0000898430-01-503007.txt : 20011019
0000898430-01-503007.hdr.sgml : 20011019
ACCESSION NUMBER: 0000898430-01-503007
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 4
CONFORMED PERIOD OF REPORT: 20011016
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011017
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PUBLIC STORAGE INC /CA
CENTRAL INDEX KEY: 0000318380
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 953551121
STATE OF INCORPORATION: CA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-08389
FILM NUMBER: 1760889
BUSINESS ADDRESS:
STREET 1: 701 WESTERN AVE
STREET 2: STE 200
CITY: GLENDALE
STATE: CA
ZIP: 91201-2349
BUSINESS PHONE: (818) 244-8080
MAIL ADDRESS:
STREET 1: 701 WESTERN AVE
STREET 2: SUITE 200
CITY: GLENDALE
STATE: CA
ZIP: 91201
FORMER COMPANY:
FORMER CONFORMED NAME: STORAGE EQUITIES INC
DATE OF NAME CHANGE: 19920703
8-K
1
d8k.txt
FORM 8-K, DATED OCTOBER 16, 2001
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) October 16, 2001
-----------------
Public Storage, Inc.
--------------------
(Exact name of registrant as specified in its charter)
California 1-8389 95-3551121
---------- ------ ----------
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
701 Western Avenue, Glendale, California 91201-2349
---------------------------------------- ----------
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (818) 244-8080
--------------
N/A
---
(Former name or former address, if changed since last report)
Item 5. Other Events
------------
On September 25, 2001, the Securities and Exchange Commission declared
effective the Registration Statement on Form S-3 (No. 333-69468) (the "Shelf
Registration Statement") 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 (the "Securities"). As of
the date of this report, $800,000,000 of Securities remain unissued under the
Shelf Registration Statement.
Item 7. Financial Statements and Exhibits
---------------------------------
(c) Exhibits.
Exhibit 1.1 - Underwriting Agreement relating to the Company's
Depositary Shares Representing Shares of the Company's 7.875% Cumulative
Preferred Stock, Series S (the "Preferred Stock").
Exhibit 3.1 - Certificate of Determination for the Preferred 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/ David Goldberg
--------------------
David Goldberg
Vice President
Date: October 16, 2001
EX-1.1
3
dex11.txt
UNDERWRITING AGREEMENT
EXHIBIT 1.1
PUBLIC STORAGE, INC.
5,000,000 Depositary Shares
Each Representing 1/1,000 of a Share of
7.875% Cumulative Preferred Stock, Series S
Liquidation Preference Equivalent to $25.00 Per Depositary Share
UNDERWRITING AGREEMENT
October 16, 2001
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. BROWN INC.
A.G. EDWARDS & SONS, INC.
FIRST UNION SECURITIES, INC.
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the Several Underwriters
c/o SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Public Storage, Inc., a real estate investment trust ("REIT") and a
California corporation (the "Company"), proposes to issue and sell an aggregate
of 5,000,000 shares (the "Firm Shares") of its Depositary Shares (the
"Depositary Shares"), each representing 1/1,000 of a share of 7.875% Cumulative
Preferred Stock, Series S, stated value $25,000 per share (the "Preferred
Stock"), to you and the other underwriters named in Schedule I hereto
(collectively, the "Underwriters") for whom you are acting as Representatives
(the "Representatives"). The Company also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 1 hereof, up to an additional
750,000 Depositary Shares (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares."
The shares of Preferred Stock represented by the Shares (the
"Preferred Shares") will, when issued, be deposited by the Company against
delivery of Depositary Receipts ("Depositary Receipts") to be issued by Fleet
National Bank, 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.
The Company wishes to confirm as follows its agreement with
you and the other several Underwriters on whose behalf you are acting, in
connection with the several purchases of the Shares by the Underwriters.
1. Agreements to Sell and Purchase.
-------------------------------
(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $24.2125 per share (the "purchase price per
share"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Shares increased as set
forth in Section 9 hereof).
(b) The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriters, and, upon the basis of
the representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the Underwriters
shall have the right to purchase from the Company, at the purchase price per
share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of the Prospectus (as defined in Section 4)
(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 750,000 Additional Shares. Additional Shares may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares
2
(subject to such adjustments as you may determine in order to avoid fractional
shares) which bears the same proportion to the number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm Shares
increased as set forth in Section 9 hereof) bears to the aggregate number of
Firm Shares.
2. Terms of Public Offering.
------------------------
The Company has been advised by you that the Underwriters
propose to make a public offering of their respective portions of the Shares as
soon after this Agreement has been entered into and the Registration Statement
(as defined herein), and, if necessary, any post-effective amendment to the
Registration Statement, has become effective as in your judgment is advisable
and initially to offer the Shares upon the terms set forth in the Prospectus (as
defined herein).
3. Delivery of the Shares and Payment Therefor.
-------------------------------------------
Delivery to the Underwriters of and payment for the Firm
Shares shall be made at the office of Salomon Smith Barney Inc., 388 Greenwich
Street, New York, NY 10013, at 10:00 A.M., New York City time, on October 31,
2001 (the "Closing Date"). The place of closing for the Firm Shares and the
Closing Date may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of Salomon Smith Barney Inc. at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than three nor later than ten
business days after the giving of the notice hereinafter referred to, as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Shares may be varied by agreement
between you and the Company.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 P.M., New York City time, on
the second
3
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to the order of
the Company.
4. Representations and Warranties of the Company. The Company
---------------------------------------------
represents, warrants and covenants to the Underwriters as set forth below.
Certain terms used in this Section 4 are defined in paragraph (ae) hereof.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, registration number
333-69468 (the "Registration Statement"), on Form S-3, 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 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
Representatives. 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. The Company has
included or will include in such Registration Statement, as amended 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 Representatives 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
4
changes as the Company has advised the Representatives, 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
-------- -------
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 through the Representatives 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 hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Exchange Act of 1934,
as amended (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.
5
(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"), Belmont Acquisition Co. ("Belmont") and SEI - Firestone
Acquisition Corporation ("SEI Firestone" and, together with SEI Arlington,
Hypoluxo, PSTI, Sandy, Orangeco, PSPUD, PSIIA, PS GPT, PS LPT, Belmont 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 VIII,
Ltd. ("PSPVIII"), PS Texas Holdings, Ltd. ("Texas Holdings"), PSAF Development
Partners, L.P. ("PSAF LP"), PSAC Development Partners, L.P. ("PSAC LP") and PSA
Institutional Partners, L.P. ("PSAIP LP" and, together with PSPI, PSPII, PSPIII,
PSPIV, PSPV, PSPVI, PSPVIII, Texas Holdings, PSAF LP and PSAC LP, 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, security interest, equity, or other encumbrance. The Company owns as of
the date hereof approximately 100%, 100%, 100%, 56%, 61%, 61% and 100% of the
limited partnership units of PSPI, PSPII, PSPIII, PSPIV, PSPV, PSPVI 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, a 100%
economic interest in Texas Holdings, and 100% of the common units, 100% of the
parity preferred units and none of the exchangeable preferred units (Series N
and Series O) in PSAIP LP.
6
(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 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
7
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"), 8-5/8%
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"), 9.5% Cumulative Preferred Stock, Series N, stated value of $25,000 per
share, of the Company (the "Series N Preferred Stock"), 9.125% Cumulative
Preferred Stock, Series O, stated value of $25,000 per share, of the Company
(the "Series O Preferred Stock"), 8.75% Cumulative Preferred Stock, Series P,
stated value of $25,000 per share, of the Company (the "Series P Preferred
Stock"), 8.750% Cumulative Preferred Stock, Series Q, stated value of $25,000
per share, of the Company (the "Series Q Preferred Stock"), 8.000% Cumulative
Preferred Stock, Series R, stated value of $25,000 per share, of the Company
(the "Series R Preferred Stock"), Equity Stock, Series A, of the Company
("Series A Equity 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 Preferred 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 Stock Exchange requirements; and the holders of outstanding shares
of capital stock of the Com-
8
pany are not entitled to preemptive or other rights to subscribe for the Shares
or the Preferred 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
Preferred Shares; and this Agreement and the Deposit Agreement have been duly
authorized; and this Agreement has been, and the Deposit Agreement as of the
Closing Date, 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.
