Exhibit 10.32
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated May __, 2007, (the "Agreement"),
between (i) Shurope Storage B.V.B.A., a company ("besloten vennootschap met
beperkte aansprakelijkheid") organized under the laws of Belgium (the "Seller"),
(ii) ________________, (the "Purchaser") and (iii) Public Storage, Inc., a
California corporation ("Public Storage").
RECITALS
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Shurgard Self-Storage SCA is a company ("societe en commandite par
actions") organized under the laws of Belgium, with registered office at Quai du
Commerce/Handelskaai 48, 1000 Brussels, Belgium, registered with the Crossroads
Bank for Enterprises under company number 0454.057.394 ("Shurgard Europe"), and
is an indirect subsidiary of Public Storage.
The registered capital of Shurgard Europe amounts to
(euro)37,539,428.96 and is represented by 56 general partner interests and
233,844 limited liability partner interests (the "LLP Interests"). Seller is the
holder of a portion of the LLP Interests. Shurgard Europe also has outstanding
178,306 class A profit certificates and 29,234 class B profit certificates,
which in certain circumstances may be converted into 178,306 and 17,093 limited
liability interests, respectively, which shall also be considered "LLP
Interests" for purposes of this Agreement.
Purchaser has agreed to purchase LLP Interests which are owned by the
Seller, and the Purchaser has agreed that the transfer of the LLP Interests
purchased hereunder shall be subject to certain restrictions as set forth
herein.
AGREEMENT
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In consideration of the mutual covenants and agreements contained
herein, the parties to this Agreement agree as follows:
1. Purchase and Sale of Shares.
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Pursuant to the terms of this Agreement, the Purchaser hereby purchases
from the Seller, and the Seller hereby sells to the Purchaser, an aggregate of
________ LLP Interests numbered from ________ to _______ (the "Shares") of
Shurgard Europe at a price of US $1,943 per Share ("Purchase Price") or the
equivalent value in Euros. The Purchase Price is payable by Purchaser on Closing
(as defined in Section 2.1 below) at Purchaser's option, by check or by wire
transfer to a bank account of the Seller, the details of which shall be
communicated by the Seller prior to Closing. The parties acknowledge and agree
that the purchase price has been determined based on the net asset value of
Shurgard Europe determined from property appraisals prepared by Cushman &
Wakefield as of March 31, 2007, which the parties believe is a reasonable
approach to establishing the current fair market value of the Shares.
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2. Condition Precedent and Closing
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2.1 CONDITION PRECEDENT. The consummation of the sale and
purchase of the Shares pursuant to this Agreement ("Closing") is
subject to the satisfaction of the following condition precedent: the
Seller shall have notified the intended sale of the Shares to the other
Partners and the Manager of Shurgard Europe, and the Manager shall have
approved the intended sale and purchase of the Shares, all in
accordance with article 10.2 of the articles of association of Shurgard
Europe.
2.2 CLOSING. The Closing shall take place at the offices of
the Seller on May 14, 2007 or the date of satisfaction of the condition
precedent set out in Section 2.1, whichever is the later (the "Closing
Date") or at such other place or on such other date as may be agreed
between the parties.
2.3 ACTIONS TAKEN ON THE CLOSING DATE. On the Closing Date,
the parties shall do all of the following: (i) the Purchaser shall pay
the Purchase Price in the manner set out in Section 1, (ii) the Seller
shall deliver an acknowledgement of receipt of the Purchase Price and
(iii) upon receipt of the Purchase Price, the Seller and the Purchaser,
or a duly authorized attorney-in-fact, shall record the transfer of the
Shares to the Purchaser in Shurgard Europe's share register, and shall
sign Shurgard Europe's share register to that effect.
