As Filed EXHIBIT 3(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARTE-HANKS COMMUNICATIONS, INC.
The undersigned, Larry D. Franklin certifies that he is the
President and Chief Executive Officer of Harte-Hanks Communications,
Inc., a Delaware corporation (the "Corporation"), and further
certifies as follows:
1. The name of the Corporation is Harte-Hanks Communications, Inc.
2. The name under which the Corporation was originally
incorporated was Harte-Hanks Newspapers, Inc., and the original
certificate of incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on October 1, 1970.
This Amended and Restated Certificate of Incorporation was duly
adopted by written consent of the holders of not less than a majority
of the outstanding stock of the Corporation entitled to vote, and
written notice of the Corporation action has been given to the
stockholders of the Corporation who have not so consented in writing,
all in accordance with the provisions of the Sections 228 and 245 of
the Delaware General Corporation Law ("DGCL").
4. The text of the Restated Certificate of Incorporation of the
Corporation as amended hereby is restated to read in its entirety, as
follows:
FIRST. The name of the Corporation is HARTE-HANKS
COMMUNICATIONS, INC.
SECOND. The name of its registered agent and the address of its
registered office in the State of Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801
THIRD. The purpose of the Corporation is to engage in any
lawful activity for which corporations may be organized under the
DGCL.
FOURTH. The aggregate number of shares of capital stock that
the Company shall have the authority to issue is fifty-one million
(51,000,000), of which fifty million (50,000,000) shares shall be
Common Stock of the Corporation, par value $1.00 per share, and one
million (1,000,000) shares shall be Preferred Stock, par value $1.00
per share. Shares of Preferred Stock may be issued from time to time
in one or more series, each such series to have such
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distinctive designation or title as may be fixed by the Board of
Directors prior to the issuance of any shares thereof. Each share of
any series of Preferred Stock shall be identical with all other shares
of such series, except as to the date from which accumulated preferred
dividends, if any, shall be cumulative. Each such series shall have
such voting powers, if any, and such preferences and relative,
participating, optional or other special rights, with such
qualifications, limitations or restrictions of such preferences and/or
rights, and the benefit of such affirmative or negative covenants as
shall be stated in the resolution or resolutions adopted by the Board
of Directors providing for the issue of such series of Preferred
Stock, including, but without limiting the generality of the
foregoing, the following:
(a) The rates and times at which, and the terms and conditions
on which, dividends on Preferred Stock or series thereof shall be
paid;
(b) The right, if any, of the holders of Preferred Stock or
series thereof to convert the same into, or exchange the same for,
shares of other classes or series of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(c) The redemption price or prices, if any, and the time or
times at which, and the terms and condition of which, Preferred Stock
or series thereof may be redeemed;
(d) The rights of the holders of Preferred Stock or series
thereof, if any, upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or winding up of the Corporation;
(e) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock or series
thereof; and
(f) Such other relative, participating, optional or other
special rights and qualifications, limitations or restrictions
thereof, all as may be stated in a resolution or resolutions providing
for the issue of such Preferred Stock.
After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of this
Article FOURTH) shall have been met and after the Corporation shall
have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase
accounts (fixed in accordance with the provisions of this Article
FOURTH), then, and not otherwise, the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
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After distribution in full of the preferential amount (fixed in
accordance with the provisions of this Article FOURTH) to be
distributed to the holders of Preferred Stock in the event of the
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the
Common Stock shall be entitled to receive ratably all of the remaining
assets of the Corporation available for distribution to stockholders.
Except as may otherwise be required by law or provided herein,
each holder of Common Stock shall have one vote in respect of each
share of stock held by such holder on all matters voted upon by
stockholders.
No holder of stock of any class of the Corporation shall be
entitled as of right to subscribe for or purchase any shares of stock
of any class whether now or hereafter authorized, or any bonds,
debentures, or other evidences of indebtedness whether or not
convertible into or exchangeable for stock.
FIFTH. (a) CLASSIFIED BOARD OF DIRECTORS. The number of
directors of the Corporation shall be as from time to time fixed by,
or in the manner provided in, the By-laws of the Corporation. The
directors shall be divided into three classes, designated Class I,
Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting
the entire Board of Directors. The term of the initial Class I
directors shall terminate on the date of the 1994 annual meeting of
stockholders; the term of the initial Class II directors shall
terminate on the date of the 1995 annual meeting of stockholders; and
the term of the initial Class III directors shall terminate on the
date of the 1996 annual meeting of stockholders. At each annual
meeting of stockholders beginning in 1994, successors to the class of
directors whose term expires at that annual meeting shall be elected
for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as
possible, and any additional directors of any class elected to fill a
vacancy resulting from an increase in such class shall hold office
for a term that shall coincide with the remaining term of that class,
but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until
the annual meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from
office. Any vacancy on the Board of Directors, however resulting, may
be filled by a majority of the directors then in office, even if less
than a quorum, or by a sole remaining director. Any director elected
to fill a vacancy shall hold office for a term that shall coincide
with the term of the class to which such director shall have been
elected.
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Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of this Restated
Certificate of Incorporation or the resolution or resolutions adopted
by the Board of Directors pursuant to Article FOURTH applicable
thereto, and such directors so elected shall not be divided into
classes pursuant to this Article FIFTH unless expressly provided by
such terms.
