<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 1998
REGISTRATION NO. 333-53113
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3/A
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------
OUTDOOR SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
--------------
<TABLE>
<S> <C>
DELAWARE 86-073400
(State or other jurisdiction, incorporation or organization) (IRS Employer Identification Number)
</TABLE>
--------------
OUTDOOR SYSTEMS, INC.
2502 N. BLACK CANYON HIGHWAY
PHOENIX, ARIZONA 85009
(602) 246-9569
(Address, including zip code and telephone number, including area code, of
Registrant's principal executive offices)
--------------
WILLIAM S. LEVINE
CHAIRMAN OF THE BOARD
OUTDOOR SYSTEMS, INC.
2502 N. BLACK CANYON HIGHWAY
PHOENIX, ARIZONA 85009
(602) 246-9569
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------
WITH COPY TO:
GABRIEL DUMITRESCU, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
--------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Section
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------- --------------------- -------------------- ----------------------- -------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE FEE
- -------------------------------------------- --------------------- -------------------- ----------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,650,784(1) $29.91 $49,374,949.44 $14,565.61(2)
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 12,408(1) $29.84(3) $ 370,254.72(3) $ 109.23(3)
============================================ ===================== ==================== ======================= ===================
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement is deemed to cover any additional Shares issued in
any stock dividend or stock split declared by the Company, including
without limitation, the 3-for-2 stock split to be effected as a stock
dividend declared by the Registrant on May 8, 1998, payable on May 29, 1998
to stockholders of record on May 19, 1998.
(2) Previously paid.
(3) Pursuant to Rule 457(c), based upon the average of the high and low prices
of the Common Stock on the New York Stock Exchange on May 21, 1998.
---------------
<PAGE> 2
PROSPECTUS
1,663,192 SHARES
OUTDOOR SYSTEMS, INC.
COMMON STOCK
-------------------------------------
This Prospectus relates to 1,663,192 shares (the "Shares") of Common
Stock, $.01 par value per share ("Common Stock") of Outdoor Systems, Inc. (the
"Company"). The Shares may be offered by certain stockholders (the "Selling
Stockholders") of the Company from time to time in transactions in the open
market, in negotiated transactions or a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Stockholders may effect such transactions by selling the
Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders and/or the purchasers of the Shares for whom such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). See "Sale of Shares."
The Selling Stockholders acquired the Shares from the Company in
connection with the Company's acquisition of a company previously owned by the
Selling Stockholders. See "Recent Development." The Selling Stockholders may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). See "Selling Stockholders" and "Sale of the
Shares."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear all
expenses (other than selling commissions) in connection with the registration
and sale of the Shares being offered by the Selling Stockholders and to
indemnify the Selling Stockholders against certain liabilities, including
liabilities under the Securities Act.
The Common Stock is listed for trading on the New York Stock Exchange
under the symbol "OSI." On May 21, 1998, the last reported sales price of the
Common Stock reported on the New York Stock Exchange was $29.875 per Share.
THE INFORMATION IN THIS PROSPECTUS DOES NOT GIVE EFFECT TO A
THREE-FOR-TWO STOCK SPLIT OF THE COMPANY'S COMMON STOCK EFFECTED IN THE FORM
OF A STOCK DIVIDEND DECLARED BY THE COMPANY ON MAY 8, 1998, PAYABLE ON MAY 29,
1998 TO STOCKHOLDERS OF RECORD ON MAY 19, 1998.
----------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRACT IS A CRIMINAL OFFENSE.
----------------------------------------------
THE DATE OF THIS PROSPECTUS IS _______________, 1998.
<PAGE> 3
THE COMPANY
The Company is the largest out-of-home media company in North America,
operating, as of December 31, 1997, approximately 98,300 bulletin, poster, mall
and transit advertising display faces in 90 metropolitan markets in the United
States and 13 metropolitan markets in Canada. The Company also operates
approximately 125,000 subway advertising display faces in New York City. The
Company currently has operations in all of the 50 largest U.S. markets, as well
as 13 of the 15 largest Canadian markets.
