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As filed with the Securities and Exchange Commission on September 9, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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HARTE-HANKS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 74-1677284
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 CONCORD PLAZA DRIVE
SUITE 800
SAN ANTONIO, TEXAS 78216
(210) 829-9000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
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HARTE-HANKS COMMUNICATIONS, INC.
1998 DIRECTOR STOCK PLAN
(Full title of Plan)
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DONALD R. CREWS COPY TO: JILL B. LOUIS
SENIOR VICE PRESIDENT, LEGAL HUGHES & LUCE, L.L.P.
200 CONCORD PLAZA DRIVE 1717 MAIN STREET, SUITE 2800
SUITE 800 DALLAS, TEXAS 75201
SAN ANTONIO, TEXAS 78216 (214) 939-5500
(210) 829-9000
(Name, address, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $1.00 par value 200,000 $22.25 $4,450,000.00 $1,312.75
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</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, there
are also being registered such additional shares of Common Stock as may
become issuable pursuant to the antidilution provisions of the Plans.
(2) Estimated solely for the purpose of calculating the registration fee for
200,000 shares under the Harte-Hanks Communications, Inc. 1998 Director
Stock Plan on the basis of the average of the high and low prices reported
for a share of Harte-Hanks, Inc. Common Stock on September 3, 1998, as
reported by the New York Stock Exchange, all in accordance with Rule
457(h) promulgated under the Securities Act of 1933, as amended.
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Page 1 of 9 Sequentially Numbered Pages.
The Index to Exhibits is on page 7.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
therein is modified or superseded by a statement or information contained in any
other subsequently filed document incorporated herein by reference. Any
statement so modified will not be deemed a part of this Registration Statement,
except as so modified, and any statement so superseded will not be deemed part
of this Registration Statement.
(a) Annual Report of the Registrant on Form 10-K for the fiscal year
ended December 31, 1997, which contains audited financial statements of the
Registrant for the Registrant's last completed fiscal year for which such
statements have been filed ("1997 10-K").
(b) All reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the 1997 10-K.
(c) The description of the Company's Common Stock contained in the
Registrant's Form 8-A Registration Statement, filed with the Commission on
October 7, 1993, and including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A member of the firm of Hughes & Luce, L.L.P., which has passed on the
validity of the shares of Common Stock registered hereunder, serves as
co-trustee of trusts owning, in the aggregate, 3,750,006 shares of Common Stock.
Such member has no pecuniary interest in the trusts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation
provides that no director of the Company will be personally liable to the
Company or any of its stockholders for monetary damages arising from the
director's breach of the duty of care as a director, with certain limited
exceptions.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of any corporation, partnership,
joint venture, trust or other enterprise, against any and all expenses,
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with such action, suit or proceeding. The power to indemnify applies
only if such person acted in good faith and in a manner he reasonably believed
to be in the best interest, or not opposed to the best interest, of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication unless the court, in its
discretion, believes that in light of all the circumstances indemnification
should apply.
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of the actions referred to
therein, such person is entitled, pursuant to Section 145, to indemnification as
described above.
The Company's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws provide for indemnification to officers and
directors of the Company to the fullest extent permitted by the Delaware General
Corporation Law.
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The Company maintains a policy of liability insurance to insure its
officers and directors against losses resulting from certain wrongful acts
committed by them in their capacity as officers and directors of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-7 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement
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relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Antonio, State of Texas, on September 4, 1998.
HARTE-HANKS, INC.
By: Larry Franklin
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Larry Franklin,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Larry Franklin and Donald R. Crews, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, and any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement or amendment thereto has been signed by the following persons in the
capacities and on the dates indicated.
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<TABLE>
<CAPTION>
Signature Date
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<S> <C>
Larry Franklin September 4, 1998
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Larry Franklin
Director, President and
Chief Executive Officer
Dr. Peter T. Flawn September 4, 1998
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Dr. Peter T. Flawn
Director
David L. Copeland September 4, 1998
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David L. Copeland
Director
Christopher M. Harte September 4, 1998
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Christopher M. Harte
Director
Houston H. Harte September 4, 1998
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Houston H. Harte
Director (Chairman)
Richard M. Hochhauser September 4, 1998
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Richard M. Hochhauser
Director
James L. Johnson September 4, 1998
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James L. Johnson
Director
Jacques D. Kerrest September 4, 1998
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Jacques D. Kerrest
Senior Vice President, Finance and
Chief Financial Officer (Principal
Financial and Accounting Officer)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation (filed as
Exhibit 3(e) to Registrant's Quarterly Report on Form 10-Q
for the period ended 6/30/98 and incorporated herein by
reference)
4.2 Amended and Restated Bylaws (filed as Exhibit 3(b) to the Registrant's --
Registration Statement on Form S-2, Registration No. 33-69202, and
incorporated herein by reference)
4.3 Harte-Hanks 1998 Director Stock Plan (filed as Exhibit 10(h) to
Registrant's Quarterly Report on Form 10-Q for the period ended 6/30/98 and
incorporated herein by reference)
*5 Opinion of Hughes & Luce, L.L.P. 705.01
*23.1 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5). --
*23.2 Consent of KPMG Peat Marwick LLP. 723.02
24 Power of Attorney is found on page II-5 hereof. --
</TABLE>
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* Filed herewith
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EXHIBIT 5
[Hughes & Luce, L.L.P. Letterhead]
September 4, 1998
Harte-Hanks, Inc.
200 Concord Plaza Drive
Suite 800
San Antonio, Texas 78216
Re: Harte-Hanks, Inc. Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission on
September 4, 1998 (the "Registration Statement")
Ladies and Gentlemen:
We have acted as counsel for Harte-Hanks, Inc., a Delaware corporation
(the "Company"), in connection with the proposed offer and sale of up to 200,000
shares (the "Shares") of the Company's Common Stock, par value $1.00 per share,
pursuant to the Registration Statement. In this connection we have examined such
certificates of corporate agents and officers of the Company and other persons,
and the originals or copies of such corporate documents and records of the
Company and other documents, records and papers as we have deemed relevant and
necessary in order to give the opinion hereinafter set forth. We have assumed
the genuineness of all signatures on, and the authenticity of all documents so
examined and the conformity to original documents of all documents submitted to
us as copies. Also we have relied upon certificates and statements of corporate
agents with respect to factual matters contained therein which were not
independently established.
Based upon the foregoing, we are of the opinion that the Shares will
be, if and when issued and paid for pursuant to the Harte-Hanks Communications,
Inc. 1998 Director Stock Plan, validly issued, fully paid and nonassessable,
assuming the Company maintains an adequate number of authorized but unissued
shares of common stock available for such issuance, and further assuming that
the consideration received by the Company for the Shares exceeds the par value
thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this Registration Statement
on Form S-8 of Harte-Hanks, Inc. of our report dated January 27, 1998, relating
to the consolidated balance sheets of Harte-Hanks, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statement of
operations, cash flows, and stockholders' equity for each of the years in the
three-year period ended December 31, 1997, which report appears in the 1997
annual report to Stockholders which is incorporated by reference in the December
31, 1997 annual report on Form 10-K of Harte-Hanks, Inc.
San Antonio, Texas
September 2, 1998
/s/ KPMG PEAT MARWICK LLP
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