(b) REMOVAL OF DIRECTORS. Subject to the rights, if any, of the
holders of shares of Preferred Stock then outstanding, any or all of
the directors of the Corporation may be removed from office at any
time, but only for cause and only by the affirmative vote of the
holders of a majority of votes represented by the outstanding shares
of the Corporation then entitled to vote generally in the election of
directors, considered for purposes of this Article FIFTH as one class.
SIXTH. (a) RIGHT TO INDEMNIFICATION. Each person who was or
is made a party or is threatened to be made a party to or is involved
in any action, suit, or proceeding whether civil, criminal,
administrative, or investigative ("proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director or
officer of another corporation or as its representative in a
partnership, joint venture, trust, or other enterprise, including
service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, representative or in any other capacity while
serving as a director, officer, or representative, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to
such amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, excise taxes under the Employee
Retirement Income Security Act or penalties, and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer or representative and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators; PROVIDED, HOWEVER, that, except as provided in
paragraph (b) hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such person
seeking indemnity in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof)
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was authorized by the Board of Directors of the Corporation. Such
rights shall be contract rights and shall include the right to be paid
by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; PROVIDED, HOWEVER,
that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer
(and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of such proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it should ultimately
be determined by final judicial decision from which there is no
further right to appeal that such director or officer is not entitled
to be indemnified under this paragraph (a) or otherwise.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph
(a) is not paid in full by the Corporation within sixty (60) days
after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the claimant may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part in
any such suit, or in a suit brought by the Corporation against the
claimant to recover an advancement of expenses pursuant to the terms
of an undertaking referred to in paragraph (a) hereof, the claimant
shall be entitled to be paid also the expense of prosecuting or
defending such claim. In any suit brought by the claimant to enforce
a right to indemnification hereunder, and in any suit by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover
any advanced expenses upon a final adjudication that the claimant has
not met the standards of conduct that make it permissible under the
DGCL for the Corporation to indemnify the claimant for the amount
claimed, but the burden of providing such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth
in the DGCL, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its
stockholders) that the claimant had not met such applicable standard
of conduct, shall be a defense to the action or create a presumption
that the claimant had not met the applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by paragraphs (a) and (b) shall not be exclusive of any other
right that such person may have or hereafter acquire under
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any statute, provision of the Amended and Restated Certificate of
Incorporation, By-laws, agreement, vote of stockholders or
disinterested directors, or otherwise.
(d) INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any such director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the DGCL.
(e) CONTINUANCE. Any repeal or modification of the foregoing
paragraphs of this Article SIXTH by the stockholders of the
Corporation shall not adversely affect any right or protection of an
officer, director or representative of the Corporation existing at the
time of such repeal or modification.
SEVENTH. Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or
between the Corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of the Corporation or of any
creditor or stockholder thereof or on the application of any receiver
or receivers appointed for the Corporation under the provisions of
section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for
the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the Corporation, as
the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of
the Corporation, as the case may be, and also on the Corporation.
EIGHTH. The Bylaws of the Corporation may be adopted, repealed,
altered, amended, or rescinded by (a) a majority of the authorized
number of directors and, if one or more interested stockholders (as
defined in Section 203 of the DGCL) exists, by a majority of the
directors who are Continuing Directors or (b) the affirmative vote of
the holders of not less than 66 2/3% of the voting power of the
Company's capital stock and if such adoption, repeal, alteration,
amendment, or rescission is proposed by or on
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behalf of an interested stockholder or a director affiliated with an
interested stockholder, by a majority of the disinterested shares.
"Continuing Director" means a director of the corporation who (i) was
a member of the Board of the Corporation as of September 20, 1993, or
(ii) is a beneficial owner, or affiliate of such beneficial owner, of
less than 20% of the Common Stock of the Corporation and who became a
director of the Corporation subsequent to September 20, 1993, and
whose initial election or initial nomination for election was approved
by a majority of the Continuing Directors then on the Board of
Directors of the Corporation. The provisions of this Amended and
Restated Certificate of Incorporation may be altered, amended or
repealed by the affirmative vote of the holders a majority of the
issued and outstanding stock having voting power provided, that with
respect to the provisions of Articles Fifth, Seventh, Eighth, Tenth
and Eleventh, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the issued and
outstanding stock having voting power shall be required.
NINTH. The Corporation may in its Bylaws by amendment thereto
make any lawful restriction upon the sale or transfer of stock of the
Corporation held by its stockholders; and all persons subscribing for
stock of the Corporation or purchasing stock, whether from the
Corporation itself or from any stockholder, shall take notice of and
be bound by such lawful restrictions, and shall be deemed to agree
thereto.
TENTH. (a) A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL, or (iv) for any transaction from
which the director derived any improper personal benefit. If the DGCL
is amended after approval by the stockholders of this article to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
(b) Any repeal of modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of
such repeal or modification.
ELEVENTH. Any action required or permitted to be taken at any
annual or special meeting of stockholders may be taken only upon the
vote of the stockholders at an annual or special meeting duly noticed
and called, as provided in the By-laws of the Corporation, and may not
be taken by a written consent of the stockholders.
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Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the chief executive
officer or by a majority of the members of the Board of Directors.
Special meetings of the stockholders of the Corporation may not be
called by any other person or persons.
IN WITNESS WHEREOF, Harte-Hanks Communications has caused this
Amended and Restated Certificate of Incorporation to be signed by its
duly authorized officers, this 4th day of October, 1993.
HARTE-HANKS COMMUNICATIONS, INC.
By: /s/ Larry D. Franklin
Larry D. Franklin
President
{SEAL}
ATTEST:
By: /s/ Donald R. Crews
Donald R. Crews
Secretary
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