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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
SENATE BILL 1362 By: Montgomery
AS INTRODUCED
An Act relating to corporations; amending 18 O.S.
2021, Sections 803, 809, 1006, 1 012, 1014, 1014.3,
1022, 1025, 1027, 1031, 1041, 1057, 1058, 1073,
1075.2, 1081, and 1090.5, which relate to
professional entities, formation of corporations,
registered agents, directors and officers, stocks,
shareholder voting rights, consent of shareholders,
electronic notice, mergers , and conversions;
modifying definition; prohibiting interest holding by
certain entities; stating effect of amendment of
certain provisions; modifying requirements for
certain consent; modifying procedures for adoption of
emergency bylaws; authori zing directors to take
certain action in emergency conditions; modifying
procedures for document signature and delivery;
deleting certain exception; clarifying applicability
of certain provisions; authorizing certain entities
to serve as registered agent; removing requirement
for certain certificate issued by the Secretary of
State; establishing procedures for certain consents;
authorizing indemnification of certain persons;
prohibiting certain rights for certain capital stock;
modifying procedures for proxy authori zation;
modifying requirements for fixing date for certain
determination; modifying certain delivery
requirements; clarifying certain consen t
requirements; modifying requirements for electronic
notice; defining ter ms; prohibiting electronic notice
under certain circumstances; clarifying applicability
of certain provisions; modifying requirements for
allowing merger without shareholder vot e; modifying
requirements for certificate of conv ersion; making
language gender neutral; clarifying language;
updating statutory reference ; and providing an
effective date.
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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 18 O.S. 2021, Section 803, is
amended to read as follows:
Section 803. A. As used in the Professional Ent ity Act, unless
the context clearly indicates that a different meaning is intended:
1. “Associated act” means the Oklahoma General Corporation Act,
in the case of a corporation; the Oklahoma Revis ed Uniform Limited
Partnership Act, in the case of a limite d partnership; or the
Oklahoma Limited Liability Company Act, in the case of a limited
liability company;
2. “Interest” means a share of stock in a corporation, a
partnership interest in a limited partnership or a membership
interest in a limited liabilit y company;
3. “Owner” means a shareholder in the case of a corporation, a
general or limited partner in the case of a limited partnership or a
member in the case of a limited liability company;
4. “Manager” means a director or o fficer in the case of a
corporation, a general partner in the case of a limited partnership
or a manager in the case of a limited liability company;
5. “Professional entity” means a domestic corporation, limited
partnership or limited liability company fo rmed for the purpose of
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rendering professional service or formed for the purpose of owning a
professional entity rendering p rofessional service;
6. “Professional service ” means the personal service rendered
by:
a. a physician, surgeon or doctor of medicin e pursuant to
a license under Sections 481 through 524 o f Title 59
of the Oklahoma Statutes, and any subsequent laws
regulating the practice of medici ne,
b. an osteopathic physician or surgeon pursuant to a
license under Sections 62 0 through 645 of Title 5 9 of
the Oklahoma Statutes , and any subsequent laws
regulating the practice of osteopathy,
c. a chiropractic physician pursuant to a license under
Sections 161.1 through 161.20 of Title 59 of the
Oklahoma Statutes, and any subsequen t laws regulating
the practice of chiropractic ,
d. a podiatric physician pursuan t to a license under
Sections 135.1 through 160.2 of Title 59 of the
Oklahoma Statutes, and an y subsequent laws regulating
the practice of podiatric medicine,
e. an optometrist pursuant to a license u nder Sections
581 through 606 of Title 59 of the Oklahom a Statutes,
and any subsequent laws regulating the practice of
optometry,
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f. a veterinarian pursuant to a license under Sections
698.1 through 698.30b of Title 59 of t he Oklahoma
Statutes, and any sub sequent laws regulating th e
practice of veterinary medic ine,
g. an architect pursuant to a license under Sections 46.1
through 46.41 of Title 59 of th e Oklahoma Statutes,
and any subsequent laws regulating the practice of
architecture,
h. an attorney pursuant to his or her authority to
practice law granted by the Supr eme Court of the State
of Oklahoma,
i. a dentist pursuant to a license under Sections 328.1
through 328.53 of Title 59 of the Oklahoma Statutes,
and any subsequent laws regulating the practice of
dentistry,
j. a certified public accountant or a public acco untant
pursuant to his or her authority to practice
accounting under Sections 15.1 through 15. 38 of Title
59 of the Oklahoma Statutes, and any subsequent laws
regulating the practice of public account ancy,
k. a psychologist pursuant to a license under Sect ions
1351 through 1376 of Title 59 of the Oklahoma
Statutes, and any subsequent laws regulatin g the
practice of psychology,
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l. a physical therapist pursuant to a license under
Sections 887.1 through 8 87.18 of Title 59 of the
Oklahoma Statutes, and any subs equent laws regulating
the practice of physical therapy,
m. a registered nurse pursuant to a l icense under
Sections 567.1 through 567.19 of Title 59 of the
Oklahoma Statutes, and any other subsequent laws
regulating the practice of nursing,
n. a professional engineer pursuant to a license under
Sections 475.1 through 475.22a of Title 59 of the
Oklahoma Statutes, and any subsequent laws relating to
the practice of engineering,
o. a land surveyor pursuan t to a license under Sections
475.1 through 475.22a of T itle 59 of the Oklahoma
Statutes, and any subsequent laws relating to the
practice of land sur veying,
p. an occupational therapist pursuant to Sections 888.1
through 888.15 of Title 59 of the Oklahoma Statutes
and any subsequent law regulating the practice of
occupational therapy,
q. a speech pathologist or speech therapist pursuant to
Sections 1601 through 1622 of Title 59 of the Oklahoma
Statutes, and any subse quent law regulating the
practice of speech pathology,
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r. an audiologist pursuant to Sections 16 01 through 1622
of Title 59 of the Oklahoma Statutes, and any
subsequent law regulating the pr actice of audiology,
s. a registered pharmacist pursuant to Sectio ns 353
through 366 of Title 59 of the Ok lahoma Statutes, and
any subsequent law regulating the p ractice of
pharmacy,
t. a licensed perfusionist pursuant to Sections 2051
through 2071 of Titl e 59 of the Oklahoma Statutes, and
any subsequent laws regulating the practice of
perfusionists,
u. a licensed professional counselor pursuant to Sections
1901 through 1920 of Title 59 of the Oklahoma
Statutes, and any subsequent law regulating the
practice of professional counseling,
v. a licensed marital and family the rapist pursuant to
Sections 1925.1 throu gh 1925.18 of Title 59 of the
Oklahoma Statutes, and any subsequent law regulating
the practice of marital and family therapy,
w. a dietitian licensed pursuant to Sections 1721 through
1739 of Title 59 of the Oklahom a Statutes and any
subsequent laws regul ating the practice of dietitians,
x. a social worker licensed pursuant to Sections 1250
through 1273 of Title 59 of the Oklahoma Statutes, and
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any subsequent laws regulating the practice of social
work,
y. a licensed alcohol and drug counselor pursuant to
Sections 1870 through 1885 of Title 59 of the Oklahoma
Statutes, and any subsequent laws regulating the
practice of alcohol and drug counseling,
z. a licensed behavioral practitioner pursuant to
Sections 1930 through 1949.1 of Title 59 of the
Oklahoma Statutes, and any subsequent laws regulating
the practice of behavioral health services, or
aa. a certified real estate appraiser licensed pursuant to
Sections 858-700 through 858-732 of Title 59 of the
Oklahoma Statutes or listed on the National Registry
of Appraisers by the Appraisal Subcommittee in
compliance with Title XI of the Financial Institutions
Reform, Recovery, and Enforcement Act (FIRREA) of
1989, and any subsequent laws regulating the practice
of real estate appraisal;
7. “Related professional se rvices” means those services which
are combined for prof essional entity purposes as follows:
a. any combination of the following professionals:
(1) a physician, surgeon or doctor of medicine
pursuant to a license und er Sections 481 through
524 of Title 59 of the Oklahoma Statutes, and any
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subsequent laws regula ting the practice of
medicine,
(2) an osteopathic physician or surgeon pursuant to a
license under Sections 620 through 645 of Title
59 of the Oklahoma Statutes , and any subsequent
laws relating to the practice of osteopathy,
(3) a dentist pursuant to a li cense under Sections
328.1 through 328.53 of Title 59 of the Oklahoma
Statutes, and any subseq uent laws regulating the
practice of dentistry,
(4) a chiropractic physician pursuant to a license
under Sections 161.1 through 161.20 of Title 59
of the Oklahoma Statutes, and any subsequent laws
regulating the practice of chiropractic ,
(5) a psychologist pursuant to a license under
Sections 1351 through 1376 o f Title 59 of the
Oklahoma Statutes, and any subs equent laws
regulating the practice of psychology,
(6) an optometrist pursuant to a license under
Sections 581 through 606 of Title 59 of the
Oklahoma Statutes, and any subsequent laws
regulating the practic e of optometry,
(7) a podiatric physician pursuan t to a license under
Sections 135.1 through 160.2 of Tit le 59 of the
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Oklahoma Statutes, and any subsequent laws
regulating the practice of podiatric m edicine,
(8) a dietitian licensed pursuant to Sections 17 21
through 1739 of Title 59 of the Oklahoma Statu tes
and subsequent laws regulating the practice of
dietitians, or
(9) an occupational therapist pursuant to Sections
888.1 through 888.15 of Title 59 of the Oklahoma
Statutes and any subsequent law regulatin g the
practice of occupational therapy, or
b. any combination of the following professions:
(1) an architect pursuant to a license under Sections
46.1 through 46.41 of Title 59 of the Oklahoma
Statutes, and any subsequent laws regulating the
practice of architecture,
(2) a professional engineer pursuant to a license
under Sections 475.1 through 475.22a of Tit le 59
of the Oklahoma Statutes, and any subsequent laws
relating to the practice of engineerin g, or
(3) a land surveyor pursuant to a license under
Sections 475.1 through 475.22a of Title 59 of the
Oklahoma Statutes, and any subsequent laws
relating to the practice of land surveying;
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8. “Regulating board” means the board which is charged with the
licensing and regulation of the practice of the professio n which the
professional entity is organized to r ender;
9. “Individual”, “incorporator” and “shareholder” each include
the trustee of an express trust created by a person duly licensed to
render a professional service who has the right to revoke the trust
and who is serving as the trustee of the trust. Any certificate
required by the Professional Entity Act to be issued to an
individual incorporator or shareholder may be issued to the grantor
on behalf of a trust. All references in the Professional Entit y Act
to death and incapacity of a shareholder sh all include the death and
incapacity of the grantor of a trust which own stock in a
professional corporation;
10. “Incapacity” of a shareholder means a determination by a
court of competent jurisdiction, or otherwise by two independent
licensed physicians, that the shareholder is fully incapacitated or
is partially incapacitated to the extent that the shareholder is not
capable of rendering the profess ional service for which the
professional corporation was organized; and
11. “Other personal representativ e” includes the successor
trustee of an express trust ow ning stock in a professional
corporation, which trust was created by a person duly licensed to
render the professional service for which the profession al
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corporation was organized who has the right to revoke the trust and
who is the original trustee of the trust.
B. The definitions of the applicable associated act shall apply
to the Professional E ntity Act, unless the context clearly indicates
that a different meaning is intended.
SECTION 2. AMENDATORY 18 O.S. 2021, Section 809, is
amended to read as follows:
Section 809. Except as provided in Section 81 5 of this title,
no person shall hold an interest in a profes sional entity including
a professional entity that owns a professional entity rend ering
professional service, who is not duly licensed in accordance with
the provisions of this state ’s licensing laws for the profession or
related profession to render the same professional services or
related professional services as those for which the entity is
organized.
SECTION 3. AMENDATORY 18 O.S. 2021, Section 1006, is
amended to read as follows:
Section 1006.
CERTIFICATE OF INCORPORATION; CONTENTS
A. The certificate of incorporation shall set forth:
1. The name of the c orporation which shall contain one of the
words “association”, “company”, “corporation”, “club”, “foundation”,
“fund”, “incorporated”, “institute”, “society”, “union”,
“syndicate”, or “limited” or abbreviations thereof, with or without
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punctuation, or word s or abbreviations thereof, with or withou t
punctuation, of like import of foreign countr ies or jurisdictions;
provided that such abbreviations are written in Roman charac ters or
letters, and which shall be such as to distinguish it upon the
records in the Office of the Secretary of State from:
a. names of other corporations, whether domestic or
foreign, then existing or which existed at any time
during the preceding three (3) years,
b. names of partnerships whether general or limited, or
domestic or foreign, then in good standing or
registered or which were in good standing or
registered at any time during the preceding three (3)
years,
c. names of limited liability compani es, whether domestic
or foreign, then in good standing or registered or
which were in good standing or registered at any time
during the preceding three (3) years,
d. trade names or fictitious names filed with the
Secretary of State, or
e. corporate, limited liability company or limited
partnership names reserved with the Secretary of
State;
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2. The address, including the street, number, city and postal
code, of the corporatio n’s registered office in this state, and the
name of the corporation ’s registered agent at such address;
3. The nature of the business or purposes to be conducted or
promoted. It shall be sufficient to state , either alone or with
other businesses or purp oses, that the purpose of the corporation is
to engage in any lawful act or activi ty for which corporations may
be organized under the general corporation law of Oklah oma, and by
such statement all lawful acts and activities shall be within the
purposes of the corporation, except for express limitations, if any;
4. If the corporation i s to be authorized to issue only one
class of stock, the total number of shares of st ock which the
corporation shall have autho rity to issue and the par value of each
of such shares, or a statement that all such shares are to be
without par value. If the corporation is to be authorized to issue
more than one class of stock, the certificat e of incorporation shall
set forth the total number of shares of all classes of stock whi ch
the corporation shall have authority to issue and the number of
shares of each class, and shall specify each class the shares of
which are to be without par value a nd each class the shares of which
are to have par value and the par value of the shares o f each such
class. The provisions of this paragraph shall not apply to
corporations which are not organized for profit and which are not to
have authority to issue ca pital stock. In the case of such
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corporations, the fact that they are not to have author ity to issue
capital stock shall be stated in the certificate of incorporation.
