FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of
The Securities Exchange Act of 1934
Public Storage, Inc.
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(Exact name of registrant as specified in its charter)
California 95-3551121
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(State of incorporation (IRS Employer
or organization) Identification No.)
600 North Brand Boulevard, Glendale, California 91203-1241
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Depositary Shares Each New York Stock Exchange, Inc.
Representing 1/1,000 of a
Share of 8.45% Cumulative
Preferred Stock, Series H,
par value $.01 per share
Securities to be registered pursuant to Section 12(g) of the Act:
N/A
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(Title of class)
ITEM 1. Description of Registrant's Securities to be Registered.
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A description of the Depositary Shares Each Representing
1/1,000 of a Share of 8.45% Cumulative Preferred Stock, Series H, par
value $.01 per share, is included on the cover page and under the
section entitled "Description of Preferred Stock and Depositary Shares"
beginning on page S-39 of the prospectus supplement dated January 22,
1996 to prospectus dated December 7, 1995 (relating to Registrant's
Registration Statements on Form S-3 (Nos. 33-54755, 33-63947 and
333-00361), as amended) that was filed by Registrant with the
Securities and Exchange Commission on January 23, 1996 pursuant to
Rule 424(b) under the Securities Act of 1933 (the "Prospectus
Supplement"), which Prospectus Supplement shall be deemed to be
incorporated herein by this reference.
ITEM 2. Exhibits.
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I. The following exhibits are being filed with the copies of this
Form 8-A/A filed with the New York Stock Exchange, Inc. and the
Securities and Exchange Commission:
1. Deposit Agreement.
2. Certificate of Determination.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized.
(Registrant) PUBLIC STORAGE, INC.
By:/S/ SARAH HASS
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Sarah Hass
Vice President
Date: January 25, 1996
EXHIBIT 1
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PUBLIC STORAGE, INC.
THE FIRST NATIONAL BANK OF BOSTON, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES H PREFERRED STOCK
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DEPOSIT AGREEMENT
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Dated as of January 25, 1996
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer
Surrender and Redemption of Receipts
SECTION 2.1 Form and Transfer of Receipts . . . . . . . . . . . . . . 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Registration of Transfer of Receipts . . . . . . . . . . 4
SECTION 2.4 Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock . . . . . . . . . . . . 4
SECTION 2.5 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts . . . . . . . . . . . 6
SECTION 2.6 Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Cancellation and Destruction of Surrendered Receipts . . 6
SECTION 2.8 Redemption of Stock . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1 Filing Proofs, Certificates and Other Information . . . . 8
SECTION 3.2 Payment of Taxes or Other Governmental Charges . . . . . 8
SECTION 3.3 Warranty as to Stock . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 Distributions Other than Cash, Rights Preferences
or Privileges . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . 10
SECTION 4.4 Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts . . . . . . . . . . . . . . . . . . 11
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. . . . . . . 12
SECTION 4.7 Delivery of Reports . . . . . . . . . . . . . . . . . . 12
SECTION 4.8 List of Receipt Holders . . . . . . . . . . . . . . . . 12
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . . . . . . 13
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar
or the Company . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.3 Obligation of the Depositary, the Depositary's Agents,
the Registrar and the Company . . . . . . . . . . . . . 14
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary . . . . . . . . . . . . . . . . 16
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . 17
SECTION 5.6 Indemnification by the Company . . . . . . . . . . . . 17
SECTION 5.7 Charges and Expenses . . . . . . . . . . . . . . . . . 17
SECTION 5.8 Tax Compliance . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
Amendment and Termination
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
Miscellaneous
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.2 Exclusive Benefit of Parties . . . . . . . . . . . . . 19
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . 19
SECTION 7.4 Notices 19
SECTION 7.5 Appointment of Registrar . . . . . . . . . . . . . . . 20
SECTION 7.6 Holders of Receipts are Parties . . . . . . . . . . . . 20
SECTION 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.8 Inspection of Deposit Agreement . . . . . . . . . . . . 20
SECTION 7.9 Headings . . . . . . . . . . . . . . . . . . . . . . . 20
Form of Depositary Shares
Form of Face of Receipt A-1
Form of Reverse of Receipt A-3
<PAGE>
DEPOSIT AGREEMENT, dated as of January 25, 1996, among
PUBLIC STORAGE, INC., a California corporation (the "Company"), The
First National Bank of Boston, a national banking association (the
"Depositary"), and the holders from time to time of the Receipts
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of shares of Series H
Preferred Stock of the Company with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of
Receipts evidencing Depositary Shares in respect of the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained
herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
Definitions
The following definitions shall, for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Certificate" shall mean the Certificate of Determination
filed with the Secretary of State of the State of California
establishing the Stock as a series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean The First National Bank of Boston and
any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing 1/1,000 of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 5.1 and shall include the Registrar if
such Registrar is not the Depositary.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued
hereunder, whether in definitive or temporary form and evidencing the
number of Depositary Shares held of record by the record holder of such
Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books of
the Depositary maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or
trust company which shall be appointed to register ownership and
transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's 8.45%
Cumulative Preferred Stock, Series H, $.01 par value per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.1 Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided, if and to the extent required by any securities
exchange on which the Receipts are listed. Pending the preparation of
definitive Receipts or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed, the Depositary,
upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.2, shall execute
and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of
the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office or at such other place or places as the Depositary
shall determine, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary
shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made
at the Company's expense and without any charge to the holder therefor.
Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Agreement, and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
and/or facsimile signature of a duly authorized officer of the
Depositary. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed in accordance with the foregoing sentence.
The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares. The Company shall deliver to the Depositary from
time to time such quantities of Receipts as the Depositary may request
to enable the Depositary to perform its obligations under this Deposit
Agreement.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as may be required by the
Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any
securities exchange upon which the Stock, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is
properly endorsed or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the
Depositary as provided in Section 2.3, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder
thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement
and for all other purposes.
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of
this Deposit Agreement, the Company or, subject to Section 2.4, any
holder of Stock may from time to time deposit shares of Stock under
this Deposit Agreement by delivery to the Depositary of a certificate
or certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required
by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company or such
holder, as the case may be, directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated
in such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of
this Section, together with the other documents required as above
specified, and upon recordation of the Stock on the books of the
Company in the name of the Depositary or its nominee, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons
named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the
whole number of Depositary Shares representing, in the aggregate, the
Stock so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting
such delivery.
SECTION 2.3 Registration of Transfer of Receipts. Subject
to the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon, the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number
of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.4 Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a
Receipt or Receipts at the Depositary's Office or at such other
offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number
of whole shares of Stock may (unless the related Depositary Shares have
previously been called for redemption) withdraw the Stock and all money
and other property, if any, represented thereby by surrendering such
Receipt or Receipts at the Depositary's Office or at such other offices
as the Depositary may designate for such withdrawals and paying any
unpaid amount due the Depositary. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder or to the person or
persons designated by such holder as hereinafter provided, the number
of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal,
but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number
of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn,
the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or upon his order, a new Receipt
evidencing such excess number of Depositary Shares, provided, however,
that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share. Delivery of the Stock and money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder
of the Receipt or Receipts being surrendered for withdrawal of Stock,
such holders shall execute and deliver to the Depositary a written
order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of
such shares of Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made
by the Depositary at the Depositary's Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder.
SECTION 2.5 Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. As a condition precedent
to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the Depositary, any
of the Depositary's Agents or the Company may require payment to it of
a sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to it)
of any charges or expenses payable by the holder of a Receipt pursuant
to Sections 3.2 and 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions
of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed, or (ii) if
any such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from time
to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.6 Lost Receipts, etc. In case any receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its
reasonable discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt, or
in lieu of and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the Depositary
of evidence reasonably satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof, (ii) the furnishing of the
Depositary with indemnification reasonably satisfactory to it and the
Company and (iii) the payment of any reasonable expense (including
reasonable fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.7 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be cancelled by the Depositary. Except as
prohibited by applicable law or regulation, the Company is authorized
to destroy all Receipts so cancelled.
