RESTATED
ARTICLES OF INCORPORATION
OF
AMERCO
The undersigned President and Secretary of AMERCO, in
accordance with Section 78.403 of the General Corporation Law of
Nevada, restate the Articles of Incorporation and to that end set
forth that:
1. The name of the Corporation is AMERCO.
2. The name and address of the resident agent is The
Corporation Trust Company of Nevada, One First Street, Reno,
Nevada 89501.
3. The nature of the business and the objects and purposes to
be transacted, promoted, or carried on by the Corporation are to
engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Nevada
including but not in any way limited to acting as holding
company, and acquiring by purchase, merger, or otherwise, wholly
or partially owned subsidiary corporations.
4. The Corporation shall have all the general and specific
powers authorized for corporations in the General Corporation Law
of Nevada as now or hereafter in effect.
5. The total number of shares of common stock which this
corporation is authorized to issue is (i) One Hundred and Fifty
Million (150,000,000) shares of common stock with a par value of
Twenty-five Cents ($0.25) per share ("Common Stock"), and (ii)
One Hundred and Fifty Million (150,000,000) shares of common
stock ("Serial Common Stock"), with the Board of Directors having
authority to issue shares of Serial Common Stock in one or more
series (the number of shares of each series being determined by
the Board of Directors), with or without par value, and with such
voting powers, designations, preferences, limitations,
restrictions, and relative rights as shall be stated or expressed
in the resolution regarding such Serial Common Stock adopted by
the Board of Directors pursuant to the authority expressly vested
in it by this provision of the Articles of Incorporation, or any
amendment thereto. For purposes of these Articles of
Incorporation, the term "common stock" includes Common Stock and
Serial Common Stock. The voting powers, designations,
preferences, limitations, restrictions, and relative rights of
the Series A Common Stock are described on Exhibit A attached
---------
hereto. The voting powers, designations, preferences,
limitations, restrictions, and relative rights of the Series B
Common Stock are described on Exhibit B attached hereto.
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In addition to the common stock authorized to be issued by
the foregoing paragraph, this corporation is authorized to issue
Fifty Million (50,000,000) shares of Preferred Stock with the
Board of Directors having authority to issue such shares in one
or more series (the number of shares of each series being
determined by the Board of Directors), with or without par value,
and with such voting powers, designations, preferences
limitations, restrictions, and relative right as shall be stated
or expressed in the resolution regarding such preferred stock
adopted by the Board of Directors pursuant to the authority
expressly vested in it by this provision of the Articles of
Incorporation, or any amendment thereto. The voting powers,
designations, preferences, limitations, restrictions, and
relative rights of the Series A Preferred Stock are described on
Exhibit C attached hereto. The voting powers, designations,
- ---------
preferences, limitations, restrictions, and relative rights of
the Series B Preferred Stock are described on Exhibit D attached
---------
hereto.
6. For the management of the business, and for the conduct of
the affairs of the Corporation, and for the further definition,
limitation, and regulation of the powers of the Corporation and
its directors and stockholders, it is further provided:
A. BOARD OF DIRECTORS. The Board of Directors shall consist of
not less than 4 nor more than 8 directors, the exact number of
directors to be determined from time to time solely by a
resolution adopted by an affirmative vote of a majority of the
entire Board of Directors. The directors shall be divided into
four classes, designated Class I, Class II, Class III and Class
IV. Subject to applicable law, each class shall consist, as
nearly as may be possible, of one-fourth of the total number of
directors constituting the entire Board of Directors. At the
1990 Annual Meeting of Stockholders, Class I directors shall be
elected for a one-year term, Class II directors for a two-year
term, Class III directors for a three-year term, and Class IV
directors for a four-year term. At each succeeding annual
meeting of stockholders, commencing in 1991, successors to the
class of directors whose term expires at the annual meeting shall
be elected or reelected for a four-year term.
If the number of directors is changed, any increase or
decrease shall be apportioned among the classes of directors
so as to maintain the number of directors in each class as
nearly equal as possible, but in no case will a decrease in
the number of directors shorten the term of any incumbent
director. When the number of directors is increased by the
Board of Directors and any newly created directorships are
filled by the Board of Directors, there shall be no
classification of the additional directors until the next
annual meeting of stockholders.
A director shall hold office until the meeting for the
year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement,
disqualification or removal from office.
Directors need not be stockholders. The names and
addresses of the current members of the board of Directors
are:
NAME ADDRESS
---- -------
Edward J. Shoen 2727 N. Central Ave.
Phoenix, AZ 85004
Mark V. Shoen 2727 N. Central Ave.
Phoenix, AZ 85004
James P. Shoen 2727 N. Central Ave.
Phoenix, AZ 85004
Richard J. Herrera 2727 N. Central Ave.
Phoenix, AZ 85004
John M. Dodds 2727 N. Central Ave.
Phoenix, AZ 85004
Charles J. Bayer 2727 N. Central Ave.
Phoenix, AZ 85004
W.E. Carty 2727 N. Central Ave.
Phoenix, AZ 85004
Aubrey K. Johnson 2727 N. Central Ave.
