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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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PUBLIC STORAGE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 95-3551121
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION) HUGH W. HORNE
PUBLIC STORAGE, INC.
701 WESTERN AVENUE 701 WESTERN AVENUE
GLENDALE, CALIFORNIA 91201-2397 GLENDALE, CALIFORNIA 91201-2397
(818) 244-8080 (818) 244-8080
(ADDRESS, INCLUDING ZIP CODE, AND (NAME, ADDRESS, INCLUDING ZIP
TELEPHONE NUMBER, INCLUDING AREA CODE, CODE, AND TELEPHONE
OF REGISTRANT'S PRINCIPAL NUMBER, INCLUDING AREA CODE, OF
EXECUTIVE OFFICES) AGENT FOR SERVICE)
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COPIES TO:
DAVID GOLDBERG, ESQ.
PUBLIC STORAGE, INC.
701 WESTERN AVENUE, SUITE 200
GLENDALE, CALIFORNIA 91201-2397
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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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, other than securities offered only in connection with dividend or
interest reinvestment plans, 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 Rule 462(a)
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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
AMOUNT OFFERING PRICE PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE PER SHARE OR AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Preferred Stock, $.01 par value
per share......................... (1)(3) (2) (1)(2)(3) N/A
Depositary Shares.................. (1)(3) (2) (1)(2)(3) N/A
Equity Stock, $.01 par value
per share......................... (1)(4) (2) (1)(2)(4) N/A
Common Stock, $.10 par value per
share............................. (1)(5) (2) (1)(2)(5) N/A
Warrants........................... (1)(6) (2) (1)(2)(6) N/A
Total............................ $231,750,811(7) (2) $231,750,811(7) $70,228(8)
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(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $231,750,811. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) The proposed maximum offering price per unit will be determined, from time
to time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder. No separate consideration will be
received for any Depositary Shares representing shares of Preferred Stock of
the Registrant.
(3) Subject to Footnote 1, there is being registered hereunder an indeterminate
number of shares of Preferred Stock, and Depositary Shares representing a
fractional interest in a share of Preferred Stock, as may be sold, from time
to time, by the Registrant. In the event Registrant elects to offer to the
public fractional interests in shares of the Preferred Stock
registered hereunder, Depositary Receipts will be distributed to those
persons acquiring such fractional interests and the shares of Preferred
Stock will be issued to a Depositary under a Deposit Agreement. There is
also being registered hereunder an indeterminate number of shares of
Preferred Stock as shall be issuable upon exercise of Warrants registered
hereby.
(4) Subject to Footnote 1, there is being registered hereunder an indeterminate
number of shares of Equity Stock as may be sold, from time to time, by the
Registrant.
(5) Subject to Footnote 1, there is being registered hereunder an indeterminate
number of shares of Common Stock as may be sold, from time to time, by the
Registrant. There is also being registered hereunder an indeterminate number
of shares of Common Stock as shall be issuable upon conversion of the
Preferred Stock or the Equity Stock or exercise of Warrants registered
hereby.
(6) Subject to Footnote 1, there is being registered hereunder an indeterminate
number of Warrants representing rights to purchase Preferred Stock, Equity
Stock or Common Stock, as the case may be, registered pursuant to this
Registration Statement.
(7) An additional $168,249,189 of securities were registered by Registrant under
Registration Statement No. 333-00965 and remain unissued.
(8) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. An additional $58,017 registration fee
was paid by Registrant in connection with Registration Statement No. 333-
00965 with respect to securities registered thereunder that remain unissued.
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PURSUANT OF RULE 429 OF THE RULES AND REGULATIONS UNDER THE SECURITIES ACT OF
1933, THE PROSPECTUS WHICH IS A PART OF THIS REGISTRATION STATEMENT WILL ALSO
BE USED IN CONNECTION WITH SECURITIES REGISTERED BY REGISTRANT'S REGISTRATION
STATEMENT NO. 333-00965. IN THE EVENT ANY OF SUCH PREVIOUSLY REGISTERED
SECURITIES ARE OFFERED PRIOR TO THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT, THEY WILL NOT BE INCLUDED IN SUCH PROSPECTUS.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
PUBLIC STORAGE, INC.
PREFERRED STOCK
DEPOSITARY SHARES
EQUITY STOCK
COMMON STOCK
WARRANTS
Public Storage, Inc. (the "Company") may from time to time offer in one or
more series (i) shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), and depositary shares (the "Depositary Shares") representing
a fractional interest in a share of Preferred Stock, (ii) shares of equity
stock, par value $.01 per share (the "Equity Stock"), (iii) shares of common
stock, par value $.10 per share (the "Common Stock"), or (iv) warrants to
purchase Preferred Stock, Equity Stock or Common Stock (the "Warrants"), with an
aggregate public offering price of up to $400,000,000 on terms to be determined
at the time of offering. The Preferred Stock, Depositary Shares, Equity Stock,
Common Stock and Warrants (collectively, the "Securities") may be offered,
separately or together (in any combination), as separate series, in amounts, at
prices and on terms to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable: (i) in the case of Preferred Stock and
Depositary Shares, the specific title and stated value, any dividend,
liquidation, redemption, conversion, voting and other rights, the offering price
and whether Depositary Shares will be offered, and if so, the fraction of a
share of Preferred Stock represented by a Depositary Share; (ii) in the case of
Equity Stock, the specific title, any dividend, liquidation, redemption
conversion, voting and other rights and the offering price, (iii) in the case of
Common Stock, the offering price; and (iv) in the case of Warrants, the
duration, offering price, exercise price and detachability.
The applicable Prospectus Supplement will also contain information, where
applicable, about any listing on a securities exchange of the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by the Company, or to or through underwriters or dealers. If any
agents or underwriters are involved in the sale of any of the Securities,
their names, and any applicable purchase price, fee, commission or discount
arrangement between or among them, will be set forth, or will be calculable
from the information set forth, in the applicable Prospectus Supplement. See
"Plan of Distribution." No Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER
"RISK FACTORS" BEGINNING ON PAGE 4 IN THE PROSPECTUS.
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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 CONTRARY IS A CRIMINAL OFFENSE.
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December , 1996
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission in Washington, D.C.
and at the Regional Offices of the Commission at 7 World Trade Center, 13th
Floor, New York, New York 10048; and Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained at prescribed rates from the Public Reference Room of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 or by accessing the Commission's
World Web site at http://www.sec.gov. Such material can also be inspected at the
New York Stock Exchange ("NYSE"), 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form S-
3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed by the Company with the Commission pursuant to
Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") (File No.
1-8389), are incorporated herein by reference: (i) the Annual Report on Form
10-K for the year ended December 31, 1995, as amended by Form 10-K/As dated
April 29, 1996, May 14, 1996 and May 15, 1996, (ii) the Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and September 30,
1996 and (iii) the Current Reports on Form 8-K dated January 22, 1996, September
6, 1996, September 18, 1996 and October 28, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus.
Any statement contained herein or 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 the applicable Prospectus Supplement) or in any other subsequently filed
document which also is or is 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 a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such information), will be provided without charge
to any person, including any beneficial owner, to whom this Prospectus is
delivered, upon written request. Requests for such copies should be directed to
Investor Services Department, Public Storage, Inc., 701 Western Avenue,
Glendale, California 91201-2397.
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THE COMPANY
The Company is a fully integrated, self-administered and self-managed real
estate investment trust ("REIT") that acquires, develops, owns and operates
self-service facilities offering space for personal and business use ("mini-
warehouses"). The Company is the largest owner and operator of mini-warehouses
in the United States. The Company also owns and operates, to a much smaller
extent, business parks containing commercial and industrial rental space. At
September 30, 1996, the Company had equity interests (through direct ownership,
as well as general and limited partnership and capital stock interests) in
1,072 properties located in 37 states, consisting of 1,037 mini-warehouse
facilities and 35 business parks.
In a series of mergers among Public Storage Management, Inc. and its
affiliates (collectively, "PSMI"), culminating in the November 16, 1995 merger
of PSMI into the Company (the "Merger"), the Company became self-administered
and self-managed, acquired substantially all of PSMI's United States real
estate interests and was renamed "Public Storage, Inc."
The Company has elected to be taxed as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"). To the extent that the Company continues to
qualify as a REIT, it will not be taxed, with certain limited exceptions, on the
net income that is distributed currently to its shareholders (the
"Shareholders"). See "Certain Federal Income Tax Considerations." The Company
was incorporated in California in 1980; its principal executive offices are
located at 701 Western Avenue, Glendale, California 91201-2397. Its telephone
number is (818) 244-8080.
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RISK FACTORS
In evaluating the Securities, investors should consider the following
factors, in addition to other matters set forth or incorporated in this
Prospectus (and in the applicable Prospectus Supplement) and the Registration
Statement.
CONTROL AND INFLUENCE BY THE HUGHES FAMILY
At November 30, 1996, B. Wayne Hughes, the chief executive officer of the
Company, and members of his family (collectively, the "Hughes Family")
beneficially owned approximately 44% of the outstanding shares of Common Stock
(approximately 49% upon conversion of the Company's Class B common stock, par
value $.10 per share (the "Class B Common Stock")). Consequently, the Hughes
Family has the ability to effectively control all matters submitted to a vote of
Shareholders, including the election of directors, amendment of the Company's
restated articles of incorporation (the "Articles of Incorporation"),
dissolution and the approval of other extraordinary transactions. In addition,
this concentration of ownership may have the effect of delaying or preventing a
change in control of the Company.
OWNERSHIP LIMITATIONS
Public shareholders are further limited in their ability to change control of
the Company due to restrictions in the Articles of Incorporation and the
Company's bylaws (the "Bylaws") on beneficial ownership. Unless such
limitations are waived by the Company's board of directors (the "Board of
Directors"), no Shareholder may own more than (A) 2.0% of the outstanding
shares of all common stock of the Company or (B) 9.9% of the outstanding shares
of any class or series of shares of preferred stock of the Company. The
Articles of Incorporation and Bylaws provide, however, that no person shall be
deemed to exceed the ownership limit solely by reason of the beneficial
ownership of shares of any class of capital stock to the extent that such
shares of capital stock were beneficially owned by such person at the time of
the Merger, which includes the Common Stock owned by the Hughes Family. The
principal purpose of the foregoing limitations is to assist in preventing, to
the extent practicable, a concentration of ownership that might jeopardize the
ability of the Company to obtain the favorable tax benefits afforded a
qualified REIT. An incidental consequence of such provisions is to make a
change of control significantly more difficult (if not impossible) even if it
would be favorable to the interests of the public shareholders. Such provisions
will prevent future takeover attempts which the Board of Directors has not
approved even if a majority of the public shareholders deem it to be in their
best interests or in which the public shareholders may receive a premium for
their shares over the then market value. See "Description of Common Stock and
Class B Common Stock--Ownership Limitations."
TAX RISKS
Possible Treatment of the Merger as a Taxable Event. In connection with the
Merger, Hogan & Hartson L.L.P. ("Hogan & Hartson"), counsel to the Company,
delivered an opinion that for federal income tax purposes under current law, the
Merger will be treated as a reorganization within the meaning of Section 368(a)
of the Code. This opinion is based on certain representations made by the
Company and by PSMI and its shareholders and on certain assumptions.
Furthermore, this opinion is not binding on the IRS. Therefore, the IRS may
contest the qualification of the Merger as a reorganization under Section 368(a)
of the Code. If such a contest were successful, the Merger would be a taxable
transaction and PSMI would recognize gain in an amount equal to the excess of
the fair market value of the Common Stock and the Class B Common Stock issued in
the Merger over the adjusted basis of the assets transferred to the Company. As
the successor to PSMI, the Company would be primarily liable for this resulting
tax liability. See "--Increase in Nonqualifying Income," "--Elimination of Any
Accumulated Earnings and Profits," "--Increased Risk of Violation of Ownership
Requirements," and "Certain Federal Income Tax Considerations--Consequences of
the Merger on the Company's Qualification as a REIT." Subject to certain
limitations, Hughes has agreed to indemnify the Company for tax liabilities of
PSMI, including any tax liabilities arising directly or indirectly as a result
of the Merger or related transactions.
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Risk of Violation of Gross Income Requirements. As a result of the Merger, the
Company performs property management services for properties in which it has no
or only a partial interest. Some or all of the gross income received from these
services will not be treated as income qualifying for certain REIT gross income
tests applicable to the Company. If the Company's nonqualifying income were to
exceed 5% of its total gross income, the Company's REIT status may terminate for
that year and future years unless the Company meets certain "reasonable cause"
standards. Even if the Company meets such standards, however, it would be
subject to a 100% excise tax on any excess nonqualifying net income.
Increased Risk of Violation of Ownership Requirements. For the Company to
qualify as a REIT under the Code, no more than 50% in value of its outstanding
stock may be owned, directly or constructively under the applicable attribution
rules of the Code, by five or fewer individuals (as defined in the Code to
include certain entities) during the last half of a taxable year. Following the
Merger, the value of the outstanding capital stock of the Company held by the
Hughes Family was estimated at approximately 45%. Accordingly, no four
individuals other than the Hughes Family could own directly or constructively,
in the aggregate, more than 5% of the value of outstanding capital stock of the
Company. In order to assist the Company in meeting these ownership restrictions,
the Articles of Incorporation contain the ownership limitations described under
"Description of Common Stock and Class B Common Stock--Ownership Limitations."
However, even with these ownership limitations, the Company could still be in
violation of the ownership restrictions if four individuals unrelated to the
Hughes Family were to own the maximum amount of capital stock permitted under
the Articles of Incorporation. Therefore, to further assist the Company in
meeting the ownership restrictions, the Hughes Family entered into an agreement
with the Company restricting the Hughes Family's acquisition of additional
shares of capital stock of the Company and providing that if, at any time, for
any reason, more than 50% in value of its outstanding capital stock otherwise
would be considered owned by five or fewer individuals, a number of shares of
Common Stock owned by Wayne Hughes necessary to prevent such violation will
automatically and irrevocably be transferred to a designated charitable
beneficiary. The provisions in the Articles of Incorporation and the agreement
with Wayne Hughes are modeled after certain arrangements that the Internal
Revenue Service (the "IRS") has ruled in private letter rulings will preclude a
REIT from being considered to violate the ownership restrictions so long as such
arrangements are enforceable as a matter of state law and the REIT seeks to
enforce them as and when necessary. There can be no assurance, however, that the
IRS might not seek to take a different position with respect to the Company (a
private letter ruling is legally binding only with respect to the taxpayer to
whom it was issued) or contend that the Company failed to enforce these various
arrangements and, hence, there can be no assurance that these arrangements will
necessarily preserve the Company's REIT status. No private letter ruling has
been sought by the Company from the IRS with respect to the effect of these
arrangements.
Elimination of Any Accumulated Earnings and Profits. Any accumulated earnings
and profits of PSMI carried over to the Company in the Merger. To retain its
REIT status, the Company would have had to distribute any acquired earnings and
profits on or before December 31, 1995. In connection with the Merger, a study
of the earnings and profits showed that PSMI had no earnings and profits at the
time of the Merger. The determination of earnings and profits depends on a
number of factual matters related to the activities and operation of PSMI and
its predecessors in years prior to the Merger. Accordingly, no assurances
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can be given that the IRS will not challenge such conclusion. If the IRS were
subsequently to determine that such earnings and profits existed at the time
of the Merger, the Company may lose its REIT qualification for the year of the
Merger and, perhaps, for subsequent years unless certain relief provisions
apply. See "Certain Federal Income Tax Considerations--Consequences of the
Merger on the Company's Qualification as a REIT--Elimination of any
Accumulated Earnings and Profits Attributable to Non-REIT Years."
Consequences of Failure to Qualify as a REIT. For any taxable year that the
Company fails to qualify as a REIT and certain relief provisions do not apply,
the Company would be taxed at the regular corporate rates on all of its taxable
income, whether or not it makes any distributions to its shareholders. Those
taxes would reduce the amount of cash available to the Company for distribution
to its shareholders or for reinvestment. As a result, failure of the Company to
qualify during any taxable year as a REIT could have a material adverse effect
upon the Company and its shareholders. Furthermore, unless certain relief
provisions apply, the Company would not be eligible to elect REIT status again
until the fifth taxable year that begins after the first year for which the
Company fails to qualify.
