EXHIBIT 4.1
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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
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DEPOSIT AGREEMENT
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Dated as of October 31, 2001
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TABLE OF CONTENTS
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Page
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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
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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
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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
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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,
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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
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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.
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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
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Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
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however, that the Depositary shall not issue any Receipt evidencing a fractional
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Depositary Share.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may (unless the related Depositary Shares have previously
been called for redemption) withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals and paying any unpaid amount due the Depositary. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor. If a Receipt
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares, provided, however, that the Depositary
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shall not issue any Receipt evidencing a fractional Depositary Share. Delivery
of the Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
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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
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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)
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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
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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
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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
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required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. In the event that the calculation of any such cash
dividend or other cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such holder results in an amount
which is a fraction of a cent, the amount the Depositary shall distribute to
such record holder shall be rounded to the next highest whole cent if such
fraction of a cent is equal to or greater than $.005, otherwise such fractional
interest shall be disregarded; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
SECTION 4.2 Distributions Other than Cash, Rights, Preferences
or Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of the securities
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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,
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however, that (i) if at the time of issue or offer of any such rights,
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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,
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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
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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
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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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