<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
AUGUST 6, 1999
LAMAR ADVERTISING COMPANY
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 0-20833 72-1205791
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
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5551 CORPORATE BOULEVARD, BATON ROUGE, LOUISIANA 70808
(Address of principal executive offices and zip code)
(225) 926-1000
(Registrant's telephone number, including area code)
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ITEM 5. OTHER
In order to furnish certain exhibits for incorporation by reference
into the Registration Statement on Form S-3 of Lamar Advertising Company
previously filed with Securities and Exchange Commission (File No. 333-71929),
which Registration Statement was declared effective by the Commission on
February 12, 1999, Lamar Advertising Company is filing the following documents
herewith: (i) an Underwriting Agreement dated August 4, 1999 among Lamar
Advertising Company, Goldman, Sachs & Co., Deutsche Bank Securities Inc., Morgan
Stanley & Co. Incorporated and Salomon Smith Barney Inc. as Exhibit 1.2 to such
Registration Statement, (ii) an opinion of Palmer & Dodge LLP, counsel to Lamar
Advertising Company, regarding the validity of certain convertible notes to be
sold by Lamar Advertising Company pursuant to such Underwriting Agreement and
shares of Lamar Advertising Company's Class A Common Stock, $.001 par value per
share issuable upon conversion of such notes as Exhibit 5.2 to such Registration
Statement; (iii) an opinion of Sullivan & Cromwell, counsel to the Underwriters,
regarding the validity of the securities to be sold by Lamar Advertising
Company pursuant to such Underwriting Agreement as Exhibit 5.3 to such
Registration Statement; (iv) a Form of Indenture to be dated as of August 10,
1999 between Lamar Advertising Company and State Street Bank and Trust Company,
as Trustee as Exhibit 4.7 to the Registration Statement; (v) a Form of First
Supplemental Indenture to be dated as of August 10, 1999 between Lamar
Advertising Company and State Street Bank and Trust Company, as Trustee as
Exhibit 4.8 to such Registration Statement; and (vi) a Statement of Eligibility
of Trustee on Form T-1 by State Street Bank and Trust Company as Exhibit 25.1 to
such Registration Statement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.2 Underwriting Agreement dated August 4, 1999 among
Lamar Advertising Company, Goldman, Sachs & Co.,
Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated and Salomon Smith Barney Inc. Filed
herewith.
4.7 Form of Indenture to be dated as of August 10, 1999
between Lamar Advertising Company and State Street
Bank and Trust Company, as Trustee. Filed herewith.
4.8 Form of First Supplemental Indenture to be dated as
of August 10, 1999 between Lamar Advertising Company
and State Street Bank and Trust Company, as Trustee.
Filed herewith.
5.2 Opinion of Palmer & Dodge LLP. Filed herewith.
5.3 Opinion of Sullivan & Cromwell. Filed herewith.
25.1 Statement of Eligibility of Trustee on Form T-1 by
State Street Bank and Trust Company. Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 5, 1999 LAMAR ADVERTISING COMPANY
By: /s/ KEVIN P. REILLY, JR.
---------------------------------
Kevin P. Reilly, Jr.
President and Chief Executive Officer
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1.2 Underwriting Agreement dated August 4, 1999 among Lamar
Advertising Company, Goldman, Sachs & Co., Deutsche Bank
Securities Inc., Morgan Stanley & Co. Incorporated and Salomon
Smith Barney Inc. Filed herewith.
4.7 Form of Indenture to be dated as of August 10, 1999 between Lamar
Advertising Company and State Street Bank and Trust Company, as
Trustee. Filed herewith.
4.8 Form of First Supplemental Indenture to be dated as of August 10,
1999 between Lamar Advertising Company and State Street Bank and
Trust Company, as Trustee. Filed herewith.
5.2 Opinion of Palmer & Dodge LLP. Filed herewith.
5.3 Opinion of Sullivan & Cromwell. Filed herewith.
25.1 Statement of Eligibility of Trustee on Form T-1 by State Street
Bank and Trust Company. Filed herewith.
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EXHIBIT 1.2
UNDERWRITING AGREEMENT
August 4, 1999
Goldman, Sachs & Co.,
Deutsche Bank Securities Inc.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Lamar Advertising Company, a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in Schedule
III hereto (the "Underwriters") $250,000,000 aggregate principal amount of its
5.25% Convertible Notes due 2006, convertible into Class A common stock, par
value $0.001 per share ("Stock"), of the Company (the "Firm Securities") to be
issued pursuant to an indenture to be dated as of August 10, 1999, between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee") and
a supplemental indenture thereto to be dated as of the same date, between the
Company and the Trustee (the indenture and supplemental indenture,
collectively, the "Indenture"). In addition, the Company has granted to the
Underwriters an option to purchase up to $37,500,000 additional aggregate
principal amount of Securities (the "Option Securities") to be issued pursuant
to the Indenture, as provided in Section 2. The Firm Securities, and if and to
the extent such option is exercised, the Option Securities, are collectively
called the "Securities".
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as follows:
(a) A registration statement on Form S-3 (File No. 333-50559) (the
"1998 Registration Statement") and a registration statement on Form S-3 (File
No. 333-71929) (the "1999 Registration Statement") with respect to, among other
securities, the Securities and the Stock issuable upon exercise or conversion
of the Securities (the "Underlying Securities"), have been filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act") and have become effective. On the effective
date of each such registration statement, such registration statement conformed
in all material respects with the requirements of the Act, Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission (the "Rules and Regulations"). Copies of the 1999
Registration Statement, including the prospectus contained therein but
excluding exhibits to such registration statement other than those documents
incorporated by reference in such prospectus, as finally amended and revised,
have heretofore been delivered by the Company to the Underwriters. The 1998 and
1999 Registration Statements, including any
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documents incorporated therein by reference and any exhibits, financial
statements and schedules thereto, are herein collectively referred to as the
"Registration Statements". No post-effective amendments to the Registration
Statements have been filed as of the date of this Agreement, except that the
1999 Registration Statement constitutes a post-effective amendment of the 1998
Registration Statement and that each of the Registration Statements has been
amended by means of a post-effective amendment to include the Company as a
successor registrant to the company of like name, which existed prior to a
reorganization of the Company pursuant to Section 251(g) of the Delaware
General Corporation Law, and to add Lamar Media Corp. and certain subsidiaries
of Lamar Media Corp. as co-registrants. The form of prospectus dated February
4, 1999 included in the 1999 Registration Statement, as supplemented by the
prospectus supplement to be dated August 5, 1999, and as modified by the
accompanying base prospectus dated February 12, 1999, each relating to the
offering of the Securities, and to be filed by the Company with the Commission
pursuant to Rule 424(b), is herein referred to as the "Prospectus". Any
reference herein to the Registration Statements or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein,
and, in the case of any reference herein to the Prospectus, also shall be
deemed to include any supplements relating to the Securities being issued and
sold pursuant hereto filed with the Commission under Rule 424(b), in each case,
subsequent to the date hereof and prior to the termination of the offering of
the Securities by the Underwriters.
(b) Except as otherwise disclosed in the Prospectus, subsequent to
the respective dates as of which information is given in the Prospectus: (i)
there has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations, whether or
not arising from transactions in the ordinary course of business, of the Company
and its subsidiaries, considered as a whole (any such change is called a
"Material Adverse Change"); (ii) the Company and its subsidiaries, considered as
a whole, have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business;
and (iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any class
of capital stock.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus; the subsidiaries listed on Schedule I
hereto (the "Subsidiaries") are the only subsidiaries of the Company; each
Subsidiary has been duly organized and is validly existing as a corporation,
partnership or limited liability company in good standing under the laws of its
jurisdiction of organization, with corporate, partnership or other
organizational power and authority to own or lease its properties and conduct
its business as described in the Prospectus, except where the failure so to be
in good standing would not, individually or in the aggregate, result in a
Material Adverse Change. The Company and each Subsidiary is duly qualified to
transact business in all jurisdictions in which the conduct of its business
requires such qualification, except where the failure so to qualify would not
reasonably be expected to result in a Material Adverse Change; the outstanding
shares of capital stock or other equity interest of each Subsidiary has been
duly
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authorized and validly issued, is fully paid and non-assessable; except as
indicated on Schedule I hereto, all of the shares of capital stock of the
Subsidiaries are owned by the Company, directly or indirectly through another
Subsidiary, free and clear of all liens, encumbrances and security interests
(other than as described in the 1999 Registration Statement) other than those
which would not reasonably be expected individually or in the aggregate to
materially impair the value of such shares; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligations into shares of capital stock or ownership interests of
the Subsidiaries are outstanding. Except for the Subsidiaries and investments
in securities as described in the 1999 Registration Statement, the Company has
no equity or other interest in, or right to acquire an equity or other interest
in, any corporation, partnership, trust or other entity.
(d) (i) The Indenture has been duly qualified under the Trust
Indenture Act. The execution and delivery of, and the performance by the
Company of its obligations under the Indenture have been duly and validly
authorized by the Company, and the Indenture has been duly executed and
delivered by the Company and constitutes the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) the remedy
of specific performance and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before which the
proceedings may be brought.
(ii) The Securities have been duly authorized by the Company,
and when the Securities are executed and authenticated in accordance with the
provisions of the Indenture and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, the Securities will be
entitled to the benefits of the Indenture and will constitute valid and legally
binding agreements of the Company, enforceable against the Company in
accordance with their terms, except (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) the remedy of specific performance and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which the proceedings may be brought.
(iii) When the Securities are delivered and paid for pursuant to
this Agreement on the Closing Date or Option Closing Date (each as defined in
Section 2), such Securities will be convertible into the Underlying Securities
in accordance with the terms of such Securities and the Indenture; the
Underlying Securities initially issuable upon exercise or conversion of such
Securities have been duly authorized and reserved for issuance and upon such
exercise or conversion and, when issued upon such exercise or conversion, will
be validly issued, fully paid and non-assessable; the outstanding Underlying
Shares have been duly authorized and validly issued, are fully-paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and no preemptive rights of stockholders exist with respect to such
convertible Securities or the Underlying Securities.
(e) The Securities conform with the statements concerning them in the
Prospectus.
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(f) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the Securities
nor instituted proceedings for that purpose. The Registration Statements
contain and the Prospectus and any amendments or supplements thereto will
contain all statements which are required to be stated therein by, and in all
material respects conform or will conform, as the case may be, to the
requirements of, the Act and the Rules and Regulations. The documents
incorporated by reference in the Prospectus, at the time they were filed or
will be filed with the Commission, conformed or will conform at the time of
filing, in all material respects to the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Trust Indenture Act or the
Act, as applicable, and the Rules and Regulations of the Commission thereunder.
Neither of the Registration Statements, as of its effective date, nor the
Prospectus nor any supplement thereto, as of the date it is filed with the
Commission, contains or will contain, as the case may be, any untrue statement
of a material fact or omits or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statements or the
Prospectus, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters, for use in the
preparation thereof; and provided, further, that the Company makes no
representations or warranties as to that part of the Registration Statements
that constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee.
(g) The consolidated financial statements of the Company and its
subsidiaries, together with related notes and schedules, as incorporated by
reference in the Prospectus, present fairly the consolidated financial position
and the consolidated results of operations of the Company and its subsidiaries
at the indicated dates and for the indicated periods. All such financial
statements have been prepared in accordance with generally accepted principles
of accounting, consistently applied throughout the periods involved, except as
disclosed therein. The summary and selected financial and statistical data
included or incorporated by reference in the Prospectus present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent with the financial statements presented therein. The pro forma
condensed consolidated financial statements of the Company and its subsidiaries
and the related notes thereto, included as Exhibit 99.4 to the Current Report
on Form 8-K/A dated October 1, 1998 and filed with the Commission on October
19, 1999, and as Exhibit 99.2 to the Current Report on Form 8-K dated July 6,
1999 and filed with the Commission on July 7, 1999, present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(h) After due inquiry, the Company has no reason to believe that the
consolidated financial statements of each of Outdoor Communications, Inc. and
subsidiaries, OCI Corp. of Michigan and subsidiaries and Mass Communications
Corp. and subsidiary (collectively, the "OCI Financials") included as Exhibit
99.4 to the Company's Current Report on Form 8-K/A dated October 1, 1998 and
filed with the Commission on October 19, 1998, and each of Chancellor Media
Outdoor Corporation, the outdoor advertising division of Whiteco Industries,
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Inc., Martin Media L.P. and Martin MacFarlane, Inc. (collectively, the "Outdoor
Financials") included as Exhibit 99.1 to the Current Report on Form 8-K dated
July 6, 1999 and filed with the Commission on July 7, 1999, do not fairly
present the consolidated financial position, results of operations, changes in
stockholder's equity and cash flows of the entities described therein on the
basis described therein at the respective dates or for the respective periods
to which they apply or that the OCI Financials or the Outdoor Financials have
not been prepared in accordance with generally accepted accounting principles
consistently applied, except as described therein.
(i) There is no action or proceeding pending or, to the knowledge of
the Company, threatened against the Company or the Subsidiaries before any
court or administrative agency or by any regulatory authority which may
reasonably be expected to result in a Material Adverse Change.
(j) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial statements (or as
described in the 1999 Registration Statement) hereinabove described, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the 1999 Registration
Statement) or which are not material in amount. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases conforming to the
description thereof set forth in the 1999 Registration Statement, with such
exceptions as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change or materially impair the value
of such leasehold estate to the Company or such Subsidiary.
(k) The Company and the Subsidiaries have filed all federal, state
and foreign income tax returns which have been required to be filed and have
paid all taxes indicated by said returns and all assessments received by them or
any of them to the extent that such taxes have become due and are not being
contested in good faith, except for such failure to file or defaults in payment
of a character which would not reasonably be expected to result in a Material
Adverse Change.
(l) Neither the Company nor any of the Subsidiaries is, nor with the
giving of notice, lapse of time or both, will be, in default under (i) its
certificate of incorporation or by-laws or (ii) any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which
it or any of its properties is bound and, in the case of (ii) which default
would reasonably be expected to result in a Material Adverse Change. The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to which
the Company or any of the Subsidiaries is a party, or of the charter or by-laws
of the Company or the Subsidiaries or any order, rule or regulation applicable
to the Company or any of the Subsidiaries of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction
which conflict, breach or default would reasonably be expected to result in a
Material Adverse Change.
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(m) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by
the Company of this Agreement and the consummation of the transactions herein
contemplated (except such steps as may be required by the National Association
of Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the
Securities for public offering by the Underwriters under State securities or
Blue Sky laws) has been obtained or made and is in full force and effect.
(n) The Company and each of the Subsidiaries hold all material
licenses, consents, authorizations, approvals, orders, certificates and permits
(collectively, "Licenses") of and from, all federal, state, local, foreign and
other governmental authorities, all self-regulatory organizations in each case
as required for the conduct of the business in which it is engaged, and each
such License is in full force and effect, except to the extent that the failure
to obtain or maintain any such License would not reasonably be expected to
result in a Material Adverse Change.
(o) The Company and the Subsidiaries are in compliance with all
applicable federal, state, foreign and local laws and regulations relating to
(i) zoning, land use, protection of the environment, human health and safety or
hazardous or toxic substances, wastes, pollutants or contaminants and (ii)
employee or occupational safety, discrimination in hiring, promotion or pay of
employees, employee hours and wages or employee benefits, except where such
noncompliance would not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Change.
(p) KPMG LLP, who have certified the financial statements of the
Company and the OCI Financials filed with the Commission as part of, or
incorporated by reference in, the Registration Statements, are independent
public accountants as required by the Act and the Rules and Regulations.
(q) The Company has never been, is not now, and immediately after the
sale or conversion of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(r) The Company has reviewed its operations and that of its
Subsidiaries, and has contacted and made appropriate inquiries to any third
parties on whom the Company or any of its Subsidiaries is dependent to a
material extent in the conduct of their business or operations, to evaluate the
extent to which the business or operations of the Company or any of its
Subsidiaries will be affected by the Year 2000 Problem. As a result of such
effort, the Company has no reason to believe, and does not believe, that the
Year 2000 Problem will have a material adverse effect on the general affairs,
management, the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company and its
Subsidiaries, taken as a whole, or result in any material loss or interference
with the Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software used in
the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical
or electrical systems of any kind will be adversely affected by the advent of
the year
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2000 or 2001, the advent of the twenty-first century or the transition from
the twentieth century to the year 2000 and into the twenty-first century.
(s) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) The Firm Securities. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Company agrees to issue and sell to the
Underwriters, and the Underwriters, severally and not jointly, agree to
purchase from the Company, the Firm Securities set forth opposite the name of
such Underwriter of Schedule III hereto. The purchase price per Security shall
be 97.25% of the principal amount thereof.
(b) The Closing Date. Delivery of certificates for the Firm
Securities to be purchased by the Underwriters and payment therefor shall be
made at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New
York, 10004, at 9:30 a.m., New York time, on August 10, 1999 (or such other
place, date or time as may be agreed to in writing by the Company and the
Underwriters) (the time and date of such closing are called the "Closing
Date").
(c) The Option Securities; the Option Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the Underwriters to purchase up to $37,500,000
aggregate additional principal amount of Option Securities from the Company at
the per Security purchase price to be paid by the Underwriters for the Firm
Securities. The option granted hereunder is for use by the Underwriters solely
in covering any over-allotments in connection with the sale and distribution of
the Firm Securities. The option granted hereunder may be exercised at any time
(but not more than once) upon notice by the Underwriters to the Company, which
notice may be given at any time within 30 days from the date of this Agreement.
Once given in writing, such notice shall be irrevocable. Such notice shall set
forth (i) the aggregate principal amount of Option Securities as to which the
Underwriters are exercising the option, (ii) the names and denominations in
which the certificate(s) for the Option Securities are to be registered and
(iii) the time, date and place at which such certificate(s) will be delivered
(which time and date may be simultaneous with, but not earlier than, the
Closing Date; and in such case the term "Closing Date" shall refer to the time
and date of delivery of certificates for the Firm Securities and the Option
Securities). Such time and date of delivery, if subsequent to the Closing Date,
is called the "Option Closing Date" and shall be determined by the Underwriters
and shall not be earlier than three nor later than five full business days
after delivery of such notice of exercise.
(d) Payment for the Securities. Payment for the Securities shall be
made at the Closing Date (and, if applicable, at the Option Closing Date) by
wire transfer of immediately available funds to the order of the Company.
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(e) Delivery of the Securities. The Company shall deliver, or cause
to be delivered for the account of the Underwriters the Firm Securities being
purchased on the Closing Date in the form of one or more permanent global
Securities in definitive form registered in the name of Cede & Co., as custodian
for The Depository Trust Company, as Depository ("DTC"), against the irrevocable
release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company shall also deliver, or cause to be
delivered, for the account of the Underwriters, the Option Securities being
purchased on the Option Closing Date in the form of one or more permanent global
Securities registered in the name of DTC, against the irrevocable release of a
wire transfer of immediately available funds for the amount of the purchase
price therefor. Interests in global Securities will be held only in book-entry
form through DTC, except in limited circumstances described in the Prospectus.