(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
9
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 Preferred 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, governmental body or
arbitrator having jurisdiction over the Company, any of the Subsidiaries or any
of the Partnerships.
10
(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 1,764,500 shares of Common Stock since January 1, 2001, 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.
(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 Representatives is, or will be, when made,
inaccurate, untrue or incorrect in any material respect.
11
(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.
(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
12
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.
(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
13
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 Preferred 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 Preferred
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 Statement 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
14
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.
5. Agreements of the Company. The Company agrees with
-------------------------
the 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 Representatives within a
reasonable period of time prior to the filing thereof and the Representatives
shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Rule
462(b) Registration Statement and any post-effective amendment to the
Registration Statement to become effective, and will notify the Representatives
promptly, and will confirm such advice in writing, (1) when any Rule 462(b)
Registration Statement and any post-effective amendment to the Registration
Statement become effective, (2) 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, (3) 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, (4) 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
1
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 (5) 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.
(c) The Company will furnish to the Representatives, without
charge, four 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 deemed to be incorporated by reference into the Prospectus) and
will furnish to the Representatives, without charge, for transmittal to each of
the other Underwriters, copies of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
but without exhibits.
(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 Representatives 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 Representatives 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
16
would be deemed to be incorporated by reference into the Prospectus which is not
approved by the Representatives after reasonable notice thereof.
(f) The Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or qualification
of the Shares and the Preferred Shares for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Representatives may reasonably
request; provided, 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.
(g) During the period of five years commencing on the date
hereof, the Company will furnish to each of the Representatives and each other
Underwriter 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 Representatives and each other Underwriter 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
the second paragraph of Section 9 hereof or by notice given by you terminating
this Agreement pursuant to Section 9 or Section 10 hereof) 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 Representatives for all
out-of-pocket
17
expenses (including fees and expenses of counsel for the Underwriters)
reasonably incurred by you 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 in the manner set forth in the Prospectus under "Use of
Proceeds."
(l) The Company will use its best efforts to have the Shares
listed, subject to notice of issuance, on the New York Stock Exchange.
6. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to 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 shall be consented to in writing by the
Representatives, and all filings, if any, required by Rules 424 and 430A under
the Act shall have been timely made; 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 instituted or, to the
knowledge of the Company or any Underwriter, contemplated by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the satisfaction of the Representatives.
(c) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective
18
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company, the Subsidiaries
or the Partnerships not contemplated by the Prospectus, which in your opinion,
as Representatives of the several Underwriters, would materially, adversely
affect the market for the Shares, or (ii) any event or development relating to
or involving the Company or any officer or director of the Company which makes
any statement made in the Prospectus untrue in any material respect or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
adversely affect the market for the Shares. On the Closing Date, the
Underwriters shall have received a certificate dated the Closing Date, signed by
each of the President and Chief Financial Officer of the Company confirming the
matters set forth in Sections 6(a), (b) and (c).
(d) The Underwriters shall have received an opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, from 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
19
conforms to the description thereof contained in the Prospectus in all
material respects; the statements in the Prospectus Supplement under
the caption "Description of Preferred Stock and Depositary Shares" and
in the Prospectus under the captions "Description of Preferred 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 I Preferred
Stock, Series J Preferred Stock, Series K Preferred Stock, Series L
Preferred Stock, Series M Preferred Stock, Series N Preferred Stock,
Series O Preferred Stock, Series P Preferred Stock, Series Q Preferred
Stock, Series R Preferred Stock, Series A Equity Stock, Series AA
Equity Stock and Series AAA Equity Stock have been duly and validly
authorized and issued and are fully paid and nonassessable and the
deposit of the Preferred Shares in accordance with the Deposit
Agreement has been duly authorized; the Shares and the Preferred
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 Preferred 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,
20
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, 2000 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" and the Company's
Quarterly Report on Form 10-Q for the quarters ended March 31, 2001
and June 30, 2001 under Part I, Item 2 - "Management's Discussion and
Analysis of Financial Condition and Results of Operations -
Distribution Requirements" (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;
(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 Preferred Stock; and the Agreement has
been, and the Deposit Agreement will have been as of the Closing Date,
duly authorized, executed and delivered by the Company;
21
(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, 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; 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;
22
(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
Preferred 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 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
23
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;
(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 4(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 4(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 Preferred
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
24
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 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 Preferred 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
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25
express any comment with respect to the financial statements and other financial
data included in the Registration Statement or Prospectus.
(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 is organized and currently operates 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, 2001, 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, 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
Representatives, and such counsel shall have been provided by the Company with
such
26
documents and information as they may reasonably request to enable them to pass
on such matters.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(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 you
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 you), to the effect set forth in this
Section 6(g) and in Section 6(h) 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.
27
(j) Prior to the Closing Date the Shares shall have been
listed, subject to notice of issuance, on the New York Stock Exchange.
(k) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have requested.
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 you and your counsel.
Any certificate or document signed by any officer of the
Company and delivered to you, as Representatives of 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 6, 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.
7. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each of
you and each other 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 expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or arising out of or based
upon 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 expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to such
Underwriter furnished in writing to the Company
28
by or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company (but failure to so notify
the Company shall not relieve the Company from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement) and the Company shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses; provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. Such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed promptly to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person
29
shall have been advised by its counsel that representation of such indemnified
party and the Company by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Company shall not have the right to
assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be designated
in writing by Salomon Smith Barney Inc., 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, suit or proceeding effected without its
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, suit or proceeding, the
Company agrees to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding paragraph, and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, and any person who controls 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 each Underwriter, but only
with respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any such
controlling person based on the Registration Statement, the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Company by paragraph (b) above (except that if the Company shall have assumed
the defense thereof such Underwriter 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
30
counsel shall be at such Underwriter's expense), and the Company, its directors,
any such officer, and any such controlling person shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraph (a) or (c) hereof in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an 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 or expenses (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 (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 (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to
31
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public 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 this Section 7 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 9
hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or 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 action, suit or proceeding and does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(g) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(b) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(b)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent such
indemnifying party
32
considers such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(h) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Expenses.
--------
The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Preliminary Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, the
Preliminary Prospectus, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares
and the Preferred Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares and the Preferred Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda, the Deposit Agreement and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares and the Preferred Shares; (v) the fees and expenses of
the Depositary, including the fees and disbursements
33
of counsel for the Depositary, if any; (vi) the registration of the Shares under
the Exchange Act and the listing of the Shares on the New York Stock Exchange;
(vii) the registration or qualification of the Shares and the Preferred Shares
for offer and sale under the securities or Blue Sky laws of the several states
as provided in Section 5(f) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (viii) the filing fees
and the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (ix) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Shares; and (x) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
9. Effective Date of Agreement.
---------------------------
This Agreement shall become effective: (i) upon the execution
and delivery hereof by the parties hereto; or (ii) 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. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying you, or by
you, as Representatives of the several Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is
not more than one-tenth of the aggregate number of Shares which the Underwriters
are obligated to purchase on the Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I hereto bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters
or in such other proportion as you may specify in accordance with Section 20 of
the Master Agreement Among Underwriters of Salomon Smith Barney Inc., to
purchase the
34
Shares which such defaulting Underwriter or Underwriters are obligated, but fail
or refuse, to purchase. If any one or more of the Underwriters shall fail or
refuse to purchase Shares which it or they are obligated to purchase on the
Closing Date and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares which
the Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Company, purchases Shares which a defaulting Underwriter is
obligated, but fails or refuses, to purchase.
