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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 13, 2000
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Public Storage, Inc.
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(Exact name of registrant as specified in its charter)
California 1-8389 95-3551121
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(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
701 Western Avenue, Glendale, California 91201-2397
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (818) 244-8080
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events
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On July 8, 1999, the Securities and Exchange Commission declared
effective the Registration Statement on Form S-3 (No. 333-81041) of Public
Storage, Inc. (the "Company"), which permits the Company to issue an aggregate
of $800,000,000 of common stock, preferred stock, equity stock, depositary
shares and warrants.
Item 7. Financial Statements and Exhibits
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(c) Exhibits.
Exhibit 1.1 - Underwriting Agreement relating to the Company's
Depositary Shares Representing Shares of the Company's Equity Stock, Series A
(the "Equity Stock").
Exhibit 3.1 - Certificate of Determination for the Equity Stock.
Exhibit 4.1 - Form of Deposit Agreement Relating to the Depositary
Shares.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PUBLIC STORAGE, INC.
By: /s/ SARAH HASS
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Sarah Hass
Vice President
Date: January 13, 2000
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EXHIBIT 1.1
PUBLIC STORAGE, INC.
2,000,000 Depositary Shares
Each Representing 1/1,000 of a Share of
Equity Stock, Series A
Issue Price of $20.00 Per Depositary Share
UNDERWRITING AGREEMENT
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January 13, 2000
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE BANC ALEX. BROWN
A.G. EDWARDS & SONS, INC.
FIRST UNION SECURITIES, INC.
SUTRO & CO. INCORPORATED
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Public Storage, Inc., a real estate investment trust ("REIT") and a
California corporation (the "Company"), proposes to issue and sell 2,000,000
shares (the "Firm Shares") of its Depositary Shares (the "Depositary Shares"),
each representing 1/1,000 of a share of Equity Stock, Series A, stated value
$20,000 per share (the "Equity Stock"), to the several underwriters named in
Schedule I hereto (the "Underwriters"). The Company also proposes to sell to the
several Underwriters not more than an additional 300,000 Depositary Shares (the
"Additional Shares"), if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are herein collectively
called the "Shares."
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The shares of Equity Stock represented by the Shares (the "Equity
Shares") will, when issued, be deposited by the Company against delivery of
Depositary Receipts ("Depositary Receipts") to be issued by BankBoston, N.A., as
Depositary (the "Depositary"), under a Deposit Agreement (the "Deposit
Agreement") among the Company, the Depositary, and the holders from time to time
of the Depositary Receipts issued thereunder. Each Depositary Receipt will
represent one or more Depositary Shares.
1. Registration Statement and Prospectus.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, registration number 333-
81041 (the "Registration Statement"), including the related prospectus included
in the Registration Statement, for the registration under the Securities Act of
1933, as amended (the "Act"), of the offering and sale of, inter alia, the
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Shares. The Company may have filed one or more amendments thereto, including
each related prospectus, and one or more prospectus supplements thereto, each of
which has previously been furnished to the Underwriters. Any registration
statement filed pursuant to Rule 462(b) under the Act is herein referred to as
the "Rule 462(b) Registration Statement," and, after such filing, the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The Company has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Shares
pursuant to Rule 424 under the Act.
2. Agreements to Sell and Purchase and Lock-Up Agreements.
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell, and each Underwriter agrees, severally and not jointly, to purchase
from the Company at a price per share of $20.00 (the "Purchase Price"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell, and the Underwriters shall have a right to purchase, from time to
time, up to an aggregate of 300,000 Additional Shares at the Purchase Price.
Additional
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Shares may be purchased as provided in Section 4 hereof solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any Depositary Shares or shares of Equity
Stock or any securities convertible into or exercisable or exchangeable for
Depositary Shares or shares of Equity Stock or (ii) enter into any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Depositary Shares or shares of Equity Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Depositary Shares or shares of Equity Stock,
or such other securities, in cash or otherwise), except to the Underwriters
pursuant to this Agreement, for a period of 60 days after the date of the
Prospectus Supplement without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. Notwithstanding the foregoing, during such
period, the Company (i) may issue up to 2,300,000 Depositary Shares as a special
distribution payable on January 14, 2000 to the holders of the Company's common
stock, par value $.10 per share, and (ii) may issue Depositary Shares and/or
shares of Equity Stock as all or part of the purchase price for properties
and/or partnership interests to be acquired by the Company in mergers or
otherwise. The Company shall, prior to or concurrently with the execution of
this Agreement, deliver an agreement executed by each of the directors and
executive officers of the Company to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 90 days after the date of the Prospectus, without the prior written
consent of Donaldson, Lufkin & Jenrette Corporation, (a) engage in any of the
transactions described in the first sentence of this Paragraph (except that
Depositary Shares and shares of Equity Stock held by outside directors of the
Company may be pledged to secure a margin account and the holder of those
pledged shares may foreclose on them to settle margin calls) or (b) make any
demand for, or exercise any right with respect to, the registration of any
Depositary Shares or shares of Equity Stock or any securities convertible into
or exercisable or exchangeable for Depositary Shares or shares of Equity Stock.
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3. Terms of Public Offering.
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The Company is advised by the Underwriters that the Underwriters
propose (i) to make a public offering of their respective portions of the Shares
as soon after the filing of the Prospectus Supplement with the Commission as in
the Underwriters' judgment is advisable and (ii) initially to offer the Shares
upon the terms set forth in the Prospectus Supplement.
4. Delivery and Payment.
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Delivery to the Underwriters of and payment for the Shares shall be
made at 10:00 a.m., New York City time, on the third or fourth business day
following the date of the filing of the Prospectus Supplement with the
Commission (the "Closing Date"), unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), at such place as the Underwriters shall designate. The Closing
Date and the location of delivery of and the form of payment for the Shares may
be varied by agreement between the Underwriters and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as the
Underwriters shall designate in writing, at 10:00 a.m., New York City time, on
such date or dates (individually, an "Option Closing Date"), which may be the
same as the Closing Date but shall in no event be earlier than the Closing Date,
as shall be specified in a written notice from the Underwriters to the Company
of the Underwriters' determination to purchase a number, specified in said
notice, of Additional Shares. Any such notice may be given at any time not
later than 45 days after the date of this Agreement. Any Option Closing Date
and the location of delivery of and payment for the Additional Shares may be
varied by agreement between the Underwriters and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as the Underwriters shall request in writing not
later than two full business days prior to the Closing Date or the applicable
Option Closing Date, as the case may be. Such certificates shall be made
available to the Underwriters for inspection not later than 9:30 a.m., New York
City time, on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be. Unless the Underwriters request that
the Shares be delivered to the Underwriters' account at The Depository Trust
Company, certifi-
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cates in definitive form evidencing the Shares shall be delivered to the
Underwriters on the Closing Date or the applicable Option Closing Date, as the
case may be, with any transfer taxes thereon duly paid by the Company, against
payment of the Purchase Price therefor by wire transfer of immediately available
funds to the order of the Company.
5. Agreements of the Company. The Company agrees with the
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Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by any Underwriter or any
dealer, file any amendment or supplement to the Registration Statement
(including any filing under Rule 462(b) under the Act) or the Prospectus, unless
a copy thereof shall first have been submitted to the Underwriters within a
reasonable period of time prior to the filing thereof and the Underwriters shall
not have objected thereto in good faith.
(b) The Company will use its best efforts to cause any Rule 462(b)
Registration Statement and any post-effective amendment to the Registration
Statement to become effective and will notify the Underwriters promptly, and
will confirm such advice in writing, (i) when any Rule 462(b) Registration
Statement and any post-effective amendment to the Registration Statement become
effective, (ii) of the receipt of any comments from or any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, (iv) of the happening of any event during the period mentioned in the
second sentence of Section 5(e) that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in which they are made, not misleading, and (v) of receipt by the
Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Company, the Registration
Statement, any Preliminary Prospectus or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment.
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(c) The Company will furnish to the Underwriters, without charge, two
copies of the signed copies of the Registration Statement and of any post-
effective amendment thereto, including financial statements and schedules, and
all exhibits thereto (including any document filed under the Exchange Act and
incorporated, or deemed to be incorporated, by reference into the Prospectus).
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) The Company will deliver to each of the Underwriters, without
charge, as many copies of the Prospectus or any amendment or supplement thereto
as the Underwriters may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for any period of time
thereafter during which the Prospectus is required by law to be delivered in
connection therewith. If during such period of time any event shall occur which
in the judgment of the Company or counsel to the Underwriters should be set
forth in the Prospectus in order to make any statement therein, in the light of
the circumstances under which it was made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with law, subject to the
provisions of Section 5(a) hereof, the Company will forthwith prepare and duly
file with the Commission an appropriate supplement or amendment thereto, and
will deliver to the Underwriters, without charge, such number of copies thereof
as the Underwriters may reasonably request. The Company shall not file any
document under the Exchange Act before the termination of the offering of the
Shares by the Underwriters if such document would be deemed to be incorporated
by reference into the Prospectus which is not approved by the Underwriters after
reasonable notice thereof.
(f) The Company will cooperate with the Underwriters and counsel to
the Underwriters in connection with the registration or qualification of the
Shares and the Equity Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Underwriters may reasonably request; provided,
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that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not now
so subject. The Company will inform the Florida Department of Banking and
Finance if, at any time prior to the completion of the distribution of the
Shares by the Underwriters, it commences engaging in business with the
government of Cuba
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or with any person or affiliate located in Cuba. Such information will be
provided within 90 days after the commencement thereof or after a change occurs
with respect to previously reported information.
(g) During the period of five years commencing on the date hereof,
the Company will furnish to each of the Underwriters who may so request copies
of such financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders of any class
of its capital stock, and will furnish to each of the Underwriters who may so
request a copy of each annual or other report it shall be required to file with
the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but shall
be in reasonable detail), with respect to the Company, the Subsidiaries and the
Partnerships, for a period of 12 months commencing after the Effective Date of
the Registration Statement, and satisfying the provisions of Section 11(a) of
the Act (including Rule 158 thereunder) and will file such earnings statement as
an exhibit to the next periodic report required by Section 13 or 15(d) of the
Exchange Act covering the period when the earnings statement is released.
(i) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to notice
given by the Underwriters terminating this Agreement pursuant to Section 9) or
if this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) reasonably incurred by the Underwriters in
connection herewith.
(j) The Company will not at any time, directly or indirectly, take
any action intended, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of the Shares to
facilitate the sale or resale of any of the Shares in violation of the Act.
(k) The Company will apply the net proceeds from the offering and
sale of the Shares by the Underwriters in the manner set forth in the Prospectus
under "Use of Proceeds."
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(l) The Company will use its best efforts to have the Shares listed,
subject to notice of issuance, on the New York Stock Exchange.
(m) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), and all
amendments and supplements to any of them prior to or during the period
specified in Section 5(e), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in Section 5(e),
(iii) the printing and delivery of this Agreement and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Shares (including in each case any
disbursements of counsel for the Underwriters relating to such printing and
delivery), (iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the Underwriters relating to
such registration or qualification and memoranda relating thereto), (v) filings
and clearance with the National Association of Securities Dealers, Inc. in
connection with the offering, (vi) the listing of the Shares on the NYSE and
(vii) furnishing such copies of the Registration Statement, the Prospectus and
all amendments and supplements thereto as may be requested for use in connection
with the offering or sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold.
