-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SWP/9bAn/KWeVSWDIBKSvRskLjxWjefWDAZtkGiqLbOFhpJ5fF6EVcMrLuwhcjnk GuB8DPAaL7+0jsE+QHK4xA== 0000919916-98-000027.txt : 19980330 0000919916-98-000027.hdr.sgml : 19980330 ACCESSION NUMBER: 0000919916-98-000027 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980327 SROS: AMEX GROUP MEMBERS: ACQUIPORT TWO CORP GROUP MEMBERS: ACQUIPORT TWO CORPORATION GROUP MEMBERS: NEW YORK STATE COMMON RETIREMENT FUND SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PS BUSINESS PARKS INC/CA CENTRAL INDEX KEY: 0000866368 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 954300881 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-41373 FILM NUMBER: 98575807 BUSINESS ADDRESS: STREET 1: 701 WESTERN AVE STREET 2: SUITE 200 CITY: GLENDALE STATE: CA ZIP: 91201-2397 BUSINESS PHONE: 8182448080 MAIL ADDRESS: STREET 1: 701 WESTERN AVE STREET 2: SUITE 200 CITY: GLENDALE STATE: CA ZIP: 91201 FORMER COMPANY: FORMER CONFORMED NAME: PUBLIC STORAGE PROPERTIES XI INC DATE OF NAME CHANGE: 19930328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ACQUIPORT TWO CORP CENTRAL INDEX KEY: 0001058544 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: HEITMAN CAPITAL MANAGEMENT CORP STREET 2: 180 NORTH LASALLE SUITE 3600 CITY: CHICAGO STATE: IL ZIP: 60093 SC 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 (Amendment No. __)* PS Business Parks, Inc. (formerly Public Storage Properties XI, Inc.) --------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value ------------------------------ (Title of Class of Securities) 69360J107 -------------- (CUSIP Number) Acquiport Two Corporation c/o Heitman Capital Management Corporation 180 North LaSalle Suite 3600 Chicago, Illinois 60601 312-855-5700 Attn: David B. Perisho --------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 17, 1998 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the following box. / / Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). -------------------------------------------------------- 1. Name of Reporting Person: Acquiport Two Corporation, 22-2909230 -------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group: (a) / / (b) / / -------------------------------------------------------- 3. SEC Use Only -------------------------------------------------------- 4. Source of Funds: OO -------------------------------------------------------- 5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e) or 2(f): / / -------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware -------------------------------------------------------- Number of 7. Sole Voting Power: 5,289,765 Shares ------------------------------------------ Beneficially 8. Shared Voting Power: 0 Owned By ------------------------------------------ Each 9. Sole Dispositive Power: 5,289,765 Reporting ------------------------------------------ Person 10. Shared Dispositive Power: 0 With -------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 5,289,765 -------------------------------------------------------- 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: / / -------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 37.7% -------------------------------------------------------- 14. Type of Reporting Person: CO -------------------------------------------------------- -------------------------------------------------------- 1. Name of Reporting Person: New York State Common Retirement Fund, 14-6103815 -------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group: (a) / / (b) / / -------------------------------------------------------- 3. SEC Use Only -------------------------------------------------------- 4. Source of Funds: Not Applicable -------------------------------------------------------- 5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e) or 2(f): / / -------------------------------------------------------- 6. Citizenship or Place of Organization: New York -------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares ------------------------------------------ Beneficially 8. Shared Voting Power: 5,289,765(1) Owned By ------------------------------------------ Each 9. Sole Dispositive Power: 0 Reporting ------------------------------------------ Person 10. Shared Dispositive Power: With 5,289,765(1) -------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 5,289,765 -------------------------------------------------------- 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: / / -------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 37.7% -------------------------------------------------------- 14. Type of Reporting Person: EP -------------------------------------------------------- (1) Solely in its capacity as the sole stockholder of Acquiport Two Corporation. Item 1. Security and Issuer. ------------------- This statement refers to the Common Stock, $0.01 par value ("Common Stock"), of PS Business Parks, Inc. (formerly Public Storage Properties XI, Inc.) (the "Issuer"). The principal executive offices of the Issuer are located at 701 Western Avenue, Glendale, California, 91201-2397. Item 2. Identity and Background. ----------------------- (a) This Schedule 13D is filed by Acquiport Two Corporation ("Acquiport"), a Delaware corporation and the New York State Common Retirement Fund ("Common Fund" and together with Acquiport the "Reporting Persons"). The Reporting Persons are making this single, joint filing because they may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Securities Act of 1934 ("Act"), although neither the fact of this filing nor anything contained herein shall