RECENT DEVELOPMENTS
On May 19, 1998, the Company acquired Gator Outdoor Advertising, Inc.,
a Florida corporation ("Gator"), by means of a merger of GATOA, Inc., a Florida
corporation and indirect subsidiary of the Company ("GATOA"), with and into
Gator pursuant to an Agreement and Plan of Merger dated as of May 19, 1998 (the
"Merger Agreement") among the Company, Gator, GATOA and Peter D. Sleiman,
Anthony T. Sleiman, Joseph E. Sleiman and Eli T. Sleiman, Jr., former
stockholders of Gator (the "Selling Stockholders"). Pursuant to the Merger
Agreement, the Company issued the Shares to the Selling Stockholders as merger
consideration. Under the terms of the Merger Agreement, the Company agreed to
register the Shares for resale by the Selling Stockholders and to indemnify the
Selling Stockholders against certain liabilities, including liabilities under
the Securities Act. The Registration Statement of which this Prospectus is a
part was filed with the Securities and Exchange Commission (the "Commission")
pursuant to the registration provisions of the Merger Agreement.
SELLING STOCKHOLDERS
The table below sets forth the number of outstanding shares of Common
Stock beneficially owned by each of the Selling Stockholders, which are being
offered hereby. The Company believes that each individual named has sole
investment and voting power with respect to shares of Common Stock indicated as
beneficially owned by such Selling Stockholder. Prior to the offering, each
Selling Stockholder beneficially owned less than one percent (1%) of the number
of Shares of Common Stock of the Company outstanding on the date of this
Prospectus. Upon the sale by the Selling Stockholders of all of the Shares and
completion of the offering, assuming all of the Shares being offered hereby are
sold and that no other changes in the Selling Stockholders' beneficial ownership
occur prior to the completion of this offering, none of the Selling Stockholders
will beneficially own any shares of Common Stock of the Company.
<TABLE>
<CAPTION>
NUMBER OF SHARES
BENEFICIALLY OWNED
NAME OF SELLING STOCKHOLDER PRIOR TO THE OFFERING
--------------------------- ---------------------
<S> <C>
Peter D. Sleiman 415,798
Anthony T. Sleiman 415,798
Joseph E. Sleiman 415,798
Eli T. Sleiman, Jr. 415,798
</TABLE>
SALE OF THE SHARES
The sale of the Shares by the Selling Stockholders may be effected from
time to time in transactions in the open market, in negotiated transactions or
through a combination of such methods of sale, at fixed prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. The Selling Stockholders
may effect such transactions by selling the Shares to or through broker-dealers,
and such broker-dealers may receive
2
<PAGE> 4
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders and/or the purchasers of the Shares for which such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer may be in excess of
customary compensation).
The Selling Stockholders and any broker-dealers who act in connection
with the sale of the Shares hereunder may be deemed to be "underwriters" within
the meaning of Section 2(ii) of the Securities Act, and any commissions received
by them and profit on any resale of the Shares as principals might be deemed to
be underwriting discounts and commissions under the Securities Act. The Company
has agreed to indemnify the Selling Stockholders against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the issuance of the Shares offered hereby will be
passed upon for the Company by Powell, Goldstein, Frazer & Murphy LLP, Atlanta,
Georgia.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 and incorporated by reference in
the Amendment No. 1 on Form 10-K/A, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports, which are incorporated herein
by reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
The financial statements of National Advertising Company, as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996 incorporated by reference in this prospectus, have been so
incorporated in reliance on the report of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement"), of which this Prospectus forms a part,
covering the Shares to be sold pursuant to this offering.
As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information, exhibits and undertakings contained in the
Registration Statement. Such additional information, exhibits and undertakings
can be inspected at and obtained from the Commission as set forth below. For
additional information regarding the Company, the Common Stock and related
matters and documents, reference is made to the Registration Statement and
exhibits thereto.
