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EXHIBIT 3(d)
AS AMENDED
THROUGH 4/30/96
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, 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 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 one hundred twenty six million
(126,000,000), of which one hundred twenty five million (125,000,000) 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
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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.
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.
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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.
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
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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 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
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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 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
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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
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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.
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 30th day of September 1993.
HARTE-HANKS COMMUNICATIONS, INC.
By: /s/ Larry D. Franklin
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Larry D. Franklin
President
[SEAL]
ATTEST:
By: /s/ Donald R. Crews
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Donald R. Crews
Secretary
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