SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
PS Business Parks, Inc.
(formerly Public Storage Properties XI, Inc.)
---------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
------------------------------
(Title of Class of Securities)
69360J107
--------------
(CUSIP Number)
Acquiport Two Corporation
c/o Heitman Capital Management Corporation
180 North LaSalle
Suite 3600
Chicago, Illinois 60601
312-855-5700
Attn: David B. Perisho
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 17, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Schedule 13D, and is filing this Schedule
because of Rule 13d-1(b)(3) or (4), check the following
box. / /
Note: Six copies of this statement, including all
exhibits, should be filed with the Commission. See Rule
13d-1(a) for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for
a reporting person's initial filing on this form with
respect to the subject class of securities, and for any
subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover
page shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 ("Act")
or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of
the Act (however, see the Notes). <PAGE>
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1. Name of Reporting Person:
Acquiport Two Corporation, 22-2909230
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2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / /
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3. SEC Use Only
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4. Source of Funds: OO
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5. Check box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f):
/ /
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6. Citizenship or Place of Organization: Delaware
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Number of 7. Sole Voting Power: 5,289,765
Shares ------------------------------------------
Beneficially 8. Shared Voting Power: 0
Owned By ------------------------------------------
Each 9. Sole Dispositive Power: 5,289,765
Reporting ------------------------------------------
Person 10. Shared Dispositive Power: 0
With
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11. Aggregate Amount Beneficially Owned by Each
Reporting Person:
5,289,765
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12. Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares:
/ /
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13. Percent of Class Represented by Amount in
Row (11): 37.7%
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14. Type of Reporting Person: CO
-------------------------------------------------------- <PAGE>
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1. Name of Reporting Person:
New York State Common Retirement Fund, 14-6103815
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2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / /
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3. SEC Use Only
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4. Source of Funds: Not Applicable
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5. Check box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f):
/ /
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6. Citizenship or Place of Organization: New York
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Number of 7. Sole Voting Power: 0
Shares ------------------------------------------
Beneficially 8. Shared Voting Power: 5,289,765(1)
Owned By ------------------------------------------
Each 9. Sole Dispositive Power: 0
Reporting ------------------------------------------
Person 10. Shared Dispositive Power:
With
5,289,765(1)
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11. Aggregate Amount Beneficially Owned by Each
Reporting Person:
5,289,765
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12. Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares:
/ /
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13. Percent of Class Represented by Amount in
Row (11): 37.7%
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14. Type of Reporting Person: EP
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(1) Solely in its capacity as the sole stockholder of
Acquiport Two Corporation. <PAGE>
Item 1. Security and Issuer.
-------------------
This statement refers to the Common Stock, $0.01 par
value ("Common Stock"), of PS Business Parks, Inc.
(formerly Public Storage Properties XI, Inc.) (the
"Issuer"). The principal executive offices of the Issuer
are located at 701 Western Avenue, Glendale, California,
91201-2397.
Item 2. Identity and Background.
-----------------------
(a) This Schedule 13D is filed by Acquiport Two
Corporation ("Acquiport"), a Delaware corporation and the
New York State Common Retirement Fund ("Common Fund" and
together with Acquiport the "Reporting Persons"). The
Reporting Persons are making this single, joint filing
because they may be deemed to constitute a "group" within
the meaning of Section 13(d)(3) of the Securities Act of
1934 ("Act"), although neither the fact of this filing nor
anything contained herein shall be deemed to be an
admission by the Reporting Persons that a group exists.
(b)-(c)
Acquiport is a Delaware corporation, the business of
which is to acquire property, hold title to and collect
income from such property and remit the entire amount of
income from such property (less expenses) to the Sole
Stockholder of the Corporation, which is an organization
exempt from taxation pursuant to Section 501(c)(2) of the
Internal Revenue Code of 1986, as amended. The principal
place of business of Acquiport is c/o Heitman Capital
Management Corporation, 180 North LaSalle St., Chicago, IL
60601.
Common Fund is a public pension fund created pursuant
to Article 9 of the New York Retirement and Social
Security Law. Its business address is 633 Third Avenue,
31st floor, New York, NY 10017-6754.