SECTION 2.8 Redemption of Stock. Whenever the Company shall
be permitted and shall elect to redeem shares of Stock in accordance
with the provisions of the Certificate, it shall (unless otherwise
agreed to in writing with the Depositary) give or cause to be given to
the Depositary not less than 60 days' notice of the date of such
proposed redemption or exchange of Stock and of the number of such
shares held by the Depositary to be so redeemed and the applicable
redemption price, as set forth in the Certificate, which notice shall
be accompanied by a certificate from the Company stating that such
redemption of Stock is in accordance with the provisions of the
Certificate. Notice of redemption of Stock will also be given by the
Company by publication in a newspaper of general circulation in the
County of Los Angeles and the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30
nor more than 60 days prior to the redemption date, and the Depositary
will publish a notice of redemption of the Depositary Shares containing
the same type of information and in the same manner as the Company's
notice of redemption. On the date of such redemption, provided that
the Company shall then have paid or caused to be paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus an
amount equal to any accrued and unpaid dividends thereon to the date
fixed for redemption, in accordance with the provisions of the
Certificate, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice of
the Company's redemption of Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock
to be redeemed by first-class mail, postage prepaid, not less than 30
and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date") to the record
holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the address of such holders as they appear on the records
of the Depositary; but neither failure to mail any such notice of
redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or
more such holders shall affect the sufficiency of the proceedings for
redemption as to the other holders. The Company will provide the
Depositary with the information necessary for the Depositary to prepare
such notice and each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less than
all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price per Depositary Share; (iv) the
place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends
in respect of the Stock represented by the Depositary Shares to be
redeemed will cease to accrue on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be determined pro rata or
by lot in a manner determined by the Board of Directors.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the Stock evidenced
by the Depositary Shares called for redemption) (i) dividends on the
shares of Stock so called for redemption shall cease to accrue from and
after such date, (ii) the Depositary Shares being redeemed from such
proceeds shall be deemed no longer to be outstanding, (iii) all rights
of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in
accordance with such redemption notice of the Receipts evidencing any
such Depositary Shares called for redemption (properly endorsed or
assigned for transfer, if the Depositary or applicable law shall so
require), such Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to the same fraction of
the redemption price per share paid with respect to the shares of Stock
as the fraction each Depositary Share represents of a share of Stock
plus the same fraction of all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by
the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not
theretofore been paid. Any funds deposited by the Company with the
Depositary for any Depositary Shares that the holders thereof fail to
redeem will be returned to the Company after a period of five years
from the date such funds are so deposited.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary, together
with the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption,
provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1 Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time
to file such proof of residence, or other matters or other information,
to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper or otherwise reasonably request. The Depositary
or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal
or conversion of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates
are executed or such representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal of Stock and
all money or other property, if any, represented by the Depositary
Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other
distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt
and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder
prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock
and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1 Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section
4.4 such amounts of such dividend or distribution as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or
as otherwise required by law, regulation or court process, the amount
made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. In the event that the calculation
of any such cash dividend or other cash distribution to be paid to any
record holder on the aggregate number of Depositary Receipts held by
such holder results in an amount which is a fraction of a cent, the
amount the Depositary shall distribute to such record holder shall be
rounded to the next highest whole cent if such fraction of a cent is
equal to or greater than $.005, otherwise such fractional interest
shall be disregarded; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.2 Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon
Stock, the Depositary shall, subject to Sections 3.1 and 3.2,
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held
by such holders, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution. If in the opinion
of the Depositary such distribution cannot be made proportionately
among such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on
account of taxes) the Depositary deems such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt
such method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem equitable
and appropriate. The net proceeds of any such sale shall, subject
to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders
of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other
nature, such rights, preferences or privileges shall in each such
instance be made available by the Depositary to the record holders
of Receipts in such manner as the Depositary may determine, either by
the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved
by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that
it is not lawful or (after consultation with the Company) not feasible
to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to the
extent so instructed by holders of Receipts who do not desire to
execute such rights, preferences or privileges, then the Depositary,
in its discretion (with approval of the Company, in any case where the
Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.1 and 3.2,
be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order
for holders of Receipts to be offered or sold the securities to which
such rights, preferences or privileges relate, the Company will file
promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and
use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of
the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges. In no
event shall the Depositary make available to the holders of Receipts
any right, preference or privilege to subscribe for or to purchase any
securities unless and until it has received written notice from the
Company that such registration statement shall have become effective,
or that the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act and
the Company shall have provided to the Depositary an opinion of counsel
reasonably satisfactory to the Depositary to such effect.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be made
available to holders of Receipts, the Company will use its reasonable
best efforts to take such action or obtain such authorization, consent
or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends, etc.; Fixing Record Date
for Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash
shall be made, or if rights, preferences or privileges shall at any
time be offered, with respect to Stock, or whenever the Depositary
shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice,
or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the
Company with respect to or otherwise in accordance with the terms of
the Stock) for the determination of the holders of Receipts who shall
be entitled to receive such dividend, distribution, rights, preferences
or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting,
or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.5 Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice which shall contain (i) such information
as is contained in such notice of meeting and (ii) a statement that
the holders may, subject to any applicable restrictions, instruct the
Depositary as to the exercise of the voting rights pertaining to the
amount of Stock represented by their respective Depositary Shares
(including an express indication that instructions may be given to
the Depositary to give a discretionary proxy to a person designated
by the Company) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders
of Receipts on the relevant record date, the Depositary shall use its
best efforts to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole
shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received.
The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote
(but, at its discretion, may appear at any meeting with respect to
such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par
value or liquidation preference, split-up, combination or any
other reclassification of the Stock, or upon any recapitalization,
reorganization, merger or consolidation affecting the Company or to
which it is a party, the Depositary may in its discretion with the
approval (not to be unreasonably withheld) of, and shall upon the
instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments in the
fraction of an interest in one share of Stock represented by one
Depositary Share as may be necessary (as certified by the Company)
fully to reflect the effects of such change in par value or liquidation
preference, split-up, combination or other reclassification of Stock,
or of such recapitalization, reorganization, merger or consolidation
and (ii) treat any securities which shall be received by the Depositary
in exchange for or upon conversion of or in respect of the Stock as new
deposited securities so received in exchange for or upon conversion or
in respect of such Stock. In any such case, the Depositary may in
its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and
after the effective date of any such change in par value or liquidation
preference, split-up, combination or other reclassification of the
Stock or any such recapitalization, reorganization, merger or
consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or
for which such Stock would have been exchanged or surrendered had such
Receipt been surrendered immediately prior to the effective date of
such transaction.
SECTION 4.7 Delivery of Reports. The Depositary shall
furnish to holders of Receipts any reports and communications received
from the Company which are received by the Depositary as the holder of
Stock.
SECTION 4.8 List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a
list, as of the most recent practicable date, of the names, addresses
and holdings of Depositary Shares of all record holders of Receipts.
The Company shall be entitled to receive such list four times annually
without charge.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's office
facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at
the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of Receipts,
all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office
for the registration and registration of transfer of Receipts, which
books during normal business hours shall be open for inspection by the
record holders of Receipts; provided that any such holder requesting
to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares evidenced by the
Receipts.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance
of its duties hereunder.