Phoenix, AZ 85004
B. POWERS OF BOARD. In furtherance and not in limitation of
the powers conferred by the laws of the State of Nevada, the
Board of Directors is expressly authorized and empowered:
(i) To make, alter, amend, and repeal the By-Laws, subject to
the power of the Stockholders to amend the By-laws, which power
may be exercised only by the affirmative vote of two-thirds of
all of the outstanding shares of common stock of the Corporation
entitled to vote, which vote must be by ballot at a duly
constituted meeting of the Stockholders, the notice of which
meeting must include the proposed amendment. This Article 6.B(i)
may be amended only by the affirmative vote of two-thirds of all
of the outstanding shares of common stock of the Corporation
entitled to vote, which vote must be by ballot at a duly
constituted meeting of the stockholders, the notice of which
meeting must include the proposed amendment.
(ii) Subject to the applicable provisions of the By-Laws then in
effect, to determine, from time to time, whether and to what
extent, and at what times and places, and under what conditions
and regulations, the accounts and books of the Corporation, or
any of them, shall be open to stockholder inspection. No
stockholder shall have any right to inspect any of the accounts,
books or documents of the Corporation, except as permitted by
law, unless and until authorized to do so by resolution of the
Board of Directors or of the Stockholders of the Corporation;
(iii) To authorize and issue, without stockholder consent,
obligations of the Corporation, secured and unsecured, under such
terms and conditions as the Board, in its sole discretion, may
determine, and to pledge or mortgage, as security therefor, any
real or personal property of the Corporation, including after-
acquired property;
(iv) To determine whether any and, if so, what part, of the
earned surplus of the Corporation shall be paid in dividends to
the stockholders, and to direct and determine other use and
disposition of any such earned surplus;
(v) To fix, from time to time, the amount of the profits of the
Corporation to be reserved as working capital or for any other
lawful purpose;
(vi) To establish bonus, profit-sharing, stock option, or other
types of incentive compensation plans for the employees,
including officers and directors, of the Corporation, and to fix
the amount of profits to be shared or distributed, and to
determine the persons to participate in any such plans and the
amount of their respective participations;
(vii) To designate, by resolution or resolutions passed by a
majority of the whole Board, one or more committees, each
consisting or two or more directors, which, to the extend
permitted by law and authorized by the resolution or the By-Laws,
shall have and may exercise the powers of the Board;
(viii) To provide for the reasonable compensation of its own
members by By-Laws, and to fix the terms and conditions upon
which such compensation will be paid;
(ix) In addition to the powers and authority hereinbefore, or by
statute, expressly conferred upon it, the Board of Directors may
exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the laws of the State of Nevada, of these
Articles of Incorporation, and of the By-Laws of the Corporation.
C. A directors or officer of the corporation shall not be
personally liable to this corporation or its stockholders for
damages for beach of fiduciary duty as a director or officer, but
this article shall not eliminate or limit the liability of a
director or officer for (i) acts of omissions which involve
intentional misconduct, fraud or a knowing violation of law or
(ii) the unlawful payment of dividends. Any repeal or
modification of this Article by the stockholders of the
Corporation shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director or
officer of the corporation for acts or omissions prior to such
repeal or modification.
7. [Intentionally Omitted as provided for in N.R.S. 78.403(3)].
8. Except as otherwise provided by the Board of Directors, no
holder of any shares of the stock of the Corporation shall have
any preemptive right to purchase, subscribe for, or otherwise
acquire any shares of stock of the Corporation of any class now
or hereafter authorized, or any securities exchangeable for or
convertible into such shares, or any warrants or other
instruments evidencing rights or options to subscribe for,
purchase or otherwise acquire such shares.
9. No contract or other transaction between this Corporation
and any other Corporation shall be void or voidable because of
the fact that any of the directors of this Corporation are
interested in, or are directors of, such other Corporation,
provided that the fact that he or such other Corporation is so
interested shall be disclosed or shall have been known to the
Board of Directors of this Corporation; and any director of the
Corporation who is also a director or officer of such other
Corporation, or is so interested, may be counted in determining
the existence of a quorum at any meeting of the Board of
Directors of the Corporation which shall authorize such contract
or transaction, and may vote thereat to authorize any such
contract or transaction, with like force and effect as if he were
not such director or officer of such other corporation or not so
interested.
10. The duration of this Corporation shall be perpetual.
11. The affirmative vote of the holders of two-thirds (2/3) of
the outstanding shares of common stock of this corporation
entitled to vote shall be required to approve, adopt or
authorize:
(A) Any agreement for the merger, consolidation, amalgamation or
combination of this corporation with or into any other
corporation which is an Interested Stockholder (as hereafter
defined);
(B) Any sale, lease, exchange or other disposition to or with
this corporation of any assets of any Interested Stockholder;
(C) Any sale, lease, exchange or other disposition by this
corporation of all or substantially all of the assets of this
corporation to or with an Interested Stockholder;
(D) Any plan or proposal for liquidation or dissolution of this
corporation if any Shareholder of this corporation is an
Interested Stockholder; or
(E) Any reclassification of securities (including any reverse
stock split) or recapitalization of this corporation which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
stock or convertible securities of this corporation, directly or
indirectly owned by an Interested Stockholder.
