EXHIBIT 3.1
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
7.875% CUMULATIVE PREFERRED STOCK, SERIES S
OF
PUBLIC STORAGE, INC.
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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
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John Reyes
Senior Vice President
/s/ David Goldberg
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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.
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(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
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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-
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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"),
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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.
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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-
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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.
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(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.
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(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,
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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.
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(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.
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(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.
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(d) Voting Rights. The shares of this Series shall not have
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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
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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
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into shares of any other class or series of the capital stock of the
Corporation.
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