SECOND RESTATED Exhibit 3-1
CERTIFICATE OF INCORPORATION
OF
GANNETT CO., INC.
(Incorporated February 28, 1972)
The Restated Certificate of Incorporation of Gannett Co., Inc.,
as heretofore amended, is hereby restated and integrated, without further
amendment and without discrepancy between the provisions of the
Certificate of Incorporation as heretofore amended and the provisions of
this restated certificate, pursuant to adoption by the Board of Directors
of the Corporation in accordance with Section 245 of the General
Corporation Law of the State of Delaware, as follows:
FIRST: The name of the Corporation is: GANNETT CO., INC.
SECOND: The registered office of the Corporation in the State
of Delaware is located at Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is Two Hundred Two
Million (202,000,000) shares of which Two Hundred Million (200,000,000)
shares shall be Common Stock of the par value of One Dollar ($1.00) per
share and Two Million (2,000,000) shares shall be Preferred Stock of the par
value of One Dollar ($1.00) per share. A statement of the designations of
the authorized classes of stock or of any series thereof, and the powers,
preferences and relative, participating, optional or other special rights
and qualifications, limitations or restrictions thereof, or of the authority
by the Board of Directors to fix by resolution or resolutions such
designations and other terms, is as follows:
A. Preferred Stock. The shares of the Preferred Stock
may be issued from time to time in one or more series. The
Board of Directors is hereby vested with authority to fix by
resolution or resolutions the designation of each series of
Preferred Stock and the powers, preferences and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including
without limiting the generality of the foregoing, such
provisions as may be desired concerning the dividend rights,
the dividend rate, conversion rate, conversion rights, voting
rights, rights in terms of redemption (including sinking fund
provisions), the redemption price or prices, and the liquidation
preferences and such other subjects or matters as may be fixed
by resolution or resolutions of the Board of Directors under
the General Corporation Law of Delaware; and to fix the number
of shares constituting any such series, and to increase or
decrease the number of shares thereof then outstanding). In
case the number of shares of any such series shall be so
decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the
resolution or resolutions originally fixing the number of
shares of such series.
B. Common Stock. Subject to all of the preferences and
rights of the Preferred Stock or a series thereof that may be
fixed by a resolution or resolutions of the Board of Directors,
(i) dividends may be paid on the Common Stock of the Corporation
as and when declared by the Board of Directors, out of funds of
the Corporation legally available for the payment of such
dividends, and (ii) each share of Common Stock of the
Corporation will be entitled to one vote on all matters on which
such stock is entitled to vote.
FIFTH:
Section 1. Election of Directors. Election of directors
need not be by written ballot unless and to the extent the By-laws of the
Corporation so provide.
Section 2. Number, Election and Terms. Except as
otherwise fixed pursuant to the provisions of Article FOURTH hereof
relating to the rights of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, the number of
the directors of the Corporation shall be fixed from time to time by or
pursuant to the By-laws. The directors, other than those who may be
elected by the holders of any class or series of stock having preference
over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as possible, as shall be
provided in the manner specified in the By-laws, one class to be originally
elected for a term expiring at the annual meeting of stockholders to be
held in 1986, another class to be originally elected for a term expiring at
the annual meeting of stockholders to be held in 1987, and another class to
be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1988, with the members of each class to hold
office until their successors are elected and qualified. At each annual
meeting of the stockholders of the Corporation, the successors of the
class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election.
Section 3. Stockholder Nomination of Director Candidates.
Advance notice of stockholder nominations for the election of directors
and of any stockholder proposals to be considered at an annual stockholder
meeting shall be given in the manner provided in the By-laws.
Section 4. Newly Created Directorships and Vacancies.
Except as otherwise fixed pursuant to the provisions of Article FOURTH
hereof relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation to elect additional directors under specified circumstances,
newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the class of directors in which
the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
Section 5. Removal of Directors. Subject to the rights of
any class or series of stock having a preference over the Common Stock as
to dividends or upon liquidation to elect directors under specified
circumstances, any director may be removed from office, without cause,
only by the affirmative vote of the holders of 80% of the combined voting
power of the then outstanding Voting Stock (as defined in Article EIGHTH),
voting together as a single class.
Section 6. Amendment or Repeal of this Article FIFTH.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article FIFTH.