Any notice under this Section 9 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
10. Termination.
-----------
This Agreement shall be subject to termination in your
absolute discretion, without liability on the part of any Underwriter to the
Company by notice to the Company, if prior to the Closing Date or any Option
Closing Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, (i) there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the business, properties, net worth or results of
operations of the Company, the Subsidiaries or the Partnerships, whether or not
arising in the ordinary course of business, (ii) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited, (iii) a general
moratorium on commercial banking activities in
35
New York or California shall have been declared by either federal or state
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
11. Information Furnished by the Underwriters.
-----------------------------------------
The statements set forth in the last paragraph on the cover
page, the stabilization legend on the inside front cover and the statements in
the first three paragraphs and the seventh paragraph under the caption
"Underwriting" in the Prospectus Supplement constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 4(b) and 7 hereof.
12. Miscellaneous.
-------------
Except as otherwise provided in Sections 3, 9 and 10 hereof,
notice given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (i) if to the Company, at the office of the Company, Public
Storage, Inc., 701 Western Avenue, 2nd Floor, Glendale, California 91201-2397,
Attention: Legal Department, or (ii) if to you, as Representatives of the
several Underwriters, care of Salomon Smith Barney Inc., 388 Greenwich Street,
New York, New York 10013, Attention: Office of the General Counsel.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
36
13. Applicable Law; Counterparts.
----------------------------
This agreement shall be governed by 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.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
37
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
Vice President and Senior Counsel
Confirmed as of the date
first above mentioned on
behalf of themselves and
the other several
Underwriters named in
Schedule I hereto.
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. BROWN INC.
A.G. EDWARDS & SONS, INC.
FIRST UNION SECURITIES, INC.
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the Several Underwriters
By: SALOMON SMITH BARNEY INC.
By /s/ Daniel Guglielmone
-----------------------------------------
Daniel Guglielmone
Director
SCHEDULE I
PUBLIC STORAGE, INC.
5,000,000 Depositary Shares
Number of
Underwriters Firm Shares
------------ -----------
Salomon Smith Barney Inc. ................................... 762,500
Credit Suisse First Boston Corporation ...................... 700,000
Deutsche Banc Alex. Brown Inc. .............................. 700,000
A.G. Edwards & Sons, Inc. ................................... 700,000
First Union Securities, Inc.(1) ............................. 700,000
Morgan Stanley & Co. Incorporated ........................... 700,000
Bear, Stearns & Co. Inc. .................................... 37,500
Charles Schwab & Co., Inc. .................................. 37,500
CIBC World Markets Corp. .................................... 37,500
Dain Rauscher Incorporated .................................. 37,500
H&R BLOCK Financial Advisors, Inc. .......................... 37,500
Legg Mason Wood Walker, Inc. ................................ 37,500
McDonald Investments Inc.(2) ................................ 37,500
Prudential Securities Incorporated .......................... 37,500
Quick & Reilly, Inc. ........................................ 37,500
Raymond James & Associates, Inc. ............................ 37,500
TD Waterhouse Investor Services, Inc. ....................... 37,500
Tucker Anthony Incorporated ................................. 37,500
U.S. Bancorp Piper Jaffray Inc. ............................. 37,500
Wells Fargo Van Kasper, LLC ................................. 37,500
Advest, Inc. ................................................ 12,500
D.A. Davidson & Co. ......................................... 12,500
Davenport & Company LLC ..................................... 12,500
Fahnestock & Co. Inc. ....................................... 12,500
Gibraltar Securities ........................................ 12,500
Gruntal & Co., L.L.C. ....................................... 12,500
HSBC Securities (USA) Inc. .................................. 12,500
J.J.B. Hilliard, W.L. Lyons, Inc. ........................... 12,500
Janney Montgomery Scott LLC ................................. 12,500
Mesirow Financial, Inc. ..................................... 12,500
Morgan Keegan & Company, Inc. ............................... 12,500
NatCity Investments, Inc. ................................... 12,500
Parker/Hunter Incorporated .................................. 12,500
Robert W. Baird & Co. Incorporated .......................... 12,500
SWS Securities, Inc. ........................................ 12,500
Stifel, Nicolaus & Company, Incorporated .................... 12,500
William Blair & Company, L.L.C. ............................. 12,500
-----------
Total ................................................... 5,000,000
===========
(1) First Union Securities, Inc. is acting under the trade name Wachovia
Securities.
(2) McDonald Investments Inc. is a member of the Key financial network.
EX-3.1
4
dex31.txt
CERTIFICATE OF DETERMINATION FOR PREFERRED STOCK
EXHIBIT 3.1
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
7.875% CUMULATIVE PREFERRED STOCK, SERIES S
OF
PUBLIC STORAGE, INC.
--------------------
The undersigned, John Reyes and David Goldberg, 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 authorize the issuance of 50,000,000 shares of stock designated
"preferred shares," issuable from time to time in one or more series, and
authorize the Board of Directors to fix the number of shares constituting any
such series, and to determine or alter the dividend rights, dividend rate,
conversion rights, voting rights, right and terms of redemption (including
sinking fund provisions), the redemption price or prices and the liquidation
preference of any wholly unissued series of such preferred shares, and the
number of shares constituting any such series.
SECOND: The Board of Directors of the Corporation did duly
adopt the resolutions attached hereto as Exhibit A and incorporated herein by
reference authorizing and providing for the creation of a series of preferred
shares to be known as "7.875% Cumulative Preferred Stock, Series S" consisting
of 5,750 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 16th day of October, 2001.
/s/ John Reyes
--------------------------------------------
John Reyes
Senior Vice President
/s/ David Goldberg
--------------------------------------------
David Goldberg
Secretary
EXHIBIT A
RESOLUTION OF THE BOARD OF DIRECTORS
OF PUBLIC STORAGE, INC.
ESTABLISHING A SERIES OF 7.875% CUMULATIVE
PREFERRED STOCK, SERIES S
RESOLVED that pursuant to the authority conferred upon the
Board of Directors by Article III of the Restated Articles of Incorporation of
this Corporation, there is hereby established a series of the authorized
preferred shares of this Corporation having a par value of $.01 per share, which
series shall be designated "7.875% Cumulative Preferred Stock, Series S," shall
consist of 5,750 shares and shall have the following rights, preferences and
privileges:
(a) Dividend Rights.
---------------
(1) Dividends shall be payable in cash on the shares of this
Series when, as and if declared by the Board of Directors, out of funds legally
available therefor: (i) for the period (the "Initial Dividend Period") from the
Deemed Original Issue Date (as defined below) to but excluding January 1, 2002,
and (ii) for each quarterly dividend period thereafter (the Initial Dividend
Period and each quarterly dividend period being hereinafter individually
referred to as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which quarterly Dividend Periods shall be in four equal amounts and
shall commence on January 1, April 1, July 1 and October 1 in each year (each, a
"Dividend Period Commencement Date"), commencing on January 1, 2002, and shall
end on and include the day next preceding the next Dividend Period Commencement
Date, at a rate per annum equal to 7.875% of the $25,000 per share stated value
thereof (the "Dividend Rate"). Dividends on each share of this Series shall be
cumulative from the Deemed Original Issue Date of such share and shall be
payable, without interest thereon, when, as and if declared by the Board of
Directors, on or before March 31, June 30, September 30 and December 31 of each
year, commencing on December 31, 2001 or, in the case of shares of this Series
with a Deemed Original Issue Date after December 31, 2001, the first such
dividend payment date following such Deemed Original Issue Date; provided, that
--------
if any such day shall be a Saturday, Sunday, or a day on which banking
institutions in the State of New York or the State of California are authorized
or obligated by law to close, or a day which is or is declared a national or a
New York or California state holiday (any of the foregoing a "Non-Business
Day"), then the payment date shall be the next succeed-
2
ing day which is not a Non-Business Day. Each such dividend shall be paid to the
holders of record of shares of this Series as they appear on the stock register
of the Corporation on such record date, not more than 45 days nor less than 15
days preceding the payment date thereof, as shall be fixed by the Board of
Directors. Dividends on account of arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any regular dividend payment
date, to holders of record on such date, not more than 45 days nor less than 15
days preceding the payment date thereof, as may be fixed by the Board of
Directors. After full cumulative dividends on this Series have been paid or
declared and funds therefor set aside for payment, including for the then
current Dividend Period, the holders of shares of this Series will not be
entitled to any further dividends with respect to that Dividend Period.