As used herein, Interested Stockholder shall mean any
person, firm, corporation or other entity which, as of the record
date for the determination of Shareholders entitled to notice of
and to vote on any of the above transactions, is the beneficial
owner, directly or indirectly, of more than five percent (5%) of
any class of voting stock of this corporation. For the purposes
hereof, any person, firms, corporation or other entity shall be
deemed to be the beneficial owner of any shares of voting stock
of this corporation which (i) it has the right to acquire
pursuant to any agreement or upon exercise of conversion rights,
warrants or options, or otherwise, or (ii) are owned, directly or
indirectly (including shares deemed owned through the application
of clause (i) above), by any other person, firm, corporation or
other entity with which it has any agreement, arrangement or
understanding with respect to the acquisition, holding, voting or
disposition of stock of this corporation, or which is its
"affiliate" or "associate" as those terms are defined in the
Rules and Regulations under the Securities Exchange Act of 1934,
as amended.
The Board of Directors of this corporation shall have the
power and duty, by resolution adopted by the affirmative vote of
a majority of the whole Board of Directors, to determine (and
such determination shall be conclusive) for the purposes of this
Article 11, on the basis of information known to it, whether (i)
any person, firm, corporation or other entity is the beneficial
owner, directly or indirectly, of more than five percent (5%) of
any class of voting stock of this corporation, (ii) any proposed
sale, lease, exchange or other disposition involves all or
substantially all of the assets of this corporation, or (iii) any
person, firm, corporation or other entity has any agreement,
arrangement or understanding with respect to the acquisition,
holding, voting or disposition of stock of this corporation with
any other person, firm, corporation or other entity.
Notwithstanding any other provision of these Articles of
Incorporation, the affirmative vote of the holders of two-thirds
(2/3) of the outstanding shares of common stock of this
corporation entitled to vote shall be required to amend, alter,
change or repeal, or to adopt any provision inconsistent with,
this Article 11.
The respective two-thirds voting requirements specified
above for any of the transactions referred to in any one or more
of paragraphs A through E above, or to amend, alter, change or
repeal, or to adopt any provision inconsistent with, this Article
11, shall not be applicable to a proposed action which has been
approved or recommended by majority of the Disinterested
Directors. As used herein, a "Disinterested Director" means (i)
any Director of the corporation who was a Director as of July 24,
1988, or (ii) was thereafter elected by the Shareholders or
appointed by the Board of Directors of this corporation and was
not at the time of such election or appointment associated with
or an affiliate of an Interested Stockholder directly or
indirectly involved in the transaction or proposal before the
Board of Directors, or (iii) a person designated, before his
election or appointment as a Director, as a Disinterested
Director by a majority of Disinterested Directors then on the
Board.
12. Stockholder action by written consent is prohibited. This
Article 12 may be amended only by the affirmative vote of two-
thirds of all of the outstanding shares of common stock of the
Corporation entitled to vote, which vote must be by ballot at a
duly constituted meeting of the Stockholders, the notice of which
meeting must include the proposed amendment.
In Witness Whereof, we have executed the foregoing Restated
Articles of Incorporation of AMERCO this 23rd day of January,
1997.
/s/ Edward J. Shoen
-------------------------------------
Edward J. Shoen, President
/s/ Gary V. Klinefelter
-------------------------------------
Gary V. Klinefelter, Secretary
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this
23rd day of January, 1997, by Edward J. Shoen, President of
AMERCO, a Nevada corporation, on behalf of the corporation.
/s/ Nancy Jo Beiley
-------------------------------------
Notary Public
My commission expires:
5-22-99
- -----------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this
23rd day of January, 1997, by Gary V. Klinefelter, Secretary of
AMERCO, a Nevada corporation, on behalf of the corporation.
/s/ Nancy Jo Beiley
-------------------------------------
Notary Public
My commission expires:
5-22-99
- -----------------------------
EXHIBIT A
AMERCO
SERIES A COMMON STOCK
(a) DESIGNATION. A series of Serial Common Stock (as defined in
------------
the Articles of Incorporation) is hereby designated "Series A
Common Stock." The number of shares constituting the Series A
Common Stock is 10,000,000. Shares of the Series A Common Stock
shall have a par value of $0.25.
(b) DIVIDENDS AND DISTRIBUTIONS. Shares of the Series A Common
----------------------------
Stock shall be entitled to receive such dividends and
distributions as may be declared by the Board of Directors from
time to time and shall be payable, when and as declared by the
Board of Directors.
(c) CONVERSION. The holders of shares of the Series A Common
-----------
Stock shall not have any rights to convert such shares into or
exchange such shares for shares of any other class or classes or
of any other series of any class or classes of stock of the
Corporation.
(d) VOTING. The shares of the Series A Common Stock shall be
-------
entitled to one vote per share.
(e) LIQUIDATION RIGHTS. Upon the dissolution, liquidation, or
-------------------
winding up of the affairs of the Corporation, whether voluntary
or involuntary, the Series A Common Stock shall be entitled to
distribution of the assets of the Company on a pari passu basis
with the Company's common stock, $0.25 par value.
EXHIBIT B
AMERCO
SERIES B COMMON STOCK
(a) DESIGNATION. A series of Serial Common Stock (as defined in
------------
the Articles of Incorporation) is hereby designated "Series B
Common Stock." The number of shares constituting the Series B
Common Stock is 10,000,000. Shares of the Series B Common Stock
shall have a par value of $0.25.