2.4 POWER OF ATTORNEY. The Seller and the Purchaser hereby
irrevocably appoint each of John Reyes and John S. Baumann, acting
jointly or individually, with power to substitute, as their
attorney-in-fact to record this share transfer in Shurgard Europe's
share register and to take any other action and sign any other document
as may be necessary or desirable in order for such share transfer to be
enforceable against Shurgard Europe and third parties.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants that, upon sale and delivery of the Shares to the Purchaser, (i)
the Shares will be duly authorized, validly issued, fully paid and nonassessable
and (ii) the Shares are free and clear of all pledges, liens, security interests
or options, other than those provided for by law.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants the following:
4.1. RISKS OF INVESTMENT. The Purchaser recognizes that the
purchase of the Shares involves a high degree of risk including the
following:
(i) an investment in the Shares is highly speculative, and
only investors who can afford the loss of their entire investment
should consider purchasing the Shares;
(ii) the Purchaser may not be able to liquidate his or her
investment;
(iii) the Shares are not registered under the securities laws
in the United States and transferability of the Shares is restricted;
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(iv) the potential public offering of Shares may not occur
which would mean no public market for Shares would exist;
(iv) in the event of a disposition of the Shares, the
Purchaser could sustain the loss of his or her entire investment; and
(v) for U.S. investors, the investment is subject to
significant risks of changes in the relative value of the dollar as
compared to the foreign currencies in which Shurgard Europe's
operations are conducted and assets are valued.
4.2 RISKS AND OBLIGATIONS RELATED TO TAX LIABILITIES.
Purchaser further agrees and acknowledges that he or she may incur U.S.
federal, state or local income taxes (to the extent he or she is
subject to taxation by the U.S.) or Belgian income or withholding
taxes, as applicable, in connection with his or her purchase of the
Shares and the future operation of Shurgard Europe. Shurgard Europe and
any successors are expected to be treated initially as a partnership
for U.S. tax purposes. To the extent Purchaser is subject to U.S.
federal income tax, Purchaser will be subject to taxes on his or her
distributable share of the taxable income during any period in which
Shurgard Europe is taxed for U.S. tax purposes as a partnership whether
or not any distributions are made and whether or not Purchaser is then
able to transfer the Shares under the terms of this Agreement. Shurgard
Europe may be subject to tax in the various European jurisdictions in
which it operates and Purchaser may or may not be entitled to obtain
credit for U.S. tax purposes for all or some portion of any such taxes
paid by Shurgard Europe.
4.3. INVESTMENT EXPERIENCE. The Purchaser has sufficient prior
investment experience to assess the investment, tax and legal merits
and consequences of an investment in the Shares. To the extent the
Purchaser has deemed appropriate, the Purchaser has retained and relied
upon professional advice regarding the investment, tax and legal merits
and consequences of this Agreement and Purchaser's purchase of Shares
hereunder.
4.4. ABILITY TO BEAR RISK. The Purchaser has the capacity to
protect his or her own interests in connection with the transaction
contemplated hereby, and is able to bear the economic risk which he or
she hereby assumes.
4.5. INFORMATION. The Seller has made available to the
Purchaser all documents, including a draft prospectus filed with
Belgian Banking, Finance and Insurance Commission (the CBFA) on or
about April 30, 2007, related to a possible share offering by Shurgard
Europe or an affiliate, that the Purchaser has requested relating to
Shurgard Europe, the Shares and the Purchaser's purchase of the Shares.
The Purchaser acknowledges that, assuming the offering proceeds, the
draft prospectus will be changed before it is final and that such
changes may be material with respect to certain matters. The Purchaser
has had an opportunity to ask questions and receive answers concerning
Shurgard Europe and the terms and conditions of the offering and sale
of the Shares and has had full access to such other information
concerning Shurgard Europe and the Shares as the Purchaser has deemed
necessary or desirable for the Purchaser to make an informed and
knowledgeable investment decision to acquire the Shares. The Purchaser
recognizes that the Purchaser's purchase of the Shares pursuant to this
Agreement represents a speculative investment and involves certain
substantial risks, and the Purchaser has taken full cognizance of,
understands and is aware of, and has investigated, Shurgard Europe's
business, management and financial condition and all of the risk
factors related to the Purchaser's purchase of the Shares pursuant to
this Agreement.
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4.6. ACQUISITION FOR OWN ACCOUNT. The Purchaser is acquiring
the Shares for his or her own account for investment only, and not with
a view towards their distribution.
