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EXHIBIT 3(e)
AS AMENDED
THROUGH 5/5/98
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARTE-HANKS, INC.
The undersigned, Larry D. Franklin certifies that he is the President
and Chief Executive Officer of Harte-Hanks, Inc., a Delaware corporation (the
"Corporation"), and further certifies as follows:
1. The name of the Corporation is Harte-Hanks, 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,
245 and 242 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, 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 two hundred fifty-one million
(251,000,000), of which two hundred fifty million (250,000,000) 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 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;
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(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.
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
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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.
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)
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
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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 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
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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 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
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of the Corporation, and may not be taken by a written consent of the
stockholders.
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 has caused this Amended and Restated
Certificate of Incorporation to be signed by its duly authorized officers, this
30th day of September 1993. [as amended through May 5, 1998]
HARTE-HANKS , INC.
By: /s/ Larry D. Franklin
------------------------------------
Larry D. Franklin
President
[SEAL]
ATTEST:
By: /s/ Donald R. Crews
-------------------------------
Donald R. Crews
Secretary