The provisions of this paragraph shall not apply to nonstock
corporations. In the cas e of nonstock corporations, the fact that
they are not authorized to issue capital stock shall be stated in
the certificate of incorporation. The conditions of membership , or
other criteria for identifying members, of nonstock corporations
shall likewise be stated in the certificate of incorporat ion or the
bylaws. Nonstock corporations shall have members, but the failure
to have members shall not affect otherwise valid co rporate acts or
work a forfeiture or dissolution of the corporation. Nonstock
corporations may provide for classes or groups o f members having
relative rights, powers and du ties, and may make provision for the
future creation of additional classes or grou ps of members having
such relative rights, powers and duties as may from time to time be
established, including rights, powers and duties senior to existing
classes and groups of members. Except as otherwise provided in the
Oklahoma General Corporation Ac t, nonstock corporations may also
provide that any member or class or group of member s shall have
full, limited, or no voting r ights or powers, including that any
member or class or group of members shall have the right to vote on
a specified transaction e ven if that member or class or group of
members does not have the right to vote for t he election of members
of the governing body of the corporation. Voting by members of a
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nonstock corporation may be on a per capita, number, financial
interest, class, group, or any other basis set forth. The
provisions referred to in the three preceding sentences may be set
forth in the certifi cate of incorporation or the bylaws. If neithe r
the certificate of incorporation nor the bylaws of a nonstock
corporation state the conditions of membership, or other criteria
for identifying members, the members of the corporation shall be
deemed to be those entitled to vote for the election of the m embers
of the governing body pursuant to the certificate of incorporation
or bylaws of such corporation or otherwise until thereafter
otherwise provided by the certifi cate of incorporation or the
bylaws;
5. The name and mailing address of the incorporator or
incorporators;
6. If the powers of the incorporator or incorporators are to
terminate upon the filing of the certificate of incorporation, the
names and mailing addresses of the persons who are to serve a s
directors until the first annual meeting of s hareholders or until
their successors are elected and qualify;
7. If the corporation is not for profit:
a. that the corporation does not afford pecuniary gain,
incidentally or otherwise, to its members as suc h,
b. the name and mailing address of each memb er of the
governing body,
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c. the number of members of the governing body to be
elected at the first meeting, and
d. in the event the corporation is a church, the stree t
address of the location of the church.
The restriction on affording pecuniary gain to m embers shall not
prevent a not-for-profit corporation operating as a cooperative f rom
rebating excess revenues to patrons who may also be members; and
8. If the corporation is a charitable nonstock and does n ot
otherwise provide in its certificate of inco rporation:
a. that the corporation is organized exclusively for
charitable, religious, educational, and scientific
purposes including, for such purposes, the making of
distributions to organizations that quali fy as exempt
organizations under section 501(c) (3) of the Internal
Revenue Code, or the corresponding section of any
future federal tax code,
b. that upon the dissolution of the corporation, its
assets shall be distributed for one or more exempt
purposes within the meaning of section 501(c)(3) of
the Internal Revenue Code, or the corresponding
section of any future federal tax code, for a public
purpose, and
c. that the corporation complies with the requirements in
paragraph 7 of this subsection.
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B. In addition to the matters required to be set forth i n the
certificate of incorporation pursuant to the provisions of
subsection A of this section, the certificate of incorporation may
also contain any or all of the foll owing matters:
1. Any provision for the m anagement of the business and for the
conduct of the affairs of the corporation, and any provision
creating, defining, limiting a nd regulating the powers of the
corporation, the directors, and the shareholders, or any class of
the shareholders, or the gove rning body, the members, or any class
or group of the members of a nonstock corporation, if such
provisions are not contrary to t he laws of this state. Any
provision which is required or permitted by any provision of the
Oklahoma General Corporation Act t o be stated in the bylaws may
instead be stated in the certificate of incorporation;
2. The following provisions, in substantial ly the following
form:
a. for a corporation, other than a nonstock corporation:
“Whenever a compromise or arrangement is propos ed
between this corporation and its creditors o r any
class of them and/or between this corporation and its
shareholders or any cl ass of them, any court of
equitable jurisdiction within the State of Oklahoma
this state, on the application in a summary way of
this corporation or of any creditor or shareholder
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thereof or on the application of any receiver or
receivers appointed for this corporati on under the
provisions of Section 1106 of this title or on the
application of trustees in dissolution or of any
receiver or receivers appointed for this corporation
under the provisions of Section 1100 of this title,
may order a meeting of the creditors o r class of
creditors, and/or of the shareholders or class of
shareholders of this corporation, as the case may be,
to be summoned in such manner as the court directs.
If a majority in number representing three-fourths
(3/4) in value of the creditors or cl ass of creditors,
and/or of the shareholders or class of shareholders of
this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganizatio n of
this corporation as a consequence of such compromise
or arrangement, the comp romise or arrangement and the
reorganization, if sanctioned by the court t o which
the application has been made, shall be bindi ng on all
the creditors or class of creditors, and/or on all the
shareholders or class of shareholders, of this
corporation, as the case may be, and also on this
corporation”, and
b. for a nonstock corpo ration:
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“Whenever a compromise or arrangement is prop osed
between this corporation and its creditors or any
class of them and/or between this corporation and its
members or any class of them, any court of equitable
jurisdiction within the State of Oklahoma this state
may, on the application in a summary way of this
corporation or of any creditor or member thereof o r on
the application of any receiver or receivers appointed
for this corporation under the provisions of Section
1106 of this title or on the app lication of trustees
in dissolution or of any receiver or receiv ers
appointed for this corporation under the pr ovisions of
Section 1100 of this title, order a meeting of the
creditors or class of creditors, and/or of the members
or class of members of this corporation, as the case
may be, to be summoned in such manner as the court
directs. If a majority in number representing three-
fourths (3/4) in value of the creditors or class of
creditors, and/or of the members or class of members
of this corporation, as the case may be, agree to any
compromise or arrangement and t o any reorganization of
this corporation as a c onsequence of such compromise
or arrangement, the compromise or arrangement a nd the
reorganization, if sanctioned by the court to which
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the application has been made, shall be binding on all
the creditors or class of creditors, and/or on all the
members or class of members, of this corporation, as
the case may be, and also on this corporation”;
3. Such provisions as may be desired granting to the holders of
the stock of the corporation, or the holders of any c lass or series
of a class thereof, the preempti ve right to subscribe to any or all
additional issues of stock of the corpora tion of any or all classes
or series thereof, or to any securities o f the corporation
convertible into such stock. No shareholder s hall have any
preemptive right to subscribe to an additional issue of stock or to
any security convertible into such stock u nless, and except to the
extent that, such right is expressly grante d to him in the
certificate of incorporation. Preemptive rights , if granted, shall
not extend to fractional sh ares;
4. Provisions requiring, for any corporate action, the vote of
a larger portion of the stock or of any class or series thereof, or
of any other securities having voting power, or a larger number of
the directors, than is required by the provisions o f the Oklahoma
General Corporation Act;
5. A provision limiting the duration of the corporation’s
existence to a specified date; otherwise, the corporation shall have
perpetual existence;
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6. A provision impo sing personal liability for the debts of the
corporation on its shareholders to a specified extent and upon
specified conditions; otherwise, the shareholders of a corporation
shall not be personally liable for the payment of the corporation ’s
debts, except as they may be liable by reason of their own c onduct
or acts;
7. A provision eliminating or limiting the personal liabilit y
of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, provided tha t
such provision shall not eliminate or limit t he liability of a
director:
a. for any breach of the director ’s duty of loyalty to
the corporation or its shareholders,
b. for acts or omissions not in good faith or which
involve intentional misconduct or a k nowing violation
of law,
c. under Section 1053 of this title, or
d. for any transaction from which the director derived an
improper personal benefit.
No such provision shall eliminate or limit the liability of a
director for any act or omission occurring b efore the date when such
provision becomes effe ctive. An amendment, repeal, or elimination
of such a provision shall not af fect its application with respect to
an act or omission by a directo r occurring before the amendment,
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repeal, or elimination unless the provision provides otherwise at
the time of the act or omission. All references in this paragraph
to a director shall also be deemed to refer to such other person or
persons, if any, who, pursuant to a provision of the certificate of
incorporation in accordance with subsection A of Section 1027 of
this title, exercise or perform any of the powers or duties
otherwise conferred or imposed upon the board of director s pursuant
to this title.
C. It shall not be necessary to set forth in the certificate of
incorporation any of the powers conferred on corporations by the
provisions of the Oklahoma General Corporation Act.
D. Except for provisions included under paragraphs 1, 2, 5, 6
and 7 of subsection A of this section and paragraphs 2, 5 and 7 of
subsection B of this section, and provisions included under
paragraph 4 of subsection A of this section specifying the classes,
number of shares and par value of shares a corporation other than a
nonstock corporation is authorized to issue, any provision of the
certificate of incorporation may be made dependent upon facts
ascertainable outside the instrument, provided that the manner in
which the facts shall operate upon the provision is clearly and
explicitly set forth therein. As used in this subsection, the term
“facts” includes, but is not limited to, the occurrence of any
event, including a determination or action by any person or body,
including the corporation.
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SECTION 4. AMENDATORY 18 O.S. 2021, Section 1012, is
amended to read as f ollows:
Section 1012.
ORGANIZATION MEETING OF INCORPORATORS OR DIRECTORS NAMED IN
CERTIFICATE OF INCORP ORATION
A. After the filing of the certificate of incorporat ion, an
organization meeting of the incorporator or incorpora tors, or of the
board of directors if the initial directors were named in the
certificate of incorporation, shall be held either withi n or without
this state at the call of a majority of the inco rporators or
directors, as the case may be, for the purposes of adopting bylaws,
electing directors if the meeting is of the incorporators, to serve
or hold office until the first annual meeting of shareholders or
until their successors are elected and qua lify, electing officers if
the meeting is of the directors, d oing any other or further acts to
perfect the organization of the corporation, and transacting such
other business as may come before the meeting.
B. The persons calling the meeting shall give t o each other
incorporator or director, as the case may be, at least two (2) days’
notice thereof in writing or by electronic transmission by any usual
means of communication, which notice shall s tate the time, place and
purposes of the meeting as fixed by the persons calling it. Notice
of the meeting need not be gi ven to anyone who attends the m eeting
or who signs a waiver of notice either before or after the meeting.
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C. Any Unless otherwise res tricted by the certi ficate of
incorporation, any action permitted to be taken at the org anization
meeting of the incorporators or directors, a s the case may be, may
be taken without a meeting if each incorporator or director, where
there is more than one, or the sole incorpor ator or director where
there is only one, consents thereto in writin g or by electronic
transmission. A consent may be documented, s igned, and delivered in
any manner permitted by Section 1014.3 of this title . Any person
whether or not then an incorporator or director may provide, whether
through instruction to an agent o r otherwise, that a consent to
action will be effective at a fut ure time including a time
determined upon the happening of an event, no later than sixty (60)
days after such instruction is given or such provision is made and
such consent shall be deemed to have been given for purposes of this
subsection at such effecti ve time so long as such person is then an
incorporator or director, as the case may be, and did not revoke the
consent prior to such time. Any such consent shall be revocable
prior to its becoming effective.
D. If any incorporator is not available to act , then any person
for whom or on whose behalf the incorporator was acting directly or
indirectly as employee or agent may ta ke any action that such
incorporator would have been authorized to t ake under this section
or Section 1011 of this title; provided, that any instrument signed
by such other person, or any record of the proceedings of a meeting
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in which such person particip ated, shall state that such
incorporator is not available and the re ason therefor, that such
incorporator was acting directly or ind irectly as employee or agent
for or on behalf of such person, and that such person ’s signature on
such instrument or partici pation in such meeting is otherwise
authorized and not wrongful.
SECTION 5. AMENDATORY 18 O.S. 2021 , Section 1014, is
amended to read as follows:
Section 1014.