SECTION 3. PUBLIC OFFERING OF THE SECURITIES.
The Underwriters hereby advise the Company that the Underwriters
intend to offer the Securities for sale as described in the Prospectus as soon
after this Agreement has been executed as the Underwriters, in their sole
judgment, have determined is advisable and practicable.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Underwriters that:
(a) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations a supplementary prospectus
setting forth such other information and the terms of the offering contemplated
by Section 2 hereof, (ii) not file, prior to the termination of the offering of
the Securities by the Underwriters, any amendment to the Registration
Statements or supplement to the Prospectus or document incorporated by
reference therein of which the Underwriters shall not previously have been
advised and furnished with a copy or to which the Underwriters shall have
reasonably objected in writing or which is not in compliance with the Rules and
Regulations and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Securities by the Underwriters.
(b) The Company will advise the Underwriters promptly of any request
of the Commission for amendment of either Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of
either Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose, and the Company will use all
reasonable efforts to prevent the issuance of any such stop order preventing or
suspending the use of the Prospectus and to obtain as soon as possible the
lifting thereof, if issued.
(c) The Company will deliver to, or upon the order of, the
Underwriters during the period when delivery of a Prospectus is required under
the Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Underwriters may reasonably request; provided,
however, that if the Underwriters are required to deliver a
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prospectus in connection with sales of any shares at any time nine months or
more after the date of this Agreement, upon the Underwriters' request, but at
the expense of the Underwriters, the Company will prepare and deliver to the
Underwriters such copies of an amended and supplemented Prospectus as you may
reasonably request.
(d) If, during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act, the Company promptly will, at its election,
either (i) prepare and file with the Commission an appropriate amendment to the
Registration Statements or supplement to the Prospectus or (ii) prepare and
file with the Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with law.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the 1999 Registration Statement, an
earnings statement (which need not be audited) in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective date of
the 1999 Registration Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(f) The Company will, for a period of five years from the Closing
Date, deliver to the Underwriters copies of annual reports and copies of all
other documents, reports and information furnished by the Company to its
stockholders or filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Exchange Act.
(g) No offering, sale or other disposition of any Class A Common
Stock of the Company or any other securities convertible or exchangeable or
exercisable for Class A Common Stock or derivatives of Class A Common Stock,
will be made for a period of 90 days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with the prior written
consent of the Underwriters except that the Company may, without such consent,
(i) issue shares of Class A Common Stock in connection with the pending
acquisitions or otherwise as consideration for the acquisition of additional
outdoor advertising or logo sign assets, provided that the persons receiving
such shares agree not to distribute such shares during the period of 90 days
following the date of this Agreement and (ii) issue shares upon the exercise of
options outstanding on the date of this Agreement or otherwise pursuant to the
Company's 1996 Equity Incentive Plan or any substitute plan.
SECTION 5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting
fees of the Company; the fees and disbursements of
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counsel for the Company; the cost of printing and delivering to, or as
requested by, the Underwriters copies of the 1999 Registration Statement, the
Prospectus, the Securities and this Agreement; the filing fees of the
Commission; and the filing fees and expenses incident to securing any required
review by the NASD of the terms of the sale of the Securities. The Company
shall not, however, be required to pay for any of the Underwriters' expenses
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Underwriters pursuant to Section 11(a)(iv) or 11(a)(vi) hereof, or by
reason of any failure, refusal or inability on the part of the Company to
deliver the Securities (unless such failure to is due to the default or
omission of the Underwriters), then the Company shall reimburse the
Underwriters for reasonable out-of-pocket expenses, including reasonable fees
and disbursements of counsel, reasonably incurred in connection with
investigating, marketing and proposing to market the Securities or in
contemplation of performing its obligations hereunder; but the Company shall in
no event be liable to the Underwriters for damages on account of loss of
anticipated profits from, or related to, the sale by it of the Securities.
SECTION 6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Firm Securities on
the Closing Date and the Option Securities, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date or the Option Closing Date,
as the case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company in all material
respects, of its covenants and obligations hereunder and to the following
additional conditions:
(a) The Registration Statements and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule
424, and any request of the Commission for additional information (to be
included in the Registration Statements or otherwise) shall have been disclosed
to the Underwriters and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of either Registration Statement shall have
been issued and no proceedings for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated by the Commission.
(b) (i) The Underwriters shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Palmer & Dodge LLP,
counsel for the Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters to the effect that:
(A) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with corporate power and authority to own, and hold
under lease, its properties and conduct its business as described in
the Prospectus.
(B) The Securities conform in all material respects to the
description thereof contained in the Prospectus; and the certificates
for the Securities are in due and proper form.
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<PAGE> 11
(C) The Securities delivered on the Closing Date or the Option
Closing Date, as the case may be, are convertible into the Underlying
Shares of the Company in accordance with the terms of the Indenture;
the Underlying Shares issuable upon conversion of such Securities have
been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully
paid and non-assessable; any outstanding Underlying Shares have been
authorized and validly issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Securities or the Underlying Shares.
(D) The Registration Statements have become effective under the Act
and, to the knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened
under the Act.
(E) The Registration Statements, the Prospectus and each amendment or
supplement thereto filed with the Commission on or prior to the date
of such opinion comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
thereunder in effect as of the time of such filing (except that such
counsel need express no opinion as to the financial statements,
schedules and other financial information included therein).
(F) Each document incorporated by reference in the Registration
Statements, the Prospectus and each amendment or supplement thereto
filed with the Commission on or prior to the date of such opinion
complied as to form at the time of such filing in all material
respects with the applicable requirements (if any) of the Exchange Act
and the applicable rules and regulations thereunder in effect as of
the date of such filing (except that such counsel need express no
opinion as to the financial statements, schedules and other financial
information included therein).
(G) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated, do not and will not violate
the Certificate of Incorporation or By-Laws of the Company, or result
in a breach of any of the terms or provisions of, or constitute a
default under, any material agreement or instrument of which such
counsel has knowledge to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries may be
bound, and which conflict, breach or default could reasonably be
expected to result in a Material Adverse Change.
(H) This Agreement has been duly authorized, executed and delivered
by the Company.
(I) Except for approvals, consents, orders, authorizations,
designations, declarations or filings which have been validly waived,
or which have been obtained or made, no approval, consent, order,
authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body is necessary in
connection with the execution and delivery by the Company of this
Agreement and the Indenture and the consummation by the Company of the
transactions herein or therein contemplated (other
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<PAGE> 12
than as may be required by the NASD or as required by State securities
and Blue Sky laws as to which such counsel need express no opinion).
(J) The Company is not, and will not become as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, and has not been an "investment company" at any
time since 1989.
(K) (1) The Indenture has been duly qualified under the Trust
Indenture Act; (2) the Company has the corporate power and authority
to enter into the Indenture and to issue and sell the Securities; (3)
the Indenture has been duly authorized, executed and delivered by the
Company; (4) the Securities have been duly authorized and when issued
and executed and authenticated in accordance with the provisions of
the Indenture and delivered to the Underwriters in accordance with the
terms of this Agreement, will be entitled to the benefits of the
Indenture; and (5) the Indenture and the Securities constitute valid
and legally binding obligations of the Company, enforceable against
the Company in accordance with its terms except that (I) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (II) the remedy of
specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the
court before which the proceedings may be brought.
(L) The statements set forth in the Prospectus under the captions
"Description of Notes We Are Offering", "Description of Capital Stock
of Lamar Advertising Company", insofar as they purport to constitute a
summary of the terms of the Securities and the Stock, respectively,
under the caption "Material United States Federal Income Tax
Considerations", and under the captions "Description of Other
Indebtedness of Lamar" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects.
(M) Neither the issuance, sale or delivery of the Securities, nor the
execution, delivery or performance of the Indenture, or compliance by
the Company with all provisions of the Indenture, nor consummation by
the Company of the transactions contemplated hereby or thereby
constitutes or will constitute a violation or breach of, or a default
under, the certificate of incorporation or bylaws or other
organizational documents of the Company or any of the Subsidiaries or
any agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties is bound and that is an exhibit
to the 1999 Registration Statement, or will result in the creation or
imposition of any lien, charge or encumbrance pursuant to any such
agreement, indenture, lease or other instrument upon any property or
assets of the Company or any of the Subsidiaries, nor will any such
action result in any violation of any existing law, regulation, ruling
(assuming compliance with all applicable state securities and Blue Sky
laws), judgment, injunction, order or decree known to such counsel, to
be applicable to the Company, the Subsidiaries or any of their
respective properties.
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<PAGE> 13
In rendering such opinion, Palmer & Dodge LLP may rely as to
matters governed by laws other than the Delaware General Corporate Law or
Federal laws on local counsel in the relevant jurisdictions provided that in
each case Palmer & Dodge LLP shall state that they believe that they and the
Underwriters are justified in relying on such other counsel and such other
counsel's opinion is also delivered to the Underwriters. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which causes them
to believe that (A) either of the Registration Statements, as of the time it
became effective under the Act and as of the Closing Date or the Option Closing
Date, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) the Prospectus or any
supplement thereto, on the date it was filed pursuant to Rules and Regulations
and as of the Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made not misleading (except
that such counsel need express no view as to financial statements and the notes
thereto, schedules and other financial information included or incorporated by
reference therein or the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee). Palmer & Dodge LLP shall also state that they do
not know of any amendment to the Registration Statements required to be filed
or any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statements or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statements or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described as
required.
(ii) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Kean, Miller,
Hawthorne, D'Armond, McCowan & Jarman, L.L.P., counsel for the Company, dated
the Closing Date or the Option Closing Date, as the case may be, addressed to
the Underwriters to the effect that:
(A) Based upon appropriate certificates of public officials (which
shall be furnished to the Underwriters with the opinion), each of the
Subsidiaries incorporated or organized as a corporation or partnership
has been duly incorporated or organized and is validly existing and in
good standing under the laws of the jurisdiction of its incorporation
or organization with corporate, partnership or other organizational
power and authority, as the case may be, to own, and hold under lease,
its properties and conduct its business as described in the
Prospectus.
(B) Based upon appropriate certificates of public officials (which
shall be furnished to the Underwriters with the opinion), the Company
is duly qualified to transact business as a foreign corporation,
partnership or limited liability company, as the case may be, and is
in good standing under the laws of each of the jurisdictions in which
the conduct of its business requires such qualification, except to the
extent that the failure to qualify would not, in the aggregate,
reasonably be expected to result in a Material Adverse Change.
(C) The outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable. To the best
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<PAGE> 14
knowledge of such counsel, the shares of capital stock of the
Subsidiaries are owned by the Company or one of the other Subsidiaries
free and clear of all liens, encumbrances and security interests, and
except as disclosed in the Registration Statement, no options,
warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of
capital stock or ownership interests of the Subsidiaries are
outstanding.
(D) The Company's Class A and Class B Common Stock have been duly
authorized; the outstanding shares of its Class A Common Stock have
been duly authorized and validly issued and are fully paid and
non-assessable.
(E) Such counsel does not know of any material contract or document
that should have been filed as exhibits to or incorporated by
reference or described in the Prospectus which was not so filed,
incorporated by reference or described.
(F) Such counsel knows of no material legal proceedings or regulatory
or other claims pending or threatened against the Company or the
Subsidiaries of a character required to be reflected in the Prospectus
that are not set forth in the Prospectus.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the attention
of such counsel which causes them to believe that (A) either of the
Registration Statements, as of the time it became effective under the Act and
as of the Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (B) the Prospectus or any supplement thereto, on the date
it was filed pursuant to Rules and Regulations and as of the Closing Date or
the Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made not misleading (except that such counsel need express no
view as to financial statements and the notes thereto, schedules and other
financial information included or incorporated by reference therein).
(iii) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of James R. McIlwain,
Esquire, general counsel of the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters to the effect
that: The statements in the Prospectus under the caption "Risk Factors -- Our
operations are impacted by the regulation of outdoor advertising", and
statements in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 under the caption "Business -- Regulation" insofar as such
statements constitute a summary of regulatory matters relating to the outdoor
advertising industry, fairly describe the regulatory matters relating to such
industry.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the attention
of such counsel which causes him to believe that (A) either of the Registration
Statements, as of the time it became effective under the Act and as of the
Closing Date or the Option Closing Date, as the case may be, contained
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<PAGE> 15
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (B) the Prospectus or any supplement thereto, on the date it
was filed pursuant to Rules and Regulations and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made not misleading (except that such
counsel need express no view as to financial statements, and the notes thereto,
schedules and other financial information included or incorporated by reference
therein).
(c) The Underwriters shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such written opinion or opinions dated the
Closing Date or the Option Closing Date, as the case may be, with respect to
the incorporation of the Company, the validity of the Securities delivered on
such date, the Registration Statements, the Prospectus as well as such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(d) On the date of the Prospectus at a time prior to the execution of
this Agreement, and on the Closing Date or the Option Closing Date, as the case
may be, KPMG LLP, who have certified the financial statements of the Company
and its Subsidiaries, and PricewaterhouseCoopers LLP, Arthur Andersen, LLP,
Barbich, Longcrier, Hooper & King and BDO Seidman LLP, who have certified the
Outdoor Financials (as set forth in the Current Report on Form 8-K/A dated
October 1, 1998 and filed with the Commission on October 19, 1999), in each
case included or incorporated by reference in the Prospectus, shall have
furnished to the Underwriters letters, dated the date of the Prospectus, and
letters dated the Closing Date or the Option Closing Date, as the case may be,
to the effect set forth in Schedule IV hereto (only with respect to paragraphs
(i), (ii) and (iii) in the case of PricewaterhouseCoopers LLP, and only with
respect to paragraphs (i) and (ii) (first sentence) in the case of Arthur
Andersen LLP, Barbich, Longcrier, Hooper & King and BDO Seidman LLP), and with
respect to the letters to be dated the Closing Date or the Option Closing Date,
as the case may be, as to such other matters as you may reasonably request and
in form and substance satisfactory to you.
(e) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case may
be, each of them severally represents in such capacity as follows:
(i) The representations and warranties of the Company are true and
correct as of such date as though made on and as of the Closing Date or the
Option Closing Date, as the case may be;
(ii) The Company has performed all obligations in all material
respects and satisfied all conditions on its part to be performed or satisfied
pursuant to this Agreement at or prior to such date;
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<PAGE> 16
(iii) The Registration Statements have become effective under the Act;
the Prospectus has been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the Rules and
Regulations in accordance with Section 5(a) of the Act; and no stop order
suspending the effectiveness of either Registration Statement has been issued,
and no proceedings for such purpose have been initiated or are, to his
knowledge, contemplated by the Commission; and all requests for additional
information on the part of Commission have been complied with;
(iv) He does not know of any litigation instituted or threatened
against the Company or any of the Subsidiaries of a character required to be
disclosed in the Prospectus which is not so disclosed; he does not know of any
material contract required to be filed as an exhibit to the 1999 Registration
Statement which is not so filed;
(v) He has carefully examined the Registration Statements and the
Prospectus and, in his opinion, as of the effective date of the Registration
Statements, the statements contained in the Registration Statements, including
any documents incorporated by reference therein, were true and correct in all
material respects, and such Registration Statements and Prospectus or any
document incorporated by reference therein did not omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein in light of the circumstances in which they were made, not misleading
and, in his opinion, since the date of the Prospectus, no event has occurred
which should have been set forth in a supplement to or an amendment of the
Prospectus which has not been so set forth in such supplement or amendment; and
(vi) (A) Neither the Company nor any of its Subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus and
(B) since the respective dates as of which information is given in the
Prospectus there has not been any change in the capital stock or long-term debt
of the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its Subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (A) or (B), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus.
(f) The Company shall have furnished to the Underwriters such further
certificates and documents confirming the representations and warranties
contained herein and related matters as the Underwriters may reasonably have
requested.
(h) The Underwriters shall have received from each executive officer
(except for one executive officer with respect to 25,000 shares of Stock),
director and stockholder of the Company listed on Schedule IIA a letter or
letters, to the effect set forth in Schedule IIB hereto.
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If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be. In such event, the Company and the Underwriters shall not be under
any obligation to each other (except to the extent provided in Sections 5, 8
and 10).
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Securities required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statements shall have been issued and in effect or proceedings
therefor initiated or threatened.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees, and
each person, if any, who controls the Underwriter within the meaning of the Act
and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which the Underwriters or such controlling person may become
subject, under the Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statements, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under
the Act, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and to
reimburse the Underwriter and each such controlling person for any and all
reasonably expenses (including the reasonable fees and disbursements of counsel
chosen by the Underwriter) as such expenses are reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters for use in the Registration Statements, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any preliminary prospectus amending or supplementing the form of prospectus
dated February 4, 1999 included in the 1999 Registration Statement to the
extent that any such loss,
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claim, damage, liability or expense of such Underwriter results from the fact
that such Underwriter sold Securities to a person as to whom it shall be
established that, at or prior to the written confirmation of such sale, a copy
of the Prospectus or of the Prospectus as then amended or supplemented had not
been given or sent, in any case where such delivery is required by the Act , if
(A) the Company had previously furnished copies thereof in sufficient quantity
to such Underwriter and (B) the loss, claim, damage, liability or expense of
such Underwriter results from an untrue statement or omission of a material
fact contained in such preliminary prospectus which was identified in writing
at such time to such Underwriter and corrected in the Prospectus or in the
Prospectus as then amended or supplemented, and such correction would have
cured the defect giving rise to such loss, claim, damage, liability or expense.
The indemnity agreement set forth in this Section 8(a) shall be in addition to
any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. The
Underwriters agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statements and each
person, if any, who controls the Company within the meaning of the Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer or controlling
person may become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Underwriters), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statements, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statements, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Underwriters expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that the Underwriters may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a result of such failure. In case any such
action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall
elect, jointly with all other indemnifying parties
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similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf
of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party's
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in which case the
reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel) approved by the indemnifying party and
representing the indemnified parties who are parties to such action).
(d) Settlements. The indemnifying party under this Section 8 shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions or inaccuracies
-19-
<PAGE> 20
in the representations and warranties herein which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company, and the total underwriting compensation actually received by
the Underwriters. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such
inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any reasonable
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth
in Section 8(c) with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9, provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8(c) for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
SECTION 10. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the
Securities which such Underwriter has agreed to purchase and pay for on such
date (otherwise than by reason of any default on the part of the Company), you,
as representatives of the Underwriters, shall use your best efforts to procure
within 24 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Company such amounts as may be agreed upon and
upon the terms set forth herein, the Securities which the defaulting
Underwriter or Underwriters failed to purchase. If during such 24 hours you, as
such representatives, shall not have procured such other Underwriters, or any
others, to purchase the Securities agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of Securities
with respect to which such default shall occur does not exceed 10% of the Firm
Securities or Option Securities, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Securities or Option Securities, as the case may be, which they
are obligated to purchase hereunder, to purchase the Securities which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Firm Securities or Option Securities, as the case
may be, with respect to which such default shall
-20-
<PAGE> 21
occur exceeds 10% of the Firm Securities or Option Securities, as the case may
be, covered hereby, the Company or you as the Representatives of the
Underwriters will have the right, by written notice given within the next
24-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company except to the extent provided in Section 8 hereof. In the event of a
default by any Underwriter or Underwriters, as set forth in this Section 10,
the Closing Date or Option Closing Date, as the case may be, may be postponed
for such period, not exceeding seven days, as you, as Representatives, may
determine in order that the required changes in the Registration Statement or
in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
SECTION 11. NOTICES.