6. Representations and Warranties of the Company. The Company
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represents and warrants to each Underwriter that:
(a) The Company has filed with the Commission the Registration
Statement on Form S-3, including the related prospectus included in the
Registration Statement, for the registration under the Act of the offering and
sale of, inter alia, the Shares. The Company may have filed one or more
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amendments thereto, including each related prospectus, and one or more
prospectus supplements thereto, each of which has previously been furnished to
the Underwriters. Any registration statement filed pursuant to Rule 462(b)
under the Act is herein referred to as the "Rule 462(b) Registration Statement,"
and, after such filing, the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The Company has filed with, or transmitted for
filing to, or shall promptly hereafter file with or transmit for filing to, the
Commission a Prospectus Supplement specifically relating to the Shares pursuant
to Rule 424 under the Act. The Company has included or will include in such
Registration Statement, as amended
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at the Execution Time, and in the Prospectus Supplement all information required
by the Act and the rules thereunder to be included therein with respect to the
Shares and the offering thereof. As filed, such Registration Statement, as so
amended, and form of final prospectus contained in the Registration Statement
and Prospectus Supplement, or such final prospectus and Prospectus Supplement,
contains or will contain all required information with respect to the Shares and
the offering thereof and, except to the extent the Underwriters shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to the Underwriters prior to the date hereof or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes as the Company has advised the Underwriters, prior
to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus and the Prospectus Supplement is first filed in
accordance with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the requirements
of the Act and the rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
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warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter specifically for inclusion in the Registration Statement or
the Prospectus (or any supplement thereto).
(c) The Registration Statement has become effective under the Act,
and no stop order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for such purpose are, to the knowledge of the
Company, pending before or threatened by the Commission.
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or
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hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and, when read together with the other
information in the Prospectus, at the date of the Prospectus and at the Closing
Time, did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances, under which they were made, not misleading.
(e) The only subsidiaries of the Company are the Subsidiaries (as
defined below). Each of the Company, SEI Arlington Acquisition Corporation
("SEI Arlington"), SEI Hypoluxo Acquisition Corporation ("Hypoluxo"), PSTI/SEI
- - North Bergen Acquisition Corporation ("PSTI"), SEI-Sandy Acquisition
Corporation ("Sandy"), PS Orangeco, Inc. ("Orangeco"), Public Storage Pickup &
Delivery, Inc. ("PSPUD"), PSI Institutional Advisors, Inc. ("PSIIA"), PSAF
Development, Inc. ("PSAF Inc.") PS GPT Properties, Inc. ("PS GPT"), PS LPT
Properties Investors ("PS LPT"), PS Partners II Merger Co., Inc. ("PSPIIM"),
Belmont Acquisition Co. ("Belmont"), Newco Merger Subsidiary, Inc. ("Newco") and
SEI - Firestone Acquisition Corporation ("SEI Firestone" and, together with SEI
Arlington, Hypoluxo, PSTI, Sandy, Orangeco, PSPUD, PSIIA, PS GPT, PS LPT,
PSPIIM, Belmont, Newco and PSAF Inc., the "Subsidiaries") and PS Partners, Ltd.
("PSPI"), PS Partners II, Ltd. ("PSPII"), PS Partners III, Ltd. ("PSPIII"), PS
Partners IV, Ltd. ("PSPIV"), PS Partners V, Ltd. ("PSPV"), PS Partners VI, Ltd.
("PSPVI"), PS Partners VII, Ltd. ("PSPVII"), PS Partners VIII, Ltd. ("PSPVIII"),
PS Texas Holdings, Ltd. ("Texas Holdings"), PSAF Development Partners, L.P.
("PSAF LP") and PSAC Development Partners, L.P. ("PSAC LP" and, together with
PSPI, PSPII, PSPIII, PSPIV, PSPV, PSPVI, PSPVII, PSPVIII and Texas Holdings, the
"Partnerships") has been duly organized and is validly existing (in the case of
the Company and each of the Subsidiaries, as a corporation) in good standing
under the laws of the jurisdiction in which it is organized, with full power and
authority to own or lease and occupy its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business, and is in
good standing, in each jurisdiction which requires such qualification, except
where the failure to so qualify would not, individually or in the aggregate,
have a material adverse effect on the business, operations, earnings, assets or
financial condition of the Company (a "Material Adverse Effect"). All of the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and are owned
by the Company (in the case of Orangeco, approximately 95% owned), directly, or
indirectly through another Subsidiary, free and clear of any lien, adverse
claim,
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security interest, equity, or other encumbrance. The Company owns as of the date
hereof approximately 100%, 100%, 100%, 56%, 61%, 61%, 100% and 100% of the
limited partnership units of PSPI, PSPII, PSPIII, PSPIV, PSPV, PSPVI, PSPVII and
PSPVIII, respectively. The Company owns as of the date hereof an approximately
30% economic interest in PSAF LP, a 51% economic interest in PSAC LP and a 100%
economic interest in Texas Holdings.
(f) The Company, each of the Subsidiaries and each Partnership have
all requisite power and authority, and all necessary material authorizations,
approvals, orders, licenses, certificates and permits of and from all regulatory
or governmental officials, bodies and tribunals, to own or lease their
respective properties and to conduct their respective businesses as now being
conducted and as described in the Prospectus; all such authorizations,
approvals, licenses, certificates and permits are in full force and effect,
except where the failure to be in full force and effect would not have a
Material Adverse Effect on the Company, such Subsidiary or such Partnership; and
the Company, each of the Subsidiaries and each Partnership are complying with
all applicable laws, the violation of which could have a Material Adverse Effect
on the Company, such Subsidiary or such Partnership, as the case may be.
(g) The Company, each Subsidiary and each Partnership have good and
marketable title to their properties, free and clear of all material liens,
charges and encumbrances and equities of record, except as set forth or
reflected in the Prospectus.
(h) The Company, each Subsidiary and each Partnership maintains
adequate insurance for the conduct of their respective business as described in
the Prospectus.
(i) The Company, either directly or through the Subsidiaries or
Partnerships, owns or licenses or otherwise has the right to use all patents,
trademarks, trade names and trade secrets material to the Company's business as
described in the Prospectus; other than routine proceedings which if adversely
determined would not materially affect the business (as described in the
Prospectus) of the Company, the Subsidiaries and the Partnerships taken as a
whole, no claims have been asserted by any person with respect to the use of any
such patents, trademarks, trade names or trade secrets or challenging or
questioning the validity or effectiveness of any such patents, trademarks, trade
names or trade secrets; to the best knowledge of the Company, the use, in
connection with the
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business and operations of the Company, the Subsidiaries and the Partnerships,
of such patents, trademarks and trade names does not infringe on the rights of
any person.
(j) The Company's authorized capitalization is as set forth in the
Prospectus (including the Incorporated Documents); the capital stock of the
Company conforms in all material respects to the description thereof contained
in the Prospectus; the outstanding shares of common stock, par value $.10 per
share, of the Company (the "Common Stock"), Class B common stock, par value $.10
per share, of the Company (the "Class B Common Stock"), Series A Preferred
Stock, par value $.01 per share, of the Company (the "Series A Preferred
Stock"), Series B Preferred Stock, par value $.01 per share, of the Company (the
"Series B Preferred Stock"), Adjustable Rate Cumulative Preferred Stock, Series
C, stated value $25.00 per share, of the Company (the "Series C Preferred
Stock"), 9.50% Cumulative Preferred Stock, Series D, stated value $25.00 per
share, of the Company (the "Series D Preferred Stock"), 10% Cumulative Preferred
Stock, Series E, stated value $25.00 per share, of the Company (the "Series E
Preferred Stock"), 9.75% Cumulative Preferred Stock, Series F, stated value of
$25.00 per share, of the Company (the "Series F Preferred Stock"), 8-7/8%
Cumulative Preferred Stock, Series G, stated value of $25,000 per share, of the
Company (the "Series G Preferred Stock"), 8.45% Cumulative Preferred Stock,
Series H, stated value of $25,000 per share, of the Company (the "Series H
Preferred Stock"), 8-5/8% Cumulative Preferred Stock, Series I, stated value of
$25,000 per share, of the Company (the "Series I Preferred Stock"), 8%
Cumulative Preferred Stock, Series J, stated value of $25,000 per share, of the
Company (the "Series J Preferred Stock"), 8 1/4% Cumulative Preferred Stock,
Series K, stated value of $25,000 per share, of the Company (the "Series K
Preferred Stock"), 8 1/4% Cumulative Preferred Stock, Series L, stated value of
$25,000 per share, of the Company (the "Series L Preferred Stock"), 8.75%
Cumulative Preferred Stock, Series M, stated value of $25,000 per share, of the
Company (the "Series M Preferred Stock"), Equity Stock, Series AA, of the
Company ("Series AA Equity Stock"), and Equity Stock, Series AAA, of the Company
("Series AAA Equity Stock") have each been duly and validly authorized and
issued in compliance with all Federal and state securities laws, and are fully
paid and nonassessable; the Shares and the Equity Shares have been duly and
validly authorized and, when issued and delivered pursuant to this Agreement
and, in the case of the Shares, the Deposit Agreement, will be fully paid and
nonassessable; application has been made to list the Shares on the New York
Stock Exchange; the form of certificate for the Shares will be in valid and
sufficient form in compliance with New York
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Stock Exchange requirements; and the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to subscribe
for the Shares or the Equity Stock.
(k) There is no pending or, to the best knowledge of the Company,
after due inquiry, threatened, action, suit, proceeding or investigation before
any court, governmental agency, authority or body or arbitrator involving the
Company, any of the Subsidiaries or any of the Partnerships or any of their
respective officers or any of their respective properties, assets or rights of a
character required to be disclosed in the Registration Statement or Prospectus
which is not adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(l) The Company has full corporate power and authority to enter into
and perform its obligations under this Agreement and the Deposit Agreement and
to issue, sell and deliver the Shares and to issue and deliver the Equity
Shares; and this Agreement and the Deposit Agreement have been duly authorized;
and this Agreement has been, and the Deposit Agreement as of January 14, 2000,
will have been, duly executed and delivered by the Company. When so executed,
the Deposit Agreement will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether a proceeding is considered at law or in equity).
(m) No consent, approval, authorization or order of any court or
governmental agency, authority or body is required (and has not been received)
for the execution by the Company of this Agreement or the Deposit Agreement, the
performance by the Company of its obligations hereunder or thereunder or the
consummation by the Company of the transactions contemplated herein or therein,
except such as are required under the state securities or the Blue Sky laws of
any jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters. Neither the Company nor any of its affiliates is presently
doing any business with the government of Cuba or with any person or affiliate
located in Cuba.