The Company is subject to the informational requirements of the
Exchange Act and, in accordance therewith, files reports and other information
with the Commission. Reports and other information filed with the Commission
pursuant to the Exchange Act may be inspected and copied, at the offices of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at its regional
offices at Seven World Trade Center, New York, New York 10048, and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials
may be obtained from the public reference section of the Commission at its
Washington address upon payment of the prescribed fee. The Commission also
maintains an Internet Web Site at http:/www.sec.gov that contains reports and
other information about the Company. The
3
<PAGE> 5
Common Stock is listed for trading on the New York Stock Exchange under the
symbol "OSI." Reports, proxy statements and other information concerning the
Company may also be inspected or copied at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents or information filed by the Company with the
Commission are incorporated in this Prospectus by reference and made a part
hereof: (i) Annual Report on Form 10-K for the fiscal year ended December 31,
1997 (File No. 1-13275); (ii) Amendment No. 1 on Form 10-K/A to Annual Report on
Form 10-K for fiscal year ended December 31, 1997 filed on March 26, 1998 (File
No. 1-13275); (iii) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998; (iv) the description of the Common Stock contained in
Registration Statement on Form 8-A filed on August 15, 1997 (File No. 1-13275);
(v) the balance sheets of National Advertising Company as of December 31, 1996
and 1995 and the related statements of income and cash flows for each of the
three years in the period ended December 31, 1996, together with notes thereto
and Independent Auditor's Report thereon, contained in the Company's Current
Report on Form 8-K filed on August 29, 1997 (File No. 1-13275); and (vi)
unaudited consolidated pro forma financial information and notes thereto
contained in the Company's Amendment No. 1 on Form 8-K/A to Current Report on
Form 8-K filed on October 29, 1997 (File No. 1-13275).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the Offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the respective dates
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Prospectus.
The Company undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon written or oral request, a
copy of any or all information incorporated by reference in this Prospectus (not
including exhibits to such information, unless such exhibits are specifically
incorporated by reference into such information). Such requests should be
directed to Outdoor Systems, Inc., Attention: Bill M. Beverage, Chief Financial
Officer, Treasurer and Secretary, at 2502 North Black Canyon Highway, Phoenix,
Arizona 85009, telephone number (602) 246-9569.
No dealer, salesman, or any other person has been authorized to give
any information or to make any representation not contained in this Prospectus,
and, if given or made, such information and representation must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby in any state to any person to whom it is unlawful to
make such offer in such state. Neither the delivery of this Prospectus nor any
sales made hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date hereof.
4
<PAGE> 6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a statement of estimated expenses incurred in
connection with the shares of Common Stock being registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC Registration Fee............................................. $14,674.84
Accounting Fees and Expenses..................................... 8,000.00
Legal Fees and Expenses.......................................... 10,000.00
Miscellaneous.................................................... 1,325.16
----------
Total............................................................ $34,000.00
==========
</TABLE>
The foregoing items, except for the SEC Registration Fee, are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Delaware
Law"), Article VII of the Registrant's Fourth Amended and Restated Certificate
of Incorporation (the "Certificate of Incorporation"), and Article VI of the
Company's Amended and Restated Bylaws (the "Bylaws") provide for indemnification
of the Registrant's directors and officers to the maximum extent provided by
Delaware law, which may include liabilities under the Securities Act of 1933, as
amended (the "Securities Act").
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to its Certificate of Incorporation, Bylaws, or otherwise, the
Company has been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer, or controlling person in connection WITH the
securities being registered, the Company will, unless in the opinion of its
counsel, the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
As permitted by Section 102(b) of the Delaware Law, the Certificate of
Incorporation provides that directors of the Company shall have no personal
liability to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except (i) for any breach of a director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or knowing violations of law,
(iii) under Section 174 of the Delaware Law, or (iv) for any transaction from
which a director derived an improper personal benefit.
The Company maintains directors' and officers' liability insurance.
II-1
<PAGE> 7
ITEM 16. EXHIBITS.
<TABLE>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
3.1 -- Fourth Amended and Restated Certificate of Incorporation,
as amended.
