Lamar Advertising Co., (Nov. 18, 1996)INQUIRY LETTERPALMER & DODGE LLP ORIGINAL TEXT ILLEGIBLE BEACON STREET BOSTON, MA 02108-3190 TELEPHONE(617) 573-0100 October 18, 1996
Martin Dunn, Esquire Chief Counsel Division of Corporation Finance U.S. Securities and Exchange Commission Stop 3-3 450 Fifth Street, N.W. Washington, D.C. 20549
Our client, Lamar Advertising Company (the "Company"), a leading outdoor advertising company, completed the initial public offering of its common stock pursuant to a Registration Statement on Form S-1 (File No. 333-05479) that became effective on August 1, 1996. On that same date, the Companys registration of the common stock pursuant to section 12(g) of the Exchange Act became effective, and the common stock was listed for trading on the Nasdaq National Market on the following day. The amount of the offering (including the underwriters over-allotment option) was approximately $87.1 million (on a gross basis), of which $68.7 million was for the Company and $18.4 million for selling stockholders. The offering price was $16 a share and on October 7 the last reported sale price of the stock on the Nasdaq Market was $38.50. As a result, the Companys market capitalization is approximately $1.1 billion and its public float exceeds $200 million. In May 1993, when it was privately-held by members of five founding families, the Company issued $100,000,000 of high-yield debt securities pursuant to a Registration Statement on Form S-1 (File No. 33-59624), which became effective on May 12, 1993. The debt securities are still outstanding. As a result of this registered offering, the Company became subject to the reporting requirements of section-15(d) of the Exchange Act. At November 1, 1993, the number of holders of the debt securities was less than 300 and the Companys obligation to report under section 15(d) automatically terminated. However, in accordance with its covenants under the indenture for the debt securities, the Company continued voluntarily to report under section 15(d) and has done so until the recent initial public offering. The Company has informed us that all of its periodic reports have been timely filed since the time of the debt offering. Accordingly, there has been information abut the Company publicly available on a regular periodic basis for over three years. At the time the registration statement for the recent initial public offering became effective, the Company filed a comprehensive amendment of its Annual Report on Form 10-K for the fiscal year ended October 31, 1995 to reflect the financial disclosures in its prospectus, which take into account the comments of the staff. Accordingly, there is now on file information about the Company for its last fiscal year (which ended almost one year ago) which has been thoroughly reviewed by the staff, together with information for subsequent periods through the third quarter ended July 31, 1996 (the Company filed its third quarter Form 10-Q on September 12, 1996), as well as information for prior periods. The Company is pursuing an acquisition growth strategy. These acquisitions may be made for cash or common stock of the Company or a combination. The Company is considering registering additional equity and debt securities in order to raise funds for potential acquisitions. If the Company were to use common stock as consideration in the acquisitions, potential sellers may be willing to accept that stock or to accord it full value only if the stock could be readily traded. In some cases, the Company may be able to issue the stock only if it is registered because of the unavailability of an exemption. Accordingly, the Company is also considering filing an acquisition shelf registration statement or a shelf registration statement covering resales of securities issued in acquisitions pursuant to an exemption. It would be less burdensome on the Company if it could effect the foregoing registration on the basis of Form S-3 disclosure. It appears that the staff has previously taken the position that voluntary filing under the Exchange Act will not satisfy the eligibility requirements of Form S-3. However, it is not clear from the description of staff interpretations on this question whether this position was taken at a time when the issuer was subject to the reporting requirements of the Exchange Act and in fact could demonstrate timely reporting for at least twelve calendar months under the circumstances described above. In any case, this may be an appropriate occasion to consider this matter in view of the Commissions active review of ways to simplify and streamline the registration process and relieve issuers of unnecessary burdens when consistent with the protection of investor interests. We believe that it would greatly benefit issuers and streamline the registration process without adversely affecting the interests of investors to allow issuers who otherwise qualify for use of Form S-3 to be eligible to use that form if they are now subject to the reporting requirements of the Exchange Act and have in fact voluntarily continued to comply with those requirements following the automatic statutory suspension of their obligation to do so. Investors would have the benefit of the prescribed information as though the issuer had been subject to the reporting requirements, as well as the assurance that the issuer is currently subject to those requirements. I appreciate your giving this matter your prompt attention. Please do not hesitate to let me know if you have any questions or need any additional information. In accordance with Release No. 33-6269, I have enclosed seven additional copies of this letter. Very truly yours, Stanley Keller STAFF REPLY LETTERNovember 18, 1996
DIVISION OF CORPORATION FINANCE
Incoming letter dated October 18, 1996 You have requested the Divisions views with respect to the Companys eligibility to use Securities Act of 1933 Form S-3. Based on the facts presented in your letter, it is the Divisions position that the Companys filings under the Securities Exchange Act of 1934 (the "Exchange Act"), as described in your letter, satisfy the requirements of General Instruction A.3. to Form S-3. In reaching this position, we have noted the following representations in your letter: (i) the Company was subject to the periodic reporting requirements of Exchange Act Section 15(d) following the described 1993 registration statement relating to debt securities to be offered and sold by the Company (File No. 33-59624); (2) the Company timely filed all periodic reports required to be filed by Exchange Act Section 15(d); (3) on November 1, 1993, the Company had fewer than 300 holders of the debt securities, so the Companys reporting obligation under Exchange Act Section 15(d) was automatically suspended by operation of Section 15(d); (4) the Company did not file a Form 15 notification of the suspension of its Exchange Act Section 15(d) periodic reporting requirement; (5) the indenture under which the debt securities were issued required the Company to continue filing with the Commission the periodic reports otherwise required by Exchange Act Section 15(d); (6) the Company timely filed all reports that would otherwise have been required to be filed by Exchange Act Section 15(d); (7) on August 1, 1996, the Companys Securities Act of 1933 registration statement for its initial public offering of common stock became effective and the Company registered its common stock under Exchange Act Section 12(g); (8) the Company amended its previously filed Form 10-K for the fiscal year ended October 31, 1995 to reflect staff comments on the registration statement relating to the initial public offering of common stock; and (9) since registering its common stock under Exchange Act Section 12(g), the Company has timely filed all materials required to be filed pursuant to Sections 13 and 14 of the Exchange Act. Because this position is based on the representations made to the Division in your letter, it should be noted that any different facts might require a different result. Sincerely, William H. Carter Special Counsel |
 |