1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
LAMAR NEW HOLDING CO.
The undersigned, for the purpose of forming a corporation under the
laws of the State of Delaware, hereby certifies as follows::
FIRST. The name of the Corporation is Lamar New Holding Co.
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 one hundred sixty three million
five hundred ten thousand (163,510,000) shares, and shall consist of:
(1) One hundred twenty five million (125,000,000) shares
of Class A Common Stock, $0.001 par value per share;
(2) Thirty-seven million five hundred thousand
(37,500,000) shares of Class B Common Stock, $0.001
par value per share;
(3) Ten thousand (10,000) shares of Class A Preferred
Stock, $638 par value per share; and
(4) One million (1,000,000) shares of Preferred Stock,
$0.001 par value per share, of which 5,720 shares
shall be designated Series AA Preferred Stock.
The Class A Common Stock and the Class B Common Stock are hereinafter
collectively referred to as "Common Stock."
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 Series AA Preferred Stock
and the Class A Preferred Stock and is subject to all the powers, preferences,
rights and priorities of Preferred
2
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 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 Series AA Preferred Stock, 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 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.
2
3
(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., 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
3
4
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 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.
4
5
(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 Series AA and Class A Preferred Stock
The powers, preferences, rights, qualifications, limitations
and restrictions relating to the Series AA Preferred Stock and the Class A
Preferred Stock are as follows:
4.2.1. Rank
The Series AA Preferred Stock and the Class A
Preferred Stock, with respect to dividends and upon liquidation, rank senior to
the Common Stock and are subject to all the powers, preferences, rights and
priorities of any Designated Preferred Stock.
4.2.2. Dividends
Holders of Series AA Preferred Stock and Class A
Preferred Stock, on a pari passu basis, 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 Series AA Preferred Stock or 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 Series AA Preferred Stock and Class A Preferred
Stock shall be paid or declared and set apart for payment before dividends are
declared and paid on the Common Stock.
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
Series AA Preferred Stock and Class A Preferred Stock, on a pari passu basis,
shall be entitled to receive out of the assets of the Corporation, whether such
assets are capital or surplus, the sum of $638 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 Series AA
Preferred Stock and Class A Preferred Stock are insufficient to permit the
payment to such holders of the full preferential amounts to which they are
entitled,
5
6
the entire assets of the Corporation to be distributed shall be distributed
among the holders of the Series AA Preferred Stock and Class A Preferred Stock
on a pari passu basis. After payment to the holders of the Series AA Preferred
Stock and 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
Holders of Series AA Preferred Stock are entitled to
one (1) vote for each shares of such stock held with respect to all matters
properly submitted for the vote of holders of Series AA Preferred Stock. Except
as otherwise provided by law, the holders of Series AA Preferred Stock and of
Common Stock shall be entitled to vote together as a class on all matters.
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 Series AA Preferred Stock or
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;
(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;
6
7
(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.
NINTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this 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.
7
8
Signed this 16th day of July, 1999.
/s/ KEVIN P. REILLY, JR.
---------------------------------------------
Kevin P. Reilly, Jr., Incorporator
8