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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LAMAR ADVERTISING COMPANY
The undersigned, Kevin P. Reilly, Jr. and Charles W. Lamar, III, do
hereby certify:
A. They are the duly elected President and Secretary,
respectively, of Lamar Advertising Company, a Delaware corporation (the
"Corporation").
B. The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State on October 23, 1989, and the name under
which the Corporation was originally incorporated is Lamar Advertising Company.
C. The Certificate of Incorporation, as previously amended, is
further amended and restated to read in full as follows:
FIRST. The name of the Corporation is Lamar Advertising Company.
SECOND. The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is seventy-six million ten thousand
(76,010,000) shares, and shall consist of:
(1) Fifty million (50,000,000) shares of Class A Common
Stock, $0.001 par value per share;
(2) Twenty-five million (25,000,000) shares of Class B
Common Stock, $0.001 par value per share;
(3) Ten thousand (10,000) shares of Class A Preferred
Stock, $638.00 par value per share; and
(4) One million (1,000,000) shares of undesignated
Preferred Stock, $0.001 par value per share.
The Class A Common Stock and the Class B Common Stock are hereinafter
collectively referred to as "Common Stock."
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4.1 Common Stock
The powers, preferences, rights, qualifications, limitations and
restrictions relating to the Common Stock are as follows:
4.1.1. Rank
The Common Stock is junior to the Class A Preferred Stock and
is subject to all the powers, preferences, rights and priorities of Preferred
Stock designated herein or in any resolution or resolutions adopted by the
Board of Directors pursuant to authority expressly vested in it by the
provisions of Section 4.3 of this Article FOURTH (the "Designated Preferred
Stock").
4.1.2. Voting
Holders of Class A Common Stock are entitled to one (1) vote
for each share of such stock held, and holders of Class B Common Stock are
entitled to ten (10) votes for each share of such stock held, with respect to
all matters properly submitted for the vote of holders of Common Stock. Except
as otherwise provided by law, the holders of Common Stock will vote together as
a single class on all matters properly submitted for their vote, including
without limitation any amendment to this Amended and Restated Certificate of
Incorporation which would increase or decrease the number of authorized shares
of Class A Common Stock or Class B Common Stock.
4.1.3. Dividends and Other Distributions
(a) Except as provided herein, each share of Common Stock
issued and outstanding shall be identical in all respects, and no dividend
shall be paid on any share of Common Stock unless the same dividend is paid on
all shares of Common Stock outstanding at the time of such payment. Except for
and subject to those special voting rights expressly granted herein to the
holders of the Class B Common Stock and subject to the powers, rights,
privileges, preferences and priorities of the Class A Preferred Stock and any
Designated Preferred Stock, the holders of Common Stock shall have exclusively
all other rights of stockholders, including without limitation (i) the right to
receive dividends, when, as and if declared by the Board of Directors out of
funds legally available therefor, and (ii) in the event of any distribution of
assets upon liquidation, dissolution or winding up of the Corporation or
otherwise, the right to receive ratably all of the assets and funds of the
Corporation remaining after the payment to the creditors of the Corporation.
(b) Dividends and distributions payable in shares of
Class A Common Stock may not be made on or to shares of Class B Common Stock
and dividends and distributions payable in shares of Class B Common Stock may
not be made on or to shares of any class of the Corporation's capital stock
other than the Class B Common Stock. If a dividend or distribution payable in
shares of Class A Common Stock shall be made on the shares of Class A Common
Stock, a dividend or distribution payable in shares of Class B Common Stock
shall be made simultaneously on the shares of Class B Common Stock, and the
number of shares of Class B Common Stock payable on each share of Class B
Common Stock pursuant to such
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dividend or distribution shall be equal to the number of shares of Class A
Common Stock payable on each share of Class A Common Stock pursuant to such
dividend or distribution. If a dividend or distribution payable in shares of
Class B Common Stock shall be made on the shares of Class B Common Stock, a
dividend or distribution payable in shares of Class A Common Stock shall be
made simultaneously on the shares of Class A Common Stock, and the number of
shares of Class A Common stock pursuant to such dividend or distribution shall
be equal to the number of shares of Class B Common Stock payable on each share
of Class B Common Stock pursuant to such dividend or distribution.