Corporate Level Tax on Sale of Certain Built-in Gain Assets. The Company
will be subject to a corporate level tax if it disposes of any of the assets
acquired in the Merger at any time during the 10-year period beginning at the
time of the Merger (the "Restriction Period"). This tax would be imposed at
the top regular corporate rate (currently 35%) in effect at the time of the
disposition on the excess of (i) the lesser of (a) the fair market value at
the time of the Merger of the assets disposed of and (b) the selling price of
such assets over (ii) the Company's adjusted basis at the time of the Merger
in such assets (such excess being referred to as the "Built-in Gain"). The
Company currently does not intend to dispose of any of the assets acquired in
the Merger during the Restriction Period, but there can be no assurance that
one or more such dispositions will not occur. See "Certain Federal Income Tax
Considerations--Tax Treatment of the Merger--Built-in Gain Rules."
OPERATING RISKS
General Risks of Real Estate Ownership. The Company is subject to the risks
generally incident to the ownership of real estate-related assets, including
lack of demand for rental spaces in a locale, changes in general economic or
local conditions, changes in supply of or demand for similar or competing
facilities in an area, the impact of environmental protection laws, changes in
interest rates and availability of permanent mortgage funds which may render
the sale or financing of a property difficult or unattractive and changes in
tax, real estate and zoning laws.
Significant Competition Among Mini-Warehouses. Most of the Company's
properties are mini-warehouses. Competition in the market areas in which the
Company operates is significant and has affected the occupancy levels, rental
rates and operating expenses of certain of the Company's properties. Competition
may be accelerated by any increase in availability of funds for investment in
real estate. Recent increases in development of mini-warehouses are expected to
further intensify competition among mini-warehouse operators in certain market
areas.
Risk of Environmental Liabilities. Under various federal, state and local
laws, regulations and ordinances (collectively, "Environmental Laws"), an
owner or operator of real estate interests may be liable for the costs of
cleaning up, as well as certain damages resulting from, past or present
spills, disposals or other releases of hazardous or toxic substances or wastes
on, in or from a property. Certain Environmental Laws impose such
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liability without regard to whether the owner knew of, or was responsible for,
the presence of hazardous or toxic substances or wastes at or from a property.
An owner or operator of real estate or real estate interests also may be liable
under certain Environmental Laws that govern activities or operations at a
property having adverse environmental effects, such as discharges to air and
water as well as handling and disposal practices for solid and hazardous or
toxic wastes. In some cases, liability may not be limited to the value of the
property. The presence of such substances or wastes, or the failure to properly
remediate any resulting contamination, also may adversely affect the owner's or
operator's ability to sell, lease or operate its property or to borrow using
its property as collateral.
The Company has recently conducted preliminary environmental assessments of
most of its properties (and intends to conduct such assessments in connection
with property acquisitions) to evaluate the environmental condition of, and
potential environmental liabilities associated with, such properties. Such
assessments generally consist of an investigation of environmental conditions
at the subject property (not including soil or groundwater sampling or
analysis), as well as a review of available information regarding the site and
publicly available data regarding conditions at other sites in the vicinity. In
connection with these recent property assessments, the Company's operations and
recent property acquisitions, the Company has become aware that prior
operations or activities at certain facilities or from nearby locations have or
may have resulted in contamination to the soil and/or groundwater at such
facilities. In this regard, certain such facilities are or may be the subject
of federal or state environmental investigations or remedial actions. The
Company has obtained with respect to recent acquisitions, and intends to obtain
with respect to pending or future acquisitions, appropriate purchase price
adjustments or indemnifications that it believes are sufficient to cover any
such potential liabilities. Although there can be no assurance, based on the
recent preliminary environmental assessments, the Company believes it has funds
available to cover any liability from environmental contamination or potential
contamination and the Company is not aware of any environmental contamination
of its facilities material to its overall business or financial condition.
Tenant Reinsurance. A corporation owned by the Hughes Family continues to
reinsure policies insuring against losses to goods stored by tenants in the
mini-warehouses operated by the Company. The Company believes that the
availability of insurance reduces its potential liability to tenants for losses
to their goods from theft or destruction. This corporation will continue to
receive the premiums and bear the risks associated with the insurance. The
Company has a right of first refusal to acquire the stock or assets of this
corporation if the Hughes Family or the corporation agree to sell them, but the
Company has no interest in its operations and no right to acquire the stock or
assets of the corporation in the absence of a decision to sell. If the
reinsurance business were owned directly by the Company, the insurance premiums
would be nonqualifying income to the Company. The Company would be precluded
from exercising its right of first refusal with respect to the stock of the
reinsurance corporation if such exercise would cause the Company to violate any
of the requirements for qualification as a REIT under the Code.
Canadian Operations. The Hughes Family continues to own and operate mini-
warehouses in Canada. The Company has a right of first refusal to acquire the
stock or assets of the corporation engaged in these operations if the Hughes
Family or the corporation agree to sell them, but the Company has no interest
in its operations and no right to acquire the stock or assets in the absence of
a decision to sell.
PSCP. Prior to the Merger, Public Storage Commercial Properties Group, Inc.
("PSCP"), a subsidiary of PSMI, managed commercial properties for the Company
and others. Because certain of the revenues generated by PSCP would be
nonqualifying income to the Company, prior to the Merger, the common stock of
PSCP held by PSMI was converted into nonvoting preferred stock (representing
95% of the equity) and the voting common stock of PSCP (representing 5% of the
equity) was issued to the Hughes Family. While the Company acquired the
preferred stock of PSCP in the Merger, the Hughes Family is able to continue to
control the operations of PSCP by reason of their ownership of its voting
stock.
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Merchandise and Portable Self Storage Companies. Prior to the Merger, PSMI
sold locks, boxes and tape to tenants to use in securing their rented spaces and
moving their goods. Because the revenues received from the sale of these items
would be nonqualifying income to the Company, immediately following the Merger,
PSMI transferred this lock and box business to a separate corporation (the
"Lock/Box Company"). The nonvoting preferred stock of the Lock/Box Company
(representing 95% of the equity) was issued to PSI. The voting common stock of
the Lock/Box Company (representing 5% of the equity) was issued to the Hughes
Family, which will be able to control the operations of the Lock/Box Company by
reason of their ownership of its voting stock.
Public Storage Pick Up and Delivery, Inc. ("PSPUD") was recently organized to
operate a portable self-storage business. Because the revenues from this
business would be non-qualifying income to the Company, the nonvoting preferred
stock of PSPUD (representing 95% of the equity) was issued to the Company.
PSPUD's voting common stock (representing 5% of the equity) was issued to the
Hughes Family, which will be able to control PSPUD's operations.
Liabilities with Respect to Acquired General Partner Interests. Upon
succeeding to substantially all of the properties and operations of PSMI in the
Merger, there may be certain liabilities and associated costs suffered by the
Company in its capacity as general partner of former PSMI limited partnerships
arising out of facts and circumstances in existence prior to the Merger, and
the Company will also have general partner liability for post-Merger activities
of these partnerships, as it does for other partnership as to which it is a
general partner. Subject to certain limitations, Hughes has agreed to indemnify
the Company for pre-Merger activities and the Class B Common Stock will be
placed in escrow to support such indemnification.
FINANCING RISKS
Dilution and Subordination. The interest of Shareholders, including persons
who acquire Securities in this offering, can be diluted through the issuance of
additional securities.
Since October 1992 the Company has issued shares of Preferred Stock and
intends to issue additional such shares. These issuances could involve certain
risks to holders of shares of Common Stock. In the event of a liquidation of the
Company, the holders of the Preferred Stock outstanding at November 30, 1996
will be entitled to receive, before any distribution of assets to holders of
Common Stock, liquidating distributions (an aggregate of approximately $835
million in respect of Preferred Stock issued to date), plus any accrued and
unpaid dividends. Holders of Preferred Stock are entitled to receive, when
declared by the Board of Directors, cash dividends (an aggregate of
approximately $77 million per year in respect of Preferred Stock outstanding at
November 30, 1996, in preference to holders of Common Stock. As a REIT, the
Company must distribute to its Shareholders (which include not only holders of
Common Stock but also holders of Preferred Stock) for each taxable year at least
95% of its annual taxable income. Failure to pay full dividends on the Preferred
Stock could jeopardize the Company's qualification as a REIT. See "Description
of Preferred Stock" and "Certain Federal Income Tax Considerations--Tax
Treatment of the Company."
Risk of Leverage. In making real estate investments, the Company has incurred
and may continue to incur indebtedness to the extent believed appropriate. The
incurrence of indebtedness increases the risk of loss of the investment.
SHARES ELIGIBLE FOR FUTURE SALE
Future sales of substantial amounts of Common Stock in the public market
could adversely affect prevailing market prices. At November 30, 1996, the
Company had approximately 84.5 million shares of Common Stock and seven million
shares of Class B Common Stock outstanding. Of these shares, approximately 48.7
million shares of Common Stock are tradeable without restriction (except those
applicable to affiliates of the Company) or further registration under the
Securities Act. The remaining approximately 35.8 million shares of Common Stock
and seven million shares of Class B Common Stock were issued in the Merger
8
<PAGE>
without registration under the Securities Act in reliance on an exemption from
registration and are "restricted securities" within the meaning of Rule 144
adopted under the Act (the "Restricted Shares"). The beneficial owners of 15.5
million of the Restricted Shares (including all of the Class B Common Stock)
have agreed not to offer, sell or otherwise dispose (except for gifts and
pledges) of any of their shares until November 13, 1998, in the case of the
Common Stock, or until November 13, 2002, in the case of the Class B Common
Stock. Upon expiration of such periods, each will be entitled to sell his or her
shares in the public market subject to Rule 144, which contains certain public
information, volume, holding period and manner of sale requirements. The
remaining approximately 27.3 million Restricted Shares will be available for
sale in the public market pursuant to Rule 144, subject to the foregoing
requirements that include, as the Rule is currently in effect, a two-year
holding period. Sales of substantial amounts of such Common Stock in the public
market could adversely affect the market price of the Common Stock.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, primarily investments in mini-warehouses, including
mortgage loans and interests in real estate partnerships, and the repayment of
outstanding bank borrowings under the Company's credit facility.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to combined fixed charges and preferred stock dividends
is computed by dividing earnings by the sum of fixed charges and preferred
stock dividends. Earnings consists of net income before minority interest in
income, loss on early extinguishment of debt and gain on disposition of real
estate plus fixed charges (other than preferred stock dividends) less the
portion of minority interest in income which does not contribute to fixed
charges.
<TABLE>
<CAPTION>
FOR THE NINE
MONTHS ENDED
SEPTEMBER 30, FOR THE YEAR ENDED DECEMBER 31,
-------------- -----------------------------------
1996 1995 1995 1994 1993 1992 1991
------- ------ ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to com-
bined fixed charges and
preferred stock dividends. 2.03 2.07 2.04 2.22 2.40 2.89 2.71
</TABLE>
9
<PAGE>
DESCRIPTION OF COMMON STOCK AND CLASS B COMMON STOCK
The Company is authorized to issue 200,000,000 shares of Common Stock and
7,000,000 shares of Class B Common Stock. At November 30, 1996, the Company had
outstanding 84,489,425 shares of Common Stock (exclusive of shares issuable
upon conversion of the Company's convertible stock and shares subject to
options) and 7,000,000 shares of Class B Common Stock.
COMMON STOCK
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Stock will be
issuable upon conversion of the Preferred Stock or upon the exercise of the
Warrants. The statements below describing the Common Stock are in all respects
subject to and qualified in their entirety by reference to the applicable
provisions of the Articles of Incorporation and the Company's Bylaws (the
"Bylaws").
Holders of Common Stock will be entitled to receive dividends when, as and if
declared by the Board of Directors, out of funds legally available therefor.
Payment and declaration of dividends on the Common Stock and purchases of
shares thereof by the Company will be subject to certain restrictions if the
Company fails to pay dividends on outstanding preferred stock. See "Description
of Preferred Stock." Upon any liquidation, dissolution or winding up of the
Company, holders of Common Stock will be entitled to share equally and ratably
in any assets available for distribution to them, after payment or provision
for payment of the debts and other liabilities of the Company and the
preferential amounts owing with respect to any outstanding preferred stock.
Holders of Common Stock have no preemptive rights, which means they have no
right to acquire any additional shares of Common Stock that may be issued by
the Company at a subsequent date.
Each outstanding share of Common Stock entitles the holder to one vote on all
matters presented to such holders for a vote, with the exception that they have
cumulative voting rights with respect to the election of the Board of
Directors, in accordance with California law. Cumulative voting means that each
holder of Common Stock is entitled to cast as many votes as there are directors
to be elected multiplied by the number of shares registered in his or her name.
A holder of Common Stock may cumulate the votes for directors by casting all of
the votes for one candidate or by distributing the votes among as many
candidates as he or she chooses. The outstanding shares of Common Stock are,
and additional shares of Common Stock will be, when issued, fully paid and
nonassessable.
OWNERSHIP LIMITATIONS
For the Company to qualify as a REIT under the Code, no more than 50% in
value of its outstanding shares of capital stock may be owned, directly or
constructively under the applicable attribution rules of the Code, by five or
fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year. In order to maintain its qualification as a
REIT, the Articles of Incorporation and Bylaws provide certain restrictions on
the shares of capital stock that any Shareholder may own.
The Articles of Incorporation and Bylaws provide that, subject to certain
exceptions, no holder may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than (A) 2.0% of the outstanding shares of all
Common Stock or (B) 9.9% of the outstanding shares of any class or series of
shares of Preferred Stock. The Articles of Incorporation and Bylaws provide,
however, that no person shall be deemed to exceed the ownership limit solely by
reason of the beneficial ownership of shares of any class of capital stock to
the extent that such shares of capital stock were beneficially owned by such
person (including the Hughes Family) at the time of the Merger. However, in
determining whether an acquisition of shares after the Merger violates the
Articles of Incorporation or Bylaws, Shareholders will be subject to these
ownership limitations. This ownership limitation is necessary in order to
assist in preserving the Company's
10
<PAGE>
REIT status in view of the Hughes Family's substantial ownership interest in
the Company. See "Risk Factors--Ownership Limitations" and "Certain Federal
Income Tax Considerations--Tax Treatment of the Company."
The Board of Directors, in its sole and absolute discretion, may grant an
exception to the ownership limits to any person so requesting, so long as (A)
the Board of Directors has determined that, after giving effect to (x) an
acquisition by such person of beneficial ownership (within the meaning of the
Code) of the maximum amount of capital stock of the Company permitted as a
result of the exception to be granted and (y) assuming that the four other
persons who would be treated as "individuals" for the purposes of Section
542(a)(2) of the Code and who would beneficially own the largest amounts of
capital stock of the Company (determined by value) beneficially own the maximum
amount of capital stock of the Company permitted under the ownership limits (or
any exceptions to the ownership limits granted with respect to such persons),
the Company would not be "closely held" within the meaning of Section 856(h) of
the Code and would not otherwise fail to qualify as a REIT, and (B) such person
provides to the Board of Directors such representations and undertakings as the
Board of Directors may require. Notwithstanding any of the foregoing ownership
limits, no holder may own or acquire, either directly, indirectly or
constructively under the applicable attribution rules of the Code, any shares
of any class of the Company's capital stock if such ownership or acquisition
(i) would cause more than 50% in value of the Company's outstanding capital
stock to be owned, either directly or constructively, under the applicable
attribution rules of the Code, by five or fewer individuals (as defined in the
Code to include certain tax-exempt entities, other than, in general, qualified
domestic pension funds), (ii) would result in the Company's capital stock being
beneficially owned by less than 100 persons (determined without reference to
any rules of attribution), or (iii) would otherwise result in the Company
failing to qualify as a REIT.