(b) DIVIDENDS AND DISTRIBUTIONS. Shares of the Series B Common
----------------------------
Stock shall be entitled to receive such dividends and
distributions as may be declared by the Board of Directors from
time to time on a pari passu basis with the Corporation's Common
Stock and Series A Common Stock and shall be payable, when and as
declared by the Board of Directors.
(c) CONVERSION. The holders of shares of the Series B Common
-----------
Stock shall not have any rights to convert such shares into or
exchange such shares for shares of any other class or classes or
of any other series of any class or classes of stock of the
Corporation.
(d) VOTING. The shares of the Series B Common Stock shall be
-------
entitled to one-tenth (1/10) of one vote per share.
(e) Liquidation Rights. Upon the dissolution, liquidation, or
--------------------
winding up of the affairs of the Corporation, whether voluntary
or involuntary, the Series B Common Stock shall be entitled to
distribution of the assets of the Corporation on a pari passu
basis with the Corporation's Common Stock and Series A Common
Stock.
EXHIBIT C
AMERCO
SERIES A PREFERRED STOCK
(a) Designation. A series of preferred stock is hereby
------------
designated "Series A 8 1/2% Preferred Stock." The number of shares
constituting the Series A Preferred Stock is 6,100,000. Shares
of the Series A Preferred Stock shall have a liquidation
preference of $25.00 per share and shall have no par value.
(b) Dividend Rate.
--------------
(i) Shares of the Series A Preferred Stock shall be
entitled to receive dividends at a fixed annual rate of
$2.125 per share. Such dividends shall be cumulative from
the date of original issue of such shares and shall be
payable, when and as declared by the Board of Directors,
quarterly for each of the quarters ending February, May,
August, and November of each year, payable in arrears on the
first business day that is not a legal holiday of each
succeeding March, June, September, and December, commencing
December 1, 1993. Each such dividend shall be paid to the
holders of record of shares of the Series A Preferred Stock
as they appear on the stock records of the Corporation on
the applicable record date, not exceeding 15 days preceding
the payment date thereof, as shall be fixed by the Board of
Directors. Dividends on account of arrears for any past
dividend periods may be declared and paid at any time,
without reference to any regular dividend payment date, to
holders of record on such date as may be fixed by the Board
of Directors, which shall not exceed 15 days preceding such
dividend payment date thereof.
(ii) No dividends shall be declared or paid or set
apart for payment on any shares of any class or classes of
stock of the Corporation or any series thereof ranking, as
to dividends, on a parity with or junior to the Series A
Preferred Stock for any period unless full cumulative
dividends have been or contemporaneously are declared and
paid, or declared and a sum sufficient for the payment
thereof set apart for such payment, on the Series A
Preferred Stock for all dividend payment periods terminating
on or prior to the date of payment of such dividend. When
dividends are not paid in full, as aforesaid, upon the
shares of the Series A Preferred Stock and any others shares
of any class or classes of stock or series thereof ranking
on a parity as to dividends with the Series A Preferred
Stock, all dividends declared upon shares of the Series A
Preferred Stock and any other shares of such class or
classes of series thereof ranking on a parity as to
dividends with the Series A Preferred Stock shall be
declared pro rata so that the amount of dividends declared
per share of the Series A Preferred Stock and such other
shares shall in all cases bear to each other the same ratio
that accrued dividends per share on the shares of the Series
A Preferred Stock and such other shares bear to each other.
Holders of shares of the Series A Preferred Stock shall not
be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends,
as herein provided, on the Series A Preferred Stock. No
interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on
the Series A Preferred Stock that may be in arrears.
(iii) So long as any shares of the Series A
Preferred Stock are outstanding, no dividend (other than a
dividend in common stock or in any other shares ranking
junior to the Series A Preferred Stock as to dividends and
upon Liquidation (as defined in subsection (f)(i) and other
than as provided in paragraph (ii) of this subsection (b))
shall be declared or paid or set aside for payment or other
distribution declared or made upon the shares of any class
or classes of stock of the Corporation or any series thereof
ranking junior to or on a parity with the Series A Preferred
Stock as to dividends or upon Liquidation nor shall any of
the shares of any class or classes of stock of the
Corporation or any series thereof ranking junior to or on a
parity with the Series A Preferred Stock as to dividends or
upon Liquidation be redeemed, purchased, or otherwise
acquired or any consideration paid (or any moneys be paid to
or made available for a sinking fund for the redemption of
any such shares) by the Corporation, or any subsidiary
thereof (except by conversion into or exchange for shares
of the Corporation ranking junior to the Series A Preferred
Stock as to dividends and upon liquidation), unless, in each
case, the full cumulative dividends on all outstanding
shares of the Series A Preferred Stock shall have been or
contemporaneously are declared and paid, or declared and a
sum sufficient for payment thereof is set apart for payment,
for all past dividend payment periods.
(iv) Dividends payable on the Series A Preferred Stock
for any period less than a full quarterly dividend period,
and for the dividend period beginning on the date of
issuance of the shares of the Series A Preferred Stock,
shall be computed on the basis of a 360-day year consisting
of 12 30-day months. The amount of dividends payable on
shares of the Series A Preferred Stock for each full
quarterly dividend period shall be computed by dividing by 4
the annual rate per share set forth above in subsection (b)(i).
(c) Redemption.