Jerome J. Claeys III is President and a Director of
Acquiport and is employed as an investment adviser by
Heitman Capital Management Corporation. His principal
place of business is c/o Heitman Capital Management
Corporation, 180 North LaSalle Street, Chicago, Illinois
60601-2886 and he is a U.S. citizen.
Howard J. Edelman is Vice President of Acquiport and
is employed as an investment adviser by Heitman Capital
Management Corporation. His principal place of business
is c/o Heitman Capital Management Corporation, 180 North <PAGE>
LaSalle Street, Chicago, Illinois 60601-2886 and he is a
U.S. citizen.
David B. Perisho is Vice President and a Director of
Acquiport and is employed as an investment adviser by
Heitman Capital Management Corporation. His principal
place of business is c/o Heitman Capital Management
Corporation, 180 North LaSalle Street, Chicago, Illinois
60601-2886 and he is a U.S. citizen.
Thomas D. McCarthy is Vice President of Acquiport and
is employed as an investment adviser by Heitman Capital
Management Corporation. His principal place of business
is c/o Heitman Capital Management Corporation, 180 North
LaSalle Street, Chicago, Illinois 60601-2886 and he is a
U.S. citizen.
Roger E. Smith is Treasurer and Chief Financial
Officer of Acquiport and is employed as an investment
adviser by Heitman Capital Management Corporation. His
principal place of business is c/o Heitman Capital
Management Corporation, 180 North LaSalle Street, Chicago,
Illinois 60601-2886 and he is a U.S. citizen.
Patrick E. Brown is Secretary of Acquiport and is an
attorney with Plunkett & Jaffe, P.C. His principal place
of business is c/o Plunkett & Jaffe, P.C., 111 Washington
Avenue, Albany, New York 12210 and he is a U.S. citizen.
John S. Harris is Assistant Secretary of Acquiport
and is an attorney with Plunkett & Jaffe, P.C. His
principal place of business is c/o Plunkett & Jaffe, P.C.,
111 Washington Avenue, Albany, New York 12210 and he is a
U.S. citizen.
Charles H. Wurtzebach is a Director of Acquiport and
is employed as an investment adviser by Heitman Capital
Management Corporation. His principal place of business
is c/o Heitman Capital Management Corporation, 180 North
LaSalle Street, Chicago, Illinois 60601-2886 and he is a
U.S. citizen.
(d) None of the entities or persons identified in
this Item 2 has, during the last five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) None of the entities or persons identified in
this Item 2 has, during the last five years, been a party
to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state <PAGE>
securities laws or finding any violation with respect to
such laws.
(f) See (b)-(c) above.
Item 3. Source and Amount of Funds
or Other Consideration.
----------------------
Acquiport acquired 5,289,765 shares of the Common
Stock (the "Shares") of the Issuer in exchange for shares
of common stock of American Office Park Properties, Inc.
("AOPP") as a result of the merger of AOPP with and into
Public Storage Properties XI, Inc., a California
corporation (which subsequently changed its name to PS
Business Parks, Inc.), on March 17, 1998.
Item 4. Purpose of Transaction.
----------------------
Acquiport has acquired the Shares for investment
purposes. Consistent with such purposes, the Reporting
Persons have had, and may have in the future, discussions
based on publicly available information with management of
the Issuer concerning the Issuer's recent operating
history as well as the Issuer's general business outlook
and prospects.
Acquiport does not currently plan to sell its Shares,
or acquire additional Shares, or take any other action
described in Item 4. However, depending on market
conditions and other factors that each may deem material
to its investment decision, each of the Reporting Persons
may purchase additional Shares in the open market or in
private transactions or may dispose of all or a portion of
the Shares that such Reporting Person now owns or
hereafter may acquire.
Except as set forth in this Item 4, the Reporting
Persons have no present plans or proposals that relate to
or that would result in any of the actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D of the
Act. <PAGE>
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) Acquiport directly owns 5,289,765 Shares which
constitute 37.7% of the outstanding 14,021,065 outstanding
shares as reported to the Reporting Persons by the Issuer.
Because of its position as the sole stockholder
of Acquiport, the Common Fund may, pursuant to Section
13(d)(3) of the Act, be deemed to be the beneficial owner
of the Shares owned directly by Acquiport.
To the best of the knowledge of each of the
Reporting Persons, other than as set forth above, none of
the persons named in Item 2 hereof is the beneficial owner
of any Shares.
