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Exhibit 10(o)
HARTE-HANKS, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
AS AMENDED
1. PURPOSE AND EFFECT OF PLAN.
The purpose of the 1994 Employee Stock Purchase Plan (the "Stock Purchase
Plan" or the "Plan") is to secure for Harte-Hanks, Inc., a Delaware corporation
(the "Company"), and its stockholders the benefits of the incentive inherent in
the ownership of the Company's capital stock by employees of the Company and its
subsidiaries. The Stock Purchase Plan is intended to comply with the provisions
of Section 423 of the Internal Revenue Code of 1986, as amended (the Code), and
the Plan shall be administered, interpreted, and construed in accordance with
such provisions.
2. SHARES RESERVED FOR THE PLAN.
There shall be reserved for issuance to and purchase by employees under the
Stock Purchase Plan an aggregate of 6,000,000 shares of Common Stock, $1.00 par
value per share, of the Company ("Common Stock"), subject to adjustment as
provided in Section 12. Shares subject to the Plan may be shares now or
hereafter authored but unissued or shares that were once issued and subsequently
reacquired by the Company. If and to the extent that any right to purchase
reserved shares shall not be exercised by any employee for any reason or if such
right to purchase shall terminate as provided herein, such shares which have not
been so purchased hereunder shall again become available for the purposes of the
Plan unless the Plan shall have been terminated, but such unpurchased shares
shall not be deemed to increase the aggregate number of shares specified above
to be reserved for purposes of the Plan (subject to adjustment as provided in
Section 12).
3. ADMINISTRATION OF THE PLAN.
The Stock Purchase Plan shall be administered, at the expense of the
Company, by a committee appointed by the Board of Directors, which shall be
designated as the Employee Stock Purchase Plan Committee (the "Committee"),
consisting of not less than three members, who shall serve at the pleasure of
the Board of Directors. The Committee shall select one of its members as
chairman and shall hold meetings at such times and places as it may determine.
The Committee may request advice or assistance or employ such persons as are
necessary for proper administration of the Plan. Subject to the express
provisions of the Plan, the Committee shall have the discretionary authority to
interpret the Plan, to supply omissions or correct errors in the Plan, to
prescribe, amend and rescind rules and regulations relating to it, to make
equitable adjustments for any mistakes made in the administration of the Plan,
and to make all other determinations necessary or advisable in administering the
Plan, all of which determinations shall be final and binding upon all persons
unless otherwise determined by the Board of Directors. A quorum of the Committee
shall consist of a majority of its members and the Committee may act by vote of
a majority of its members at a meeting at which a quorum is present or without a
meeting by a written consent to their action taken signed by all members of the
Committee.
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4. ELIGIBLE EMPLOYEES.
All present and future employees of the Company, its present and future
domestic subsidiaries and such of its present or future foreign subsidiaries as
may be designated from time to time by the Committee, shall be eligible to
participate in the Stock Purchase Plan, provided each of such employees:
(a) is not an officer of the Company who is a "highly compensated
employee" as defined in Section 414(q) of the Code,
(b) has been employed by the Company and/or any of its subsidiaries
(or any predecessor thereof) since the June 30 or December 31 immediately
preceding the Enrollment Date in question, as hereinafter defined,
(c) has customary employment of a minimum of 20 hours per week during
at least five months of the year, and
(d) does not own, immediately after the right is granted, stock
possessing five percent (5%) or more of the total combined voting power or
value of all classes of capital stock of the Company or of any subsidiary
company.
In determining whether a corporation is a subsidiary, the rules of Section
424(f) of the Code shall be followed and in determining stock ownership under
this paragraph, the rules of Section 424(d) of the Code shall apply and stock
which the employee may purchase under outstanding options shall be treated as
stock owned by the employee. Employees eligible to participate in the Stock
Purchase Plan pursuant to the provisions of this Section 4 are hereinafter
referred to as "Eligible Employees".