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(n) Neither the Company nor any of the Subsidiaries is in violation
of, in conflict with, in breach of or in default under (and none of them know of
an event which with the giving of notice or the lapse of time or both would be
reasonably likely to constitute a default under) its charter or by-laws, and
none of the Partnerships is in violation of its respective partnership agreement
(and none of them know of an event which with the giving of notice or the lapse
of time or both would be reasonably likely to constitute a violation), and
neither the Company, any Subsidiary nor any Partnership is in default in the
performance of any obligation, agreement or condition contained in any loan,
note or other evidence of indebtedness or in any indenture, mortgage, deed of
trust or any other material agreement by which it or its properties are bound,
except for such defaults as could not, individually or in the aggregate, have a
Material Adverse Effect on the Company, such Subsidiary or such Partnership, as
the case may be.
(o) Neither the Company, any of the Subsidiaries nor any of the
Partnerships has violated any environmental, safety or similar law or regulation
applicable to its business relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants, nor has the Company, any of the Subsidiaries nor any of the
Partnerships violated any Federal, state or local law relating to discrimination
in the hiring, promotion, pay or terms or conditions of employment of employees
nor any applicable wage or hour laws, nor has the Company or any of the
Partnerships engaged in any unfair labor practice, which in each case could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on the Company, such Subsidiary or such Partnership, as the case
may be.
(p) Neither the issue and sale of the Shares nor the consummation of
any of the other transactions herein contemplated (including without limitation
the execution, delivery and performance of the Deposit Agreement, the issuance
and deposit of the Equity Shares in accordance with the Deposit Agreement and
the consummation of the transactions contemplated therein) nor the fulfillment
of the terms hereof or thereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or by-laws of
the Company or any of the Subsidiaries or the partnership agreement of any of
the Partnerships or the terms of any indenture or other agreement or instrument
to which the Company, any of the Subsidiaries or any of the Partnerships is a
party or is bound or any judgment, order or decree applicable to the Company,
any of the Subsidiaries or any of the Partnerships of any court, regulatory
body, administrative agency,
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<PAGE>
governmental body or arbitrator having jurisdiction over the Company, any of the
Subsidiaries or any of the Partnerships.
(q) The Company has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and published
interpretations thereunder with respect to each "pension plan" (as defined in
ERISA and such regulations and published interpretations) in which employees of
the Company are eligible to participate and each such plan is in compliance in
all material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations (except for such failure to so comply
that would not have, singularly or in the aggregate with all other such failures
to comply, a Material Adverse Effect), and has not incurred any unpaid liability
to the Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of ERISA.
(r) Other than as described in the Prospectus (including the
Incorporated Documents) and other than the grant or assumption of options to
purchase 1,576,626 shares of Common Stock since January 1, 1999 (of which
1,365,170 shares underlying such options are outstanding as of the date of this
Agreement), there are no outstanding warrants or options to purchase any shares
of capital stock of the Company and there are no restrictions upon the voting or
transfer of, or the declaration or payment of any dividend or distribution on,
any shares of capital stock of the Company pursuant to the articles of
incorporation or by-laws of the Company, any agreement or other instrument to
which the Company is a party or by which the Company is bound, or any order,
law, rule, regulation or determination of any court, governmental agency or body
(including, without limitation, any banking or insurance regulatory agency or
body), or arbitrator having jurisdiction over the Company. No holders of
securities of the Company have rights to the registration of such securities
under the Registration Statement.
(s) The Company is qualified, has been qualified since January 1,
1981, has been operating, since the beginning of the current fiscal year, in a
manner that would continue to permit it to be qualified, and intends to operate
so as to continue to be qualified, (i) as a REIT under Section 856 et seq. of
-- ----
the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) to be taxed
on its "real estate investment trust income" pursuant to Section 857 of the
Code.
15
<PAGE>
(t) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
this Agreement to be delivered to the Underwriters is, or will be, when made,
inaccurate, untrue or incorrect in any material respect.
(u) Neither the Company nor any of its officers, directors, or
controlling persons has taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares in violation of the Act.
(v) To the best of the Company's knowledge, the firm of accountants
that have certified or shall certify the applicable financial statements and
supporting schedules filed or to be filed with the Commission as part of (or
incorporated by reference in) the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and any other
applicable entity, as required by the Act. The financial statements, together
with related schedules and notes, incorporated by reference in the Prospectus
and the Registration Statement comply as to form in all material respects with
the requirements of the Act. Such financial statements fairly present the
consolidated financial position of the Company, the Subsidiaries and the
Partnerships at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated, and have
been prepared in accordance with generally accepted accounting principles,
except as otherwise expressly stated therein, as consistently applied throughout
such periods. The pro forma financial statements and the related notes thereto,
and the other pro forma financial information, included or incorporated by
reference in the Prospectus and the Registration Statement present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein, in all material
respects, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. The other financial and statistical
information and data included in the Prospectus and in the Registration
Statement are, in all material respects, accurately presented and prepared on a
basis consistent with applicable financial statements and the books and records
of the Company, the Subsidiaries and the Partnerships or, with respect to
information and data relating to persons other than the Company, the
Subsidiaries and the Partnerships, other information available to the Company.
16
<PAGE>
(w) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company, any of the Subsidiaries nor any of the Partnerships has incurred
any liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to the
Company, the Subsidiaries and the Partnerships taken as a whole, and there has
not been any material change in the capital stock, or material increase in the
short-term debt or long-term debt, of the Company, any Subsidiary or any of the
Partnerships, or any material adverse change, or any development (that relates
to the Company, the Subsidiaries and the Partnerships or to any of its
respective properties or assets) which may reasonably be expected to involve a
prospective material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company, the Subsidiaries
and the Partnerships taken as a whole.
(x) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, the Prospectus or
other materials, if any, permitted by the Act.
(y) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that in all material respects (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) To the Company's knowledge, neither the Company, any of its
Subsidiaries nor any of the Partnerships nor any employee or agent of the
Company, any Subsidiary or any Partnership has made any payment of funds of the
Company, any Partnership or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
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<PAGE>
(aa) The Company, each of the Subsidiaries and each of the
Partnerships have filed all tax returns required to be filed (except to the
extent extensions have been timely filed related thereto), which returns are
complete and correct in all material respects, and neither the Company, any
Partnership nor any Subsidiary is in default in the payment of any taxes which
were payable pursuant to said returns or any assessments with respect thereto.
(ab) Assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Share will represent an interest in
1/1,000 of a share of a validly issued, outstanding, fully paid and
nonassessable share of Equity Stock; assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.
(ac) To the best of the Company's knowledge, no labor disturbance by
the employees of the Company, the Subsidiaries or the Partnerships exists or is
imminent that would, individually or in the aggregate, have a Material Adverse
Effect. No collective bargaining agreement exists with any of the Company's
employees and, to the best of the Company's knowledge, no such agreement is
imminent.
(ad) The Company has been advised concerning the Investment Company
Act of 1940, as amended (the "1940 Act"), and the rules and regulations
thereunder, and has in the past conducted, and intends in the future to conduct,
its affairs in such a manner as to ensure that it will not become an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the 1940 Act and such rules and regulations.
(ae) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus or preliminary
prospectus supplement relating to the Shares and the Equity Shares, in each case
filed pursuant to Rule 424(b). "Prospectus" shall mean the prospectus and any
Prospectus Supplement relating to the Shares that is first filed pursuant to
Rule 424(b) after the Execution Time. "Registration Statement" shall mean the
Registration State-
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<PAGE>
ment referred to in Paragraph (a) above, including exhibits and financial
statements, as amended at the Execution Time and, in the event any post-
effective amendment thereto becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended. "Rule 424" refers to such
rule under the Act. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein either pursuant to the terms of
the Registration Statement or pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectus or the Prospectus, as
the case may be (collectively, the "Incorporated Documents"); and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon and in
conformity with information relating to any Underwriter furnished in writing to
the Company by or on behalf of such Underwriter expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
Preliminary Prospectus shall not inure to the benefit any Underwriter, or any
person controlling any Underwriter, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriters
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented)
19
<PAGE>
would have cured the defect giving rise to such loss, claim, damage, liability
or judgment.
(b) In case any action shall be brought against any of the
Underwriters or any person controlling any of the Underwriters, based upon any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, the Underwriters shall promptly notify the Company
in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. The Underwriters or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Underwriters or such controlling person unless
(i) the employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Underwriters or such controlling person and
the Company and the Underwriters or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of the Underwriters or such controlling person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Underwriters and controlling persons,
which firm shall be designated in writing by the Underwriters and that all such
fees and expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless the Underwriters and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than 30 business days
20
<PAGE>
after the receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall have failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(c) The Underwriters agree to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Underwriters but only with reference to information
relating to the Underwriters furnished in writing by or on behalf of the
Underwriters expressly for use in the Registration Statement or the Prospectus.
In case any action shall be brought against the Company, any of its directors,
any such officer or any person controlling the Company based on the Registration
Statement, the Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters shall have
the rights and duties given to the Company (except that if the Company shall
have assumed the defense thereof, the Underwriters shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of the
Underwriters), and the Company, its directors, any such officers and any person
controlling the Company shall have the rights and duties given to the
Underwriters, by Section 7(b).
(d) If the indemnification provided for in Section 7 is unavailable
to an indemnified party in respect of any losses, claims, damages, liabilities
or judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 7(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 7(d)(i) above but also the relative fault of the Company
and the Underwriters in connection with the state-
21
<PAGE>
ments or omissions which resulted in such losses, claims, damages, liabilities
or judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding Paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding Paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total underwriting
discount applicable to the Shares purchased by such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to Section 7(d) are several in proportion to
the respective number of Shares purchased
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<PAGE>
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement (including any post-effective
amendment thereto) shall have become effective not later than 5:00 p.m. (and in
the case of a Registration Statement filed under Rule 462(b) of the Act, not
later than 10:00 p.m.), New York City time, on the date of this Agreement or at
such later date and time as the Underwriters may approve in writing, and at the
Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or, to the knowledge of the Company or
the Underwriters, contemplated by the Commission.
(c)(i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
affairs or business prospects, whether or not arising in the ordinary course of
business, of the Company, the Subsidiaries and the Partnerships taken as a
whole; (ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material change, or any development involving a prospective material change, in
the capital stock or in the long-term debt of the Company from that set forth in
the Registration Statement and Prospectus; (iii) the Company, the Subsidiaries
and the Partnerships shall have no liability or obligation, direct or
contingent, which is material to the Company, the Subsidiaries and the
Partnerships, taken as a whole, other than those reflected in the Registration
Statement and the Prospectus and (iv) on the Closing Date the Underwriters shall
have received a certificate dated the Closing Date, signed by Harvey Lenkin and
John Reyes in their capacities as the President, and Senior Vice President and
Chief Financial Officer, respectively, of the Company, confirming the matters
set forth in Sections 8(a), (b) and (c).