(b) Although the 5,289,765 Shares are owned of
record by Acquiport, the Common Fund, as the sole
shareholder of Acquiport Two Corporation, beneficially
owns such 5,289,765 Shares. In its capacity as the sole
stockholder of Acquiport, the Common Fund may be deemed to
share power to vote or to direct the vote and to dispose
or to direct the disposition of the Shares owned directly
by Acquiport.
(c) Except as set forth in Item 4 above, to the best
of the knowledge of each of the Reporting Persons, none of
the persons named in response to paragraph (a) of this
Item 5 has effected any other transactions in Shares
during the past sixty (60) days.
(d) Each of the Reporting Persons affirms that no
person other than such Reporting Persons has the right to
receive or the power to direct the receipt of
distributions with respect to, or the proceeds from the
sale of, the Shares owned by such Reporting Person.
(e) It is inapplicable for the purposes herein to
state the date on which the Reporting Persons ceased to be
the owners of more than five percent (5%) of the
outstanding Shares.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to the Issuer.
----------------------------------------
Acquiport, certain other shareholders of the Issuer,
and the Issuer are parties to an Agreement among
Shareholders and Company, as amended (see Item 7,
Exhibits 2 and 3) pursuant to which after the merger of
American Office Park Properties, Inc. into the Issuer, the
Board of Directors of the Issuer consists of seven
members: two nominees of Public Storage, Inc., an <PAGE>
affiliate of the Issuer ("PSI") and five independent
directors mutually acceptable to PSI and Acquiport.
Acquiport and PSI have agreed to vote their respective
Shares to support such nominees to the Board. This voting
agreement expires at the later of the following dates:
(i) when Acquiport's interest in the Issuer or PSI's
interest in the Issuer is less than 20% assuming
conversion of all limited partnership interests in PS
Business Parks, L.P. into shares of Common Stock of the
Issuer, or (ii) December 24, 2001.
In addition, pursuant to the terms of the Agreement
Among Shareholders and Company, until December 31, 1998,
the Issuer has agreed to make reasonable efforts to allow
Acquiport to purchase shares in most underwritten
offerings of Common Stock in order to maintain its
proportionate holdings. Also, if the Issuer proposes to
issue shares of Common Stock at less than $22.88 per
share, Acquiport will have the right to purchase a number
of shares on the same proposed terms sufficient for
Acquiport to maintain its percentage interest in the
Issuer. This right will terminate when the Issuer raises
$150 million of Common Stock in one or more public
offerings.
In addition, pursuant to the terms of the Agreement
Among Shareholders and Company, the Issuer is obligated to
execute a registration rights agreement pursuant to which
the Issuer is obligated on or about March 17, 1999 to file
and maintain a "shelf" registration statement under the
Securities Act for the shares of Common Stock acquired by
Acquiport.
Pursuant to the Second Amended and Restated
Certificate of Incorporation of Acquiport Two Corporation
("Certificate"), neither the officers nor the directors of
Acquiport has the power, without receiving the approval of
the Common Fund, as sole stockholder of Acquiport, to
enter into, agree to enter into, or approve any
transaction agreement or contract on behalf of Acquiport
with respect to the Shares, except pursuant to an Annual
Business Plan, as that term is defined in the Certificate.
The foregoing description of the Certificate is qualified
in its entirety by reference to the text of such
Certificate which is filed as Exhibit 4 and incorporated
herein by reference.
Except as disclosed herein, to the knowledge of the
Reporting Persons, there are no contracts, arrangements,
understandings or relationships between the Reporting
Persons and any person with respect to any securities of
the Issuer, including, but not limited to, transfer or
voting of any of the securities of the Issuer, finder's
fees, joint ventures, loan or option agreements, puts or <PAGE>
calls, guarantees of profits, division of profits or loss
or giving or withholding of proxies, or a pledge or
contingency the occurrence of which would give another
person voting or investment power over securities of the
Issuer.
Item 7. Materials to be Filed as Exhibits.
---------------------------------
Exhibit 1 Joint Filing Agreement, filed herewith
Exhibit 2 Agreement Among Shareholders and
Company dated as of December 23, 1997
among Acquiport Two Corporation,
American Office Park Properties, Inc.,
American Office Park Properties, L.P.
and Public Storage, Inc. (incorporated
by reference from Exhibit 10.10 to the
Issuer's Registration Statement
No. 333-45405).