be deemed to be an admission by the Reporting Persons that a group exists. (b)-(c) Acquiport is a Delaware corporation, the business of which is to acquire property, hold title to and collect income from such property and remit the entire amount of income from such property (less expenses) to the Sole Stockholder of the Corporation, which is an organization exempt from taxation pursuant to Section 501(c)(2) of the Internal Revenue Code of 1986, as amended. The principal place of business of Acquiport is c/o Heitman Capital Management Corporation, 180 North LaSalle St., Chicago, IL 60601. Common Fund is a public pension fund created pursuant to Article 9 of the New York Retirement and Social Security Law. Its business address is 633 Third Avenue, 31st floor, New York, NY 10017-6754. Jerome J. Claeys III is President and a Director of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. Howard J. Edelman is Vice President of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. David B. Perisho is Vice President and a Director of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. Thomas D. McCarthy is Vice President of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. Roger E. Smith is Treasurer and Chief Financial Officer of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. Patrick E. Brown is Secretary of Acquiport and is an attorney with Plunkett & Jaffe, P.C. His principal place of business is c/o Plunkett & Jaffe, P.C., 111 Washington Avenue, Albany, New York 12210 and he is a U.S. citizen. John S. Harris is Assistant Secretary of Acquiport and is an attorney with Plunkett & Jaffe, P.C. His principal place of business is c/o Plunkett & Jaffe, P.C., 111 Washington Avenue, Albany, New York 12210 and he is a U.S. citizen. Charles H. Wurtzebach is a Director of Acquiport and is employed as an investment adviser by Heitman Capital Management Corporation. His principal place of business is c/o Heitman Capital Management Corporation, 180 North LaSalle Street, Chicago, Illinois 60601-2886 and he is a U.S. citizen. (d) None of the entities or persons identified in this Item 2 has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) None of the entities or persons identified in this Item 2 has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) See (b)-(c) above. Item 3. Source and Amount of Funds or Other Consideration. ---------------------- Acquiport acquired 5,289,765 shares of the Common Stock (the "Shares") of the Issuer in exchange for shares of common stock of American Office Park Properties, Inc. ("AOPP") as a result of the merger of AOPP with and into Public Storage Properties XI, Inc., a California corporation (which subsequently changed its name to PS Business Parks, Inc.), on March 17, 1998. Item 4. Purpose of Transaction. ---------------------- Acquiport has acquired the Shares for investment purposes. Consistent with such purposes, the Reporting Persons have had, and may have in the future, discussions based on publicly available information with management of the Issuer concerning the Issuer's recent operating history as well as the Issuer's general business outlook and prospects. Acquiport does not currently plan to sell its Shares, or acquire additional Shares, or take any other action described in Item 4. However, depending on market conditions and other factors that each may deem material to its investment decision, each of the Reporting Persons may purchase additional Shares in the open market or in private transactions or may dispose of all or a portion of the Shares that such Reporting Person now owns or hereafter may acquire. Except as set forth in this Item 4, the Reporting Persons have no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Act. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a) Acquiport directly owns 5,289,765 Shares which constitute 37.7% of the outstanding 14,021,065 outstanding shares as reported to the Reporting Persons by the Issuer. Because of its position as the sole stockholder of Acquiport, the Common Fund may, pursuant to Section 13(d)(3) of the Act, be deemed to be the beneficial owner of the Shares owned directly by Acquiport. To the best of the knowledge of each of the Reporting Persons, other than as set forth above, none of the persons named in Item 2 hereof is the beneficial owner of any Shares. (b) Although the 5,289,765 Shares are owned of record by Acquiport, the Common Fund, as the sole shareholder of Acquiport Two Corporation, beneficially owns such 5,289,765 Shares. In its capacity as the sole stockholder of Acquiport, the Common Fund may be deemed to share power to vote or to direct the vote and to dispose or to direct the disposition of the Shares owned directly by Acquiport. (c) Except as set forth in Item 4 above, to the best of the knowledge of each of the Reporting Persons, none of the persons named in response to paragraph (a) of this Item 5 has effected any other transactions in Shares during the past sixty (60) days. (d) Each of the Reporting Persons affirms that no person other than such Reporting Persons has the right to receive or the power to direct the receipt of distributions with respect to, or the proceeds from the sale of, the Shares owned by such Reporting Person. (e) It is inapplicable for the purposes herein to state the date on which the Reporting Persons ceased to be the owners of more than five percent (5%) of the outstanding Shares. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to the Issuer. ---------------------------------------- Acquiport, certain other shareholders of the Issuer, and the Issuer are parties to an Agreement among Shareholders and Company, as amended (see Item 7, Exhibits 2 and 3) pursuant to which after the merger of American Office Park Properties, Inc. into the Issuer, the Board of Directors of the Issuer consists of seven members: two nominees of Public Storage, Inc., an affiliate of the Issuer ("PSI") and five independent directors mutually acceptable to PSI and Acquiport. Acquiport and PSI have agreed to vote their respective Shares to support such nominees to the Board. This voting agreement expires at the later of the following dates: (i) when Acquiport's interest in the Issuer or PSI's interest in the Issuer is less than 20% assuming conversion of all limited partnership interests in PS Business Parks, L.P. into shares of Common Stock of the Issuer, or (ii) December 24, 2001. In addition, pursuant to the terms of the Agreement Among Shareholders and Company, until December 31, 1998, the Issuer has agreed to make reasonable efforts to allow Acquiport to purchase shares in most underwritten offerings of Common Stock in order to maintain its proportionate holdings. Also, if the Issuer proposes to issue shares of Common Stock at less than $22.88 per share, Acquiport will have the right to purchase a number of shares on the same proposed terms sufficient for Acquiport to maintain its percentage interest in the Issuer. This right will terminate when the Issuer raises $150 million of Common Stock in one or more public offerings. In addition, pursuant to the terms of the Agreement Among Shareholders and Company, the Issuer is obligated to execute a registration rights agreement pursuant to which the Issuer is obligated on or about March 17, 1999 to file and maintain a "shelf" registration statement under the Securities Act for the shares of Common Stock acquired by Acquiport. Pursuant to the Second Amended and Restated Certificate of Incorporation of Acquiport Two Corporation ("Certificate"), neither the officers nor the directors of Acquiport has the power, without receiving the approval of the Common Fund, as sole stockholder of Acquiport, to enter into, agree to enter into, or approve any transaction agreement or contract on behalf of Acquiport with respect to the Shares, except pursuant to an Annual Business Plan, as that term is defined in the Certificate. The foregoing description of the Certificate is qualified in its entirety by reference to the text of such Certificate which is filed as Exhibit 4 and incorporated herein by reference. Except as disclosed herein, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships between the Reporting Persons and any person with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities of the Issuer, finder's fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, division of profits or loss or giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting or investment power over securities of the Issuer. Item 7. Materials to be Filed as Exhibits. --------------------------------- Exhibit 1 Joint Filing Agreement, filed herewith Exhibit 2 Agreement Among Shareholders and Company dated as of December 23, 1997 among Acquiport Two Corporation, American Office Park Properties, Inc., American Office Park Properties, L.P. and Public Storage, Inc. (incorporated by reference from Exhibit 10.10 to the Issuer's Registration Statement No. 333-45405). Exhibit 3 Amendment to Agreement Among Shareholders and Company dated as of January 21, 1998 among Acquiport Two Corporation, American Office Park Properties, Inc., American Office Park Properties, L.P. and Public Storage, Inc. (incorporated by reference from Exhibit 10.11 to the Issuer's Registration Statement No. 333-45405). Exhibit 4 Second Amended and Restated Certificate of Incorporation of Acquiport Two Corporation, filed herewith. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. This Schedule 13D is filed on behalf of Acquiport Two Corporation and the New York State Common Retirement Fund. Dated: March 27, 1998 Acquiport Two Corporation By: /s/ Howard Edelman ---------------------- Howard Edelman Vice President The Comptroller of the State of New York as Trustee of the New York State Common Retirement Fund By: /s/ John E. Hull ---------------------- John E. Hull Deputy Comptroller, Investments and Cash Management EX-99.A 2 EXHIBIT 1 --------- JOINT FILING AGREEMENT ---------------------- In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including amendments thereto) with respect to the common stock of PS Business Parks, Inc. and further agree that this agreement be included as an exhibit to such filing. Each party to this agreement expressly authorizes each other party to file on its behalf any and all amendments to such Statement. In evidence whereof, the undersigned have caused this Agreement to be executed on their behalf this 27th day of March, 1998, Acquiport Two Corporation By: /s/ Howard Edelman ---------------------- Howard Edelman Vice President The Comptroller of the State of New York as Trustee of the New York State Common Retirement Fund By: /s/ John E. Hull ---------------------- John E. Hull Deputy Comptroller, Investments and Cash Management EX-99.B 3 Exhibit 4 ---------- SECOND AMENDED AND RESTATED CERTIFICATION OF INCORPORATION OF ACQUIPORT TWO CORPORATION ---------------------------- FIRST: The name of the Corporation is ACQUIPORT TWO CORPORATION. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on June 22, 1988, and amendments thereto were filed on October 28, 1988 and July 11, 1989. A Restated Certificate of Incorporation was filed on October 16, 1992 and a change of agent was filed on June 27, 1995. This Second Amended and Restated Certificate of Incorporation restates, integrates and further amends the Certificate of Incorporation, as heretofore amended, and was duly adopted in accordance with the provisions of Sections 242 and 245 of the Delaware Corporation Law. SECOND: The registered office of the Corporation in the State of Delaware is to be located at 1209 Orange Street, Wilmington, New Castle County. Its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to acquire property, hold title to and collect income from such property and remit the entire amount of income from such property (less expenses) to the Sole Stockholder of the Corporation, which is an organization exempt from taxation pursuant to Section 501(c)(2) of the Internal Revenue Code of 1986, as amended. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is Five Hundred (500) designated as common stock and the par value of each share of common stock is One Dollar ($1.00), amounting in the aggregate to Five Hundred Dollars ($500.00). FIFTH: All corporate powers of the Corporation shall be exercised by or under the direction of the board of directors except as otherwise provided by law or as stated in this Article FIFTH. In limitation of the powers conferred by law, neither the board of directors nor the officers shall be authorized, nor have the power to do the following, without receiving the approval (in writing or at a meeting of the Sole Stockholder duly called and held) of the Sole Stockholder: (i) to create, cause to be created or approve the creation of any lien, pledge or security interest upon, or sell, assign, convey or otherwise transfer, or cause to be sold, assigned, conveyed or otherwise transferred, any real property or tangible personal property of the Corporation; (ii) to enter into, or agree to enter into, or approve any transaction, agreement or contract (including management or brokerage agreements) on behalf of the Corporation, except transactions, agreements or contracts entered into in connection with the operation of the property of the Corporation pursuant to an Annual Business Plan (as defined below); (iii) notwithstanding anything to the contrary contained herein, to enter into, or agree to enter into or approve, any leases (including, without limitation, any space leases) of any property owned or to be owned by the Corporation, except for leases consistent with the terms of the applicable Annual Business Plan and substantially in the form of a standard form of lease (approved in writing or at a meeting of the Sole Stockholder duly called and held); (iv) to join, institute or cause to be instituted, any legal action or claim, suit or proceeding, whatsoever, whether civil, criminal, administrative or investigative, except legal actions, claims, suits or proceedings in connection with (a) contesting real estate tax assessments, (b) evicting any tenant of any of the Corporation's property as a result of such tenant's bankruptcy, insolvency, liquidation or similar condition or (c) any action on a contract involving an amount not in excess of $50,000; (v) to create, establish, participate in, operate or approve, on behalf of the Corporation, any account (including, without limitation, any checking, savings, time deposit, or special account) at any bank, savings institution, credit union or like organization, (a) without first giving written notice (which notice must identify all signatories or restrictions or limitations thereon and must be updated, from time to time, when signatories or restrictions or limitations are changed) of the proposed establishment of such account, and (b) unless the account permits a person designated in writing from time to time by said holders (without restriction as to amount and without further authorization or signature of any other signatory) to make transfers via written instructions for wire transfer only to a bank account designated in writing from time to time by said holders; (vi) to amend, modify, adopt or repeal the by- laws or certificate of incorporation of the Corporation; (vii) notwithstanding anything to the contrary contained herein, and except as expressly set forth in an Annual Business Plan, to enter into, or agree to enter into or approve, any transaction, agreement or contract (including management and brokerage agreements and leases), whatsoever with, or to make any other payment whatsoever to, any officer or director of the Corporation or with any entity employing such officer or director or any affiliate thereof (including, without limitation, any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with such entity), or with any entity or natural person that has any substantial business, financial or personal relationship with any such officer, director, entity or affiliate (the approval by the Sole Stockholder being valid as to a transaction within the scope of this subclause only if such approval shall specifically state that it is being given to a transaction to which this subclause is applicable); (viii) to enter into, or agree to enter into or approve any agreement whereby the Corporation will act as guarantor, co- guarantor, insurer or surety; and (ix) to engage in or approve any activity not in the ordinary course of the business of the Corporation. The approval of the Sole Stockholder contemplated by this Article FIFTH need not be specific as to each transaction (except for transactions to which subclause (vii) shall apply) and, once given, may be revoked by written notice given to each of