23
<PAGE>
(d) The Underwriters shall have received on the Closing Date an
opinion (satisfactory to the Underwriters and counsel for the Underwriters),
dated the Closing Date, of David Goldberg, counsel for the Company, to the
effect that:
(i) Each of the Company, the Subsidiaries and the Partnerships has
been duly organized and is validly existing (in the case of the
Company and each of the Subsidiaries, as a corporation) in good
standing under the laws of the jurisdiction in which it is organized,
with full power and authority to own or lease and occupy its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business, and is in good standing, in each
jurisdiction which requires such qualification, except where the
failure to so qualify would not, individually or in the aggregate,
have a Material Adverse Effect;
(ii) All of the Company's ownership interests in the Partnerships are
owned free and clear of any perfected security interest and, to my
knowledge, after due inquiry, any other security interests, claims,
liens or encumbrances;
(iii) The Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Prospectus in all material
respects; the statements in the Prospectus Supplement under the
caption "Description of Equity Stock and Depositary Shares" and in the
Prospectus under the captions "Description of Equity Stock" and
"Description of the Depositary Shares," insofar as such statements
constitute summaries of the documents referred to therein, have been
reviewed by such counsel and fairly summarize the matters referred to
therein in all material respects; the outstanding shares of Common
Stock, Class B Common Stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock, Series H Preferred Stock, Series I Preferred Stock, Series J
Preferred Stock, Series K Preferred Stock, Series L Preferred Stock,
Series M Preferred Stock, Series AA Equity Stock and Series
24
<PAGE>
AAA Equity Stock have been duly and validly authorized and issued and
are fully paid and nonassessable and the deposit of the Equity Shares
in accordance with the Deposit Agreement has been duly authorized; the
Shares and the Equity Shares have been duly and validly authorized,
and, when issued and delivered pursuant to the Agreement and the
Deposit Agreement and, in the case of the Shares, paid for by the
Underwriters pursuant to the Agreement, will be fully paid and
nonassessable; the Shares have been duly authorized for listing,
subject to official notice of issuance, on the New York Stock
Exchange; the forms of certificates for the Shares are in valid and
sufficient form in compliance with New York Stock Exchange
requirements; and the holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other rights to
subscribe for the Shares or the Equity Stock;
(iv) To the best of my knowledge, after due inquiry, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or arbitrator involving the
Company, any of the Subsidiaries or any of the Partnerships of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit, which is not described or filed as required; and, to
the best of my knowledge, after due inquiry, the statements in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 under Part II, Item 7 -"Management's Discussion and
Analysis of Financial Condition and Results of Operations -
Distribution Requirements" and under Part III, Item 13 - "Certain
Relationships and Related Transactions" (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need not express any opinion) fairly
summarize the matters therein described in all material respects;
25
<PAGE>
(v) The Registration Statement and the Prospectus and any amendment or
supplement thereto comply as to form in all material respects with the
requirements for the use of Form S-3 and the rules and regulations
thereunder, and the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the financial statements
and other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules thereunder and
each of the Incorporated Documents (or, if any amendment with respect
to any such document was filed, when such document was filed),
complied as to form in all material respects with the requirements of
the Exchange Act and the rules thereunder (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion);
(vi) The Company has full corporate power and authority to enter into
and perform its obligations under the Agreement and the Deposit
Agreement and to issue, sell and deliver the Shares and to issue and
deliver the Equity Stock; and the Agreement and the Deposit Agreement
have each been duly authorized, executed and delivered by the Company;
(vii) No consent, approval, authorization or order of any court or
governmental agency, authority or body is required for the execution
by the Company of the Agreement or the Deposit Agreement, the
performance by the Company of its obligations hereunder or thereunder
or the consummation of the transactions contemplated herein or
therein, except such as have been obtained under the Act and the
Exchange Act and such as may be required under the Blue Sky laws of
any jurisdiction in connection with the purchase and distribution by
the Underwriters of the Shares;
(viii) The Company, each Subsidiary and each Partnership have all
requisite power and authority, and, to the best knowledge of such
counsel, after due inquiry, all necessary material authorizations,
approvals, orders, licenses, certifi-
26
<PAGE>
cates and permits of and from all regulatory or governmental
officials, bodies and tribunals, to own or lease their respective
properties and to conduct their respective businesses as now being
conducted and as described in the Prospectus; and, to the best of my
knowledge, after due inquiry, all such authorizations, approvals,
licenses, certificates and permits are in full force and effect,
except where the failure to be in full force and effect would not have
a Material Adverse Effect on the Company, such Subsidiary or such
Partnership, and the Company, each Subsidiary and each Partnership are
complying with all applicable laws, the violation of which could have
a Material Adverse Effect on the Company, such Subsidiary or such
Partnership, as the case may be;
(ix) The Company and each of the Subsidiaries are not in violation of
its articles of incorporation or by-laws, and each of the Partnerships
is not in violation of its respective partnership agreement, and to
the best of my knowledge, after due inquiry, neither the Company, the
Subsidiaries nor any Partnership is in default in the performance of
any obligation, agreement or condition contained in any loan, note or
other evidence of indebtedness or in any indenture, mortgage, deed of
trust or any other material agreement by which it or its properties
are bound, except for such defaults as could not, individually or the
aggregate, have a Material Adverse Effect on the Company, such
Subsidiary or such Partnership, as the case may be;
(x) Neither the issue and sale of the Shares nor the consummation of
any of the other transactions contemplated by the Agreement (including
without limitation the execution, delivery and performance of the
Deposit Agreement, the issuance and deposit of the Equity Shares in
accordance with the Deposit Agreement and the consummation of the
transactions contemplated therein) nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation
of, or constitute a default under any law or the articles of
incorporation or by-laws of the Company or the Subsidiaries or the
partnership agreement of any of the Partnerships or the
27
<PAGE>
terms of any indenture or other agreement or instrument known to me
and to which the Company, any of the Subsidiaries or any of the
Partnerships is a party or is bound or any judgment, order or decree
known to me to be applicable to the Company, any of the Subsidiaries
or any of the Partnerships of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company, any of the Subsidiaries or any of the
Partnerships;
(xi) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement,
except as provided therein;
(xii) Any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and, to the best of my
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened;
(xiii) To the best of such counsel's knowledge, after reasonable
inquiry, neither the Company, any of the Subsidiaries nor any of the
Partnerships is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company, any of the
Subsidiaries or any of the Partnerships or of any decree of any court
or governmental agency or body having jurisdiction over the Company,
any of the Subsidiaries or any of the Partnerships, the violation of
which could have a Material Adverse Effect on the Company, such
Subsidiary or such Partnership, as the case may be;
(xiv) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be shown
in all material respects;
28
<PAGE>
(xv) The Company, the Subsidiaries and the Partnerships own or have
the right to use all patents, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by them or any of them or necessary for the
conduct of their respective businesses, and, other than routine
proceedings which if adversely determined would not materially affect
the business of the Company, the Subsidiaries and the Partnerships
taken as a whole as described in the Prospectus, such counsel is not
aware of any claim to the contrary or any challenge by any other
person to the rights of the Company, the Subsidiaries and the
Partnerships with respect to the foregoing;
(xvi) Except as described in the Prospectus and in Section 6(r) of the
Agreement, to the best of such counsel's knowledge, after reasonable
inquiry, there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or
any security convertible into or exchangeable or exercisable for
capital stock of the Company;
(xvii) Except as described in the Prospectus and in Section 6(r) of
the Agreement, to the best of such counsel's knowledge, after
reasonable inquiry, there is no holder of any security of the Company
or any other person who has the right, contractual or otherwise, to
cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, the Shares or the Equity Shares or the
right to have any Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of
the filing of the Registration Statement, to require registration
under the Act of any shares of Common Stock or other securities of the
Company;
(xviii) Assuming due authorization, execution and delivery by the
Depositary, the Deposit Agreement constitutes the
29
<PAGE>
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and (regardless of whether a proceeding is
considered at law or in equity);
(xix) When the Shares evidenced by the Depositary Receipts are issued
and delivered in accordance with the terms of the Deposit Agreement
against the deposit of duly authorized and issued, fully paid and
nonassessable shares of Equity Stock, the Depositary Receipts will
entitle the holders thereof to the benefits provided therein and in
the Deposit Agreement.
In addition, such counsel shall state that he has participated in
conferences with representatives of the Underwriters, and with officers and
other representatives of the Company and representatives of the independent
certified public accountants of the Company, at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel does not pass upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus, on the basis of the
foregoing (relying as to certain factual matters on the information provided to
such counsel by the Company and not on an independent investigation, but in the
absence of information to the contrary), no facts have come to such counsel's
attention which leads such counsel to believe that the Registration Statement,
as of its effective date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of its
date and as of the date hereof, contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that such counsel need not express any comment with respect to the
- --------
financial statements and other financial data included in the Registration
Statement or Prospectus.
30
<PAGE>
(e) The Underwriters shall have received an opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the Underwriters,
from Hogan & Hartson L.L.P., counsel for the Company, to the effect that:
(i) The statements in the Prospectus under the heading "Federal Income
Tax Consequences" and "Risk Factors - We would incur adverse tax
consequences if we fail to qualify as a REIT" and "Risk Factors -We
would incur a corporate level tax if we sell certain assets" read in
conjunction with the statements in the Prospectus Supplement under the
heading "Federal Income Tax Consequences," to the extent that they
describe matters of law or legal conclusions, are correct in all
material respects.
(ii) Based upon current law, including relevant statutes, regulations
and judicial and administrative precedent (which law is subject to
change on a retroactive basis), and subject to the limitations and
qualifications set forth in such counsel's tax opinion filed as
Exhibit 8.1 to the Registration Statement, the Company was organized
and has operated in conformity with the requirements for qualification
and taxation as a real estate investment trust ("REIT") under the
Code, and the Company's proposed method of operation (as described in
the Prospectus, Prospectus Supplement and the Management
Representation Letter) will enable the Company to continue to meet the
requirements for qualification and taxation as a REIT for the taxable
year ending December 31, 2000, and for subsequent taxable years. The
Underwriters may rely upon such counsel's tax opinion filed as Exhibit
8.1 to the Registration Statement to the same extent as if it were set
forth in full herein.
(f) The Underwriters shall have received an opinion, dated the Closing
Date from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the
Underwriters, with respect to the Registration Statement, the Prospectus and
this Agreement, which opinion shall be satisfactory in all respects to the
Underwriters, and such counsel shall have been provided by the Company with such
documents and information as they may reasonably request to enable them to pass
on such matters.
31
<PAGE>
(g) the Underwriters shall have received letters addressed to them
and dated the date hereof and the Closing Date from Ernst & Young LLP,
independent certified public accountants, substantially in the forms heretofore
approved by the Underwriters.
(h) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
material change in the capital stock of the Company nor any material increase in
the short-term or long-term debt of the Company (other than in the ordinary
course of business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); (iii)
there shall not have been, since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto), any material
adverse change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company, the Subsidiaries
and the Partnerships taken as a whole; (iv) the Company, the Subsidiaries and
the Partnerships shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company, the Subsidiaries, and the Partnerships, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date, and the
Underwriters shall have received a certificate, dated the Closing Date and
signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to the Underwriters), to the
effect set forth in Section 8(h) and in Section 8(i) hereof.
(i) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained or
contained in the Deposit Agreement and required to be performed or complied with
by it hereunder or thereunder at or prior to the Closing Date.
(j) Prior to the Closing Date the Shares shall have been listed,
subject to notice of issuance, on the New York Stock Exchange.
32
<PAGE>
(k) The Company shall have furnished or caused to be furnished to the
Underwriters such further certificates and documents as the Underwriters shall
have requested.