Exhibit 3 Amendment to Agreement Among
Shareholders and Company dated as of
January 21, 1998 among Acquiport Two
Corporation, American Office Park
Properties, Inc., American Office Park
Properties, L.P. and Public Storage,
Inc. (incorporated by reference from
Exhibit 10.11 to the Issuer's
Registration Statement No. 333-45405).
Exhibit 4 Second Amended and Restated
Certificate of Incorporation of
Acquiport Two Corporation, filed
herewith. <PAGE>
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
This Schedule 13D is filed on behalf of Acquiport Two
Corporation and the New York State Common Retirement Fund.
Dated: March 27, 1998
Acquiport Two Corporation
By: /s/ Howard Edelman
----------------------
Howard Edelman
Vice President
The Comptroller of the State
of New York as Trustee of the
New York State Common Retirement Fund
By: /s/ John E. Hull
----------------------
John E. Hull
Deputy Comptroller,
Investments and Cash Management<PAGE>
EXHIBIT 1
---------
JOINT FILING AGREEMENT
----------------------
In accordance with Rule 13d-1(f) under the
Securities Exchange Act of 1934, as amended, the
undersigned agree to the joint filing on behalf of each
of them of a Statement on Schedule 13D (including
amendments thereto) with respect to the common stock of
PS Business Parks, Inc. and further agree that this
agreement be included as an exhibit to such filing. Each
party to this agreement expressly authorizes each other
party to file on its behalf any and all amendments to
such Statement.
In evidence whereof, the undersigned have caused
this Agreement to be executed on their behalf this 27th
day of March, 1998,
Acquiport Two Corporation
By: /s/ Howard Edelman
----------------------
Howard Edelman
Vice President
The Comptroller of the State
of New York as Trustee of the
New York State Common Retirement Fund
By: /s/ John E. Hull
----------------------
John E. Hull
Deputy Comptroller,
Investments and Cash Management<PAGE>
Exhibit 4
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SECOND AMENDED AND RESTATED
CERTIFICATION OF INCORPORATION
OF ACQUIPORT TWO CORPORATION
----------------------------
FIRST: The name of the Corporation is ACQUIPORT TWO
CORPORATION. The original Certificate of Incorporation of
the Corporation was filed with the Secretary of State of
the State of Delaware on June 22, 1988, and amendments
thereto were filed on October 28, 1988 and July 11, 1989.
A Restated Certificate of Incorporation was filed on
October 16, 1992 and a change of agent was filed on
June 27, 1995. This Second Amended and Restated
Certificate of Incorporation restates, integrates and
further amends the Certificate of Incorporation, as
heretofore amended, and was duly adopted in accordance
with the provisions of Sections 242 and 245 of the
Delaware Corporation Law.
SECOND: The registered office of the Corporation in the
State of Delaware is to be located at 1209 Orange Street,
Wilmington, New Castle County. Its registered agent at
such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to acquire
property, hold title to and collect income from such
property and remit the entire amount of income from such
property (less expenses) to the Sole Stockholder of the
Corporation, which is an organization exempt from taxation
pursuant to Section 501(c)(2) of the Internal Revenue Code
of 1986, as amended.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Five Hundred
(500) designated as common stock and the par value of each
share of common stock is One Dollar ($1.00), amounting in
the aggregate to Five Hundred Dollars ($500.00).
FIFTH: All corporate powers of the Corporation shall be
exercised by or under the direction of the board of
directors except as otherwise provided by law or as stated
in this Article FIFTH.