EMERGENCY BYLAWS AND OTHER POWERS IN EMERGENCY
A. The board of direct ors of any corporation may adopt
emergency bylaws, subject to repeal or change by action of the
shareholders, which, notwithstanding any different provision in the
Oklahoma General Corpo ration Act, in the certificate of
incorporation, or bylaws, shall be o perative during any emergency
resulting from an attack on the United States or on a locality in
which the corporation conduct s its business or customarily holds
meetings of its board of directors or its shareholders, or during
any nuclear or atomic disaste r, or during the existence of any
catastrophe, including but not lim ited to an epidemic or pandemic,
and a declaration of a n ational emergency by the government of the
United States, or other similar emergency condition, as a result of
which irrespective of whether a quorum of the board of directors or
a standing committee thereof cannot can readily be convened for
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action. The emergency bylaws contemplated by this section may be
adopted by the board of d irectors or, if a quorum cannot be readily
convened for a meeting, by a majority of the director s present. The
emergency bylaws may make any provision that may be practical and
necessary for the circumstances of the emergency , including
provisions that:
1. A meeting of the board of directors or a committee thereof
may be called by an officer or director in such manner and under
such conditions as shall be prescribed in the emergency by laws;
2. The director or directors in attendance at the meeting, or
any greater number fix ed by the emergency bylaws, shall constitute a
quorum; and
3. The officers or other persons designat ed on a list approved
by the board of directors before the emerg ency, all in such order of
priority and subject to such conditions and for such period of t ime,
not longer than reasonably n ecessary after the termination of the
emergency, as may be provided in the emergency bylaws or in the
resolution approving the list, shall, to the extent required to
provide a quorum at any meeting of the board of directors , be deemed
directors for such me eting.
B. The board of directors, either before or during any such
emergency, may provide, and from time to time modify, lines of
succession in the event that during such emergency any or all
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officers or agents of the corp oration shall for any reason be
rendered incapable of discharging their duties.
C. The board of dire ctors, either before or during any such
emergency, may, effectiv e in the emergency, change the head office
or designate several alternative head offices or regional offices,
or authorize the officers to do so.
D. No officer, director or employee acting in accordance with
any emergency bylaws shall be liable except for willful misconduct.
E. To the extent not inconsistent with any emergency bylaws so
adopted, the bylaws of the corporation shall remain in effect during
any emergency and upon its termination the emergency bylaws shall
cease to be operative.
F. Unless otherwise provided in emergency bylaws, notice of any
meeting of the board of directors durin g such an emergency may be
given only to such of the directors as it may be feasible to reach
at the time and by such means as may be feasible at the time ,
including publication or radio.
G. To the extent required to constitute a quorum at any meeting
of the board of directors during suc h an emergency, the officers of
the corporation who are present shal l, unless otherwise provided in
emergency bylaws, be deemed, in order of rank and within the same
rank in order of seniority, directors for such meeting.
H. Nothing contained in this sect ion shall be deemed exclusive
of any other provisions for emergency powers consistent with other
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sections of this act which have bee n or may be adopted by
corporations created pursuant to the provisions of this act.
I. During any emergency condition of a type described in
subsection A of this section, the board of directo rs or, if a quorum
cannot be readily convened for a meeting, a m ajority of the
directors present, may:
1. Take any action that it determines to be practical an d
necessary to address the c ircumstances of the emergency condition
with respect to a meeting of shareholders of the corporation
notwithstanding anything to the contrary in this title or in the
certificate of incorporation or bylaws including, but not lim ited
to:
a. to postpone any such meeting to a later time or date
with the record date for determi ning the shareholders
entitled to notice of, and to vote at, suc h meeting
applying to the postponed meeting irrespective of
Section 1058 of this title, and
b. with respect to a corporation subject to the reporting
requirements of Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, to
notify shareholders of any postponement or a change of
the place of the meeting or a change to hold the
meeting solely by means of remote comm unication solely
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by a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to
Sections 13, 14, or 15(d) of such Act and such rules
and regulations; and
2. With respect to any dividend that has been declared as to
which the record date has not occurred, change each of the recor d
date and payment date to a later date or dates if the payment date
as so changed is not more than 60 days after the recor d date as so
changed; provided that, in either case, the corporation gives notice
of the change to shareholders as promptly as practi cable thereafter
and in any event before the record date theretofore in eff ect, which
notice, in the case of a corporation subject to the reporting
requirements of Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and the r ules and regulations
promulgated thereunder, may be given solely by a docum ent publicly
filed with the Securities and Excha nge Commission pursuant to
Section 13, Section 14, or Section 15(d) of the Securities Exchange
Act of 1934, as amended, and the rules and regulations. No person
shall be liable, and no meeting of shareholders shall be postponed
or voided, for the failure to make a share list available pursuant
to Section 1064 of this title if it was not practicable to allow
inspection during any emergen cy condition.
SECTION 6. AMENDATORY 18 O.S. 2021, Section 1014.3, is
amended to read as follows:
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Section 1014.3.
DOCUMENT FORM, SIGNATURE AND DELIVERY
A. Except as provided in subsection B of this section, with out
limiting the manner in which any act or transaction may b e
documented, or the manner in which a docum ent may be signed or
delivered:
1. Any act or transaction contemplated or governed by this
title or the certificate of incorporation or bylaws may be provided
for in a document, and an electronic transmission sh all be deemed
the equivalent of a written do cument. “Document” means (i) any
tangible medium on which information is inscribed, and includes
handwritten, typed, printed or similar instruments, a nd copies of
such instruments and (ii) an electronic transmis sion;
2. Whenever this act Section 1001 et seq. of thi s title or the
certificate of incorporation or bylaws requires or permits a
signature, the signature may be a manual, facsimile, conformed or
electronic signature. “Electronic signature” means an electronic
symbol or process that is at tached to, or logically associated with,
a document and executed or adopted by a person with an intent to
authenticate or adopt the document . A person may execute a docume nt
with that person’s signature; and
3. Unless otherwise agreed between the sender and recipient and
in the case of proxies or c onsents given by or on behalf of a
shareholder, subject to the addit ional requirements set forth in
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paragraph 2 and 3 of subsection C of Section 1057 and paragraph 1 of
subsection C of Section 1073, respectively, of this title, an
electronic transmission s hall be deemed delivered to a person for
purposes of this title and the certificate of in corporation and
bylaws when it enters an information processi ng system that the
person has designated for the purpose of r eceiving electronic
transmissions of the type delivered, so long as the electronic
transmission is in a form capable of being processe d by that system
and such person is able to retrieve the elec tronic transmission.
Whether a person has so designated an i nformation processing system
is determined by the certificate of incorporation, the bylaws or
from the context and surrounding circums tances including the
parties’ conduct. An electronic transmi ssion is delivered under
this section even if no person is aw are of its receipt. Receipt of
an electronic acknowledgement from an information processing system
establishes that an electronic tra nsmission was received but, by
itself, does not establish tha t the content sent corresponds to the
content received.
This act Section 1001 et seq. of this title shall not prohibit
one or more persons from conducting a transaction in ac cordance with
the Uniform Electronic Transaction Act so long as the part or parts
of the transaction that are governe d by this act Section 1001 et
seq. of this title are documented, signed and delivered in
accordance with this subsection or otherwise in ac cordance with this
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act Section 1001 et seq. of this title. This subsection shall apply
solely for purposes of determining whe ther an act or transaction has
been documented, and the docum ent has been signed and delivered, in
accordance with this act Section 1001 et seq. of this title , the
certificate of incorporation and the bylaws.
B. Subsection A of this section shall not apply to:
1. A document filed with or submitted to the Secretary of State
or a court or other judicial or governmental body of this state;
2. A document compri sing part of the stock ledger;
3. A certificate representing a security;
4. Any document expressly referenc ed as a notice or waiver of
notice by this act Section 1001 et seq. of this title, the
certificate of incorporation or b ylaws;
5. A consent in lieu of a meeting given by a director,
shareholder or incorporator;
6. A ballot to vote on actions at a meeting of shareholders;
and
7. 6. An act or transaction effected pursuant to Section
1100.1 of Title 18 of the Oklahoma Stat utes.
The provisions of this subsection shall not create any
presumption about the lawful means to document a matter addressed by
this subsection, or the lawful means to sign or deliver a document
addressed by this subsection. A No provision of the certif icate of
incorporation or bylaws shall not limit the application of
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subsection A of this section unless the except for a provision that
expressly restricts one or more of the means of docu menting an act
or transaction, or of signing or delivering a documen t, permitted by
subsection A of this section or prohibits the use of an electronic
transmission or electronic signature, or any form thereof, or
expressly restricts or prohibits the delive ry of an electronic
transmission to an information processing system.
C. In the event that any provision of this act Section 1001 et
seq. of this title is deemed to modify, limit or supersede the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C.
Sections 7001 et seq., the provisions of this act Section 1001 et
seq. of this title shall control to the fullest extent permitte d by
Section 7002(a)(2) of such act.
SECTION 7. AMENDATORY 18 O.S. 2021, Section 1022, is
amended to read as follows:
Section 1022.
REGISTERED AGENT IN STATE; RESIDENT AGENT
A. Every domestic corporation shall have and maintain in this
state a registered agent, which agent may be any of the following:
1. The domestic corporation itself;
2. An individual resident of this state;
3. A domestic corporation, a domestic partnership whe ther
general or limited and including a limited liability partnershi p or
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a limited liability limited partnership or a domestic limited
liability company; or
4. A foreign corporation, a foreign partnership whether general
or limited and including a limited liability partnership , foreign
limited partnership, or a foreign limited liability limited
partnership or a foreign limited liability company, if auth orized to
transact business in this state.
B. Every foreign corporation transactin g business in this sta te
shall have and maintain the Secretary of State as its registered
agent in this state. In addition, such foreign corporation may have
and maintain in this state an additional registered agent, which may
be an individual or entity s et forth in subsection A of this
section; provided, that the foreign corporation may not b e its own
registered agent. If such additional registered agent is
designated, service of process shall be on such agent and not on the
Secretary of State.
C. Each registered agent for a domestic corporation or foreign
corporation shall:
1. If an entity, maintain a business office identical with the
registered office which is open dur ing regular business hours, or if
an individual, be generally present at the regist ered office to
accept service of process and otherwise perform the functions of a
registered agent;
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2. If a foreign entity, be authorized to transact business in
this state; and
3. Accept service of process and other communications directed
to the corporations for which it se rves as registered agent and
forward same to the corporation to whic h the service or
communication is directed.
D. Every corporation formed under the laws of this state or
qualified to do business in this state shall provide to its
registered agent, and u pdate from time to time as necessary, the
name, business address and business telephone number of a natural
person who is an officer, director, employe e or designated agent of
the corporation, who is then authorized to receive communi cations
from the registered agent. Such person shall be deemed the
communications contact for the corporation. Every registered agent
shall retain, in paper or electronic form, the information required
by this subsection concerning the current communicat ions contact for
each corporation for which he, she or it serves as a registered
agent. If the corporation fails to provide the registered agent
with a current communicatio ns contact, the registered agent may
resign as the registered agent for such corpor ation pursuant to
Section 1026 of this title.
E. Whenever the term “resident agent” or “resident agent in
charge of a corporation ’s principal office or place of business in
this state”, or other term of like import which refers to a
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corporation’s agent required by statute to b e located in this state,
is or has been used in a corporation ’s certificate of incorporation,
or in any other document, or in any statute, it shall be deemed to
mean and refer to, unless the context indicates otherwise, the
corporation’s registered agent r equired by this section. It shall
not be necessary for any corporat ion to amend its certificate of
incorporation or any other document to comply with the provisions of
this section.
SECTION 8. AMENDATORY 18 O.S. 2021, Section 1025, is
amended to read as follows:
Section 1025.
RESIGNATION OF REGIS TERED AGENT COUPLED
WITH APPOINTMENT OF SUCCESSOR
The registered agent of one or more corporations may resign and
appoint a successor registered agent by filing in the name of each
affected corporation a certificate with the Secretary of State
stating the name and address of the successor agent, in accordance
with the provisions of paragraph 2 of subse ction A of Section 1006
of this title. There shall be attached to the certificate a
statement of the affected corporation ratifying and approving such
change of registered agent. The statement shall be executed a nd
acknowledged in accordance with the pro visions of Section 1007 of
this title. Upon the filing , the successor registered agent becomes
the registered agent of each corporation that has ratified and
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approved each substitution and the successor registered agent’s
address, as stated in each certif icate, becomes the address of each
such corporation’s registered office in this state. The Secretary
of State shall then issue his or her certificate that th e successor
registered agent has become the registered a gent of the corporations
so ratifying and approving the change, and setting out the names of
such corporations.
SECTION 9. AMENDATORY 18 O.S. 2021, Section 1027, is
amended to read as follows:
Section 1027.
BOARD OF DIRECTORS; POWERS; NUMBER; QUALIFICATIONS; TERMS
AND QUORUM; COMMITTEES; CLASSES OF DIRECTORS; NONSTOCK CORPORATIONS;
RELIANCE UPON BOOKS; ACTION WITHOUT MEETING; ETC.