(l) The Company shall have furnished to the Underwriters "lock up"
letters, in form and substance satisfactory to the Underwriters, signed by each
of the Company's current executive officers and directors.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Underwriters and the Underwriters' counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters, shall be
deemed a representation and warranty by the Company to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in Paragraphs (d) through (h) shall be dated the Option
Closing Date in question and the opinions called for by Paragraphs (d), (e) and
(f) shall be revised to reflect the sale of Additional Shares.
9. Effective Date of Agreement and Termination.
-------------------------------------------
This Agreement shall become effective upon the later of (i) execution
of this Agreement, (ii) when notification of the effectiveness of the
Registration Statement has been released by the Commission, and (iii) if, at the
time this Agreement is executed and delivered, it is necessary for a post-
effective amendment to the Registration Statement or a Rule 462 Registration
Statement to be declared or become effective before the offering of the Shares
may commence, when notification of the effectiveness of such post-effective
amendment has been released by the Commission or, in the case of a Rule 462(b)
Registration Statement, upon filing thereof.
33
<PAGE>
This Agreement may be terminated at any time prior to the Closing Date
by the Underwriters by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries, taken as a whole,
or the earnings, affairs, or business prospects of the Company or any of its
Subsidiaries, taken as a whole, whether or not arising in the ordinary course of
business, which would, in the judgment of the Underwriters, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the judgment
of the Underwriters, is material and adverse and would, in the judgment of the
Underwriters, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market System or limitation on prices for
securities on any such exchange or Nasdaq National Market System, (iv) the
enactment, publication, decree or other promulgation of any Federal or state
statute, regulation, rule or order of any court or other governmental authority
which in the Underwriters' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
any Subsidiary, (v) the declaration of a banking moratorium by either Federal or
New York State authorities or (vi) the taking of any action by any Federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in the opinion of the Underwriters has a material adverse effect on the
financial markets in the United States.
10. Miscellaneous.
-------------
Notices given pursuant to any provision of this Agreement shall be
addressed as follows: (a) if to the Company, to Public Storage, Inc., 701
Western Avenue, 2nd Floor, Glendale, California 91201-2397, Attention: Legal
Department; and (b) if to the Underwriters, to Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
34
<PAGE>
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters or by or on behalf of
the Company, the officers or directors of the Company or any controlling person
of the Company, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement or pursuant to clause (i) of
Section 9, the Company agrees to reimburse the Underwriters for all out-of-
pocket expenses (including the reasonable fees and disbursements of counsel)
reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from the Underwriters merely because of such purchase.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
References to a "Section" or a "Paragraph" are, unless otherwise
specified, to a section or a paragraph of this Agreement.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
This Agreement may be amended only by a written instrument signed by
each of the parties hereto.
35
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
PUBLIC STORAGE, INC.
By /s/ David Goldberg
---------------------------------------------
David Goldberg
Senior Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE BANC ALEX. BROWN
A.G. EDWARDS & SONS, INC.
FIRST UNION SECURITIES, INC.
SUTRO & CO. INCORPORATED
Acting severally on behalf of
themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By /s/ Eric Anderson
-----------------------------
Eric Anderson
Managing Director
36
<PAGE>
SCHEDULE I
PUBLIC STORAGE, INC.
2,000,000 Depository Shares
<TABLE>
<CAPTION>
Number of
Underwriters Firm Shares
- ------------ -----------
<S> <C>
Donaldson, Lufkin & Jenrette
Securities Corporation ....................... 400,000
Deutsche Banc Alex. Brown........................ 400,000
A.G. Edwards & Sons, Inc......................... 400,000
First Union Securities, Inc...................... 400,000
Sutro & Co. Incorporated......................... 400,000
---------
Total........................................ 2,000,000
=========
</TABLE>
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF DETERMINATION
OF
EQUITY STOCK, SERIES A
OF
PUBLIC STORAGE, INC.
--------------------
[As filed in the Office of the Secretary of State of the
State of California November 9, 1999]
The undersigned, David Goldberg and Sarah Hass, Senior Vice President
and Secretary, respectively, of PUBLIC STORAGE, INC., a California corporation,
do hereby certify:
FIRST: The Restated Articles of Incorporation of the Corporation, as
amended, authorize the issuance of 200,000,000 shares of stock designated
"equity shares," issuable from time to time in one or more series, and authorize
the Board of Directors to fix the designation and 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
rights of any wholly unissued series of such equity shares.
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 equity shares to be
known as "Equity Stock, Series A" consisting of 500,000 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 8th day of November, 1999.
/s/ David Goldberg
-------------------------------------
David Goldberg
Senior Vice President
/s/ Sarah Hass
-------------------------------------
Sarah Hass
Secretary
<PAGE>
EXHIBIT A
RESOLUTION OF THE BOARD OF DIRECTORS
OF PUBLIC STORAGE, INC.
ESTABLISHING A SERIES OF
EQUITY STOCK, SERIES A
RESOLVED that pursuant to the authority conferred upon the Board of
Directors by Article III of the Restated Articles of Incorporation, as amended,
of this Corporation, there is hereby established a series of the authorized
equity shares of this Corporation having a par value of $.01 per share, which
series shall be designated "Equity Stock, Series A," shall consist of 500,000
shares and shall have the following rights and privileges:
(a) Dividend Rights.
---------------
(1) Dividends on each share of this Series shall be non-cumulative and
shall be payable out of funds legally available therefor, without interest
thereon, when, as and if declared by the Board of Directors. If, at any time,
the Corporation shall declare or pay a dividend or other distribution on the
Common Shares (i) in cash or (ii) in any shares of the Corporation's capital
stock (but in the latter case, only to the extent that the Corporation will
claim with respect to the distributed shares a deduction for dividends paid in
computing its taxable income pursuant to the REIT Provisions of the Internal
Revenue Code (as defined in clause (9) of Section (c)), a dividend or other
distribution in cash shall also concurrently be declared or paid, as the case
may be, on each share of this Series. The amount of the dividend or
distribution on each share of this Series shall be at the rate of five thousand
(5,000) times the per share dividend or distribution on the Common Shares (based
on the amount of cash, and in the case of shares distributed with respect to the
Common Shares, the amount of the dividends paid deduction attributable to the
distributed shares), but shall not be more than $612.50 in any calendar quarter
(prorated for the quarter ending March 31, 2000 to reflect only the number of
days in that quarter beginning with the date of the original issuance of the
shares of this Series); provided, however, during any calendar year (prorated
-------- -------
for the year 2000) not at a rate less than the lesser of (i) $2,450 per share or
(ii) five thousand (5,000) times the per share dividends or distributions on the
Common Shares. Notwithstanding the foregoing, any dividend or distribution on
the shares of this Series shall be subject to adjustment as provided in Section
(e).
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. After dividends on
this Series equal to the maximum amount set
1
<PAGE>
forth above have been paid or declared (as provided hereby) during any
particular year and funds therefor set aside for payment, the holders of shares
of this Series will not be entitled to any further dividends in that year.
For purposes hereof, "Common Shares" shall mean shares of common
stock, $0.10 par value per share, of the Corporation or any other shares of
capital stock into which such shares are reclassified, changed or exchanged.
(2) Unless dividends on all outstanding "Senior Shares" have been or
contemporaneously are paid in full for the latest dividend period ending
contemporaneously with or prior to the end of the period for which a dividend is
to be paid on shares of this Series, and, to the extent such Senior Shares have
cumulative dividend rights, for all prior dividend periods, no dividend or other
distribution shall be paid on the shares of this Series for such period.
"Senior Shares" shall mean any shares of stock of the Corporation, exclusive of
the shares of this Series and any other series of equity stock, the Common
Shares and shares of the Corporation's Class B Common Stock, which (i) are
outstanding as of the date of issuance of the shares of this Series or (ii) are
issued subsequent to the date of issuance of the shares of this Series, on terms
which do not provide that they are on a parity with, or junior to, the shares of
this Series, as to dividends and as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
(b) Liquidation.
-----------
In the event of any voluntary or involuntary liquidation, dissolution,
or winding up of the Corporation, after the respective liquidation preferences
in respect of all Senior Shares, if any, have been paid in full, a holder of
each share of this Series will receive out of the assets of the Corporation
available for distribution to shareholders one thousand (1,000) times the amount
per share distributed to the holder of each Common Share; provided, that the
--------
amount so received by the holder of each share of this Series shall not exceed
$24,500 per share, subject to adjustment as provided in Section (e). 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
2
<PAGE>
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) of this Section (c), the shares
of this Series are not redeemable prior to March 31, 2005. 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 $24,500 per share, subject to adjustment as provided in clause (1) of Section
(e).
(2) Except in the case of a redemption pursuant to clause (9) of this
Section (c), the redemption price to be paid for shares of this Series may only
be paid from the sale proceeds of Common Shares, other equity stock, other
rights or options to purchase any of the foregoing (other than debt securities
or preferred stock convertible into or exchangeable or exercisable for Common
Shares or equity stock) or from the Corporation's undistributed cumulative net
cash provided by operating activities.
For this purpose undistributed cumulative net cash provided by
operating activities means the Corporation's aggregate "net cash provided by
operating activities" determined on a cumulative basis from the date of
organization of the Corporation through the end of the calendar quarter
immediately preceding the date of redemption as reduced by aggregate
"distributions paid to shareholders" and "distributions from operations to
minority interests in consolidated real estate entities" that occur during such
period. The terms "net cash provided by operating activities," "distributions
paid to shareholders" and "distributions from operations to minority interests
in consolidated real estate entities" shall mean all amounts that should, in
accordance with generally accepted accounting principles as in effect in the
United States of America from time to time, consistently applied, and past
practice of the Corporation, be reflected on the consolidated financial
statements of the Corporation under such heading or similar heading.
(3) 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.
(4) If a redemption date falls after a dividend payment record date
and prior to the corresponding dividend payment date, 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
3
<PAGE>
provided herein above, the Corporation shall make no payment or allowance for
unpaid dividends 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 Corporation 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,
except as provided in clause (4) of this Section (c), dividends on the shares to
be redeemed will cease 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 the amount of the dividends, if any, to which the holders of
this Series are entitled under clause (4) above, 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
4
<PAGE>
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 equity 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 ("REIT") under the
REIT Provisions of the Internal Revenue Code (as defined below), 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 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, as applicable, the average of the
daily closing prices on the principal exchange on which such shares are traded
or the average of the highest bid and the lowest asked quotations as reported by
the National Quotation Bureau, Incorporated or a similar organization selected
from time to time by the Corporation in each case for the 15 consecutive trading
days commencing 20 trading days prior to the redemption or if there are 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 and related or
successor provisions 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 in
5
<PAGE>
the manner provided in clause (5) of this Section (c). Except as provided in
clause (4) of this Section (c), dividends on the shares to be redeemed will
cease 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) Conversion. (1) Except as set forth in this clause (1) of Section
----------
(d), the shares of this Series are not convertible into shares of any other
class or series of the capital stock of the Corporation. If the Corporation (or
any successor entity which succeeds to the obligations of the Corporation
hereunder) determines that (i) it will no longer constitute a qualifying REIT
under the REIT Provisions of the Internal Revenue Code for United States federal
income tax purposes or (ii) it will no longer file a United States federal
income tax return as a REIT (each of the foregoing, a "REIT Termination Event"),
then each share of this Series shall be convertible at any time thereafter at
the option of the holder thereof into a number of Common Shares equal to $20,000
divided by the Conversion Price.