In limitation of the powers conferred by law, neither the
board of directors nor the officers shall be authorized,
nor have the power to do the following, without receiving
the approval (in writing or at a meeting of the Sole
Stockholder duly called and held) of the Sole Stockholder:<PAGE>
(i) to create, cause to be created or approve
the creation of any lien, pledge or
security interest upon, or sell, assign,
convey or otherwise transfer, or cause to
be sold, assigned, conveyed or otherwise
transferred, any real property or
tangible personal property of the
Corporation;
(ii) to enter into, or agree to enter into, or
approve any transaction, agreement or
contract (including management or
brokerage agreements) on behalf of the
Corporation, except transactions,
agreements or contracts entered into in
connection with the operation of the
property of the Corporation pursuant to
an Annual Business Plan (as defined
below);
(iii) notwithstanding anything to the contrary
contained herein, to enter into, or agree
to enter into or approve, any leases
(including, without limitation, any space
leases) of any property owned or to be
owned by the Corporation, except for
leases consistent with the terms of the
applicable Annual Business Plan and
substantially in the form of a standard
form of lease (approved in writing or at
a meeting of the Sole Stockholder duly
called and held);
(iv) to join, institute or cause to be
instituted, any legal action or claim,
suit or proceeding, whatsoever, whether
civil, criminal, administrative or
investigative, except legal actions,
claims, suits or proceedings in
connection with (a) contesting real
estate tax assessments, (b) evicting any
tenant of any of the Corporation's
property as a result of such tenant's
bankruptcy, insolvency, liquidation or
similar condition or (c) any action on a
contract involving an amount not in
excess of $50,000;
(v) to create, establish, participate in,
operate or approve, on behalf of the
Corporation, any account (including,
without limitation, any checking,
savings, time deposit, or special
account) at any bank, savings
institution, credit union or like
organization, (a) without first giving
written notice (which notice must <PAGE>
identify all signatories or restrictions
or limitations thereon and must be
updated, from time to time, when
signatories or restrictions or
limitations are changed) of the proposed
establishment of such account, and (b)
unless the account permits a person
designated in writing from time to time
by said holders (without restriction as
to amount and without further
authorization or signature of any other
signatory) to make transfers via written
instructions for wire transfer only to a
bank account designated in writing from
time to time by said holders;
(vi) to amend, modify, adopt or repeal the by-
laws or certificate of incorporation of
the Corporation;
(vii) notwithstanding anything to the contrary
contained herein, and except as expressly
set forth in an Annual Business Plan, to
enter into, or agree to enter into or
approve, any transaction, agreement or
contract (including management and
brokerage agreements and leases),
whatsoever with, or to make any other
payment whatsoever to, any officer or
director of the Corporation or with any
entity employing such officer or director
or any affiliate thereof (including,
without limitation, any entity that
directly, or indirectly through one or
more intermediaries, controls or is
controlled by, or is under common control
with such entity), or with any entity or
natural person that has any substantial
business, financial or personal
relationship with any such officer,
director, entity or affiliate (the
approval by the Sole Stockholder being
valid as to a transaction within the
scope of this subclause only if such
approval shall specifically state that it
is being given to a transaction to which
this subclause is applicable);
(viii) to enter into, or agree to enter into or
approve any agreement whereby the
Corporation will act as guarantor, co-
guarantor, insurer or surety; and <PAGE>
(ix) to engage in or approve any activity not
in the ordinary course of the business of
the Corporation.
The approval of the Sole Stockholder contemplated by this
Article FIFTH need not be specific as to each transaction
(except for transactions to which subclause (vii) shall
apply) and, once given, may be revoked by written notice
given to each of the directors of the Corporation at their
last known business address.
"Annual Business Plan" as used above shall mean an annual
plan of operation of the property of the Corporation,
prepared by or on behalf of the Board of Directors and
approved (in writing or at a meeting of the Sole
Stockholder duly called and held) by the Sole Stockholder,
which Annual Business Plan shall contain (a) a budget of
all costs, expenses and fees expected to be incurred by
the Corporation during such year, including, but not
limited to, marketing costs and expenses, administrative
costs and expenses, legal fees, governmental fees,
management and leasing fees, insurance premiums, utility
costs and expenses, taxes, asset management fees and other
operating costs and expenses, as well as tenant
improvement costs, leasing commissions and other
allowances and capital improvements, (b) projected revenue
from the property of the Corporation, (c) restrictions
which limit the directors' and officers' authority to
approve or enter into leases without the approval (in
writing or at a meeting of the Sole Stockholder duly
called and held) of the Sole Stockholder and (d) such
other information as the Sole Stockholder of the
Corporation may request from time to time.
SIXTH: A director of the Corporation shall not be
personally liable to the Corporation or its Sole
Stockholder for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the
Corporation or its Sole Stockholder, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize
corporate action further eliminating or limiting the
personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any repeal or
modification of this Article SIXTH by the Sole Stockholder
of the Corporation shall not adversely affect any right or <PAGE>
protection of a director of the Corporation existing at
the time of such repeal or modification.