All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Underwriters:
Goldman, Sachs & Co.,
Deutsche Bank Securities Inc.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Attention: Registration Department
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Robert E. Buckholz, Jr.
If to the Company:
Lamar Advertising Company
5551 Corporate Boulevard
Baton Rouge, Louisiana, 70808
Facsimile: (225) 926-1005
Attention: Kevin P. Reilly, Jr., President
-21-
<PAGE> 22
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
Facsimile: (617) 227-4420
Attention: Stanley Keller
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 12. TERMINATION.
This Agreement may be terminated by you by notice to the Company as
follows:
(a) at any time after the date hereof and prior to the Closing Date if
any of the following has occurred: (i) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date hereof
or other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United
States would, in your judgment, make the offering or delivery of the Securities
on the terms and in the manner contemplated in the Prospectus impracticable,
(ii) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited (other than limitations on hours or numbers of days of
trading or the application of "circuit breakers") or minimum prices shall have
been established for securities on any such Exchange, (iii) trading in the
Company's securities on the Nasdaq National Market shall have been suspended or
materially limited, (iv) declaration of a general moratorium on commercial
banking activities by either federal or New York State authorities, (v) any
downgrading in the rating of the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g)(2) under the Exchange Act), or any public announcement
by any such organization that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock; (vi) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the securities
markets in the United States or elsewhere; or (vii) any litigation or
proceeding is pending or threatened against the Underwriters which seeks to
enjoin or otherwise restrain, or seeks damages in connection with, or questions
the legality or validity of this Agreement or the transactions contemplated
hereby; or
(b) as provided in Section 6 and Section 10 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company as to
any obligation of the Underwriters to purchase the Option Securities, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (a) above or as provided in Section 6 and Section 10
of this Agreement.
-22-
<PAGE> 23
SECTION 13. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the employees, officers and directors and
controlling persons referred to in Section 8, and in each case their respective
successors, and personal representatives, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Securities as such from the Underwriters merely by reason of
such purchase.
SECTION 14. PARTIAL UNENFORCEABILITY.
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 15. GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 16. GENERAL PROVISIONS.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition
herein (express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. The Table of Contents and the
Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement.
-23-
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
Lamar Advertising Company
By: /s/ Keith Istre
----------------------------
Name: Keith Istre
Title: CFO
Accepted as of the date hereof
in New York, New York
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
By: /s/ Goldman, Sachs & Co.
----------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-24-
<PAGE> 25
SCHEDULE I
Subsidiaries of Lamar Advertising Company*
<TABLE>
<CAPTION>
State of Other Jurisdiction of
Name Incorporation or Organization
---- -------------------------------
<S> <C>
Lamar Media Corp. Delaware
The Lamar Corporation Louisiana
Interstate Logos, Inc. Delaware
Lamar Advertising of Colorado Springs, Inc. Colorado
Lamar Advertising of Jackson, Inc. Mississippi
Lamar Advertising of Mobile, Inc. Alabama
Lamar Advertising of Roland, Inc. Tennessee
Lamar Advertising of South Georgia, Inc. Georgia
Lamar Advertising of South Mississippi, Inc. Mississippi
Lamar Advertising of Youngstown, Inc. Delaware
Lamar Robinson, Inc. Missouri
TLC Properties, Inc. Louisiana
Missouri Logos, Inc. Missouri
Missouri Logos, a Partnership Missouri
Nebraska Logos, Inc. Nebraska
Oklahoma Logo Signs, Inc. Oklahoma
Utah Logos, Inc. Utah
Ohio Logos, Inc. Ohio
Georgia Logos, Inc. Georgia
Kansas Logos, Inc. Kansas
Lamar Air, LLC Louisiana
Lamar Pensacola Transit, Inc. Florida
Lamar Tennessee, L.L.C. Tennessee
Lamar Texas General Partner, Inc. Louisiana
Lamar Texas Limited Partnership Louisiana
Colorado Logos, Inc. Colorado
Michigan Logos, Inc. Michigan
Minnesota Logos, Inc. Minnesota
Mississippi Logos, Inc. Mississippi
New Jersey Logos, Inc. New Jersey
New Mexico Logos, Inc. New Mexico
South Carolina Logos, Inc. South Carolina
South Dakota Advertising, Inc. South Dakota
South Outdoor Advertising, Inc. Missouri
Tennessee Logos, Inc. Tennessee
Texas Logos, Inc. Texas
TLC Properties II, Inc. Texas
Virginia Logos, Inc. Virginia
Lamar Advertising of Huntington-Bridgeport, Inc. West Virginia
</TABLE>
-25-
<PAGE> 26
<TABLE>
<CAPTION>
State of Other Jurisdiction of
Name Incorporation or Organization
---- -------------------------------
<S> <C>
Lamar Advertising of Kentucky, Inc. Kentucky
Lamar Advertising of Penn, Inc. Delaware
Lamar Advertising of Michigan, Inc. Michigan
Lamar Advertising of Missouri, Inc. Missouri
Canadian TODS Limited Nova Scotia, Canada
Nevada Logos, Inc. Nevada
Kentucky Logos, Inc. Kentucky
Florida Logos, Inc. Florida
Lamar Electrical, Inc. Louisiana
Lamar Advertising of South Dakota, Inc. South Dakota
TLC Properties, L.L.C. Louisiana
Lamar OCI South Corporation Mississippi
Lamar OCI North Corporation Delaware
Lamar Advertising of Greenville, Inc. Mississippi
Lamar Advertising of West Virginia, Inc. West Virginia
Lamar Advertising of Ashland, Inc. Kentucky
American Signs, Inc. Washington
</TABLE>
* All subsidiaries are 100% owned by Lamar Advertising Company, except for
Missouri Logos, a Partnership, in which Lamar Advertising Company holds a
66 2/3% partnership interest.
-26-
<PAGE> 27
SCHEDULE IIA
The Reilly Family Limited Partnership
Kevin P. Reilly, Jr.
Keith A. Istre
Charles W. Lamar, III.
Gerald H. Marchand
T. Everett Stewart, Jr.
Jack S. Rome, Jr.
Sean E. Reilly
Stephen P. Mumblow
<PAGE> 28
SCHEDULE IIB
LAMAR ADVERTISING COMPANY
LOCK-UP AGREEMENT
AUGUST , 1999
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Re: Lamar Advertising Company - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf
of the several Underwriters named in Schedule III to such agreement
(collectively, the "Underwriters"), with Lamar Advertising Company, a Delaware
corporation (the "Company"), providing for a public offering of up to
$287,500,000 (including the exercise of the Underwriters' over-allotment
option) aggregate principal amount of the Company's 5 1/4% Convertible Notes due
2006 (the "Securities"), convertible into shares of Class A common stock, par
value $0.001 per share, of the Company (the "Shares"), pursuant to the
Registration Statements and the Prospectus (each as defined in the Underwriting
Agreement).
In consideration of the agreement by the Underwriters to offer and
sell the Securities, and of other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the undersigned agrees that,
during the period beginning from the date of the final Prospectus covering the
public offering of the Securities and continuing to and including the date 90
days after the date of such final Prospectus, the undersigned will not offer,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of any Shares, or any options or warrants to purchase
any Shares, or any securities convertible into, exchangeable for or that
represent the right to receive Shares, whether now owned or hereinafter
acquired, owned directly by the undersigned or with respect to which the
undersigned has beneficial ownership within the rules and regulations of the
Securities and Exchange Commission (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be
<PAGE> 29
disposed of by someone other than the undersigned. Such prohibited hedging or
other transactions would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of the Undersigned's Shares or with respect to
any security that includes, relates to, or derives any significant part of its
value from such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, (iii) but only if and to the extent that such shares have been acquired
by the undersigned in the open market after completion of the public offering
of the Securities, (iv) if such transfer occurs by operation of law, such as
rules of intestate succession or statutes governing the effects of a merger,
provided that the transferee executes an agreement stating that the transferee
is receiving and holding the shares subject to the provisions of the this
agreement, or (v) with the prior written consent of Goldman, Sachs & Co. on
behalf of the Underwriters. For purposes of this Lock-Up Agreement, "immediate
family" shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin. In addition, notwithstanding the foregoing, (i) if
the undersigned is a corporation, the corporation may transfer the capital
stock of the Company to any wholly-owned subsidiary of such corporation, or
(ii) if the undersigned is a partnership, the partnership may transfer the
Undersigned's Shares to its partners; provided, however, that in any such case,
it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding such capital
stock or shares, as the case may be, subject to the provisions of this
Agreement and there shall be no further transfer of such capital stock or
shares, as the case may be, except in accordance with this Agreement, and
provided further that, in the case of clause (i), any such transfer shall not
involve a disposition for value. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Shares except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
------------------------------------
Exact Name of Shareholder
------------------------------------
Authorized Signature
------------------------------------
Title
<PAGE> 30
SCHEDULE III
Underwriters
<TABLE>
<CAPTION>
Option
Firm Securities Securities
--------------- ----------
<S> <C> <C>
Goldman, Sachs & Co. $100,000,000 $ 15,000,000
Deutsche Bank Securities Inc. 100,000,000 15,000,000
Morgan Stanley & Co. Incorporated 25,000,000 3,750,000
Salomon Smith Barney Inc. 25,000,000 3,750,000
------------ ------------
$250,000,000 $ 37,500,000
============ ============
</TABLE>
<PAGE> 31
SCHEDULE IV
Pursuant to Section 6(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its Subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
rules and regulations; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the basis
of specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related rules
and regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations adopted by
the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that
<PAGE> 32
caused them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published rules
and regulations adopted by the Commission, or (ii) any material modifications
should be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in clause
(B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital
<PAGE> 33
stock upon exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of,
or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
<PAGE> 1
EXHIBIT 4.7
================================================================================
LAMAR ADVERTISING COMPANY
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
-------------
INDENTURE
Dated as of August 10, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1
1.1 Definitions.....................................................................................1
1.2 Other Definitions...............................................................................5
1.3 Incorporation by Reference of Trust Indenture Act...............................................6
1.4 Rules of Construction...........................................................................7
ARTICLE 2 THE SECURITIES..................................................................................7
2.1 Issuable in Series..............................................................................7
2.2 Establishment of Terms of Series of Securities..................................................8
2.3 Execution and Authentication...................................................................10
2.4 Registrar and Paying Agent.....................................................................12
2.5 Paying Agent to Hold Assets in Trust...........................................................13
2.6 Securityholder Lists...........................................................................13
2.7 Transfer and Exchange..........................................................................13
2.8 Replacement Securities.........................................................................14
2.9 Outstanding Securities.........................................................................14
2.10 When Treasury Securities Disregarded; Determination of Holders' Action ........................15
2.11 Temporary Securities...........................................................................15
2.12 Cancellation...................................................................................16
2.13 Payment of Interest; Defaulted Interest; Computation of Interest...............................16
2.14 CUSIP Number...................................................................................17
2.15 Provisions for Global Securities...............................................................17
2.16 Persons Deemed Owners..........................................................................18
ARTICLE 3 REDEMPTION.....................................................................................19
3.1 Notices to Trustee.............................................................................19
3.2 Selection by Trustee of Securities to Be Redeemed..............................................19
3.3 Notice of Redemption...........................................................................19
3.4 Effect of Notice of Redemption.................................................................21
3.5 Deposit of Redemption Price....................................................................21
3.6 Securities Redeemed in Part....................................................................21
ARTICLE 4 COVENANTS......................................................................................22
4.1 Payment of Securities..........................................................................22
4.2 SEC Reports....................................................................................22
4.3 Waiver of Stay, Extension or Usury Laws........................................................22
4.4 Compliance Certificate.........................................................................23
4.5 Payment of Taxes and Other Claims..............................................................23
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
4.6 Corporate Existence............................................................................23
4.7 Maintenance of Properties......................................................................24
ARTICLE 5 SUCCESSOR CORPORATION..........................................................................24
5.1 Limitation on Consolidation, Merger and Sale of Assets.........................................24
5.2 Successor Person Substituted...................................................................25
ARTICLE 6 DEFAULTS AND REMEDIES..........................................................................25
6.1 Events of Default..............................................................................25
6.2 Acceleration...................................................................................27
6.3 Other Remedies.................................................................................28
6.4 Waiver of Past Defaults and Events of Default..................................................28
6.5 Control by Majority............................................................................28
6.6 Limitation on Suits............................................................................29
6.7 Rights of Holders To Receive Payment...........................................................29
6.8 Collection Suit by Trustee.....................................................................30
6.9 Trustee May File Proofs of Claim...............................................................30
6.10 Priorities.....................................................................................30
6.11 Undertaking for Costs..........................................................................31
ARTICLE 7 TRUSTEE........................................................................................31
7.1 Duties of Trustee..............................................................................31
7.2 Rights of Trustee..............................................................................32
7.3 Individual Rights of Trustee...................................................................34
7.4 Trustee's Disclaimer...........................................................................34
7.5 Notice of Default..............................................................................34
7.6 Reports by Trustee to Holders..................................................................34
7.7 Compensation and Indemnity.....................................................................35
7.8 Replacement of Trustee.........................................................................36
7.9 Successor Trustee by Consolidation, Merger or Conversion.......................................37
7.10 Eligibility; Disqualification..................................................................37
7.11 Preferential Collection of Claims Against Company..............................................37
7.12 Paying Agents..................................................................................37
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................................38
8.1 Without Consent of Holders.....................................................................38
8.2 With Consent of Holders........................................................................38
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
8.3 Compliance with Trust Indenture Act............................................................40
8.4 Revocation and Effect of Consents..............................................................40
8.5 Notation on or Exchange of Securities..........................................................41
8.6 Trustee to Sign Amendments, Etc................................................................41
ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE.............................................................41
9.1 Discharge of Indenture.........................................................................41
9.2 Legal Defeasance...............................................................................42
9.3 Covenant Defeasance............................................................................42
9.4 Conditions to Legal Defeasance or Covenant Defeasance..........................................43
9.5 Deposited Money and U.S. and Foreign Government Obligations to be Held in
Trust; Other Miscellaneous Provisions..........................................................45
9.6 Reinstatement..................................................................................45
9.7 Moneys Held by Paying Agent....................................................................46
9.8 Moneys Held by Trustee.........................................................................46
ARTICLE 10 MISCELLANEOUS..................................................................................46
10.1 Trust Indenture Act Controls...................................................................46
10.2 Notices........................................................................................47
10.3 Communications by Holders with Other Holders...................................................48
10.4 Certificate and Opinion as to Conditions Precedent.............................................48
10.5 Statement Required in Certificate and Opinion..................................................49
10.6 [Reserved].....................................................................................49
10.7 Rules by Trustee and Agents....................................................................49
10.8 Business Days; Legal Holidays; Place of Payment................................................49
10.9 Governing Law..................................................................................50
10.10 No Adverse Interpretation of Other Agreements..................................................50
10.11 No Recourse Against Others.....................................................................50
10.12 Successors and Assigns.........................................................................50
10.13 Multiple Counterparts..........................................................................50
10.14 Table of Contents, Headings, Etc...............................................................51
10.15 Separability...................................................................................51
10.16 Securities in a Foreign Currency or in Euro....................................................51
10.17 Judgment Currency..............................................................................52
</TABLE>
-iii-
<PAGE> 5
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA SECTION INDENTURE SECTION
- ----------- -----------------
<S> <C>
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N/A
(a)(4) N/A
(a)(5) 7.10
(b) 7.8; 7.10; 10.2
(b)(1) 7.10
(b)(9) 7.10
(c) N/A
311(a) 7.11
(b) 7.11
(c) N/A
312(a) 2.6
(b) 10.3
(c) 10.3
313(a) 7.6
(b)(1) 7.6
(b)(2) 7.6
(c) 7.6; 10.2
(d) 7.6
314(a) 4.2; 4.4; 10.2
(b) N/A
(c)(1) 10.4; 10.5
(c)(2) 10.4; 10.5
(c)(3) N/A
(d) N/A
(e) 10.5
(f) N/A
315(a) 7.1, 7.2
(b) 7.5; 10.2
(c) 7.1
(d) 6.5; 7.1; 7.2
(e) 6.11
316(a)(last sentence) 2.10
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) 8.2
(b) 6.7
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
(c) 8.4
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.5; 7.12
318(a) 10.1
</TABLE>
- ---------------------------
N/A means not applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
-v-
<PAGE> 7
INDENTURE, dated as of August 10, 1999, by and between LAMAR
ADVERTISING COMPANY, a Delaware corporation, as Issuer (the "Company"), and
STATE STREET BANK AND TRUST COMPANY, a trust company organized under the laws of
the Commonwealth of Massachusetts, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done, and the execution and
delivery thereof have been in all respects duly authorized by the parties
hereto.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of a Series thereof, as
follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 DEFINITIONS.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Board of Directors" means the Board of Directors of the Company or any
committee duly authorized to act therefor.
<PAGE> 8
"Board Resolution" means a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all shares
or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture, and thereafter means the successor and any other primary obligor on
the Securities.
"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be its Chief Executive Officer or its Chief
Financial Officer.
"Company Request" means any written request signed in the name of the
Company by its Chief Executive Officer, its President, any Vice President, its
Chief Financial Officer or its Treasurer and attested to by the Secretary or any
Assistant Secretary of the Company.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Default" means any event that is, or with the passing of time or
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such Series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act,
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean each Person
who is then a Depositary hereunder, and if at any time there is more than one
such Person, such Persons.
"Dollars" means the currency of the United States of America.
"Euro" means the single currency to be introduced at the start of the
third stage of economic and monetary union pursuant to the treaty establishing
the European Economic Community, as amended by the Treaty on European Union
signed at Maastricht on February 7, 1992.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
-2-
<PAGE> 9
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of the United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2,
evidencing all or part of a Series of Securities issued to the Depositary for
such Series or its nominee, registered in the name of such Depositary or
nominee, and bearing the legend set forth in Section 2.15(c) (or such legend as
may be specified as contemplated by Section 2.2 for such Securities).