The Articles of Incorporation and Bylaws provide that, if any holder of the
Company's capital stock purports to transfer shares to a person or there is a
change in the capital structure of the Company or other event and either the
transfer, the change in capital structure or such other event would result in
the Company failing to qualify as a REIT, or such transfer, the change in
capital structure or such other event would cause the transferee to hold shares
in excess of the applicable ownership limit, then the stock being transferred
(or in the case of an event other than a transfer, the stock beneficially
owned) which would cause one or more of the restrictions on ownership or
transfer to be violated shall be automatically transferred to a trust for the
benefit of a designated charitable beneficiary. The purported transferee of
such shares shall have no right to receive dividends or other distributions
with respect to such shares and shall have no right to vote such shares. Any
dividends or other distributions paid to such purported transferee prior to the
discovery by the Company that the shares have been transferred to a trust shall
be paid to the trustee of the trust for the benefit of the charitable
beneficiary upon demand. The trustee of the trust will have all rights to
dividends with respect to shares of stock held in trust, which rights will be
exercised for the exclusive benefit of the charitable beneficiary. Any
dividends or distributions paid over to the trustee will be held in trust for
the charitable beneficiary. Within 20 days of receiving notice from the Company
that shares of capital stock have been transferred to the trust, the trustee
shall designate a transferee of such stock so long as such shares of stock
would not violate the restrictions on ownership or transfer in the Articles of
Incorporation or Bylaws in the hands of such designated transferee. Upon the
sale of such shares, the purported transferee shall receive the lesser of
(A)(i) the price per share such purported transferee paid for the stock in the
purported transfer that resulted in the transfer of the shares to the trust, or
(ii) if the transfer or other event that resulted in the transfer of the shares
of the trust was not a transaction in which the purported transferee gave full
value for such shares, a price per share equal to the market price on the date
of the purported transfer or other event that resulted in the transfer of the
shares to the trust and (B) the price per share received by the trustee from
the sale or other disposition of the shares held in the trust.
In addition, the Company's Bylaws provide the Board of Directors with the
power to prevent the transfer of shares of capital stock or to redeem shares of
11
<PAGE>
capital stock if the Board of Directors determines in good faith that such
action is necessary to preserve the Company's REIT status.
CLASS B COMMON STOCK
The Class B Common Stock (i) does not participate in distributions on the
Common Stock until the later to occur of (x) funds from operations ("FFO") per
Common Share (as defined below) aggregating $1.80 during any period of four
consecutive calendar quarters or (y) January 1, 2000; thereafter, the Class B
Common Stock will participate in distributions (other than liquidating
distributions) at the rate of 97% of the per share distributions on the Common
Stock, provided that cumulative distributions of at least $.22 per quarter
(beginning with the 4th quarter of 1995) per share have been paid on the Common
Stock, (ii) does not participate in liquidating distributions, (iii) is not
entitled to vote (except as expressly required by California law) and (iv) will
automatically convert into Common Stock, on a share for share basis, upon the
later to occur of (A) FFO per Common Share aggregating $3.00 during any period
of four consecutive calendar quarters or (B) January 1, 2003.
For these purposes:
1) FFO means net income (loss) (computed in accordance with GAAP) before
(i) gain (loss) on early extinguishment of debt, (ii) minority interest in
income and (iii) gain (loss) on disposition of real estate, adjusted as
follows: (i) plus depreciation and amortization (including the Company's
pro-rata share of depreciation and amortization of unconsolidated equity
interests and amortization of assets acquired in the Merger (including
property management agreements and goodwill)), and (ii) less FFO
attributable to minority interest. FFO is a supplemental performance
measure for equity REITs as defined by the National Association of Real
Estate Investment Trusts, Inc. ("NAREIT"). The NAREIT definition does not
specifically address the treatment of minority interest in the
determination of FFO or the treatment of the amortization of property
management agreements and goodwill. In the case of the Company, FFO
represents amounts attributable to Shareholders after deducting amounts
attributable to the minority interests and before deductions for the
amortization of property management agreements and goodwill. FFO does not
take into consideration scheduled principal payments on debt, capital
improvements, distributions and other obligations of the Company.
Accordingly, FFO is not a substitute for the Company's cash flow or net
income as a measure of its liquidity or operating performance or ability to
pay distributions.
2) FFO per Common Share means FFO less Preferred Stock dividends (other
than dividends on convertible preferred stock) divided by the outstanding
weighted average shares of Common Stock assuming conversion of all
outstanding convertible securities and the Class B Common Stock.
DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue 50,000,000 shares of Preferred Stock. At
November 30, 1996, the Company had outstanding 13,425,080 shares of Preferred
Stock (of which 17,650 shares of Preferred Stock are represented by 17,650,000
depositary shares). The Articles of Incorporation provide that the Preferred
Stock may be issued from time to time in one or more series and give the Board
of Directors broad authority to fix the dividend and distribution rights,
conversion and voting rights, if any, redemption provisions and liquidation
preferences of each series of Preferred Stock. Holders of Preferred Stock have
no preemptive rights. The outstanding shares of Preferred Stock are, and
additional shares of Preferred Stock will be, when issued, fully paid and
nonassessable.
The issuance of Preferred Stock with special voting rights (or Common
Stock) could be used to deter attempts by a single Shareholder or group of
Shareholders to obtain control of the Company in transactions not approved by
the Board of Directors. The Company has no intention to issue the Preferred
Stock (or Common Stock) for such purposes.
12
<PAGE>
OUTSTANDING PREFERRED STOCK
At November 30, 1996, the Company had 11 series of Preferred Stock
outstanding: nine series of senior Preferred Stock (the "Senior Preferred
Stock") and two series of convertible Preferred Stock. In all respects, each of
the series of Senior Preferred Stock ranks on a parity with each other and is
senior to both series of convertible Preferred Stock. Each of the series of
Senior Preferred Stock (i) has a stated value of $25.00 per share or depositary
share, (ii) in preference to the holders of shares of the Common Stock and any
other capital stock ranking junior to the Senior Preferred Stock as to payment
of dividends (including both series of convertible Preferred Stock), provides
for cumulative quarterly dividends calculated as a percentage of the stated
value (ranging from 8.45% to 10% per year in the case of the eight series of
fixed rate Senior Preferred Stock and a rate adjustable quarterly ranging from
6.75% to 10.75% per year in the case of a series of adjustable rate Senior
Preferred Stock) and (iii) is subject to redemption, in whole or in part, at the
option of the Company at a cash redemption price of $25.00 per share or
depositary share, plus accrued and unpaid dividends (on and after June 30, 1999
in the case of the adjustable rate Senior Preferred Stock and on or after
various dates between December 31, 2000 and April 30, 2005 in the case of the
series of fixed rate Senior Preferred Stock).
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each of the series of Senior
Preferred Stock will be entitled to receive out of the Company's assets
available for distribution to shareholders, before any distribution of assets
is made to holders of Common Stock or any other shares of capital stock
ranking as to such distributions junior to the Senior Preferred Stock
(including both series of convertible Preferred Stock), liquidating
distributions in the amount of $25.00 per share or depositary share, plus all
accrued and unpaid dividends.
Except as expressly required by law and in certain other limited
circumstances, the holders of the Senior Preferred Stock are not entitled to
vote. The consent of holders of at least 66 2/3% of the outstanding shares of
the Senior Preferred Stock (and any other series of Preferred Stock ranking on
a parity therewith), voting as a single class, is required to authorize
another class of shares senior to such Preferred Stock.
In all respects, each of the series of convertible Preferred Stock ranks on
a parity with each other and is senior to the Common Stock. One of the series
of the convertible Preferred Stock (i) has a stated value of $25.00 per share,
(ii) in preference to the holders of shares of the Common Stock and any other
capital stock ranking junior to the convertible Preferred Stock as to payment
of dividends, provides for cumulative quarterly dividends at an annual rate of
8.25% of the stated value thereof, (iii) is convertible at the option of the
holder at any time into Common Stock at a conversion price of 1.6835 shares of
Common Stock for each share of such convertible Preferred Stock (subject to
adjustment in certain circumstances) and (iv) after July 1, 1998, under
certain circumstances, is redeemable for Common Stock at the option of the
Company, in whole or in part, at a redemption price of 1.6835 shares of Common
Stock for each share of such convertible Preferred Stock (subject to
adjustment in certain circumstances).
The other series of convertible Preferred Stock (i) has no stated value,
(ii) in preference to the holders of shares of the Common Stock and any other
capital stock ranking junior to the convertible preferred stock as to payment of
dividends, provides for dividends of $1,916,038 per quarter, (iii) is
convertible at the option of the holder at any time into Common Stock at a
conversion price of 35.014 shares of PSI Common Stock for each share of such
convertible preferred stock (subject to adjustment under certain circumstances)
and (iv) on March 31, 2000 will be automatically converted into Common Stock at
the conversion price described above.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of the convertible Preferred Stock will
be entitled to receive out of the Company's assets available for distribution
to shareholders, before any distribution of assets is made to holders of Common
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Stock or any other shares of capital stock ranking as to such distributions
junior to the convertible Preferred Stock, liquidating distributions (i) in the
amount of $25.00 per share, plus all accrued and unpaid dividends, in the case
of one of the series of convertible Preferred Stock and (ii) a minimum
liquidation preference of $58,955,000, plus all accrued and unpaid dividends,
in the case of the other series of convertible Preferred Stock.
Except as expressly required by law and in certain other limited
circumstances, the holders of the convertible Preferred Stock are not entitled
to vote. The consent of holders of at least 66 2/3% of the outstanding shares
of one of the series of convertible Preferred Stock and at least 50% of the
outstanding shares of the other series is required to authorize another class
of shares senior to the convertible Preferred Stock and junior to the Senior
Preferred Stock.
OWNERSHIP LIMITATIONS
For a discussion of the ownership limitations that apply to Preferred
Stock, see "Description of Common Stock and Class B Common Stock--Ownership
Limitations."
FUTURE SERIES OF PREFERRED STOCK
The following description of Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Articles of Incorporation (including the applicable
form of Certificate of Determination) and Bylaws.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including, where applicable, the
following: (1) the title and stated value of such Preferred Stock; (2) the
number of shares of such Preferred Stock offered, the liquidation preference
per share and the offering price of such Preferred Stock; (3) the dividend
rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof
applicable to such Preferred Stock; (4) the date from which dividends on such
Preferred Stock shall accumulate, if applicable; (5) the provision for a
sinking fund, if any, for such Preferred Stock; (6) the provision for
redemption, if applicable, of such Preferred Stock; (7) any listing of such
Preferred Stock on any securities exchange; (8) the terms and conditions, if
applicable, upon which such Preferred Stock will be convertible into Common
Stock, including the conversion price (or manner of calculation thereof); (9)
the voting rights, if any, of such Preferred Stock; (10) any other specific
terms, preferences, rights, limitations or restrictions of such Preferred
Stock; (11) the relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; and (12) any limitations on issuance of any series of
Preferred Stock ranking senior to or on a parity with such series of Preferred
Stock as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company.
Ranking. The ranking of the Preferred Stock is set forth in the applicable
Prospectus Supplement. Unless otherwise specified in the applicable Prospectus
Supplement, such Preferred Stock will, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the affairs of the
Company, rank (i) senior to the Common Stock, any additional class of common
stock and any series of Preferred Stock expressly made junior to such Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the affairs of the Company; (ii) on a parity with all Preferred
Stock previously issued by the Company the terms of which specifically provide
that such Preferred Stock rank on a parity with the Preferred Stock offered
hereby with respect to dividend rights or rights upon liquidation, dissolution
or winding up of the Company; and (iii) junior to all Preferred Stock previously
issued by the Company the terms of which specifically provide that such
Preferred Stock rank senior to the Preferred Stock offered hereby with respect
to dividend rights or rights upon liquidation, dissolution or winding up of the
Company.
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Dividends. Holders of shares of the Preferred Stock of each series offered
hereby shall be entitled to receive, when, as and if declared by the Board of
Directors, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the
applicable Prospectus Supplement. Each such dividend shall be payable to
holders of record as they appear on the stock transfer books of the Company on
such record dates as shall be fixed by the Board of Directors.
Dividends on any series of the Preferred Stock offered hereby may be
cumulative or non-cumulative, as provided in the applicable Prospectus
Supplement. Dividends, if cumulative, will be cumulative from and after the
date set forth in the applicable Prospectus Supplement. If the Board of
Directors fails to declare a dividend payable on a dividend payment date on any
series of the Preferred Stock for which dividends are noncumulative, then the
holders of such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Company will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared payable on
any future dividend payment date.
No dividends (other than in Common Stock or other capital stock ranking
junior to the Preferred Stock of any series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment, nor shall any
other distribution be declared or made upon the Common Stock, or any other
capital stock of the Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation, nor shall
any Common Stock or any other capital stock of the Company ranking junior to or
on a parity with the Preferred Stock of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for other capital stock of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation) unless (i) if such series of Preferred Stock has a cumulative
dividend, full cumulative dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividend
periods and the then current dividend period and (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends on the
Preferred Stock of such series have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period.
Any dividend payment made on shares of a series of Cumulative Preferred Stock
offered hereby shall first be credited against the earliest accrued but unpaid
dividend due with respect to shares of such series which remains payable.
Redemption. If so provided in the applicable Prospectus Supplement, the
shares of Preferred Stock will be subject to mandatory redemption or redemption
at the option of the Company, in whole or in part, in each case upon the terms,
at the times and at the redemption prices set forth in such Prospectus
Supplement.
The Prospectus Supplement relating to a series of Preferred Stock offered
hereby that is subject to mandatory redemption will specify the number of
shares of such Preferred Stock that shall be redeemed by the Company in each
year commencing after a date to be specified, at a redemption price per share
to be specified, together with an amount equal to all accrued and unpaid
dividends thereon (which shall not, if such Preferred Stock does not have a
cumulative dividend, include any accumulation in respect of unpaid dividends
for prior dividend periods) to the date of redemption. The redemption price may
be payable in cash, securities or other property, as specified in the
applicable Prospectus Supplement.
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<PAGE>
Notwithstanding the foregoing, no shares of any series of Preferred Stock
offered hereby shall be redeemed and the Company shall not purchase or
otherwise acquire directly or indirectly any shares of Preferred Stock of such
series (except by conversion into or exchange for capital stock of the Company
ranking junior to the Preferred Stock of such series as to dividends and upon
liquidation) unless all outstanding shares of Preferred Stock of such series
are simultaneously redeemed unless, in each case, (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends on the
Preferred Stock of such series shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current dividend
period and (ii) if such series of Preferred Stock does not have a cumulative
dividend, full dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of Preferred Stock of such series pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding shares
of Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any series
offered hereby are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held by such holders (with adjustments to avoid redemption of fractional
shares) or any other equitable method determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the stock transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Stock are to be surrendered for payment of the redemption price;(v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
if any, as to such shares shall terminate. If fewer than all the shares of
Preferred Stock of any series are to be redeemed, the notice mailed to each
such holder thereof shall also specify the number of shares of Preferred Stock
to be redeemed from each such holder and, upon redemption, a new certificate
shall be issued representing the unredeemed shares without cost to the holder
thereof. In order to facilitate the redemption of shares of Preferred Stock,
the Board of Directors may fix a record date for the determination of shares of
Preferred Stock to be redeemed, such record date to be not less than 30 or more
than 60 days prior to the date fixed for such redemption.
Notice having been given as provided above, from and after the date specified
therein as the date of redemption, unless the Company defaults in providing
funds for the payment of the redemption price on such date, all dividends on
the Preferred Stock called for redemption will cease. From and after the
redemption date, unless the Company so defaults, all rights of the holders of
the Preferred Stock as shareholders of the Company, except the right to receive
the redemption price (but without interest), will cease.
Subject to applicable law and the limitation on purchases when dividends on
Preferred Stock are in arrears, the Company may, at any time and from time to
time, purchase any shares of Preferred Stock in the open market, by tender or
by private agreement.
Liquidation Preference. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, then, before any
distribution or payment shall be made to the holders of any Common Stock or any
other class or series of capital stock of the Company ranking junior to any
series of the Preferred Stock in the distribution of assets upon any
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liquidation, dissolution or winding up of the Company, the holders of such
series of Preferred Stock shall be entitled to receive out of assets of the
Company legally available for distribution to stockholders liquidating
distributions in the amount of the liquidation preference per share (set forth
in the applicable Prospectus Supplement), plus an amount equal to all dividends
accrued and unpaid thereon (which shall not include any accumulation in respect
of unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend). After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Preferred Stock will
have no right or claim to any of the remaining assets of the Company. In the
event that, upon any such voluntary or involuntary liquidation, dissolution or
winding up, the legally available assets of the Company are insufficient to pay
the amount of the liquidating distributions on all outstanding shares of any
series of Preferred Stock and the corresponding amounts payable on all shares of
other classes or series of capital stock of the Company ranking on a parity with
the Preferred Stock in the distribution of assets upon liquidation, dissolution
or winding up, then the holders of such series of Preferred Stock and all other
such classes or series of capital stock shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
such series of Preferred Stock upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares. For such purposes, the consolidation or
merger of the Company with or into any other corporation, or the sale, lease,
transfer or conveyance of all or substantially all of the property or business
of the Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
Voting Rights. Holders of the Preferred Stock offered hereby will not have
any voting rights, except as set forth below or as otherwise expressly required
by law or as indicated in the applicable Prospectus Supplement.
