FOURTHAMENDMENT OF RIGHTS AGREEMENT

 

changing or influencing control of the Company, then such Person shall not be deemed to be or to have become an “Acquiring Person” for any purposes of this Agreement unless and until such Person shall have failed to divest itself, as soon as practicable (as determined, in good faith, by the Board of Directors of the Company), of Beneficial Ownership of a sufficient number of Common Shares so that such Person would no longer otherwise qualify as an “Acquiring Person” and (ii) no Person shall become an “Acquiring Person” as the result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of Common Shares beneficially owned by such Person to more than 15% of the Common Shares then outstanding, provided, however, that if a Person shall become the Beneficial Owner of more than 15% of the Common Shares then outstanding by reason of such share acquisitions by the Company and shall thereafter become the Beneficial Owner of any additional Common Shares (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares or pursuant to a split or subdivision of the outstanding Common Shares), then such Person shall be deemed to be an “Acquiring Person” unless upon becoming the Beneficial Owner of such additional Common Shares such Person does not beneficially own more than 15% of the Common Shares then outstanding.  Notwithstanding the foregoing, the references to 15% in the preceding sentence shall be deemed to be 25% with respect to the George Kaiser Family Foundation together with its Affiliates (“GKFF”); provided, however, that this sentence shall cease to be applicable, and the provisions of the first sentence of this definition of Acquiring Person shall govern all applicable Persons, including, without limitation, GKFF, upon the earlier of (i) the first date GKFF reports or is required to report its Beneficial Ownership of Common Shares on Schedule 13D under the Exchange Act which Schedule 13D states any present intention to (or reserves the right to) hold Common Shares with the purpose or effect of changing or influencing the control of the Company, or in connection with or as a participant in any transaction having such purpose or effect, (ii) after the first instance in which GKFF Beneficially Owns more than 15% of the Common Shares then outstanding, GKFF Beneficially Owning less than 15% of the Common Shares then outstanding, and (iii) GKFF breaching any provision of the Standstill Agreement dated as of March 24, 2009 by and between the Company and GKFF  (each of the events described in clauses (i), (ii) and (iii) of this sentence, a “Triggering Event”).