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to any Person,
any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding any balances that constitute accounts payable or trade
payables, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing indebtedness would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential
-3-
<PAGE> 10
arrangement of any kind or nature whatsoever on or with respect to such property
or assets (including, without limitation, any capitalized lease obligation,
conditional sales, or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
payment or otherwise.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company or any other officer designated by the Board of Directors, as the case
may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Redemption Date," when used with respect to any Security of a Series
to be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust division of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities" means the securities that are issued under this Indenture,
as amended or supplemented from time to time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
-4-
<PAGE> 11
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
or 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
regulation is in effect on the date hereof, or (ii) any group of direct or
indirect Subsidiaries of the Company that, taken together as a group, would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable and, when used with
respect to any other Indebtedness, means the date specified in the instrument
governing such Indebtedness as the fixed date on which the principal of such
Indebtedness, or any installment of interest thereon, is due and payable.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors thereof is held, directly or indirectly by such Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise or if in accordance with
GAAP such entity is consolidated with such Person for financial statement
purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any Series shall mean the Trustee with
respect to Securities of that Series.
"U.S. Government Obligations" means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
1.2 OTHER DEFINITIONS.
The definitions of the following terms may be found in the sections
indicated as follows:
-5-
<PAGE> 12
<TABLE>
<CAPTION>
Defined
Term in Section
---- ----------
<S> <C>
"Bankruptcy Law" 6.1
"Business Day" 10.8
"Covenant Defeasance" 9.3
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.16
"Judgment Currency" 10.17
"Legal Defeasance" 9.2
"Legal Holiday" 10.8
"Market Exchange Rate" 10.16
"New York Banking Day" 10.17
"New York Paying Agent" 2.4
"Paying Agent" 2.4
"Place of Payment" 10.8
"Registrar" 2.4
"Required Currency" 10.17
"Service Agent" 2.4
</TABLE>
1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company.
-6-
<PAGE> 13
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein,
whether defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) words used herein implying any gender shall apply
to each gender; and
(6) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
ARTICLE 2
THE SECURITIES
2.1 ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may
be set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, Stated Maturity, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
-7-
<PAGE> 14
2.2 ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2(1) and either as to such Securities within the Series or as to
the Series generally in the case of Subsections 2.2(2) through 2.2(24) by a
Board Resolution, a supplemental indenture or an Officers' Certificate, in each
case, pursuant to authority granted under a Board Resolution:
(1) the title of the Series (which shall distinguish
the Securities of that particular Series from the Securities
of any other Series);
(2) the price or prices (expressed as a percentage of
the principal amount thereof) at which the Securities of the
Series will be issued;
(3) any limit upon the aggregate principal amount of
the Securities of the Series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 8.5);
(4) the date or dates on which the principal of the
Securities of the Series is payable;
(5) the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to
determine such rate or rates (including, but not limited to,
any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such
interest, if any, shall accrue, the date or dates on which
such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and
interest and premium, if any, on the Securities of the Series
shall be payable, or the method of such payment, if by wire
transfer, mail or other means;
(7) if applicable, the period or periods within
which, the price or prices at which and the terms and
conditions upon which the Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase the Securities of the Series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
-8-
<PAGE> 15
price or prices at which and the terms and conditions upon
which Securities of the Series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) the dates, if any, on which and the price or
prices at which the Securities of the Series will be
repurchased by the Company at the option of the Holders
thereof and other detailed terms and provisions of such
repurchase obligations;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which the
Securities of the Series shall be issuable;
(11) the forms of the Securities of the Series in
bearer (if to be issued outside of the United States) or fully
registered form (and, if in fully registered form, whether the
Securities will be issuable as Global Securities);
(12) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the
Series that shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 6.2;
(13) the currency of denomination of the Securities
of the Series, which may be Dollars or any Foreign Currency,
including, but not limited to, the Euro, and if such currency
of denomination is a composite currency other than the Euro,
the agency or organization, if any, responsible for overseeing
such composite currency;
(14) the designation of the currency, currencies or
currency units in which payment of the principal of and
interest and premium, if any, on the Securities of the Series
will be made;
(15) if payments of principal of, interest or
premium, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than
that or those in which such Securities are denominated, the
manner in which the exchange rate with respect to such
payments will be determined;
(16) the manner in which the amounts of payment of
principal of and interest and premium, if any, on the
Securities of the Series will be determined, if such amounts
may be determined by reference to an index based on a currency
or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
-9-
<PAGE> 16
(17) the provisions, if any, relating to any security
provided for the Securities of the Series;
(18) any addition to or change in the Events of
Default which applies to any Securities of the Series and any
change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.2;
(19) any addition to or change in the covenants set
forth in Articles 4 or 5 which applies to Securities of the
Series;
(20) any depositories, interest rate calculation
agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those
appointed herein;
(21) the terms and conditions, if any, upon which the
Securities and any guarantees thereof shall be subordinated in
right of payment to other indebtedness of the Company or any
guarantor;
(22) the form and terms of any guarantee of the
Securities;
(23) if applicable, that the Securities of the
Series, in whole or any specified part, shall be defeasible
pursuant to Article 9; and
(24) any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 8.1, but which
may modify or delete any provision of this Indenture insofar
as it applies to such Series).
All Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers' Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers' Certificate.
2.3 EXECUTION AND AUTHENTICATION.
The Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the Company.
Each such signature may be either manual or facsimile. The Company's seal may be
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
-10-
<PAGE> 17
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid. A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised in writing by
outside counsel, determines that such action may not lawfully be taken; or (b)
if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
reasonably determine that such action would expose the Trustee to personal
liability, or cause it to have a conflict of interest with respect to Holders of
any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Any appointment shall be
evidenced by instrument signed by an authorized officer of the Trustee, a copy
of which shall be furnished to the Company. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
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2.4 REGISTRAR AND PAYING AGENT.
The Company shall maintain in each Place of Payment for any Series of
Securities (i) an office or agency where such Securities may be presented for
registration of transfer or for exchange ("Registrar"), (ii) an office or agency
where such Securities may be presented for payment ("Paying Agent") (provided
that the Company shall at all times maintain a Paying Agent in the Borough of
Manhattan, The City of New York, State of New York (the "New York Paying
Agent"), and provided, further, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the register for the Notes maintained by
the Registrar, and (iii) an office or agency where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served
("Service Agent"). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more co-registrars and
one or more additional paying agents. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 10.2. Neither the Company nor any
Affiliate of the Company may act as Paying Agent. The Company may change any
Paying Agent, Registrar or co-registrar without notice to any Securityholder.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company hereby appoints the Trustee as the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying
Agent or Service Agent, as the case may be, is appointed prior to the time
Securities of that Series are first issued. The Company hereby initially
designates the Corporate Trust Office of the Trustee as such office of the
Company. The Company further designates State Street Bank and Trust Company, NA,
as the New York Paying Agent, with offices at 61 Broadway, Corporate
Trust-Window/Concourse Level, New York, New York 10006.
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2.5 PAYING AGENT TO HOLD ASSETS IN TRUST.
The Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of the Holders of any Series of Securities
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest or premium (if any) on, such Series of Securities (whether such
assets have been distributed to it by the Company or any other obligor on such
Series of Securities), and the Company and the Paying Agent shall notify the
Trustee in writing of any Default by the Company (or any other obligor on such
Series of Securities) in making any such payment. The Company at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment default with respect to any Series of Securities,
upon written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent, the Paying Agent shall have no further
liability for such assets.
2.6 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee as of each regular record
date for the payment of interest on the Securities of a Series and before each
related Interest Payment Date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of each Series
of Securities.
2.7 TRANSFER AND EXCHANGE.
When Securities of a Series are presented to the Registrar with a
request to register the transfer thereof, the Registrar shall register the
transfer as requested, and when such Securities of a Series are presented to the
Registrar with a request to exchange them for an equal principal amount of other
authorized denominations of Securities of the same Series, the Registrar shall
make the exchange as requested. To permit transfers and exchanges, upon
surrender of any Security for registration of transfer at the office or agency
maintained pursuant to Section 2.4 hereof, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's request.
If Securities are issued as Global Securities, the provisions of
Section 2.15 shall apply.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration or transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar or a
co-Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or a
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
Any exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to Section
2.11, 3.6 or 8.5 hereof. The Trustee shall not be required to register transfers
of Securities of any Series or to exchange Securities of any Series for a period
of 15 days before selection for redemption of such Securities. The Trustee shall
not be required to exchange or register transfers of Securities of any Series
called or being called for redemption in whole or in part, except the unredeemed
portion of such Security being redeemed in part.
2.8 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding. An indemnity bond may be required by the Company
or the Trustee that is sufficient in the reasonable judgment of the Company or
the Trustee, as the case may be, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge such Holder for its reasonable, out-of-pocket expenses in
replacing a Security, including the fees and expenses of the Trustee. Every
replacement Security shall constitute an original additional obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
Series duly issued hereunder.
2.9 OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section 2.9 as not outstanding.
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If a Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
until the Company and the Trustee receive proof satisfactory to each of them
that the replaced Security is held by a bona fide purchaser. A mutilated
Security ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.8.
If a Paying Agent holds on a Redemption Date or the Stated Maturity
money sufficient to pay the principal of, premium, if any, and accrued interest
on Securities payable on that date and is not prohibited from paying such money
to the Holders thereof pursuant to the terms of this Indenture (provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made), then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
Subject to Section 2.10, a Security does not cease to be outstanding
solely because the Company or an Affiliate holds the Security.
2.10 WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS' ACTION.
In determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any direction, waiver
or consent, the Securities of any Series owned by the Company or any other
obligor on such Securities or by any Affiliate of any of them shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee actually knows are so owned shall be
so disregarded. Securities of such Series so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Securities of such Series and that the pledgee is not the Company or any other
obligor upon the Securities of such Series or any Affiliate of any of them.
2.11 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form, and shall carry all rights, of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities presented to it, without charge to the Holder.
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2.12 CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
for cancellation. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee or, at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and at the written request of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.12. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.12, except as expressly permitted by
this Indenture.
2.13 PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST.
Except as otherwise provided as contemplated by Section 2.2 with
respect to any Series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security is registered at the close of
business on the regular record date for such interest, as provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate establishing
the terms of such Series.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.1 hereof, to the persons who are Securityholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the special record date, the Company shall mail or cause to be
mailed to each Securityholder, with a copy to the Trustee, a notice that states
the special record date, the payment date, and the amount of defaulted interest,
and interest payable on such defaulted interest, if any, to be paid.
Except as otherwise specified as contemplated by Section 2.2 for
Securities of any Series, interest on the Securities of each Series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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2.14 CUSIP NUMBER.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities.
2.15 PROVISIONS FOR GLOBAL SECURITIES.
(a) A Board Resolution, a supplemental indenture hereto or an
Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depositary for such Global Securities or Securities.
(b) Notwithstanding any provisions to the contrary contained
in Section 2.7 of the Indenture and in addition thereto, if, and only if (A) the
Depositary (i) at any time is unwilling or unable to continue as Depositary for
such Global Security or ceases to be a clearing agency registered under the
Exchange Act and (ii) a successor Depositary is not appointed by the Company
within 90 days of the date the Company is so informed in writing or becomes
aware of the same, or (B) a Default or an Event of Default has occurred and is
continuing with respect to the Securities represented by such Global Security,
the Company promptly will execute and deliver to the Trustee definitive
Securities, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of such definitive Securities (which the Company
will promptly execute and deliver to the Trustee) and an Officers' Certificate
to the effect that such Global Security shall be so exchangeable, will
authenticate and deliver definitive Securities, without charge, registered in
such names and in such authorized denominations as the Depositary shall direct
in writing (pursuant to instructions from its direct and indirect participants
or otherwise) in an aggregate principal amount equal to the principal amount of
the Global Security with like tenor and terms. Upon the exchange of a Global
Security for definitive Securities, such Global Security shall be canceled by
the Trustee. Unless and until it is exchanged in whole or in part for definitive
Securities, as provided in this Section 2.15(b), a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global
Security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Any Global Security issued hereunder shall bear a legend
in substantially the following form:
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(d) The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest and premium, if any, on any Global Security shall be
made to the Depositary or its nominee in its capacity as the Holder thereof.
(f) Except as provided in Section 2.15(e), the Company, the
Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of any Series represented by a Global Security
as shall be specified in a written statement of the Depositary (which may be in
the form of a participants' list for such Series) with respect to such Global
Security, for purposes of obtaining any consents, declarations, waivers or
directions required to be given by the Holders pursuant to this Indenture,
provided that until the Trustee is so provided with a written statement, it may
treat the Depositary or any other Person in whose name a Global Security is
registered as the owner of such Global Security for the purpose of receiving
payment of principal of and any premium and (subject to Section 2.13) any
interest on such Global Security and for all other purposes whatsoever, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
2.16 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, the Registrar and any agent of the Company, the
Registrar or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 2.13) any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee, the Registrar nor any agent of the Company, the Registrar or the
Trustee shall be affected by notice to the contrary.
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ARTICLE 3
REDEMPTION
3.1 NOTICES TO TRUSTEE.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities or the
related Board Resolution, supplemental indenture or Officers' Certificate. If a
Series of Securities is redeemable and the Company elects to redeem such
Securities of a Series, it shall notify the Trustee of the Redemption Date and
the principal amount of Securities to be redeemed at least 45 days (unless a
shorter notice shall be satisfactory to the Trustee) but not more than 60 days
before the Redemption Date. Any such notice may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
3.2 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
Unless otherwise indicated for a particular Series of Securities by a
Board Resolution, a supplemental indenture or an Officers' Certificate, if fewer
than all of the Securities of a Series are to be redeemed, the Trustee shall
select the Securities of a Series to be redeemed pro rata, by lot or by any
other method that the Trustee considers fair and appropriate and, if such
Securities are listed on any securities exchange, by a method that complies with
the requirements of such exchange.
The Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities of a Series in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions of the
principal of Securities of a Series that have denominations larger than $1,000.
Securities of a Series and portions of them it selects shall be in amounts of
$1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2(10), the minimum principal denomination
for each Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
3.3 NOTICE OF REDEMPTION.
Unless otherwise indicated for a particular Series by Board Resolution,
a supplemental indenture hereto or an Officers' Certificate, at least 30 days,
and no more than 60 days, before a
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Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Securities to be redeemed at
his or her last address as the same appears on the registry books maintained by
the Registrar.
The notice shall identify the Securities to be redeemed (including the
CUSIP number(s) thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price, and that such redemption
price shall become due and payable on the Redemption Date;
(3) if any Security of a Series is being redeemed in
part, the portion of the principal amount of such Security of
a Series to be redeemed and that, after the Redemption Date
and upon surrender of such Security of a Series, a new
Security or Securities in principal amount equal to the
unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities of a Series called for redemption
must be surrendered to the Paying Agent to collect the
redemption price, and the place or places where each such
Security is to be surrendered for such payment;
(6) that, unless the Company defaults in making the
redemption payment, interest on the Securities of a Series
called for redemption ceases to accrue on the Redemption Date,
and the only remaining right of the Holders of such Securities
is to receive payment of the redemption price upon surrender
to the Paying Agent of the Securities redeemed; and
(7) if fewer than all the Securities of a Series are
to be redeemed, the identification of the particular
Securities of a Series (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities of a
Series to be redeemed and the aggregate principal amount of
Securities of a Series to be outstanding after such partial
redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense, and such
notice shall be irrevocable.
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3.4 EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable on the
Redemption Date and at the redemption price, plus interest, if any, accrued to
the Redemption Date. Upon surrender to the Trustee or Paying Agent, such
Securities of a Series shall be paid at the redemption price, plus accrued
interest, if any, to the Redemption Date, provided that if the Redemption Date
is after a regular interest payment record date and on or prior to the next
Interest Payment Date, the accrued interest shall be payable to the Holder of
the redeemed Securities registered on the relevant record date, as specified by
the Company in the notice to the Trustee pursuant to Section 3.1 hereof.
3.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date (but no later than 10:00 A.M. EST on
such date), the Company shall deposit with the Paying Agent money sufficient to
pay the redemption price of and accrued interest, if any, on all Securities to
be redeemed on that date other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Securities called for redemption
shall have been made available in accordance with the preceding paragraph and
the Company and the Paying Agent are not prohibited from paying such moneys to
Holders, the Securities called for redemption will cease to accrue interest and
the only right of the Holders of such Securities will be to receive payment of
the redemption price of and, subject to the proviso in Section 3.4, accrued and
unpaid interest on such Securities to the Redemption Date. If any Security
called for redemption shall not be so paid, interest will be paid, from the
Redemption Date until such redemption payment is made, on the unpaid principal
of the Security and any interest or premium (if any) not paid on such unpaid
principal, in each case, at the rate and in the manner provided in the
Securities.
3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security of a Series that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for a Holder a new
Security of the same Series equal in principal amount to the unredeemed portion
of the Security surrendered.
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ARTICLE 4
COVENANTS
4.1 PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest and premium, if
any, on each Series of Securities on the dates and in the manner provided in
such Securities and this Indenture.
An installment of principal or interest shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment and is not prohibited from
paying such money to the Holders pursuant to the terms of this Indenture or
otherwise.
The Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Series of
Securities.
4.2 SEC REPORTS.
The Company will deliver to the Trustee within 15 days after the filing
of the same with the SEC, copies of the quarterly and annual report and of the
information documents and other reports, if any, which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file
with the SEC, to the extent permitted, and provide the Trustee with such
quarterly and annual reports and such information, documents and other reports
specified in Section 13 and 15(d) of the Exchange Act. The Company will also
comply with the other provisions of TIA Section 314(a).
4.3 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
they will not at any time insist upon, or plead (as a defense or otherwise) or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension, usury or other law which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, and/or interest
on the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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4.4 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company (ending December 31), an
Officers' Certificate which complies with TIA Section 314(a)(4) stating that a
review of the activities of the Company and its Subsidiaries during such fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge each has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest or premium, if any, on the Securities is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) (i) If any Default or Event of Default has occurred and
is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence and what action the Company is taking or proposes to take with
respect thereto.
4.5 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Significant
Subsidiaries or properties of it or any of its Significant Subsidiaries and (ii)
all lawful claims for labor, materials and supplies that, if unpaid, might by
law become a Lien upon the property of it or any of its Significant
Subsidiaries; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim if the amount, applicability or validity thereof is being contested in
good faith by appropriate proceedings and an adequate reserve has been
established therefor to the extent required by GAAP.
4.6 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, partnership or other existence of each Significant
Subsidiary, in accordance with the respective
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organizational documents (as the same may be amended from time to time) of the
Company and of each Significant Subsidiary, and the rights (charter and
statutory), licenses and franchises of the Company and its Significant
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Significant Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Significant Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
4.7 MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.7 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
ARTICLE 5
SUCCESSOR CORPORATION
5.1 LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS.
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or Persons,
unless at the time of and after giving effect thereto (i) either (A) if the
transaction or series of transactions is a merger or consolidation, the Company
shall be the surviving Person of such merger or consolidation, or (B) the Person
formed by such consolidation or into which the Company is merged or to which the
properties and assets of the Company are transferred (any such surviving person
or transferee Person being the
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"Surviving Entity") shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia
and shall expressly assume by a supplemental indenture executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, all the obligations
of the Company (including, without limitation, the obligation to pay the
principal of, and premium and interest, if any, on the Securities and the
performance of the other covenants) under the Securities of each Series and this
Indenture, and in each case, this Indenture shall remain in full force and
effect; and (ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be continuing.