"Deemed Original Issue Date" means (a) in the case of any
share which is part of the first issuance of shares of this Series or part of a
subsequent issuance of shares of this Series prior to January 1, 2002, the date
of such first issuance or subsequent issuance, as the case may be, and (b) in
the case of any share which is part of a subsequent issuance of shares of this
Series on or after January 1, 2002, the later of (x) January 1, 2002 and (y) the
latest Dividend Period Commencement Date which precedes the date of issuance of
such share and which succeeds the last Dividend Period for which full cumulative
dividends have been paid; provided that, in the case of any share which is part
of a subsequent issuance, the date of issuance of which falls between (i) the
record date for dividends payable on the first succeeding dividend payment date
and (ii) such dividend payment date, the "Deemed Original Issue Date" means the
date of the Dividend Period Commencement Date that immediately follows the date
of issuance.
(2) Dividends payable on shares of this Series for any period
greater or less than a full Dividend Period, including the Initial Dividend
Period, shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
(3) The Corporation shall not declare or pay or set apart for
payment any dividends on any series of preferred shares ranking, as to
dividends, on a parity with or junior to the shares of this Series unless full
cumulative dividends have been or contemporaneously are declared and paid, or
declared and a sum sufficient for payment thereof is set apart for payment, for
all Dividend Periods terminating on or prior to the date of payment of any such
dividends on such other series of preferred shares. When dividends are not paid
in full upon the shares of this Series and any other series of preferred shares
ranking on a parity therewith as to dividends (including, without limitation,
the shares of the Corporation's 10% Cumulative Preferred Stock, Series A (the
"Series A Preferred Stock"), 9.20% Cumulative Preferred Stock, Series B (the
"Series B Preferred Stock"),
3
9.50% Cumulative Preferred Stock, Series D (the "Series D Preferred Stock"), 10%
Cumulative Preferred Stock, Series E (the "Series E Preferred Stock"), 9.75%
Cumulative Preferred Stock, Series F (the "Series F Preferred Stock"), 8-5/8%
Cumulative Preferred Stock, Series I (the "Series I Preferred Stock"), 8%
Cumulative Preferred Stock, Series J (the "Series J Preferred Stock"), 8 1/4%
Cumulative Preferred Stock, Series K (the "Series K Preferred Stock"), 8 1/4%
Cumulative Preferred Stock, Series L (the "Series L Preferred Stock"), 8.75%
Cumulative Preferred Stock, Series M (the "Series M Preferred Stock"), 9.5%
Cumulative Preferred Stock, Series N (the "Series N Preferred Stock"), 9.125%
Cumulative Preferred Stock, Series O (the "Series O Preferred Stock"), 8.75%
Cumulative Preferred Stock, Series P (the "Series P Preferred Stock"), 8.600%
Cumulative Preferred Stock, Series Q (the "Series Q Preferred Stock"), 8.000%
Cumulative Preferred Stock, Series R (the "Series R Preferred Stock") and
Adjustable Rate Cumulative Preferred Stock, Series C (the "Adjustable Rate
Preferred Stock")), all dividends declared upon shares of this Series and any
other series of preferred shares ranking on a parity therewith as to dividends
shall be declared pro rata so that the amount of dividends declared per share on
the shares of this Series and such other series of preferred shares shall in all
cases bear to each other that same ratio that the accumulated dividends per
share on the shares of this Series and such other series of preferred shares
bear to each other. Except as provided in the preceding sentence, unless full
cumulative dividends on the shares of this Series have been paid for all past
Dividend Periods, no dividends (other than in shares of the Corporation's common
stock, par value $.10 per share (together with any other shares of capital stock
of the Corporation into which such shares shall be reclassified or changed
("Common Shares"), or another stock ranking junior to the shares of this Series
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be made upon the Common Shares or on
any other stock of the Corporation ranking junior to or on a parity with the
shares of this Series as to dividends or upon liquidation. Unless full
cumulative dividends on the shares of this Series have been paid for all past
Dividend Periods, no Common Shares or any other stock of the Corporation ranking
junior to or on a parity with the shares of this Series as to dividends or upon
liquidation shall be redeemed, purchased, or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation or any
subsidiary, except by conversion into or exchange for stock of the Corporation
ranking junior to the shares of this Series as to dividends and upon
liquidation.
(b) Liquidation.
-----------
In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the holders of shares of this
Series are entitled to receive out of the assets of the Corporation available
for distribution to sharehold-
4
ers, before any distribution of assets is made to holders of Common Shares or
any other class or series of shares ranking junior to the shares of this Series
upon liquidation, liquidating distributions in the amount of $25,000 per share
plus all accumulated and unpaid dividends (whether or not earned or declared)
for the then current and all past Dividend Periods. If, upon any voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation the
amounts payable with respect to the shares of this Series and any other shares
of the Corporation ranking as to any such distribution on a parity with the
shares of this Series are not paid in full, the holders of shares of this Series
and of such other shares (including the shares of Series A, Series B, Series D,
Series E, Series F, Series I, Series J, Series K, Series L, Series M, Series N,
Series O, Series P, Series Q and Series R Preferred Stock and Adjustable Rate
Preferred Stock) will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of this Series
will not be entitled to any further participation in any distribution of assets
by the Corporation.
(1) Written notice of any such liquidation, dissolution or
winding up of the Corporation, stating the payment date or dates when, and the
place or places where the amounts distributable in such circumstances shall be
payable, shall be given by first class mail, postage pre-paid, not less than 30
nor more than 60 days prior to the payment date stated therein, to each record
holder of the shares of this Series at the respective addresses of such holders
as the same shall appear on the stock transfer records of the Corporation.
(2) For purposes of liquidation rights, a reorganization (as
defined in Section 181 of the California Corporations Code) or consolidation or
merger of the Corporation with or into any other corporation or corporations or
a sale of all or substantially all of the assets of the Corporation shall be
deemed not to be a liquidation, dissolution or winding up of the Corporation.
(c) Redemption.
----------
(1) Except as provided in clause (9) below, the shares of this
Series are not redeemable prior to October 31, 2006. On and after such date, the
shares of this Series are redeemable at the option of the Corporation, by
resolution of the Board of Directors, in whole or in part, from time to time
upon not less than 30 nor more than 60 days' notice, at a cash redemption price
of $25,000 per share plus all accumulated and unpaid dividends (whether or not
earned or declared) to the date of redemption.
5
(2) If fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed will be determined by
the Board of Directors, and such shares shall be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
by such holders (with adjustments to avoid redemption of fractional shares) or
by lot in a manner determined by the Board of Directors.
(3) Notwithstanding the foregoing, if any dividends, including
any accumulation, on the shares of this Series are in arrears, no shares of this
Series shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire, directly or indirectly, any shares of this Series; provided, however,
-------- -------
that the foregoing shall not prevent the purchase or acquisition of shares of
this Series pursuant to a purchase or exchange offer provided such offer is made
on the same terms to all holders of shares of this Series.