A. The business and affairs of every corporat ion organized in
accordance with the provisions of the Oklahoma General Corporation
Act shall be managed by or under the direction of a board of
directors, except as may be otherwise provided for in the Oklahoma
General Corporation Act or in the corporatio n’s certificate of
incorporation. If any provis ion is made in the certificate of
incorporation, the powers and duties conferred or imposed upon the
board of directors by the provisions of the Oklahoma General
Corporation Act shall be exercised or performe d to the extent and by
the person or persons sta ted in the certificate of incorporation.
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B. The board of directors of a corporation shall consist of one
or more members, each of whom shall be a natural person. The number
of directors shall be fixed by or in the manner provided for in the
bylaws, unless the certificate of incorporation fixes th e number of
directors, in which case a change in the number of directors sh all
be made only by amendment of the certificate. Directors need not be
shareholders unless so required by the certificate of incorporati on
or the bylaws. The certificate of incor poration or bylaws may
prescribe other qualifications for directors. Each director shall
hold office until a successor is elected and qualified or until his
or her earlier resignation or removal. Any director ma y resign at
any time upon notice given in w riting or by electronic transmission
to the corporation. A resignation is effective when the resignation
is delivered unless the resignation specifies a later effec tive date
or an effective date determined upon t he happening of an event or
events. A resignation that is conditioned upon the director failing
to receive a specifie d vote for reelection as a director may provide
that it is irrevocable. A majority of the total number of directors
shall constitute a qu orum for the transaction of business unless the
certificate of incorporation or the bylaws require a greater number.
Unless the certificate of incorporation provides otherwise, the
bylaws may provide that a number less than a majority shall
constitute a quorum which in no case shall be less than one-third
(1/3) of the total number of directors. The vote of the majority of
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the directors present at a meeting at which a quorum is present
shall be the act of the board of directors unless the certificate of
incorporation or the bylaws shall require a v ote of a greater
number.
C. 1. The board of directors may designate one o r more
committees consisting of one or more of the directors of the
corporation. The boar d may designate one or more directors as
alternate members of any committee, who may replac e any absent or
disqualified member at any meeting of the committee. The b ylaws may
provide that in the absence or disqualification of a member of a
committee, the member or members present at a meeting and not
disqualified from voting, whether or not the member or members
constitute a quorum, may unanimously appoint another mem ber of the
board of directors to act at the meeting in the place of any absent
or disqualified member. Any committee, to the extent provi ded in
the resolution of the board of direc tors, or in the bylaws of the
corporation, shall have and may exercise all the powers and
authority of the board of directors in the management of the
business and affairs of the corporation, and may authorize the seal
of the corporation to be affixed to a ll papers which may require it;
but no committee shall have the power or au thority to:
a. approve, adopt, or recommend to the shareholders any
action or matter, othe r than the election or removal
of directors, expressly required by the Oklahoma
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General Corporation Act to be submitted to
shareholders for approval, or
b. adopt, amend, or repeal any bylaw of the corporation.
2. Unless otherwise provided in the certifica te of
incorporation, the bylaws or the resolutio n of the board of
directors designating the committee, a committee may create one or
more subcommittees, each subcommi ttee to consist of one or more
members of the committee, and delegate to a subcommittee an y or all
of the powers and authority of the comm ittee. Except for references
to committees and members of committees in subsection C of this
section, every reference in this title to a committee of the board
of directors or a member of a committee shall b e deemed to include a
reference to a subcommitte e or member of a subcommittee.
3. A majority of the directors then serving on a committee of
the board of directors o r on a subcommittee of a committee shall
constitute a quorum for the transaction of busine ss by the committee
or subcommittee, unless the certificate of incorporation, the
bylaws, a resolution of the board of directors or a resolution of a
committee that created the subcommittee requires a greater or lesser
number; provided that in no case shal l a quorum be less than one -
third (1/3) of the d irectors then serving on the committee or
subcommittee. The vote of the majority of the members of a
committee or subcommittee present at a meeting at which a quorum is
present shall be the act of the commit tee or subcommittee, unless
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the certificate of i ncorporation, the bylaws, a resolution of t he
board of directors or a resolution of a committee that created the
subcommittee requires a greater number.
D. The directors of any corporation organized under th e
Oklahoma General Corporation Act, by the certi ficate of
incorporation or by an initial by law, or by a bylaw adopted by a
vote of the shareholders, may be divided in to one, two, or three
classes; the term of office of those of the first class to expire at
the first annual meeting held after the classif ication becomes
effective; of the second cl ass one (1) year thereafter; of the third
class two (2) years thereafter; a nd at each annual election held
after the classification becomes effective, directors shal l be
chosen for a full term, as the case may be, to succeed those whose
terms expire. The certificate of incorporation or bylaw provision
dividing the directors into classes may authorize the board of
directors to assign members of the board then in offic e to such
classes when the classification become s effective. The certificate
of incorporation may confer upon holders of any class or series of
stock the right to el ect one or more directors who shall serve for
the term, and have voting powers as shall be stated in the
certificate of incorporation. Th e terms of office and voting powers
of the directors elected in the manner so provided in the
certificate of incorpora tion may be greater than or less than those
of any other director or class of directors. In addition, the
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certificate of incorporation ma y confer upon one or more directors,
whether or not elected separately by the holders of any class or
series of stock, voting powers greater than or less than those of
other directors. Any such provision con ferring greater or lesser
voting power shall app ly to voting in any committee, unless
otherwise provided in the certificate of incorporation or bylaws.
If the certificate of incorporation provides that directors elected
by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in the
Oklahoma General Corporation Act to a majority or other proportion
of directors shall refer to a majority or other proportion of the
votes of the directors.
E. A member of the board of directors, or a mem ber of any
committee designated by the boar d of directors, in the performance
of the member’s duties, shall be fully p rotected in relying in good
faith upon the records of the corporation and upon information ,
opinions, reports, or statements presented to the corporation by any
of the corporation’s officers or employees, or committees of the
board of directors, or by any other person as to matters the member
reasonably believes are within the officer ’s, employee’s,
committee’s or other person’s competence and who have been selected
with reasonable care by or on behalf of the corporation.
F. Unless otherwise restricted by the certificate of
incorporation or bylaws:
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1. Any action required or permitted to be tak en at any meeting
of the board of directors, or of any committee thereof may be taken
without a meeting if all members of the board or committee, as the
case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or e lectronic transmission
or transmissions are file d with the minutes of proceedings of the
board or committee; and the filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form; and any a consent
may be documented, signed, and delivered in any manner permitte d by
Section 1014.3 of this title. Any person whether or not then a
director may provide, whether through instruction to an agent or
otherwise, that a consen t to action will be effective at a future
time (including a time determined upon the happening of an event),
no later than sixty (60) days after such instruction is g iven or
such provision is made and suc h consent shall be deemed to have been
given for purposes of this subsection at such effective time so long
as such person is then a director and did not revoke the consent
prior to such time; and any such consent shal l be revocable prior to
its becoming effective. After an action is tak en, the consent or
consents relating thereto shall be filed with th e minutes of the
proceedings of the board of directors, or the committee thereof, in
the same paper or electronic form as the minutes are maintained ;
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2. The board of directors of any corporation organized in
accordance with the provisions of the Oklahoma General Corporation
Act may hold its meetings, an d have an office or offices, outside of
this state;
3. The board of directors shall have t he authority to fix the
compensation of directors; and
4. Members of the board of directors of any corporation, or any
committee designated by the board, may partic ipate in a meeting of
the board or committee by means of conference t elephone or other
communications equipment by means of which all persons participating
in the meeting can hear or otherwise communicate wi th each other.
Participation in a meeting pursua nt to the provisions of this
subsection shall constitute presence in person at the meeting.
G. 1. The certificate of incorporation or bylaws of any
nonstock corporation may provide that less than one -third (1/3) of
the members of the governing body may c onstitute a quorum thereof
and may otherwise provide that the busines s and affairs of the
corporation shall be managed in a manner different from that
provided for in this section, which differences may incl ude
additional classes of directors, longer terms of service, the use of
less than unanimous consents for board action , and permitting the
Chair of the Board of Directors to designate committees and appoint
members.
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2. Except as may be otherwise provided by the certificate of
incorporation, the provisio ns of this section shall apply to such a
corporation, and when so app lied, all references t o the board of
directors, to members thereof, and to shareholders sh all be deemed
to refer to the governing body of the corporation, the members
thereof and the memb ers of the corporation, respectively; and all
references to stock, ca pital stock, or shares shall be deemed to
refer to memberships of a nonprofit nonstock cor poration and to
membership interests of any othe r nonstock corporation.
H. 1. Any director or t he entire board of directors may be
removed, with or without cause, b y the holders of a maj ority of the
shares then entitled to vote at an election of director s, except as
follows:
a. unless the certificate of incorporation otherwise
provides, in the case of a corporation whose board is
classified as provided for in subsect ion D of this
section, shareholders may effect such removal only for
cause, or
b. in the case of a corporation having cumulative voting,
if less than the entire board is to be removed, no
director may be removed without cause if the votes
cast against the director’s removal would be
sufficient to elect the director if then cumulatively
voted at an election of the entire board of directors,
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or, if there are classes of directors, at an elect ion
of the class of directors of which the director is a
part.
2. Whenever the holders of any class or series are entitled to
elect one or more directors by t he provisions of the certificate of
incorporation, the provisions of this subsection shall apply, in
respect to the removal without cause of a director or directors s o
elected, to the vote of the holders of the outstanding shares of
that class or series an d not to the vote of the outstanding shares
as a whole.
SECTION 10. AMENDATORY 18 O.S. 2021, Section 1031, is
amended to read as fo llows:
Section 1031.
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE
A. A corporation shall have power to indemnify any person who
was or is a party or is threate ned to be made a party to any
threatened, pending, or completed action, suit, o r proceeding,
whether civil, criminal, administrative, or investigative, other
than an action by or in the right of the corporatio n, by reason of
the fact that the person is or was a director, officer, employee, or
agent of the corporation, or is or was se rving at the request of the
corporation as a director, officer, employee, or agent of anot her
corporation, partnership, joint vent ure, trust, or other enterprise,
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against expenses, including attorney fees, judgments, fines, and
amounts paid in settlement a ctually and reasonably incurred by the
person in connection with the action, suit, or proc eeding if the
person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with re spect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful. The
termination of any a ction, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best inter ests of
the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the conduct was
unlawful.
B. A corporation shall h ave the power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the r ight
of the corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, em ployee, or
agent of the corporation, or is or w as serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise
against expenses, including attorney fees, actually and reasonably
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incurred by the person in connection with the defense or settlement
of an action or suit if the perso n acted in good faith and in a
manner the person reasonably believed to be in or not oppos ed to the
best interests of the corporat ion and except that no indemnification
shall be made in respect of any claim, issue, or matter as to which
the person shall have been adjudged to be liable to the corporation
unless and only to the extent that the co urt in which the action or
suit was brought shall determine upon application that, desp ite the
adjudication of liability but in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity
for expenses which the cour t shall deem proper.
C. 1. To the extent that a present or former director or
officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to
in subsection A or B of this section, or in de fense of any claim,
issue, or matter the rein, the person shall be indemnified against
expenses, including attorney fees, actually and reasonably incurred
by the person in connection therewith.
2. The corporation may indemnify any other person who is not a
present or former dir ector or officer of the corporation against
expenses including attorney fees , actually and reasonably incurred
by such person to the extent he o r she has been successful on the
merits or otherwise in defense of any action , suit, or proceeding
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referred to in subsections A a nd B of this section, or in defense of
any claim, issue, or matter therein.
D. Any indemnification under the provisions of sub section A or
B of this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific ca se upon a
determination that indemnification of the present or former director
or officer is proper in the circumstances becaus e the person has met
the applicable standard of conduct set forth in subsection A or B of
this section. This determination shall be made, with respect to a
person who is a director or off icer of the corporation at the time
of the determination:
1. By a majority vote of the directors who are not parties to
the action, suit, or proceeding, even though less than a quorum;
2. By a committee of directors designated by a majority vote of
directors, even though less than a quorum;
3. If there are no such direc tors, or if such directors so
direct, by independent legal counsel in a written opinion; o r
4. By the shareholders.
E. Expenses including attorney fees incurred by an officer or
director in defending a civil, criminal, administrative or
investigative action, suit, or proceeding may be paid by the
corporation in advance of the final dispositio n of the action, suit,
or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it shall ultimately be
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determined that the person is not entitled to be indemnified by the
corporation as authorized by th e provisions of this section.
Expenses including attorney fees incurred by former directors or
officers or other employees and agents or persons serving at the
request of the corporation as directors, officers, employees or
agents of another corporation, partnership, joint venture, trust or
other enterprise may be paid upon the terms and conditions, i f any,
as the corporation deems appropriate.
F. The indemnification and advancement of expenses provided by
or granted pursuant to the other subsections of t his section shall
not be deemed exclusi ve of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors,
or otherwise, both as to action in the person’s official capacity
and as to action in another capacity while holding an office. A
right to indemnification or to advancement of expenses arising under
a provision of the certificate of incorporation or a bylaw shall not
be eliminated or impai red by an amendment to or repeal or
elimination of the certificate of incorporation or the bylaw a fter
the occurrence of the act or omission that is the subject of th e
civil, criminal, administrative or investigative action, suit or
proceeding for which in demnification or advancement of expense s is
sought, unless the provision in effect at the time of such act or
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omission explicitly authorizes such elimination or impai rment after
such action or omission has occurred.