SIXTH: The Board of Directors shall have power to make, alter,
amend and repeal the By-laws (except so far as the By-laws adopted by the
stockholders shall otherwise provide). Any By-laws made by the directors
under the powers conferred hereby may be altered, amended or repealed by
the directors or by the stockholders. Notwithstanding the foregoing and
anything contained in this Certificate of Incorporation to the contrary,
Sections 2 and 9 of Article I (as amended), Sections 2, 4, 5, 8, and 9 of
Article II (as amended) and Article VI of the By-laws shall not be altered,
amended or repealed and no provision inconsistent therewith shall be
adopted without the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding Voting Stock, voting together as a
single class. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at
least 80% of the voting power of the outstanding Voting Stock, voting
together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal this Article SIXTH.
SEVENTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual
or special meeting of such holders and may not be effected by any consent
in writing by such holders. Except as otherwise required by law and subject
to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation,
special meetings of stockholders of the Corporation may be called only by
the Chairman of the Board or the Board of Directors. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary,
the affirmative vote of the holders of at least 80% of the voting power of
the outstanding Voting Stock, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with, or repeal
this Article SEVENTH.
EIGHTH:
Section 1. Vote Required for Certain Business
Combinations.
A. Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise
expressly provided in Section 2 of this Article EIGHTH:
(i) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with (a) any
Interested Shareholder (as hereinafter defined) or (b) any other
company (whether or not itself an Interested Shareholder) which
is, or after such merger or consolidation would be, an Affiliate
(as hereinafter defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value of $25 million or more; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of transactions)
of any securities of the Corporation or any Subsidiary to any
Interested Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market
Value of $25 million or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on
behalf of any Interested Shareholder or any Affiliate of any
Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any other transaction (whether
or not with or into or otherwise involving any Interested
Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares
of any class of Equity Security (as hereinafter defined) of the
Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Shareholder or any Affiliate of any
Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class (it being understood that
for the purposes of this Article EIGHTH, each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article FOURTH of
this Certificate of Incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
B. Definition of "Business Combination". The term
"Business Combination" used in this Article EIGHTH shall mean
any transaction which is referred to in clauses (i) through (v) of
Paragraph A of this Section 1.
Section 2. When Higher Vote Is Not Required. The
provisions of Section 1 of this Article EIGHTH shall not be applicable to any
particular Business Combination, and the Business Combination shall
require only the affirmative vote required by law and any other provision
of this Certificate of Incorporation, if all of the conditions specified in
either of the following paragraphs A and B are met:
A. Approval by Disinterested Directors. The Business
Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
B. Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common
Stock in the Business Combination shall be at least equal to the
higher of the following:
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholder for any shares of Common Stock acquired by
it (1) within the two-year period immediately prior to the
first public announcement of the terms of the proposed
Business Combination (the "Announcement Date") or (2) in
the transaction in which it became an Interested
Shareholder, whichever is higher; or
(b) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date on which
the Interested Shareholder became an Interested
Shareholder (such latter date is referred to in this
Article EIGHTH as the "Determination Date"), whichever is
higher.
(ii) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any other class of
outstanding Voting Stock shall be at least equal to the highest
of the following (it being intended that the requirements of this
paragraph B(ii) shall be required to be met with respect to
every class of outstanding Voting Stock, whether or not the
Interested Shareholder has previously acquired any shares of a
particular class of Voting Stock):
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Voting Stock
acquired by it (1) within the two-year period immediately
prior to the Announcement Date or (2) in the transaction
in which it became an Interested Shareholder, whichever is
higher; or
(b) (if applicable) the highest preferential
amount per share to which the holders of shares of such
class of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation or dissolution of the
Corporation; or
(c) the Fair Market Value per share of such
class of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as the Interested
Shareholder has previously paid for shares of such class of
Voting Stock. If the Interested Shareholder has paid for shares
of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of
Voting Stock shall be either cash or the form used to acquire
the largest number of shares of the Voting Stock previously
acquired by it. The price determined in accordance with
paragraphs B(i) and B(ii) of this Section 2 shall be subject to
appropriate adjustment in the event of any stock dividend,
stock split, combination of shares or similar event.