(4) Immediately prior to any redemption of shares of this
Series, the Corporation shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a dividend
payment record date and prior to the corresponding dividend payment date, in
which case each holder of shares of this Series at the close of business on such
dividend payment record date shall be entitled to the dividend payable on such
shares on the corresponding dividend payment date notwithstanding the redemption
of such shares before such dividend payment date. Except as expressly provided
herein above, the Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on shares of this Series called for
redemption.
(5) Notice of redemption shall be given by publication in a
newspaper of general circulation in the County of Los Angeles and The City of
New York, such publication to be made once a week for two successive weeks,
commencing not less than 30 nor more than 60 days prior to the date fixed for
redemption thereof. A similar notice will be mailed by the Company by first
class mail, postage pre-paid, to each record holder of the shares of this Series
to be redeemed, not less than 30 nor more than 60 days prior to such redemption
date, to the respective addresses of such holders as the same shall appear on
the stock transfer records of the Corporation. Each notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be redeemed; (iii)
the redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accumulate on such
redemption date. If fewer than all the shares of this Series held by any holder
are to be redeemed, the notice mailed to such holder shall also specify the
number of shares of this Series to be redeemed from such holder.
6
(6) In order to facilitate the redemption of shares of this
Series, the Board of Directors may fix a record date for the determination of
the shares to be redeemed, such record date to be not less than 30 nor more than
60 days prior to the date fixed for such redemption.
(7) Notice having been given as provided above, from and after
the date fixed for the redemption of shares of this Series by the Corporation
(unless the Corporation shall fail to make available the money necessary to
effect such redemption), the holders of shares selected for redemption shall
cease to be shareholders with respect to such shares and shall have no interest
in or claim against the Corporation by virtue thereof and shall have no voting
or other rights with respect to such shares, except the right to receive the
moneys payable upon such redemption from the Corporation, less any required tax
withholding amount, without interest thereon, upon surrender (and endorsement or
assignment of transfer, if required by the Corporation and so stated in the
notice) of their certificates, and the shares represented thereby shall no
longer be deemed to be outstanding. If fewer than all the shares represented by
a certificate are redeemed, a new certificate shall be issued, without cost to
the holder thereof, representing the unredeemed shares. The Corporation may, at
its option, at any time after a notice of redemption has been given, deposit the
redemption price for the shares of this Series designated for redemption and not
yet redeemed, plus any accumulated and unpaid dividends thereon to the date
fixed for redemption, with the transfer agent or agents for this Series, as a
trust fund for the benefit of the holders of the shares of this Series
designated for redemption, together with irrevocable instructions and authority
to such transfer agent or agents that such funds be delivered upon redemption of
such shares and to pay, on and after the date fixed for redemption or prior
thereto, the redemption price of the shares to their respective holders upon the
surrender of their share certificates. From and after the making of such
deposit, the holders of the shares designated for redemption shall cease to be
shareholders with respect to such shares and shall have no interest in or claim
against the Corporation by virtue thereof and shall have no voting or other
rights with respect to such shares, except the right to receive from such trust
fund the moneys payable upon such redemption, without interest thereon, upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares represented thereby shall no longer be deemed to be
outstanding. Any balance of such moneys remaining unclaimed at the end of the
five-year period commencing on the date fixed for redemption shall be repaid to
the Corporation upon its request expressed in a resolution of its Board of
Directors.
(8) Any shares of this Series that shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued preferred shares, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors.
7
(9) If the Board of Directors of the Corporation shall, at any
time and in good faith, be of the opinion that ownership of securities of the
Corporation has or may become concentrated to an extent that may prevent the
Corporation from qualifying as a real estate investment trust under the REIT
Provisions of the Internal Revenue Code, then the Board of Directors shall have
the power, by lot or other means deemed equitable by them to prevent the
transfer of and/or to call for redemption a number of shares of this Series
sufficient, in the opinion of the Board of Directors, to maintain or bring the
direct or indirect ownership thereof into conformity with the requirements of
such a real estate investment trust under the REIT Provisions of the Internal
Revenue Code. The redemption price to be paid for shares of this Series so
called for redemption, on the date fixed for redemption, shall be the average of
the highest bid and the lowest asked quotations on the last business day prior
to the redemption date as reported by the National Quotation Bureau,
Incorporated or a similar organization selected from time to time by the
Corporation or if there be no such bid and asked quotations, as determined by
the Board of Directors in good faith; provided that if interests in shares of
this Series are represented by depositary shares, then the redemption price
shall be determined in accordance with the foregoing, but with respect to one
depositary share, multiplied by the number of depositary shares that together
represent an interest in one share of this Series. From and after the date fixed
for redemption by the Board of Directors, the holder of any shares of this
Series so called for redemption shall cease to be entitled to any distributions,
voting rights and other benefits with respect to such shares of this Series,
other than the right to payment of the redemption price determined as aforesaid.
"REIT Provisions of the Internal Revenue Code" shall mean Sections 856 through
860 of the Internal Revenue Code of 1986, as amended. In order to exercise the
redemption option set forth in this clause (9), with respect to the shares of
this Series, the Corporation shall give notice of redemption by publication in a
newspaper of general circulation in the County of Los Angeles and The City of
New York, such publication to be made once a week for two successive weeks,
commencing not less than 30 nor more than 60 days prior to the date fixed for
redemption. A similar notice will be mailed by the Corporation by first class
mail, postage pre-paid, to each record holder of the shares of this Series to be
redeemed, not less than 30 nor more than 60 days prior to such redemption date,
to the respective addresses of such holders as the same shall appear on the
stock transfer records of the Corporation. Each notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be redeemed; (iii)
the redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accumulate on such
redemption date. If fewer than all the shares of this Series held by any holder
are to be redeemed, the notice mailed to such holder shall also specify the
number of shares of this Series to be redeemed from such holder.
8
(d) Voting Rights. The shares of this Series shall not have
-------------
any voting powers either general or special, except as required by law and
except that:
(1) If the Corporation shall fail to pay full cumulative
dividends on the shares of this Series or any other of its preferred shares for
six quarterly dividend payment periods, whether or not consecutive (a "Dividend
Default"), the holders of all outstanding preferred shares, voting as a single
class without regard to series, will be entitled to elect two Directors until
full cumulative dividends for all past dividend payment periods on all preferred
shares have been paid or declared and funds therefor set apart for payment. Such
right to vote separately as a class to elect Directors shall, when vested, be
subject, always, to the same provisions for the vesting of such right to elect
Directors separately as a class in the case of future Dividend Defaults. At any
time when such right to elect Directors separately as a class shall have so
vested, the Corporation may, and upon the written request of the holders of
record of not less than 20% of the total number of preferred shares of the
Corporation then outstanding shall, call a special meeting of stockholders for
the election of Directors. In the case of such a written request, such special
meeting shall be held within 90 days after the delivery of such request and, in
either case, at the place and upon the notice provided by law and in the Bylaws
of the Corporation, provided that the Corporation shall not be required to call
such a special meeting if such request is received less than 120 days before the
date fixed for the next ensuing Annual Meeting of Shareholders of the
Corporation and the holders of all classes of outstanding preferred shares are
afforded the opportunity to elect such Directors (or fill any vacancy) at such
Annual Meeting of Shareholders. Directors elected as aforesaid shall serve until
the next Annual Meeting of Shareholders of the Corporation or until their
respective successors shall be elected and qualified. If, prior to the end of
the term of any Director elected as aforesaid, a vacancy in the office of such
Director shall occur during the continuance of a Dividend Default by reason of
death, resignation, or disability, such vacancy shall be filled for the
unexpired term by the appointment of a new Director for the unexpired term of
such former Director, such appointment to be made by the remaining Director
elected as aforesaid.
