Stat. tit. 18, ss.1090.1.
3. Pursuant to the Agreement, OGE Energy will acquire all of the issued
and outstanding common shares of OG&E in a share-for-share exchange of OGE
Energy common shares such that OG&E will become a subsidiary of OGE Energy.
4. There are no amendments or changes in the Certificate of
Incorporation that are to be effected by the Agreement.
5. The executed Agreement is on file at the principal place of business
of OGE Energy Corp. and OG&E which is located at the following address: 101
North Robinson Oklahoma City, Oklahoma 73101
6. Upon request, the Agreement will be furnished by OGE Energy Corp.
and OG&E to any of their shareowners without cost.
99
7. The Agreement and this Certificate Of Acquisition shall be effective
at 3:30 p.m. on December 31, 1996.
OGE ENERGY CORP.
By: /s/ Steven E. Moore
-----------------------
Steven E. Moore
Its:
------------------------
Chairman and Chief Executive Officer
ATTEST:
/s/ Irma B. Elliott
- ----------------------------
Irma B. Elliott
Secretary
100