The Depositary may, with the approval of the Company, appoint
a Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be
listed on one or more national securities exchanges, the Depositary
will appoint a Registrar (acceptable to the Company) for registration
of such Receipts or Depositary Shares in accordance with any
requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of any such exchange)
may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts,
such Depositary Shares or such Stock are listed on one or more other
stock exchanges, the Depositary will, at the request and at the expense
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable
securities exchange regulation.
The Depositary may from time to time appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of
this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any
such action.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall incur any liability to any holder of any Receipt if
by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Articles of Incorporation or by
reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, the Depositary's Agent,
the Registrar or the Company shall be prevented, delayed or forbidden
from, or subjected to any penalty on account of, doing or performing
any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur liability to any holder of
a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of
this Deposit Agreement shall provide shall or may be done or performed,
or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in the case
of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.3 Obligation of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company assumes any
obligation or shall be subject to any liability under this Deposit
Agreement or any Receipt to holders of Receipts other than for its
gross negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect
of the Stock, the Depositary Shares or the Receipts which in its
reasonable opinion may involve it in expense or liability unless
indemnity reasonably satisfactory to it against expense and liability
be furnished as often as may be reasonably required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure
to act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person believed by it in
good faith to be competent to give such information. The Depositary,
any Depositary's Agent, the Registrar and the Company may each rely and
shall each be protected in acting upon any written notice, request,
direction or other document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the
manner or effect of any such vote made, as long as any such action or
non-action is in good faith. The Depositary will indemnify the Company
and hold it harmless from any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out
of acts performed or omitted by the Depositary, including when such
Depositary acts as Registrar, or the Depositary's Agents in connection
with this Agreement due to its or their gross negligence, willful
misconduct or bad faith. The indemnification obligations of the
Depositary set forth in this Section 5.3 shall survive any termination
of this Agreement and any succession of any Depositary.
The Depositary, its parent, affiliates or subsidiaries,
the Depositary's Agents, and the Registrar may own, buy, sell and deal
in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares or become pecuniarily interested in any
transaction in which the Company or its affiliates may be interested or
contract with or lend money to or otherwise act as fully or as freely
as if it were not the Depositary, parent, affiliate or subsidiary or
Depositary's Agent or Registrar hereunder. The Depositary may also act
as trustee, transfer agent or registrar of any of the securities of the
Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar, acting as the Depositary's Agent
or Registrar, as the case may be, shall be deemed to be an "issuer" of
the securities under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the
Depositary, any Depositary's Agent and the Registrar are acting only
in a ministerial capacity as Depositary or Registrar for the Stock.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the
registration statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary Shares
or the Receipts (except for its counter-signatures thereon) or any
instruments referred to therein or herein, or as to the correctness
of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness
of the description that appears in the Receipts, which can be taken as
a statement of the Company summarizing certain provisions of this
Deposit Agreement. Notwithstanding any other provision herein or in
the Receipts, the Depositary makes no warranties or representations
as to the validity or genuineness of any Stock at any time deposited
with the Depositary hereunder or of the Depositary Shares, as to the
validity or sufficiency of this Deposit Agreement, as to the value of
the Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares. The
Depositary shall not be accountable for the use or application by
the Company of the Depositary Shares or the Receipts or the proceeds
thereof.
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by delivering notice of its election
to do so to the Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may be,
appoint a successor Depositary, which shall 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. If no
successor Depositary shall have been so appointed and have accepted
appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor Depositary, without any further act or
deed, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Company,
shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign,
transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor, and shall deliver
to such successor a list of the record holders of all outstanding
Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly
mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act, and notice thereof shall not be required hereunder. Such
successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of
Receipts, in each case at the addresses recorded in the Depositary's
books, copies of all notices and reports (including without limitation
financial statements) required by law or by the rules of any national
securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed, to be furnished to the record holders of Receipts.
Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as
the Depositary may reasonably request.
SECTION 5.6 Indemnification by the Company. The Company
shall indemnify the Depositary, any Depositary's Agent and the
Registrar against, and hold each of them harmless from, any loss,
liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed or omitted
in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of gross
negligence, willful misconduct or bad faith on the respective parts of
any such person or persons. The obligations of the Company set forth
in this Section 5.6 shall survive any succession of any Depositary or
Depositary's Agent.
SECTION 5.7 Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. The Company shall pay
charges of the Depositary in connection with the initial deposit of
the Stock and the initial issuance of the Depositary Shares, all
withdrawals of shares of the Stock by owners of Depositary Shares, and
any redemption of the Stock at the option of the Company. All other
transfer and other taxes and governmental charges shall be at the
expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for which
it is not otherwise liable hereunder, such holder will be liable for
such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder (including, in each
case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid
upon consultation and agreement between the Depositary and the Company
as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the
Company at such intervals as the Company and the Depositary may agree.
SECTION 5.8 Tax Compliance. The Depositary, on its own
behalf and on behalf of the Company, will comply with all applicable
certification, information reporting and withholding (including
"backup" withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect to (i) any payments
made with respect to the Depositary Shares or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Depositary Receipts or the Depositary Shares. Such compliance shall
include, without limitation, the preparation and timely filing of
required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from
the Company with respect to the application of such requirements to
particular payments or holders or in other particular circumstances,
and may for purposes of this Agreement rely on any such direction in
accordance with the provisions of Section 5.3 hereof.
The Depositary shall maintain all appropriate records
documenting compliance with such requirements, and shall make such
records available on request to the Company or to its authorized
representatives.
ARTICLE VI
Amendment and Termination
SECTION 6.1 Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to
time be amended by agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in the fees of
any Depositary or Registrar, which shall go into effect not sooner than
three months after notice thereof to the holders of the Receipts) which
shall materially adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by
the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold
such Receipt, to be bound by the Deposit Agreement as amended thereby.
Notwithstanding the foregoing, in no event may any amendment impair the
right of any holder of any Depositary Shares, upon surrender of the
Receipts evidencing such Depositary Shares and subject to any
conditions specified in this Deposit Agreement, to receive shares
of Stock and any money or other property represented thereby, except
in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Depositary, in which case, on a date that is not
later than 30 days after the date of such notice, the Depositary shall
deliver or make available for delivery to holders of Depositary Shares,
upon surrender of the Receipts evidencing such Depositary Shares, such
number of whole or fractional shares of Stock as are represented by
such Depositary Shares. This Deposit Agreement will automatically
terminate after (i) all outstanding Depositary Shares have been
redeemed pursuant to Section 2.8 or (ii) there shall have been made
a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of Depositary
Receipts pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary, the Registrar and any
Depositary's Agent under Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same
instrument.
SECTION 7.2 Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any
legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by
mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
Public Storage, Inc.
600 North Brand Boulevard
Glendale, California 91203-1241
Facsimile No.: (818) 241-0627
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder
or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram
or facsimile transmission confirmed by letter, addressed to the
Depositary at the Depositary's Office, at:
The First National Bank of Boston
150 Royall Street
Mail Stop: 45-02-62
Canton, MA 02021
Attention: Client Administration
Facsimile No.: (617) 575-2549
or at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by
mail, or by telegram or facsimile transmission confirmed by letter,
addressed to such record holder at the address of such record holder as
it appears on the books of the Depositary, or if such holder shall have
filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated
in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is deposited for mailing
by first class mail, postage prepaid. The Depositary or the Company
may, however, act upon any telegram or facsimile transmission received
by it from the other or from any holder of a Receipt, notwithstanding
that such telegram or facsimile transmission shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.5 Appointment of Registrar. The Company hereby
also appoints the Depositary as Registrar in respect of the Receipts
and the Depositary hereby accepts such appointments.
SECTION 7.6 Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
SECTION 7.7 Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF
AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS APPLICABLE TO CONTRACTS MADE IN AND TO BE PERFORMED IN THE STATE
OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 7.8 Inspection of Deposit Agreement. Copies of
this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agent and shall be open to inspection during business
hours at the Depositary's Office or respective offices of the
Depositary's Agent, if any, by any holder of a Receipt.