-----------
(i) The shares of the Series A Preferred Stock shall
not be redeemable prior to December 1, 2000. On and after
December 1, 2000, the Corporation, at its option, may redeem
shares of the Series A Preferred Stock, as a whole or in
part, for cash, at any time or from time to time, at a
redemption price of $25.00 per share plus, in each case,
accrued and unpaid dividends thereon to the date fixed for
redemption.
(ii) In the event that fewer than all the outstanding
shares of the Series A Preferred Stock are to be redeemed,
the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall
be determined by lot or pro rata as may be determined by the
Board of Directors or by any other method as may be
determined by the Board of Directors in its sole discretion
to be equitable.
(iii) In the event the corporation shall redeem
shares of the Series A Preferred Stock, notice of such
redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior
to the redemption date, to each holder of record of the shares
to be redeemed, at such holder's address as the same
appears on the stock records of the Corporation, or by
publishing notice thereof in The Wall Street Journal or The
----------------------- ---
New York Times, or, if neither such newspaper is then being
--------------
published, any other daily newspaper of national circulation
(each, an "Authorized Newspaper"). If the Corporation
elects to provide such notice by publication, it shall also
promptly mail notice of such redemption to each holder of
the shares of the Series A Preferred Stock to be redeemed.
Each such mailed or published notice shall state: (v) the
redemption date; (w) the number of shares of the Series A
Preferred Stock to be redeemed and, if fewer than all the
shares held by such holder are to be redeemed, the number
of such shares to be redeemed from such holder; (x)
the redemption price; (y) the place or places where
certificates for such shares are to be surrendered by payment
of the redemption price; and (z) that dividends on the shares
to be redeemed will cease to accrue on such redemption date.
No defect in the notice of redemption or in the mailing thereof
shall affect the validity of the redemption proceedings, and
the failure to give notice to any holder of shares of the
Series A Preferred Stock to be so redeemed shall not affect the
validity of the notice given to the other holders of shares
of the Series A Preferred Stock to be so redeemed.
(iv) Notice having been mailed as aforesaid, then,
notwithstanding that the certificates evidencing the shares
of the Series A Preferred Stock shall not have been
surrendered, from and after the redemption date (unless
default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the
shares of the Series A Preferred Stock so called for
redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders (including dividend and
voting rights) of the Corporation (except the right to
receive from the Corporation the redemption price) shall
cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed
or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price
aforesaid. In case fewer than all the shares represented by
any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without cost to
the holder thereof.
(v) Any shares of the Series A Preferred Stock that
shall at any time have been redeemed shall, after such
redemption, in the discretion of the Board of Directors of
the Corporation, be (x) held in treasury or (y) resume the
status of authorized but unissued shares of preferred stock,
without designation as to series, until such shares are once
more designated as part of a particular series by the Board
of Directors.
(vi) Notwithstanding the foregoing provisions of this
subsection (c), if any dividends on the Series A Preferred
Stock are in arrears, no shares of the Series A Preferred
Stock shall be redeemed unless all outstanding shares of the
Series A Preferred Stock are simultaneously redeemed, and
the Corporation shall not, and shall not permit any
subsidiary thereof to, purchase or otherwise acquire any
shares of the Series A Preferred Stock; provided, however,
-------- -------
that the foregoing shall not prevent the purchase or
acquisition of shares of the Series A Preferred Stock
pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of the Series A
Preferred Stock.
(d) Conversion. The holders of shares of the Series A
-----------
Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class
or classes or of any other series of any class or classes of
stock of the Corporation.
(e) Voting. The shares of the Series A Preferred Stock
-------
shall not have any voting powers either general or special,
except as required by law and except that:
(i) So long as any of the shares of the Series A
Preferred Stock are outstanding, the consent of the holders
of at least two-thirds of all the shares of the Series A
Preferred Stock at the time outstanding, given in person or
by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of shares of the Series A
Preferred Stock shall vote together as a separate class,
shall be necessary for authorizing, affecting or validating
the amendment, alteration, or repeal of any of the
provisions of the Articles of Incorporation of the
Corporation or of any certificate amendatory thereof or
supplemental thereto (including any certificate of amendment
or any similar document relating to any series of preferred
stock) that would adversely affect the powers, preferences,
or special rights of the Series A Preferred Stock, including
the creation or authorization of any class of stock that
ranks senior to the Series A Preferred Stock with respect to
dividends or upon Liquidation. Any amendment or any
resolution or action of the Board of Directors that would
create or issue any series of preferred stock out of the
authorized shares of preferred stock, or that would
authorize, create, or issue any shares or class of stock
(whether or not already authorized), ranking junior to or on
a parity with the Series A Preferred Stock with respect to
the payment of dividends and distribution and distributions
upon any Liquidation, shall not be considered to affect
adversely the powers, preferences, or special rights of the
outstanding shares of the Series A Preferred Stock;
(ii) In the event that the Corporation shall have
failed to declare and pay or set apart for payment in full
the dividends accumulated on the outstanding shares of the
Series A Preferred Stock for any six quarterly dividend
payment periods, whether or not consecutive, and all such