4.7. NO PUBLIC MARKET; RULE 144. The Purchaser acknowledges
and agrees that the Shares must be held indefinitely unless such Shares
are subsequently registered under the Securities Act of 1933, as
amended (the "Securities Act") or an exemption from such registration
is available. The Purchaser agrees not to re-offer, resell, pledge or
otherwise transfer the Shares (or securities of a successor or other
entity that are issued to the Purchaser in exchange for the Shares)
except (a) pursuant to a valid registration statement or (b) pursuant
to an exemption from registration under the Securities Act and
otherwise in compliance with applicable law. The Purchaser has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current
public information about Shurgard Europe, the resale occurring not less
than one year after a party has purchased and paid for the security to
be sold, the sale being through an unsolicited "broker's transaction"
or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the
number of shares being sold during any three-month period not exceeding
specified limitations.
4.8. DUE AUTHORIZATION AND ENFORCEABLE OBLIGATION. The
execution and delivery of, and the performance by the Purchaser of his
or her obligations under this Agreement and any related transaction
documents have been duly and validly authorized and, upon execution and
delivery thereof, this Agreement and any related transaction documents
will constitute the legal, valid, binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
4.9. ACCREDITED INVESTOR.
(a) Purchaser represents that he or she is an Accredited
Investor, as such term is defined as defined in Regulation
D of the Securities Act and as set forth below in Section
4.9 (b).
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(b) To qualify as an Accredited Investor for purposes of this
Agreement, Purchaser represents that he or she satisfies
at least one of the following criteria:
a. Purchaser is an executive officer of Shurgard Europe;
or
b. Purchaser has an individual net worth or joint net
worth with Purchaser's spouse, exceeding US $1,000,000
at the time of purchase; or
c. Purchaser had an individual income in excess of
$200,000 in each of the two most recent years or joint
income with Purchaser's spouse in excess of $300,000
in each of those years and has a reasonable
expectation of reaching the same income level in the
current year.
(c) Purchaser further represents that he or she is aware that
the sale of Shares to the Purchaser is being made in
reliance on an exemption from the registration
requirements of the Securities Act and the regulations
promulgated thereunder.
4.10. Pre-existing Relationship. Purchaser represents that he
or she has a pre-existing relationship with either Shurgard Europe or
Public Storage as an officer or as a consultant and former officer.
5. RESTRICTIONS ON TRANSFER.
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5.1. PUBLIC STORAGE RIGHT TO PURCHASE.
(a) Upon (i) termination of Purchaser's service with
Public Storage or Shurgard Europe or its affiliates for any
reason or upon any proposed transfer of the Shares by
Purchaser or (ii) the first anniversary of the date of this
Agreement and at any time thereafter, Public Storage shall
have the right to repurchase all of the Shares purchased
hereunder. Such purchase right shall be at Public Storage's
election, in its sole discretion, and shall be a right to
purchase all, but not a portion, of the Shares. Furthermore,
any repurchase of Shares by Public Storage pursuant to Section
5.1(a)(ii) shall only be made if Public Storage shall also
repurchase on the same terms all other LLP Interests sold to
other individuals on the same terms as the Shares sold to
Purchaser. If Public Storage exercises its right to repurchase
the Shares, Public Storage will notify Purchaser of its
intention to purchase such Shares, and will consummate the
purchase within 90 days of Purchaser's termination of service
pursuant to Section 5.1(a)(i) or within 30 days after notice
in connection with a repurchase under Section 5.1(a)(ii).
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(b) The purchase price for each Share payable under
this Section 5.1 shall be the lesser of (1) the net asset
value per share of Shurgard Europe (or a successor or other
entity for which securities were issued to the Purchaser in
exchange for the Shares) on the date of transfer (determined
by Shurgard Europe in a manner consistent with past practice)
or (2) the Purchase Price with a 10% compounded annual return.
(c) Public Storage's rights of repurchase under this
Section 5.1 shall terminate upon the date any part of the LLP
Interests (or securities of a successor or other entity that
are issued to the Purchaser in exchange for the Shares) are
publicly traded in an established securities market.
5.2. HOLDING PERIOD. Purchaser agrees not to sell, pledge or
otherwise transfer Shares (or securities of a successor or other entity
that are issued to the Purchaser in exchange for the Shares) to any
third party other than Public Storage or Seller (or such successor
entity) during the twelve-month period ending one year from the date of
this Agreement or such shorter period as Public Storage determines.