5. ELECTION TO PARTICIPATE.
Each Eligible Employee, at the effective date of the Stock Purchase Plan
and at August 1 in each calendar year after the calendar year which includes the
effective date, and at February 1, 1998 and each subsequent February 1 (each
such August 1 or February 1 being referred to as the Enrollment Date), may
participate in the Plan by filing with the Committee prior to such effective
date or Enrollment Date, as the case may be, an Enrollment Form authorizing
specified regular payroll deductions (in any whole percent from one percent (1%)
through ten percent (10%) over the following twelve (12) month period not to
exceed, in total amount over such period, ten percent (10%) of his or her base
compensation. Base compensation is gross compensation actually paid for the pay
period, excluding all bonuses, severance pay, any extraordinary pay, expense
allowances/ reimbursements, moving expenses and income from restricted stock or
stock option awards. Employees who so elect to participate in the Plan are
referred to herein as Participating Employees. Payroll deductions for each
Participating Employee shall be made regularly commencing on the Enrollment
Date, by the Company and shall be credited to an account which the Company shall
establish in the name of each participant (the "Payroll Deduction Account"). A
Participating Employee may at any time withdraw the entire balance accumulated
in his or her Payroll Deduction Account and thereby cease to be a Participating
Employee in the Plan until the following Enrollment Date of the Plan. Such
payroll deductions shall continue until the Plan terminates or the Participating
Employee elects to cease participating or elects to change his or her
contribution percentage. A Participating Employee may at any time (but not more
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than once during a six month period) decrease his or her payroll deduction, but
not to less than one percent (1%), by filing a new Enrollment Form which shall
become effective on the following payroll date, or as soon thereafter as
practicable. All funds in Payroll Deduction Accounts may be used by the Company
for any corporate purpose. Payroll Deduction Accounts are not credited with
interest.
6. LIMITATION OF NUMBER OF SHARES WHICH AN EMPLOYEE MAY PURCHASE.
No right to purchase shares under this Stock Purchase Plan shall permit an
employee to purchase stock under all employee stock purchase plans of the
Company and its subsidiaries at a rate which exceeds $25,000 of fair market
value of such stock (determined at the time the right is granted) for any
calendar year in which the right is outstanding.
7. PURCHASE PRICE.
The purchase price for each share of Common Stock shall be eighty-five
percent (85%) of the fair market value of such share on the Investment Date, as
defined in Section 8.
"Fair market value" shall be determined by the Committee by any fair and
reasonable means, including if the Common Stock is listed for trading on a
national securities exchange, the mean of the high and low sales prices on such
exchange on the date in question, or if the Common Stock shall not have been
traded on such exchange on such date, the mean of the high and low sales prices
on such exchange on the first day prior thereto on which the Common Stock was
traded.
8. METHOD OF PAYMENT.
As of the last business day in October, January, April and July during the
life of the Plan (each of such dates being known as an "Investment Date"), each
Participating Employee shall have the right to purchase the number of whole
shares of Common Stock determined by dividing the amount of the balance in his
or her Payroll Deduction Account by the purchase price as determined in Section
7. Each Participating Employee having funds in his or her Payroll Deduction
Account on an Investment Date shall be deemed, without any further action, to
have purchased with the funds in such account the number of whole shares which
such Participating Employee has the right to purchase at the purchase price on
that Investment Date. A certificate or certificates representing such shares
shall be issued promptly to the Participating Employee. Any amount remaining in
a Participating Employee's Payroll Deduction Account after any Investment Date
shall be retained in his or her Payroll Deduction Account for use in purchasing
shares of Common Stock on subsequent Investment Dates or refunded to the
Participating Employee if for any reason he or she ceases to participate in the
Plan.
9. REGISTRATION OF CERTIFICATES.
Stock certificates may be registered only in the name of the employee.
10. RIGHTS AS A STOCKHOLDER.
When a Participating Employee's Payroll Deduction Account shall be charged
with the amount of the purchase price of stock, he shall immediately thereupon
have all of the rights or privileges of a
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stockholder of the Company with respect to shares purchased under the Plan,
whether or not certificates representing the purchased shares shall have been
issued.
11. RIGHTS NOT TRANSFERABLE.
Rights under the Plan are not transferable by a Participating Employee and
are exercisable only by the Participating Employee.
12. ADJUSTMENT IN CASE OF CHANGES AFFECTING THE COMPANY'S STOCK.
In the event of a subdivision of outstanding shares of Common Stock or the
payment of a stock dividend thereon, the number of shares reserved or authorized
to be reserved under this Stock Purchase Plan shall be increased
proportionately, and such other adjustment shall be made as may be deemed
necessary or equitable by the Board of Directors. In the event of any other
change affecting the Common Stock, such adjustment shall be made as may be
deemed equitable by the Board of Directors to give proper effect to such event,
subject to the limitations of Section 424 of the Code. In the event of a
corporate transaction described in Section 424(a) of the Code, the Board of
Directors of the Company may, alternatively, approve the assumption of the Plan
by a successor corporation that becomes the employer of a significant number of
Participating Employees ("Successor Employer"). In such event, any uninvested
amounts in the Payroll Deduction Accounts of Participating Employees who become
employees of the Successor Employer (or its subsidiary) shall be invested in
stock of the Successor Employer in accordance with Section 424(a), and such
Participating Employees' most recent Enrollment Forms shall be deemed to
continue in effect, subject to the right of any Participating Employee to cease
participating at any time. In the event of assumption of the Plan, Participating
Employees who do not become employees of the Successor Employer (or one of its
subsidiaries) shall be deemed to have terminated employment, solely for purposes
of this Plan.