G. A corporation shall have power to pu rchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or
agent of another corporation, partne rship, joint venture, trust, or
other enterprise against any liability asserted against the person
and incurred by the person in any such capacity, or arising out of
the person’s status as such, whether or not the corporation would
have the power to indemn ify the person against liability under the
provisions of this section.
H. For purposes of this se ction, references to “the
corporation” shall include, in addition to the resulting
corporation, any constituent corporation , including any constituent
of a constituent, absorbed in a consolidation or merger which, if
its separate existence had continued, w ould have had power and
authority to indemnify its directors, office rs, and employees, or
agents, so that any person who is or was a director, officer,
employee, or agent of a constituent corporati on, or is or was
serving at the request of a constituent co rporation as a director,
officer, employee, or agent of another corp oration, partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under the provisions of this se ction with respect to the
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resulting or surviving corporatio n as the person would have with
respect to the constituent corporati on if its separate existence had
continued.
I. For purposes of this section, references t o “other
enterprises” shall include, but are not limited to, employee benefit
plans; references to “fines” shall include, but are not limited to,
any excise taxes ass essed on a person with respect to an employee
benefit plan; and references to “serving at the request of the
corporation” shall include, but are not limited to, any service as a
director, officer, employee, or agent of the corporation which
imposes duties on, or involves services, by the director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith
and in a manner the person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan
shall be deemed to have a cted in a manner “not opposed to the be st
interests of the corporation ” as referred to in this sec tion.
J. The indemnification and advancement of expenses provided b y
or granted pursuant to this section, unless otherwise provided when
authorized or ratifi ed, shall continue as to a person who h as ceased
to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrat ors of the person.
K. The district court is vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
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indemnification brought under this section or under any bylaw,
agreement, vote of shareholders or disinterested directors, or
otherwise. The court may summarily determine a corporation ’s
obligation to advance expenses including attorney fees.
SECTION 11. AMENDATORY 18 O.S . 2021, Section 1041, is
amended to read as follows:
Section 1041.
CORPORATION’S POWERS RESPECTING OWNERSHIP, VOTING, ETC. OF
ITS OWN STOCK; RIGHTS OF STOCK CA LLED FOR REDEMPTION
A. Every corporation may purchase, redeem, receive, take, or
otherwise acquire, own, hold, sell, lend, exchange, transfer, or
otherwise dispose of, pledge, use and otherwise deal in and with its
own shares; provided, however, that no c orporation shall:
1. Purchase or redeem its own shares of capital stock for cash
or other property when the capital of the corporation is impaired or
when the purchase or redemption would cause any impairment of the
capital of the corporation, except that a corporation other than a
nonstock corporation may purchase or redeem out of capital any of
its own shares which are entitled upon any distribution of its
assets, whether by dividend or in liquidation, to a preference over
another class or series of its stock, or, if no shares entitle d to a
preference are outstanding, any of its own shares if such sh ares
will be retired upon their acquisition and the capital of the
corporation reduced in accordance with the provisions of Sect ions
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1078 and 1079 of this tit le. Nothing in this subsection shall
invalidate or otherwise affect a note, debenture, or other
obligation of a corporation given by it as consideration for its
acquisition by purchase, redemption, or the exchange of its shar es
of stock if at the time suc h note, debenture, or obligatio n was
delivered by the corporation its capital was not then impaire d or
did not thereby become impaired;
2. Purchase, for more than th e price at which they may then be
redeemed, any of its share s which are redeemable at the option of
the corporation; or
3. a. In the case of a corporation other than a nonstock
corporation, redeem any of its shares unless their
redemption is authorized by subsection B of Section
1032 of this title and then only in accordance with
the provisions of that section and the certif icate of
incorporation, or
b. In the case of a nonstock corporation , redeem any of
its membership interests, unless their redemption is
authorized by the certificate of incorporation and
then only in accordance with the certi ficate of
incorporation.
B. Nothing in this section shall be construed to limit or
affect a corporation’s right to resell any of its shares theretofore
purchased or redeemed out of surplus and which have not been
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retired, for consideration fixed by the bo ard of directors or by the
shareholders if the certificate of incorporation so provides.
C. Shares of its own a corporation’s capital stock belonging to
shall neither be entitled to vote nor be counted for quorum purpose s
if the shares belong to (1) the corporation, or to (2) another
corporation, if a majority of the shares entitled to vote in the
election of directors of the other corporation is held, dire ctly or
indirectly, by the corporation, shall neither be entitled to vo te
nor be counted for quorum p urposes or (3) any other entity , if a
majority of the voting power of such other entity is held, d irectly
or indirectly, by the corporation or if such other entity is
otherwise controlled, directly or indirectly, by the corpor ation.
Nothing in this sectio n shall be construed as limitin g the right of
any corporation to vote stock including, but not lim ited to, its own
stock, held by it in a fiduciary capacity.
D. Shares which have been called for redemption shall not be
deemed to be outstanding shares for the purpose of voting or
determining the total number of shares entitled to vote on any
matter on and after the date on which written notice of redemption
has been sent to holders thereof and a sum sufficient to redeem
those shares has been irrevocably dep osited or set aside to pay the
redemption price to the h olders of the shares upon surrender of the
certificates.
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SECTION 12. AMENDATORY 18 O.S. 2021, Section 1057, is
amended to read as follows:
Section 1057.
VOTING RIGHTS OF SHARE HOLDERS; PROXIES; LIMITATIONS
A. Unless otherwise provided for in the certificate of
incorporation and subject to the provisions of Section 1058 of this
title, each shareholder shall be entitled to one vote for each share
of capital stock held by the shar eholder. If the certificate of
incorporation provides for more or less than one vote for any share
on any matter, every reference in this act Section 1001 et seq. o f
this title to a majority or other p roportion of stock, voting stock
or shares shall refer to such majority or other proporti on of the
votes of such stock, voting stock or shares.
B. Each shareholder entitled to vote at a meeting of
shareholders or to exp ress consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to
act for the shareholder by proxy, but no proxy shall be voted or
acted upon after three (3) years from its date, unless the proxy
provides for a longer period.
C. Without limiting the manner in which a shareholder may
authorize another person or persons to act as a proxy pursuant to
subsection B of this section, the following shall constitute a valid
means by which a shareholder may grant suc h authority:
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1. A shareholder, or such shareholder ’s authorized officer,
director, employee, or agent, may execute a writing authorizing
another person or persons to act for him or her as proxy. Execution
may be accomplished by the shareholder or the sha reholder’s
authorized officer, director, employee, or agent signing the writing
or causing his or her signatu re to be affixed to the writing by any
reasonable means including, but not limi ted to, by facsimile
signature.
2. A shareholder may authorize anot her person or persons to act
for him or her as proxy by transmitting or authorizing the
transmission of a tel egram, cablegram, or other means of electronic
transmission to the person who w ill be the holder of the proxy or to
a proxy solicitation firm, prox y support service organization, or
like agent duly authorized by the person who will be the holder of
the proxy to receive the transmission; provided, that any telegram,
cablegram, or other means of electronic transmission must either set
forth, or be submitted with information from whi ch it can be
determined, that the telegram, cablegram, or other electronic
transmission was authorized by the shareholder. If it is determined
that telegrams, cablegrams, or other electronic transmissions are
valid, the inspectors or, if there are no insp ectors, any other
person making that determination shall specify the informati on upon
which they relied.
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3. The authorization of a person to act as a proxy may be
documented, signed, and delivered in accordance with Section 1014.3
of this title, provided that the authorization sha ll set forth, or
be delivered with information enabling the corporat ion to determine,
the identity of the shareholder granting the authorization.
D. Any copy, facsimile telecommunication, or other r eliable
reproduction of the writing or transmission created pursuant to
subsection C of this secti on may be substituted or us ed in lieu of
the original writing or transmission for any and all purposes for
which the original writing or transmission could be used; provided,
that the copy, facsimile telecommunication, or other reproduction
shall be a complete reproduction of the en tire original writing or
transmission.
E. A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, a nd only as long as, it is coupled with an
interest sufficient in law to support an irrevocable pow er. A proxy
may be made irrevocable regardless of whether the interest with
which it is coupled is an interest in the stock itself or an
interest in the corp oration generally.
SECTION 13. AMENDATORY 18 O.S. 2021, Section 1058, is
amended to read as follows:
Section 1058.
FIXING DATE FOR DETE RMINATION OF SHAREHOLDERS OF RECORD
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A. In order that the corporation may determine the sharehol ders
entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, the board of directors may f ix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the b oard of
directors, and which record date shall not be more than sixty ( 60)
nor less than ten (10) days before the date of suc h meeting. If the
board of directors so fixes a date, such dat e shall also be the
record date for determining the shareholders ent itled to vote at
such meeting unless the board of directors determines, at the time
it fixes such record date, that a later d ate on or before the date
of the meeting shall be the date for making such determination. If
no record date is fixed by the board of directors, the record date
for determining shareholders entitled to notice of or to vote at a
meeting of shareholders shal l be at the close of business on th e day
next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day
on which the meeting is held . A determination of shareholders of
record entitled to notice of or to vote at a meetin g of shareholders
shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the
adjourned meeting and in such case shall also fix as the record date
for shareholders entitled to notice of su ch adjourned meeting the
same or an earlier date as that fixed for determination of
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shareholders entitled to vote in accordance with the foregoing
provisions of this s ection at the adjourned meeting.
B. 1. In order that the corporation may determine the
shareholders entitled to con sent to corporate action in writing
without a meeting in accordance with Section 1073 of this title , the
board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the board of directors, and which date shall not
be more than ten (10 ) days after the date upon which the resolution
fixing the record date is adopted by the board of directors. If no
record date has been fixed by the board of d irectors, the record
date for determining shareholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the
board of directors is required by the Oklahoma General Corpo ration
Act, shall be the first date on whic h a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the corporation by delivery to its registered office in this
state, its principal place of business, or an officer or agent of
the corporation having custody of the book in which proceedings of
meetings of shareholders are recorded. Delivery made to a
corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested in accordance with
subsection D of Section 1073 of this title. If no record date has
been fixed by the board of directors and prior action by the board
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of directors is required by the Oklahoma General Corporation Act,
the record date for determining shareholders entitled to consent to
corporate action in writing without a meeting shall be at the close
of business on the day on which the board of dir ectors adopts the
resolution taking such prior action.
2. The provisions of this subsection shall be effective with
respect to corporate actions taken by writt en consent, and to such
written consent or consents, as to which the first written consent
is executed or solicited after November 1, 1988.
C. In order that the corporation may determine the shareholders
entitled to receive payment of any dividend or othe r distribution or
allotment of any rights or the shareholders entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or
for the purpose of any other lawful action, the board of director s
may fix a record date, which reco rd date shall not precede the date
upon which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record da te for
determining shareholders for any such purpose shall be at the close
of business on the day on which the board of directors a dopts the
resolution relating thereto.
SECTION 14. AMENDATORY 18 O.S. 2021, Section 1073, is
amended to read as follows:
Section 1073.
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CONSENT OF SHAREHOLDERS IN L IEU OF MEETING
A. Unless otherwise provided for in the certificate of
incorporation, any action required by the provisions of the Oklahoma
General Corporation Act to be ta ken at any annual or special meeting
of shareholders of a corporation or any action which may be taken at
any annual or special meeting of shareholders, may be taken without
a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be
signed by the holders of outstan ding stock having not less than the
minimum number of votes that wou ld be necessary to authorize or take
the action at a meeting at which all shares entitled to vote thereo n
were present and voted and shall be delivered to the corporation by
delivery to its registered office in this state, its principal place
of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of shareholders
are recorded. Delivery made to a corporation ’s registered office
shall be by hand or by certified or registered mail, return receipt
requested in the manner required by this section .
B. Unless otherwise provided for in the certificate of
incorporation, any acti on required by the provisions of the Oklahoma
General Corporation Act to be taken at a meeting of the members of a
nonstock corporation, or any action which may be taken at any
meeting of the members of a nonstock corporation, may be taken
without a meeting, without prior notice and without a vote, if a
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consent or consents in writing, setting forth the action taken,
shall be signed by members having not less than the minimum number
of votes that would be necessary to authorize or take such action at
a meeting at which all members having a right to vote thereon were
present and voted and shall be delivered to the corporation by
delivery to its registered office in this state, its principal pla ce
of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of sharehold ers
are recorded. Delivery made to a corporation ’s registered office
shall be by hand or by certified or registered mail, ret urn receipt
requested in the manner required by this section .