(c) If the Corporation shall in any manner subdivide (by
stock split, reclassification, stock dividend, recapitalization, or otherwise)
or combine (by reverse stock split or otherwise) the outstanding shares of
Class A Common Stock or Class B Common Stock, then the outstanding shares of
each other class of Common Stock shall be subdivided or combined, as the case
may be, to the same extent, on an equal share basis.
4.1.4. Conversion of Class B Common Stock
(a) In the event that the number of outstanding shares of
Class B Common Stock falls below ten percent (10%) of the total number of
shares of Common Stock outstanding, each share of Class B Common Stock shall at
that time be converted automatically to one (1) fully paid and non-assessable
share of Class A Common Stock.
(b) Upon the sale or other transfer by a holder of Class B
Common Stock to a person or entity other than a Permitted Transferee (as such
term is defined below), such shares of Class B Common Stock shall be converted
automatically into an equal number of shares of Class A Common Stock. Promptly
upon such sale or other transfer, the holder of Class B Common Stock shall
surrender the certificate or certificates therefor, duly endorsed in blank or
accompanied by proper instruments of transfer, at the office of the Corporation
or of any transfer agent for the Class A Common Stock, and shall give written
notice to the Corporation at such office: (i) stating that the shares are being
converted pursuant to this paragraph, (ii) identifying the number of shares of
Class B Common Stock being converted and (iii) setting forth the name or names
(with addresses) and denominations in which the certificate or certificates for
Class A Common Stock shall be issued and shall include instructions for
delivery thereof. Delivery of such notice together with the certificates
representing the Class B Common Stock shall obligate the Corporation or its
transfer agent to issue and deliver at such stated address to such stated
transferee a certificates or certificates for the number of shares of Class A
Common Stock to which such transferee is entitled, registered in the name of
such transferee. In the event of a sale or other transfer of less than all of
the Class B Common Stock evidenced by a certificate surrendered to the
Corporation in accordance with the above procedures, subject to paragraph (a)
above, the Corporation shall execute and deliver to the transferor, without
charge, a new certificate evidencing the number of shares of Class B Common
Stock not sold or otherwise transferred.
For the purpose of paragraph (b) above, a "Permitted Transferee" is
defined as :
(i) (A) any Controlling Stockholder (which shall mean
the Reilly Family Limited Partnership or any successor entity thereto, Kevin P.
Reilly, Sr., Kevin P. Reilly, Jr.,
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Wendell S. Reilly, Sean E. Reilly, and Anna R. Cullinan; (B) the estate of a
Controlling Stockholder; (C) the spouse or former spouse of a Controlling
Stockholder; (D) any lineal descendent of a Controlling Stockholder, any spouse
of such lineal descendent, a Controlling Stockholder's grandparent, parent,
brother or sister or a Controlling Stockholder's spouse's brother or sister;
(E) any guardian or custodian (including a custodian for purposes of the
Uniform Gift to Minors Act or Uniform Transfers to Minors Act) for, or any
conservator or other legal representative of, one or more Permitted
Transferees; or (F) any trust or savings or retirement account, including an
individual retirement account for purposes of federal income tax laws, whether
or not involving a trust, principally for the benefit of one or more Permitted
Transferees, including any trust in respect of which a Permitted Transferee has
any general or special testamentary power of appointment which is limited to
any other Permitted Transferee;
(ii) the Corporation;
(iii) any employee benefit plan or trust thereunder
sponsored by the Corporation or any of its subsidiaries;
(iv) any trust principally for the benefit of one or more
of the individuals, persons, firms or entities ("Persons") referred to in (i)
through (iii) above;
(v) any corporation, partnership, or other entity if all
of the beneficial ownership is held solely by one or more of the Persons
referred to in (i) through (iv) above;
(vi) any voting trust for the benefit of one or more of
the Persons referred to in (i) through (v) above; and
(vii) any broker or dealer in securities, clearing house,
bank, trust company, savings and loan association or other financial
institution which holds the Class B Common Stock as nominee for the benefit of
a Permitted Transferee thereof.