(2) The affirmative vote or consent of the holders of at least
66 2/3% of the outstanding shares of this Series, voting separately as a class,
will be required for any amendment to the Articles of Incorporation of the
Corporation that will adversely alter or change the powers, preferences,
privileges or rights of the shares of this Series, except as set forth below.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of this Series and any other series of preferred shares
ranking on a parity with this Series as to dividends and upon liquidation
(including the shares of Series A, Series B, Series D, Series E, Series F,
Series I, Series J, Series K, Series L, Series M, Series N, Series O, Series P,
Series Q and Series R Preferred Stock and Adjustable Rate Preferred
9
Stock), voting as a single class without regard to series, will be required to
issue, authorize or increase the authorized amount of any class or series of
shares ranking prior to this Series as to dividends or upon liquidation or to
issue or authorize any obligation or security convertible into or evidencing a
right to purchase any such security, but the Articles of Incorporation may be
amended to increase the number of authorized preferred shares ranking on a
parity with or junior to this Series or to create another class of preferred
shares ranking on a parity with or junior to this Series without the vote of the
holders of outstanding shares of this Series.
Nothing herein shall be taken to require a class vote or consent in connection
with the authorization, designation, increase or issuance of any shares of any
class or series (including additional preferred shares of any series) that rank
junior to or on a parity with this Series as to dividends and liquidation rights
or in connection with the authorization, designation, increase or issuance of
any bonds, mortgages, debentures or other debt obligations of the Corporation.
(e) Conversion. The shares of this Series are not convertible
----------
into shares of any other class or series of the capital stock of the
Corporation.
10
EX-4.1
5
dex41.txt
FORM OF DEPOSIT AGREEMENT RELATING TO DEPOSITORY
EXHIBIT 4.1
--------------------------------------------------------------------------------
PUBLIC STORAGE, INC.
FLEET NATIONAL BANK, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO Series S PREFERRED STOCK
-----------------
DEPOSIT AGREEMENT
-----------------
Dated as of October 31, 2001
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Page
----
SECTION 2.1 Form and Transfer of Receipts ......................... 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof ............ 4
SECTION 2.3 Registration of Transfer of Receipts .................. 4
SECTION 2.4 Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock..... 4
SECTION 2.5 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts ..... 6
SECTION 2.6 Lost Receipts, etc .................................... 6
SECTION 2.7 Cancellation and Destruction of Surrendered Receipts .. 6
SECTION 2.8 Redemption of Stock ................................... 6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1 Filing Proofs, Certificates and Other Information ..... 8
SECTION 3.2 Payment of Taxes or Other Governmental Charges ........ 8
SECTION 3.3 Warranty as to Stock .................................. 9
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1 Cash Distributions .................................... 9
SECTION 4.2 Distributions Other than Cash, Rights Preferences
or Privileges .......................... 9
i
SECTION 4.3 Subscription Rights, Preferences or Privileges ............. 10
SECTION 4.4 Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts ................................. 11
SECTION 4.5 Voting Rights .............................................. 11
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc ........... 12
SECTION 4.7 Delivery of Reports ........................................ 12
SECTION 4.8 List of Receipt Holders .................................... 12
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar ........................ 13
SECTION 5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company ... 14
SECTION 5.3 Obligation of the Depositary, the Depositary's Agents,
the Registrar and the Company ....................... 14
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary ............................. 16
SECTION 5.5 Corporate Notices and Reports .............................. 17
SECTION 5.6 Indemnification by the Company ............................. 17
SECTION 5.7 Charges and Expenses ....................................... 17
SECTION 5.8 Tax Compliance ............................................. 17
ARTICLE VI
Amendment and Termination
SECTION 6.1 Amendment .................................................. 18
SECTION 6.2 Termination ................................................ 18
ARTICLE VII
Miscellaneous
SECTION 7.1 Counterparts ............................................... 19
SECTION 7.2 Exclusive Benefit of Parties ............................... 19
ii
SECTION 7.3 Invalidity of Provisions ................................. 19
SECTION 7.4 Notices .................................................. 19
SECTION 7.5 Appointment of Registrar ................................. 20
SECTION 7.6 Holders of Receipts are Parties .......................... 20
SECTION 7.7 Governing Law ............................................ 20
SECTION 7.8 Inspection of Deposit Agreement .......................... 20
SECTION 7.9 Headings ................................................. 20
Form of Depositary Shares
Form of Face of Receipt ............................................... A-1
Form of Reverse of Receipt ............................................ A-3
iii
DEPOSIT AGREEMENT, dated as of October 31, 2001, among PUBLIC
STORAGE, INC., a California corporation (the "Company"), Fleet National Bank, a
national banking association (the "Depositary"), and the holders from time to
time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of Series S Preferred Stock of
the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained
herein, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
Definitions
The following definitions shall, for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Certificate" shall mean the Certificate of Determination
filed with the Secretary of State of the State of California establishing the
Stock as a series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean Fleet National Bank and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing 1/1,000 of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 5.1 and shall include the Registrar if such
Registrar is not the Depositary.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary receipt business shall
be administered.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form and evidencing the number of Depositary
Shares held of record by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or
trust company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's 7.875% Cumulative
Preferred Stock, Series S, $.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,
2
as evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at the Depositary's Office or at such
other place or places as the Depositary shall determine, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge to the holder therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual
and/or facsimile signature of a duly authorized officer of the Depositary. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed in
accordance with the foregoing sentence. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares. The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is
properly endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt shall
-------- -------
be registered on the books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
3
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or, subject to Section 2.4, any holder of Stock may from
time to time deposit shares of Stock under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the whole number of Depositary Shares representing, in the aggregate, the Stock
so deposited and registered in such name or names as may be requested by such
person or persons. The Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
SECTION 2.3 Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer.
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing the
same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.4 Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the
4
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
--------
however, that the Depositary shall not issue any Receipt evidencing a fractional
-------
Depositary Share.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may (unless the related Depositary Shares have previously
been called for redemption) withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals and paying any unpaid amount due the Depositary. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor. If a Receipt
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares, provided, however, that the Depositary
-------- -------
shall not issue any Receipt evidencing a fractional Depositary Share. Delivery
of the Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
5
SECTION 2.5 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.2 and 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature, and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed, or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.6 Lost Receipts, etc. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its reasonable
discretion may execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence reasonably satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the furnishing of
the Depositary with indemnification reasonably satisfactory to it and the
Company and (iii) the payment of any reasonable expense (including reasonable
fees, charges and expenses of the Depositary) in connection with such execution
and delivery.
SECTION 2.7 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION 2.8 Redemption of Stock. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
60 days' notice of the date of such proposed redemption or exchange of Stock and
of the number of such shares held by the Depositary to be so redeemed and the
6
applicable redemption price, as set forth in the Certificate, which notice shall
be accompanied by a certificate from the Company stating that such redemption of
Stock is in accordance with the provisions of the Certificate. Notice of
redemption of Stock will also be given by the Company by publication in a
newspaper of general circulation in the County of Los Angeles and the City of
New York, such publication to be made once a week for two successive weeks
commencing not less than 30 nor more than 60 days prior to the redemption date,
and the Depositary will publish a notice of redemption of the Depositary Shares
containing the same type of information and in the same manner as the Company's
notice of redemption. On the date of such redemption, provided that the Company
shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed for redemption, in
accordance with the provisions of the Certificate, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The Depositary shall
mail notice of the Company's redemption of Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the Stock to be
redeemed by first-class mail, postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date") to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the address of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. The Company will provide the Depositary with the information
necessary for the Depositary to prepare such notice and each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price per Depositary Share; (iv) the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue on such
Redemption Date. In case less than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be so redeemed shall be determined pro
rata or by lot in a manner determined by the Board of Directors.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to provide
the funds necessary to redeem the Stock evidenced by the Depositary Shares
called for redemption) (i) dividends on the shares of Stock so called for
redemption shall cease to accrue from and after such date, (ii) the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, (iii) all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate, and (iv)
7
upon surrender in accordance with such redemption notice of the Receipts
evidencing any such Depositary Shares called for redemption (properly endorsed
or assigned for transfer, if the Depositary or applicable law shall so require),
such Depositary Shares shall be redeemed by the Depositary at a redemption price
per Depositary Share equal to the same fraction of the redemption price per
share paid with respect to the shares of Stock as the fraction each Depositary
Share represents of a share of Stock plus the same fraction of all money and
other property, if any, represented by such Depositary Shares, including all
amounts paid by the Company in respect of dividends which on the Redemption Date
have accumulated on the shares of Stock to be so redeemed and have not
theretofore been paid. Any funds deposited by the Company with the Depositary
for any Depositary Shares that the holders thereof fail to redeem will be
returned to the Company after a period of five years from the date such funds
are so deposited.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption, provided, however, that the Depositary
-------- -------
shall not issue any Receipt evidencing a fractional Depositary Share.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper or otherwise reasonably request. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal or
conversion of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such
8
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or all
the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly authorized,
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.4 such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
-------- -------
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. In the event that the calculation of any such cash
dividend or other cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such holder results in an amount
which is a fraction of a cent, the amount the Depositary shall distribute to
such record holder shall be rounded to the next highest whole cent if such
fraction of a cent is equal to or greater than $.005, otherwise such fractional
interest shall be disregarded; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.2 Distributions Other than Cash, Rights, Preferences
or Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of the securities
9
or property received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem equitable and appropriate.