C. 1. An electronic transmission consenting to an action to be
taken and transmitted by a shareholder, member or proxyholder, or by
a person or persons authorized to act for a shareholder, member or
proxyholder, shall be deemed to be written and signed for th e
purposes of this section; provided that any electronic transmission
sets forth or is delivered with information from which the
corporation can determine A consent permitted by this section shall
be delivered:
a. that the electronic transmission was trans mitted by
the shareholder, member or proxyholder or by a person
or persons authorized to act for the shareholder ,
member or proxyholder, and to the principal place of
business of the corporation,
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b. the date on which the shareholder, member or
proxyholder or authorized person or persons
transmitted the electronic tran smission to an officer
or agent of the corporation having custod y of the book
in which proceedings of meetings of shareholders or
members are recorded,
c. to the registered office of the corpor ation in this
state by hand or by certified or registered mail,
return receipt requested, or
d. in accordance with Section 1014.3 o f this title to an
information processing system, if any, designa ted by
the corporation for receiving such consents. Consent
delivered pursuant to this subparagraph must set forth
or be delivered with information that enables the
corporation to determine the date of delivery of such
consent and the identi ty of the person giving such
consent and, if such consent is given by a pe rson
authorized to act for a shareholder or member as
proxy, such consent must comply with the applicable
provisions of paragraphs 2 and 3 of subsection C of
Section 1075.2 of this title.
2. A consent given by electronic transmission is delivered to
the corporation upon the earlie st of:
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a. when the consent enters an in formation processing
system, if any, designated by the corporation for
receiving consents, so long as the electronic
transmission is in a form capable of being processed
by that system and the corporation is able to r etrieve
that electronic transmission,
b. when a paper reproduction of the consent is delivered
to the corporation’s principal place of business or an
officer or agent of t he corporation having custody of
the book in which proceeding s of meetings of
stockholders or members are recorded,
c. when a paper reproduction of the consent is delivered
to the corporation’s registered office in this state
by hand or by certified or reg istered mail, return
receipt requested, or
d. when delivered in such other manner, if any, provided
by resolution of the boa rd of directors or governing
body of the corporation.
Whether the corporation has so designated an information processing
system to receive consents is determined by the certificate of
incorporation, the bylaws or fro m the context and surrounding
circumstances including the conduct of the corporation. A consent
given by electronic transmission is delivered under this section
even if no person is aware of its receipt. Receipt of an electronic
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acknowledgement from an i nformation processing system establishe s
that a consent given by electronic transmission was received but , by
itself, does not establish that the content sent corresponds to the
content received.
3. Any copy, facsimile or other rel iable reproduction of a
consent in writing may be substituted o r used in lieu of the
original writing for any and all purposes fo r which the original
writing could be used; provided that the copy , facsimile or other
reliable reproduction shall be a complet e reproduction of the en tire
original writing Any copy, facsimile, or other reliable reproduction
of a consent in writing may be substituted or used in lie u of the
original writing for any and all purposes for which the origi nal
writing could be used, prov ided that such copy, facsimile, or other
reproduction shall be a complete reproduction of the entire original
writing. A consent may be documented and signed in accordance wit h
Section 1014.3 of this title, and when so documented or signed shall
be deemed to be in writing for purposes of this title; pr ovided that
if such consent is delivered pursuant to subparagraph a, b, or c of
paragraph 1 of this subsection, such consent must be reproduced and
delivered in paper form .
D. A consent must be set forth in w riting or in an electronic
transmission. No written consent shall be effective to take the
corporate action referred to therein unless written consents signed
by a sufficient number of holders or members to take action are
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delivered to the corporation in the manner required by this section
within sixty (60) days of the first date on which a written consent
is so delivered to the c orporation. Any person executing a consent
may provide, whether through instruction to an agent or otherwise,
that such a consent will be effective at a future time including a
time determined upon the happening of an event, no later than sixty
(60) days after such instruction is given or such provision is made
if evidence of such instruction or provision is provided to the
corporation. Unless otherwise provided, any such consent shall be
revocable prior to its becoming effective. All references to a
consent in this section mean a consent permitted by this section.
E. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to
those shareholders or members, as th e case may be, who have no t
consented in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the
record date for notice of the meeting had been the date th at written
consents signed by a sufficie nt number of shareholders or members to
take the action were delivered to the corporation as provided in
this section. In the event that the action for which consent is
given is an action that would have required th e filing of a
certificate under any othe r section of this title if the action had
been voted on by shareholders or by members at a meeting thereof the
certificate filed under the other section shall state, in lieu of
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any statement required by the section c oncerning any vote of
shareholders or members, that written consen t has been given in
accordance with the provisions of this section.
SECTION 15. AMENDATORY 18 O.S. 202 1, Section 1075.2, is
amended to read as follows:
Section 1075.2.
ELECTRONIC NOTICE; EFFECTIVENESS; REVOCATION OF CONSENT
A. Without limiting the mann er of which notice otherwise may be
given effectively to shareholders, any notice to shareholders given
by the corporation under any provisio n of the Oklahoma General
Corporation Act, the certificate of incorporation, or the bylaws
shall be effective if gi ven by a form of electronic transmission
consented to by the shareholder to whom the notice is giv en. The
consent shall be revocable by the shareholder by written noti ce to
the corporation. The consent shall be deemed revoked if may be
given in writing directed to the shareholder ’s mailing address or by
electronic transmission directed to the shareholder ’s electronic
mail address, as applicable, as it appears on the records of the
corporation, and shall be given:
1. The corporation is unable to deliver b y electronic
transmission two consecutive notices given by the corporation in
accordance with the consent ; and
2. The inability becomes known to the secretary or an as sistant
secretary of the corporation or to the transfer agent, or other
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person responsible for the giving of notice; provided, however, the
inadvertent failure to treat the inability as a revoc ation shall not
invalidate any meeting or other action If mailed, when the notice is
deposited in the U.S. mail, postage prepaid;
2. If delivered by courier service, the earlier of when the
notice is received or left at such shareholder’s address; or
3. If given by electronic mail, when directed to such
shareholder’s electronic mail address unless the shareholder has
notified the corporation in writing o r by electronic transmission of
an objection to receiving notice by electronic mail or such notice
is prohibited by subsection E of this section. A notice by
electronic mail must include a prominent legend that the
communication is an important notice reg arding the corporation.
B. Without limiting the manner by which notice otherwise may be
given effectively to shareholders, but subject to subsection E of
this section, any notice to shareholders given by the corpora tion
under any provision of this title, the certificate of incorporation,
or the bylaws shall be effective if given by a form of electronic
transmission consented to by the shareholder to whom the notice is
given. Any such consent shall be revocable by the shareholder by
written notice or electr onic transmission to the corporation. A
corporation may give a notice by electronic mail in accordanc e with
subsection A of this section without obtaining the conse nt required
by this subsection.
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B. C. Notice given pursuant to su bsection A of this sectio n
shall be deemed given if by:
1. Facsimile telecommunication, when directed to a number at
which the shareholder has consented to receive notice;
2. Electronic mail, when directed to an electronic mail address
at which the shareholder has consented to r eceive notice;
3. A posting on an electronic network together with separate
notice to the shareholder of the specific posting, upon the later
of:
a. the posting, and
b. the giving of the separate notice; and
4. 3. Any other form of electronic transmissio n, when directed
to the shareholder in accordance with the shareholder ’s consent.
An affidavit of the secretary or an assi stant secretary or of
the transfer agent or other agent of the corporation that the notice
has been given by a form of electronic tran smission shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein.
C. D. For purposes of the Okla homa General Corporation Act ,
“electronic:
1. “Electronic transmission” means any form of communication,
not directly involving th e physical transmission of paper including
the use of, or participation in, one or more electronic net works or
databases including one or more distributed electronic networks or
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databases, that creates a record that may be retained , retrieved and
reviewed by a recipient thereof, and that may be directly reproduced
in paper form by such a recipient through an automated process ;
2. “Electronic mail” means an electronic transmission directed
to a unique electronic mail address , which electronic mail shall be
deemed to include any files attached thereto and any information
hyperlinked to a website if such elec tronic mail includes the
contact information of an officer or a gent of the corporation who is
available to assist with accessing such files and informati on; and
3. “Electronic mail address ” means a destination, commonly
expressed as a string of characters , consisting of a unique user
name or mailbox (commonly referre d to as the “local part” of the
address) and a reference to an int ernet domain (commonly r eferred to
as the “domain part” of the address), whether or not displayed, to
which electronic mail can be sent or delivered.
E. Notwithstanding the foregoing, a notice may not be given by
an electronic transmission from and after the time that:
1. The corporation is unable to deliver by electronic
transmission two consecutive notices given by the corpora tion; and
2. The inability becomes kno wn to the secretary or a n assistant
secretary of the corporation or to the transfer agent, or other
person responsible for the giving of notice; provided, however, the
inadvertent failure to discover such inability sh all not invalidate
any meeting or other action.
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F. An affidavit of the secretary or an assistant secretary or
of the transfer agent or other agent of the corporation that the
notice has been given by a form of electronic transmission shall, in
the absence of fraud, be prima facie evidence of the facts stated
therein.
D. G. This No provision of this section, except for paragraph 1
of subsection A or paragraphs 1 and 2 of subsection D of this
section, shall not apply to Sections 1045 , or 1111, 1119, or 1123 of
this title.
SECTION 16. AMENDATORY 18 O.S. 2021, Section 1081, is
amended to read as follows:
Section 1081.
MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
A. Any two or more domestic corporations may merge into a
single surviving corporation, which may be any one of the
constituent corporations or may consolidate into a new resulting
corporation formed by the consolidation, pursuant to an agreement of
merger or consolidation, as the case may be, complying and approved
in accordance with the provisions of this section .
B. The board of directors of each corporation which desires to
merge or consolidate shall adopt a resolution approving an agreement
of merger or consolidation and declaring its advisability. The
agreement shall state:
1. The terms and conditions of th e merger or consolidation;
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2. The mode of carrying the same into effect;
3. In the case of a merger, the amendments or changes in the
certificate of incorporation of the surviving corporation as are
desired to be effected by the merger, which amendments or changes
may amend and restate the certificate of incorporation of the
surviving corporation in its entirety, or, if no amendments or
changes are desired, a statement that the certificate of
incorporation of the surviving corporation shall be its certifi cate
of incorporation of the surviving or resulting corporation;
4. In the case of a c onsolidation, that the certificate of
incorporation of the resulting corporation shall be as is set forth
in an attachment to t he agreement;
5. The manner, if any, of c onverting the shares of each of the
constituent corporations into shares or other secur ities of the
corporation surviving or resulting from the merger or consolidation,
or of canceling some or all of the shares, an d, if any shares of any
of the constituent corporations are not to remain outstanding, to be
converted solely into shares or othe r securities of the surviving or
resulting corporation or to be canceled, the cash, property, rights,
or securities of any othe r corporation or entity which the holders
of the shares are to receive in exchange for or upon conversion of
the shares and the s urrender of any certificates evidencing them,
which cash, property, rights or securities of any other corporation
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or entity may be in addition to or in lieu of shares or other
securities of the surviving or resulting corporation; and
6. Other details or p rovisions as are deemed desirable ,
including without limiting the generality of the foregoing, a
provision for the payment of c ash in lieu of the issuance or
recognition of fractional shares, rights or other securities of the
surviving or resulting corpora tion or of any other corporation or
entity the shares, rights or other securities of which are to be
received in the merger or consolidation, or for any other
arrangement with respect thereto, consistent with the provisions of
Section 1036 of this title. The agreement so adopted shall be
executed and acknowledged in accordance with the provisions of
Section 1007 of this title. A ny of the terms of the agreement of
merger or consolidation may be made dependent upon facts
ascertainable outside of the agreeme nt; provided, that the manner in
which these facts shall operate upon the terms of the agreement is
clearly and expressly set f orth in the agreement of merger or
consolidation. The term “facts” as used in this paragraph includes,
but is not limited to, th e occurrence of any event including a
determination or action by any person or body including the
corporation.
C. The agreement required by the provisions of subsection B of
this section shall be submitted to the shareholders of each
constituent corporati on at an annual or special meeting thereof for
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the purpose of acting on the agreement. Due notice of the time,
place, and purpose of the meeting shall be mailed to each holder of
stock whether voting or nonvoting, of the corporation at the address
which appears on the records of the corporation, at least twenty
(20) days before the date of the meeting. The notice shall contain
a copy of the agreement or a brief summary thereof; provided,
however, the notice shall be effective only with respect to mergers
or consolidations for which the notice of the shareholders meeting
to vote thereon has been mailed after November 1, 1988. At the
meeting the agreement shall be conside red and a vote taken for its
adoption or rejection. If a majority of the outstanding s tock of
the corporation entitled to vote thereon shall be voted for the
adoption of the agreement, that fact shall be certified on the
agreement by the secretary or the assistant secretary of the
corporation; provided, that such certification on the agreem ent
shall not be required if a certificate of merger or consolidation is
filed in lieu of filing the agreement. If the agreeme nt shall be so
adopted and certified by ea ch constituent corporation, it shall then
be filed and shall become effective in accord ance with the
provisions of Section 1007 of this title. In lieu of filing an
agreement of merger or consolidation required by this section, the
surviving or resulting c orporation may file a certificate of merger
or consolidation executed in accordance wit h the provisions of
Section 1007 of this title and which states:
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1. The name and state of incorporation of each of the
constituent corporations;
2. That an agreement o f merger or consolidation has been
approved, adopted, executed and acknowledged by each of the
constituent corporations in accordance with the provisions of this
section;
3. The name of the surviving or resulting corporation;
4. In the case of a merger, the amendments or changes in the
certificate of incorporation of the surviving corporat ion, which may
be amended and restated, that are desired to be effected by the
merger, which amendments or changes may amend an d restate the
certificate of incorporation of the surviving corporation in its
entirety, or, if no amendments or changes are desi red, a statement
that the certificate of incorporation of the surviving corporation
shall be its certificate of incorporation;
5. In the case of a consolidation, that t he certificate of
incorporation of the resulting corporation shall be as is set forth
in an attachment to the certificate;
6. That the executed agreement of consolidation or merger is on
file at the principal plac e of business of the surviving or
resulting corporation, stating the address thereof; and
7. That a copy of the agreement of con solidation or merger will
be furnished by the surviving or resulting corporation, on request
and without cost, to any sharehold er of any constituent corporation.