3.2 -- Amended and Restated Bylaws (filed as Exhibit 3.2 to the
Registrant's Amendment No. 2 to Form S-1 Registration
Statement No. 333-1582 and incorporated herein by reference).
4.1 -- Specimen Common Stock Certificate of the Registrant (filed as
Exhibit 4.1 to the Registrant's Amendment No. 2 to Form S-1
Registration Statement No. 333-1582 and incorporated herein by
reference).
5.1 -- Opinion of Powell, Goldstein, Frazer & Murphy LLP.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Powell, Goldstein, Frazer & Murphy LLP
(included in Exhibit 5.1).
24.1 -- Powers of Attorney.*
99.1 -- Agreement and Plan of Merger dated as of May 19, 1998 by and
among Gator Outdoor Advertising, Inc., Outdoor Systems, Inc.,
GATOA, Inc., and Peter D. Sleiman, Anthony T. Sleiman, Joseph
E. Sleiman and Eli T. Sleiman, Jr.*
- ------------------
*Previously filed.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13 (a) or section
15 (d) of the Securities Exchange Act of 1934, (the "Exchange Act")
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(b) Insofar as the indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to
directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(c) The undersigned Registrant hereby undertakes that:
II-2
<PAGE> 8
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424 (b) (I) or (4) or 497 (h) under the Securities Act shall be
deemed to be part of the Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
II-3
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on the 26th day of
May 1998.
OUTDOOR SYSTEMS, INC.
By: /s/ William S. Levine
-------------------------
William S. Levine
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Arturo R. Moreno* President (Principal Executive Officer) and May 26, 1998
- -------------------- Director
Arturo R. Moreno
/s/ William S. Levine Chairman of the Board and Director May 26, 1998
- ---------------------
William S. Levine
Bill M. Beverage* Secretary, Treasurer and Chief Financial Officer May 26, 1998
- -------------------- (Principal Accounting and Financial Officer)
Bill M. Beverage
Brian J. O'Connor* Director May 26, 1998
- ---------------------
Brian J. O'Connor
Stephen F. Butterfield* Director May 26, 1998
- --------------------------
Stephen F. Butterfield
*By: /s/ William S. Levine
---------------------
William S. Levine
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 10
EXHIBIT INDEX
<TABLE>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
3.1 -- Fourth Amended and Restated Certificate of Incorporation,
as amended.
3.2 -- Amended and Restated Bylaws (filed as Exhibit 3.2 to the
Registrant's Amendment No. 2 to Form S-1 Registration
Statement No. 333-1582 and incorporated herein by reference).
4.1 -- Specimen Common Stock Certificate of the Registrant (filed as
Exhibit 4.1 to the Registrant's Amendment No. 2 to Form S-1
Registration Statement No. 333-1582 and incorporated herein by
reference).
5.1 -- Opinion of Powell, Goldstein, Frazer & Murphy LLP.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Powell, Goldstein, Frazer & Murphy LLP
(included in Exhibit 5.1).
24.1 -- Powers of Attorney.*
99.1 -- Agreement and Plan of Merger dated as of May 19, 1998 by and
among Gator Outdoor Advertising, Inc., Outdoor Systems, Inc.,
GATOA, Inc. and Peter D. Sleiman, Anthony T. Sleiman, Joseph
E. Sleiman and Eli T. Sleiman, Jr.*
- ---------------
*Previously filed.
</TABLE>
<PAGE> 1
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF THE
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
OUTDOOR SYSTEMS, INC.
-----------------
OUTDOOR SYSTEMS, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
FIRST: That the directors of the Corporation, by written consent,
adopted a resolution proposing and declaring advisable an amendment to the
Fourth Amended and Restated Certificate of Incorporation of the Corporation
to increase the number of shares of Common Stock which the Corporation is
authorized to issue from 200,000,000 to 600,000,000 shares.
SECOND: That thereafter, pursuant to resolution of the directors, by
majority vote of all outstanding stock entitled to vote thereon at a
meeting of stockholders of the Corporation in accordance with Section 222
of the General Corporation Law of the State of Delaware, the stockholders
voted in favor of this amendment to the Fourth Amended and Restated
Certificate of Incorporation.