For purposes hereof, "Conversion Price" shall mean initially, $20.92
(resulting in a conversion rate of 956 Common Shares for each share of this
Series), as such Conversion Price may be adjusted pursuant to Section (e).
Notice of a REIT Termination Event and of the right of holders of
shares of this Series to convert as provided in this Section, 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 within fifteen days after the occurrence of such
event. A similar notice will be mailed by the Corporation concurrently by first
class mail, postage pre-paid, to each record holder of the shares of this
Series, to the respective addresses of such holders as the same shall appear on
the stock transfer records of the Corporation.
Any holder of shares of this Series desiring to convert the same into
Common Shares shall surrender the certificate or certificates for the shares of
this Series being converted, duly endorsed or assigned to the Corporation or in
blank, at the principal office of the Corporation or at a bank or trust company
appointed by the Corporation for that purpose, accompanied by a written notice
of conversion specifying the number (in whole shares) of shares of this Series
to be converted and the name or names in which such holder wishes the
certificate or certificates for Common Shares to be issued; in case such notice
shall specify a name or names other than that of such holder, such notice shall
be accompanied by instruments of transfer, in form reasonably satisfactory to
the Corporation, duly executed by the holder or such holder's duly authorized
attorney and payment of all transfer taxes payable upon the issue of Common
Shares in such name or names or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid. In the event that
less than all of the shares of this Series represented by a certificate are to
be converted by a holder, upon such conversion the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder a certificate or
6
<PAGE>
certificates for the shares of this Series not so converted. The right to
convert shares of this Series called for redemption shall terminate at the close
of business on the redemption date pursuant to Section (c) above. The holders
of shares of this Series at the close of business on a dividend payment record
date shall be entitled to receive the dividend payable on such shares on the
corresponding dividend payment date notwithstanding the conversion thereof or
the Corporation's failure to pay the dividend due on such dividend payment date.
However, shares of this Series surrendered for conversion during the period from
the close of business on any record date for the payment of dividends on such
shares of this Series to the opening of business on the corresponding dividend
payment date (except shares called for redemption on a redemption date during
such period, which shall be entitled to such dividend on the dividend payment
date) must be accompanied by payment of an amount equal to the dividend payable
on such shares on such dividend payment date. A holder of shares of this Series
on such dividend payment record date who (or whose transferee) tenders shares of
this Series on such dividend payment date will receive the dividend payable on
such shares by the Corporation on such date, and the converting holder need not
include payment in the amount of such dividend upon surrender of shares of this
Series for conversion. Except as expressly provided herein, no payment or
adjustment will be made on account of accrued or unpaid dividends upon the
conversion of shares of this Series.
As promptly as practicable after the surrender of certificates for
shares of this Series as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Shares issuable upon
the conversion of such shares in accordance with the provisions of this Section
(d).
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for shares
of this Series shall have been surrendered and such notice (and if applicable,
payment of an amount equal to the dividend payable on such shares) received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates for Common Shares shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at such time on such date and such conversion shall
be at the Conversion Price, unless the stock transfer books of the Corporation
shall be closed on that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at the close of business
on the next succeeding day on which such stock transfer books are open.
(2) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Shares,
for the purpose of issuance upon conversion of shares of this Series, the full
number of Common Shares then deliverable upon the conversion of all shares of
this Series then outstanding and shall take all action necessary so that Common
Shares so issued will be validly issued, fully paid and nonassessable. For
purposes of this clause (2) of Section (d), the number of Common Shares that
shall be required to be reserved for delivery upon the conversion of all
7
<PAGE>
outstanding shares of this Series shall be computed as if at the time of
computation all such outstanding shares were held by a single holder. The
Corporation shall use its best efforts to list the Common Shares required to be
delivered upon conversion of shares of this Series, prior to such conversion,
upon each national securities exchange or quotation system, if any, upon which
the outstanding Common Shares are listed or quoted at the time of such delivery.
Prior to the delivery of any securities that the Corporation shall be obligated
to deliver upon conversion of any shares of this Series, the Corporation shall
endeavor to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or
consent to the delivery thereof by, any governmental authority.
(3) The Corporation will pay any and all stamp or similar taxes that
may be payable in respect of the issuance or delivery of Common Shares on
conversion of shares of this Series. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of Common Shares in a name other than that in which
the shares of this Series so converted were registered, and no such issuance or
delivery shall be made unless and until the person requesting such issuance has
paid to the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
(4) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of shares of this Series. Instead of any
fractional interest in a Common Share that would otherwise be deliverable upon
the conversion of a share of this Series, the Corporation shall pay to the
holder of such share an amount in cash (computed to the nearest cent) based upon
the value of Common Shares on the last business day immediately preceding the
conversion date. If more than one share shall be surrendered for conversion at
one time by the same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of this Series so surrendered. For purposes hereof, the value of Common
Shares shall be determined as provided in clause (9) of Section (c).
(e) Adjustments. (1) Other than a dividend or distribution as to
-----------
which the Corporation will claim a deduction for dividends paid in computing its
taxable income pursuant to the REIT Provisions of the Internal Revenue Code, in
the event that the Corporation shall subdivide or combine its outstanding Common
Shares into a greater or smaller number of Common Shares, or shall make a
dividend or other distribution of Common Shares to the holders of any of its
Common Shares, then in each case (i) the outstanding shares of this Series
shall, as appropriate, (A) be subdivided or combined in the same proportion as
the Common Shares are subdivided or combined or (B) receive the same
proportionate dividend or distribution payable in shares of this Series as paid
or issued with respect to the Common Shares and (ii) the per share dollar
amounts specified herein for computing dividends per quarter or year, the
maximum liquidation distribution and the redemption price shall be adjusted so
that the total of each such amount for all
8
<PAGE>
outstanding shares of this Series is the same immediately after, as it was
immediately prior to, the subdivision, combination, dividend or distribution.
(2) In the event that the Corporation shall issue rights, warrants or
options to all holders of its Common Shares entitling them to subscribe for or
purchase Common Shares at a price per share less than the current market price
(as defined below) per share of a Common Share on the date fixed for the
determination of stockholders entitled to receive such rights, warrants or
options, the Conversion Price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by multiplying
such Conversion Price by a fraction of which the numerator shall be the number
of Common Shares outstanding at the close of business on the date fixed for such
determination plus the number of Common Shares which the aggregate of the
offering price of the total number of Common Shares offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of Common Shares outstanding at the close of business on the date
fixed for such determination plus the number of Common Shares so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For purposes of clause (2) of this Section (e), the number of
Common Shares at any time outstanding shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of Common Shares.
(3) In the event that the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Shares evidence of its indebtedness or
assets (including debt securities, but excluding (i) rights, warrants or options
referred to in clause (2) of this Section (e), (ii) any dividend or distribution
paid in cash out of or in respect of Available Cash (as defined below), (iii)
any dividend or distribution as to which the Corporation will claim a deduction
for dividends paid in computing its taxable income pursuant to the REIT
Provisions of the Internal Revenue Code and (iv) any dividend or distribution
referred to in clause (1) of this Section (e)), the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share of the Common Shares on the dated fixed for such determination
less the then fair market value (as determined in good faith by the Board of
Directors of the Corporation, whose determination shall be conclusive) of such
portion of the assets or evidences of indebtedness so distributed applicable to
one Common Share (the "Distribution FMV") and the denominator shall be such
current market price per Common Share, such adjustment to become effective
immediately prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such distribution;
provided, however, that if the Distribution FMV exceeds the current market price
- -------- -------
per share, or if the current market price exceeds the Distribution FMV by less
than 10%, in lieu of the foregoing adjustment, from and after the record date
for determining holders of Common Shares entitled to receive the distribution, a
holder of a share of this Series that converts such share in
9
<PAGE>
accordance with the provisions hereof shall upon such conversion be entitled to
receive, in addition to the Common Shares into which the share of this Series is
convertible, the kind and amount of securities, cash or other assets comprising
the distribution that such holder would have received if such holder had
converted the share immediately prior to the record date for determining the
holders of Common Shares entitled to receive the distribution.
For purposes hereof, Available Cash shall mean net income before loss
on early extinguishment of debt and gain on disposition of investments, adjusted
as follows: (i) plus depreciation and amortization, (ii) plus gain on
disposition of investments, (iii) less distributions to minority interest in
excess of minority interest in income and (iv) less dividends on preferred
shares, equity shares and Common Shares. The terms "net income," "loss on early
extinguishment of debt," "gain on disposition of investments," "depreciation and
amortization," "distributions to minority interest" and "minority interest in
income" shall mean, as of any date of determination, all amounts that should, in
accordance with generally accepted accounting principles as in effect in the
United States of America from time to time, consistently applied, and past
practice of the Corporation, be reflected on the consolidated financial
statements of the Corporation under such heading (or similar heading) and shall
be determined in respect of the year in which the dividend or distribution
occurs.
(4) Other than a dividend or distribution as to which the Corporation
will claim a deduction for dividends paid in computing its taxable income
pursuant to the REIT Provisions of the Internal Revenue Code, in the event that
the Corporation shall pay a dividend or make a distribution on its Common Shares
in any shares of its capital stock (other than Common Shares) or issue by
reclassification of its Common Shares any shares of its capital stock (other
than Common Shares), a holder of a share of this Series who subsequently
converts the share, at the time of conversion shall be entitled to receive the
number of shares of capital stock of the Corporation which such holder would
have owned immediately following such dividend, distribution or reclassification
if such holder had converted the share immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a reclassification.
If after an adjustment a holder of a share of this Series upon
conversion of such share may receive shares of two or more classes of capital
stock of the Corporation, the Conversion Price shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any such class
of capital stock as is contemplated by this Section (e) with respect to the
Common Shares on terms comparable to those applicable to the Common Shares in
this Section (e).
(5) In the event that the Corporation shall effect any capital
reorganization or reclassification of its shares (other than a subdivision,
combination or stock dividend referred to in clause (1) of this Section (e)
above or a dividend or
10
<PAGE>
distribution as to which the Corporation will claim a deduction for dividends
paid in computing its taxable income pursuant to the REIT Provisions of the
Internal Revenue Code) or shall consolidate or merge with or into any other
corporation (other than a consolidation or merger in which the Corporation is
the surviving corporation and each Common Share outstanding immediately prior to
such consolidation or merger is to remain outstanding immediately after such
consolidation or merger) or shall sell, lease or transfer all or substantially
all of its assets to any other person or entity for a consideration consisting
in whole or in part of equity securities of such other entity, lawful provision
shall be made as a part of the terms of such transaction whereby the holders of
shares of this Series shall, if entitled to convert such shares at any time
after the consummation of such transaction, receive upon conversion thereof in
lieu of each Common Share that would have been issuable upon conversion of such
shares prior to such consummation the same kind and amount of stock (and other
securities, cash or property, if any) as may be issuable or distributable in
connection with such transaction with respect to each outstanding Common Share
subject to adjustments for subsequent stock dividends and distributions,
subdivisions or combinations of shares, capital reorganizations,
reclassifications, consolidations or mergers as nearly equivalent as possible to
the adjustments provided for in this Section (e).