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For purposes of Sections 1084 and 1086 of this title, the term
“shareholder” shall be deemed to include “member”.
D. Any agreement of merger or consolidation may contain a
provision that at any time prior to the time th at the agreement, or
a certificate filed w ith the Secretary of State in lieu thereof,
becomes effective in accordance with Sectio n 1007 of this title, the
agreement may be terminated by the board of directors of any
constituent corporation notwithstanding approval of the agreement by
the shareholders of all or any of the constituent corporations;
provided, if the agreement of merger or consolidation is terminated
after the filing of the agreement, or a certificate filed with the
Secretary of State in lieu t hereof, but before the agreement or
certificate has become effective, a certificate of termination of
merger or consolidation sha ll be filed in accordance with Section
1007 of this title. Any agreement of merger or consolidation may
contain a provision th at the boards of directors of the constitu ent
corporations may amend the agreement at any time prior to the time
that the agreement, or a certificate filed with the Secretary of
State in lieu thereof, becomes effective in accordance with Section
1007 of this title; provided, that an amendment made subsequent to
the adoption of the agreement by the shareholders of any constituent
corporation shall not:
1. Alter or change the amount or kind of shares, securities,
cash, property or rights to be received in ex change for or on
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conversion of all or any of the shares of any class or series
thereof of the constituent corporation;
2. Alter or change any term of the certificate of incorporation
of the surviving corporation to be effected by the merger or
consolidation; or
3. Alter or change any of the term s and conditions of the
agreement if an alteration or change would adversely affect the
holders of any class or series thereof of the constituent
corporation.
If the agreement of merger or consolidation is amended after the
filing of the agreement, or a ce rtificate in lieu thereof, with the
Secretary of State, but before the agreement or cer tificate has
become effective, a certificate of amendment of merger or
consolidation shall be filed in accordance with Section 1007 of this
title.
E. In the case of a m erger, the certificate of incorporation of
the surviving corporation shall automaticall y be amended to the
extent, if any, that changes in the certificate of incorporation are
set forth in the certificate of merger .
F. Notwithstanding the requirements of subsection C of this
section, unless required by its certificate of incorporation, no
vote of shareholders of a constituent corporation surviving a merger
shall be necessary to authorize a merger if:
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1. The agreement of merger does not amend in any respec t the
certificate of incorporation of the constituent corporation;
2. Each share of st ock of the constituent corporation
outstanding immediately prior to the effective date of the merger is
to be an identical outs tanding or treasury share of the surviving
corporation after the effective date of the merger; and
3. Either no shares of common stock of the surviving
corporation and no shares, securities or obligations convertible
into such stock are to be issued or de livered under the plan of
merger, or the authorized unissued shares or the treasury shares of
common stock of the surviving corpo ration to be issued or delivered
under the plan of merger plus those initially issuable upon
conversion of any other shares, se curities or obligations to be
issued or delivered under the plan do not exceed twenty percent
(20%) of the shares of common stock of the constituent corporation
outstanding immediately prior to the effective date of the merger.
No vote of shareholders of a constituent corporation shall be
necessary to authorize a merger or consolidation if no shares of the
stock of the corporation shall have been issued prior to the
adoption by the board of directors of the resolution approving the
agreement of merger or c onsolidation. If an agreement of merger i s
adopted by the constituent corporation surviving the merger, by
action of its board o f directors and without any vote of its
shareholders pursuant to the provisions of this subsection, the
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secretary or assistant secretary of that corporation shall certif y
on the agreement that the agreement has been adopted pursuant to the
provisions of this subsection and:
a. if it has been adopted pursuant to paragraph 1 of this
subsection, that the conditions specified have bee n
satisfied, or
b. if it has been adopted pursuant to paragraph 2 of this
subsection, that no shares of stock of the corporation
were issued prior to the adoption by the board of
directors of the resolution approving the agreement of
merger or consolidatio n; provided, that such
certification on the agreement shall not be required
if a certificate of merger or consolidation is filed
in lieu of filing the agreement.
The agreement so adopted and certified shall then be filed and
shall become effective in accor dance with the provisions of Section
1007 of this title. Filing shall constitute a representation by the
person who executes the certificate that the facts stated in the
certificate remain true immediately prior to filing.
G. 1. Notwithstanding the requ irements of subsection C of this
section, unless expressly required by its certificate of
incorporation, no vote of shareholders of a constituent corporation
shall be necessary to authorize a merger with or into a single
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direct or indirect wholly owned sub sidiary of the constituent
corporation if:
a. the constituent corporation and the direct or indirect
wholly owned subsidiary of t he constituent corporation
are the only constituent entities to the merger,
b. each share or fraction of a share of the capital stock
of the constituent corporation outs tanding immediately
before the effective time of the merger is converted
in the merger into a share or equal fraction of share
of capital stock of a holding company having the same
designations, rights, powers and preferences, and the
qualifications, limit ations and restrictions thereof,
as the share of stock of the constituent corporation
being converted in the merger,
c. the holding company and the constituent corporation
are domestic corporations and the direct o r indirect
wholly owned subsidiary that is the other constituent
entity to the merger is a domestic corporation or
limited liability company,
d. the certificate of incorporation and bylaws of the
holding company immediately following the effective
time of the merger contain provisions identical to the
certificate of incorporation and bylaws of the
constituent corporation immediately before the
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effective time of the merger, other than provisions,
if any, regarding the incorporator or incorporators,
the corporate name, the registered office and agent ,
the initial board of directors and the initial
subscribers of shares and provisions c ontained in any
amendment to the certificate of incorporation as were
necessary to effect a change, exchange,
reclassification, subdivision, combination or
cancellation of stock, if a change, exchange,
reclassification or cancellation has become effective,
e. as a result of the merger, the constituent corporation
or its successor corporation becomes or remains a
direct or indirect wholly owned subsidiary of the
holding company,
f. the directors of the constituent corporation become or
remain the directors o f the holding company upon the
effective time of the merger,
g. the organizational documents of the surviving entity
immediately following the effective time of the merg er
contain provisions identical to the certificate of
incorporation of the constituent corporation
immediately before the effective time of the merger,
other than provisions, if any, regarding the
incorporator or incorporators, the corporate or entity
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name, the registered office and agent, the initial
board of directors and the initial subsc ribers for
shares, references to members rather than
shareholders, references to interests, units or the
like rather than stock or shares, references to
managers, managing members or other members of the
governing body rather than directors and such
provisions contained in any amendment to the
certificate of incorporation as were necessary to
effect a change, exchange, reclassific ation,
subdivision, combination or cancell ation of stock, if
such change, exchange, reclassification, subdivision,
combination or cancellation has become effective;
provided, however, requiring that:
(1) if the organizational documents of the surviving
entity do not contain the following provisions,
they shall be amended in the merger to contain
provisions requiring that:
(a) any act or transaction by or involving the
surviving entity, other than the election or
removal of directors or managers, managing
members or other members of the governing
body of the surviving entity, that requires
if taken by the constituent corporation
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immediately before the effective time of the
merger, would require for its adoption under
the Oklahoma General Corporation Act o r its
organizational documents under the
certificate of incorporati on or bylaws of
the constituent corporation immedia tely
before the effective time of the merger the
approval of the shareholders or members of
the surviving entity of the constituent
corporation shall, by specific reference to
this subsection, require, in addition to
approval of the shareholders or members of
the surviving entity, the approval of the
shareholders of the holding company (or any
successor by merger), by the same vote as is
required by the Oklahoma General Corporation
Act and/or by the organizational documents
of the surviving entity under the
certificate of incorporation or bylaws of
the constituent corporation immediately
before the effective time of the merger;
provided, however, that for purposes of this
subdivision, any surviving entity th at is
not a corporation shall include i n such
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amendment a requirem ent that the approval of
the shareholders of the holding company be
obtained for any act or transaction by or
involving the surviving entity, other than
the election or removal of directors or
managers, managing members or other members
of the governing body of the surviving
entity, which would require the approval of
the shareholders of the surviving entity if
the surviving entity were a corporation
subject to the Oklaho ma General Corporatio n
Act,
(b) any amendment of the organiz ational
documents of a surviving entity that is not
a corporation, which amendment would, if
adopted by a corporation subject to the
Oklahoma General Corp oration Act, be
required to be included in the certificate
of incorporation of such corporation, shall ,
by specific reference to this subsection,
require, in addition, the approval of the
shareholders of the holding company, or any
successor by merger, by the same vote as is
required by the Oklaho ma General Corporatio n
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Act and/or by the organizational documents
of the surviving enti ty certificate of
incorporation or bylaws of the constituent
corporation immediately before the effective
time of the merger, and
(c) (2) the business and affairs of a surviving
entity that is not a corporation shall be managed
by or under the direction of a board of
directors, board of manager s or other governing
body consisting of individuals who are subject to
the same fiduciary duties applicable to, and who
are liable for breach of such d uties to the same
extent as, directors of a corporation subject to
the Oklahoma General Corporation Act , and
(2) the organizational documents of the surviving
entity may be amended in the merge r:
(a) to reduce the number of classes and shares
of capital stock or other equity interests
or units that the surviving entity i s
authorized to issue, and
(b) to eliminate any provision authorized by
subsection D of Section 102 7 of this title;
and
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h. the shareholders of the constituent corporation do not
recognize gain or loss for federal income tax purposes
as determined by the bo ard of directors of the
constituent corporation.
Neither division (1) of subparagraph g of paragrap h 1 of this
subsection nor any provision of a surviving entity ’s organizational
documents required by division (1) of subparagraph g of paragraph 1
of this subsection shall be deemed or construed to require approval
of the shareholders of the holding compa ny to elect or remove
directors or managers, managing members or other members of the
governing body of the surviving entity.
2. As used in this subsection, the term “holding company” means
a corporation which, from its incorporation until consummation of a
merger governed by this s ubsection, was at all times a direct or
indirect wholly owned s ubsidiary of the constituent corporation and
whose capital stock i s issued in a merger.
3. As used in this subsection, the term “organizational
documents” means, when used in reference to a co rporation, the
certificate of incorporation of the corporation and, when used in
reference to a limited liability company, the ar ticles of
organization and the operatin g agreement of the limited liability
company.
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4. From and after the effective time of a merger adopted by a
constituent corporation by action of its b oard of directors and
without any vote of shareholders pursuant to this subsection:
a. to the extent the restriction of Section 1090.3 of
this title applied to the c onstituent corporation and
its shareholders at the effective time of the merger,
restrictions shall apply to the holding company and
its shareholders immedia tely after the effective time
of the merger as though it were the constituent
corporation, and all shareholders of stock of the
holding company acquired in the merger shall for
purposes of Section 1090.3 of this title be deemed to
have been acquired at the time that the shares of
stock of the constituent corporation converted in the
merger were acquired ; provided, that any shareho lder
who immediately before the effective time of the
merger was not an interested shareholder within the
meaning of Section 1090 .3 of this title shall not
solely by reason of the merger become an interested
shareholder of the h olding company,
b. if the corporate name of the holding company
immediately following the e ffective time of the merger
is the same as the corporate name of t he constituent
corporation immediately before the effective time of
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the merger, the shares of capit al stock of the holding
company into which the shares of capital stock of the
constituent corporation are converted in the merger
shall be represented by the stock certificates that
previously represented the shares of capital stock of
the constituent corp oration, and
c. to the extent a shareholder of the constituent
corporation immediately befo re the merger had standing
to institute or maintain derivative lit igation on
behalf of the constituent co rporation, nothing in this
section shall be deemed to limit or extinguish such
standing.
5. If any agreement of merger is adopted by a constituent
corporation by action of its board of directors and without any vote
of shareholders pursuant to this subsec tion, the secretary or
assistant secretary of the constituen t corporation shall certify on
the agreement that the agreement has been adopted pursuant t o this
subsection and that the conditions specified in paragraph 1 of this
subsection have been satisfied ; provided, that such certification on
the agreement shall n ot be required if a certific ate of merger or
consolidation is filed in lieu of filing the a greement. The
agreement so adopted and certified shall then be fi led and become
effective in accordance with Section 1007 of this title. Filing
shall constitute a representation by the person who executes the
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agreement that the facts stated in the certif icate remain true
immediately before the filing.