SECTION 7.9 Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to
be regarded as a part of this Deposit Agreement or the Receipts or to
have any bearing upon the meaning or interpretation of any provision
contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with
the terms hereof.
PUBLIC STORAGE, INC.
Attested by:
/S/ SARAH HASS /S/ HARVEY LENKIN
------------------------------ ------------------------------
Name: Sarah Hass Name: Harvey Lenkin
Title: Secretary Title: President
THE FIRST NATIONAL BANK OF BOSTON
/S/ GORDON C. STEVENSON
------------------------------
Name: Gordon C. Stevenson
Title: Administration Manager
ANNEX A
The Shares represented by this Depositary Receipt are subject to
restrictions on ownership and transfer for the purpose of this
corporation's maintenance of its status as a Real Estate Investment
Trust under the Internal Revenue Code of 1986, as amended. Except as
set forth in this corporation's Articles of Incorporation or Bylaws,
no person may Beneficially Own (i) more than 2.0% of the outstanding
shares of Common Stock of this corporation, or (ii) more than 9.9%
of the outstanding shares of any series of Preferred Stock of this
corporation, with certain further restrictions and exceptions as are
set forth in this corporation's Articles of Incorporation or Bylaws.
Any Person who attempts to own or Beneficially Own Shares in excess of
the above limitations must immediately notify this corporation. All
capitalized terms in this legend have the meanings defined in this
corporation's Articles of Incorporation or Bylaws. If any of the
restrictions on transfer or ownership set forth in the Articles of
Incorporation or Bylaws are violated, the Shares represented hereby
will be automatically transferred to the Trustee of a Trust for the
benefit of a Charitable Beneficiary pursuant to the terms of the
Articles of Incorporation or Bylaws. In addition, attempted transfers
of Shares in violation of the limitations described above (as modified
or expanded upon in this corporation's Articles of Incorporation or
Bylaws), may be void ab initio. This Corporation will furnish to the
holder hereof, upon request and without charge, a complete written
statement of the terms and conditions of these restrictions. Requests
for such documents may be directed to the corporate secretary.
TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE
ENGRAVED RECEIPT WHEN READY FOR DELIVERY
DEPOSITARY SHARES
CUSIP
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES EACH REPRESENTING 1/1,000th OF A
SHARE OF 8.45% CUMULATIVE PREFERRED STOCK,
SERIES H
OF
PUBLIC STORAGE, INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF CALIFORNIA
THIS CERTIFICATE IS TRANSFERRABLE IN
NEW YORK, NY OR BOSTON, MA
THE FIRST NATIONAL BANK OF BOSTON, as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of __________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a 1/1,000
interest in one share of 8.45% Cumulative Preferred Stock, Series H
(the "Stock"), of Public Storage, Inc., a California corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms
and entitled to the benefits of the Deposit Agreement dated as of
January 25, 1996 (the "Deposit Agreement"), between the Corporation
and the Depositary. By accepting this Depositary Receipt, the holder
hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not
be valid or obligatory for any purpose or be entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if
executed in facsimile by the Depositary, countersigned by a Registrar
in respect of the Depositary Receipts by a duly authorized officer
thereof.
The Corporation is authorized to issue Common Stock, one or more series
of Preferred Stock, and Depositary Shares. The Corporation will
furnish without charge to each receiptholder, who so requests in
writing, a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon the respective classes of
shares and upon the holders thereof, a copy of the Corporation's Bylaws
and a copy of the Deposit Agreement. Any such request shall be made to
the Corporation at the principal office of the Corporation at 600 North
Brand Boulevard, Glendale, California 91203-1241, Attention:
Secretary.
This Depositary Receipt is continued on the reverse hereof and the
additional provisions set forth therein (including, without limitation,
those relating to redemption) for all purposes have the same effect
as if set forth at this place.
Dated:
Countersigned
THE FIRST NATIONAL BANK OF BOSTON
Depositary and Registrar
By: ___________________________
Authorized Officer
THE SHARES REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO THE
PROVISIONS OF THE ARTICLES AND BYLAWS, INCLUDING BUT NOT LIMITED TO (1)
SECTION (C) OF THE CERTIFICATE OF DETERMINATION RELATING TO THE STOCK,
WHICH CONFERS UPON THE BOARD THE RIGHT, ON OR AFTER JANUARY 31, 2001,
TO CALL FOR REDEMPTION THE STOCK, (2) ARTICLE XI, SECTION 7 OF THE
BYLAWS, WHICH CONFERS UPON THE BOARD THE RIGHT TO REFUSE TO REGISTER
THE TRANSFER OF AND/OR TO CALL FOR REDEMPTION THE SHARES REPRESENTED
BY THIS CERTIFICATE IF NECESSARY IN ITS OPINION TO MAINTAIN THE
CORPORATION'S QUALIFICATION AS A "REAL ESTATE INVESTMENT TRUST" UNDER
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND (3) THE PROVISIONS
OF THE ARTICLES AND BYLAWS WHICH SET FORTH OWNERSHIP LIMITATION
PROVISIONS DESIGNED TO MAINTAIN SUCH QUALIFICATION.
1. The Deposit Agreement. Depositary Receipts, of which
this Depositary Receipt is one, are made available upon the terms and
conditions set forth in the Deposit Agreement, dated as of January __,
1996 (the "Deposit Agreement"), among the Company, the Depositary and
all holders from time to time of Depositary Receipts. The Deposit
Agreement (copies of which are on file at the principal office
maintained by the Depositary which at the time of the execution of
the Deposit Agreement is located at 150 Royall Street, Mail Stop:
45-02-62, Canton, Massachusetts 02021 (the "Depositary's Office")
and at the office of any agent of the Depositary) sets forth the
rights of holders of Depositary Receipts and the rights and duties of
the Depositary. The statements made on the face and the reverse of
this Depositary Receipt are summaries of certain provisions of the
Deposit Agreement and are subject to the detailed provisions thereof,
to which reference is hereby made. In the event of any conflict
between the provisions of this Depositary Receipt and the provisions
of the Deposit Agreement, the provisions of the Deposit Agreement will
govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used in this summary of the Deposit
Agreement shall have the meanings ascribed thereto in the Deposit
Agreement.
3. Redemption of Stock. Whenever the Company shall elect
to redeem shares of Stock, it shall (unless otherwise agreed in writing
with the Depositary) give the Depositary not less than 60 days' notice
of the date of such proposed redemption and of the number of such
shares of Stock held by the Depositary to be so redeemed and the
applicable redemption price. The Depositary shall mail, first-class
postage prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of Depositary Shares representing the Stock to
be redeemed, not less than 30 and not more than 60 days prior to the
date fixed for redemption of such Stock and Depositary Shares, to the
record holders of the Depositary Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such holders as the same
appear on the records of the Depositary. Any such notice shall also
be published in the same manner as notices of redemption of the Stock
are required to be published by the Company. On the date of such
redemption, the Depositary shall redeem the number of Depositary Shares
representing such redeemed Stock; provided, that the Company shall then
have paid or caused to be paid in full to the Depositary the redemption
price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such
redemption. In case fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be
determined pro rata or by lot in a manner determined by the Board of
Directors. Notice having been mailed as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide
the funds necessary to redeem the shares of Stock evidenced by the
Depositary Shares called for redemption), dividends on the shares of
Stock so called for redemption shall cease to accrue, the Depositary
Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Depositary Receipts
evidencing such Depositary Shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares, cease
and terminate. Upon surrender in accordance with said notice of the
Depositary Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary or applicable
law shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to the same fraction of the
redemption price per share paid with respect to the shares of Stock as
the fraction each Depositary Share represents of a share of Stock plus
the same fraction of all money and other property, if any, represented
by such Depositary Shares, including all amounts paid by the Company in
respect of dividends which on the Redemption Date have accumulated on
the shares of Stock to be so redeemed and have not theretofore been
paid. The foregoing is subject further to the terms and conditions of
the Certificate of Determination. If fewer than all of the Depositary
Shares evidenced by this Depositary Receipt are called for redemption,
the Depositary will deliver to the holder of this Depositary Receipt
upon its surrender to the Depositary, together with the redemption
payment, a new Depositary Receipt evidencing the Depositary Shares
evidenced by such prior Depositary Receipt and not called for
redemption.