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.1, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.1 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
5.2 SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1
above, the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter (except with respect to any such
transfer which is a lease) the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
6.1 EVENTS OF DEFAULT.
"Events of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers' Certificate, it is
provided that such Series shall not have the benefit of said Event of Default:
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(1) there is a default in the payment of any
principal of, or premium, if any, on the Securities when the
same becomes due and payable at Maturity, upon acceleration,
redemption or otherwise;
(2) there is a default in the payment of any interest
on any Security of a Series when the same becomes due and
payable and the Default continues for a period of 30 days;
(3) the Company defaults in the observance or
performance of any other covenant in the Securities of a
Series or this Indenture for 45 days after written notice from
the Trustee or the Holders of not less than 25% in the
aggregate principal amount of the Securities of such Series
then outstanding;
(4) there is a default or are defaults under one or
more agreements, instruments, mortgages, bonds, debentures or
other evidences of Indebtedness under which the Company or any
Significant Subsidiary of the Company then has outstanding
Indebtedness in excess of $10 million, individually or in the
aggregate, and either (a) such Indebtedness is already due and
payable in full or (b) such default or defaults have resulted
in the acceleration of the Maturity of such Indebtedness;
(5) a court of competent jurisdiction enters a final
judgment or judgments which can no longer be appealed for the
payment of money in excess of $10 million (not covered by
insurance) against the Company or any Significant Subsidiary
and such judgment remains undischarged for a period of 60
consecutive days during which a stay of enforcement of such
judgment shall not be in effect;
(6) the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of
its property,
(D) makes a general assignment for the
benefit of its creditors, or
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(E) generally is not paying its debts as
they become due;
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for all or
substantially all of the property of the Company or
any Significant Subsidiary; or
(C) orders the liquidation of the Company or
any Significant Subsidiary, and the order or decree
remains unstayed and in effect for 60 days; or
(8) any other Event of Default provided with respect
to Securities of that Series, which is specified in a Board
Resolution, a supplemental indenture hereto or an Officers'
Certificate, in accordance with Section 2.2(18).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
The Trustee may withhold notice of any Default (except in payment of
principal or premium, if any, or interest on the Securities) to the Holders of
the Securities of any Series in accordance with Section 7.5.
6.2 ACCELERATION.
If an Event of Default with respect to Securities of any Series at the
time outstanding (other than an Event of Default arising under Section 6.1(6) or
(7)) occurs and is continuing, the Trustee by written notice to the Company, or
the Holders of not less than 25% in aggregate principal amount of the Securities
of that Series then outstanding may by written notice to the Company and the
Trustee declare that the entire principal amount of all the Securities of that
Series then outstanding plus accrued and unpaid interest to the date of
acceleration are immediately due and payable, in which case such amounts shall
become immediately due and payable; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Securities of that Series may rescind and annul such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due solely because of the acceleration,
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have been cured or waived, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid and (iii) if the rescission would not conflict with any judgment or
decree. No such rescission shall affect any subsequent Default or impair any
right consequent thereto. In case an Event of Default specified in Section
6.1(6) or (7) with respect to the Company occurs, such principal, premium, if
any, and interest amount with respect to all of the Securities of that Series
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Securities of that Series.
6.3 OTHER REMEDIES.
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of,
or premium, if any, and interest on the Securities of that Series or to enforce
the performance of any provision of the Securities of that Series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of that Series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
6.4 WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority
in principal amount of the Securities of any Series then outstanding have the
right to waive any existing Default or Event of Default with respect to such
Series or compliance with any provision of this Indenture (with respect to such
Series) or the Securities of such Series. Upon any such waiver, such Default
with respect to such Series shall cease to exist, and any Event of Default with
respect to such Series arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities of any
Series then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture with respect to such Series.
The Trustee, however, may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines may be unduly prejudicial
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to the rights of another Securityholder or that may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
6.6 LIMITATION ON SUITS.
Subject to Section 6.7 below, a Securityholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Securities
of a Series unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to the Securities
of that Series;
(2) the Holders of at least 25% in aggregate
principal amount of the Securities of such Series then
outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense to be incurred in compliance with
such request;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate principal
amount of the Securities of such Series then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of a Series to receive payment of principal of, or premium,
if any, and interest of the Security of such Series on or after the respective
due dates expressed in the Security of such Series, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
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6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.1(1) or (2) hereof with respect to Securities of any
Series at the time outstanding occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
(or any other obligor on the Securities of that Series) for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then
borne by the Securities of that Series, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, as set forth in Section 7.7.
6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents, and take other actions (including sitting on a committee of
creditors) as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), any of their respective creditors or any
of their respective property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same after deduction of its charges and expenses to the
extent that any such charges and expenses are not paid out of the estate in any
such proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities of a Series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceedings.
6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
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SECOND: to Securityholders for amounts then due and unpaid for
principal, premium, if any, and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder a notice that states
the record date, the payment date and amount to be paid.
6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof or a suit by Holders of more than 10% in
principal amount of the Securities of a Series then outstanding.
ARTICLE 7
TRUSTEE
7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the same circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no covenants
or obligations shall be implied in this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
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Trustee and conforming to the requirements of this Indenture
but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Sections 6.2 and 6.5 hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (d) of this Section 7.1 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee and Paying Agent shall not be liable for
interest on any money received by it except as the Trustee and Paying Agent may
agree in writing with the Company. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by the law.
(g) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of care set
forth in paragraphs (a), (b), (c), (d) and (f) of this Section 7.1 and in
Section 7.2 with respect to the Trustee.
7.2 RIGHTS OF TRUSTEE.
(a) Subject to Section 7.1 hereof:
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(1) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document reasonably
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel, or both, which shall conform to the provisions of
Section 10.5 hereof. The Trustee shall be protected and shall
not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(3) The Trustee may act through agents and attorneys
and shall not be responsible for the misconduct or negligence
of any agent appointed by it with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably
believes to be authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel as to
matters of law shall be full and complete authorization and
protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(7) The Trustee shall not be deemed to have knowledge
of any fact or matter (including, without limitation, a
Default or Event of Default) unless such fact or matter is
known to a Responsible Officer of the Trustee.
(8) Unless otherwise expressly provided herein or in
the Securities of a Series or the related Board Resolution,
supplemental indenture or Officers' Certificate, the Trustee
shall not have any responsibility with respect to reports,
notices, certificates or other documents filed with it
hereunder, except to make them available for inspection, at
reasonable times, by Securityholders, it being understood that
delivery of such reports, information and documents to the
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Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of
any information contained therein or determinable from
information contained therein, including the Company's
compliance with any of its covenants hereunder (except as set
forth in Section 4.4).
7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company, or any Affiliate
thereof, with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.
7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities (except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture and authenticate the
Securities and perform its obligations hereunder), it shall not be accountable
for the Company's use of the proceeds from the sale of Securities or any money
paid to the Company pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Securities other than its certificates of
authentication.
7.5 NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to the Trustee, the
Trustee shall mail to each Securityholder of the Securities of that Series
notice of the Default or the Event of Default, as the case may be, within 30
days after it occurs or, if later, after a Responsible Officer of the Trustee
has knowledge of such Default or Event of Default (except if such Default or
Event of Default has been validly cured or waived before the giving of such
notice). Except in the case of a Default or an Event of Default in payment of
the principal of, or premium, if any, or interest on any Security of any Series,
the Trustee may withhold the notice if and so long as the Board of Directors of
the Trustee, the executive committee or any trust committee of such board and/or
its Responsible Officers in good faith determine(s) that withholding the notice
is in the interests of the Securityholders of that Series.
7.6 REPORTS BY TRUSTEE TO HOLDERS.
If and to the extent required by the TIA, within 60 days after May 15
of each year, commencing the May 15 following the date of this Indenture, the
Trustee shall mail to each
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Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and any stock exchange on which the Securities of
that Series are listed. The Company shall promptly notify the Trustee when the
Securities of any Series are listed on any stock exchange, and the Trustee shall
comply with TIA Section 313(d).
7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. However, the failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations. Notwithstanding the foregoing, the Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by the Trustee through its negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.7,
the Trustee shall have a Lien prior to the Securities of any Series on all money
or property held or collected by the Trustee, except such money or property held
in trust to pay principal of and interest and premium (if any) on particular
Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.7, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
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7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing at least 90 days in advance of
such resignation.
The Holders of a majority in principal amount of the outstanding
Securities of any Series may remove the Trustee with respect to that Series by
notifying the removed Trustee in writing and may appoint a successor Trustee
with respect to that Series with the consent of the Company, which consent shall
not be unreasonably withheld. The Company may remove the Trustee with respect to
that Series at its election if:
(1) the Trustee fails to comply with, or ceases to be
eligible under, Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(3) a Custodian or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee with respect to any Series of Securities for any reason, the
Company shall promptly notify each Holder of such event and shall promptly
appoint, by Board Resolution, a successor Trustee.
If a successor Trustee with respect to the Securities of one or more
Series does not take office within 30 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of one or more Series
fails to comply with Section 7.10 hereof, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery (i) the retiring Trustee with respect to one or more Series shall,
subject to its rights under Section 7.7 hereof, transfer all property held by it
as Trustee with respect to such Series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee shall become effective, and (iii)
the successor Trustee with respect to such Series shall have all the rights,
powers and duties of the Trustee
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under this Indenture. A successor Trustee with respect to the Securities of one
or more Series shall mail notice of its succession to each Securityholder of
such Series.
7.9 SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
subject to Section 7.10 hereof, the successor corporation without any further
act shall be the successor Trustee.
7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the provision in Section
310(b)(1). If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.10, it shall resign immediately in the
manner and with the effect specified in this Article 7.
7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
7.12 PAYING AGENTS.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it will hold all sums held by it as agent
for the payment of principal of, or premium, if any, or
interest on, the Securities (whether such sums have been paid
to it by the Company or by any obligor on the Securities) in
trust for the benefit of Holders of the Securities or the
Trustee;
(2) that it will at any time during the continuance
of any Event of Default, upon written request from the
Trustee, deliver to the Trustee all sums so held in trust by
it together with a full accounting thereof; and
(3) that it will give the Trustee written notice
within three (3) Business Days of any failure of the Company
(or by any obligor on the Securities) in the
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payment of any installment of the principal of, premium, if
any, or interest on, the Securities when the same shall be due
and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
8.1 WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series
without notice to or consent of any Securityholder:
(1) to comply with Section 5.1 hereof;
(2) to provide for uncertificated Securities in
addition to certificated Securities;
(3) to comply with any requirements of the SEC under
the TIA;
(4) to cure any ambiguity, defect or inconsistency,
or to make any other change that does not adversely affect the
rights of any Securityholder;
(5) to provide for the issuance of and establish the
form and terms and conditions of Securities of any Series as
permitted by this Indenture; or
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more Series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into any such supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
8.2 WITH CONSENT OF HOLDERS.
(a) The Company, when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture or the Securities of one or
more Series with the written
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consent of the Holders of not less than a majority in aggregate principal amount
of the outstanding Securities of such Series affected by such amendment or
supplement without notice to any Securityholder. The Holders of not less than a
majority in aggregate principal amount of the outstanding Securities of each
such Series affected by such amendment or supplement may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities of such Series without notice to any Securityholder. Subject to
Section 8.4, without the consent of each Securityholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4, may
not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver to this
Indenture or the Securities;
(2) reduce the rate of or change the time for payment
of interest on any Security;
(3) reduce the principal or change the Stated
Maturity of any Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or
analogous obligation;
(4) make any Security payable in money other than
that stated in the Security;
(5) change the amount or time of any payment required
by the Securities or reduce the premium payable upon any
redemption of the Securities, or change the time before which
no such redemption may be made;
(6) waive a Default or Event of Default in the
payment of the principal of or interest or premium, if any, on
any Security (except a rescission of acceleration of the
Securities of any Series by the Holders of at least a majority
in principal amount of the outstanding Securities of such
Series and a waiver of the payment default that resulted from
such acceleration);
(7) waive a redemption payment with respect to any
Security or change any of the provisions with respect to the
redemption of any Securities;
(8) make any changes in Sections 6.4 or 6.7 hereof or
this Section 8.2, except to increase any percentage of
Securities the Holders of which must consent to any matter; or
(9) take any other action otherwise prohibited by
this Indenture to be taken without the consent of each holder
affected thereby.
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(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Securityholders as aforesaid and upon receipt by
the Trustee of the documents described in Section 8.6 hereof, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
(c) It shall not be necessary for the consent of the Holders
under this section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
8.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
8.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Security or portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date without the applicable amendment, supplement
or waiver becoming effective.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.2 hereof. In that case
the amendment, supplement, waiver or other action shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security or
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portion of a Security that evidences the same debt as the consenting Holder's
Security; provided that any such waiver shall not impair or affect the right of
any Holder to receive payment of principal of and interest and premium (if any)
on a Security, on or after the respective due dates expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
8.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement, or waiver changes the terms of a Security
of any Series, the Trustee may request the Holder of such Security to deliver it
to the Trustee. In such case, the Trustee shall place an appropriate notation on
such Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for such Security shall issue and the Trustee shall authenticate a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect of
such amendment, supplement or waiver.
8.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.1 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture.
The Company may not sign an amendment or supplement until the Board of Directors
of the Company approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
9.1 DISCHARGE OF INDENTURE.
The Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the obligations
referred to in the last paragraph of this Section 9.1, if there shall have been
canceled by the Trustee or delivered to the Trustee for cancellation all
Securities of such Series theretofore authenticated and delivered (other than
any Securities of such Series that are asserted to have been destroyed, lost or
stolen and that shall have been replaced as provided in Section 2.8 hereof) and
the Company has paid all sums payable by it hereunder or deposited all required
sums with the Trustee.
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After such delivery the Trustee upon request shall acknowledge in a
writing prepared by or on behalf of the Company the discharge of the Company's
obligations under the Securities of such Series and this Indenture except for
those surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.7, 9.5 and 9.6 hereof shall survive.
9.2 LEGAL DEFEASANCE.
The Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities of any Series on the date the
conditions set forth in Section 9.4 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Securities of such Series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall, subject to
Section 9.6 hereof, execute proper instruments acknowledging the same, as are
delivered to it by the Company), except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Securities of such Series to receive solely from the trust funds
described in Section 9.4 hereof and as more fully set forth in such section,
payments in respect of the principal of, premium, if any, and interest on the
Securities of such Series when such payments are due, (B) the Company's
obligations with respect to the Securities of such Series under Sections 2.4,
2.5, 2.6, 2.7, 2.8 and 2.9 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.7 hereof) and (D) this Article 9. Subject
to compliance with this Article 9, the Company may exercise its option under
this Section 9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with respect to the
Securities of such Series.
9.3 COVENANT DEFEASANCE.
At the option of the Company, pursuant to a Board Resolution, the
Company shall be released from its obligations with respect to the outstanding
Securities of any Series under Sections 4.2 through 4.7 hereof, inclusive, and
Section 5.1 hereof, with respect to the outstanding Securities of such Series,
on and after the date the conditions set forth in Section 9.4 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified section or portion thereof, whether directly or indirectly by reason
of any reference elsewhere herein to any such specified Section or portion
thereof or by reason of any reference in any such specified section or portion
thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of any Series shall be unaffected
thereby.
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9.4 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 9.2 or
Section 9.3 hereof to the outstanding Securities of a Series:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 hereof who shall
agree to comply with the provisions of this Article 9
applicable to it) as funds in trust for the purpose of making
the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Securities, (A) money in an amount, or (B) U.S. Government
Obligations or Foreign Government Obligations which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and accrued
interest on the outstanding Securities of such Series at the
Stated Maturity of such principal, premium, if any, or
interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the
Securities of such Series;
(2) no Event of Default or Default with respect to
the Securities of such Series shall have occurred and be
continuing on the date of such deposit, or shall have occurred
and be continuing at any time during the period ending on the
91st day after the date of such deposit or, if longer, ending
on the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in
respect of such deposit as specified in the Opinion of Counsel
identified in paragraph (8) below (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance
shall not cause the Trustee to have a conflicting interest for
purposes of the TIA with respect to any securities of the
Company;
(4) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute
default under any other agreement or instrument to which the
Company is a party or by which it is bound;
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(5) the Company shall have delivered to the Trustee
an Opinion of Counsel stating that, as a result of such Legal
Defeasance or Covenant Defeasance, neither the trust nor the
Trustee will be required to register as an investment company
under the Investment Company Act of 1940, as amended;
(6) in the case of an election under Section 9.2
above, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling to the effect that or (ii) there has been a
change in any applicable Federal income tax law with the
effect that, and such opinion shall confirm that, the Holders
of the outstanding Securities of such Series or persons in
their positions will not recognize income, gain or loss for
Federal income tax purposes solely as a result of such Legal
Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner, including as a result of
prepayment, and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.3
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
outstanding Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(8) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for in this
Article 9 relating to either the Legal Defeasance under
Section 9.2 above or the Covenant Defeasance under Section 9.3
hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit under clause
(1) was not made by the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company
or others; and
(10) the Company shall have paid or duly provided for
payment under terms mutually satisfactory to the Company and
the Trustee all amounts then due to the Trustee pursuant to
Section 7.7 hereof.
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9.5 DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money, U.S. Government Obligations and Foreign Government
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 9.4 hereof in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations and
Foreign Government Obligations deposited pursuant to Section 9.4 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Securities.
Anything in this Article 9 to the contrary notwithstanding, but subject
to payment of any of its outstanding fees and expenses, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money,
U.S. Government Obligations or Foreign Government Obligations held by it as
provided in Section 9.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
9.6 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in accordance with
Section 9.1, 9.2, 9.3 or 9.4 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money,
U.S. Government Obligations or Foreign Government Obligations, as the case may
be, in accordance with Section 9.1, 9.2, 9.3 or 9.4 hereof; provided, however,
that if the Company has made any payment of principal of, premium, if any, or
accrued interest on any Securities because of the reinstatement of their
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, U.S. Government
Obligations or Foreign Government Obligations held by the Trustee or Paying
Agent.
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9.7 MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.1 hereof, to the Company, and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
9.8 MONEYS HELD BY TRUSTEE.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or premium, if any,
or interest on any Security that are not applied but remain unclaimed by the
Holder of such Security for two years after the date upon which the principal
of, or premium, if any, or interest on such Security shall have respectively
become due and payable shall be repaid to the Company upon Company Request, or
if such moneys are then held by the Company in trust, such moneys shall be
released from such trust; and the Holder of such Security entitled to receive
such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or any such Paying Agent, before being required to
make any such repayment, may, at the expense of the Company, either mail to each
Securityholder affected, at the address shown in the register of the Securities
maintained by the Registrar or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such moneys then remaining will
be repaid to the Company. After payment to the Company or the release of any
money held in trust by the Company, Securityholders entitled to the money must
look only to the Company for payment as general creditors unless applicable
abandoned property law designates another person.
ARTICLE 10
MISCELLANEOUS
10.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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10.2 NOTICES.