(c) Notwithstanding anything to the contrary set forth
herein, any holder of Class B Common Stock may pledge his shares of Class B
Common Stock to a pledgee pursuant to a bona fide pledge of such shares as
collateral security for indebtedness due to the pledgee without causing an
automatic conversion of such shares into Class A Common Stock, provided,
however, that such shares may not be transferred to or registered in the name
of the pledgee unless such pledgee is a Permitted Transferee. In the event of
foreclosure or other similar action by a pledgee who is not a Permitted
Transferee, such pledged shares of Class B Common Stock shall be converted
automatically, without any act or deed on the part of the Corporation or any
other person, into shares of Class A Common Stock as provided above.
(d) Each share of Class B Common Stock shall be
convertible, at the option of its holder, into one fully paid and
non-assessable share of Class A Common Stock at any time. In the event of such
voluntary conversion, the procedures set forth in paragraph (b) above shall be
followed.
(e) The Corporation hereby reserves and shall at all
times reserve and keep available, out of its authorized and unissued Class A
Common Stock, for the purpose of
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effecting the conversions provided for herein, a sufficient number of shares of
Class A Common Stock to effect the conversion of all outstanding Class B Common
Stock. All of the Class A Common Stock so issuable shall, when issued, be duly
and validly issued, fully paid and non-assessable, and free from liens and
charges with respect to the issue. The Corporation will take such action as
may be necessary to ensure that all such Class A Common Stock may be so issued
without violation of any applicable law or regulation, or of any requirements
of any stock exchange or market on which any shares of the Class A Common Stock
are listed or quoted.
(f) In any merger, consolidation or business combination,
the consideration to be received per share by the holders of Class A Common
Stock and Class B Common Stock must be identical for each class of stock,
except that in any such transaction in which shares of Common Stock are to be
distributed, such shares may differ as to voting rights to the extent that
voting rights differ among Class A Common Stock and Class B Common Stock as
provided herein.
4.1.5. Preemptive Rights
No holder of shares of Common Stock shall be entitled to
preemptive or subscription rights.
4.2 Class A Preferred Stock
The powers, preferences, rights, qualifications, limitations and
restrictions relating to the Class A Preferred Stock are as follows:
4.2.1. Rank
The Class A Preferred Stock, with respect to dividends and
upon liquidation, ranks senior to the Common Stock and is subject to all the
powers, preferences, rights and priorities of any Designated Preferred Stock.
4.2.2. Dividends
Holders of Class A Preferred Stock, in priority to the Common
Stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available therefor, dividends at the rate of
fifteen and 95/100 dollars ($15.95) per share per quarter, payable to the
stockholders of record at the close of business on such date before the payment
thereof as is fixed by the Board of Directors on declaring any such dividend.
Dividends shall be cumulative and the holders of Class A Preferred Stock shall
have no right to such dividend even though the Corporation has funds available
for the payment therefor, unless payment has been declared by the Board of
Directors. Dividends on the Class A Preferred Stock shall be paid or declared
and set apart for payment before dividends are declared and paid on the Common
Stock.
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4.2.3. Dissolution or Liquidation
In the case of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Class A
Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets are capital or surplus, the sum of the par
value of the Class A Preferred Stock plus a further amount equal to any
dividend thereon accrued and unpaid to the date of such distribution before any
payment shall be made or any assets distributed to the Common Stock. Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, if the assets distributed among the holders of the Class A
Preferred Stock are insufficient to permit the payment to such holders of the
full preferential amounts to which they are entitled, the entire assets of the
Corporation to be distributed shall be distributed among the holders of the
Class A Preferred Stock. After payment to the holders of the Class A Preferred
Stock of the full preferential amounts to which they are entitled, the holders
of the Common Stock shall be entitled to receive ratably all the remaining
assets. A merger or consolidation of the Corporation with or into any other
corporation or entity, shall not be deemed to be a dissolution or liquidation
within the meaning of this provision.
4.2.4. Voting
Except as otherwise provided by law, the holders of the Class
A Preferred Stock shall not be entitled to vote.