(6) For the purpose of any computation under this Section (e), the
"current market price" per Common Share on any date shall be determined as of
the date in question in the manner provided in clause (9) of Section (c) above.
(7) Notwithstanding the above provisions, no adjustment in the
Conversion Price shall be required unless such adjustment (plus any adjustments
not previously made by reason of this subsection) would require an increase or
decrease of at least 1% in such price; provided, however, that any adjustments
-------- -------
which by reason of this subsection are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further,
-------- -------
that adjustment shall be required and shall be made in accordance with the
provisions of this Section (e) (other than this subsection) not later than the
same time as may be required in order to preserve the tax-free nature of a
distribution to the holder of any share of this Series. All calculations under
this Section (e) shall be made to the nearest four digits.
(8) The Corporation shall take all action necessary so that shares of
this Series issued on adjustments pursuant to this Section (e) will be validly
issued, fully paid and nonassessable. The Corporation shall use its best
efforts to list the shares of this Series required to be issued upon such
adjustment, prior to such issuance, upon each national securities exchange or
quotation system, if any, upon which the outstanding shares of this Series are
listed or quoted at the time of such issuance. Prior to the delivery of any
securities that the Corporation shall be obligated to issue pursuant to clause
(1) of this Section (e), the Corporation shall endeavor to comply with all
federal and state laws and regulations thereunder requiring the registration of
such securities with, or any approval of or consent to the delivery thereof by,
any governmental authority.
11
<PAGE>
(9) Whenever the Conversion Price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted Conversion Price
and shall cause to be prepared a certificate signed by the chief financial
officer of the Corporation setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based and
the computation thereof which certificate, absent manifest error, shall be prima
facie evidence of the correctness of such adjustment; such certificate shall
forthwith be filed with each transfer agent for the shares of this Series; and
(B) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall, as soon as practicable,
be mailed to the holders of record of outstanding shares of this Series.
(10) For purposes of this Section (e), the number of Common Shares at
any time outstanding shall not include any Common Shares then owned or held by
or for the account of any subsidiary of the Corporation, except to the extent of
the ownership of common shares of such subsidiary by any person other than the
Corporation.
(11) In case any event shall occur as to which the provisions of this
Section (e) are not strictly applicable but the failure to make any adjustment
would not fairly protect the conversion rights represented by the shares of this
Series in accordance with the essential intent and principles of this Section,
then, in each such case, the Corporation shall appoint an independent firm of
public accountants of recognized national standing (which may be the regular
auditors of the Corporation), which shall gave their opinion upon the
adjustments, if any, on a basis consistent with the essential intent and
principles established in this Section, necessary to preserve, without dilution,
the conversion rights represented by the shares of this Series. Upon receipt of
such opinion, the Corporation will promptly mail a copy thereof to each holder
of shares of this Series and shall make the adjustments described therein. The
certificate of any independent firm of public accountants of nationally
recognized standing selected by the Board of Directors shall be presumptive
evidence of the correctness of any computation made under this subsection.
(f) 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 clause (1) of this Section (f).
(1) Holders of shares of this Series shall have the right to vote on
all matters presented to holders of the Common Shares for a vote and vote
together as one class with holders of Common Shares and other series of equity
shares that share voting rights with holders of shares of this Series. Each
outstanding share of this Series entitles the holder to one hundred (100) votes,
except that such holder, together with holders of Common Shares and other series
of equity shares that share voting rights with holders of
12
<PAGE>
shares of this Series, has cumulative voting rights in electing Directors. For
purposes of this clause (1) of Section (f), each holder of shares of this Series
shall have the right (i) to cast as many votes as there are Directors to be
elected multiplied by one hundred (100) times the number of shares of this
Series registered in the name of such holder and (ii) either to cast all of such
votes for one candidate for Director or to distribute such votes among as many
candidates as such holder chooses.
(2) Except as required by law, nothing herein shall be taken to
require a class vote or consent in connection with any matter, including the
authorization, designation, increase or issuance of any shares of any class or
series (including additional shares of this Series) that rank senior to, 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.
13
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EXHIBIT 4.1
================================================================================
PUBLIC STORAGE, INC.
BANKBOSTON, N.A., AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO EQUITY STOCK, SERIES A
-----------------
DEPOSIT AGREEMENT
-----------------
Dated as of January 14, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
ARTICLE I Definitions................................................................. 1
ARTICLE II Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts................................................. 2
SECTION 2.1 Form and Transfer of Receipts............................................. 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof... 3
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.................................................... 5
SECTION 2.6 Lost Receipts, etc. ...................................................... 6
SECTION 2.7 Cancellation and Destruction of Surrendered Receipts...................... 6
SECTION 2.8 Redemption of Stock....................................................... 6
SECTION 2.9 Optional Conversion of Stock into Common Stock............................ 7
ARTICLE III Certain Obligations of Holders of Receipts and the Company................ 10
SECTION 3.1 Filing Proofs, Certificates and Other Information......................... 10
SECTION 3.2 Payment of Taxes or Other Governmental Charges............................ 10
SECTION 3.3 Warranty as to Stock...................................................... 11
ARTICLE IV The Deposited Securities; Notices.......................................... 11
SECTION 4.1 Cash Distributions........................................................ 11
SECTION 4.2 Distributions Other than Cash, Rights Preferences or Privileges........... 11
SECTION 4.3 Subscription Rights, Preferences or Privileges............................ 12
SECTION 4.4 Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts..... 13
SECTION 4.5 Voting Rights............................................................. 13
SECTION 4.6 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. ................................................ 13
SECTION 4.7 Delivery of Reports....................................................... 14
SECTION 4.8 List of Receipt Holders................................................... 14
ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Company...... 14
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar................................................... 14
</TABLE>
i
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<TABLE>
<S> <C>
SECTION 5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company....................... 15
SECTION 5.3 Obligation of the Depositary, the Depositary's Agents, the Registrar
and the Company......................................................... 15
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............................................................ 18
ARTICLE VI Amendment and Termination.................................................. 19
SECTION 6.1 Amendment................................................................. 19
SECTION 6.2 Termination............................................................... 20
ARTICLE VII Miscellaneous............................................................. 20
SECTION 7.1 Counterparts.............................................................. 20
SECTION 7.2 Exclusive Benefit of Parties.............................................. 20
SECTION 7.3 Invalidity of Provisions.................................................. 20
SECTION 7.4 Notices................................................................... 20
SECTION 7.5 Appointment of Registrar.................................................. 21
SECTION 7.6 Holders of Receipts are Parties........................................... 21
SECTION 7.7 Governing Law............................................................. 21
SECTION 7.8 Inspection of Deposit Agreement........................................... 22
SECTION 7.9 Headings.................................................................. 22
Form of Depositary Shares
Form of Face of Receipt................................................................ A-1
Form of Reverse of Receipt............................................................. A-3
</TABLE>
ii
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DEPOSIT AGREEMENT, dated as of January 14, 2000, among PUBLIC STORAGE,
INC., a California corporation (the "Company"), BankBoston, N.A., 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 Equity Stock, Series A 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 Annex 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 definitions set forth below shall, for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement. Capitalized terms used in this Deposit Agreement that are not
defined shall have the meanings assigned to those terms in the Certificate.
"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 equity stock of the Company.
"Common Stock" shall mean shares of the Company's Common Stock, $.10
par value per share, or any other shares of capital stock into which such shares
are reclassified, changed or exchanged.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean BankBoston, N.A. 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.
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"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 Equity Stock, Series A,
$.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
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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
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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
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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,
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however, that the Depositary shall not issue any Receipt evidencing a fractional
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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,
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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
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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
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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
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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
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issue any Receipt evidencing a fractional Depositary Share.
SECTION 2.9 Optional Conversion of Stock into Common Stock. At any
time after the Company (or any successor entity which succeeds to the
obligations of the Company under the Certificate) determines that (i) it will no
longer constitute a qualifying REIT under the
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REIT Provisions of the Internal Revenue Code for United States federal income
tax purposes or (ii) it will no longer file a United States federal income tax
return as a REIT (each of the foregoing, a "REIT Termination Event"), then each
share of Stock may be converted into whole shares of Common Stock and cash for
any fractional share amount at the conversion price then in effect for the Stock
pursuant to the Certificate, as such conversion price may be adjusted as
provided in the Certificate. The Company shall promptly give or cause to be
given to the Depositary notice of a REIT Termination Event and of the right of
holders of shares of Stock to convert as provided in the Certificate. Notice of
a REIT Termination Event and of the right of holders of shares of Stock to
convert as provided in the Certificate 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 within fifteen days after the occurrence of such
event. The Depositary will publish a notice of the REIT Termination Event and of
the right of holders of the Receipts to convert as provided in this Section
containing the same type of information and in the same manner as the Company's
notice, and the Depositary will concurrently mail a similar notice by first-
class mail, postage prepaid, to the record holders of the Receipts evidencing
the Depositary Shares, at the address of such holders as they appear on the
records of the Depositary. The Company will provide the Depositary with the
information necessary for the Depositary to prepare each such notice.
At any time after the occurrence of a REIT Termination Event, Receipts
may be surrendered with written instructions to the Depositary to instruct the
Company to cause the conversion of any specified number of whole or fractional
shares of Stock represented by whole Depositary Shares evidenced by such
Receipts into whole shares of Common Stock, and cash for any fractional share
amount at the conversion price then in effect for the Stock pursuant to the
Certificate, as such conversion price may be adjusted as provided in the
Certificate. Subject to the terms and conditions of this Deposit Agreement and
the Certificate, a holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional shares of Stock may surrender such Receipt or
Receipts at the Depositary's Office or at such office or to such Depositary's
Agents as the Depositary may designate for such purpose, together with a notice
of conversion duly completed and executed, thereby directing the Depositary to
instruct the Company to cause the conversion of the number of whole or
fractional shares of underlying Stock specified in such notice of conversion
into shares of Common Stock, and an assignment of such Receipt or Receipts to
the Company or in blank, duly completed and executed. To the extent that a
holder delivers to the Depositary for conversion a Receipt or Receipts which in
the aggregate are convertible into less than one whole share of Common Stock,
the holder shall receive payment in cash in lieu of such fractional share of
Common Stock otherwise issuable. If more than one Receipt shall be delivered
for conversion at one time by the same holder, the number of whole shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of Depositary Shares represented by the Receipts so
delivered.
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Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares of
Stock, and an assignment of such Receipt or Receipts to the Company or in blank,
duly completed and executed, the Depositary shall instruct the Company (i) to
cause the conversion of the number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in lieu of fractional shares of Common Stock otherwise issuable.
The Company shall as promptly as practicable after receipt thereof cause the
delivery of (i) a certificate or certificates evidencing the number of whole
shares of Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money or
other property to which the holder is entitled by reason of such conversion.
Upon such conversion, the Depositary (i) shall deliver to the holder a Receipt
evidencing the number of Depositary Shares evidenced by the surrendered Receipt
in excess of the number of Depositary Shares evidenced by such Receipt that has
been so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (iii) shall deliver to the Company or its
transfer agent for the Stock for cancellation the shares of Stock represented by
the Depositary Shares evidenced by the Receipts so surrendered and so converted.