The net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.1 in the case
of a distribution received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
--------
however, that (i) if at the time of issue or offer of any such rights,
-------
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to execute such rights, preferences or privileges,
then the Depositary, in its discretion (with approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.1 and 3.2, be distributed by the Depositary to
the record holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
10
preferences or privileges relate, the Company will file promptly a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until it has received written notice from the Company that
such registration statement shall have become effective, or that the offering
and sale of such securities to such holders are exempt from registration under
the provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel reasonably satisfactory to the Depositary to
such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its reasonable best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
SECTION 4.4 Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of Receipts
a notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary
11
shall use its best efforts to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will not vote (but, at its discretion, may appear at any meeting with respect to
such Stock unless directed to the contrary by the holders of all the Receipts)
to the extent of the Stock represented by the Depositary Shares evidenced by
such Receipt.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification of
the Stock, or upon any recapitalization, reorganization, merger or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval (not to be unreasonably withheld) of, and shall
upon the instructions of, the Company, and (in either case) in such manner as
the Depositary may deem equitable, (i) make such adjustments in the fraction of
an interest in one share of Stock represented by one Depositary Share as may be
necessary (as certified by the Company) fully to reflect the effects of such
change in par value or liquidation preference, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger
or consolidation and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case, the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par value or liquidation
preference, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or for which
such Stock would have been exchanged or surrendered had such Receipt been
surrendered immediately prior to the effective date of such transaction.
SECTION 4.7 Delivery of Reports. The Depositary shall furnish
to holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
12
SECTION 4.8 List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts. The Company shall be
entitled to receive such list four times annually without charge.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain at the Depositary's office facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books during
normal business hours shall be open for inspection by the record holders of
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint
a Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more national
securities exchanges, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, such Depositary Shares or
such Stock are listed on one or more other stock exchanges, the Depositary will,
at the request and at the expense of the Company, arrange such facilities for
the delivery, registration, registration of transfer, surrender and exchange of
such Receipts, such
13
Depositary Shares or such Stock as may be required by law or applicable
securities exchange regulation.
The Depositary may from time to time appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such action.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Articles of Incorporation or by reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, the Depositary's Agent, the Registrar or the Company
shall be prevented, delayed or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur liability to any holder
of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which the terms of this Deposit Agreement
shall provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.3 Obligation of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement or any Receipt to
holders of Receipts other than for its gross negligence, willful misconduct or
bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in its reasonable opinion may involve it
in expense or liability unless indemnity reasonably satisfactory to it against
expense and liability be furnished as often as may be reasonably required.
14
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, the Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith. The Depositary will indemnify the Company and hold it harmless from
any loss, liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed or omitted by the
Depositary, including when such Depositary acts as Registrar, or the
Depositary's Agents in connection with this Agreement due to its or their gross
negligence, willful misconduct or bad faith. The indemnification obligations of
the Depositary set forth in this Section 5.3 shall survive any termination of
this Agreement and any succession of any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the
Depositary's Agents, and the Registrar may own, buy, sell and deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary, parent,
affiliate or subsidiary or Depositary's Agent or Registrar hereunder. The
Depositary may also act as trustee, transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar, acting as the Depositary's Agent or
Registrar, as the case may be, shall be deemed to be an "issuer" of the
securities under the federal securities laws or applicable state securities
laws, it being expressly understood and agreed that the Depositary, any
Depositary's Agent and the Registrar are acting only in a ministerial capacity
as Depositary or Registrar for the Stock.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any representation
or has any responsibility as to the validity of the registration statement
pursuant to which the Depositary Shares are registered under the Securities Act,
the Stock, the Depositary Shares or the Receipts (except for its
counter-signatures thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein.
15
The Depositary assumes no responsibility for the correctness
of the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity or
genuineness of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares. The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by delivering notice of its election to do so to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $150,000,000. If no successor Depositary shall have been so appointed and
have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
Depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to such successor a
list of the record holders of all outstanding Receipts and such records, books
and other information in its possession relating thereto. Any successor
Depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
16
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.6 Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and the Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Deposit Agreement and the Receipts
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of gross
negligence, willful misconduct or bad faith on the respective parts of any such
person or persons. The obligations of the Company set forth in this Section 5.6
shall survive any succession of any Depositary or Depositary's Agent.
SECTION 5.7 Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay charges of the
Depositary in connection with the initial deposit of the Stock and the initial
issuance of the Depositary Shares, all withdrawals of shares of the Stock by
owners of Depositary Shares, and any redemption of the Stock at the option of
the Company. All other transfer and other taxes and governmental charges shall
be at the expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for which it is
not otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses. The Depositary
shall present its statement for charges and expenses to the Company at such
intervals as the Company and the Depositary may agree.
17
SECTION 5.8 Tax Compliance. The Depositary, on its own behalf
and on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from
the Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The Depositary shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available on request to the Company or to its authorized representatives.
ARTICLE VI
Amendment and Termination
SECTION 6.1 Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
(other than any change in the fees of any Depositary or Registrar, which shall
go into effect not sooner than three months after notice thereof to the holders
of the Receipts) which shall materially adversely alter the rights of the
holders of Receipts shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to be bound by the Deposit Agreement as amended thereby. Notwithstanding the
foregoing, in no event may any amendment impair the right of any holder of any
Depositary Shares, upon surrender of the Receipts evidencing such Depositary
Shares and subject to any conditions specified in this Deposit Agreement, to
receive shares of Stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of applicable law.
18
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:
19
Public Storage, Inc.
701 Western Avenue, 2nd Floor
Glendale, California 91201-2397
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:
Fleet National Bank
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.
20
SECTION 7.5 Appointment of Registrar. The Company hereby also
appoints the Depositary as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
SECTION 7.6 Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7 Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
APPLICABLE TO CONTRACTS MADE IN AND TO BE PERFORMED IN THE STATE OF NEW YORK,
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.
21
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:
------------------------------- ------------------------------------
John Reyes David Goldberg
Senior Vice President, Chief Financial Vice President and Senior Counsel
Officer and Assistant Secretary
Attested by: FLEET NATIONAL BANK
------------------------------- ------------------------------------
Name: Name:
Title: Title:
22
ANNEX A
TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE
ENGRAVED RECEIPT WHEN READY FOR DELIVERY
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 [ ]
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES EACH REPRESENTING 1/1,000th OF A
SHARE OF 7.875% CUMULATIVE PREFERRED STOCK,
SERIES S
OF
PUBLIC STORAGE, INC.