preferred dividends remain unpaid (a "Preferred Dividend
Default"), the holders of outstanding shares of the Series A
Preferred Stock, voting together as a class with the holders
of all other series of preferred stock then entitled to vote
on the election of such directors, shall be entitled to
elect two directors to the Board of Directors of the
Corporation until the full dividends accumulated on all
outstanding shares of the Series A Preferred Stock have been
declared and paid in full. Upon the occurrence of a
Preferred Dividend Default, the Board of Directors shall
within 10 business days (any day other than a day that is a
Saturday, Sunday, or legal holiday on which banks are
authorized to close in New York, New York) of such default
call a special meeting of the holders of shares of the
Series A Preferred Stock and all other holders of a series
of preferred stock who are then entitled to participate in
the election of such two directors for the purpose of
electing the two directors provided by the foregoing
provisions; provided that, in lieu of holding such meeting,
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the holders of record of a majority of the outstanding
shares of the Series A Preferred Stock and all other series
of preferred stock who are then entitled to participate in
the election of such two directors may, by action taken by
written consents permitted by law and the Articles of
Incorporation and the Bylaws of the Corporation, elect such
two directors. If and when all accumulated dividends on the
shares of the Series A Preferred Stock have been declared
and paid or set aside for payment in full, the holders of
shares of the Series A Preferred Stock shall be divested of
the special voting rights provided by this paragraph,
subject to revesting in the event of each and every
subsequent Preferred Dividend Default. Upon termination of
such special voting rights attributable to all holders of
shares of the Series A Preferred Stock and any other series
of preferred stock, each director elected by the holders of
shares of the Series A Preferred Stock and the holders of
any other series of preferred stock (hereinafter referred to
as a "Preferred Stock Director") pursuant to such special
voting rights shall, without further action, be deemed to
have resigned, subject always to the election of directors
pursuant to the foregoing provisions in case of a future
Preferred Dividend Default. Any Preferred Stock Director
may be removed at any time with or without cause by, and
shall not be removed otherwise than by, the vote of the
holders of record of two-thirds of the outstanding shares of
the Series A Preferred Stock and all other series of
preferred stock who were entitled to participate in such
Preferred Stock Director's election, voting as a separate
class, at a meeting called for such purpose or by written
consent as, and to the extent, permitted by law and the
Articles of Incorporation and the Bylaws of the Corporation.
So long as a Preferred Dividend Default shall continue, any
vacancy in the office of a Preferred Stock Director shall be
filled by written consent of the Preferred Stock Director
remaining in office or, if none remains in office, by vote
of the holders of record of a majority of the outstanding
shares of the Series A Preferred Stock and all other series
of preferred stock who are then entitled to participate in
the election of such Preferred Stock Directors as provided
above. As long as a Preferred Dividend Default shall
continue, holders of shares of the Series A Preferred Stock
shall not, as such stockholders, be entitled to vote on the
election or removal of directors other than Preferred Stock
Directors, but shall not be divested of any other voting
rights provided to such stockholders by law with respect to
any other matter to be acted upon by the stockholders of the
Corporation. The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(f) Liquidation Rights.
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(i) Upon the dissolution, liquidation, or winding up
of the affairs of the Corporation, whether voluntary or
involuntary (collectively, a "Liquidation"), after payment
or provision for payment has been made of the debts and
other liabilities of the corporation and payment or
provision for payment has been made on all amounts required
to be paid in respect of all outstanding shares of any class
or classes of stock of the Corporation or series thereof
ranking senior to the shares of the Series A Preferred
Stock, the holders of the shares of the Series A Preferred
Stock shall be entitled, subject to paragraph (iv) of this
subsection (f), to receive out of the assets of the
Corporation, before any payment or distribution shall be
made on common stock or on any other class of stock ranking
junior to preferred stock upon Liquidation, the amount of
$25.00 per share, plus a sum equal to all dividends (whether
or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(ii) Neither the sale, transfer, or lease of all or any
part of the property or business of the Corporation, nor the
merger or consolidation of the Corporation into or with any
other corporation or the merger or consolidation of any
other corporation into or with the Corporation, shall be
deemed to be a Liquidation for the purposes of this
subsection (f).
(iii) After the payment to the holders of the
shares of the Series A Preferred Stock of the full
preferential amounts provided for in this subsection (f) the
holders of the Series A Preferred Stock as such shall have
no right or claim to any of the remaining assets of the
Corporation and the shares of the Series A Preferred Stock
shall no longer be deemed to be outstanding or be entitled
to any other powers, preferences, rights, or privileges,
including voting rights, and such shares shall be
surrendered for cancellation to the Corporation.
(iv) In the event the assets of the Corporation
available for distribution to the holders of shares of the
Series A Preferred Stock upon any Liquidation shall be
insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (i) of this
subsection (f), no such distribution shall be made on
account of any shares of any series of preferred stock
ranking on a parity with the shares of the Series A
Preferred Stock upon such Liquidation unless proportionate
distributive amounts shall be paid on account of the shares
of the Series A Preferred Stock, ratably, in proportion to
the full distributable amounts to which holders of all such
parity shares are respectively entitled upon such
Liquidation.