Upon the delivery of the shares of Stock to be cancelled due to such conversion
by the Depositary to the Company, the Company shall deliver to the Depositary a
certificate or certificates evidencing the number of shares of Stock, if any,
that equals the excess of the number of shares of Stock evidenced by the
surrendered certificate over the number of shares of Stock evidenced by that
certificate that have been so converted.
If Stock shall be called by the Company for redemption, the Depositary
Shares representing such Stock may be converted into Common Stock as provided in
this Deposit Agreement; provided, however, that such right to convert shall
terminate at the close of business on the Redemption Date, unless the Company
shall fail to deposit with the Depositary the amount of cash required to redeem
the Stock held by the Depositary, in which case the Depositary Shares
representing such Stock may continue to be converted into Common Stock until,
but not after, the close of business on the date on which the Company deposits
with the Depositary such amount of cash as is required by the Certificate to
make full payment of the amounts payable upon such redemption.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary shall be entitled to receive the dividend
payable with respect to such Depositary Shares on the corresponding dividend
payment date notwithstanding the conversion subsequent to such record date of
the shares of Stock to which such Depositary Shares relate. However, any
Receipts surrendered with instructions to the Depositary for conversion of the
underlying Stock during the period from the close of business on a dividend
payment record date for any dividend payment date, to the opening of business on
such dividend
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payment date shall (unless such underlying Stock shall have been called for
redemption on a Redemption Date in such period) be accompanied by payment of an
amount equal to the dividend payable on the Depositary Shares evidenced by the
Receipts surrendered for conversion, on such dividend payment date.
Upon the conversion of any share of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
share, all dividends in respect of such Depositary Shares shall cease to accrue,
such Depositary Shares shall be deemed no longer outstanding, all rights of the
holder of the Receipt with respect to such Depositary Shares (except the right
to receive the Common Stock, any cash payable with respect to any fractional
shares of Common Stock as provided herein and any cash payable on account of
accrued dividends as provided herein and any Receipts evidencing Depositary
Shares not so converted) shall terminate, and the Receipt evidencing such
Depositary Shares shall be cancelled in accordance with Section 2.7 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock would be entitled to a fractional share of Common Stock upon such
conversion, the Company shall cause to be delivered to such holder an amount in
cash for such fractional share as provided in the Certificate.
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
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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
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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
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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.
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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
13
<PAGE>
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.
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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
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<PAGE>
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.
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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
17
<PAGE>
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
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<PAGE>
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
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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.
701 Western Avenue
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<PAGE>
Glendale, California 91201-2349
Facsimile No.: (818) 244-9267
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:
BankBoston, N.A.
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.
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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, INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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.
22
<PAGE>
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:
- ----------------------------- -----------------------------------------
Sarah Hass David Goldberg
Secretary Senior Vice President and General Counsel
Attested by: BANKBOSTON, N.A.
- ----------------------------- -----------------------------------------
Name: Name:
Title: Title:
23
<PAGE>
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 or Equity 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.
DEPOSITARY SHARES
THIS DEPOSITARY RECEIPT
IS TRANSFERABLE IN BOSTON,
MA OR NEW YORK, NY
CUSIP 74460D 72 9
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES EACH REPRESENTING 1/1,000th OF A
SHARE OF EQUITY STOCK, SERIES A
OF
PUBLIC STORAGE, INC.
INCORPORATED UNDER THE
LAWS OF THE STATE OF CALIFORNIA
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<PAGE>
BANKBOSTON, N.A., as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of _____________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing 1/1,000th of one share
of Equity Stock, Series A (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
14, 2000 (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 and/or facsimile 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.
The Corporation is authorized to issue Common Stock, one or more series of
Preferred Stock, one or more series of Equity 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 701 Western Avenue, Glendale, California 91201-2349, 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 and conversion) for all purposes have the same effect as if set forth
at this place.
Dated:
Countersigned
BANKBOSTON, N.A.
Depositary, Transfer Agent and
Registrar
By: _____________________________
Authorized Officer
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<PAGE>
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 MARCH 31, 2005, TO CALL FOR REDEMPTION THE
STOCK, (2) SECTION (D) OF THE CERTIFICATE OF DETERMINATION RELATING TO THE STOCK
WHICH CONFERS UPON THE HOLDERS OF THE STOCK THE RIGHT TO CONVERT THE STOCK INTO
SHARES OF COMMON STOCK, AT ANY TIME AFTER THE CORPORATION FAILS TO QUALIFY AS A
REAL ESTATE INVESTMENT TRUST ("REIT") UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, (3) 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 DEPOSITARY RECEIPT IF NECESSARY IN ITS
OPINION TO MAINTAIN THE CORPORATION'S QUALIFICATION AS A REIT AND (4) THE
PROVISIONS OF THE ARTICLES AND BYLAWS, WHICH SET FORTH OWNERSHIP LIMITATION
PROVISIONS DESIGNED TO MAINTAIN SUCH QUALIFICATION.
1. The Deposit Agreement. Depositary Receipts ("Depositary Receipts"
or "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
14, 2000 (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, MA 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
A-3
<PAGE>
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. Optional Conversion of Stock into Common Stock. At any time after
the Company determines that (i) it will no longer constitute a qualifying REIT
under the REIT Provisions of the Internal Revenue Code for United States federal
income tax purposes or (ii) it will no longer file a United States federal
income tax return as a REIT (each of the foregoing, a "REIT Termination Event"),
then each share of Stock may be converted into whole shares of Common Stock, par
value $.10 per share, of the Company ("Common Stock"), and cash for any
fractional share amount at the conversion price then in effect for the Stock
pursuant to the Certificate of Determination, as such conversion price may be
adjusted as provided in the Certificate of Determination. The Company shall
promptly give or cause to be given to the Depositary notice of a REIT
Termination Event and of the right of holders of shares of Stock to convert as
provided in the Certificate of Determination. The Depositary will publish a
notice of a REIT Termination Event and of the right of holders of the Receipts
to convert as provided in this Section containing the same type of information
and in the same manner as the notice of the REIT Termination Event and of the
right of holders of shares of Stock to convert that is required to be published
by the Company, and the Depositary will concurrently mail a similar notice by
first-class mail, postage prepaid, to the record holders of the Receipts
evidencing the Depositary Shares, at the address of such holders as they appear
on the records of the Depositary. At any time after the occurrence of a REIT
Termination Event, this Receipt may be surrendered with written instructions to
the Depositary to instruct the Company to cause the conversion of any specified
number of whole or fractional shares of Stock represented by whole Depositary
Shares evidenced hereby into whole shares of Common Stock, and cash for any
fractional share amount at the conversion price then in effect for the Stock
pursuant to the Certificate of Determination, as such conversion price may be
adjusted as provided in the Certificate of Determination. Subject to the terms
and conditions of the Deposit Agreement and the Certificate of Determination, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Stock may surrender such Receipt or Receipts at the
Depositary's Office or at such office or to such Depositary's Agents as the
Depositary may designate for such purpose, together with a notice of conversion
duly completed and executed, thereby directing the Depositary to instruct the
Company to cause the conversion of the number of whole or fractional shares of
underlying Stock specified in such notice of conversion into shares of Common
Stock, and an assignment of such Receipt or Receipts to the Company or in blank,
duly completed and executed. To the extent that a holder delivers to the
Depositary for conversion a Receipt or Receipts which in the aggregate are
convertible into less than one whole share of Common Stock, the holder shall
receive payment in cash in lieu of such fractional share of Common Stock
otherwise issuable. If more than one Receipt shall be delivered for conversion
at one time by the same holder, the number of whole shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of Depositary Shares represented by the Receipts so delivered.
If Stock shall be called by the Company for redemption, the Depositary
Shares representing such Stock may be converted into Common Stock as provided in
the Deposit Agreement; provided, however, that such right to convert shall
terminate at the close of business on the Redemption Date, unless the Company
shall fail to deposit with the Depositary the amount of cash required to redeem
the Stock, in which case the Depositary Shares representing such Stock may
continue to be converted into Common Stock until, but not after, the close of
business on the date on which the Company deposits with the Depositary such
amount of cash as is required by the Certificate of Determination to make full
payment of the amounts payable upon such redemption. Upon receipt by the
Depositary of a Receipt or Receipts, together with a properly completed and
executed notice of conversion, representing any Stock called for redemption, the
shares of Stock held by the Depositary represented by such Depositary Shares for
which conversion is requested shall be deemed to have been received by the
Company for conversion immediately prior to the close of business on the date of
such receipt by the Depositary.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary shall be entitled to receive the dividend
payable with respect to such Depositary Shares on the corresponding dividend
payment date notwithstanding the conversion subsequent to such record date of
the shares of Stock to which such
A-4
<PAGE>
Depositary Shares relate. However, any Receipts surrendered with instructions to
the Depositary for conversion of the underlying Stock during the period from the
close of business on a dividend payment record date for any dividend payment
date, to the opening of business on such dividend payment date shall (unless
such underlying Stock shall have been called for redemption on a Redemption Date
in such period) be accompanied by payment of an amount equal to the dividend
payable on the Depositary Shares evidenced by the Receipts surrendered for
conversion, on such dividend payment date.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
A-5
<PAGE>
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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
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<PAGE>
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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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, including without limitation Section 5-1401 of the New York General
Obligations Law.
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<PAGE>
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:
<TABLE>
<S> <C>
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 to Minors
of survivorship and not as Act ____________
tenants in common (State)
UNIF TRF MIN ACT -______ Custodian (until age __)
(Cust)
_______ under Uniform Transfers
(Minor)
to Minors Act ________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
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<PAGE>
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of whole or fractional
shares of Stock of the Company represented by _______________ Depositary Shares
into shares of Common Stock of the Company and cash for any fractional share
amount in accordance with the terms of and subject to the conditions of the
Stock, including the Certificate of Determination in respect thereof, and the
Deposit Agreement, and directs the Depositary to instruct the Company that the
shares of Common Stock deliverable upon such conversion be registered in the
name of, and delivered together with a check in payment for any fractional
shares of Common Stock to, the undersigned unless a different name has been
indicated below. If the shares of Common Stock are to be registered in the name
of a person other than the undersigned, the undersigned will pay all transfer
and similar taxes payable with respect thereto. If the number of shares of
Stock represented by the number of Depositary Shares set forth above is less
than the number of shares of Stock on deposit in respect of this Receipt, the
undersigned directs that the Depositary execute and deliver to the undersigned,
unless a different name is indicated below, a new Receipt evidencing Depositary
Shares for the balance of such Stock not to be converted.
Dated ______________________ Signed __________________________________________
NOTICE: THE SIGNATURE ON THIS NOTICE OF CONVERSION 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:
_____________________________________________
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.
Name: _______________________________________________________________
Address:_____________________________________________________________
(Please print names and address of Registered Holder)
Name: _______________________________________________________________
Address: ____________________________________________________________
(Please indicate other delivery instructions, if applicable)
A-9
<PAGE>
ASSIGNMENT
For Value Received, ____________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
______________________________________________________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE 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:
______________________________________
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.
A-10