If the equivalent of six quarterly dividends payable on any series of
Preferred Stock are in default (whether or not declared or consecutive), the
holders of all such series of Preferred Stock, voting as a single class with
all other series of Preferred Stock upon which similar voting rights have been
conferred and are exercisable, will be entitled to elect two additional
directors until all dividends in default have been paid or declared and set
apart for payment.
Such right to vote separately to elect directors shall, when vested, be
subject, always, to the same provisions for vesting of such right to elect
directors separately in the case of future dividend defaults. At any time when
such right to elect directors separately shall have so vested, the Company may,
and upon the written request of the holders of record of not less than 20% of
the total number of preferred shares of the Company then outstanding shall,
call a special meeting of Shareholders for the election of directors. In the
case of such a written request, such special meeting shall be held within 90
days after the delivery of such request and, in either case, at the place and
upon the notice provided by law and in the Bylaws, provided that the Company
shall not be required to call such a special meeting if such request is
received less than 120 days before the date fixed for the next ensuing annual
meeting of Shareholders, and the holders of all classes of outstanding
preferred stock are offered the opportunity to elect such directors (or fill
any vacancy) at such annual meeting of shareholders. Directors so elected shall
serve until the next annual meeting of Shareholders or until their respective
successors are elected and qualify. If, prior to the end of the term of any
director so elected, a vacancy in the office of such director shall occur,
during the continuance of a default by reason of death, resignation, or
disability, such vacancy shall be filled for the unexpired term of such former
director by the appointment of a new director by the remaining director or
directors so elected.
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The affirmative vote or consent of the holders of at least a majority of the
outstanding shares of each series of Preferred Stock will be required to amend
or repeal any provision of or add any provision to, the Articles of
Incorporation, including the Certificate of Determination, if such action would
materially and adversely alter or change the rights, preferences or privileges
of such series of Preferred Stock.
No consent or approval of the holders of any series of Preferred Stock
offered hereby will be required for the issuance from the Company's authorized
but unissued Preferred Stock of other shares of any series of Preferred Stock
ranking on a parity with or junior to such series of Preferred Stock, or senior
to a series of Preferred Stock expressly made junior to other series of
Preferred Stock as to payment of dividends and distribution of assets,
including other shares of such series of Preferred Stock.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
Conversion Rights. The terms and conditions, if any, upon which shares of any
series of Preferred Stock offered hereby are convertible into Common Stock will
be set forth in the applicable Prospectus Supplement relating thereto. Such
terms will include the number of shares of Common Stock into which the Preferred
Stock is convertible, the conversion price (or manner of calculation thereof),
the conversion period, provisions as to whether conversion will be at the option
of the Company or the holders of the Preferred Stock or automatically upon the
occurrence of certain events, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such Preferred Stock.
DESCRIPTION OF THE DEPOSITARY SHARES
The Company may, at its option, elect to offer Depositary Shares rather than
full shares of Preferred Stock. In the event such option is exercised, each of
the Depositary Shares will represent ownership of and entitlement to all rights
and preferences of a fraction of a share of Preferred Stock of a specified
series (including dividend, voting, redemption and liquidation rights). The
applicable fraction will be specified in the Prospectus Supplement. The shares
of Preferred Stock represented by the Depositary Shares will be deposited with
a Depositary (the "Depositary") named in the applicable Prospectus Supplement,
under a Deposit Agreement (the "Deposit Agreement"), among the Company, the
Depositary and the holders of the Depositary Receipts. Certificates evidencing
Depositary Shares ("Depositary Receipts") will be delivered to those persons
purchasing Depositary Shares in the offering. The Depositary will be the
transfer agent, registrar and dividend disbursing agent for the Depositary
Shares. Holders of Depositary Receipts agree to be bound by the Deposit
Agreement, which requires holders to take certain actions such as filing proof
of residence and paying certain charges.
The summary of terms of the Depositary Shares contained in this Prospectus
does not purport to be complete and is subject to, and qualified in its
entirety by, the provisions of the Deposit Agreement, the Articles of
Incorporation and the form of Certificate of Determination for the applicable
series of Preferred Stock.
DIVIDENDS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the series of Preferred Stock represented by the
Depositary Shares to the record holders of Depositary Receipts in proportion to
the number of Depositary Shares owned by such holders on the relevant record
date, which will be the same date as the record date fixed by the Company for
the applicable series of Preferred Stock. The Depositary, however, will
distribute only such amount as can be distributed without attributing to any
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Depositary Share a fraction of one cent, and any balance not so distributed
will be added to and treated as part of the next sum received by the Depositary
for distribution to record holders of Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Receipts
entitled thereto, in proportion, as nearly as may be practicable, to the number
of Depositary Shares owned by such holders on the relevant record date, unless
the Depositary determines (after consultation with the Company) that it is not
feasible to make such distribution, in which case the Depositary may (with the
approval of the Company) adopt any other method for such distribution as it
deems equitable and appropriate, including the sale of such property (at such
place or places and upon such terms as it may deem equitable and appropriate)
and distribution of the net proceeds from such sale to such holders.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the affairs of
the Company, whether voluntary or involuntary, the holders of each Depositary
Share will be entitled to the fraction of the liquidation preference accorded
each share of the applicable series of Preferred Stock, as set forth in the
Prospectus Supplement.
REDEMPTION
If the series of Preferred Stock represented by the applicable series of
Depositary Shares is redeemable, such Depositary Shares will be redeemed from
the proceeds received by the Depositary resulting from the redemption, in whole
or in part, of Preferred Stock held by the Depositary. Whenever the Company
redeems any Preferred Stock held by the Depositary, the Depositary will redeem
as of the same redemption date the number of Depositary Shares representing the
Preferred Stock so redeemed. The Depositary will mail the notice of redemption
promptly upon receipt of such notice from the Company and not less than 30 nor
more than 60 days prior to the date fixed for redemption of the Preferred Stock
and the Depositary Shares to the record holders of the Depositary Receipts.
VOTING
Promptly upon receipt of notice of any meeting at which the holders of the
series of Preferred Stock represented by the applicable series of Depositary
Shares are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Receipts as
of the record date for such meeting. Each such record holder of Depositary
Receipts will be entitled to instruct the Depositary as to the exercise of the
voting rights pertaining to the number of shares of Preferred Stock represented
by such record holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote such Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from
voting any of the Preferred Stock to the extent that it does not receive
specific instructions from the holders of Depositary Receipts.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the principal office of the
Depositary, upon payment of any unpaid amount due the Depositary, and subject
to the terms of the Deposit Agreement, the owner of the Depositary Shares
evidenced thereby is entitled to delivery of the number of whole shares of
Preferred Stock and all money and other property, if any, represented by such
Depositary Shares. Partial shares of Preferred Stock will not be issued. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares. Holders of Preferred Stock thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or to
receive Depositary Receipts evidencing Depositary Shares therefor.
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AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary. However, any
amendment which materially and adversely alters the rights of the holders
(other than any change in fees) of Depositary Shares will not be effective
unless such amendment has been approved by at least a majority of the
Depositary Shares then outstanding. No such amendment may impair the right,
subject to the terms of the Deposit Agreement, of any owner of any Depositary
Shares to surrender the Depositary Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the Preferred Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law. The Deposit Agreement may
be terminated by the Company or the Depositary only if (i) all outstanding
Depositary Shares have been redeemed or (ii) there has been a final distribution
in respect of the Preferred Stock in connection with any dissolution of the
Company and such distribution has been made to all the holders of Depositary
Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Preferred Stock and the initial issuance of the Depositary Shares, and
redemption of the Preferred Stock and all withdrawals of Preferred Stock by
owners of Depositary Shares. Holders of Depositary Receipts will pay transfer,
income and other taxes and governmental charges and certain other charges as
are provided in the Deposit Agreement to be for their accounts. In certain
circumstances, the Depositary may refuse to transfer Depositary Shares, may
withhold dividends and distributions and sell the Depositary Shares evidenced
by such Depositary Receipt if such charges are not paid.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of the
Preferred Stock. In addition, the Depositary will make available for inspection
by holders of Depositary Receipts at the principal office of the Depositary, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Preferred Stock.
Neither the Depositary nor the Company assumes any obligation or will be
subject to any liability under the Deposit Agreement to holders of Depositary
Receipts other than for its negligence or willful misconduct. Neither the
Depositary nor the Company will be liable if the Depositary is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder, and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. The Company and the Depositary
may rely on written advice of counsel or accountants, on information provided by
holders of Depositary Receipts or other persons believed in good faith to be
competent to give such information and on documents believed to be genuine and
to have been signed or presented by the proper party or parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
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Depositary must be appointed within 60 days after delivery of the notice for
resignation or removal and must be a bank or trust company having its principal
office in the United States of America and having a combined capital and surplus
of at least $150,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the Depositary Shares will be treated for Federal income tax
purposes as if they were owners of the Preferred Stock represented by such
Depositary Shares. Accordingly, such owners will be entitled to take into
account, for Federal income tax purposes, income and deductions to which they
would be entitled if they were holders of such Preferred Stock. In addition,
(i) no gain or loss will be recognized for Federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares, (ii) the tax
basis of each share of Preferred Stock to an exchanging owner of Depositary
Shares will, upon such exchange, be the same as the aggregate tax basis of the
Depositary Shares exchanged therefor, and (iii) the holding period for Preferred
Stock in the hands of an exchanging owner of Depositary Shares will include the
period during which such person owned such Depositary Shares.
DESCRIPTION OF EQUITY STOCK
The Company is authorized to issue 200,000,000 shares of Equity Stock. At
November 30, 1996, the Company had no outstanding shares of Equity Stock. The
Articles of Incorporation provide that the Equity Stock may be issued from time
to time in one or more series and give the Board of Directors broad authority to
fix the dividend and distribution rights, conversion and voting rights,
redemption provisions and liquidation rights of each series of Equity Stock.
Holders of Equity Stock have no preemptive rights. The shares of Equity Stock
will be, when issued, fully paid and nonassessable.
The issuance of Equity Stock with special voting rights (or Common Stock)
could be used to deter attempts by a single Shareholder or group of Shareholders
to obtain control of the Company in transactions not approved by the Board of
Directors. The Company has no intention to issue the Equity Stock (or Common
Stock) for such purposes.
TERMS OF EQUITY STOCK
The following description of Equity Stock sets forth certain general terms
and provisions of the Equity Stock to which any Prospectus Supplement may
relate. The statements below describing the Equity Stock are in all respects
subject to and qualified in their entirety by reference to the applicable
provisions of the Articles of Incorporation (including the applicable form of
Certificate of Determination) and Bylaws.
Reference is made to the Prospectus Supplement relating to the Equity Stock
offered thereby for specific terms, including, where applicable, the following:
(1) the designation of such Equity Stock; (2) the number of shares of such
Equity Stock offered, the liquidation rights and the offering price of such
Equity Stock; (3) the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Equity Stock; (4) the
provision for redemption, if applicable, of such Equity Stock; (5) any listing
of such Equity Stock on any securities exchange; (6) the terms and conditions,
if applicable, upon which such Equity Stock will be convertible into Common
Stock, including the conversion price (or manner of calculation thereof); (7)
the voting rights, if any, of such Equity Stock; (8) the ownership limitations
that apply to the Equity Stock; (9) any other specific terms, rights,
limitations or restrictions of such Equity Stock; and (10) the relative ranking
of such Equity Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company.
Ranking. The ranking of the Equity Stock is set forth in the applicable
Prospectus Supplement. Unless otherwise specified in the applicable Prospectus
Supplement, such Equity Stock will, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the affairs of the Company, rank
on a parity with the Common Stock.
Dividends. Holders of shares of the Equity Stock of each series offered
hereby shall be entitled to receive, when, as and if declared by the Board of
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Directors, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the applicable
Prospectus Supplement. Each such dividend shall be payable to holders of record
as they appear on the stock transfer books of the Company on such record dates
as shall be fixed by the Board of Directors. Unless otherwise specified in the
applicable Prospectus Supplement, dividends on such Equity Stock will be non-
cumulative.
Redemption. If so provided in the applicable Prospectus Supplement, the
shares of Equity Stock will be subject to mandatory redemption or redemption at
the option of the Company, in whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Equity Stock offered
hereby that is subject to mandatory redemption will specify the number of shares
of such Equity Stock that shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to all accrued and unpaid dividends
thereon (which shall not, if such Equity Stock does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be payable
in cash, securities or other property, as specified in the applicable Prospectus
Supplement.
If fewer than all of the outstanding shares of Equity Stock of any series
offered hereby are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
by such holders (with adjustments to avoid redemption of fractional shares) or
any other equitable method determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Equity Stock of any
series to be redeemed at the address shown on the stock transfer books of the
Company. Each notice shall state: (i) the redemption date; (ii) the number of
shares and series of the Equity Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Equity Stock are to
be surrendered for payment of the redemption price;(v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi) the
date upon which the holder's conversion rights, if any, as to such shares shall
terminate. If fewer than all the shares of Equity Stock of any series are to be
redeemed, the notice mailed to each such holder thereof shall also specify the
number of shares of Equity Stock to be redeemed from each such holder and, upon
redemption, a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof. In order to facilitate the redemption of
shares of Equity Stock, the Board of Directors may fix a record date for the
determination of shares of Equity Stock to be redeemed, such record date to be
not less than 30 or more than 60 days prior to the date fixed for such
redemption.
Notice having been given as provided above, from and after the date
specified therein as the date of redemption, unless the Company defaults in
providing funds for the payment of the redemption price on such date, all
dividends on the Equity Stock called for redemption will cease. From and after
the redemption date, unless the Company so defaults, all rights of the holders
of the Equity Stock as shareholders of the Company, except the right to receive
the redemption price (but without interest), will cease.
Liquidation Rights. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, then, before any
distribution or payment shall be made to the holders of the Equity Stock or any
other class or series of capital stock of the Company ranking junior to any
series of the Preferred Stock in the distribution of assets upon any
liquidation, dissolution or winding up of the Company, the holders of such
series of Preferred Stock shall be entitled to receive out of assets of the
Company legally available for distribution to stockholders liquidating
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distributions in the amount of the liquidation preference per share, plus an
amount equal to all dividends accrued and unpaid thereon (which shall not
include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend). After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no right or claim to any of
the remaining assets of the Company. In the event that, upon any such voluntary
or involuntary liquidation, dissolution or winding up, the legally available
assets of the Company are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of any series of Preferred Stock and the
corresponding amounts payable on all shares of other classes or series of
capital stock of the Company ranking on a parity with the Preferred Stock in the
distribution of assets upon liquidation, dissolution or winding up, then the
holders of such series of Preferred Stock and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
such series of Preferred Stock upon liquidation, dissolution or winding up,
including the Equity Stock, according to their respective rights and in each
case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, or
the sale, lease, transfer or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
Unless otherwise specified in the applicable Prospectus Supplement, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Company, holders of the Equity Stock will rank on a parity with
the holders of the Common Stock, subject to any maximum or minimum distribution
to holders of Equity Stock specified in such Prospectus Supplement.
Voting Rights. Unless otherwise specified in the applicable Prospectus
Supplement, holders of the Equity Stock will have the same voting rights as
holders of the Common Stock.
No consent or approval of the holders of any series of Equity Stock will be
required for the issuance from the Company's authorized but unissued Equity
Stock of other shares of any series of Equity Stock including shares of such
series of Equity Stock.
Conversion Rights. The terms and conditions, if any, upon which shares of
any series of Equity Stock offered hereby are convertible into Common Stock will
be set forth in the applicable Prospectus Supplement relating thereto. Such
terms will include the number of shares of Common Stock into which the Equity
Stock is convertible, the conversion price (or manner of calculation thereof),
the conversion period, provisions as to whether conversion will be at the option
of the Company or the holders of the Equity Stock or automatically upon the
occurrence of certain events, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such Equity Stock.