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Lamar Advertising Company
5551 Corporate Boulevard
Baton Rouge, Louisiana 70808
Attention: Chief Financial Officer
Copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Attention: George Ticknor, Esq.
If to the Trustee:
General Mailing Address:
State Street Bank and Trust Company
Global Investor Services Group
P.O. Box 778
Boston, Massachusetts 02102-0778
Attention: Corporate Trust Office/Lamar Advertising
Overnight Courier Address:
State Street Bank and Trust Company
Global Investor Services Group
2 Avenue de Lafayette - 6th Floor
Boston, Massachusetts 02111-1724
Attention: Corporate Trust Office/Lamar Advertising
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is confirmed, if
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telecopied; and three (3) Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to such Securityholder by first-class mail, postage prepaid, at such
Securityholder's address shown on the register kept by the Registrar. In
addition, notices or communications to Securityholders shall be given by release
made to Reuters Economic Services and Bloomberg Business News.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it shall be deemed duly given three Business Days
after such mailing, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
In the case of Global Securities, notices or communications to be given
to Securityholders shall be given to the Depositary, in accordance with its
applicable policies as in effect from time to time.
10.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
any other Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.5 below) stating that, in
the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
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(2) an Opinion of Counsel (which shall include the
statements set forth in Section 10.5 below) stating that, in
the opinion of such counsel, all such conditions precedent
have been complied with.
10.5 STATEMENT REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
it or he has made such examination or investigation as is
necessary to enable it or him to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such covenant or condition has been complied
with.
10.6 [Reserved].
10.7 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
10.8 BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally recognized holiday or a day on
which banking institutions are not authorized or required by law or executive
order to be open in the State of New York or the Commonwealth of Massachusetts.
If a payment date is a Legal Holiday at a Place of Payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the
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intervening period. "Place of Payment" means the place or places where the
principal of and any premium and interest on the Securities of a Series are
payable as specified as contemplated by Section 2.2.
10.9 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
10.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
10.11 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability (except in the case of bad faith or
willful misconduct) for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
10.12 SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns, whether so expressed or not.
All agreements of the Trustee, any additional trustee and any Paying Agents in
this Indenture shall bind their respective successors and assigns.
10.13 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
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<PAGE> 57
10.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
10.15 SEPARABILITY.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
10.16 SECURITIES IN A FOREIGN CURRENCY OR IN EURO.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including Euro), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.16, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of Euros,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of Euros, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of Euros, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question or, in
the case of Euros, in Luxembourg or such other quotations or, in the case of
Euros, rates of exchange as the Trustee, upon consultation with the Company,
shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a Series
denominated in currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.
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<PAGE> 58
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
10.17 JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or premium (if any) or other amount on the Securities of any Series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order to
close.
-------------------------------
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<PAGE> 59
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] LAMAR ADVERTISING COMPANY
By:
-------------------------------
Name:
Title:
Attest:
----------------------
[SEAL] STATE STREET BANK AND TRUST
COMPANY
By:
-------------------------------
Name:
Title:
Attest:
----------------------
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<PAGE> 60
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, ____, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is ______________________________ of
_________________________________, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On the ____ day of ___________, ____, before me personally came
__________________________ to me known, who, being by me duly sworn, did depose
and say that he is an Assistant Vice President of ____________________________,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
-----------------------------
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<PAGE> 1
EXHIBIT 4.8
===============================================================================
LAMAR ADVERTISING COMPANY
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
---------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 10, 1999
---------------------------
Supplement to Indenture dated as of August 10, 1999
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
CREATION OF THE NOTES
<S> <C> <C>
1.1 Designation of Series.............................................2
1.2 Form of Notes.....................................................2
1.3 Limit on Amount of Series.........................................2
1.4 Interest..........................................................2
1.5 Certificate of Authentication.....................................2
1.6 No Sinking Fund...................................................2
1.7 Issuance in Global Form...........................................3
1.8 Discharge of Indenture; Defeasance................................3
1.9 Other Terms of Notes..............................................3
ARTICLE 2
CONVERSION OF NOTES
2.1 Conversion Privilege..............................................3
2.2 Conversion Rate...................................................4
2.3 Exercise of Conversion Privilege..................................4
2.4 Fractions of Common Stock Shares..................................5
2.5 Adjustment of Conversion Rate.....................................5
2.6 Notice of Adjustments of Conversion Rate.........................11
2.7 Notice of Certain Corporate Action...............................12
2.8 Company to Reserve Common Stock..................................13
2.9 Taxes on Conversions.............................................13
2.10 Covenant as to Common Stock......................................13
2.11 Cancellation of Converted Securities.............................13
2.12 Provisions in Case of Consolidation, Merger or Sale of Assets....13
2.13 Right of Holders to Convert......................................14
ARTICLE 3
REDEMPTION OF NOTES
3.1 Optional Redemption by the Company...............................15
3.2 Applicability of Article.........................................15
</TABLE>
-i-
<PAGE> 3
<TABLE>
ARTICLE 4
REPURCHASE OF NOTES AT THE OPTION OF THE HOLDERS UPON A CHANGE
OF CONTROL
<S> <C> <C>
4.1 Repurchase at Option of Holders upon Change of Control.............15
4.2 Certain Definitions................................................18
ARTICLE 5
EVENTS OF DEFAULT
5.1 Additional Events of Default.......................................20
ARTICLE 6
AMENDMENTS, SUPPLEMENTS AND WAIVERS
6.1 With Consent of Holders............................................20
ARTICLE 7
MISCELLANEOUS
7.1 Application of First Supplemental Indenture........................21
7.2 Effective Date.....................................................21
7.3 Counterparts.......................................................21
</TABLE>
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<PAGE> 4
FIRST SUPPLEMENTAL INDENTURE, dated as of August 10, 1999 by and
between LAMAR ADVERTISING COMPANY, a Delaware corporation, as issuer (the
"Company"), and STATE STREET BANK AND TRUST COMPANY, a trust company organized
under the laws of the Commonwealth of Massachusetts, as Trustee under the
Indenture (as hereinafter defined) (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have as of August 10, 1999 entered
into an Indenture (the "Indenture", all capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Indenture) providing for
the issuance by the Company of Securities from time to time;
WHEREAS, no Securities have been issued under the Indenture and there
do not currently exist any Holders;
WHEREAS, the Company desires to issue one Series of Securities under
the Indenture, and has duly authorized the creation and issuance of such
securities and the execution and delivery of this First Supplemental Indenture
to modify the Indenture and provide certain additional provisions as hereinafter
described;
WHEREAS, the Company and the Trustee deem it advisable to enter into
this First Supplemental Indenture for the purposes of establishing the terms of
such Series of Securities;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by a Board Resolution;
WHEREAS, concurrent with the execution hereof, the Company has
delivered a Board Resolution and an Officers' Certificate and has caused its
counsel to deliver to the Trustee an Opinion of Counsel or a reliance letter
upon an Opinion of Counsel; and
WHEREAS, all things necessary to make this First Supplemental Indenture
a valid agreement of the Company in accordance with its terms have been done,
and the execution and delivery thereof have been in all respects duly authorized
by the parties hereto.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes (as hereinafter defined), as
follows:
<PAGE> 5
ARTICLE 1
CREATION OF THE NOTES
1.1 DESIGNATION OF SERIES.
Pursuant to the terms hereof and Sections 2.1 and 2.2 of the Indenture,
the Company hereby creates a Series of Securities designated as the "5.25%
Convertible Notes due 2006" (the "Notes"), which Notes shall be deemed
"Securities" for all purposes under the Indenture.
1.2 FORM OF NOTES.
The definitive form of the Notes shall be substantially in the form set
forth in Exhibit A attached hereto, which is incorporated herein and made part
hereof. The Stated Maturity of the Notes shall be September 15, 2006.
1.3 LIMIT ON AMOUNT OF SERIES.
The Notes shall not exceed U.S.$287,500,000 in aggregate principal
amount, and may, upon the execution and delivery of this First Supplemental
Indenture or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes upon a Company Order and delivery of an
Officers' Certificate and Opinion of Counsel as contemplated by Section 2.3 of
the Indenture.
1.4 INTEREST.
The Notes shall bear interest at a rate of 5.25% per annum, payable
semi-annually. The Interest Payment Dates for the Notes shall be March 15 and
September 15 of each year, commencing September 15, 1999, with interest payable
in Dollars to Holders in whose names the Notes are registered at the close of
business on March 1 or September 1 of each year (each, a "Record Date"), or, if
such Record Date is not a Business Day, at the close of business of the
immediately succeeding Business Day.
1.5 CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication to be borne on the Notes
shall be substantially as provided in the Form of Note attached hereto as
Exhibit A.
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<PAGE> 6
1.6 NO SINKING FUND.
No sinking fund will be provided with respect to the Notes.
1.7 ISSUANCE IN GLOBAL FORM.
The Notes shall be issued as one or more Global Securities,
representing the aggregate principal amount of the Notes, and shall be deposited
with the Trustee as custodian for the Depositary. The Notes shall be registered
in the name of Cede & Co., or other nominee of the Depositary.
1.8 DISCHARGE OF INDENTURE; DEFEASANCE.
The Notes shall not be subject to the provisions of Article 9 of the
Indenture.
1.9 OTHER TERMS OF NOTES.
The other terms of the Notes shall be as expressly set forth in
Articles 2, 3, 4, 5, 6 and 7 hereof and Exhibit A hereto.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this First Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE 2
CONVERSION OF NOTES
2.1 CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article 2,
at the option of the Holder thereof, any Note or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000, and which has
not previously been redeemed pursuant to Article 3 hereof or repurchased
pursuant to Article 4 hereof, may be converted into fully paid and nonassessable
shares of Class A common stock of the Company, $0.001 par value per share (the
"Common Stock"), at the conversion rate, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall commence on the
date of original issuance of the Notes, and shall expire at the close of
business on the Business Day immediately preceding the Stated Maturity. In case
a Note or portion thereof is called for redemption, such conversion right in
respect of the Note or portion so called shall expire at the close of business
on the Business Day immediately preceding the Redemption Date, unless the
Company defaults in making the payment due upon redemption. A Note in respect of
which a Holder has delivered a Repurchase
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<PAGE> 7
Notice pursuant to Section 4.1 hereof may be converted only if such notice is
withdrawn in accordance with the terms of such section, unless the Company
defaults in the payment of the Change of Control Repurchase Price.
2.2 CONVERSION RATE.
The rate at which shares of Common Stock shall be delivered upon
conversion (the "Conversion Rate") shall be initially 21.6216 shares of Common
Stock for each $1,000 principal amount of Notes. The Conversion Rate shall be
adjusted in certain instances as provided in Section 2.5 hereof. All
calculations under this Article 2 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be.
2.3 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any Note
to be converted shall surrender such Note, duly endorsed or assigned to the
Company or in blank, at the Corporate Trust Office of the Trustee, located at
225 Franklin St., Boston, MA 02110, Attn: Corporate Trust/Global Investors
Services, or the offices of an Affiliate of the Trustee located at 61 Broadway,
New York, NY 10005, Attn: Corporate Trust Window/Concourse Level, in the Borough
of Manhattan, The City of New York, accompanied by a duly signed and completed
written notice to the Company at the Corporate Trust Office that the Holder
elects to convert such Note. Notes surrendered for conversion during the period
from the close of business on any Record Date immediately preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Notes or portions thereof which have been called for
redemption or in respect of which a Repurchase Notice delivered by the Holder
has not been withdrawn, the conversion rights of which would terminate during
the period between such Record Date and the close of business on such Interest
Payment Date) be accompanied by payment in immediately available funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of Notes being surrendered
for conversion. No payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Notes surrendered for conversion from the
Interest Payment Date preceding the day of conversion, or on account of any
dividends on the Common Stock issued upon conversion. In addition, Holders shall
not be entitled to receive any dividends payable to holders of Common Stock as
of any record date before the close of business on the conversion date. Notes
shall be deemed to have been converted immediately prior to the close of
business on the day of surrender of such Notes for conversion in accordance with
the foregoing provisions, and at such time the rights of the Holders of such
Notes as Holders shall cease, and the Person or Persons entitled to receive the
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such time. As promptly as
practicable on or after the conversion date, the Company shall issue and shall
deliver to the Trustee at its Corporate Trust Office a certificate or
certificates for the number of full shares of Common Stock issuable upon
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<PAGE> 8
conversion, together with payment in lieu of any fraction of a share thereof, as
provided in Section 2.4 hereof, and the Trustee shall forward such certificate
or certificates at the addresses set forth in the written notices sent to the
Company by the Holders electing to convert their Notes.
2.4 FRACTIONS OF COMMON STOCK SHARES.
No fractional shares of Common Stock shall be issued upon conversion of
the Notes. If more than one Note shall be surrendered for conversion at one time
by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the principal amount of the
Notes so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Note or Notes, the Company
shall pay a cash adjustment in respect of such fraction in an amount equal to
the same fraction of the Market Price (determined by the Company in accordance
with the following paragraph) per share of Common Stock.
For purposes of this Section 2.4, "Market Price" means the Sale Price
(as defined below) of the Common Stock on the date of conversion of the Notes
or, if such date is not a Trading Day (as defined below), then on the last
Trading Day prior to such date. The "Sale Price" of the Common Stock on any date
means the closing per share sale price (or if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices) on such date as reported in
the composite transactions for the principal United States securities exchange
on which the Common Stock is traded or, if the Common Stock is not listed on a
United States national or regional stock exchange, as reported by the Nasdaq
National Market. "Trading Day" means, in respect of any securities exchange or
securities market, each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which securities are not traded on the applicable securities
exchange or in the applicable securities market.
2.5 ADJUSTMENT OF CONVERSION RATE.
(1) In case at any time after the date of the issuance of the Notes,
the Company shall pay or make a dividend or other distribution to the Common
Stock payable in shares of its Common Stock, the Conversion Rate in effect at
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the
-5-
<PAGE> 9
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(2) Subject to paragraph 9 of this Section 2.5, in case at any time
after the date of the issuance of the Notes, the Company shall issue rights,
options or warrants to all holders of its Common Stock (other than any rights,
options or warrants that by their terms will also be issued to any Holder upon
conversion of a Note into Common Stock without any action required by the
Company or any other person) entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the then current market price per
share (determined as provided in paragraph (9) of this Section 2.5) of the
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Conversion Rate in effect at the opening of business on
the day following the date fixed for such determination shall be increased by
dividing such Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights, options or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the Notes,
outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common Stock,
the Conversion Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
reduced, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the Notes,
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock, shares of any class of its capital stock, evidences of its
indebtedness or other assets (including securities, but excluding
-6-
<PAGE> 10
any rights, options or warrants referred to in paragraph (2) of this Section
2.5, any dividend or distribution paid exclusively in cash, any dividend or
distribution referred to in paragraph (1) of this Section 2.5 and distributions
upon a merger or consolidation to which Section 2.12 applies), the Conversion
Rate shall be adjusted so that the same shall equal the price determined by
dividing the Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in paragraph (9) of this
Section 2.5) of the Common Stock on the date fixed for such determination less
the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed with
the Trustee) of the portion of the assets, shares of capital stock or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. If the Board of Directors determines the
fair market value of any distribution for purposes of this paragraph (4) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per share
pursuant to paragraph (9) of this Section 2.5.
(5) In case at any time after the date of the issuance of the Notes,
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash (excluding any cash that is distributed upon a merger or
consolidation to which Section 2.12 applies or as part of a distribution
referred to in paragraph (4) of this Section 2.5) in an aggregate amount that,
combined together with:
(A) the aggregate amount of any other distributions to all
holders of its Common Stock made exclusively in cash within the 12
months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) has been
made, and
(B) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee)
of consideration payable in respect of any tender offer by the Company
or any of its subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to
paragraph (6) of this Section 2.5 has been made,
(the amount of such cash distribution together with the amounts described in
clauses (A) and (B) above being referred to herein as the "Aggregate Cash
Distribution Amount") exceeds 10% of the product of (I) the current market price
per share (determined as provided in paragraph (9) of
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<PAGE> 11
this Section 2.5) of the Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive such distribution, times
(II) the number of shares of Common Stock outstanding on such date (the amount
by which the Aggregate Cash Distribution Amount exceeds 10% of the product of
the amounts described in clauses (I) and (II) above being referred to herein as
the "Excess Amount"), then, and in each such case, immediately after the close
of business on such date for determination, the Conversion Rate shall be
increased in accordance with the following formula:
M - (EA/O)
AC = CR/ ----------
M
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate in effect immediately prior to the close of business on
the date fixed for determination of the stockholders entitled to receive the
distribution.
M = the current market price per share (determined as provided in paragraph (9)
of this Section 2.5) of the Common Stock on the date fixed for determination of
the stockholders entitled to receive the distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on the date fixed for
determination of the stockholders entitled to receive the distribution.
(6) In case at any time after the date of the issuance of the Notes, a
tender offer made by the Company or any Subsidiary for all or any portion of the
Common Stock shall expire and such tender offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender offer) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) that combined
together with:
(A) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee),
as of the expiration of such tender offer, of consideration payable in
respect of any other tender offer, by the Company or any Subsidiary for
all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to this paragraph (6) has been made, and
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<PAGE> 12
(B) the aggregate amount of any distributions to all holders
of the Company's Common Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to paragraph (5) of this Section 2.5 has been
made,
exceeds 10% of the product of (I) the current market price per share of the
Common Stock (determined as provided in paragraph (9) of this Section 2.5) as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended), times (II) the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Conversion Rate shall be reduced
in accordance with the following formula:
(M x O) - C
AC = CR/ ------------
M x (O - TS)
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate immediately prior to close of business on the date of
the Expiration Time.
M = the current market price per share of the Common Stock (determined as
provided in paragraph (9) of this Section 2.5) on the date of the Expiration
Time.
O = the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time.
C = the amount of cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below).
TS = the number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or merger to
which Section 2.12 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
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<PAGE> 13
"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 2.5), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section 2.5).
(8) In case at any time after the date of the issuance of the Notes,
the Company shall issue rights or warrants to all holders of the Common Stock
entitling the holders thereof to subscribe for or purchase shares of Common
Stock (either initially or under certain circumstances), which rights or
warrants (i) are deemed to be transferred with such shares of Common Stock, (ii)
are not exercisable and (iii) are also issued in respect of future issuances of
Common Stock, in each case in clauses (i) through (iii) until the occurrence of
a specified event or events ("Trigger Event"), shall for purposes of this
Section 2.5 not be deemed issued or distributed until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 2.5. If any such rights or
warrants, including any such existing rights or warrants distributed prior to
the date of this Indenture are subject to subsequent events, upon the occurrence
of each of which such rights or warrants shall become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the
occurrence of each such event shall be deemed to be such date of issuance and
record date with respect to new rights or warrants (and a termination or
expiration of the existing rights or warrants without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event with respect thereto, that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 2.5 was made, (1) in the
case of any such rights or warrant which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be readjusted
as if such rights and warrants had not been issued.
