Exhibit 3.1
STORAGE USA, INC.
ARTICLES OF AMENDMENT TO THE AMENDED CHARTER
DESIGNATING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
Pursuant to the provisions of Section 48-20-106 of the Tennessee
Business Corporation Act, the undersigned corporation (the "Corporation") hereby
adopts the following Articles of Amendment to its Amended Charter:
FIRST: The name of the corporation is Storage USA, Inc.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 6.1 of the Corporation's Amended Charter
(the "Charter") and Section 48-16-102 of the Tennessee Code Annotated, the Board
of Directors has, by resolution, duly divided and classified 650,000 shares of
the preferred stock of the Company into a series designated 8 7/8% Series A
Cumulative Redeemable Preferred Stock ( the "Series A Preferred Stock") and has
provided for the issuance of the Series A Preferred Stock.
THIRD: Section 6.1 is hereby amended by adding the following:
8 7/8% Series A Cumulative Redeemable Preferred Stock.
(a) Designation and Number. A series of Preferred Stock designated as the 8 7/8%
Series A Cumulative Redeemable Preferred Stock (the "Series A Preferred Stock")
is hereby established. The number of shares of Series A Preferred Stock shall be
650,000.
(b) Definitions. For purposes of the Series A Preferred Stock, the following
terms shall have the meanings indicated:
"Business Day" shall mean any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in New York
City, New York are authorized or required by law, regulation or executive order
to close.
"Priority Return" shall mean the cumulative preferential cash distributions with
respect to the Series A Preferred Stock set forth in Section 4.02(e)(iii).
(c) Distributions.
A. Payment of Distributions. Holders of Series A Preferred Stock will
be entitled to receive, when, as and if declared by the Board of Directors (or a
duly authorized committee thereof), out of funds legally available for the
payment of dividends, cumulative preferential cash distributions at the rate per
annum of $8.78 per share of Series A Preferred Stock. Such distributions shall
be cumulative, shall accrue from the original date of issuance and will be
payable quarterly in arrears, on January 15, April 15, July 15 and October 15 of
each year (each a "Series A Preferred Stock Distribution Payment Date"). The
amount of the distribution payable for any period will be prorated and computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed on the basis of the actual
number of days elapsed in such a 30-day month. If any date on which
distributions are to be made on the Series A Preferred Stock is not a Business
Day, then payment of the distribution to be made on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series A Preferred Stock will be
made to the holders of record of shares of the Series A Preferred Stock on the
relevant record dates, which will be fifteen (15) days prior to the relevant
Series A Preferred Stock Distribution Payment Date.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on shares of the Series A Preferred Stock will accrue whether or
not the terms and provisions of any agreement of the Corporation at any time
prohibit the current payment of distributions, whether or not the Corporation
has earnings, whether or not there are funds legally available for the payment
of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series A Preferred Stock will accumulate
as of the Series A Preferred Stock Distribution Payment Date on which they first
become payable. Accumulated and unpaid distributions will not bear interest.
C. Priority as to Distributions.
1. So long as any shares of Series A Preferred Stock are
outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any class or
series of capital stock ranking junior as to the payment of distributions to the
shares of Series A Preferred Stock (collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase, redemption
or other acquisition for consideration of any shares of Series A Preferred Stock
or any Junior Stock, unless, in each case, all distributions accumulated on all
shares of Series A Preferred Stock have been paid in full.
2. So long as distributions have not been paid in full (or a
sum sufficient for such full payment is not so set apart) upon shares of the
Series A Preferred Stock, all distributions authorized and declared on shares of
the Series A Preferred Stock shall be authorized and declared so that the amount
of distributions authorized and declared per share of Series A Preferred Stock
shall in all cases bear to each other the same ratio that accrued distributions
per share of Series A Preferred Stock bear to each other.
D. No Further Rights. Holders of shares of Series A Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
(d) Liquidation Proceeds
A. Distribution. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, holders of shares of Series A Preferred Stock
shall be entitled to be paid out of the assets of the Corporation legally
available for distribution to its shareholders a liquidation preference of
$100.00 per share, plus an amount equal to any accrued and unpaid dividends to
the date of payment, but without interest, before any distribution of assets is
made to holders of any other class or series of capital stock of the Corporation
that ranks junior to the Series A Preferred Stock as to liquidation rights.
B. Notice. Written notice of any such voluntary or involuntary
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 (1) fax and (2) first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of shares of Series A
Preferred Stock at the respective addresses of such holders as the same shall
appear on the transfer records of the Corporation.
C. No Further Rights. After payment of the full amount of the
Liquidation Preference, the holders of shares of Series A Preferred Stock will
have no right or claim to any of the remaining assets of the Corporation.
D. Consolidation, Merger or Certain Other Transactions. The
consolidation or merger or other business combination of the Corporation with or
into any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Optional Redemption.
A. Right of Optional Redemption. The Series A Preferred Stock may not
be redeemed prior to November 1, 2003. On or after such date, the Corporation
shall have the right to redeem the Series A Preferred Stock, in whole or in
part, at any time or from time to time out of funds legally available therefor,
upon not less than 30 nor more than 60 days' written notice, at a redemption
price, payable in cash, equal to $100.00, plus accumulated and unpaid dividends
to the redemption date (the "Redemption Price"). If fewer than all of the
outstanding shares of Series A Preferred Stock are to be redeemed, the shares of
Series A Preferred Stock to be redeemed shall be selected pro rata (as nearly as
practicable without creating fractional shares).