DESCRIPTION OF WARRANTS
The Company has no Warrants outstanding (other than options issued under
the Company's stock option plans). The Company may issue Warrants for the
purchase of Preferred Stock, Equity Stock or Common Stock. Warrants may be
issued independently or together with any other Securities offered by any
Prospectus Supplement and may be attached to or separate from such Securities.
Each series of Warrants will be issued under a separate warrant agreement (each,
a "Warrant Agreement") to be entered into between the Company and a warrant
agent specified in the applicable Prospectus Supplement (the "Warrant Agent").
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The Warrant Agent will act solely as an agent of the Company in connection with
the Warrants of such series and will not assume any obligation or relationship
of agency or trust for or with any holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable Warrant
Agreement will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (1) the title of such Warrants; (2) the
aggregate number of such Warrants; (3) the price or prices at which such
Warrants will be issued; (4) the designation, number and terms of the shares of
Preferred Stock, Equity Stock or Common Stock purchasable upon exercise of such
Warrants; (5) the designation and terms of the other Securities, if any, with
which such Warrants are issued and the number of such Warrants issued with each
such Security; (6) the date, if any, on and after which such Warrants and the
related Preferred Stock, Equity Stock or Common Stock, if any, will be
separately transferable; (7) the price at which each share of Preferred Stock,
Equity Stock or Common Stock purchasable upon exercise of such Warrants may be
purchased; (8) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire; (9) the minimum or
maximum amount of such Warrants which may be exercised at any one time; and (10)
any other terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain federal income tax considerations to the
Company is based on current law, is for general information only, and is not
tax advice. The tax treatment of a holder of any of the Securities will vary
depending upon the terms of the specific securities acquired by such holder, as
well as his or her particular situation, and this discussion does not attempt
to address any aspects of federal income taxation relating to holders of
Securities, except as discussed under "--Taxation of Shareholders." Certain
federal income tax considerations relevant to holders of the Securities may be
provided in the applicable Prospectus Supplement relating thereto.
EACH PROSPECTIVE INVESTOR IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS
SUPPLEMENT, AS WELL AS HIS OR HER TAX ADVISOR, REGARDING THE TAX CONSEQUENCES TO
HIM OR HER OF THE ACQUISITION, OWNERSHIP AND SALE OF THE SECURITIES, INCLUDING
THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH
ACQUISITION, OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAX TREATMENT OF THE COMPANY
If certain detailed conditions imposed by the Code and the related Treasury
regulations are met, an entity, such as the Company, that invests principally
in real estate and that otherwise would be taxed as a corporation may elect to
be treated as a REIT. The most important consequence to the Company of being
treated as a REIT for federal income tax purposes is that this enables the
Company to deduct dividend distributions to its shareholders, thus effectively
eliminating the "double taxation" (at the corporate and shareholder levels)
that typically results when a corporation earns income and distributes that
income to shareholders in the form of dividends.
The Company has made an election to be taxed as a REIT under Sections 856
through 860 of the Code, beginning with its fiscal year ending December 31,
1981. That election will continue in effect until it is revoked or terminated.
The Company believes that it has qualified during each of the fiscal years for
which such an election has been in effect, and currently qualifies as a REIT,
and the Company expects to continue to be taxed as a REIT for federal income tax
purposes. While the Company intends to operate so that it will continue to
qualify as a REIT, given the highly complex nature of the rules governing REITs,
the ongoing importance of factual determinations, and the possibility of future
changes in the circumstances of the Company, no assurance can be given by the
Company that the Company will qualify as a REIT in any particular year.
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Technical Requirements for Taxation as a REIT. The following is a very
brief overview of certain of the technical requirements that the Company must
meet on an ongoing basis in order to continue to qualify as a REIT. This summary
is qualified in its entirety by the applicable Code provisions, Treasury
regulations and administrative and judicial interpretations thereof.
1. The capital stock must be widely-held and not more than 50% of the value
of the capital stock may be held by five or fewer individuals (determined after
giving effect to various ownership attribution rules). See "--Consequences of
Merger on the Company's Qualification as a REIT--Violation of Ownership
Requirements."
2. The Company's gross income must meet three income tests:
(a) at least 75% of the gross income must be derived from specified real
estate sources (including "rents from real property" and, in certain
circumstances, interest);
(b) at least 95% of the gross income must be from the real estate
sources includable in the 75% income test, and/or from dividends, interest, or
gains from the sale or disposition of stock or securities not held for sale in
the ordinary course of business; and
(c) less than 30% of the gross income may be derived from the sale of
real estate assets held for less than four years, from the sale of certain
"dealer" property, or from the sale of stock or securities held for less
than one year.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements described above only if several
conditions are met. First, the amount of rent must not be based in whole or in
part on the income or profits of any person. However, an amount received or
accrued generally will not be excluded from the term "rents from real property"
solely by reason of being based on a fixed percentage or percentages of
receipts of sales. The Company anticipates that none of its gross annual income
will be attributable to rents that are based in whole or in part on the income
of any person (excluding rents based on a percentage of receipts or sales,
which, as described above, are permitted). Second, the Code provides that rents
received from a tenant will not qualify as "rents from real property" if the
Company, or an owner of 10% or more of the Company, directly or constructively
owns 10% or more of such tenant (a "Related Party Tenant"). The Company does
not anticipate that it will receive income from Related Party Tenants. Third,
if rent attributable to personal property, leased in connection with a lease of
real property, is greater than 15% of the total rent received under the lease,
then the portion of rent attributable to such personal property will not
qualify as "rents from real property." The Company does not anticipate deriving
rent attributable to personal property leased in connection with real property
that exceeds 15% of the total rents. Finally, for rents received to qualify as
"rents from real property," the Company generally must not operate or manage
the property or furnish or render services to tenants, other than through an
"independent contractor" which is adequately compensated and from whom the
Company derives no revenue. The "independent contractor" requirement, however,
does not apply to the extent the services provided by the Company are "usually
or customarily rendered" in connection with the rental of space for occupancy
only and are not otherwise considered "rendered to the occupant." Any services
with respect to certain Properties that the Company believes may not be
provided by the Company directly without jeopardizing the qualification of rent
as "rents from real property" will be performed by "independent contractors."
See "--Consequences of the Merger on the Company's Qualification as a REIT--
The Company's Assumption of Management Activities With Respect to its
Properties," "--Consequences of the Merger on the Company's Qualification as a
REIT--Nonqualifying Income," and "--Consequences of the Merger on the Company's
Qualification as a REIT--Acquisition of Affiliated Partnership Interests in the
Merger" for a discussion of specific aspects of the Merger that may impact upon
the Company's ability to satisfy the 95% gross income test.
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3. Generally, 75% of the value of the Company's total assets must be
represented by real estate, mortgages secured by real estate, cash, or
government securities (including its allocable share of real estate assets held
by any partnerships in which the Company owns an interest). Not more than 25% of
the Company's total assets may be represented by securities other than those in
the 75% asset class. Of the investments included in the 25% asset class, the
value of any one issuer's securities owned by the Company may not exceed 5% of
the value of the Company's total assets, and the Company may not own more than
10% of any one issuer's outstanding voting securities. The 5% test generally
must be met for any quarter in which the Company acquires securities of an
issuer. The Company believes that it satisfies these tests. In this regard,
however, the 10% voting stock prohibition will preclude the Company from
controlling the operations of PSCP, the Lock/Box Company and PSPUD (in which the
Company owns 95% of the equity in the form of non-voting stock and the Hughes
Family owns 5% of the equity but 100% of the voting stock) or PSCC (in which the
Company owns a less than 10% equity interest) and may preclude the Company from
exercising its rights of first refusal with respect to the corporations owning
the Canadian operations and the reinsurance business.
4. The Company must distribute to its shareholders in each taxable year an
amount at least equal to 95% of the Company's "REIT Taxable Income" (which is
generally equivalent to net taxable ordinary income). Under certain
circumstances, the Company can rectify a failure to meet the 95% distribution
test by paying dividends after the close of a particular taxable year.
In years prior to 1990, the Company made distributions in excess of its REIT
Taxable Income. During 1990, the Company reduced its distribution to its
shareholders.
As a result, distributions paid by the Company in 1990 were less than 95% of the
Company's REIT Taxable Income for 1990. The Company has satisfied the REIT
distribution requirements for 1990 through 1995 by attributing distributions in
1991 through 1996 to the prior year's taxable income, and PSI expects to satisfy
the distribution requirement for 1996 by attributing distributions in 1997 to
the 1996 taxable income. The Company may be required, over each of the next
several years, to make distributions after the close of a taxable year and to
attribute those distributions to the prior year, but shareholders will be
treated for federal income tax purposes as having received such distributions in
the taxable years in which they were actually made. The extent to which the
Company will be required to attribute distributions to the prior year will
depend on the Company's operating results and the level of distributions as
determined by the Board of Directors. Reliance on subsequent year distributions
could cause the Company to be subject to certain penalty taxes. In that regard,
if the Company should fail to distribute during each calendar year at least the
sum of (i) 85% of its REIT ordinary income for such calendar year, (ii) 95% of
its REIT capital gain net income for such calendar year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed during such calendar year (not taking into account
distributions made in subsequent years but attributed to such calendar year).
The Company intends to comply with this 85% distribution requirement in an
effort to minimize any excise tax. Any distributions required to be made by the
Company in order to eliminate any accumulated earnings and profits of PSMI would
not be counted in determining whether the Company satisfies the 95% distribution
test and could adversely impact upon the Company's ability to satisfy the 95%
distribution test. See "--Consequences of the Merger on the Company's
Qualification as a REIT--Elimination of Any Accumulated Earnings and Profits
Attributable to Non-REIT Years."
For purposes of applying the income and asset tests mentioned above, a REIT
is considered to own a proportionate share of the assets of any partnership in
which it holds a partnership interest. See "--Consequences of the Merger on
the Company's Qualification as a REIT--Acquisition of Affiliated Partnership
Interests in the Merger".
Applicable Federal Income Tax. If the Company qualifies for taxation as a
REIT, it generally will not be subject to federal corporate income taxes on
net income that it distributes currently to shareholders. However, the Company
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will be subject to federal income tax in the following circumstances. First,
the Company will be taxed at regular corporate rates on any undistributed REIT
taxable income, including undistributed net capital gains. Second, under
certain circumstances, the Company may be subject to the "alternative minimum
tax" on its items of tax preference. Third, if the Company has (i) net income
from the sale or other disposition of "foreclosure property" (which is, in
general, property acquired by foreclosure or otherwise on default of a lease
or a loan secured by the property) which is held primarily for sale to
customers in the ordinary course of business or (ii) other nonqualifying
income from foreclosure property, it will be subject to tax at the highest
corporate rate on such income. Fourth, if the Company has net income from
prohibited transactions (which are, in general, certain sales or other
dispositions of property (other than foreclosure property) held primarily for
sale to customers in the ordinary course of business), such income will be
subject to a 100% tax. Fifth, if the Company should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed above), and has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on the net income
attributable to the greater of the amount by which the Company fails the 75%
or 95% gross income test.
Under the "Built-in Gain Rules" of IRS Notice 88-19, 1988-1 C.B. 486, the
Company will be subject to a corporate level tax if it disposes of any of the
assets acquired in the Merger at any time during the 10-year period beginning on
the closing date of the Merger (the "Restriction Period"). This tax would be
imposed on the Company at the top regular corporate rate (currently 35%) in
effect at the time of the disposition on the excess of (i) the lesser of (a) the
fair market value at the time of the Merger of the assets disposed of and (b)
the selling price of such assets over (ii) the Company's adjusted basis in such
assets at the time of the Merger (such excess being referred to as the "Built-in
Gain"). The Company currently does not intend to dispose of any of the assets
acquired in the Merger during the Restriction Period, but There can be no
assurance that one or more such dispositions will not occur.
Failure to Qualify as a REIT. For any taxable year that the Company fails to
qualify as a REIT and the relief provisions do not apply, the Company would be
taxed at the regular corporate rates on all of its taxable income, whether or
not it makes any distribution to its shareholders. Those taxes would reduce
the amount of cash available to the Company for distributions to its
shareholders or for reinvestment. As a result, failure of the Company to
qualify during any taxable year as a REIT could have a material adverse effect
upon the Company and its shareholders.
Termination of REIT Election. The Company's election to be treated as a REIT
will terminate automatically if the Company fails to meet the REIT
qualification requirements described above. If a termination (or a voluntary
revocation) occurs, unless certain relief provisions apply, the Company would
not be eligible to elect REIT status again until the fifth taxable year that
begins after the first year for which the Company's election was terminated
(or revoked). If the Company loses its REIT status, but later qualifies and
elects to be taxed as a REIT again, the Company may face significant adverse
tax consequences. Immediately prior to the effectiveness of the election to
return to REIT status, the Company would be treated as if it disposed of all
of its assets in a taxable transaction, triggering taxable gain with respect
to the Company's appreciated assets. (The Company would, however, be permitted
to elect an alternative treatment under which the gains would be taken into
account only as and when they actually are recognized upon sales of the
appreciated property occurring within the 10-year period after return to REIT
status.) The Company would not receive the benefit of a dividends paid
deduction to reduce any such taxable gains. Thus, any such gains on
appreciated assets would be subject to double taxation, at the corporate as
well as the shareholder level.
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CONSEQUENCES OF THE MERGER ON THE COMPANY'S QUALIFICATION AS A REIT
In light of the unique federal income tax requirements applicable to REITs,
the Merger could have adverse consequences on the Company's continued
qualification as a REIT, as discussed in greater detail below. Hogan & Hartson
L.L.P. ("Hogan & Hartson"), counsel to the Company, is of the opinion that the
Company continues to qualify as a REIT following the Merger so long as (A) the
Company has met at all times since the Merger and continues to meet the stock
ownership and gross income requirements applicable to REITs and (B) either PSMI
at the time of (and giving effect to) the Merger was not considered to have any
current or accumulated earnings and profits for tax purposes or the Company made
distributions prior to the end of 1995 in an amount sufficient to eliminate such
earnings and profits. See "--Nonqualifying Income", "--Violation of Ownership
Requirements," and "--Elimination of Any Accumulated Earnings and Profits
Attributable to Non-REIT Years." Hogan & Hartson, however, has not opined that
the Company continues to meet the stock ownership and gross income requirements
applicable to REITs following the Merger or that PSMI did not have current or
accumulated earnings and profits at the time of the Merger, due to the numerous
factual determinations and future events that bear on those conclusions.
Nonqualifying Income. The Company must meet several annual gross income tests
to retain its REIT qualification. See "--Tax Treatment of the Company--
Technical Requirements for Taxation as a REIT." Under the 95% gross income
test, the Company must derive at least 95% of its total gross income from
specified classes of income related to real property, dividends, interest or
gains from the sale or other disposition of stock or other securities that do
not constitute "dealer property." Income related to real property includes: (i)
proceeds from the rental of mini-warehouse facilities; (ii) interest on
obligations secured by mortgages on real property; and (iii) gains from the
sale or other disposition of real property (other than real property held by
the Company as a dealer).
After the Merger, the Company assumed and performs property management
activities for the various partnerships and REITs in which the Company has an
interest that own Properties, as well as for various other entities that own
mini-warehouse properties and/or business parks. The Company will receive
management fees from such partnerships, REITs, and other owners in exchange for
the performance of such management activities. The gross income received by the
Company from these property management activities with respect to Properties
owned by other entities (including the REITs in which the Company has an
ownership interest) and advisory services rendered to such other entities is
treated as income not qualifying under the 95% gross income test ("Nonqualifying
Income"). See "--Acquisition of Affiliated Partnership Interests."