6. LEGENDS.
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6.1. LEGENDS ON CERTIFICATES. The Purchaser acknowledges that
each certificate representing the Shares (or securities of a successor
or other entity that are issued to the Purchaser in exchange for the
Shares) will contain legends substantially to the following effects:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE RE-OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN TRANSACTIONS UNDERTAKEN
WITHIN THE UNITED STATES EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN AN AGREEMENT
BETWEEN THE SELLER AND THE REGISTERED HOLDER, OR HIS OR HER
PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE
AT THE PRINCIPAL OFFICE OF SHURGARD EUROPE AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF SHURGARD
EUROPE BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY
THIS CERTIFICATE.
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(c) Any legend required to be placed thereon by applicable
securities laws of any state or other jurisdiction.
6.2. REMOVAL OF LEGENDS.
(a) Certificates evidencing Shares shall not be required to
contain the legend set forth above in clause 6.1 (a): (i)
following any sale of such Shares pursuant to an effective
registration statement covering the resale of such Shares
under the Securities Act, (ii) following any sale of such
Shares pursuant to Rule 144 or Regulation S under the
Securities Act, (iii) if such Shares are eligible for sale
under Rule 144(k), or (iv) if such legend is not, in the
opinion of counsel, required in the circumstances under
applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the
Staff of the SEC).
(b) Certificates evidencing Shares shall not be required to
contain the legend set forth above in clause 6.1 (c) at the
first time such legend is not, in the opinion of counsel,
required in the circumstances under applicable requirements of
such state or other jurisdiction.
7. CHANGE OF CONTROL, MERGER OR SALE OF ASSETS OR PUBLIC OFFERING OF
SHURGARD EUROPE. In the event of any change of control, merger or sale of all or
any significant portion of the LLP Interests to a third party not affiliated
with Seller or Public Storage (1) Seller and Public Storage shall have the right
to compel Purchaser to sell his or her Shares at the highest price paid for any
other LLP Interests in the transaction, and (2) Purchaser shall have the right
to require Public Storage or its designated affiliate to purchase Shares owned
by Purchaser at the highest price paid for any other LLP Interests in the
transaction. The foregoing rights in this Section 7 shall terminate on the first
day any part of the LLP Interests are publicly traded in an established
securities market. In the event of any direct or indirect initial public
offering of securities of a successor or other entity for which other
outstanding LLP Interests are exchanged ("Exchanged Securities"), the Shares
shall be exchanged for Exchanged Securities, on a basis consistent with the
exchange of the other outstanding LLP Interests. At the time of such an
exchange, Purchaser will be deemed to repeat his or her representations,
warranties, acknowledgments and agreements contained in this Agreement as if
they applied to a purchase of the Exchanged Securities and in particular,
Purchaser acknowledges that the Exchanged Shares will be subject to the
limitations on transfer set out in Section 4.7 and the legending requirements
set out in Section 6.1.
8. NOTICES. Any and all notices, elections or demands permitted or
required to be made under this Agreement must be in writing, signed by the party
giving such notice, election or demand, and must be delivered personally,
transmitted by electronic means (by e-mail or facsimile) with receipt confirmed
or sent by nationally reputed courier service that provides verification of
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delivery, to the other party, at the address set forth below, or at such other
address as may be supplied by written notice. The date of personal delivery or
the date of e-mail or receipt, as the case may be, is the date such notice is
effectively given, provided that the parties agree that wherever practicable,
and as a first option, any form of communication contemplated by this Section 9
shall be transmitted by electronic means.
If to the Seller: Name: Shurope Storage B.V.B.A.
Address: c/o Shurgard Storage Centers, LLC,
701 Western Avenue, Glendale, CA 91201, USA
Attention: John S. Baumann, Senior Vice President
and Chief Legal Officer
E-mail address: jbaumann@publicstorage.com
If to the Purchaser: Name:
Address:
E-mail address:
If to Public Storage: Name: Public Storage, Inc.
Address: 701 Western Avenue, Glendale, CA 91201, USA
Attention: John S. Baumann, Senior Vice President
and Chief Legal Officer
E-mail address: jbaumann@publicstorage.com
9. GOVERNING LAW. This Agreement and the rights and obligations of each
of the parties hereto shall be construed and enforced in accordance with and
governed by the laws of the State of California.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed as of the date first written above.
SHUROPE STORAGE B.V.B.A.
(SELLER)
By:
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PURCHASER
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Name:
PUBLIC STORAGE, INC.
By:
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