THIRD: That Article IV, Section A, Subsection 1 of the
Corporation's Fourth Amended and Restated Certificate of Incorporation as
amended shall read as follows:
"Subsection 1. Authorized Stock; Designations. The total number
of shares of stock which the Corporation shall have authority to issue
is 612,000,000 divided into two (2) classes as follows:
(a) 600,000,000 shares shall be Common Stock, $.01 par value each
<PAGE> 2
(hereinafter referred to as the "Common Stock"); and
(b) 12,000,000 shares shall be Preferred Stock, $1.00 par
value each (hereinafter referred to as "Preferred Stock").
The designations, preferences, limitations and relative rights of the
classes of stock of the Corporation are as set forth in this Article IV."
FOURTH: This amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and attested by its duly authorized officers, this 21st
day of May, 1998.
OUTDOOR SYSTEMS, INC.
By:/s/ William S. Levine
----------------------
William S. Levine
Chairman of the Board
ATTESTED BY:
/s/ Bill M. Beverage
- -----------------------
Bill M. Beverage
Secretary
-2-
<PAGE> 3
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
OUTDOOR SYSTEMS, INC.
A DELAWARE CORPORATION
OUTDOOR SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation (the "Corporation") is Outdoor Systems,
Inc. The Corporation was originally incorporated under the same name, and the
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on May 24, 1993. A Restated Certificate of Incorporation
was filed with the Secretary of State of Delaware on July 16, 1993, a Second
Restated Certificate of Incorporation was filed with the Secretary of State of
Delaware on August 17, 1993, a Third Restated Certificate of Incorporation was
filed with the Secretary of State of Delaware on April 17, 1996, and a
Certificate Regarding Retirement of Stock is being filed with the Secretary of
State of Delaware contemporaneously herewith.
2. The members of the Board of Directors of Outdoor Systems, Inc.
adopted and approved the following amendment to the Third Restated Certificate
of Incorporation of the Corporation.
3. The stockholders of the Corporation voted in favor of the following
amendment at the Annual Meeting of Stockholders held May 29, 1997.
4. This Fourth Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Third Restated
Certificate of Incorporation of this Corporation and incorporates the terms of
the Certificate Regarding Retirement of Stock and has been duly adopted pursuant
to Sections 242 and 245 of the General Corporation Law of the State of Delaware.
5. Article IV, Section A, Subsection 1 of the Corporation's Third
Amended and Restated Certificate of Incorporation shall be deleted in its
entirety and amended to read as follows:
"Subsection 1. Authorized Stock; Designations. The total
number of shares of stock which the Corporation shall have authority to
issue is 212,000,000 divided into two (2) classes as follows:
(a) 200,000,000 shares shall be Common Stock, $.01 par
value each (hereinafter referred to as the "Common
Stock"); and
(b) 12,000,000 shares shall be Preferred Stock, $1.00 par
value each (hereinafter referred to as "Preferred
Stock").
The designations, preferences, limitations and relative rights of the
classes of stock of the Corporation are as set forth in this Article
IV."
6. Article IV, Section A, Subsection 1(c),1(d) and 1(e); Article IV,
Section A, Subsection 2; Article IV, Section A, Subsection 3(c); Article IV,
Section C, Subsection 2; and Article IV, Sections D, E, F and G of the Third
<PAGE> 4
Amended and Restated Certificate of Incorporation of the Corporation are deleted
in their entirety in connection with the retirement of Exchangeable Preferred
Stock, Class A Preferred Stock and Class B Preferred Stock pursuant to the
Certificate Regarding Retirement of Stock and Section 243 of the Delaware
General Corporation Law.
7. The text of the Third Amended and Restated Certificate of
Incorporation as currently in effect is hereby restated to read in its entirety
as attached hereto as Annex A.
ANNEX A
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
OUTDOOR SYSTEMS, INC.
ARTICLE I.
