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EXHIBIT 3.1
THIRD RESTATED ARTICLES OF INCORPORATION
WITH AMENDMENT
OF
HASTINGS BOOKS, MUSIC & VIDEO, INC.
ARTICLE ONE
Hastings Books, Music & Video, Inc. (the "Corporation"), pursuant to
the provisions of Article 4.07 of the Texas Business Corporation Act, hereby
adopts these Third Restated Articles of Incorporation, which accurately copy
the Articles of Incorporation of the Corporation and all amendments thereto
that are in effect to date and as further amended by such Third Restated
Articles of Incorporation as hereinafter set forth, and which contain no other
change in any provision thereof.
ARTICLE TWO
The Restated Articles of Incorporation of the Corporation are amended
by these Third Restated Articles of Incorporation as follows:
(a) ARTICLE ONE of the Articles of Incorporation of the Corporation is
amended to read in its entire as follows:
ARTICLE ONE
The name of the corporation is Hastings Entertainment, Inc.
ARTICLE THREE
The amendment made by the Third Restated Articles of Incorporation of
the Corporation has been effected in conformity with the provisions of the
Texas Business Corporation Act, and such Third Restated Articles of
Incorporation and each such amendment made by the Third
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Restated Articles of Incorporation were duly adopted by the shareholders of the
Corporation on the 6th day of August, 1996.
ARTICLE FOUR
The number of shares of the Corporation outstanding at the time of
such adoption was 1,686,939; the number of shares entitled to vote on the Third
Restated Articles of Incorporation as so amended was 1,686,939; the number of
shares voted for such Third Restated Articles of Incorporation was 1,531,413;
and no shares voted against such Third Restated Articles of Incorporation.
ARTICLE FIVE
The Restated Articles of Incorporation and all amendments and
supplements thereto are hereby superseded by the following Third Restated
Articles of Incorporation, which accurately copy the entire text thereof, as
amended as set forth above:
THIRD RESTATED ARTICLES OF INCORPORATION
OF
HASTINGS ENTERTAINMENT, INC.
ARTICLE ONE
The name of the corporation is Hastings Entertainment, Inc.
ARTICLE TWO
The period of its duration is perpetual.
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ARTICLE THREE
The purpose for which the corporation is organized is to engage in the
transaction of any or all lawful business for which corporations may be
organized under the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares of capital stock that the corporation
shall have authority to issue is eighty million (80,000,000) shares, consisting
of seventy-five million (75,000,000) shares of Common Stock par value one cent
($.01) per share, and five million (5,000,000) shams of Preferred Stock, par
value one cent ($.01) per share.
The following is a statement of the designations, preferences,
limitations and relative rights in respect of the classes of stock of the
corporation, and of the authority with respect thereto expressly vested in the
Board of Directors of the corporation
Preferred Stock.
Shares of the Preferred Stock may be issued from time to time in one
or more series; the shares of each series to have such voting powers, full or
limited, or no voting powers, and such designations, preferences, limitations
and relative rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in a resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the corporation.
The Board of Directors of the corporation is hereby expressly authorized,
subject to the limitations provided by law, to establish and designate series
of the Preferred Stock, to fix the number of shares constituting each series,
and to fix the designations, preferences, limitations and relative rights,
including voting rights, of the shares of each series and the variations in the
relative powers,
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rights, preferences and limitations as between series, and to increase and
decrease the number of shares constituting each series.
Common Stock.
A. Dividends. Subject to the prior rights and preferences of the
Preferred Stock and subject to the provisions and on the conditions set forth
in any resolution of the Board of Directors of the corporation, dividends may
be paid on the Common Stock in money, property or capital stock, as and when
declared by the Board of Directors of the corporation out of any funds of the
corporation legally available for the payment thereof.
B. Voting. The shares of Common Stock shall be by voting stock
at the rate of one vote for each share of Common Stock.
C. Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the affairs of the corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the corporation and after distribution in full of the
preferential amounts to be distributed to the holders of shares of any and all
series of Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive all the remaining assets of the corporation available for
distribution to its shareholders, ratably in proportion to the number of shares
of Common Stock held by them.
ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand
($1,000.00) dollars consisting of money, labor done, or property actually
received, which sum is not less than One Thousand ($1,000.00) Dollars.
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ARTICLE SIX
No shareholder shall have, as a shareholder of the corporation, any
preemptive right to acquire, purchase or subscribe for the purchase of any
unissued or treasury shares of any class of stock of the corporation, whether
now or hereafter authorized, or any bonds, debentures or other securities of
the corporation convertible into or exchangeable for, or carrying or
accompanied by any rights to acquire, purchase or subscribe for the purchase
of, any such unissued or treasury shares.
ARTICLE SEVEN
Cumulative voting in the election of directors or otherwise is hereby
expressly prohibited.
ARTICLE EIGHT
The directors of the corporation shall be divided into three classes,
as nearly equal in number as reasonably possible, with the directors in each
class to hold office until their successors are elected and qualified. At each
annual meeting of shareholders of the corporation, the successors to the class
of directors whose term shall then expire shall be elected to hold office 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 event 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 his earlier
death, resignation or removal from office. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of Preferred Stock
issued by the corporation shall
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have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of the resolution or resolutions adopted by the Board of Directors
establishing the designations, preferences, limitations and relative rights
with respect to such shares of Preferred Stock, and such directors so elected
shall not be divided into classes pursuant to this Article Eight unless
expressly provided by such terms.
Any vacancy occurring in the Board of Directors may be filled by an
election at an annual meeting or a special meeting of the shareholders called
for that purpose or by the affirmative vote of a majority of the remaining
directors although less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase
in the number of directors may be filled by election at an annual meeting or at
a special meeting of the shareholders called for that purpose or may be filled
by the Board of Directors for a term of office to coincide with the remaining
term of the applicable class; provided that the Board of Directors may not fill
more than two such directorships during the period between any two successive
annual meetings of shareholders.
Notwithstanding the preceding provisions of this Article, whenever the
holders of any one or more classes or series of Preferred Stock issued by the
corporation are entitled to elect one or more directors by the provisions of
the resolution or resolutions adopted by the Board of Directors establishing
the designations, preferences, limitations and relative rights with respect to
such shares, any vacancies in such directorships and any newly created
directorships of such class or series to be filled by reason of an increase in
the number of such directors may be filled by the affirmative vote of a
majority of the directors elected by such class or series then in office
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or by a sole remaining director so elected, or by vote of the holders of the
outstanding shares of such class or series, and such directorships shall not in
any case be filled by the vote of the remaining directors or the holders of the
outstanding shares as a whole unless provided in such resolution or
resolutions.
ARTICLE NINE
Special meetings of shareholders may be called by the Chairman of the
Board of Directors, the President, the Board of Directors, or the holders of at
least twenty-five percent (25%) of all the shares entitled to vote at the
proposed special meeting.
ARTICLE TEN
No action required or permitted to be taken at a meeting of the
shareholders of the corporation may be taken by written consent of the
shareholders.
ARTICLE ELEVEN
The post office of its registered office is 3601 Plains, Amarillo,
Texas 79102, and the name of its registered agent at such address is John H.
Marmaduke.