4. Surrender of Depositary Receipts and Withdrawal of
Stock. Upon surrender of this Depositary Receipt to the Depositary at
the Depositary's Office or at such other offices as the Depositary may
designate, and subject to the provisions of the Deposit Agreement, the
holder hereof is entitled to withdraw, and to obtain delivery, without
unreasonable delay, to or upon the order of such holder, any or all of
the Stock (but only in whole shares of Stock) and all money and other
property, if any, at the time represented by the Depositary Shares
evidenced by this Depositary Receipt; provided, however, that, in the
event this Depositary Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the
whole number of shares of Stock to be withdrawn, the Depositary shall,
in addition to such whole number of shares of Stock and such money and
other property, if any, to be withdrawn, deliver, to or upon the order
of such holder, a new Depositary Receipt or Depositary Receipts
evidencing such excess number of whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to the
Deposit Agreement, this Depositary Receipt is transferable on the books
of the Depositary upon surrender of this Depositary Receipt to the
Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer the Depositary shall
sign and deliver a Depositary Receipt or Depositary Receipts to or
upon the order of the person entitled thereto, all as provided in and
subject to the Deposit Agreement. This Depositary Receipt may be
split into other Depositary Receipts or combined with other Depositary
Receipts into one Depositary Receipt evidencing the same aggregate
number of Depositary Shares evidenced by the Depositary Receipt or
Depositary Receipts surrendered; provided, however, that the Depositary
shall not issue any Depositary Receipt evidencing a fractional
Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of
Depositary Receipts. Prior to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of this
Depositary Receipt, the Depositary, any of the Depositary's Agents
or the Company may require any or all of the following: (i) payment
to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with
respect thereto; (ii) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance with
such reasonable regulations, if any, as the Depositary or the Company
may establish not inconsistent with the Deposit Agreement.
7. Suspension of Delivery, Transfer, etc. The deposit of
Stock may be refused, the delivery of this Depositary Receipt against
Stock may be suspended, the registration of transfer of Depositary
Receipts may be refused and the registration of transfer, surrender or
exchange of this Depositary Receipt may be suspended (i) during any
period when the register of stockholders of the Company is closed or
(ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time
or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision
of the Deposit Agreement.
8. Amendment. The form of the Depositary Receipts 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
in any respect that they may deem necessary or desirable; provided,
however, that no such amendment (other than any changes in the fees of
any Depositary or Registrar which shall go into effect not sooner than
three months after Notice thereof to the holders of the Depositary
Receipts) which shall materially adversely alter the rights of holders
of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to
hold this Depositary Receipt, to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of
the owner of the Depositary Shares evidenced by this Depositary
Receipt to surrender this Depositary Receipt with instructions to the
Depositary to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
9. Charges and Expenses. The Company will pay all transfer
and other taxes and governmental charges arising solely from the
existence of the depositary arrangement, except such charges as are
expressly provided in the Deposit Agreement to be at the expense of
holders of Depositary Receipts.
10. Title to Depositary Receipts. Title to this Depositary
Receipt, when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however,
that the Depositary may, notwithstanding any notice to the contrary,
treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the
Stock, the Depositary shall, subject to the provisions of the Deposit
Agreement, distribute to record holders of Depositary Receipts such
amounts of such sums as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Depositary
Receipts held by such holders; provided, however, that in case the
Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect
of the Stock an amount on account of taxes or as otherwise required
by law, regulation or court process, the amount made available for
distribution or distributed in respect of Depositary Shares shall be
reduced accordingly. In the event that the calculation of any such
cash dividend or other cash distribution to be paid to any record
holder on the aggregate number of Depositary Receipts held by such
holder results in an amount which is a fraction of a cent, the amount
the Depositary shall distribute to such record holder shall be rounded
to the next highest whole cent; and upon request of the Depositary, the
Company shall pay the additional amount to the Depositary for
distribution.
12. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons
in whose name Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other
nature, such rights, preferences or privileges shall in each such
instance, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Depositary
Receipts in such manner as the Depositary shall determine.
13. Notice of Dividends, Fixing of Record Date. Whenever
(i) any cash dividend or other cash distribution shall become payable,
or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to
the Stock, or (ii) the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or whenever the Depositary and the Company
shall decide it is appropriate, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the
determination of the holders of Depositary Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be
entitled to give instructions for the exercise of voting rights at any
such meeting or to receive notice of such meeting or for any other
appropriate reasons.
14. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Depositary Receipts a notice, which shall contain (i) such information
as is contained in such notice of meeting, (ii) a statement that the
holders may, subject to any applicable restrictions, instruct the
Depositary as to the exercise of the voting rights pertaining to the
Stock represented by their respective Depositary Shares, and (iii) a
brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Depositary Receipt
on such record date the Depositary shall use its best efforts to vote
or cause to be voted the Stock represented by the Depositary Shares
evidenced by this Depositary Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to
take all action that may be deemed necessary by the Depositary in order
to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of this
Depositary Receipt, the Depositary will abstain from voting to the
extent of the Stock represented by the Depositary Shares evidenced by
this Depositary Receipt.
15. Reports, Inspection of Transfer Books. The Depositary
shall transmit to the record holders of Depositary Receipts copies of
all reports and communications received from the Company that are
received by the Depositary as the holder of Stock. The Depositary
shall keep books at the Corporate Office for the registration and
transfer of Depositary Receipts, which books at all reasonable times
will be open for inspection by the record holders of Depositary
Receipts; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for
a proper purpose reasonably related to such person's interest as an
owner of Depositary Shares.
16. Liability of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of this Depositary Receipt, if by reason of any
provision of any present or future law or regulation thereunder of any
governmental authority or, in the case of the Depositary, the Registrar
or any Depositary's Agent, by reason of any provision present or
future, of the Articles of Incorporation or by reason of any act of God
or war or other circumstances beyond the control of the relevant party,
the Depositary, any Depositary's Agent, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act or
thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or the Company incur any liability to any holder of this
Depositary Receipt (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing that the terms of
the Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement except if such
exercise or failure to exercise discretion is caused by its gross
negligence or willful misconduct.
17. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company assumes any
obligation or shall be subject to any liability under the Deposit
Agreement or this Depositary Receipt to the holder hereof or other
persons, other than for its gross negligence, willful misconduct or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect
to Stock, Depositary Shares or Depositary Receipts or Common Stock that
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to
act by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for deposit, any
holder of this Depositary Receipt or any other person believed by it
in good faith to be competent to give such advice or information.
18. Termination of Deposit Agreement. Whenever so directed
by the Company upon not less than 60 days' prior written notice, the
Depositary will terminate the Deposit Agreement by mailing notice of
such termination to the record holders of all Depositary Receipts then
outstanding at least 30 days after the date of such notice. Upon the
termination of the Deposit Agreement, the Company shall be discharged
to all obligations thereunder except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.6
and 5.7 of the Deposit Agreement.
19. Governing Law. The Deposit Agreement and this
Depositary Receipt and all rights thereunder and hereunder and
provisions thereof and hereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving effect
to principles of conflict of laws.