NAME
The name of the Corporation is OUTDOOR SYSTEMS, INC.
ARTICLE II.
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is Corporation Service Company.
ARTICLE III.
PURPOSES AND INITIAL BUSINESS
The purpose for which this Corporation is organized is to conduct or
promote any lawful business or purposes as may be permitted by the laws of the
State of Delaware.
ARTICLE IV.
AUTHORIZED CAPITAL
SECTION A. AUTHORIZED STOCK.
Subsection 1. Authorized Stock; Designations. The total number of
shares of stock which the Corporation shall have authority to issue is
212,000,000, divided into two (2) classes as follows:
(a) 200,000,000 shares shall be Common Stock, $.01 par value each
(hereinafter referred to as the "Common Stock"); and
(b) 12,000,000 shares shall be Preferred Stock, $1.00 par value
each (hereinafter referred to as the "Preferred Stock").
The designations, preferences, limitations and relative rights of the classes of
stock of the Corporation are as set forth in this Article IV.
Subsection 2. [INTENTIONALLY OMITTED]
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<PAGE> 5
Subsection 3. General Terms.
(a) No Preemptive Rights. The holders of the shares of any class of
stock shall not have any rights to convert such shares for shares of any other
class or any other series of any class of capital stock of the Corporation, nor
shall any such class be entitled as a matter of right to subscribe to, purchase,
or receive any part of any new or additional shares of any class, whether now or
hereafter authorized, or of bonds, debentures or other evidences of indebtedness
convertible into or exchangeable for shares, but all such new or additional
shares of any class or bonds, debentures, or other evidences of indebtedness
convertible into or exchangeable for shares may be issued and disposed of by the
Board of Directors on such terms and for such consideration, so far as may be
permitted by other provisions set forth herein or as may be permitted by law,
and to such person or persons as the Board of Directors in their absolute
discretion may deem advisable.
(b) Proof of Status. The Corporation may, in connection with preparing
a list of stockholders entitled to vote at any meeting of stockholders or of
holders of any class of stock entitled to dividends or redemption payments or as
a condition to the registration of a transfer of shares of any given class of
stock on the Corporation's books, require the furnishing of such affidavits or
other proof from the holders of such class of stock as it deems reasonably
necessary to establish that no transfer that is not permitted by the terms of
such class of stock has occurred with respect to such class. Each holder of
stock shall comply with such requests.
(c) [INTENTIONALLY OMITTED]
(d) Shares of the Preferred Stock need not be issued for consideration
of a value equal to their respective Face Amounts per share (if any); rather, to
the extent permitted by Delaware law, shares of such stock may be issued for
such consideration that is not less than the respective par value thereof, and
for such corporate purposes as the Board of Directors of the Corporation may
from time to time determine. If any such stock is issued in exchange for
non-monetary consideration, the determination of the Board of Directors of the
Corporation as to the value of such consideration shall be conclusive to the
extent permitted by Delaware law.
(e) Upon any stock split, stock dividend or reclassification,
subdividing or combining outstanding shares of any class of the Corporation's
capital stock, appropriate adjustment shall be made to any reference to numbers
of shares or per share numbers contained herein.
(f) The terms "hereof," "herein," and words of similar import in any
section of Article IV shall be deemed to be references to provisions to such
section of Article IV and not to the provisions of any other section of Article
IV unless the context otherwise requires.
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<PAGE> 6
SECTION B. COMMON STOCK.
Subsection 1. Relative Rights. All shares of Common Stock shall have
identical rights and privileges in all respects.
Subsection 2. Voting Rights. Each share of Common Stock shall entitle
the holder thereof to one (1) vote on all matters on which holders of Common
Stock are entitled to vote. Cumulative voting by holders of shares of Common
Stock is hereby denied.
Subsection 3. Dividends. Shares of Common Stock shall be entitled to
dividends in cash or other property if, when and as declared by the Board of
Directors of the Corporation from funds legally available therefor, subject to
the provisions relating to the preferred stock.