ARTICLE TWELVE
The number of directors constituting the Board of Directors of the
corporation at the time of the adoption of the Third Restated Articles of
Incorporation is nine (9), and the names and addresses of the directors are as
follows:
Name Address
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1. John Marmaduke P.O. Box 35350 (3601 Plains), Amarillo, Texas 79120 (79102)
2. Walter McNeer P.O. Box 35350 (3601 Plains), Amarillo, Texas 79120 (79102)
3. Ron Stegall 600 Six Flags Drive, Suite 628, Arlington, Texas 76001
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4. Steve Marmaduke 1605 Crockett, Amarillo, Texas 79102
5. Gaines Godfrey 662 La Viveza Court, Santa Fe, New Mexico 87501
6. Peter Dallas P.O. Box 1331, 8th & Taylor, Amarillo, Texas 79180
7. Leonard Berry 202 Lampwick Circle, College Station, Texas 77840
8. Jeffrey Shrader 801 S. Fillmore, Suite 600, P.O. Box 15008, Amarillo, Texas 79105-5008
9. Craig Lentzsch 15110 N. Dallas Parkway, Dallas, Texas 75266-0362
ARTICLE THIRTEEN
The corporation shall indemnify any person who was, is or is
threatened to be made a named defendant or responded in a proceeding (as
hereinafter defined) because the person (a) is or was a director or officer of
the corporation or (b) while a director or officer of the corporation, is or
was serving at the request of the corporation as a director, officer, manager,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic corporation, limited liability company,
partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise, to the fullest extent that a corporation may grant
indemnification to a person serving in such capacity under the Texas Business
Corporation Act, as the same exists or may hereafter be amended.
Such right shall include the right to be paid by the corporation for
all expenses incurred in defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the Texas Business
Corporation Act, as the same exists or may hereafter be amended. If a claim
for indemnification or advancement of expenses hereunder is not paid in full by
the corporation within 90 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid
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amount of the claim, and if successful in whole or in part, the claimant shall
be entitled to be paid also the expenses of prosecuting such claim. It shall be
a defense to any such action that such indemnification or advancement of costs
of defense are not permitted under the Texas Business Corporation Act, but the
burden of proving such defense shall be on the corporation. Neither the failure
of the corporation (including its Board of Directors or any committee thereof,
special legal counsel or shareholders) to have made its determination prior to
the commencement of such action that indemnification of, or advancement of costs
of defense to, the claimant is permissible in the circumstances nor an actual
determination by the corporation (including its Board of Directors or any
committee thereof, special legal counsel or shareholders) that such
indemnification or advancement is not permissible, shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible.
The corporation may additionally indemnify any person not covered by
the grant of mandatory indemnification contained above to the fullest extent
permitted by law.
Neither the amendment nor repeal of this Article, nor the adoption of
any provision of these Third Restated Articles of Incorporation inconsistent
with this Article, shall eliminate or reduce the effect of this Article in
respect of any proceeding that accrued or arose prior to such amendment, repeal
or adoption of any inconsistent provision.
As used herein, the term "proceeding" means any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, any appeal in such an action, suit or proceeding,
and any inquiry or investigation that could lead to such an action, suit or
proceeding.
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ARTICLE FOURTEEN
A director of the corporation shall not be liable to the corporation
or its shareholders for monetary damages for an act or omission in the
director's capacity as a director, except that this Article Fourteen does not
eliminate or limit the liability of a director to the extent the director is
found liable for:
(a) a breach of a director's duty of loyalty to the corporation or
its shareholders;
(b) an act or omission not in good faith that constitutes a breach
of duty of the director to the corporation or an act or omission that involves
intentional misconduct or a knowing violation of the law;
(c) a transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action taken within the
scope of the director's office; or
(d) an act or omission for which the liability of a director is
expressly provided by an applicable statute.
Neither the amendment nor repeal of this Article, nor the adoption of
any provision of these Third Restated Articles of Incorporation inconsistent
with this Article, shall eliminate or reduce the effect of this Article in
respect of any matter occurring, or any cause of action, suit or claim that,
but for this Article. would accrue or arise, prior to such amendment, repeal or
adoption of any inconsistent provision. If the Texas Business Corporation Act
or the Texas Miscellaneous Corporation Laws Act or any successor act thereto is
amended 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 Texas Business Corporation Act or the Texas Miscellaneous Corporation Laws
Act, or any successor act thereto, as so amended from time to time.
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IN WITNESS WHEREOF, the undersigned authorized officer has hereunto
set his hand on behalf of the Corporation as of this 29th day of August,
1996.
HASTINGS ENTERTAINMENT, INC.
By: /s/ DENNIS MCGILL
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Dennis McGill, Vice President,
Secretary, Treasurer, and
Chief Financial Officer
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