_________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ___ Custodian ___
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts
of survivorship and not as to Minors Act
tenants in common ___________
(State)
UNIF TRAN MIN ACT - ___ Custodian
(Cust)
(until age ___)
_______ under
(Minor) Uniform
Transfers to Minors
Act _______________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ____________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
_______________________________________________________________________
_______________________________________________________________________
PLEASE PRINT NAME AND ADDRESS OF ASSIGNEE
________________________ Depositary Shares represented by the within
Depositary Receipt, and do hereby irrevocably constitute and appoint
________________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated ______________________ Signed:
_________________________________
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF
THIS DEPOSITARY RECEIPT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By ______________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
8.45% CUMULATIVE PREFERRED STOCK, SERIES H
OF
PUBLIC STORAGE, INC.
------------------------
[As Filed in the Office of the Secretary of State
of the State of California January 24, 1996]
The undersigned, Harvey Lenkin and Sarah Hass, President
and Secretary, respectively, of PUBLIC STORAGE, INC., a California
corporation, do hereby certify:
FIRST: The Restated Articles of Incorporation of the
Corporation authorize the issuance of 50,000,000 shares of stock
designated "preferred shares," issuable from time to time in one or
more series, and authorize the Board of Directors to fix the number
of shares constituting any such series, and to determine or alter the
dividend rights, dividend rate, conversion rights, voting rights, right
and terms of redemption (including sinking fund provisions), the
redemption price or prices and the liquidation preference of any wholly
unissued series of such preferred shares, and the number of shares
constituting any such series.
SECOND: The Board of Directors of the corporation did duly
adopt the resolutions attached hereto as Exhibit A and incorporated
herein by reference authorizing and providing for the creation of a
series of preferred shares to be known as "8.45% Cumulative Preferred
Stock, Series H" consisting of 6,900 shares, none of the shares of such
series having been issued.
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.
IN WITNESS WHEREOF, the undersigned have executed this
certificate this 22nd day of January, 1996.
/S/ HARVEY LENKIN
-----------------------------
Harvey Lenkin
President
/S/ SARAH HASS
-----------------------------
Sarah Hass
Secretary
EXHIBIT A
RESOLUTION OF THE BOARD OF DIRECTORS
OF PUBLIC STORAGE, INC.
ESTABLISHING A SERIES OF 8.45% CUMULATIVE
PREFERRED STOCK, SERIES H
RESOLVED, that pursuant to the authority conferred upon
the Board of Directors by Article III of the Restated Articles of
Incorporation of this Corporation, there is hereby established a
series of the authorized preferred shares of this Corporation having
a par value of $.01 per share, which series shall be designated "8.45%
Cumulative Preferred Stock, Series H," shall consist of 6,900 shares
and shall have the following rights, preferences and privileges:
(a) Dividend Rights.
(1) Dividends shall be payable in cash on the shares of this
Series when, as and if declared by the Board of Directors, out of funds
legally available therefor: (i) for the period (the "Initial Dividend
Period") from the Deemed Original Issue Date (as defined below) to but
excluding April 1, 1996, and (ii) for each quarterly dividend period
thereafter (the Initial Dividend Period and each quarterly dividend
period being hereinafter individually referred to as a "Dividend
Period" and collectively referred to as "Dividend Periods"), which
quarterly Dividend Periods shall be in four equal amounts and shall
commence on January 1, April 1, July 1 and October 1 in each year
(each, a "Dividend Period Commencement Date"), commencing on April 1,
1996, and shall end on and include the day next preceding the next
Dividend Period Commencement Date, at a rate per annum equal to 8.45%
of the $25,000 per share stated value thereof (the "Dividend Rate").
Dividends on each share of this Series shall be cumulative from the
Deemed Original Issue Date of such share and shall be payable, without
interest thereon, when, as and if declared by the Board of Directors,
on or before March 31, June 30, September 30 and December 31 of each
year, commencing on March 31, 1996 or, in the case of shares of this
Series with a Deemed Original Issue Date after March 31, 1996, the
first such dividend payment date following such Deemed Original Issue
Date; provided, that if any such day shall be a Saturday, Sunday, or a
day on which banking institutions in the State of New York or the State
of California are authorized or obligated by law to close, or a day
which is or is declared a national or a New York or California state
holiday (any of the foregoing a "Non-Business Day"), then the payment
date shall be the next succeeding day which is not a Non-Business Day.
Each such dividend shall be paid to the holders of record of shares of
this Series as they appear on the stock register of the Corporation on
such record date, not more than 45 days nor less than 15 days preceding
the payment date thereof, as shall be fixed by the Board of Directors.
Dividends on account of arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not more
than 45 days nor less than 15 days preceding the payment date thereof,
as may be fixed by the Board of Directors. After full cumulative
dividends on this Series have been paid or declared and funds therefor
set aside for payment, including for the then current Dividend Period,
the holders of shares of this Series will not be entitled to any
further dividends with respect to that Dividend Period.
"Deemed Original Issue Date" means (a) in the case of any
share which is part of the first issuance of shares of this Series or
part of a subsequent issuance of shares of this Series prior to April
1, 1996, the date of such first issuance or subsequent issuance, as
the case may be, and (b) in the case of any share which is part of a
subsequent issuance of shares of this Series on or after April 1, 1996,
the later of (x) April 1, 1996 and (y) the latest Dividend Period
Commencement Date which precedes the date of issuance of such share
and which succeeds the last Dividend Period for which full cumulative
dividends have been paid; provided that, in the case of any share which
is part of a subsequent issuance, the date of issuance of which falls
between (i) the record date for dividends payable on the first
succeeding dividend payment date and (ii) such dividend payment date,
the "Deemed Original Issue Date" means the date of the Dividend Period
Commencement Date that immediately follows the date of issuance.
(2) Dividends payable on shares of this Series for any
period greater or less than a full Dividend Period, including the
Initial Dividend Period, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
(3) The Corporation shall not declare or pay or set apart
for payment any dividends on any series of preferred shares ranking, as
to dividends, on a parity with or junior to the shares of this Series
unless full cumulative dividends have been or contemporaneously are
declared and paid, or declared and a sum sufficient for payment thereof
is set apart for payment, for all Dividend Periods terminating on or
prior to the date of payment of any such dividends on such other series
of preferred shares. When dividends are not paid in full upon the
shares of this Series and any other series of preferred shares ranking
on a parity therewith as to dividends (including, without limitation,
the shares of the Corporation's 10% Cumulative Preferred Stock, Series
A (the "Series A Preferred Stock"), 9.20% Cumulative Preferred Stock,
Series B (the "Series B Preferred Stock"), 9.50% Cumulative Preferred
Stock, Series D (the "Series D Preferred Stock"), 10% Cumulative
Preferred Stock, Series E (the "Series E Preferred Stock"), 9.75%
Cumulative Preferred Stock, Series F (the "Series F Preferred Stock"),
8-7/8% Cumulative Preferred Stock, Series G (the "Series G Preferred
Stock"),and Adjustable Rate Cumulative Preferred Stock, Series C (the
"Adjustable Rate Preferred Stock")), all dividends declared upon shares
of this Series and any other series of preferred shares ranking on a
parity therewith as to dividends shall be declared pro rata so that the
amount of dividends declared per share on the shares of this Series and
such other series of preferred shares shall in all cases bear to each
other that same ratio that the accumulated dividends per share on the
shares of this Series and such other series of preferred shares bear to
each other. Except as provided in the preceding sentence, unless full
cumulative dividends on the shares of this Series have been paid for
all past Dividend Periods, no dividends (other than in shares of the
Corporation's common stock, par value $.10 per share (together with any
other shares of capital stock of the Corporation into which such shares
shall be reclassified or changed ("Common Shares"), or another stock
ranking junior to the shares of this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment nor
shall any other distribution be made upon the Common Shares or on any
other stock of the Corporation ranking junior to or on a parity with
the shares of this Series as to dividends or upon liquidation. Unless
full cumulative dividends on the shares of this Series have been paid
for all past Dividend Periods, no Common Shares or any other stock of
the Corporation ranking junior to or on a parity with the shares of
this Series as to dividends or upon liquidation shall 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 Corporation or any subsidiary,
except by conversion into or exchange for stock of the Corporation
ranking junior to the shares of this Series as to dividends and upon
liquidation.