Subsection 4. Liquidation. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the holders
of the shares of common stock shall be entitled, after payment or provision for
payment of the debts and other liabilities of the Corporation and the amount to
which the holders of any class or series of Preferred Stock shall be entitled,
to share ratably in the remaining net assets of the Corporation.
SECTION C. PREFERRED STOCK.
The Preferred Stock may be created and issued from time to time in one
or more series with such distinctive serial designations and:
(1) may have such voting power, full or limited, or may be without such
voting powers;
(2) may be subject to redemption at such time or times and at such
prices;
(3) may be entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such
times, and payable in preference to or in such relation to, the
dividends payable on any other class or classes or series of stock;
(4) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation;
(5) may be convertible into, or exchangeable for, shares of any other
class or classes of stock of the Corporation, at such price or prices
or at such rates of exchange, and with such adjustments; and
(6) shall have such other relative, participating, optional or special
rights, and preferences, designations, qualifications, limitations or
restrictions thereof;
- 3 -
<PAGE> 7
all as shall hereafter be stated and expressed in a resolution or resolutions
providing for the issuance of such Preferred Stock from time to time adopted by
the Board of Directors pursuant to the authority that is hereby vested in the
Board of Directors; provided, however, that notwithstanding anything in this
paragraph to the contrary, the Board of Directors shall not issue any shares of
Preferred Stock which have rights that would conflict with, or cause the
Corporation to violate, the terms applicable to any of the Corporation's shares
of capital stock outstanding at the time of such issuance of Preferred Stock.
ARTICLE V.
NUMBER OF DIRECTORS
A. The number of directors which shall constitute the whole Board of
Directors shall be not less than three (3) nor more than ten (10) and shall be
fixed from time to time in accordance with the By-laws of the Corporation, as
the same may be amended from time to time. The directors shall be divided into
three classes, designated Class I, Class II, and Class III (which at all times
shall be as nearly equal in number as possible), with the term of office of
Class III directors to expire at the 1999 Annual Meeting of Stockholders, the
term of office of Class II directors to expire at the 1998 Annual Meeting of
Stockholders, and the term of office of Class I directors to expire at the 1997
Annual Meeting of Stockholders. At each annual meeting of stockholders following
such initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election.
B. Subject to the rights of the holders of any class or series of the
Corporation's capital stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
by a majority vote of the directors then in office, though less than a quorum,
and directors so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of office of the class to which they
have been elected expires. No decrease in the number of authorized directors
constituting the entire Board of Directors shall shorten the term of any
incumbent director.
C. Notwithstanding the foregoing, whenever the holders of any shares of
the Corporation's outstanding shares of preferred stock shall have the right to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies, and other features of such directorships
shall be governed by the terms hereof applicable thereto, or the resolution or
resolutions of the Board of Directors relating to the issuance of such shares of
preferred stock, and such directors so elected shall not be divided into classes
pursuant to this Article unless expressly provided by such terms or such other
resolution or resolutions.
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<PAGE> 8
D. Notwithstanding any other provisions hereof or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of capital
stock required by law or this instrument or the resolution or resolutions of the
Board of Directors relating to the issuance thereof, the affirmative vote of the
holders of at least sixty percent of the voting power of all of the
then-outstanding shares of Common Stock shall be required to alter, amend,
repeal, or adopt any provision inconsistent with this Article V.
ARTICLE VI.
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION
A. Directors of the Corporation shall have no personal liability to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for any breach of a director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or knowing violations of law,
(iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for
any transaction from which a director derived an improper personal benefit.
B. No amendment to or repeal of these provisions shall apply to or have
any effect on the liability or alleged liability of any person for or with
respect to any acts or omissions of such person occurring prior to such
amendments.
ARTICLE VIII.
BY-LAWS
The By-laws may be altered, amended or repealed or new By-laws may be
adopted by (1) the holders of at least 66-2/3% of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article VIII as one class, or (2)
the Board of Directors, at any regular meeting of the stockholders or the Board
of Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
By-laws be contained in the notice of such special meeting.