INCORPORATED UNDER THE
LAWS OF THE STATE OF CALIFORNIA
A-1
FLEET NATIONAL BANK, as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of _____________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a 1/1,000 interest in
one share of 7.875% Cumulative Preferred Stock, Series S (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 October 31, 2001 (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 91201-2397, Attention:
Secretary.
This Depositary Receipt is continued on the reverse hereof and the additional
provisions set forth therein (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
Countersigned
FLEET NATIONAL BANK
Depositary, Transfer Agent and
Registrar
By:
-----------------------------
Authorized
Officer
A-2
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 OCTOBER 31, 2006, TO CALL FOR
REDEMPTION THE STOCK, (2) ARTICLE XI, SECTION 7 OF THE BYLAWS, WHICH CONFERS
UPON THE BOARD THE RIGHT TO REFUSE TO REGISTER THE TRANSFER OF AND/OR TO CALL
FOR REDEMPTION THE SHARES REPRESENTED BY THIS CERTIFICATE IF NECESSARY IN ITS
OPINION TO MAINTAIN THE CORPORATION'S QUALIFICATION AS A "REAL ESTATE INVESTMENT
TRUST" UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND (3) THE
PROVISIONS OF THE ARTICLES AND BYLAWS, WHICH SET FORTH OWNERSHIP LIMITATION
PROVISIONS DESIGNED TO MAINTAIN SUCH QUALIFICATION.
1. The Deposit Agreement. Depositary Receipts, of which this
Depositary Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of October 31, 2001 (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
A-3
the redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such redemption. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be determined pro rata or by lot in a
manner determined by the Board of Directors. Notice having been mailed as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the shares of Stock evidenced by
the Depositary Shares called for redemption), dividends on the shares of Stock
so called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with said notice of
the Depositary Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary or applicable law shall so require),
such Depositary Shares shall be redeemed at a redemption price per Depositary
Share equal to the same fraction of the redemption price per share paid with
respect to the shares of Stock as the fraction each Depositary Share represents
of a share of Stock plus the same fraction of all money and other property, if
any, represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the shares of Stock to be so redeemed and have not theretofore been paid. The
foregoing is subject further to the terms and conditions of the Certificate of
Determination. If fewer than all of the Depositary Shares evidenced by this
Depositary Receipt are called for redemption, the Depositary will deliver to the
holder of this Depositary Receipt upon its surrender to the Depositary, together
with the redemption payment, a new Depositary Receipt evidencing the Depositary
Shares evidenced by such prior Depositary Receipt and not called for redemption.
4. Surrender of Depositary Receipts and Withdrawal of Stock.
Upon surrender of this Depositary Receipt to the Depositary at the Depositary's
Office or at such other offices as the Depositary may designate, and subject to
the provisions of the Deposit Agreement, the holder hereof is entitled to
withdraw, and to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole shares of
Stock) and all money and other property, if any, at the time represented by the
Depositary Shares evidenced by this Depositary Receipt; provided, however, that,
in the event this Depositary Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall, in addition to
such whole number of shares of Stock and such money and other property, if any,
to be withdrawn, deliver, to or upon the order of such holder, a new Depositary
Receipt or Depositary Receipts evidencing such excess number of whole Depositary
Shares.
5. Transfers, Split-ups, Combinations. Subject to the Deposit
Agreement, this Depositary Receipt is transferable on the books of the
Depositary upon surrender of this Depositary Receipt to the Depositary, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer
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the Depositary shall sign and deliver a Depositary Receipt or Depositary
Receipts to or upon the order of the person entitled thereto, all as provided in
and subject to the Deposit Agreement. This Depositary Receipt may be split into
other Depositary Receipts or combined with other Depositary Receipts into one
Depositary Receipt evidencing the same aggregate number of Depositary Shares
evidenced by the Depositary Receipt or Depositary Receipts surrendered;
provided, however, that the Depositary shall not issue any Depositary Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of
Depositary Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this Depositary
Receipt, the Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement to it) of any tax or other governmental charge
with respect thereto; (ii) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
not inconsistent with the Deposit Agreement.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock
may be refused, the delivery of this Depositary Receipt against Stock may be
suspended, the registration of transfer of Depositary Receipts may be refused
and the registration of transfer, surrender or exchange of this Depositary
Receipt may be suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
8. Amendment. The form of the Depositary Receipts and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable; provided, however, that no such amendment
(other than any changes in the fees of any Depositary or Registrar which shall
go into effect not sooner than three months after Notice thereof to the holders
of the Depositary Receipts) which shall materially adversely alter the rights of
holders of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Depositary Receipt, to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the owner of the Depositary
Shares evidenced by this Depositary Receipt to surrender this Depositary Receipt
with instructions to the Depositary to deliver to the holder the Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
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9. Charges and Expenses. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangement, except such charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts.
10. Title to Depositary Receipts. Title to this Depositary
Receipt, when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
a negotiable instrument; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement, distribute
to record holders of Depositary Receipts such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Depositary Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes or as otherwise required by
law, regulation or court process, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. In the
event that the calculation of any such cash dividend or other cash distribution
to be paid to any record holder on the aggregate number of Depositary Receipts
held by such holder results in an amount which is a fraction of a cent, the
amount the Depositary shall distribute to such record holder shall be rounded to
the next highest whole cent; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
12. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
name Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of
Depositary Receipts in such manner as the Depositary shall determine.
13. Notice of Dividends, Fixing of Record Date. Whenever (i)
any cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii) the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice or whenever
the Depositary and the Company shall
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decide it is appropriate, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or for
any other appropriate reasons.
14. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Depositary Receipts a
notice, which shall contain (i) such information as is contained in such notice
of meeting, (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary Shares, and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Depositary Receipt on such
record date the Depositary shall use its best efforts to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by this
Depositary Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of this Depositary Receipt, the Depositary will abstain from voting
to the extent of the Stock represented by the Depositary Shares evidenced by
this Depositary Receipt.
15. Reports, Inspection of Transfer Books. The Depositary
shall transmit to the record holders of Depositary Receipts copies of all
reports and communications received from the Company that are received by the
Depositary as the holder of Stock. The Depositary shall keep books at the
Corporate Office for the registration and transfer of Depositary Receipts, which
books at all reasonable times will be open for inspection by the record holders
of Depositary Receipts; provided that any such holder requesting to exercise
such right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
16. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any holder of this
Depositary Receipt, if by reason of any provision of any present or future law
or regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Articles of Incorporation or by reason of any act of
God or war or other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the terms
of the Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's
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Agent, the Registrar or the Company incur any liability to any holder of this
Depositary Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement except if such exercise or failure to exercise discretion is caused by
its gross negligence or willful misconduct.
17. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company assumes any obligation or shall be subject to
any liability under the Deposit Agreement or this Depositary Receipt to the
holder hereof or other persons, other than for its gross negligence, willful
misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to Stock, Depositary
Shares or Depositary Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to act by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of this Depositary Receipt
or any other person believed by it in good faith to be competent to give such
advice or information.
18. Termination of Deposit Agreement. Whenever so directed by
the Company upon not less than 60 days' prior written notice, the Depositary
will terminate the Deposit Agreement by mailing notice of such termination to
the record holders of all Depositary Receipts then outstanding at least 30 days
after the date of such notice. Upon the termination of the Deposit Agreement,
the Company shall be discharged to all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7 of the Deposit Agreement.
19. Governing Law. The Deposit Agreement and this Depositary
Receipt and all rights thereunder and hereunder and provisions thereof and
hereof shall be governed by, and construed in accordance with, the law of the
State of New York, including without limitation Section 5-1401 of the New York
General Obligations Law.
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The following abbreviations, when used in the inscription on the face
of this Depositary Receipt, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -____ Custodian ____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts 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)
Additional abbreviations may also be used though not in the above list.
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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
By ______________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
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