(b) Liquidation.
In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the holders of shares
of this Series are entitled to receive out of the assets of the
Corporation available for distribution to shareholders, before any
distribution of assets is made to holders of Common Shares or any other
class or series of shares ranking junior to the shares of this Series
upon liquidation, liquidating distributions in the amount of $25,000
per share plus all accumulated and unpaid dividends (whether or not
earned or declared) for the then current and all past Dividend Periods.
If, upon any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation the amounts payable with respect to the
shares of this Series and any other shares of the Corporation ranking
as to any such distribution on a parity with the shares of this Series
are not paid in full, the holders of shares of this Series and of such
other shares (including the shares of Series A, Series B, Series D,
Series E, Series F and Series G Preferred Stock and Adjustable Rate
Preferred Stock) will share ratably in any such distribution of assets
of the Corporation in proportion to the full respective preferential
amounts to which they are entitled. After payment of the full amount of
the liquidating distribution to which they are entitled, the holders of
shares of this Series will not be entitled to any further participation
in any distribution of assets by the Corporation.
(1) Written notice of any such liquidation, dissolution or
winding up of the Corporation, stating the payment date or dates when,
and the place or places where the amounts distributable in such
circumstances shall be payable, shall be given by first class mail,
postage pre-paid, not less than 30 nor more than 60 days prior to the
payment date stated therein, to each record holder of the shares of
this Series at the respective addresses of such holders as the same
shall appear on the stock transfer records of the Corporation.
(2) For purposes of liquidation rights, a reorganization
(as defined in Section 181 of the California Corporations Code) or
consolidation or merger of the Corporation with or into any other
corporation or corporations or a sale of all or substantially all of
the assets of the Corporation shall be deemed not to be a liquidation,
dissolution or winding up of the Corporation.
(c) Redemption.
(1) Except as provided in clause (9) below, the shares of
this Series are not redeemable prior to January 31, 2001. On and
after such date, the shares of this Series are redeemable at the option
of the Corporation, by resolution of the Board of Directors, in whole
or in part, from time to time upon not less than 30 nor more than 60
days' notice, at a cash redemption price of $25,000 per share plus all
accumulated and unpaid dividends (whether or not earned or declared) to
the date of redemption.
(2) If fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed will be
determined by the Board of Directors, and such shares shall 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 by lot in a manner determined by
the Board of Directors.
(3) Notwithstanding the foregoing, if any dividends,
including any accumulation, on the shares of this Series are in
arrears, no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire, directly or
indirectly, any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of
this Series pursuant to a purchase or exchange offer provided such
offer is made on the same terms to all holders of shares of this
Series.
(4) Immediately prior to any redemption of shares of this
Series, the Corporation shall pay, in cash, any accumulated and unpaid
dividends through the redemption date, unless a redemption date falls
after a dividend payment record date and prior to the corresponding
dividend payment date, in which case each holder of shares of this
Series at the close of business on such dividend payment record date
shall be entitled to the dividend payable on such shares on the
corresponding dividend payment date notwithstanding the redemption of
such shares before such dividend payment date. Except as expressly
provided hereinabove, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on shares
of this Series called for redemption.
(5) Notice of redemption shall be given by publication in a
newspaper of general circulation in the County of Los Angeles and The
City of New York, such publication to be made once a week for two
successive weeks, commencing not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof. A similar notice will
be mailed by the Company by first class mail, postage pre-paid, to each
record holder of the shares of this Series to be redeemed, not less
than 30 nor more than 60 days prior to such redemption date, to the
respective addresses of such holders as the same shall appear on the
stock transfer records of the Corporation. Each notice shall state:
(i) the redemption date; (ii) the number of shares of this Series to be
redeemed; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accumulate on such redemption date. If fewer than all
the shares of this Series held by any holder are to be redeemed, the
notice mailed to such holder shall also specify the number of shares of
this Series to be redeemed from such holder.
(6) In order to facilitate the redemption of shares of this
Series, the Board of Directors may fix a record date for the
determination of the shares to be redeemed, such record date to be not
less than 30 nor more than 60 days prior to the date fixed for such
redemption.
(7) Notice having been given as provided above, from and
after the date fixed for the redemption of shares of this Series by the
Corporation (unless the Corporation shall fail to make available the
money necessary to effect such redemption), the holders of shares
selected for redemption shall cease to be shareholders with respect
to such shares and shall have no interest in or claim against the
Corporation by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys
payable upon such redemption from the Corporation, less any required
tax withholding amount, without interest thereon, upon surrender (and
endorsement or assignment of transfer, if required by the Corporation
and so stated in the notice) of their certificates, and the shares
represented thereby shall no longer be deemed to be outstanding. If
fewer than all the shares represented by a certificate are redeemed, a
new certificate shall be issued, without cost to the holder thereof,
representing the unredeemed shares. The Corporation may, at its
option, at any time after a notice of redemption has been given,
deposit the redemption price for the shares of this Series designated
for redemption and not yet redeemed, plus any accumulated and unpaid
dividends thereon to the date fixed for redemption, with the transfer
agent or agents for this Series, as a trust fund for the benefit of
the holders of the shares of this Series designated for redemption,
together with irrevocable instructions and authority to such transfer
agent or agents that such funds be delivered upon redemption of such
shares and to pay, on and after the date fixed for redemption or prior
thereto, the redemption price of the shares to their respective holders
upon the surrender of their share certificates. From and after the
making of such deposit, the holders of the shares designated for
redemption shall cease to be shareholders with respect to such shares
and shall have no interest in or claim against the Corporation by
virtue thereof and shall have no voting or other rights with respect
to such shares, except the right to receive from such trust fund the
moneys payable upon such redemption, without interest thereon, upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares represented thereby shall no longer be
deemed to be outstanding. Any balance of such moneys remaining
unclaimed at the end of the five-year period commencing on the date
fixed for redemption shall be repaid to the Corporation upon its
request expressed in a resolution of its Board of Directors.
(8) Any shares of this Series that shall at any time have
been redeemed shall, after such redemption, have the status of
authorized but unissued preferred shares, without designation as
to series until such shares are once more designated as part of a
particular series by the Board of Directors.