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<PAGE> 9
ARTICLE IX.
MEETINGS AND BOOKS AND RECORDS
Meetings of the stockholders may be held within or without the State of
Delaware, as the By-laws may provide. The books of the Corporation may be kept
(subject to the provisions of any law or regulation) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-laws of the Corporation. Elections of directors
need not be by written ballot unless the By-laws of the Corporation shall so
provide. The authority contemplated by Section 228 of the Delaware General
Corporation Law that permits stockholders to take action by written consent is
expressly denied to stockholders of this Corporation. Accordingly, the
stockholders shall not have the ability to take any action unless such action is
taken at an annual or special meeting of the stockholders.
ARTICLE X.
AMENDMENTS
Subject to any express limitations set forth in this Fourth Amended and
Restated Certificate, the Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Fourth Amended and Restated
Certificate, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
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<PAGE> 10
IN WITNESS WHEREOF, this Fourth Amended and Restated Certificate of
Incorporation of Outdoor Systems, Inc. has been executed by the Chairman of the
Board of Directors this 29th day of May, 1997.
/s/ William S. Levine
---------------------------
William S. Levine
Chairman of the Board
ATTESTED BY:
/s/ Bill M. Beverage
- --------------------------
Bill M. Beverage
Secretary
- 7 -
<PAGE> 1
EXHIBIT 5.1
[POWELL, GOLDSTEIN, FRAZER & MURPHY LLP LETTERHEAD]
May 26, 1998
Outdoor Systems, Inc.
2502 N. Black Canyon Highway
Phoenix, Arizona 85009
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as counsel for Outdoor Systems, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on
Form S-3 (the "Registration Statement"), of an aggregate of 1,663,192 shares
(the "Shares") of common stock, $.01 par value per share, of the Company to be
sold by the Selling Stockholders named in the Registration Statement, of which
1,650,784 Shares (the "Issued Shares") have been issued and 12,408 Shares (the
"Adjustment Shares") are to be issued in connection with a post-closing
adjustment pursuant to the Agreement and Plan of Merger dated May 19, 1998
among the Company, Gator Outdoor Advertising, Inc., GATOA, Inc. and the
Selling Stockholders.
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and to the authorization for issuance of the Shares as we have deemed
it necessary and advisable.
In all such examinations, we have assumed the genuineness of all
signatures on all originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and the conformity
to original documents of all certified, conformed or photostatic copies. As to
questions of fact material and relevant to our opinion, we have relied upon
certificates or representations of Company officials and of appropriate state,
local and federal officials.
We are opining herein as to the effect on the subject transaction only of
the General Corporation Law of the State of Delaware, and we express no opinion
with respect to the applicability thereto, or the effect thereon, of the laws
of any other jurisdiction or, in the case of Delaware, any other laws, or as to
any matters of municipal law or the laws of any local agencies within any state.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that the Shares
have been duly authorized and the Issued Shares are, and upon issuance the
Adjustment Shares will be, validly issued, fully paid and non-assessable.
We hereby consent to the reference to our Firm under the heading "Legal
Matters" in the Prospectus contained in the Registration Statement and to the
filing of this opinion as Exhibit 5.1 to the Registration Statement.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to
the Registration Statement of Outdoor Systems, Inc. on Form S-3 of our report
dated February 3, 1998, except for the last paragraph of Note 5, for which the
date is March 17, 1998 appearing in the Annual Report on Form 10-K of Outdoor
Systems, Inc. for the year ended December 31, 1997, and incorporated by
reference in the Amendment No. 1 on Form 10-K/A, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this Amendment
No. 1 to the Registration Statement.
DELOITTE & TOUCHE
Phoenix, Arizona
May 26, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this amendment to
registration statement on Form S-3 of Outdoor Systems, Inc. of our report dated
March 21, 1997, except for Note 10 as to which the date is May 1, 1997, on our
audits of the financial statements of National Advertising Company as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996, which report is included in the Current Report on Form 8-K
filed by Outdoor Systems, Inc. on August 29, 1997. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
May 26, 1998