B. Limitation on Redemption. The Corporation may not redeem fewer than
all of the outstanding shares of Series A Preferred Stock unless all accumulated
and unpaid distributions have been paid on all shares of Series A Preferred
Stock for all quarterly distribution periods terminating on or prior to the date
of redemption, unless such redemption is pursuant to a purchase or exchange
offer made on the same terms to all holders of Series A Preferred Stock.
C. Procedures for Redemption.
1. Notice of redemption will be (i) faxed, and (ii) mailed by
the Corporation, by certified mail, postage prepaid, not less than 30 nor more
than 60 days' prior to the redemption date, addressed to the respective holders
of record of the shares of Series A Preferred Stock at their respective
addresses as they appear on the records of the Corporation. No failure to give
or defect in such notice shall affect the validity of the proceedings for the
redemption of any shares of Series A Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any information
required by law, each such notice shall state: (u) the redemption date, (v) the
Redemption Price, (w) the aggregate number of Series A Preferred Stock to be
redeemed and, if fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the number of shares of Series A Preferred Stock to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding shares of
Series A Preferred Stock that the total number of shares of Series A Preferred
Stock held by such holder represents) of the aggregate number of shares of
Series A Preferred Stock to be redeemed, (x) the place or places where such
shares of Series A Preferred Stock are to be surrendered for payment of the
Redemption Price, (y) that distributions on the shares of Series A Preferred
Stock to be redeemed will cease to accumulate on such redemption date and (z)
that payment of the Redemption Price will be made upon presentation and
surrender of such shares of Series A Preferred Stock.
2. If the Corporation gives a notice of redemption in respect
of shares of Series A Preferred Stock (which notice will be irrevocable) then,
by 12:00 noon, New York City time, on the redemption date, the Corporation will
deposit irrevocably in trust for the benefit of the shares of Series A Preferred
Stock being redeemed funds sufficient to pay the applicable Redemption Price and
will give irrevocable instructions and authority to pay such Redemption Price to
the holders of the shares of Series A Preferred Stock upon surrender of the
shares of Series A Preferred Stock by such holders at the place designated in
the notice of redemption. On and after the date of redemption, distributions
will cease to accumulate on the shares of Series A Preferred Stock or portions
thereof called for redemption, unless the Corporation defaults in the payment
thereof. If any date fixed for redemption of shares of Series A Preferred Stock
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
is improperly withheld or refused and not paid by the Corporation, distributions
on such shares of Series A Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(f) Voting Rights.
A. General. Holders of shares of Series A Preferred Stock will not have
any voting rights or right to consent to any matter requiring the consent or
approval of holders of the Corporation's common stock, except as set forth
below.
B. Certain Voting Rights. So long as any shares of Series A Preferred
Stock remain outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the shares of Series A Preferred
Stock outstanding at the time (1) authorize or create, or increase the
authorized or issued amount of, any class or series of capital stock ranking
prior to the Series A Preferred Stock with respect to payment of distributions
or rights upon liquidation, dissolution or winding-up, or reclassify any capital
stock of the Corporation into any such capital stock, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such capital stock, (2) authorize or create, or increase the
authorized or issued amount of any capital stock on a parity with the Series A
Preferred Stock or reclassify any capital stock of the Corporation into any such
capital stock or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such capital stock, if
such capital stock or right to purchase capital stock is issued to any affiliate
of the Corporation, other than any issuance to (i) Security Capital U.S. Realty,
Security Capital Holdings, S.A. or any of their affiliates or to (ii) any other
affiliate, provided that a majority of Independent Directors of the Company (as
defined in the Charter) has approved such issuance, or (3) either consolidate,
merge into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity, or amend, alter or repeal the
provisions of the Charter (including, without limitation, this Section), whether
by merger, consolidation or otherwise, in each case in a manner that would
materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the shares of Series A Preferred Stock or the
holders thereof; provided, however, that with respect to the occurrence of any
event set forth in (3) above, so long as the Corporation is the surviving entity
and the Series A Preferred Stock remain outstanding with the terms thereof
unchanged, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series A Preferred Stock; and provided further, that any increase
in the amount of capital stock or the creation or issuance of any other class or
series of capital stock, in each case ranking (i) junior to the Series A
Preferred Stock with respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, or (ii) on a parity to the
Series A Preferred Stock with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such capital stock is not issued to an affiliate of the Corporation, other than
any such issuances (i) to Security Capital U.S. Realty, Security Capital
Holdings, S.A. or any of their affiliates or (ii) to any other affiliate,
provided that a majority of the Independent Directors of the Company have
approved such creation or issuance, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
(g) Conversion. The Series A Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation.
(h) No Sinking Fund. No sinking fund shall be established for the retirement or
redemption of Series A Preferred Stock.
FOURTH: This Designating Amendment shall be effective at the time the
Tennessee Secretary of State accepts this Designating Amendment for filing.
FIFTH: The foregoing amendment was duly adopted by unanimous consent of
the Board of Directors without shareholder action, such shareholder action not
being required, on November 11, 1998.
IN WITNESS WHEREOF, STORAGE USA, INC. has caused these presents to be
signed in its name and on its behalf by its Executive Vice President and General
Counsel on this the 11th day of November, 1998.
STORAGE USA, INC.
By: /s/ John W. McConomy
Name: John W. McConomy
Title: Executive Vice President and
General Counsel