(iv) After such Interested Shareholder has become
an Interested Shareholder and prior to the consummation of
such Business Combination: (a) except as approved by a majority
of the Disinterested Directors, there shall have been no
failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on the
outstanding stock having preference over the Common Stock as
to dividends or upon liquidation; (b) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors, and (2) an increase in such annual rate
of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is
approved by a majority of the Disinterested Directors; and (c)
such Interested Shareholder shall not have become the
beneficial owner of any additional shares of Voting Stock
subsequent to the transaction which results in it becoming an
Interested Shareholder.
(v) After such Interested Shareholder has become
an Interested Shareholder, it shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination
or otherwise.
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
Section 3. Certain Definitions. For the purpose of this
Article EIGHTH:
A. A "person" shall mean any individual, firm, company or
other entity.
B. "Interested Shareholder" shall mean any person (other
than the Corporation, any Subsidiary, or the Gannett
Foundation, Inc. ) who or which:
(i) is the beneficial owner, directly or indirectly,
of 10% or more of the voting power of the outstanding Voting
Stock; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 10%
or more of the voting power of the then outstanding Voting
Stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by an Interested Shareholder, if such
assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting
Stock:
(i) that such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns directly
or indirectly; or
(ii) that such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the rights to vote
pursuant to any agreement, arrangement or understanding; or
(iii) that is beneficially owned, directly or
indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
D. For the purpose of determining whether a person is an
Interested Shareholder pursuant to paragraph B of this Section
3, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through
application of paragraph C of this Section 3 but shall not
include any other shares of Voting Stock that may be issuable
pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or
otherwise.
E. "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on March 1, 1985.
F. "Subsidiary" means any corporation of which a majority
of any class of Equity Security is owned, directly or indirectly,
by the Corporation, provided, however, that for the purposes of
the definition of Interested Shareholder set forth in paragraph
B of this Section 3, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of Equity
Security is owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the
Board of Directors who is unaffiliated with the Interested
Shareholder and who was a member prior to the time that the
Interested Shareholder became an Interested Shareholder, or
any successor of a Disinterested Director who is unaffiliated
with the Interested Shareholder and is recommended to succeed
a Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
H. "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange -- Listed Stocks,
or, if such stock is not quoted on the Composite Tape, on the
New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the
date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then
in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by the Board of Directors in good faith; and (ii) in
the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by
the Board of Directors in good faith.
I. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than
cash to be received" as used in paragraphs B(i) and (ii) of
Section 2 of this Article EIGHTH shall include the shares of
Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such
shares.
J. "Equity Security" shall have the meaning ascribed to
such term in Section 3(a)(11) of the Securities Exchange Act of
1934, as in effect on March 1, 1985.
Section 4. Powers of the Board of Directors. A majority
of the directors shall have the power and duty to determine for the
purposes of this Article EIGHTH, on the basis of information known to them
after reasonable inquiry, (A) whether a person is an Interested
Shareholder, (B) the number of shares of Voting Stock beneficially owned by
any person, (C) whether a person is an Affiliate or Associate of another, (D)
whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $25 million or more. A
majority of the directors shall have the further power to interpret all of
the terms and provisions of this Article EIGHTH.
Section 5. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article EIGHTH shall be
construed to relieve any Interested Shareholder of any fiduciary
obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any
other provisions of this Certificate of Incorporation or the By-laws (and
notwithstanding the fact that a lesser percentage may be specified by law,
this Certificate of Incorporation or the By-laws) the affirmative vote of
the holders of 80% or more of the voting power of the outstanding Voting
Stock, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, this Article EIGHTH or
any provision hereof.
NINTH: The Corporation reserves the right at any time and from
time to time to amend, alter or repeal any provision contained in this
Certificate of Incorporation in the manner now or as hereafter prescribed
by law, and all rights, preferences and privileges conferred upon
stockholders, directors and officers by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are subject to
the right reserved in this Article.
IN WITNESS WHEREOF, the undersigned have signed this
Certificate as of this 30th day of September, 1985.
s/ Douglas H. McCorkindale
--------------------------
Douglas H. McCorkindale
Vice Chairman and Chief
Financial Officer
ATTEST:
s/ Thomas L. Chapple
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Thomas L. Chapple
Secretary