4.2.5. Preemptive Rights
No holder of shares of Class A Preferred Stock shall be
entitled to preemptive or subscription rights.
4.3. Designated Preferred Stock
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH, to provide by
resolution for the issuance of the shares of undesignated Preferred Stock in
one or more series, and by filing a certificate pursuant to the applicable law
of the State of Delaware, to establish from time to time the number of shares
to be included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and qualifications,
limitations or restrictions thereof.
The authority of the Board with respect to each series, which shall be
Designated Preferred Stock, shall include, but shall not be limited to,
determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate, if any, on the shares of that
series, whether dividends shall be cumulative, and if so, from which date or
dates, and the relative rights of priority, if any, of payment of dividends on
shares of the series;
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(c) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights;
(d) Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(e) Whether or not the shares of that series shall be
redeemable, and if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and if so, the terms and
amount of such sinking fund;
(g) The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(h) Any other relative rights, preferences and
limitations of that series.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. Election of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
SEVENTH. The Board of Directors of the Corporation is expressly
authorized to exercise all powers granted to it by law except insofar as such
powers are limited or denied herein or by the by-laws of the Corporation. In
furtherance of such powers, the Board of Directors shall have the right to
adopt, amend or repeal the by-laws of the Corporation.
EIGHTH. No director shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for 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) pursuant to Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General Corporation Law
is hereafter amended to authorize a further limitation or elimination of the
liability of directors or officers, then the liability of a director or officer
of the Corporation shall, in addition to the limitation on personal liability
provided herein, be limited or eliminated to the fullest extent permitted by
the Delaware General Corporation Law, as from time to time amended. No
amendment to or repeal of this Article Ninth shall apply to or have any effect
on the liability or alleged liability of any director or officer of the
Corporation for or with respect to any acts or omissions of such director or
officer occurring prior to such amendment or repeal.
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NINTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
D. 1. Each share of Class A common stock, no par value, and
Class B common stock, no par value, outstanding immediately prior to the time
the Amended and Restated Certificate of Incorporation becomes effective under
the General Corporation Law of the State of Delaware (the "Outstanding Common
Stock") shall be reclassified and exchanged as follows:
a. Each share of Outstanding Common Stock held
by a stockholder other than the Lamar Family Limited Partnership (the
"Partnership"), who voted its shares to approve the Amended Restated
Certificate of Incorporation, shall automatically become 778.877 fully paid and
nonassessable shares of Class A Common Stock, $0.001 par value per share,
without the surrender of stock certificates or any other action by the holder
of such shares or any other person;
b. Each other share of Outstanding Common Stock,
including the shares held by the Partnership, shall automatically become
778.877 fully paid and nonassessable shares of Class B Common Stock, $0.001 par
value par share, without the surrender of stock certificates or any other
action by the holder of such shares or any other person; and
c. Notwithstanding the foregoing, no fractional
shares shall be issued but rather the shares issuable to any holder shall be
rounded to the nearest full number of shares.
2. The capital of the Corporation on account of the
Class A Common Stock and Class B Common Stock issued pursuant to the foregoing
paragraph 1 shall equal the par value of the shares so issued and the balance,
if any, of the capital of the Corporation on account of the Outstanding Common
Stock shall be transferred to surplus.
3. All of the outstanding certificates which represented
shares of Outstanding Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Class A Common Stock and
Class B Common Stock issuable pursuant to paragraph 1, as applicable. Such
outstanding certificates shall be exchanged for new certificates as soon as
practicable.
E. This Certificate and the foregoing Amended and Restated
Certificate of Incorporation has been approved by the Board of Directors of the
Corporation.
F. This Certificate and the foregoing Amended and Restated
Certificate of Incorporation was adopted by (i) the holders of a majority of
the shares of Outstanding Common Stock and (ii) the holders of a majority of
the outstanding shares of Class A Preferred Stock, in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Kevin P. Reilly, Jr., its President, and attested by Charles W.
Lamar, III, its Secretary, on July 30, 1996.
/s/ KEVIN P. REILLY, JR.
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Kevin P. Reilly, Jr., President
Attest:
/s/ CHARLES W. LAMAR, III
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Charles W. Lamar, III, Secretary
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