In order to reduce the amount of Nonqualifying Income, in December 1995
certain Properties pre-paid to the Company approximately $4.5 million of
management fees that the Company otherwise would have been expected to receive
for 1996, discounted to compensate for early payment. Pre-payment of management
fees reduced the percentage of Nonqualifying Income received by the Company in
taxable years subsequent to such prepayment. In connection with the Merger,
Hogan & Hartson delivered an opinion that it is more likely than not that the
IRS would respect the inclusion of the prepaid management fees in the gross
income of the Company when they are received. Hogan & Hartson's opinion is based
on numerous cases where courts have upheld the IRS's position that fees should
be included in income when they are received, rather than when the services to
which such fees relate are performed. There are, however, several contrary
authorities where courts, over the IRS's objections, have held that prepaid
amounts are not included in income in advance of performance. Because of these
contrary authorities, there can be no assurance that the IRS might not assert
that such management fees should be included in the gross income of the Company
as the related management services are provided, rather than being included in
the gross income when they are received. If the IRS were to successfully
challenge the treatment of such management fees and the inclusion of such fees
in the Company's gross income resulted in it failing the 95% gross income test
for a taxable year ending after the Merger, the Company's REIT status may
terminate for such year and future years unless it meets the "good cause"
exception described above.
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The Company and the various other owners of mini-warehouses and business parks
for which the Company performs management activities (the "Owners") have entered
into an agreement (the "Administrative and Cost-Sharing Agreement") with PSCC,
Inc. ("PSCC") pursuant to which PSCC provides the Owners and the Company certain
administrative and cost-sharing services in connection with the operation of the
Properties and the performance of certain administrative functions. Each of the
Owners and the Company pay the PSCC directly for services rendered by PSCC in
connection with the Administrative and Cost Sharing Agreement. That payment is
separate from and in addition to the compensation paid to the Company under the
management agreement for the management of the Properties owned by the Owners.
The Company has received a private letter ruling from the IRS to the effect that
the reimbursements and other payments made to PSCC by the Owners will not be
treated as revenues of the Company for purposes of the 95% gross income test.
If the Company fails to meet the 95% gross income test during any taxable
year, its REIT status would terminate for that year and future years unless it
qualifies for the "good cause" exception. In order to qualify for the "good
cause" exception, the Company would have to satisfy each of the following: (i)
it reported the source and nature of each item of its gross income in its
federal income tax return for such year; (ii) the inclusion of any incorrect
information in its return is not due to fraud with intent to evade tax; and
(iii) the failure to meet such test is due to a reasonable cause and not to
willful neglect. The Company intends to conduct its operations and affairs so
that it meets the 95% gross income test for each taxable year. The Company also
intends to operate so that, in the event it were to fail to meet the 95% gross
income test, it would satisfy the "reasonable cause" requirement of the "good
cause" exception because it exercised ordinary business care and prudence in
attempting to satisfy the 95% gross income test (including by receiving
opinions of counsel where appropriate). There can be no assurance, however,
that if the Company were unable to satisfy the 95% gross income test, the IRS
would necessarily agree that the Company had operated in a manner that
qualifies for the "good cause" exception. Furthermore, even if the Company's
REIT status were not terminated because of the "good cause" exception, the
Company still would be subject to an excise tax on any excess nonqualifying
income. Generally, if the Company fails the 95% gross income test but still
retains its qualification as a REIT under the "good cause" exception, it would
be subject to a 100% excise tax on the amount of the excess nonqualifying
income multiplied by a fraction, the numerator of which would be the Company's
taxable income (computed without its distribution deduction) and the
denominator of which would be the Company's gross income from all sources. This
excise tax would have the general effect of causing the Company to pay all net
profits generated from this excess nonqualifying income to the IRS.
Violation of Ownership Requirements. For the Company to qualify as a REIT
under the Code, no more than 50% in value of its outstanding stock may be
owned, directly or constructively under certain attribution rules of the Code,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. Following the Merger, the
value of the outstanding capital stock held by the Hughes Family was estimated
to be approximately 45% and such percentage has been reduced to approximately
36% as of November 30, 1996. In order to assist the Company in meeting these
ownership restrictions, the Articles of Incorporation and Bylaws prohibit the
actual or constructive ownership of more than 2.0% of the outstanding shares of
all common stock of the Company or more than 9.9% of the outstanding shares of
each class or series of shares of preferred stock of the Company. (The Articles
of Incorporation and Bylaws provide, however, that no person is deemed to exceed
this ownership limitation solely by reason of the beneficial ownership of shares
of any class of stock to the extent that such shares of stock were beneficially
owned by such person at the time of the Merger.) However, even with these
ownership limitations, the Company could still be in violation of the ownership
restrictions if four individuals unrelated to the Hughes Family were to own the
maximum amount of capital stock permitted under the Articles of Incorporation
and Bylaws. Therefore, to further assist the Company in meeting the ownership
restrictions, the Hughes Family entered into an agreement with the Company for
the benefit of the Company and certain designated charitable beneficiaries
restricting their acquisition of additional shares of the Company's capital
stock and providing that if, at any time, for any reason, more than 50% in value
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of the Company's outstanding stock otherwise would be considered owned by five
or fewer individuals, then a number of shares of Common Stock of the Company
owned by Wayne Hughes necessary to cure such violation will automatically and
irrevocably be transferred to a designated charitable beneficiary. These
provisions are modeled after certain arrangements that the IRS has ruled in
private letter rulings will preclude a REIT from being considered to violate the
ownership restrictions so long as such arrangements are enforceable as a matter
of state law and the REIT seeks to enforce them as and when necessary. There can
be no assurance, however, that the IRS might not seek to take a different
position with respect to the Company (a private letter ruling is legally binding
only with respect to the taxpayer to whom it was issued) or contend that the
Company failed to enforce these various arrangements and, hence, there can be no
assurance that these arrangements will necessarily preserve the Company's REIT
status. No private letter ruling has been sought by the Company from the IRS
with respect to the effect of these arrangements.
Elimination of Any Accumulated Earnings and Profits Attributable to Non-REIT
Years. A REIT is not allowed to have accumulated earnings and profits
attributable to non-REIT years. A REIT has until the close of its first taxable
year in which it has non-REIT earnings and profits to distribute any such
accumulated earnings and profits. In a corporate reorganization qualifying as a
tax free statutory merger, the acquired corporation's current and accumulated
earnings and profits are carried over to the surviving corporation. Any
earnings and profits treated as having been acquired by a REIT through such a
merger will be treated as accumulated earnings and profits of a REIT
attributable to non- REIT years. Accordingly, any accumulated earnings and
profits of PSMI and its predecessors (including earnings and profits
resulting from transactions undertaken in contemplation of the Merger or from
the Merger itself) carried over to the Company in the Merger and the Company
would have been required to distribute any such accumulated earnings and profits
prior to the close of 1995 (the year in which the Merger occurred). Failure to
do so would result in disqualification of the Company as a REIT (unless the
"deficiency dividend" procedures described below apply and the Company complies
with those procedures).
The amount of the accumulated earnings and profits of PSMI acquired by the
Company is based on the consolidated earnings and profits of PSMI (including
each of its predecessors) through and including the date of the Merger
("Consolidated Accumulated Earnings"). In connection with the Merger, the
Company received a study prepared by PSMI of the earnings and profits of PSMI
and its subsidiaries, taking into account projected income of PSMI and its
predecessors to and including the time of the Merger and distributions to the
PSMI shareholders made at or prior to the time of the Merger, that showed that
PSMI had no Consolidated Accumulated Earnings at the time of the Merger. The
determination of accumulated earnings and profits acquired by the Company in the
Merger ("Acquired Earnings") depends upon a number of factual matters related to
the activities and operations of PSMI and its predecessors during their entire
corporate existence and is subject to review and challenge by the IRS. There can
be no assurance that the IRS will not examine the tax returns of PSMI and its
predecessors for years prior to and including the Merger and propose adjustments
to increase their taxable income. Because the earnings and profits study used to
calculate the amount of Acquired Earnings is based on these returns, any such
adjustments could increase the amount of the Acquired Earnings. In this regard,
the IRS can consider all taxable years of PSMI and its predecessors as open for
review for purposes of determining the amount of earnings and profits.
Although not free from doubt, "deficiency dividend" procedures may be
available for the Company to distribute any Acquired Earnings that were
subsequently determined to exist as a result of an IRS audit. In order to use
this "deficiency dividend" procedure, the Company would have to make an
additional dividend distribution to its shareholders (in addition to
distributions made for purposes of satisfying the normal REIT distribution
requirements), in the form of cash, notes, other property, or stock in a
taxable stock dividend, within 90 days of the IRS determination. In addition,
the Company would have to pay to the IRS an interest charge on 50% of the
Acquired Earnings that were not distributed prior to December 31, 1995, from
the date on which its 1995 tax return was due to the date the IRS determination
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was made. The statute and Treasury regulations related to the application of
the "earnings and profits distribution" requirement to a REIT that acquires a
"non-REIT" in a reorganization and the availability of the "deficiency
dividend" procedure in those circumstances are not entirely clear, and there
can be no assurance that the IRS would not take the position either that the
"deficiency dividend" procedure is not available (in which case, the Company
would cease to qualify as a REIT effective for its taxable year in which the
Merger occurred) or, alternatively, that even if the procedure is available,
the Company cannot qualify as a REIT for the taxable year in which the Merger
occurred (but it could qualify as a REIT for subsequent years).
Acquisition of Affiliated Partnership Interests. The Company has acquired
interests in various partnerships that own and operate Properties in the Merger
and in other transactions. The Company, for purposes of satisfying the REIT
asset and gross income tests, will be treated as if it directly owns a
proportionate share of each of the assets of these partnerships. For these
purposes, under current Treasury regulations the Company's interest in each of
the partnerships must be determined in accordance with its "capital interest" in
such partnership. The character of the various assets in the hands of the
partnership and the items of gross income of the partnership will retain their
same character in the hands of the Company for these purposes. Accordingly, to
the extent the partnership receives real estate rentals and holds real property,
a proportionate share of such qualified income and assets will be treated as
qualified rental income and real estate assets of the Company for purposes of
determining its REIT qualification. The Company expects that substantially all
of the properties of the partnerships will constitute real estate assets and
will generate qualifying rental income for purposes of the REIT gross income
tests.
The acquisition of these partnership interests creates several issues regarding
the Company's satisfaction of the 95% gross income test. First, the Company
earns property management fees from these partnerships. Existing Treasury
regulations do not address the treatment of management fees derived by a REIT
from a partnership in which the REIT holds a partnership interest, but the IRS
has issued a number of private letter rulings holding that the portion of the
management fee that corresponds to the REIT interest in the partnership in
effect is disregarded in applying the 95% gross income test where the REIT holds
a "substantial" interest in the partnership. The Company disregards the portion
of management fees derived from partnerships in which it is a partner that
corresponds to its interest in these partnerships in determining the amount of
its Nonqualifying Income, and the Company's prepayment of management fees set
forth above was computed based upon this approach. There can be no assurance,
however, that the IRS would not take a contrary position with respect to the
Company, either rejecting the approach set forth in the private letter rulings
mentioned above or contending that the Company's situation is distinguishable
from those addressed in the private letter rulings (for example, because the
Company does not have a "substantial" interest in the partnerships).
Second, the Company acquired interests in certain of these partnerships
that entitle the Company to a percentage of profits (either from operations, or
upon a sale, or both) in excess of the percentage of total capital originally
contributed to the partnership with respect to such interest. Existing Treasury
Regulations do not specifically address this situation, and it is uncertain,
based on existing authority, how the Company's "capital interest" in these
partnerships should be determined. This determination is relevant because it
affects both the percentage of the gross rental income of the partnership that
is considered gross rental income (or qualifying income) to the Company and the
percentage of the management fees paid to the Company that are disregarded in
determining the Company's Nonqualifying Income. For example, if the Company
takes the position that it has a 25% "capital interest" in a partnership
(because it would receive 25% of the partnership's assets upon a sale and
liquidation) but the IRS determines it only has a 1% "capital interest"
(because the original holder of the Company's interest only contributed 1% of
the total capital contributed to the partnership), the Company's share of the
qualifying income from the partnership would be reduced and the portion of the
management fee from the partnership that would be treated as Nonqualifying
Income would be increased, thereby adversely affecting the Company's ability to
satisfy the 95% gross income test.
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In determining its "capital interest" in the various partnerships in which the
Company acquired an interest in the Merger, the Company determines the
percentage of the partnership's assets that would be distributed to it if those
assets were sold and distributed among the partners in accordance with the
applicable provisions of the partnership agreements. There can be no assurance,
however, that the IRS will agree with this methodology and not contend that
another, perhaps less favorable, method must be used for purposes of
determining the Company "capital interests." If that were to occur, it could
adversely affect the Company's ability to satisfy the 95% gross income test
following the Merger.
TAXATION OF HOLDERS OF COMMON STOCK
Taxation of Taxable Domestic Shareholders. As long as the Company qualifies as
a REIT, distributions made to the Company's taxable domestic shareholders will
generally be taxable to Shareholders as ordinary income to the extent of the
Company's earnings and profits. For this purpose, earnings and profits of the
Company will first be allocated to distributions paid on preferred stock until
an amount equal to such distributions has been allocated thereto. As a result,
it is likely that any distributions paid on preferred stock will be taxable in
full as dividends to the holders of preferred stock. Dividends declared during
the last quarter of a calendar year and actually paid during January of the
immediately following calendar year generally are treated as if received by the
shareholders on December 31 of the calendar year during which they were
declared. Distributions paid to Shareholders will not constitute passive
activity income and as a result, generally cannot be offset by losses from
passive activities of Shareholders subject to the passive activity rules.
Distributions designated by the Company as capital gain dividends generally will
be taxed as long-term capital gain to Shareholders, to the extent that the
distributions do not exceed the Company's actual net capital gain for the
taxable year. Corporate Shareholders may be required to treat up to 20% of any
such capital gain dividends as ordinary income. Distributions by the Company,
whether characterized as ordinary income or as capital gain, are not eligible
for the 70% dividends received deduction for corporations. If the Company should
realize a loss, Shareholders will not be permitted to deduct any share of that
loss. Future regulations may require that Shareholders take into account, for
purposes of computing their individual alternative minimum tax liability,
certain tax preference items of the Company.
The Company may distribute cash in excess of its net taxable income. Upon
distribution of such cash by the Company to Shareholders (other than as a
capital gain dividend), if all of the Company's current and accumulated
earnings and profits have been distributed, the excess cash will be deemed to
be a non-taxable return of capital to each Shareholder to the extent of the
adjusted tax basis of the Shareholder's capital stock. Distributions in excess
of the adjusted tax basis will be treated as gain from the sale or exchange of
the capital stock. A Shareholder who has received a distribution in excess of
current and accumulated earnings and profits of the Company may, upon the sale
of the capital stock, realize a higher taxable gain or a smaller loss because
the basis of the Common Stock as reduced will be used for purposes of computing
the amount of the gain or loss. Generally, gain or loss realized by a
Shareholder upon the sale of capital stock will be reportable as capital gain
or loss. If a Shareholder receives a long-term capital gain dividend from the
Company and has held the capital stock for six months or less, any loss
incurred on the sale or exchange of the capital stock is treated as a long-term
capital loss, to the extent of the corresponding long-term capital gain
dividend received.
If a Shareholder is subject to "backup withholding," the Company will be
required to deduct and withhold from any dividends payable to such Shareholder
a tax of 31%. These rules may apply when a Shareholder fails to supply a
correct taxpayer identification number, or when the IRS notifies the Company
that a Shareholder is subject to the rules or has furnished an incorrect
taxpayer identification number. The Treasury Department has recently issued
proposed regulations regarding the withholding and information reporting rules
discussed above. In general, the proposed regulations do not alter the
substantive withholding and information reporting requirements but unify current
32
<PAGE>
clarification procedures and forms and clarify and modify reliance standards. If
finalized in their current form, the proposed regulations would generally be
effective for payments made after December 31, 1997, subject to certain
transition rules.
The Company is required to demand annual written statements from the record
holders of designated percentages of its capital stock disclosing the actual
owners of the capital stock and to maintain permanent records showing the
information it has received as to the actual ownership of such capital stock
and a list of those persons failing or refusing to comply with such demand.
In any year in which the Company does not qualify as a REIT, distributions by
the Company to Shareholders will be taxable in the same manner discussed above,
except that no distributions can be designated as capital gain dividends,
distributions will be eligible for the corporate dividends received deduction,
and Shareholders will not receive any share of the Company's tax preference
items.
TAXATION OF TAX EXEMPT INVESTORS
In general, a tax exempt entity that is a Shareholder is not subject to tax
on distributions from the Company or gain realized on the sale of capital stock,
provided that the tax exempt entity has not financed the acquisition of its
capital stock with "acquisition indebtedness" within the meaning of the Code.