(9) If the Board of Directors of the Corporation shall,
at any time and in good faith, be of the opinion that ownership of
securities of the Corporation has or may become concentrated to an
extent that may prevent the Corporation from qualifying as a real
estate investment trust under the REIT Provisions of the Internal
Revenue Code, then the Board of Directors shall have the power, by lot
or other means deemed equitable by them to prevent the transfer of
and/or to call for redemption a number of shares of this Series
sufficient, in the opinion of the Board of Directors, to maintain or
bring the direct or indirect ownership thereof into conformity with the
requirements of such a real estate investment trust under the REIT
Provisions of the Internal Revenue Code. The redemption price to be
paid for shares of this Series so called for redemption, on the date
fixed for redemption, shall be the average of the highest bid and
the lowest asked quotations on the last business day prior to the
redemption date as reported by the National Quotation Bureau,
Incorporated or a similar organization selected from time to time by
the Corporation or if there be no such bid and asked quotations, as
determined by the Board of Directors in good faith; provided that if
interests in shares of this Series are represented by depositary
shares, then the redemption price shall be determined in accordance
with the foregoing, but with respect to one depositary share,
multiplied by the number of depositary shares that together represent
an interest in one share of this Series. From and after the date fixed
for redemption by the Board of Directors, the holder of any shares of
this Series so called for redemption shall cease to be entitled to
any distributions, voting rights and other benefits with respect to
such shares of this Series, other than the right to payment of the
redemption price determined as aforesaid. "REIT Provisions of the
Internal Revenue Code" shall mean Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended. In order to exercise the
redemption option set forth in this clause (9), with respect to the
shares of this Series, the Corporation shall give notice of redemption
by publication in a newspaper of general circulation in the County of
Los Angeles and The City of New York, such publication to be made once
a week for two successive weeks, commencing not less than 30 nor more
than 60 days prior to the date fixed for redemption. A similar notice
will be mailed by the Corporation by first class mail, postage prepaid,
to each record holder of the shares of this Series to be redeemed, not
less than 30 nor more than 60 days prior to such redemption date, to
the respective addresses of such holders as the same shall appear on
the stock transfer records of the Corporation. Each notice shall
state: (i) the redemption date; (ii) the number of shares of this
Series to be redeemed; (iii) the redemption price; (iv) the place or
places where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares
to be redeemed will cease to accumulate on such redemption date. If
fewer than all the shares of this Series held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the
number of shares of this Series to be redeemed from such holder.
(d) Maintenance of Debt Ratio. Without the affirmative vote
or the written consent of the holders of a majority of the shares of
this Series, the Corporation will not take any action that would result
in a ratio of Debt to Assets (the "Debt Ratio") in excess of 50%.
"Debt" means, as of any date of determination, all
liabilities that should, in accordance with GAAP, be reflected as a
liability on the consolidated balance sheet of the Corporation as of
such date of determination; provided, however, that "Debt" shall not
include liabilities included in the consolidated balance sheet under
the headings "accrued and other liabilities" or "minority interest" to
the extent that the inclusion of such liabilities under such headings
is consistent with the Corporation's past practice.
"Assets" means, as of any date of determination, all assets
that should, in accordance with GAAP, be reflected as an asset on
the consolidated balance sheet of the Corporation as of such date of
determination.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America from time to time, consistently
applied.
(e) Voting Rights. The shares of this Series shall not have
any voting powers either general or special, except as required by law,
except as set forth in Section (d) hereof and except that:
(1) (A) If the Corporation shall fail to pay full
cumulative dividends on the shares of this Series or any other of
its preferred shares for six quarterly dividend payment periods,
whether or not consecutive (a "Dividend Default"), the holders of all
outstanding preferred shares, voting as a single class without regard
to series, will be entitled to elect two Directors until full
cumulative dividends for all past dividend payment periods on all
preferred shares have been paid or declared and funds therefor set
apart for payment. Such right to vote separately as a class to
elect Directors shall, when vested, be subject, always, to the same
provisions for the vesting of such right to elect Directors separately
as a class in the case of future Dividend Defaults. At any time when
such right to elect Directors separately as a class shall have so
vested, the Corporation 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 Corporation then outstanding shall, call a special
meeting of stockholders 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 of the
Corporation, provided that the Corporation 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 of the Corporation and the holders of all classes of
outstanding preferred shares are afforded the opportunity to elect such
Directors (or fill any vacancy) at such Annual Meeting of Shareholders.
Directors elected as aforesaid shall serve until the next Annual
Meeting of Shareholders of the Corporation or until their respective
successors shall be elected and qualified. If, prior to the end of the
term of any Director elected as aforesaid, a vacancy in the office of
such Director shall occur during the continuance of a Dividend Default
by reason of death, resignation, or disability, such vacancy shall be
filled for the unexpired term by the appointment of a new Director for
the unexpired term of such former Director, such appointment to be made
by the remaining Director elected as aforesaid.
(B) In addition to the right to elect Directors set
forth in clause (A) above, if, without the affirmative vote or the
written consent of the holders of a majority of the shares of this
Series, on the last day of two consecutive fiscal quarters of the
Corporation, the Debt Ratio exceeds 50% (a "Debt Ratio Default"), the
holders of all outstanding shares of this Series, voting as a single
class, will be entitled to elect two Directors until the Debt Ratio as
of the last day of a fiscal quarter of the Corporation is reduced to
50% or less. Such right to vote separately as a class to elect
Directors shall, when vested, be subject, always, to the same
provisions for the vesting of such right to elect Directors separately
as a class in the case of future Debt Ratio Defaults. At any time
when such right to elect Directors separately as a class shall have
so vested, the Corporation may, and upon the written request of the
holders of record of not less than 20% of the total number of shares
of this Series then outstanding shall, call a special meeting of
stockholders 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 of the
Corporation, provided that the corporation 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 of the Corporation and the holders of shares of this
Series are afforded the opportunity to elect such Directors (or fill
any vacancy) at such Annual Meeting of Shareholders. Directors elected
as aforesaid shall serve until the next Annual Meeting of Shareholders
of the Corporation or until their respective successors shall be
elected and qualified. If, prior to the end of the term of any
Director elected as aforesaid, a vacancy in the office of such Director
shall occur during the continuance of a Debt Ratio Default by reason of
death, resignation, or disability, such vacancy shall be filled for the
unexpired term by the appointment of a new Director for the unexpired
term of such former Director, such appointment to be made by the
remaining Director elected as aforesaid.
(2) The affirmative vote or consent of the holders of at
least 66-2/3% of the outstanding shares of this Series, voting
separately as a class, will be required for any amendment to the
Articles of Incorporation of the Corporation that will adversely alter
or change the powers, preferences, privileges or rights of the shares
of this Series, except as set forth below. The affirmative vote or
consent of the holders of at least 66-2/3% of the outstanding shares
of this Series and any other series of preferred shares ranking on a
parity with this Series as to dividends and upon liquidation (including
the shares of Series A, Series B, Series D, Series E, Series F and
Series G Preferred Stock and Adjustable Rate Preferred Stock), voting
as a single class without regard to series, will be required to issue,
authorize or increase the authorized amount of any class or series of
shares ranking prior to this Series as to dividends or upon liquidation
or to issue or authorize any obligation or security convertible into or
evidencing a right to purchase any such security, but the Articles of
Incorporation may be amended to increase the number of authorized
preferred shares ranking on a parity with or junior to this Series or
to create another class of preferred shares ranking on a parity with or
junior to this Series without the vote of the holders of outstanding
shares of this Series.
(3) The affirmative vote or consent of the holders of a
majority of the outstanding shares of this Series, voting separately as
a class, will be required for any amendment or repeal of the following
provisions of the Bylaws of the Corporation, which would be adverse to
the interests of the holders of shares of this Series, and for any
other changes to the Bylaws of the Corporation that affect these
provisions in a manner which would be adverse to the interests of the
holders of shares of this Series: Article IV, Section 2 (relating to
the Corporation's permissible Asset Coverage), Article VIII, Section
2(g) and (h) (relating to the Corporation's investment policy) and each
of the defined terms used in any of the foregoing provisions.
(4) Except to the extent required pursuant to clause (3)
above, nothing herein shall be taken to require a class vote or consent
in connection with the authorization, designation, increase or issuance
of any shares of any class or series (including additional preferred
shares of any series) that rank junior to or on a parity with this
Series as to dividends and liquidation rights or in connection with
the authorization, designation, increase or issuance of any bonds,
mortgages, debentures or other debt obligations of the Corporation.
(5) The right to elect Directors set forth in clause (1)(B)
above is not intended to be the exclusive remedy of holders of the
shares of this Series in the event of a Debt Ratio Default.
(f) Conversion. The shares of this Series are not
convertible into shares of any other class or series of the capital
stock of the Corporation.