H. Notwithstanding the requirements of subsection C of this
section, unless expressly required by its certificate o f
incorporation, no vote of shareholders of a constituent corporation
that has a class or s eries of stock that is listed on a national
securities exchange or held of record by more than two thousa nd
holders immediately prior to the execution of the agreeme nt of
merger by such constit uent corporation shall be necessary to
authorize a merger if:
1. The agreement of merger expressly (a) permits or requires
such merger to be effected under this subsec tion and (b) provides
that such merger shall be effected as soon as practicable followin g
the consummation of the offer referred to in paragraph 2 of t his
subsection if such merger is effected under this subsection;
2. A corporation consummates an offer f or all of the
outstanding stock of such constituent corporat ion on the terms
provided in such agreement of merger that, absent this subsection,
would be entitled to vote on the adoption or rejection of the
agreement of merger; provided, however, that such offer may be
conditioned on the tender of a minimum number o r percentage of
shares of the stock of such constituent corporation, or of any class
or series thereof, and such offer may exclude any excluded stock;
and provided further, that the corporation ma y consummate separate
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offers for separate classes or series of the stock of such
constituent corporation;
3. Immediately following the consummation of the offer referred
to in paragraph 2 of this subsection, the stoc k irrevocably accepted
for purchase or exchange pursuant to such offer and received by the
depository prior to expiration of su ch offer, together with the
stock otherwise owned by the consum mating corporation or its
affiliates and any rollover stock, equal s at least such percentage
of the shares of stock of such constituent corporation, and of each
class or series thereof, that, a bsent this subsection, would be
required to adopt the agreement of merger by this chapter and by the
certificate of incorporation of such constituent corporation;
4. The corporation consummating the offer referred to in
paragraph 2 of this subsection merg es with or into such constituent
corporation pursuant to such a greement;
5. Each outstanding share, other than shares of exclude d stock,
of each class or series of sto ck of the constituent corporation that
is the subject of and not irrevocably accepted fo r purchase or
exchange in the offer referred to in paragraph 2 of this subsection
is to be converted in such merger into, or into the right to
receive, the same amount and kind of cash, property, rights or
securities paid for sh ares of such class or series of stock of such
constituent corporation irrevocably accepted for purchase or
exchange in such offer; and
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6. As used in this su bsection only, the term:
a. “affiliate” means, in respect of the corporation
making the offer refer red to in paragraph 2 of thi s
subsection, any person that (1) owns, directly or
indirectly, all of the outstanding stock of such
corporation or (2) is a dire ct or indirect wholly
owned subsidiary of such corporation or of any person
referred to in proviso (1) of this subparagraph,
b. “consummates”, and with correlative meaning,
“consummation” and “consummating”, means irrevocably
accepts for purchase or exchan ge stock tendered
pursuant to an offer,
c. “depository” means an agent including a depository,
appointed to facilitate consumma tion of the offer
referred to in paragraph 2 of this subsection ,
d. “excluded stock” means (1) stock of such constituent
corporation that is owned at the commencement o f the
offer referred to in paragraph 2 of this subsection by
such constituent corporatio n, the corporation making
the offer referred to in paragraph 2 of this
subsection, any person that owns, directly or
indirectly, all of the outstanding stock of the
corporation making such offer, or any direct or
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indirect wholly owned subsidiary of any of the
foregoing and (2) rollover stock,
e. “person” means any individual, corporation,
partnership, limited liability company, unin corporated
association or other entity,
f. “received” solely for purposes of paragraph 3 of this
subsection means (1) with resp ect to certificated
shares, physical receipt of a stock certifi cate
accompanied by an executed letter of transmittal, (2)
with respect to uncertificated shares held of record
by a clearing corporation as nominee, transfer into
the depository’s account by means of an agent’s
message, and (3) with respect to uncertifica ted shares
held of record by a person other than a clearing
corporation as nominee, physical receipt of a n
executed letter of transmittal by the depository;
provided, however, that shares shall cease to be
“received” (4) with respect to certificated shares , if
the certificate representing such shares was canceled
prior to consummation of the offer referred to in
paragraph 2 of this subsection, or (5) with respect to
uncertificated shares, to the extent such
uncertificated shares have been reduced or elimina ted
due to any sale of such shares prior to consummation
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of the offer referred to in paragraph 2 of this
subsection, and
g. “rollover stock” means any shares of stoc k of such
constituent corporation that are the subject of a
written agreement requiring suc h shares to be
transferred, contributed or delivered to the
consummating corporation or any of its affili ates in
exchange for stock or other equity interests in such
consummating corporation or an affiliate thereof;
provided, however, that such shares of s tock shall
cease to be rollover stock for purposes of paragraph 3
of this subsection if, immediately prio r to the time
the merger becomes effective under this chapte r, such
shares have not been transferred, contributed or
delivered to the consummating corp oration or any of
its affiliates pursuant to such written agreemen t.
If an agreement of merger is adopted without the vote of
shareholders of a corporation pursuant to this subsection, the
secretary or assistant secretary of the surviving corporation shall
certify on the agreement that the agreement has been adopted
pursuant to this subsection and that the co nditions specified in
this subsection, other than the condit ion listed in paragraph 4 of
this subsection, have been satisfied; provided, that such
certification on the agreement shall not be required if a
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certificate of merger is filed in lieu of filing th e agreement. The
agreement so adopted and certified shall t hen be filed and shall
become effective, in accordance with Section 1007 of this title.
Such filing shall constitute a representation by the person who
executes the agreement that the facts state d in the certificate
remain true immediately prior to such f iling.
SECTION 17. AMENDATORY 18 O.S. 2021, Section 1090.5, is
amended to read as follows:
Section 1090.5.
CONVERSION OF DOMESTIC CO RPORATION TO AN ENTITY
A. A domestic corporation may, upon the aut horization of such
conversion in accordance with this sectio n, convert to an entity.
As used in this section, the term “entity” means a domestic or
foreign partnership, whether general or limited, and including a
limited liability partnership and a limite d liability limited
partnership, a foreign corporation inclu ding a public benefit
corporation, a domestic or foreign limite d liability company
including a public benefit limited liability c ompany, and any
unincorporated nonprofit or for -profit association, trust or
enterprise having members or having outstanding sh ares of stock or
other evidences of finan cial, beneficial or me mbership interest
therein, whether formed by agreement or under st atutory authority or
otherwise and whether formed or organized unde r the laws of this
state or the laws of any other jurisdicti on.
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B. The board of directors of the cor poration which desires to
convert under this section shall adopt a resolution approving such
conversion, specifying the type of entity into which the corpo ration
shall be converted and recommending the approval of t he conversion
by the shareholders of the corporation. The reso lution shall be
submitted to the shareholders of the corporation a t an annual or
special meeting. Due notice of the time, and purpos e of the meeting
shall be mailed to each holder of shares, w hether voting or
nonvoting, of the corpor ation at the address o f the shareholder as
it appears on the records of the corporation, at least twenty (20)
days prior to the date of the meeting. At th e meeting, the
resolution shall be considered and a vote tak en for its adoption or
rejection. The corporation adopts the c onversion if all outstanding
shares of stock of the corporation, w hether voting or nonvoting, are
voted for the resolution.
C. If the governing act of the domestic entity to which the
corporation is converting does not provide for th e filing of a
conversion notice with the Secretary of State or the corporation is
converting to a foreign entity, the corporation shall file with the
Secretary of State a certificate of conversion executed in
accordance with Section 1007 of this title whic h certifies:
1. The name of the corporation and, if it has been changed, the
name under which it was originally incorporated;
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2. The date of filing of it s original certificate of
incorporation with the Secretary o f State;
3. The name of the entity to wh ich the corporation sh all be
converted, its jurisdiction of formation if a foreign entit y, and
the type of entity;
4. That the conversion has been approve d in accordance with the
provisions of this section;
5. The future effective date or time of the con version to an
entity, which shall be a date or time certain not later than ninety
(90) days after the filing, if it is not to be effective upon the
filing of the certificate of conversion;
6. The agreement of the f oreign entity that it may be served
with process in this state in any action, suit or proceeding for
enforcement of any obligatio n of the foreign entity arising while it
was a domestic corporation and that it irrevocably appoints the
Secretary of State as its agent to accept service of process in any
such action, suit or proceeding;
7. The address to which a copy of the process ref erred to in
this subsection shall be mailed by the Secretary of Sta te. In the
event of such service upon the Secretary of Stat e in accordance with
the provisions of Se ction 2004 of Title 12 of the Oklahoma Statutes,
the Secretary of State shall immediatel y notify such corporation
that has converted out of the State of Ok lahoma by letter, certified
mail, return receipt requested, directed to the corporation at the
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address specified unless the corporation shall have designated in
writing to the Secretary of State a different address for this
purpose, in which case it shall be mailed to the last address so
designated. The notice sha ll include a copy of the process and any
other papers served on the Secretary of State pursuant to the
provisions of this subsect ion. It shall be the duty of the
plaintiff in the event of such se rvice to serve process and any
other papers in duplicate, to notify the Secretary of State that
service is being effected p ursuant to the provisions of this
subsection, and to pay the Secre tary of State the fee provided for
in paragraph 7 of Section 1142 o f this title, which fee shall be
taxed as part of the costs in the proceeding. The Secretary of
State shall maintain an al phabetical record of any such service
setting forth the name of th e plaintiff and the defendant, the
title, docket number, and nature of the proceeding in which process
has been served upon the Secretary of State, the fact that servic e
has been effected pu rsuant to the provisions of this subsection, the
return date thereof, and the date service was made. The Secretary
of State shall not be required to retain such information longer
than five (5) years from receipt of the service of pr ocess by the
Secretary of State; and
8. If the entity to which the corporation is conve rting was
required to make a filing with the Secretary of State as a condition
of its formation, the type and date of such fili ng.
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D. Upon the filing of a conversion n otice with the Secreta ry of
State, whether under subsection C of this section or under t he
governing act of the domestic entity to which the corporation is
converting, the filing of any formation document required b y the
governing act of the domestic entit y to which the corpora tion is
converting, and payment to the Secretary of State of all p rescribed
fees, the Secretary of State shall certify that the corpo ration has
filed all documents and paid all required fees, a nd thereupon the
corporation shall cease to exist as a domestic corporation at the
time the certificate of conversion becomes eff ective in accordance
with Section 1007 of this title. The A copy of the certificate of
conversion issued by the Secretary of State shall be prima facie
evidence of the conversion by the cor poration.
E. The conversion of a corporation under this section a nd the
resulting cessation of its existence as a domestic corporation shall
not be deemed to affect an y obligations or liabilities of the
corporation incurred before such conversion or the p ersonal
liability of any person incurred before the conversion, no r shall it
be deemed to affect the choice of law applicable to the cor poration
with respect to matters arising before the conversion.
F. Unless otherwise provided in a resolution of convers ion
adopted in accordance with this section, the converting corpor ation
shall not be required to wind up its affairs or pay its liabilit ies
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and distribute its assets, a nd the conversion shall not constitute a
dissolution of such corporation.
G. In a conversion of a domestic corporation to an entity under
this section, shares of stock of the converting domestic corporation
may be exchanged for or converted into cash, pro perty, rights or
securities of, or memberships or membership, economic or ownership
interests in, the entity to which the domestic corporation is being
converted or, in addition to or in lieu thereof, may be exchanged
for or converted into cash, property, shares of stock, rights or
securities of, or interests in, another corporation or entity or may
be canceled.
H. When a corporation has converted to an en tity under this
section, the entity shall be deemed to be the same ent ity as the
corporation. All of the rights, privileges and powers of the
corporation that has converted, and all propert y, real, personal and
mixed, and all debts due to the corporation, as well as all other
things and causes of action belonging to the cor poration, shall
remain vested in the entity to which the corporation has converted
and shall be the property of the enti ty, and the title to any real
property vested by deed or otherwise in the corporation shall not
revert or be in any way impaired by reas on of the conversion; but
all rights of creditors and all liens upon any property of the
corporation shall be preserved unimpaired, and all debts,
liabilities and duties of the corporati on that has converted shall
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remain attached to the entity to which the corporation has
converted, and may be enforced against it to the same extent as if
the debts, liabilities and duties ha d originally been incurred or
contracted by it in its capacity as the entity. The rights,
privileges, powers and interest in property o f the corporation that
has converted, as well as the debts, liabilities and duties of the
corporation, shall not be deem ed, as a consequence of the
conversion, to have been transferred t o the entity to which the
corporation has converted for any purpose of the laws of this state.
I. No vote of shareholders of a corporation shall be necessary
to authorize a conversion if no shares of the stock of the
corporation shall have been issued bef ore the adoption by the board
of directors of the resolution approving the conversion.
J. Nothing in this section shall be deemed to authorize the
conversion of a charitable nonstock corpor ation into another entity,
if the charitable status of such charit able nonstock corporation
would thereby be lost or impaired.
SECTION 18. This act shall become effectiv e November 1, 2022.
58-2-2692 TEK 1/18/2022 2:40:13 PM