13. RETIREMENT, TERMINATION AND DEATH.
In the event of a Participating Employee's retirement or termination of
employment, the amount in his or her Payroll Deduction Account shall be refunded
to such Participating Employee or, in the event of his or her death, shall be
paid to his or her surviving spouse; or, if there is no surviving spouse, to the
person or persons properly designated as his or her beneficiary(ies) under the
Company's group term life insurance program; or, if there is no such beneficiary
surviving, the Committee, in its sole discretion, may direct payment to the
deceased Participating Employee's estate or to one or more of his or her
surviving family members.
14. AMENDMENT OF THE PLAN.
The Board of Directors may at any time, or from time to time, amend the
Plan in any respect, except that, without the approval of the holders of a
majority of the shares of Common Stock of the Company voting thereon, no
amendment shall be made (a) increasing or decreasing the number of shares to be
reserved under the Plan (other than as provided in Section 12) or (b) altering
the eligibility criteria for participation in the Plan.
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15. TERMINATION OF THE PLAN.
The Plan and all rights of employees hereunder shall terminate:
(a) on any Investment Date when Participating Employees become
entitled to purchase a number of shares greater than the number of reserved
shares remaining available for purchase; or
(b) if the Plan is terminated at any time, at the discretion of the
Board of Directors.
In the event that the Plan terminates under circumstances described at (a)
above, reserved shares remaining as of the termination date shall be issued to
Participating Employees in proportion to the balances in the Payroll Deduction
Accounts of such employees. Upon termination of the Plan, all amounts held in
the Payroll Deduction Accounts shall, to the extent not used to purchase shares
of the Common Stock, be refunded to the Participating Employee entitled thereto.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective the latest of (a) August 1, 1994, (b) the
date on which stockholders' approval is obtained and (c) the date on which a
Registration Statement under the Securities Act of 1933, as amended, covering
the shares to be issued under the Plan becomes effective.
17. GOVERNMENTAL AND OTHER REGULATIONS.
The Plan, and the grant and exercise of the rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares, shall be subject to all applicable
Federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required.
18. INDEMNIFICATION OF COMMITTEE.
Members of the Committee shall be indemnified and entitled to reimbursement
of expenses pursuant to the Company's Certificate of Incorporation and bylaws to
the same extent as if they were directors of the Company.
19. LISTING OF SHARES AND RELATED MATTERS.
If at any time the Board of Directors or the Committee shall determine,
based on opinion of counsel, that the listing, registration or qualification of
the shares covered by the Plan upon any national securities exchange or under
any state or federal law or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in connection
with, the sale of purchase of shares under the Plan, no shares will be sold,
issued or delivered unless and until such listing, registration, qualification,
consent or approval shall have been effected or obtained, or otherwise provided
for, free of any conditions not acceptable to counsel.
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20. THIRD PARTY BENEFICIARIES.
None of the provisions of the Plan shall be for the benefit of or
enforceable by any creditor of a Participating Employee or any other third
party. A Participating Employee may not create a lien, encumbrance or assignment
on any portion of the cash balance accumulated in his or her Payroll Deduction
Account or on any shares covered by a right to purchase before a stock
certificate for such shares is issued for his or her benefit.
21. GENERAL PROVISIONS.
The Plan shall neither impose any obligation on the Company or on any
parent or subsidiary corporation to continue the employment of any Participating
Employee, nor in any way limit or restrict the right of the Company or any
parent or subsidiary to discharge any Participating Employee or to change his or
her position or compensation. For purposes of the Plan, an employment
relationship shall be deemed to exist between an individual and a corporation
if, at the time of the determination, the individual is an "employee" of such
corporation within the meaning of Section 423(a)(2) of the Code and the
regulations and rulings interpreting such Section. For purposes of the Plan, the
transfer of a Participating Employee from employment with the Company to
employment with a parent or subsidiary of the Company, or vice versa, shall not
be deemed a termination of employment of the Participating Employee. Subject to
the specific terms of the Plan, all Participating Employees granted rights to
purchase shares hereunder shall have the same rights and privileges.
22. GOVERNING LAW.
The Plan and rights to purchase shares that may be granted hereunder shall
be governed by and construed and enforced in accordance with the laws of the
State of Texas without regard to principles of conflicts of laws.