(9) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section 2.5, the current market price per share of Common Stock
on any date shall be deemed to be the average of the daily Sale Prices (as
defined in Section 2.4 hereof) of the Common Stock
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<PAGE> 14
for the five consecutive Trading Days (as defined in Section 2.4 hereof)
selected by the Company commencing not more than ten Trading Days before, and
ending not later than the earlier of, the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex" date, when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.
(10) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(10)) would require an increase or decrease of at least 1.0% in such rate;
provided, however, that any adjustments which by reason of this paragraph (10)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this paragraph (10) shall be
made to the nearest whole cent.
(11) The Company may make such increases in the Conversion Rate, in
addition to those required by this Section 2.5, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this paragraph (11) and
its actions in so doing shall be final and conclusive.
(12) To the extent permitted by applicable law, the Company from time
to time may increase the Conversion Rate by any amount for any period of time if
the period is at least 20 days, the increase is irrevocable during such period,
and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the increase to the Holders in the
manner provided for in Section 10.2 of the Indenture at least 15 days prior to
the date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.
(13) In the event that this Article 2 requires adjustments to the
Conversion Rate under more than one of Sections 2.5(1), 2.5(2), 2.5(4) or 2.5(5)
hereof, and the record dates for the distributions giving rise to such
adjustments shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 2.5(4), second, the provisions of
Section 2.5(5), third, the provisions of Section 2.5(1) and, fourth, the
provisions of Section 2.5(2). After an adjustment to the Conversion Rate under
this Article 2, any subsequent event requiring an adjustment under this Article
2 shall cause an adjustment to the Conversion Rate as so adjusted. Whenever
successive adjustments to the Conversion Rate are called for pursuant to this
Article 2, such adjustments shall be made to the provisions of Section 2.5(9)
hereof as may
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be necessary or appropriate to effectuate the intent of this Article 2 and to
avoid unjust or inequitable results as determined in good faith by the Board of
Directors.
2.6 NOTICE OF ADJUSTMENTS OF CONVERSION RATE.
Whenever the Conversion Rate is adjusted as herein provided: (a) the
Company shall compute the adjusted Conversion Rate in accordance with Section
2.5 hereof and shall prepare an Officers' Certificate, one of the signatories of
which shall be the Treasurer or Chief Financial Officer of the Company, setting
forth the adjusted Conversion Rate (certified by the Company's independent
public accountants or other certified public accountant) and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section 2.3
hereof; and (b) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be required, and as
soon as practicable after it is required, such notice shall be given by the
Company to the Trustee and all Holders in the manner provided for in Section
10.2 of the Indenture. The Trustee shall not be deemed to have notice of any
change in the Conversion Rate unless and until it receives the Officers'
Certificate provided for in the foregoing clause (a) setting forth such change.
2.7 NOTICE OF CERTAIN CORPORATE ACTION.
In case: (a) the Company shall declare a dividend or make any other
distribution that would require any adjustment pursuant to Section 2.5 hereof;
or (b) the Company shall authorize the granting to the holders of its Common
Stock of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights; or (c) of any reclassification of the
Common Stock of the Company, or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company is
required or that is otherwise subject to Section 2.12 hereof, or of the
conveyance, lease, sale or transfer of all or substantially all of the assets of
the Company; or (d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; then the Company shall cause to be filed at each
office or agency maintained for the purpose of conversion of Securities pursuant
to Section 2.4 hereof, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the register for the Securities, at least 20
days prior to the applicable record or effective date hereinafter specified, a
notice (which notice shall also be sent by release to Reuters Economic Services
and Bloomberg Business News as set forth in Section 10.2 of the Indenture)
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, share exchange,
conveyance, lease, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
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<PAGE> 16
reclassification, consolidation, merger, share exchange, conveyance, lease,
sale, transfer, dissolution, liquidation or winding up. Neither the failure to
give such notice nor any defect therein shall affect the legality or validity of
the proceedings described in clauses (a) through (d) of this Section 2.7. If at
the time the Trustee shall not be the conversion agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee. The Company shall
cause to be filed at the Corporate Trust Office and each office or agency
maintained for the purpose of conversion of Notes pursuant to Section 2.4 of the
Indenture, and shall cause to be provided to all Holders in accordance with
Section 10.2 of the Indenture, notice of any tender offer by the Company or any
Subsidiary for all or any portion of the Common Stock at or about the time that
such notice of tender offer is provided to the public generally.
2.8 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Notes, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Notes.
2.9 TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Notes
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Note or Notes to be converted, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Company the
amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
2.10 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully paid and nonassessable
and, except as provided in Section 2.9 hereof, the Company will pay all taxes,
liens and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the issuance and delivery of shares of Common Stock
upon conversion of Notes, if any, and will use its best efforts to list or cause
to have quoted all such shares of Common Stock on each United States national
securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.
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<PAGE> 17
2.11 CANCELLATION OF CONVERTED SECURITIES.
All Notes delivered for conversion shall be delivered to the Trustee to
be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 2.12 of the Indenture.
2.12 PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any merger, amalgamation, arrangement or consolidation of
the Company with or into any other Person, any merger of another Person into the
Company (other than a merger, amalgamation, arrangement or consolidation which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any conveyance, lease,
sale or transfer of all or substantially all of the assets of the Company, the
Person formed by or resulting from such merger, amalgamation, arrangement or
consolidation or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture providing (in addition to
matters, if any, required by Section 5.1 of the Indenture) that the Holder of
each Note then outstanding shall have the right thereafter, during the period
such Note shall be convertible as specified in Section 2.1 hereof, to convert
such Note only into the kind and amount of securities, cash and other property
receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Note might have been converted
immediately prior to such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer, assuming such holder of Common Stock of the
Company (i) is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an Affiliate of
a Constituent Person and (ii) failed to exercise its rights of election, if any,
as to the kind or amount of Notes, cash and other property receivable upon such
merger, amalgamation, arrangement, consolidation, conveyance, lease, sale or
transfer (provided that if the kind or amount of Notes, cash and other property
receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer is not the same for each share of Common
Stock of the Company held immediately prior to such merger, amalgamation,
arrangement, consolidation, conveyance, lease, sale or transfer by other than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-Electing Share"), then for the
purpose of this Section 2.12 the kind and amount of securities, cash and other
property receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer by each non-electing share shall be deemed
to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2. The foregoing provisions of this
Section 2.12 shall similarly apply to successive mergers, amalgamations,
arrangements, consolidations, conveyances, leases, sales or transfers. The
Company shall cause
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notice of the execution of such supplemental indenture to be given to each
Holder in the manner provided for in Section 10.2 of the Indenture.
2.13 RIGHT OF HOLDERS TO CONVERT.
The limitations set forth in Section 6.6 of the Indenture shall not
apply to the right of a Holder to bring a suit for the enforcement of such
Holder's right to convert Notes pursuant to this Article 2.
ARTICLE 3
REDEMPTION OF NOTES
Pursuant to Section 2.2(7) of the Indenture, so long as any of the
Notes are outstanding, the following provisions shall be applicable to the
Notes:
3.1 OPTIONAL REDEMPTION BY THE COMPANY.
At any time on or after September 18, 2002, and prior to the Stated
Maturity, the Notes may be redeemed at the option of the Company, in whole or in
part, upon notice as set forth in Section 3.3 of the Indenture, at the following
redemption prices (expressed as a percentage of principal amount), in each case,
together with accrued interest to the Redemption Date:
<TABLE>
<CAPTION>
Redemption
Redemption Date Price:
- ------------------------------ ----------
<S> <C>
from 9/18/2002 until 9/14/2003 103.00%
from 9/15/2003 until 9/14/2004 102.25%
from 9/15/2004 until 9/14/2005 101.50%
from 9/15/2005 until 9/14/2006 100.75%
on 9/15/2006 100.00%
</TABLE>
3.2 APPLICABILITY OF ARTICLE.
Redemption of the Notes at the election of the Company or otherwise, as
permitted or required by any provision of the Notes or this First Supplemental
Indenture, shall be made in accordance with such provision, Article 3 of the
Indenture and this Article 3.
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ARTICLE 4
REPURCHASE OF NOTES AT THE OPTION
OF THE HOLDERS UPON A CHANGE OF CONTROL
Pursuant to Section 2.2(8) of the Indenture, so long as any of the
Notes are outstanding, the following provisions shall be applicable to the
Notes:
4.1 REPURCHASE AT OPTION OF HOLDERS UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence, the "Change of Control Date"), the Company shall notify the
Holders of the Notes in writing of such occurrence in accordance with paragraph
(b) below, and shall make an offer to purchase (a "Change of Control Offer"),
and shall purchase, on a Business Day (a "Change of Control Purchase Date") not
more than 60 nor less than 30 days following the Change of Control Date all of
the then outstanding Notes validly tendered at a purchase price in cash equal to
100% of the principal amount thereof plus accrued interest, if any, to the
Change of Control Purchase Date (the "Change of Control Purchase Price").
(b) Notice of a Change of Control Offer (a "Change of Control
Notice") shall be sent, by first-class mail, postage prepaid, by the Company not
later than the 30th day after the Change of Control Date to the Holders of the
Notes at their last registered addresses with a copy to the Trustee and the
Paying Agent (and shall also be given by release made to Reuters Economic
Services and Bloomberg Business News as provided in Section 10.2 of the
Indenture). The Change of Control Offer shall remain open from the time of
delivery of the Change of Control Notice for at least 20 Business Days and until
5:00 p.m., New York City time, on the Business Day prior to the Change of
Control Purchase Date. The Change of Control Notice, which shall govern the
terms of the Change of Control Offer, shall include such disclosures as are
required by law and shall state:
(i) that the Change of Control Offer is being made
pursuant to this Section 4.1 and that any portion of the
principal amount of Notes that is equal to $1,000 or an
integral multiple thereof, validly tendered into the Change of
Control Offer and not withdrawn, will be accepted for payment;
(ii) the cash purchase price (including the amount of
accrued interest, if any) for each Note, the Change of Control
Purchase Date and the date on which the Change of Control
Offer expires;
(iii) that any Note not tendered for payment will
continue to accrue interest in accordance with the terms
thereof;
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<PAGE> 20
(iv) that, unless the Company shall default in the
payment of the purchase price, any Note accepted for payment
of the Change of Control Purchase Price pursuant to the Change
of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(v) that Holders electing to have Notes purchased
pursuant to a Change of Control Offer will be required to
surrender their Notes to the Paying Agent at the address (in
the Borough of Manhattan, The City of New York) specified in
the Change of Control Notice prior to 5:00 p.m., New York City
time, on the Business Day prior to the Change of Control
Purchase Date and must complete any form of letter of
transmittal proposed by the Company and reasonably acceptable
to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to
withdraw their election if the Paying Agent receives, not
later than 5:00 p.m., New York City time, on the Business Day
prior to the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement
that such Holder is withdrawing its election to have such
Notes purchased;
(vii) that Holders whose Notes are purchased only in
part will be issued Notes equal in principal amount to the
unpurchased portion of the Notes surrendered;
(viii) the instructions that Holders must follow in
order to tender their Notes; and
(ix) information concerning the business of the
Company, the most recent annual and quarterly reports of the
Company filed with the SEC pursuant to the Exchange Act (or,
if the Company is not then permitted to file any such reports
with the SEC, the comparable reports prepared pursuant to
Section 4.2 of the Indenture), a description of material
developments in the Company's business, information with
respect to pro forma historical financial information after
giving effect to such Change of Control and such other
information concerning the circumstances and relevant facts
regarding such Change of Control Offer as would be material to
a Holder of Notes in connection with the decision of such
Holder as to whether or not it should tender Notes pursuant to
the Change of Control Offer.
(c) To exercise a repurchase right pursuant to this Section
4.1, a Holder shall deliver to the Trustee a written notice (a "Repurchase
Notice") of such Holder's exercise of such right, in accordance with the terms
and conditions set forth in the Change of Control Notice. Upon receipt by the
Trustee of a Repurchase Notice, the Holder of the Note in respect of which
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<PAGE> 21
such Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn) thereafter be entitled to receive solely the Change of Control
Purchase Price with respect to such Note. Notes in respect of which a Repurchase
Notice has been given by the Holder thereof may not be converted into shares of
Common Stock on or after the date of the delivery of such Repurchase Notice,
unless such Repurchase Notice has first been validly withdrawn as set forth in
the foregoing paragraph (b)(vi), unless the Company has defaulted in the payment
of the Change of Control Purchase Price.
(d) On the Change of Control Purchase Date, the Company shall
(i) accept for payment Notes or portions thereof validly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent (no later than
10:00 A.M. EST on the Change of Control Purchase Date) money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion to the Notes surrendered; provided that each
such new Note shall be issued in an original principal amount in denominations
of $1,000 and integral multiples thereof. Any Notes not validly tendered and not
accepted by the Company shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company will publicly announce the results of the Change
of Control Offer not later than the first Business Day following the Change of
Control Purchase Date.
(e) In the event that a Change of Control occurs and the
holders of Notes exercise their right to require the Company to purchase Notes,
if such purchase constitutes a "tender offer" for purposes of Rule 14e-1 under
the Exchange Act at that time, the Company will comply with the requirements of
Rule 14e-1 as then in effect with respect to such repurchase.
4.2 CERTAIN DEFINITIONS.
For purposes of this Article 4:
(1) the term "Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted
Holders, is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person or group
shall be deemed to have "beneficial ownership" of all securities that
such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the
happening of an event or
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otherwise), directly or indirectly, of more than 35% of the
total voting power of all Voting Stock of the Company;
provided, however, that the Permitted Holders (i)
"beneficially own" (as so defined) a lower percentage of such
total voting power with respect to the Voting Stock than such
other person or "group" and (ii) do not have the right or
ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of
the Company;
(b) the Company consolidates with, or merges with or into,
another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any
person, or any person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such transaction
where (i) the outstanding Voting Stock of the Company is converted into
or exchanged for Voting Stock (other than Disqualified Capital Stock)
of the surviving or transferee corporation, and (ii) immediately after
such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted
Holders, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person or group shall be deemed
to have "beneficial ownership" of all securities that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an
event or otherwise), directly or indirectly, of more than 50% of the
total voting power of all Voting Stock of the surviving or transferee
corporation;
(c) at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted the board
of directors of the Company (together with any new directors whose
election by such board of directors or whose nomination for election by
the stockholders of the Company was approved by a vote of at least
66-2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the board of directors of the Company then in office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation;
(2) the term "Permitted Holders" means:
(a) any of Charles Switzer, Charles W. Lamar, III, Kevin P.
Reilly, Sr., members of their immediate families or any lineal
descendant of any of those persons and the immediate families of any
lineal descendant of those persons;
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<PAGE> 23
(b) any trust, to the extent it is for the benefit of any of
the persons listed under (a) above; or
(c) any person, entity or group of persons controlled by any
of the persons listed under (a) or (b) above; and
(3) the term "Voting Stock" means, with respect to any Person,
securities of any class or classes of Capital Stock in such Person entitling the
holders thereof to vote under ordinary circumstances in the election of members
of the board of directors or other governing body of such Person.
(4) the term "Disqualified Capital Stock" means any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the Stated Maturity of the
Notes, for cash or securities constituting Indebtedness.
ARTICLE 5
EVENTS OF DEFAULT
5.1 ADDITIONAL EVENTS OF DEFAULT.
Pursuant to Sections 2.2 (18) and 6.1(8) of the Indenture, so long as
any of the Notes are outstanding, the following shall be an Event of Default
with respect to the Notes, in addition to the Events of Default contained in
Section 6.1 of the Indenture:
(1) The Company fails to give a Change of Control Notice in accordance
with Section 4.1(b) hereof, or defaults in the payment of the Change of Control
Purchase Price.
(2) The Company fails to convert any portion of the principal amount of
a Note following the exercise by the Holder of such Note of the right to convert
such Note into Common Stock pursuant to and in accordance with Article 2 hereof.
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ARTICLE 6
AMENDMENTS, SUPPLEMENTS AND WAIVERS
6.1 WITH CONSENT OF HOLDERS
Pursuant to Sections 2.2 (and subject to Section 8.4) of the Indenture,
so long as any of the Notes are outstanding, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4 of the Indenture, may not (in addition to the events
described in paragraphs (1) through (9) of the Indenture):
(1) make any change that impairs or adversely affects the right to
convert any Security into Common Stock;
(2) impair or adversely affect the right of a Holder to institute suit
for the enforcement of any payment with respect to, or conversion of, the Notes;
(3) make any change that adversely affects the right to require the
Company to repurchase the Notes upon a Change of Control pursuant to and in
accordance with Article 4 hereof; or
(4) reduce or impair or adversely affect the right of a Holder to
receive the redemption prices set forth in Section 3.1 hereof or the Change of
Control Purchase Price.
ARTICLE 7
MISCELLANEOUS
7.1 APPLICATION OF FIRST SUPPLEMENTAL INDENTURE.
Each and every term and condition contained in the First Supplemental
Indenture that modifies, amends or supplements the terms and conditions of the
Indenture shall apply only to the Notes created hereby and not to any future
series of Notes established under the Indenture. Except as specifically amended
and supplemented by, or to the extent inconsistent with, this First Supplemental
Indenture, the Indenture shall remain in full force and effect and is hereby
ratified and confirmed.
7.2 EFFECTIVE DATE.
This First Supplemental Indenture shall be effective as of the date
first above written and upon the execution and delivery hereof by each of the
parties hereto.
7.3 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
-21-
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
LAMAR ADVERTISING COMPANY
By:
-------------------------------------
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------------
Name:
Title:
Attest:
- ------------------------------
Name:
Title:
-22-
<PAGE> 26
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ___ day of _____________, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the _______________ of ________________________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by authority
of the Board of Directors.
-----------------------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On the ___ day of _____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is the _______________ of ________________________________, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by authority
of the Board of Directors.
-----------------------------------
-23-
<PAGE> 27
EXHIBIT A
[FORM OF FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LAMAR ADVERTISING COMPANY
5 1/4% Convertible Note due 2006
No.__________ $_____________
CUSIP No. __________________
LAMAR ADVERTISING COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter defined), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $__________ (________________ Dollars) on September 15, 2006,
and to pay interest thereon from August 10, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on March 15 and September 15 in each year, commencing September
15, 1999, at the rate of 5 1/4% per annum, until the principal hereof is paid or
made available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
regular record date for such interest, which shall be the 1st of March or 1st of
September, as the case may be, next preceding such Interest Payment Date or, if
such record date is not a Business Day, at the close of business of the
immediately succeeding Business Day. A "Business Day" shall mean any day other
than a Saturday, Sunday,
<PAGE> 28
a federally recognized holiday or a day on which banking institutions are not
authorized or required by law or executive order to be open in the State of New
York or the Commonwealth of Massachusetts. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such regular record date and shall be paid to the Person in whose name this Note
is registered at the close of business on a subsequent special record date,
which date shall be the fifteenth day next preceding the date fixed by the
Company for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day. At least 15 days before the special
record date, the Company shall mail or cause to be mailed to each
Securityholder, with a copy to the Trustee, a notice that states the special
record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Payments of principal of and interest on this Note and any additional
payments due hereunder shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
State of New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the register for the Notes maintained by the Registrar.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an authenticating agent
appointed by the Company, by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
-2-
<PAGE> 29
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and delivered under its corporate seal.