Special rules apply to organizations exempt under Code Sections 501(c)(7),
(c)(9), (c)(17) and (c)(20), and such prospective investors should consult their
own tax advisors concerning the applicable "set aside" and reserve requirements.
In addition, certain distributions by a REIT to a tax-exempt employee's pension
trust that owns more than 10% of the REIT will, in certain circumstances, be
treated as "unrelated business taxable income."
TAXATION OF NON-U.S. SHAREHOLDERS
The rules governing U.S. Federal income taxation of non-U.S. shareholders (as
defined below) are complex, and the following discussion is intended only as a
summary of such rules. Prospective non-U.S. shareholders should consult with
their tax advisors to determine the impact of U.S. Federal, state, and local
income tax laws on an investment in the REIT, including any reporting
requirements, as well as the tax treatment of such an investment under their
home country laws. For purposes of this discussion, a non-U.S. shareholder is a
holder of Common Stock that, for U.S. Federal income tax purposes, is not a
"United States person." A "United States person," in turn, means a citizen or
resident of the United States; a corporation, partnership, or other entity
created or organized in the United States or under the laws of the United States
or of any political subdivision thereof; or an estate or trust whose income is
includible in gross income for U.S. Federal income tax purposes regardless of
its source. The following discussion assumes that the Common Stock is held as a
"capital asset" under the Code.
Distributions to a non-U.S. shareholder will generally be subject to tax as
ordinary income to the extent of the Company's current and accumulated earnings
and profits as determined for U.S. Federal income tax purposes. Such
distributions will generally be subject to withholding of such income tax at a
30% rate, unless reduced by an applicable tax treaty or unless such dividends
are treated as effectively connected with a United States trade or business. If
the amount distributed exceeds a non-U.S. shareholder's allocable share of such
earnings and profits, the excess will be treated as a tax-free return of capital
to the extent of such shareholder's adjusted basis in the Common Stock. To the
extent that such distributions exceed the adjusted basis of a non-U.S.
shareholder's Common Stock, such distributions will generally be subject to tax
if such shareholder would otherwise be subject to tax on any gain from the sale
or disposition of its Common Stock, as described below. If it cannot be
determined at the time a distribution is made whether or not such distribution
will be in excess of current and accumulated earnings and profits, the
distribution will be subject to withholding at the same rate as dividends.
Amounts so withheld, however, are refundable or creditable against U.S. Federal
tax liability if it is subsequently determined that such distribution was, in
fact, in excess of current and accumulated earnings and profits of the Company,
unless the non-U.S. shareholder is otherwise subject to U.S. Federal income tax.
33
<PAGE>
For any year in which the Company qualifies as a REIT, distributions to a non-
U.S. shareholder that are attributable to gain from the sales or exchanges by
the Company of "United States real property interests" will be treated as if
such gain were effectively connected with a United States trade or business and
will thus be subject to tax at the normal capital gain rates applicable to U.S.
shareholders (subject to applicable alternative minimum tax) under the
provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Also, distributions subject to FIRPTA may be subject to a 30% branch
profits tax in the hands of a foreign corporate shareholder not entitled to a
treaty exemption. The Company is required to withhold 35% of any distribution
that could be designated by the Company as a capital gains dividend. This amount
may be credited against the non-U.S. shareholder's FIRPTA tax liability.
Gain recognized by a non-U.S. shareholder upon a sale of its Common Stock
will generally not be subject to tax under FIRPTA if the Company is a
"domestically controlled REIT," which is defined generally as a REIT in which at
all times during a specified testing period less than 50% in value of its shares
were held directly or indirectly by non-U.S. persons. Because only a minority of
the Shareholders are non-U.S. shareholders, the Company expects to qualify as a
"domestically controlled REIT." Accordingly, a non-U.S. shareholder should not
be subject to U.S. tax from gains recognized upon disposition of the Common
Stock, provided that such gain is not effectively connected with the conduct of
a United States trade or business and, in the case of an individual shareholder,
such holder is not present in the United States for 183 days or more during the
year of sale and certain other requirements are met.
Under temporary United States Treasury regulations, United States information
reporting requirements and backup withholding tax will generally not apply to
dividends paid on the Common Stock to a non-U.S. shareholder at an address
outside the United States. Payments by a United States office of a broker of
the proceeds of a sale of the Common Stock is subject to both backup withholding
at a rate of 31% and information reporting unless the holder certifies its non-
U.S. shareholder status under penalties of perjury or otherwise establishes an
exemption. Information reporting requirements (but not backup withholding) will
also apply to payments of the proceeds of sales of the Securities by foreign
offices of United States brokers, or foreign brokers with certain types of
relationships to the United States, unless the broker has documentary evidence
in its records that the holder is a non-U.S. shareholder and certain other
conditions are met, or the holder otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules will be refunded or credited against the non-U.S.
shareholder's U.S. Federal income tax liability, provided that the required
information is furnished to the IRS.
These information reporting and backup withholding rules are under review by
the United States Treasury and their application to the Common Stock could be
changed by future regulations.
TAXATION OF HOLDERS OF PREFERRED STOCK, EQUITY STOCK, DEPOSITARY SHARES AND
WARRANTS
If the Company offers one or more series of Preferred Stock, Equity Stock,
Depositary Shares or Warrants, there may be tax consequences for the holders of
such Securities not discussed herein. For a discussion of any such additional
consequences, see the applicable Prospectus Supplement.
STATE AND LOCAL TAXES
The tax treatment of the Company and the Shareholders in states having taxing
jurisdiction over them may differ from the federal income tax treatment.
Accordingly, no discussion of state taxation of the Company and the
Shareholders is provided nor is any representation made as to the tax status of
the Company in such states. All investors should consult their tax advisors as
to the treatment of the Company under the respective state tax laws applicable
to them.
34
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at prices related to the prevailing market prices at the
time of sale or at negotiated prices. The Company also may, from time to time,
authorize underwriters acting as the Company's agents to offer and sell the
Securities upon the terms and conditions as are set forth in the applicable
Prospectus Supplement. In connection with the sale of Securities, underwriters
may be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agent. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, will be set
forth in the applicable Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Securities from the Company at the offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Securities sold pursuant to Contracts
shall be not less nor more than, the respective amounts stated in the
applicable Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the Securities covered by its Contracts
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if the Securities are being sold to underwriters, the Company shall have
sold to such underwriters the total principal amount of the Securities less the
principal amount thereof covered by Contracts. Agents and underwriters will
have no responsibility in respect of the delivery or performance of Contracts.
Certain of the underwriters, if any, and their affiliates may be customers
of, engage in transactions with and perform services for the Company in the
ordinary course of business.
35
<PAGE>
LEGAL OPINIONS
David Goldberg, senior vice president and general counsel of the Company, has
delivered an opinion to the effect that the securities offered by this
Prospectus will be validly issued, fully paid and nonassessable. Hogan &
Hartson L.L.P., Washington, D.C., has delivered an opinion as to the status of
the Company as a REIT. Mr. Goldberg owns 72,815 shares of Common Stock, 1,000
shares of convertible preferred stock and 600 shares of Senior Preferred Stock,
and has options to acquire an additional 157,500 shares of Common Stock. See
"Certain Federal Income Tax Considerations."
EXPERTS
The consolidated financial statements of the Company for the year ended
December 31, 1995 appearing in the Company's Annual Report on Form 10-K, as
amended by a Form 10-K/A (Amendment No. 3) dated May 15, 1996, and the combined
summary of historical information relating to operating revenues and specified
expenses--certain properties (the "Combined Summary") for the properties and
periods indicated in Note 1 to such Combined Summary, appearing in the Company's
Current Report on Form 8-K dated September 6, 1996 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports included in the
Company's Annual Report on Form 10-K and the Company's Current Report on Form
8-K dated September 6, 1996 and incorporated herein by reference. Such
consolidated financial statements and Combined Summary are incorporated herein
by reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
36
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the Securities, are as follows:
<TABLE>
<S> <C>
Registration Fee--Securities and Exchange Commission..... $100,500
Depositary Fees.......................................... 100,000
Rating Agency Fees....................................... 100,000
Printing and Engraving Expenses.......................... 200,000
Legal Fees and Expenses.................................. 100,000
Accounting Fees and Expenses............................. 50,000
Miscellaneous............................................ 49,500
--------
TOTAL.................................................. $700,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In August 1988, the Company's Articles of Incorporation were amended (as
approved by the shareholders in August 1988) to provide that the Company may
indemnify the agents of the Company to the maximum extent permitted under
California law. See Article V of the Certificate of Amendment of Articles of
Incorporation (Exhibit 3.11) and Article VII of the By-Laws (Exhibit 3.18) which
are incorporated herein by this reference. In October 1988, the Company also
entered into indemnity agreements (in the form approved by the shareholders in
August 1988) with its management and non-management directors and executive
officers. The agreements permit the Company to indemnify directors and executive
officers to the maximum extent permitted under California law and prohibit the
Company from terminating its indemnification obligations as to acts or omissions
of any director or executive officer occurring before the termination. The
indemnification and limitations on liability permitted by the amendment to the
Articles of Incorporation and the agreements are subject to the limitations set
forth by California law. The Company believes the indemnification agreements
will assist it in attracting and retaining qualified individuals to serve as
directors and executive officers of the Company.
ITEM 16. EXHIBITS.
See Exhibit Index contained herein.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
II-1
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment 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.
(3) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(4) That, 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
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remains unsold at the termination of
the offering.
(6) 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)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15 above,
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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Glendale, State of California, on the 20th day of
December, 1996.
PUBLIC STORAGE, INC.
By: /s/ B. WAYNE HUGHES
--------------------------------
B. Wayne Hughes,
Chairman of the Board
Each person whose signature appears below hereby authorizes B. Wayne Hughes
and Harvey Lenkin, and each of them, as attorney-in-fact, to sign on his behalf,
individually and in each capacity stated below, any amendment, including
post-effective amendments to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ B. WAYNE HUGHES Chairman of the Board, Chief December 20, 1996
____________________________________ Executive Officer and
B. Wayne Hughes Director (principal
executive officer)
/s/ HARVEY LENKIN President and Director December 20, 1996
____________________________________
Harvey Lenkin
/s/ JOHN REYES Senior Vice President and Chief December 20, 1996
____________________________________ Financial Officer (principal
John Reyes financial officer and principal
accounting officer)
/s/ ROBERT J. ABERNETHY Director December 20, 1996
____________________________________
Robert J. Abernethy
/s/ DANN V. ANGELOFF Director December 20, 1996
____________________________________
Dann V. Angeloff
/s/ WILLIAM C. BAKER Director December 20, 1996
____________________________________
William C. Baker
/s/ URI P. HARKHAM Director December 20, 1996
____________________________________
Uri P. Harkham
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.(1)
3.1 Restated Articles of Incorporation.(2)
3.2 Certificate of Determination for the 10% Cumulative Preferred Stock,
Series A.(2)
3.3 Certificate of Determination for the 9.20% Cumulative Preferred
Stock, Series B.(2)
3.4 Amendment to Certificate of Determination for the 9.20% Cumulative
Preferred Stock, Series B.(3)
3.5 Certificate of Determination for the 8.25% Convertible Preferred
Stock.(2)
3.6 Certificate of Determination for the Adjustable Rate Cumulative
Preferred Stock, Series C.(2)
3.7 Certificate of Determination for the 9.50% Cumulative Preferred
Stock, Series D.(4)
3.8 Certificate of Determination for the 10% Cumulative Preferred Stock,
Series E.(5)
3.9 Certificate of Determination for the 9.75% Cumulative Preferred
Stock, Series F.(6)
3.10 Certificate of Determination for the Convertible Participating
Preferred Stock.(7)
3.11 Certificate of Amendment of Articles of Incorporation.(7)
3.12 Certificate of Determination for the 8 7/8% Cumulative Preferred
Stock, Series G.(8)
3.13 Certificate of Determination for the 8.45% Cumulative Preferred
Stock, Series H.(9)
3.14 Certificate of Determination for the Convertible Preferred Stock,
Series CC.(10)
3.15 Certificate of Correction of Certificate of Determination for the
Convertible Participating Preferred Stock.(11)
3.16 Certificate of Determination for the 8 5/8% Cumulative Preferred
Stock, Series I.(12)
3.17 Certificate of Amendment of Articles of Incorporation.
3.18 Bylaws, as amended.(13)
3.19 Amendment to Bylaws adopted on May 9, 1996.(14)
4.1 Form of Certificate of Determination for additional series of
Preferred Stock.(1)
4.2 Form of Deposit Agreement.(1)
4.3 Form of Certificate of Determination for series of Equity Stock.(1)
4.4 Form of Warrant Agreement.(1)
5.1 Opinion of David Goldberg as to the legality of the securities being
registered.
8.1 Opinion of Hogan & Hartson L.L.P. re tax matters.
12.1 Statement on computation of ratio of earnings to fixed charges.(15)
23.1 Consent of Independent Auditors.
23.2 Consent of David Goldberg (included in Exhibit 5.1).
23.3 Consent of Hogan & Hartson L.L.P. (included in Exhibit 8.1).
</TABLE>
II-4
<PAGE>
- -----------
(1) To be filed by amendment or incorporated by reference in connection with
the offering of Securities.
(2) Filed with registrant's Registration Statement No. 33-54557 and
incorporated herein by reference.
(3) Filed with registrant's Registration Statement No. 33-56925 and
incorporated herein by reference.
(4) Filed with registrant's Form 8-A/A Registration Statement relating to the
9.50% Cumulative Preferred Stock, Series D and incorporated herein by
reference.
(5) Filed with registrant's Form 8-A/A Registration Statement relating to the
10% Cumulative Preferred Stock, Series E and incorporated herein by
reference.
(6) Filed with registrant's Form 8-A/A Registration Statement relating to the
9.75% Cumulative Preferred Stock, Series F and incorporated herein by
reference.
(7) Filed with registrant's Registration Statement No. 33-63947 and
incorporated herein by reference.
(8) Filed with registrant's Form 8-A/A Registration Statement relating to the
8 7/8% Cumulative Preferred Stock, Series G and incorporated herein by
reference.
(9) Filed with registrant's Form 8-A/A Registration Statement relating to the
8.45% Cumulative Preferred Stock, Series H and incorporated herein by
reference.
(10) Filed with registrant's Registration Statement No. 333-03749 and
incorporated herein by reference.
(11) Filed with registrant's Registration Statement No. 333-08791 and
incorporated herein by reference.
(12) Filed with registrant's Form 8-A/A Registration Statement relating to the
8 5/8% Cumulative Preferred Stock, Series I and incorporated herein by
reference.
(13) Filed with registrant's Registration Statement No. 33-64971 and
incorporated herein by reference.
(14) Filed with registrant's Registration Statement No. 333-03749 and
incorporated herein by reference.
(15) Filed with registrant's Form 10-Q for the quarterly period ended September
30, 1996 and incorporated herein by reference.
II-5
<PAGE>
EXHIBIT 3.17
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
PUBLIC STORAGE, INC.,
a California corporation
[As Filed in the Office of the Secretary of State of
the State of California December 4, 1996]
Harvey Lenkin and Sarah Hass certify that:
1. They are the President and Secretary, respectively, of Public Storage,
Inc., a California corporation (the "Corporation").
2. Article III of the Corporation's Articles of Incorporation is amended
in its entirety to read as follows:
"III
(a) This corporation is authorized to issue only four classes of shares to
be designated respectively "Preferred Stock," "Common Stock," "Class B Common
Stock" and "Equity Stock" and referred to herein either as Preferred Stock or
Preferred shares, Common Stock or Common shares, Class B Common Stock or Class B
Common shares or Equity Stock or Equity shares. The total number of shares
which this corporation is authorized to issue is Four Hundred Fifty-Seven
Million (457,000,000); the number of Preferred shares shall be Fifty Million
(50,000,000) of the par value of One Cent ($.01) each, the number of Common
shares shall be Two Hundred Million (200,000,000) of the par value of Ten Cents
($.10) each, the number of Class B Common shares shall be Seven Million
(7,000,000) of the par value of Ten Cents ($.10) each and the number of Equity
shares shall be Two Hundred Million (200,000,000) of the par value of One Cent
($.01) each.
(b) The Preferred shares may be issued from time to time in one or more
series. The Board of Directors is authorized to fix the number of shares of any
series of Preferred shares and to determine the designation of any such series.