the directors of the Corporation at their last known business address. "Annual Business Plan" as used above shall mean an annual plan of operation of the property of the Corporation, prepared by or on behalf of the Board of Directors and approved (in writing or at a meeting of the Sole Stockholder duly called and held) by the Sole Stockholder, which Annual Business Plan shall contain (a) a budget of all costs, expenses and fees expected to be incurred by the Corporation during such year, including, but not limited to, marketing costs and expenses, administrative costs and expenses, legal fees, governmental fees, management and leasing fees, insurance premiums, utility costs and expenses, taxes, asset management fees and other operating costs and expenses, as well as tenant improvement costs, leasing commissions and other allowances and capital improvements, (b) projected revenue from the property of the Corporation, (c) restrictions which limit the directors' and officers' authority to approve or enter into leases without the approval (in writing or at a meeting of the Sole Stockholder duly called and held) of the Sole Stockholder and (d) such other information as the Sole Stockholder of the Corporation may request from time to time. SIXTH: A director of the Corporation shall not be personally liable to the Corporation or its Sole Stockholder for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its Sole Stockholder, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of this Article SIXTH by the Sole Stockholder of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. SEVENTH: Subject to Article SIXTH, no person shall be liable to the Corporation for any loss or damage suffered by it on account of any action taken or omitted to be taken by him as a director or officer of the Corporation in good faith, if such person (i) exercised or used the same degree of diligence, care and skill as an ordinarily prudent man would have exercised or used under the circumstances in the conduct of his own affairs, or (ii) took, or omitted to take, such action in reliance upon advice of counsel for the Corporation, or upon statements made or information furnished by officers or employees of the Corporation which he had reasonable grounds to believe to be true, or upon a financial statement of the Corporation prepared by an officer or employee of the Corporation in charge of its accounts or certified by a public accountant or firm of public accountants. EIGHTH: Every person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a director or officer of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent legally permissible under the General Corporation Law of the State of Delaware, as amended from time to time, against all expenses, liabilities and losses (including attorneys' fees, judgments, fines and amounts paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right which may be enforced in any manner desired by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any by-laws, agreement, vote of the Sole Stockholder, provision of law or otherwise, as well as their rights under this Article. By-laws may be adopted from time to time with respect to indemnification to provide at all times the fullest indemnification permitted by the General Corporation Law of the State of Delaware, as amended from time to time, and may cause the Corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Corporation would have the power to indemnify such person against such liability. NINTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its Sole Stockholder or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware order a meeting of the creditors or class of creditors, and/or of the Sole stockholder of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the Sole Stockholder of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class or creditors, and/or on the Sole Stockholder of this Corporation, as the case may be, and also on this Corporation. TENTH: Elections of directors need not be by written ballot unless the by-laws of the Corporation shall so provide. ELEVENTH: Any director or the entire board of directors may be removed, with or without cause, at any time by the Sole Stockholder, and the vacancy in the board of directors caused by such removal may be filled by the Sole Stockholder at the time of such removal. TWELFTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statue, and all rights conferred upon the Sole Stockholder, directors and other persons herein are granted subject to this reservation. THIRTEENTH: The Corporation shall have one class of stock only, and there shall not be permitted to be more than one (1) holder of the Corporation's one class of stock and any purported transfer of stock that would result in more than one (1) stockholder shall be null and void and without effect. FOURTEENTH: Upon the consent of the Sole Stockholder of the Corporation, any investment advisor of the Corporation shall be dismissed with or without cause. The Corporation shall not enter into any agreement with any investment advisor that is not terminable upon at least 30 days notice by the Corporation. IN WITNESS WHEREOF, the undersigned, being the President of the Corporation, for the purpose of amending and restating the Certificate of Incorporation of the Corporation pursuant to the General Corporation Law of the State of Delaware, does make this certificate this 22 day of December, 1997. /s/ Jerome J. Clacys, III ---------------------------- Name: Jerome J. Clacys, III Title: President -----END PRIVACY-ENHANCED MESSAGE-----