Dated:
LAMAR ADVERTISING COMPANY
By:
-------------------------------
Name:
Title:
Attest:
- --------------------
This is one of the Securities of the Series designated therein referred
to in the within-mentioned Indenture.
Dated:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------
Authorized Signatory
Attest:
- --------------------
-3-
<PAGE> 30
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of August 10, 1999 (as supplemented by a
First Supplemental Indenture, dated as of August 10, 1999, the "Indenture"),
between the Company and State Street Bank and Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof as "5 1/4% Convertible Notes due
2006", limited in aggregate principal amount to $287,500,000. All terms used in
this Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
The Notes are subject to redemption, at the election of the Company, at
any time on or after September 18, 2002, as a whole or in part, upon not less
than 30 nor more than 60 days' notice to the Holders (in the manner provided for
in the Indenture) prior to the Redemption Date at the following redemption
prices (expressed as percentages of the principal amount):
<TABLE>
<CAPTION>
Redemption
Redemption Date Price:
------------------ ----------
<S> <C>
from 9/18 2002 until 9/14 2003 103.00%
from 9/15 2003 until 9/14 2004 102.25%
from 9/15 2004 until 9/14 2005 101.50%
from 9/15 2005 until 9/14 2006 100.75%
on 9/15 2006 100.00%
</TABLE>
together in each case of any such redemption with accrued interest to the
Redemption Date; provided, however, that interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Notes, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.
No sinking fund is provided for the Notes.
Subject to and upon compliance with the provisions of the Indenture,
any Note (or any portion of the principal amount thereof which is $1,000 or an
integral multiple of $1,000) which has not previously been redeemed or
repurchased, is convertible at the option of the Holder thereof, at any time
following the original issue date of the Notes and on or before the close of
business on the Business Day immediately preceding the Stated Maturity into
fully paid and nonassessable shares of Class A common stock of the Company,
$0.001 par value per share (the "Common Stock"), at an initial conversion rate
(calculated to the nearest 1/100 of a share) of
-4-
<PAGE> 31
_______ shares of Common Stock for each $1,000 principal amount of Note, or at
the current adjusted conversion rate if an adjustment has been made as provided
in the Indenture. In case the Notes or a portion thereof are called for
redemption, such conversion right in respect of the Notes or portion so called
shall expire at the close of business on the Business Day immediately preceding
the Redemption Date, unless the Company defaults in making the payment due upon
redemption. A Note or portion thereof in respect of which the Holder has
delivered a Repurchase Notice may be converted only if such notice is withdrawn
in accordance with the terms of the Indenture, unless the Company has defaulted
in the payment of the Change of Control Purchase Price. To convert this Note the
Holder must (1) surrender this Note, duly endorsed or assigned to the Company or
in blank, provided that if such surrender shall be made during the period from
the close of business on any regular record date immediately preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
(except in the case of Notes or portion thereof which have been called for
redemption or in respect of which a Repurchase Notice delivered by the Holder
has not been withdrawn, the conversion rights with respect to which would
terminate during the period between such record date and the close of business
on such Interest Payment Date), it shall also be accompanied by payment in
immediately available funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Note being surrendered for conversion, and (2) complete
and manually sign the conversion notice. No payment or adjustment shall be made
upon any conversion on account of any interest accrued hereon from the Interest
Payment Date immediately preceding the day of conversion, or on account of any
dividends on the Common Stock issued on conversion hereof. In addition, the
Holders shall not be entitled to receive any dividends payable to holders of
Common Stock as of any record date before the close of business on the
conversion date. No fractional shares will be issued on conversion, but instead
of any fractional interest (calculated to the nearest 1/100th of a share) the
Company shall pay a cash adjustment as provided in the Indenture.
The Indenture provides that in the event of any merger, amalgamation,
arrangement or consolidation to which the Company is a party (other than one
that does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock) or any conveyance, lease, sale or transfer of
all or substantially all of the assets of the Company, the Indenture shall be
amended, without the consent of any Holders of Notes, so that this Note, if then
outstanding, will be convertible thereafter, during the period this Note shall
be convertible as specified above, only into the kind and amount of securities,
cash and other property receivable upon such merger, amalgamation, arrangement,
consolidation, conveyance, lease, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which this Note could have been
converted immediately prior to such merger, amalgamation, arrangement,
consolidation, conveyance, lease, sale or transfer (assuming such holder of
Common Stock is not a Constituent Person or an Affiliate of a Constituent
Person, failed to exercise any rights of election and received per share the
kind and amount received per share by a plurality of Non-Electing Shares). No
adjustment in the Conversion Rate shall be made until such adjustment would
require an increase or decrease of at least one percent of such rate, provided
that any adjustment that would
-5-
<PAGE> 32
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
Subject to and upon compliance with the provisions of the Indenture,
upon the occurrence of a Change of Control, the Company shall notify the Holders
of the Notes of such occurrence by delivering a Change of Control Notice, shall
make a Change of Control Offer and shall purchase, on a Business Day not more
than 60 nor less than 30 days following the Change of Control Date (a "Change of
Control Purchase Date") all of the then outstanding Notes validly tendered at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued interest, if any, to the Change of Control Purchase Date (the "Change of
Control Purchase Price"). The Change of Control Offer shall remain open from the
time of delivery of the Change of Control Notice for at least 20 Business Days
and until 5:00 p.m., New York City time, on the Business Day prior to the Change
of Control Purchase Date. To exercise its repurchase right, a Holder shall
deliver to the Trustee a Repurchase Notice, in accordance with the terms and
conditions set forth in the Change of Control Notice. Upon receipt by the
Trustee of a Repurchase Notice, the Holder of the Note in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Note and, unless the Company has defaulted in the payment
of the Change of Control Purchase Price, any Note accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date. Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives notice of such withdrawal not later than
5:00 p.m., New York City time, on the Business Day prior to the Change of
Control Purchase Date. Notes in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted into shares of Common Stock on
or after the date of the delivery of such Repurchase Notice, unless such
Repurchase Notice has first been validly withdrawn in the manner provided for in
the Indenture, unless the Company has defaulted in the payment of the Change of
Control Purchase Price. Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the Paying
Agent at the address (in the Borough of Manhattan, The City of New York)
specified in the Change of Control Notice prior to 5:00 p.m., New York City
time, on the Business Day prior to the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by the Company and
reasonably acceptable to the Trustee and the Paying Agent. Any portion of the
principal amount of Notes that is equal to $1,000 or an integral multiple
thereof, validly tendered into the Change of Control Offer and not withdrawn,
will be accepted for payment.
In the event of redemption, repurchase or conversion of this Note in
part only, a new Note or Notes for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation thereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
-6-
<PAGE> 33
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of no less than a
majority in principal amount of the Notes at the time outstanding, on behalf of
the Holders of all the Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, the Holders of not less
than 25% in principal amount of the outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the outstanding Notes a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or interest hereon on or after the respective due dates
expressed herein or for the enforcement of the right to convert this Note as
provided in the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed or to
convert this Note as provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the security register
maintained by the Registrar, upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
of and any interest on this Note are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing, and
-7-
<PAGE> 34
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees by the Registrar.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to recover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name Note is registered, as the owner thereof for all
purposes, whether or not such Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability (except in the case of bad faith or
willful misconduct) for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Holder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
-8-
<PAGE> 35
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
</TABLE>
Additional abbreviations may also be used though not in the above list.
-9-
<PAGE> 36
ELECTION OF HOLDER TO REQUIRE REPURCHASE
UPON A CHANGE OF CONTROL
(1) Pursuant to Article 4 of the First Supplemental Indenture dated
August ___, 1999 to the Indenture, the undersigned hereby acknowledges receipt
of a notice from the Company of a Change of Control Offer and requests and
instructs the Company to repurchase this Note, or the portion hereof (which is
$1,000 in principal amount or an integral multiple of $1,000) below designated,
as of the Change of Control Purchase Date pursuant to the terms and conditions
specified in such Article 4.
(2) The undersigned hereby directs the Trustee or the Company to pay to
the undersigned an amount in cash equal to 100% of the principal amount to be
repurchased (as set forth below), plus interest accrued to the Change of Control
Purchase Date, as provided in the Indenture.
(3) The undersigned elects (check one):
( ) to withdraw this notice with respect to the following Notes:
Principal amount:
Certificate numbers:
( ) to receive cash in respect of the entire Change of Control Purchase
Price with respect to the Notes that are subject to this notice.
Notice: If the Holder fails to make an election, the Holder shall be deemed to
have elected to receive cash in respect of the entire Change of Control Purchase
Price for all Notes subject to this notice.
Dated
----------------
--------------------------------
--------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
-----------------------------------------
Signature Guaranteed
-10-
<PAGE> 37
Security certificate number:
Principal amount to be repurchased
(if less than all): $
-----------------
Remaining principal amount after repurchase:
$
-------------------
--------------------------------
Social Security or Other Taxpayer
Identification Number
-11-
<PAGE> 38
CONVERSION NOTICE
The undersigned Holder of this Note hereby irrevocably exercises the
option to convert this Note, or any portion of the principal amount hereof
(which is $1,000 in principal amount or an integral multiple of $1,000), below
designated, into shares of Class A common stock of Lamar Advertising Company,
$0.001 par value per share (the "Common Stock"), in accordance with the terms of
the Indenture referred to in this Note, and directs that such shares, together
with a check in payment for any fractional share and any Notes representing any
unconverted principal amount hereof, be issued and delivered to and be
registered in the name of the undersigned unless a different name has been
indicated below. If shares of Common Stock or any portion of this Note not
converted are to be registered in the name of a Person other than the
undersigned, (a) the undersigned will pay all transfer taxes payable with
respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange Act of 1934.
Dated:
-------------------
------------------------------------
------------------------------------
Signature(s)
If shares or Notes are to be registered in the name of a Person other than the
Holder, please print such Person's name and address:
- ----------------------------------
Name
- ----------------------------------
Address
- ----------------------------------
Social Security or Other Taxpayer
Identification Number
- ----------------------------------
[Signature Guaranteed]
-12-
<PAGE> 39
If only a portion of the Notes is to be converted, please indicate:
1. Principal amount to be converted:
$ ------------
2. Principal amount and denomination of Notes representing unconverted
principal amount to be issued:
$ ------------
-13-
<PAGE> 40
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ [also insert social security or other
identifying number of assignee] the within Note, and hereby irrevocably
constitutes and appoints ____________________ as attorney to transfer the said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
-----------------------
-------------------------------------------
-------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
-14-
<PAGE> 1
Exhibit 5.2
[Palmer & Dodge LLP Letterhead]
August 6, 1999
Lamar Advertising Company
555 Corporate Boulevard
Baton Rouge, Louisiana 70808
Re: 5 1/4% Convertible Notes due 2006 of Lamar Advertising Company
Ladies and Gentlemen:
Reference is made to our opinion dated April 20, 1998 and included as
Exhibit 5.1 to the Registration Statement on Form S-3 (File No. 333-50559) (the
"1998 Registration Statement") filed on April 21, 1998, as amended by
Post-Effective Amendment No. 1 filed on July 19, 1999, by Lamar Advertising
Company (the "Company"), a Delaware corporation, with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act") and also to our opinion dated February 5, 1999
and included as Exhibit 5.1 to the Registration Statement on Form S-3 (File No.
333-71929) (the "1999 Registration Statement," and together with the 1998
Registration Statement, the "Registration Statements") filed on February 5,
1999, as amended by Post-Effective Amendment No. 1 filed on July 19, 1999, by
the Company with the Commission. We are rendering this supplemental opinion in
connection with the prospectus supplement to the Registration Statements (the
"Prospectus Supplement") dated August 5, 1999 filed by the Company with the
Commission pursuant to Rule 424 under the Securities Act. The Prospectus
Supplement relates to the offering by the Company of up to $287,500,000
aggregate principal amount of 5 1/4% Convertible Notes due 2006 (the "Notes").
The Notes are to be issued pursuant to an Indenture as supplemented (the
"Indenture") between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), the form of which was filed as an exhibit to the 1999
Registration Statement.
We have acted as counsel in connection with the Registration Statements
and the Prospectus Supplement and are familiar with the proceedings taken by the
Company in connection with the authorization, issuance and sale of the Notes. We
have made such examination as we consider necessary to render this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of
<PAGE> 2
Lamar Advertising Company
August 6, 1999
Page 2
all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
The Notes and the Indenture are governed by the laws of the State of
New York and, therefore, in rendering our opinion as to the validity, binding
effect and enforceability of the Notes, we have relied upon the opinion of
Sullivan & Cromwell with respect to matters of New York law. Except to the
extent of such reliance, the opinions rendered herein are limited to the laws of
the Commonwealth of Massachusetts, the Delaware General Corporation Law and the
federal laws of the United States.
Based upon the foregoing, we are of the opinion that:
1. The Company is validly existing as a corporation and in good
standing under the laws of the State of Delaware and has the corporate power to
execute and deliver the Notes and the Indenture and to perform its obligations
thereunder.
2. The Notes have been duly authorized by all necessary corporate
action of the Company, and upon the due execution and delivery of the Indenture
by the Company and the Trustee and the due execution, authentication and
delivery of the Notes in accordance with the Indenture against payment therefor
as contemplated by the Registration Statements and the Prospectus Supplement,
the Notes will be valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
3. The shares of Class A Common Stock issuable upon conversion of the
Notes have been duly authorized, and when issued upon conversion of the Notes in
accordance with the terms of the Indenture and the Notes, will be validly
issued, fully paid and nonassessable.
The foregoing opinions are subject to: (i) the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (ii) general principles of equity.
To the extent that the obligations of the Company under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture will
be duly authorized, executed and delivered by the Trustee and will constitute
the valid and binding obligation of the Trustee enforceable against the Trustee
in accordance with its terms; that the Trustee will be in compliance, with
respect to acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
<PAGE> 3
Lamar Advertising Company
August 6, 1999
Page 3
We hereby consent to the filing of this opinion as Exhibits 5.2 and 5.4
to the Company's Current Reports on Form 8-K, filed on August 6, 1999 in order
to incorporate certain exhibits into the Registration Statements, and to the
reference to our firm under the caption "Validity of the Notes" in the
Prospectus Supplement.
Very truly yours,
/s/ PALMER & DODGE LLP
PALMER & DODGE LLP
<PAGE> 1
EXHIBIT 5.3
[Sullivan & Cromwell Letterhead]
August 5, 1999
Goldman, Sachs & Co.,
Deutsche Bank Securities Inc.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York, 10004.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $287,500,000 principal amount of 5 1/4% Convertible Notes due
2006 (the "Securities") of Lamar Advertising Company, a Delaware corporation
(the "Company"), and the shares of Class A Common Stock, par value $0.001 per
share, of the Company initially issuable upon conversion of the Securities (the
"Shares"), we, as your counsel, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, we advise you that, in our opinion, when the
<PAGE> 2
Goldman, Sachs & Co. -2-
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Indenture and the Supplemental Indenture relating to the Securities have been
duly authorized, executed and delivered, and the Securities have been duly
executed and authenticated in accordance with the Indenture and the Supplemental
Indenture and issued and sold as contemplated in the Registration Statements
(File Nos. 333-50559 and 333-71929) relating to the Securities, each as amended
by Post-Effective Amendment No. 1 filed under the Act on July 19, 1999 (the
"Registration Statements"), and the Prospectus Supplement, dated August 5, 1999,
relating to the Securities, filed under the Act on August 6, 1999 (the
"Prospectus Supplement"), the Securities will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and the Shares, when duly
issued upon conversion of the Securities, will be validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the State of New York, and we are expressing no opinion
as to the effect
<PAGE> 3
Goldman, Sachs & Co. -3-
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied as to certain
matters on information obtained from public officials, officers of the Company
and other sources believed by us to be responsible.
This opinion may be relied upon by Palmer & Dodge LLP in rendering its
opinion to be filed as an exhibit to the Registration Statements, and we hereby
consent to the filing of this opinion as an exhibit to the Registration
Statements and to the reference to us under the heading "Validity of the Notes"
in the Prospectus Supplement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
---------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
LAMAR ADVERTISING COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 72-1449411
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5551 CORPORATE BOULEVARD
BATON ROUGE, LOUISIANA 70808
(225) 926-1000
(Address of principal executive offices) (Zip Code)
CONVERTIBLE NOTES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 3RD DAY OF AUGUST, 1999.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ANDREW M. SINASKY
-----------------------------------
NAME ANDREW M. SINASKY
TITLE ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by LAMAR
ADVERTISING COMPANY of its CONVERTIBLE NOTE, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ANDREW M. SINASKY
-----------------------------------
NAME ANDREW M. SINASKY
TITLE ASSISTANT VICE PRESIDENT
DATED: AUGUST 3, 1999
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........................ 1,249,670
Interest-bearing balances ................................................. 13,236,699
Securities ......................................................................... 10,970,415
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ....................................... 9,561,556
Loans and lease financing receivables:
Loans and leases, net of unearned income ................. 7,053,580
Allowance for loan and lease losses ...................... 85,416
Allocated transfer risk reserve .......................... 0
Loans and leases, net of unearned income and allowances ................... 6,968,164
Assets held in trading accounts .................................................... 1, 553,354
Premises and fixed assets .......................................................... 536,535
Other real estate owned ............................................................ 0
Investments in unconsolidated subsidiaries ......................................... 606
Customers' liability to this bank on acceptances outstanding ....................... 71,273
Intangible assets .................................................................. 207,323
Other assets ....................................................................... 1,371,043
-------------
Total assets ....................................................................... 45,726,638
=============
LIABILITIES
Deposits:
In domestic offices ....................................................... 10,101,297
Noninterest-bearing ............................. 6,932,549
Interest-bearing ................................ 3,168,748
In foreign offices and Edge subsidiary .................................... 18,061,721
Noninterest-bearing ............................. 54,654
Interest-bearing ................................ 18,007,067
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ....................................... 12,063,069
Demand notes issued to the U.S. Treasury ........................................... 149,322
Trading liabilities ....................................................... 1,140,080
Other borrowed money ............................................................... 285,027
Subordinated notes and debentures .................................................. 0
Bank's liability on acceptances executed and outstanding ........................... 71,273
Other liabilities .................................................................. 1,079,470
Total liabilities .................................................................. 42,951,259
-------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ...................................... 0
Common stock ....................................................................... 29,931
Surplus ............................................................................ 480,330
Undivided profits and capital reserves/Net unrealized holding gains (losses) ....... 2,258,177
Net unrealized holding gains (losses) on available-for-sale securities .... 15,937
Cumulative foreign currency translation adjustments ................................ (8,996)
Total equity capital ............................................................... 2,775,379
Total liabilities and equity capital ............................................... 45,726,638
-------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