(g) Priority. Any shares of any class or classes of the
---------
Corporation or series thereof shall be deemed to rank:
(i) Prior to the shares of the Series A Preferred
Stock, either as to dividends or upon Liquidation, if the
holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon
Liquidation of the Corporation, in preference or priority to
the holders of shares of the Series A Preferred Stock;
(ii) On a parity with shares of the Series A Preferred
Stock, either as to dividends or upon Liquidation, whether
or not the dividend rates, dividend payment dates, or
redemption or Liquidation prices per share or sinking fund
provisions, if any, be different from those of the Series A
Preferred Stock, if the holders of such shares shall be
entitled to the receipt of dividends or of amounts
distributable upon Liquidation of the Corporation, in
proportion to their respective dividend rates or Liquidation
prices, without preference or priority, one over the other,
as between the holders of such shares and the holders of
shares of the Series A Preferred Stock; and
(iii) Junior to shares of the Series A Preferred
Stock, either as to dividends or upon Liquidation, if such
class is common stock or if the holders of shares of the
Series A Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon Liquidation of
the Corporation, in preference or priority to the holders of
shares of such class or classes.
(h) Sinking or Retirement Fund. The shares of the Series A
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Preferred Stock shall not be entitled to the benefit of a sinking
or retirement fund to be applied to the purchase or redemption of
such shares.
(i) Miscellaneous.
--------------
(i) Subject to paragraph (iii) of subsection (c)
above, all notices referred to herein shall be in writing,
and all notices hereunder shall be deemed to have been given
upon the earlier of receipt thereof or three business days
after the mailing thereof if sent by first class mail with
postage prepaid, addressed: if to the Corporation, to its
offices at 1325 Airmotive Way, Suite 100, Reno, Nevada 89502-
3239 (Attention: Secretary); if to a holder, to the address
thereof shown on the security register maintained by the
registrar for the Series A Preferred Stock; or to such other
address as the Corporation or holder, as the case may be,
shall have designated by notice similarly given.
(ii) In the event a holder of shares of the Series A
Preferred Stock shall not by written notice designate the
name to whom payment upon redemption of any shares of the
Series A Preferred Stock should be made or the address to
which the certificate or certificates representing such
shares, or such payment, should be sent, the Corporation
shall be entitled to register such shares, and make such
payment, in the name of the holder of such shares as shown
on the records of the Corporation and to send the
certificate or certificates representing such shares, or
such payment, to the address of such holder shown on the
records of the Corporation.
EXHIBIT D
AMERCO
SERIES B PREFERRED STOCK
The Series Designated as Series B Preferred Stock (the
"Series B Preferred"), will consist of 100,000 shares and will
have the designations, preferences, voting powers, relative,
participating, optional or other special rights and privileges,
and the qualifications, limitations and restrictions described
below. Shares of the Series B Preferred shall have liquidation
rights as provided in Section 2 and shall have no par value.
Certain capitalized terms used below have the meanings given in
Section 11.
1. DIVIDENDS AND DISTRIBUTIONS.
A. REGULAR DIVIDENDS. Subject to the prior rights of the
holders of Senior Shares, if any, the Holder, in preference to
the holders of Junior Shares, shall be entitled, in conjunction
with any provision then being made for the holders of Parity
Shares, to receive, when, as and if declared by the Board of
Directors, out of any funds of the Corporation lawfully available
for the payment of dividends, payable on the last day of each
Payment Period, cumulative cash dividends at, but not exceeding,
(i) the product of the Conversion Value times the Floating Rate,
plus (ii) any Additional Amounts, payable on the last day of each
Payment Period following the date of this Certificate. If the
stated dividends are not paid in full, the Series B Preferred and
all Parity Shares shall share ratably in the payment of
dividends, including accumulations thereof, if any, on such
shares in accordance with the sums that would be payable on such
shares if all dividends were paid in full.
B. NOTICE. The Holder will notify the Corporation of any
event occurring after the date of this Certificate which will
entitle the Holder to receive any Additional Amounts as promptly
as practicable after it obtains knowledge thereof but in any
event within thirty (30) days after it obtains knowledge thereof
and determines to request such compensation. Determinations and
allocations by the Holder for purposes hereof of the effect of
any Regulatory Change on its costs of purchasing or holding the
Series B Preferred or on amounts receivable by it in respect of
the Series B Preferred and of the additional amounts required to
compensate the Holder in respect of any Additional Amounts, shall
be prima facie valid provided that such determinations and
allocations are made on a reasonable basis.
C. PRIORITY. Any and all dividends payable on the Series
B Preferred shall be paid in preference and in priority to the
payment of dividends or distributions on any Junior Shares. So
long as any Series B Preferred shares are outstanding, no
dividends whatever shall be paid or declared, nor shall any
distribution be made, on any Junior Shares, other than a dividend
or distribution payable in Junior Shares, nor shall the
Corporation or any subsidiary of the Corporation purchase, redeem
or otherwise acquire for a consideration any Junior Shares,
unless full cumulative dividends have been or contemporaneously
are declared and paid, or declared and a sum sufficient for the
payment thereof set apart for such payment, on the Series B
Preferred for all Payment Periods terminating on or prior to the
date of payment of such purchase, redemption or acquisition.