SEVENTH: Subject to Article SIXTH, no person shall be
liable to the Corporation for any loss or damage suffered
by it on account of any action taken or omitted to be
taken by him as a director or officer of the Corporation
in good faith, if such person (i) exercised or used the
same degree of diligence, care and skill as an ordinarily
prudent man would have exercised or used under the
circumstances in the conduct of his own affairs, or (ii)
took, or omitted to take, such action in reliance upon
advice of counsel for the Corporation, or upon statements
made or information furnished by officers or employees of
the Corporation which he had reasonable grounds to believe
to be true, or upon a financial statement of the
Corporation prepared by an officer or employee of the
Corporation in charge of its accounts or certified by a
public accountant or firm of public accountants.
EIGHTH: Every person who was or is a party or is
threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or a person
of whom he is the legal representative is or was a
director or officer of the Corporation as a director or
officer of another corporation, or as its representative
in a partnership, joint venture, trust or other
enterprise, shall be indemnified and held harmless by the
Corporation to the fullest extent legally permissible
under the General Corporation Law of the State of
Delaware, as amended from time to time, against all
expenses, liabilities and losses (including attorneys'
fees, judgments, fines and amounts paid in settlement)
reasonably incurred or suffered by him in connection
therewith. Such right of indemnification shall be a
contract right which may be enforced in any manner desired
by such person. Such right of indemnification shall not
be exclusive of any other right which such directors,
officers or representatives may have or hereafter acquire
and, without limiting the generality of such statement,
they shall be entitled to their respective rights of
indemnification under any by-laws, agreement, vote of the
Sole Stockholder, provision of law or otherwise, as well
as their rights under this Article.
By-laws may be adopted from time to time with respect to
indemnification to provide at all times the fullest
indemnification permitted by the General Corporation Law
of the State of Delaware, as amended from time to time,
and may cause the Corporation to purchase and maintain
insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, <PAGE>
or is or was serving at the request of the Corporation as
a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or
other enterprise against any liability asserted against
such person and incurred in any such capacity or arising
out of such status, whether or not the Corporation would
have the power to indemnify such person against such
liability.
NINTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of
them and/or between this Corporation and its Sole
Stockholder or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of the General
Corporation Law of the State of Delaware or on the
application of trustees in dissolution or of any receiver
or receivers appointed for this Corporation under the
provisions of Section 279 of the General Corporation Law
of the State of Delaware order a meeting of the creditors
or class of creditors, and/or of the Sole stockholder of
this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in
number representing three-fourths in value of the
creditors or class of creditors, and/or of the Sole
Stockholder of this Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization
of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on
all the creditors or class or creditors, and/or on the
Sole Stockholder of this Corporation, as the case may be,
and also on this Corporation.
TENTH: Elections of directors need not be by written
ballot unless the by-laws of the Corporation shall so
provide.
ELEVENTH: Any director or the entire board of directors
may be removed, with or without cause, at any time by the
Sole Stockholder, and the vacancy in the board of
directors caused by such removal may be filled by the Sole
Stockholder at the time of such removal.
TWELFTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
certificate of incorporation, in the manner now or
hereafter prescribed by statue, and all rights conferred
upon the Sole Stockholder, directors and other persons
herein are granted subject to this reservation. <PAGE>
THIRTEENTH: The Corporation shall have one class of stock
only, and there shall not be permitted to be more than one
(1) holder of the Corporation's one class of stock and any
purported transfer of stock that would result in more than
one (1) stockholder shall be null and void and without
effect.
FOURTEENTH: Upon the consent of the Sole Stockholder of
the Corporation, any investment advisor of the Corporation
shall be dismissed with or without cause. The Corporation
shall not enter into any agreement with any investment
advisor that is not terminable upon at least 30 days
notice by the Corporation.
IN WITNESS WHEREOF, the undersigned, being the
President of the Corporation, for the purpose of amending
and restating the Certificate of Incorporation of the
Corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate this 22 day
of December, 1997.
/s/ Jerome J. Clacys, III
----------------------------
Name: Jerome J. Clacys, III
Title: President<PAGE>