The Board of Directors is also authorized to determine or alter the rights
granted to or imposed upon any wholly unissued series of Preferred shares
including the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices and the liquidation preference, and, within the
limits and restrictions stated in any resolution or resolutions of the Board of
Directors originally fixing the number of shares constituting any series, to
increase or decrease (but not below the number of shares then outstanding) the
number of shares of any such series subsequent to the issue of shares of that
series. In case the number of shares of any series shall be so decreased, the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
(c) (1) Subject to any preference with respect to the Preferred shares or
the Equity shares and the provisions of this subparagraph (c)(1), the Common
shares and the Class B Common shares shall be entitled to distributions out of
funds legally available therefor, when, as and if declared by the Board of
Directors. The Class B Common shares shall not be entitled to participate in
distributions until the later to occur of (i) "funds from operations per Common
Share" (as defined below) aggregating $1.80
<PAGE>
during any four consecutive calendar quarters or (ii) January 1, 2000;
thereafter, the Class B Common shares will participate in distributions (other
than liquidating distributions) at the rate of 97% of the per share
distributions on the Common shares, provided that cumulative distributions from
September 30, 1995 at the rate of at least $.22 per share per quarter (subject
to appropriate adjustment for stock splits, reverse stock splits and stock
dividends) have been paid on the Common shares.
(2) In the event of any liquidation, dissolution or winding up of this
corporation, whether voluntary or involuntary, subject to any preference with
respect to the Preferred shares or the Equity shares, the entire assets of this
corporation available for distribution to shareholders shall be distributed
ratably among the Common shares. The Class B Common shares shall not be
entitled to any distributions in respect of a liquidation, dissolution or
winding up of this corporation.
(3) The Class B Common shares shall not have any voting powers either
general or special, except as required by law.
(4) (i) The Class B Common shares shall automatically convert into and
become an equal number of Common shares upon the later to occur of (A) funds
from operations per Common Share (as defined below) aggregating $3.00 during any
four consecutive calendar quarters or (B) January 1, 2003.
(ii) As used above:
(A) Funds from operations ("FFO") means net income (loss)
(computed in accordance with generally accepted accounting principles)
before (1) gain (loss) on early extinguishment of debt, (2) minority
interest in income and (3) gain (loss) on disposition of real estate,
adjusted as follows: (1) plus depreciation and amortization (including
this corporation's pro rata share of depreciation and amortization of
unconsolidated equity interests and amortization of assets acquired in
the merger of Public Storage Management, Inc. into this corporation)
and (2) less FFO attributable to minority interest.
(B) FFO per Common Share means FFO less preferred stock
dividends (other than dividends on convertible preferred stock)
divided by the number of outstanding weighted average shares of Common
Stock (assuming conversion of all outstanding convertible securities
and the Class B Common shares).
(iii) If this corporation subdivides or combines its outstanding
shares of Common Stock into a greater or smaller number of shares, or sets a
record date for the purpose of entitling the holders of its Common Stock to
receive a dividend or other distribution payable in Common Stock, then in each
case, the then outstanding Class B Common Stock shall be treated equally and
shall, as appropriate, (A) be subdivided or combined in the same proportion as
the Common Stock is subdivided or combined or (B) receive the same proportionate
dividend or distribution payable, respectively, in shares of Class B Common
Stock as paid or issued with respect to the Common Stock.
(iv) This corporation shall at all times reserve and keep available
out of its authorized but unissued Common Stock the full number of shares of
Common Stock deliverable upon the conversion of all the then outstanding Class B
Common Stock and shall take all such action and obtain all permits or orders
that may be necessary to enable this corporation lawfully to issue Common Stock
upon the conversion of the Class B Common Stock.
2
<PAGE>
(d) The Equity shares may be issued from time to time in one or more
series. The Board of Directors is authorized to fix the number of shares of any
series of Equity shares and to determine the designation of any such series.
The Board of Directors is also authorized to determine or alter the rights
granted to or imposed upon any wholly unissued series of Equity shares including
the dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price or
prices and the liquidation rights, and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, to increase or decrease
(but not below the number of shares then outstanding) the number of shares of
any such series subsequent to the issue of shares of that series. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series. The
dividend and liquidation rights of the Equity shares shall be junior to the
Preferred shares and may be senior to, junior to, or pari passu with, the Common
shares or Class B Common shares."
3. The foregoing amendment of Articles of Incorporation was approved by
the Board of Directors of the Corporation.
4. The foregoing amendment was approved by the required vote of the
shareholders of the Corporation entitled to vote, in accordance with Section 902
of the General Corporation Law of California. The total number of outstanding
shares entitled to vote with respect to the foregoing amendment was 77,022,636
shares of Common Stock, 58,955 shares of Convertible Preferred Stock, Series CC
and 7,000,000 shares of Class B Common Stock. None of the Convertible
Participating Preferred Stock is outstanding. The number of shares voting in
favor of the foregoing amendment equaled or exceeded the vote required. The
required vote was (i) a majority of the outstanding shares of Common Stock, (ii)
a majority of the outstanding shares of the Common Stock and Convertible
Preferred Stock, Series CC voting together as a class and (iii) a majority of
the outstanding shares of Class B Common Stock.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate are true and correct
of our own knowledge.
Date: December 3, 1996
/s/ HARVEY LENKIN
-------------------------------
Harvey Lenkin, President
/s/ SARAH HASS
----------------------------------
Sarah Hass, Secretary
3
<PAGE>
Exhibit 5.1
David Goldberg
Senior Vice President and General Counsel
Public Storage, Inc.
701 Western Avenue, Suite 200
Glendale, California 91201-2397
December 20, 1996
Public Storage, Inc.
701 Western Avenue, Suite 200
Glendale, California 91201-2397
Gentlemen:
As Senior Vice President and General Counsel of Public Storage, Inc. (the
"Company"), I have examined (A) the Registration Statement on Form S-3 filed by
the Company with the Securities and Exchange Commission (the "Commission") on
February 15, 1996, as amended through the date hereof (File No. 333-00965) and
(B) the Registration Statement on Form S-3, which is expected to be filed by the
Company with the Commission on or about the date of delivery of this opinion
(collectively, the "Registration Statements"), which includes a Prospectus to be
used in connection with securities registered under the Registration Statements
(the "Prospectus"). The Prospectus relates to the offer and sale of up to
$400,000,000 stated amount of (i) shares of preferred stock, par value $.01 per
share (the "Preferred Shares"), (ii) depositary shares (the "Depositary Shares")
representing a fractional interest in a Preferred Share, (iii) shares of equity
stock, par value $.01 per share (the "Equity Shares"), (iv) shares of common
stock, par value $.10 per share (the "Common Shares") and (v) warrants (the
"Warrants").
I am familiar with the proceedings taken or to be taken by the Company
relating to the authorization and issuance of the Preferred Shares, the
Depositary Shares, the Equity Shares, the Common Shares and the Warrants in the
manner set forth in the Registration Statements. I have also examined the
Company's Restated Articles of Incorporation and Revised Bylaws and have made
such other investigation as I have deemed necessary in order to express the
opinions contained herein.
It is my opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of California.
2. The Preferred Shares, the Depositary Shares, the Equity Shares, the
Common Shares and the Warrants, when issued and delivered in the manner and on
the terms described in the Registration Statements and payment of the agreed
consideration therefor has been received by the Company, will be legally issued,
fully paid and nonassessable.
I hereby consent to the reference to me under the caption "Legal Opinions"
in the Registration Statements and to the filing of this opinion as an exhibit
to each of the Registration Statements or amendments thereto.
Very truly yours,
/s/ DAVID GOLDBERG
DAVID GOLDBERG
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
December 20, 1996
Public Storage, Inc.
701 Western Avenue
Suite 200
Glendale, CA 91201-2397
Ladies and Gentlemen:
In connection with the registration by Public Storage, Inc., a
California corporation (the "Company"), of shares of preferred stock, par value
$.01 per share, depositary shares representing a fractional interest in a share
of such preferred stock, shares of equity stock, par value $.01 per share,
shares of common stock, par value $.10 per share, and warrants to purchase
shares of such preferred or common stock, with an aggregate public offering
price of up to $400,000,000, as more fully described in the Company's
Registration Statement on Form S-3, filed with the Securities and Exchange
Commission on or about the date hereof (the "Registration Statement"), we have
been requested to provide you with our opinion as to whether the Company
continues to qualify as a REIT under sections 856 through 860 of the Internal
Revenue Code (the "Code") following the Merger of Public Storage Management,
Inc. ("PSMI") into the Company (the "Merger").
All capitalized terms used herein have the same meaning as set forth
in the Registration Statement unless otherwise defined herein.
Our opinion is based on (i) existing law as contained in the Code,
regulations issued thereunder by the U.S. Treasury Department ("Regulations"),
administrative pronouncements of the Internal Revenue Service ("IRS"), and court
decisions as of the date hereof, (ii) our understanding of the relevant facts
related to the Company, its past, current, and contemplated operation, as
reflected in the Registration Statement and as represented to us in the
certificate of the Company of even date herewith, and (iii) our assumption that
the Company will continue to be operated in accordance with the representations
contained in the certificate of the Company of even date herewith. Any of the
statutes, regulations, administrative pronouncements, or judicial decisions upon
which this opinion is based could be changed at any time, perhaps with
retroactive effect. Furthermore,
<PAGE>
Public Storage, Inc.
December 20, 1996
Page 2
some of the issues under existing law that could significantly affect our
opinion have not yet been authoritatively addressed by the IRS or the courts.
In rendering our opinion, we have examined such statutes, regulations,
records, certificates and other documents as we have considered necessary or
appropriate as a basis for such opinion, including the following: (1) the
Agreement and Plan of Reorganization by and among Public Storage, Inc., PSMI and
the Company dated June 30, 1995; (2) the Registration Statement (including the
exhibits thereto and all amendments thereto made through the date hereof); (3)
the Amendment to the Company's Restated Articles of Incorporation, as adopted in
connection with the Merger; (4) the Shareholders' Agreement dated November 16,
1995 ("Shareholders' Agreement") entered into by B. Wayne Hughes, Tamara L.
Hughes, B. Wayne Hughes, Jr. and Parker Hughes Trust No. 2; (5) the articles of
incorporation, by-laws and stock ownership information for PS Orange Co., Inc.
("Lock/Box Company"), Public Storage Commercial Properties Group, Inc. ("PSCP"),
PSCC, Inc. ("PSCC"), and Public Storage Pick-Up & Delivery, Inc. ("PS Pick-Up");
(6) the ruling request letters, dated March 19, 1995 and June 7, 1995, submitted
to the Internal Revenue Service on behalf of the Company (the "Ruling Request
Letters"), and the ruling letter dated October 4, 1995, issued by the Internal
Revenue Service in response thereto; (7) the Amendment to the Amended Management
Agreement dated August 8, 1995; and (8) such other instruments and documents
related to the organization and operation of the Company as we have deemed
necessary or appropriate.
In our review, we have assumed, with your consent, that all of the
representations and statements set forth in the documents we reviewed are true
and correct in all material respects, and that all of the obligations imposed by
any such documents on the parties thereto have been and will be performed or
satisfied substantially in accordance with their terms. Moreover, we have
assumed that the Company has been, and each of the Company, the Lock/Box
Company, PSCP, PS Pick-Up and PSCC will be, operated substantially in the manner
described in the Registration Statement, the Ruling Requests, and the relevant
articles of incorporation and other organizational documents. We also have
assumed the genuineness of all signatures, the proper execution of all documents
that are executed, the authenticity of all documents submitted to us as
originals, the conformity to originals of documents submitted to us as copies,
and the authenticity of the originals from which any copies were made.
<PAGE>
Public Storage, Inc.
December 20, 1996
Page 3
For the purposes of our opinion, we have not made an independent
investigation of the facts set forth in documents we reviewed or of
representations made by the Company. We consequently have assumed that the
information presented in such documents or otherwise furnished to us accurately
and completely describes all material facts relevant to our opinion. Without
limiting the foregoing, we have not undertaken to review and determine the tax
status, as a partnership for federal income tax purposes, of each limited
partnership and each limited liability company in which the Company owns an
interest. Instead, we have, with the Company's consent, relied upon the
Company's representations, set forth in the Management Representation Letter, as
to the status of these entities for federal income tax purposes. If any one or
more of these entities were to be classified as an association taxable as a
corporation for federal income tax purposes, that would preclude the Company
from qualifying as a "real estate investment trust" for federal income tax
purposes and therefore would have a material adverse impact on the opinions set
forth herein. We also have assumed for the purposes of this opinion that the
Company is a validly organized and duly incorporated corporation under the laws
of the State of California and that the provisions of the Shareholders'
Agreement and Article IV of the Amendment to the Company's Restated Articles of
Incorporation are fully enforceable in the manner set forth therein under the
laws of the State of California. In the event any of the statements,
representations, or assumptions upon which we have relied in rendering this
opinion is incorrect or incomplete, our opinion could be adversely affected and
may not be relied upon.
Based upon the foregoing, and subject to the various assumptions,
limitations, and qualifications set forth in this letter, we are of the opinion
that:
The Company continues to qualify as a REIT under sections 856 through
860 of the Code following the Merger SO LONG AS (A) the Company has
met at all times since the Merger and continues to meet the stock
ownership and gross income requirements applicable to REITs and (B)
either PSMI at the time of (and after giving effect to) the Merger was
not considered to have any current or accumulated earnings and profits
for tax purposes or the Company made distributions prior to the end of
1995 in an amount sufficient to eliminate such earnings and profits.
We are expressing our opinion only as to the specific matters set
forth in the preceding paragraph. With regard to whether the Company continues
to
<PAGE>
Public Storage, Inc.
December 20, 1996
Page 4
qualify as a REIT following the Merger, we specifically are not rendering an
opinion as to whether the Company has satisfied or will continue to satisfy the
stock ownership and gross income requirements applicable to REITs following the
Merger or whether PSMI had current or accumulated earnings and profits at the
time of the Merger. For a discussion of certain of the considerations
associated with these issues, we direct your attention specifically to the
discussions of these matters contained in the Registration Statement under the
caption "Certain Federal Income Tax Considerations--Consequences of the Merger
on the Company's Qualification as a REIT."
This opinion only represents and is based upon our best judgment
regarding the application of relevant current provisions of the Code and
interpretations of the foregoing as expressed in existing judicial decisions,
administrative regulations and published rulings and procedures. Our opinion,
however, is not binding upon the IRS or the courts, and there can be no
assurance that the IRS would not seek to assert a contrary position or that a
court would not agree with that contrary position. Furthermore, no assurance
can be given that future legislative, judicial or administrative changes, on
either a prospective or retroactive basis, would not adversely affect the
accuracy of the opinion expressed herein. We undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws. We undertake no obligation to update this opinion, or
to ascertain after the date hereof whether circumstances occurring after such
date may affect the conclusions set forth herein.
We hereby consent to the filing of our opinion, together with the
attachments thereto, as Exhibit 8.1 to the Registration Statement and to the use
of the name of our firm in the Registration Statement. In giving this consent,
however, we do not thereby admit that we are an "expert" within the meaning of
the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
Hogan & Hartson L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Prospectus of Public Storage, Inc. (included in the Registration Statement on
Form S-3 (No. 333-_____)) and which will also be used in connection with the
Registration Statement on Form S-3 (No. 333-00965) for the registration of
shares of its preferred stock, its depositary shares, its equity stock, shares
of its common stock and warrants for the purchase of its preferred stock, equity
stock and common stock and to the incorporation by reference therein of our
report dated February 26, 1996 with respect to the consolidated financial
statements and schedules of Public Storage, Inc. in its Annual Report on
Form 10-K, as amended by a Form 10-K/A (Amendment No. 3) dated May 15, 1996 for
the year ended December 31, 1995 filed with the Securities and Exchange
Commission.
We also consent to the incorporation by reference of our report dated
September 6, 1996 on the combined summaries of historical information relating
to operating revenues and specified expenses--certain properties which is
included in the Current Report on Form 8-K dated September 6, 1996 of Public
Storage, Inc. and incorporated by reference in the Registration Statements on
Form S-3 (Nos. 333-_____ and 333-00965) and related Prospectus.
ERNST & YOUNG LLP
Los Angeles, California
December 20, 1996