2. LIQUIDATION RIGHTS.
A. GENERALLY. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, before any amount shall be paid to the holders of
any Junior Shares, the Holder of the Series B Preferred shall be
paid first out of the assets of the Corporation available for
distribution to holders of its capital stock an amount per share
equal, to but not exceeding, (i) the Conversion Value, as
appropriately adjusted to reflect any stock split stock dividend,
combination, recapitalization and the like of the Series B
Preferred, plus (ii) all accrued but unpaid dividends (including
any interest accrued thereon calculated through the date of
liquidation (the "Liquidation Date")). If, upon the occurrence
of a liquidation, dissolution or winding up, the assets and funds
thus distributed to the Holder shall be insufficient to permit
the payment to the Holder of its full liquidation preferences,
then the entire assets and funds of the Corporation legally
available for distribution to the holders of capital stock
(other than Senior Shares) shall be distributed ratably to the
Holder and the holders of any Parity Shares.
B. EVENTS DEEMED LIQUIDATION. For purposes of this
Section 2, the Holder may elect to have treated as a liquidation,
dissolution or winding up of the Corporation the consolidation or
merger of the Corporation with or into any other corporation or
the sale or other transfer in a single transaction or a series of
related transactions of all or substantially all of the assets of
the Corporation or any other reorganization of the Corporation,
unless the stockholders of the Corporation immediately prior to
any such transaction are holders of a majority of the voting
securities of the surviving or acquiring corporation immediately
thereafter (and for purposes of this calculation equity
securities which any stockholder or the Corporation owned
immediately prior to such merger or consolidation as a
stockholder of another party to the transaction shall be
disregarded).
C. PRIORITY. Any amounts payable on the Series B
Preferred in the event of any liquidation, dissolution or winding
up of the Corporation shall be paid in preference and in priority
to the payment of any amounts payable on Junior Shares.
3. CONVERSION. The Holder has conversion rights as follows
(the "Conversion Rights"):
A. RIGHT TO CONVERT. Upon each of the following to occur
from time to time: (i) August 31, 1997, and for 10 Business Days
thereafter; (ii) the first day of each fiscal quarter of the
Corporation occurring after August 31, 1997, and for 10 Business
Days after the first day of each fiscal quarter; (iii) the
expiration of ten days after the occurrence of an Event of
Noncompliance under the Stock Purchase Agreement that is not then
cured, and at any time thereafter; (iv) any dividends on the
Series B Preferred becoming in arrears, and at any time
thereafter; (v) the Corporation no longer holding more than 50%
of the outstanding stock and assets of any of Ponderosa Holdings,
Inc., Oxford Life Insurance Company or Republic Western Insurance
Company, and at any time thereafter; or (vi) the Corporation or
any of its subsidiaries completing any Excess Equity Offering,
and at any time thereafter, then each share of Series B Preferred
shall be convertible, at the option of the Holder, into either:
i. the number of fully paid and nonassessable shares
of Series B Common Stock that results from dividing the
Conversion Price per share in effect at the time of conversion
into the per share Conversion Value but no more than the maximum
amount authorized and available for issuance; or
ii. all of the shares of capital stock of Picacho then
outstanding.
Upon conversion, all accrued but unpaid dividends (including
interest accrued thereon calculated as of the Conversion Date) on
the Series B Preferred shall be paid in cash, to the extent
permitted by applicable law.
B. CONVERSION PRICE AND CONVERSION VALUE. The initial
Conversion Price of the Series B Preferred shall be $25.00 per
share, and the initial Conversion Value of the Series B Preferred
shall be $1,000.00 per share. The initial Conversion Price of
the Series B Preferred shall be subject to adjustment from time
to time as provided in Section 3(d).
C. MECHANICS OF CONVERSION. To convert any shares of
Series B Preferred, the Holder shall surrender the certificate or
certificates therefor, duly endorsed, at the principal office of
the Corporation, or notify the Corporation in writing that such
certificates have been lost, stolen or destroyed and agree to
indemnify the Corporation from any loss incurred by it in
connection with such certificates, and shall give written notice
(the "Conversion Notice") to the Corporation at such office that
the Holder elects to convert the same, specifying whether the
Series B Preferred shares are to be converted into Series B
Common Stock or shares of Picacho. As soon as practicable (but
not more than one Business Day) after such delivery, or after
such notification, the Corporation shall issue and deliver at
such office to the Holder, unless the Corporation shall elect
instead to redeem the Series B Preferred as provided in Section
5:
i. A certificate or certificates for the number of
shares of Series B Common Stock to which the Holder shall be
entitled if the Holder has elected to convert the Series B
Preferred into Series B Common Stock; or
ii. A certificate or certificates for all of the
outstanding shares of Picacho, if the Holder has elected to
convert the Series B Preferred into Picacho stock;
and, in either case, a check payable to the Holder in the amount
of any accrued or declared but unpaid dividends payable pursuant
to Section 1, if any. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date
of such surrender of the shares of Series B Preferred to be
converted or of the notification of lost certificates and the
persons entitled to shares of Series B Common Stock or Picacho
stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares on such
date (the "Conversion Date"). In the event of a notice of
redemption of any shares of Series B Preferred pursuant to
Section 5, the Conversion Rights shall terminate at the close of
business on the Redemption Date, unless default is made in
payment of the redemption price, in which case the Conversion
Rights for such shares shall continue until such payment.
D. ADJUSTMENTS TO CONVERSION PRICE.
i. Adjustment of Conversion Price. The Conversion
Price of the Series B Preferred shall be adjusted if the
Corporation issues or is deemed to issue Additional Shares of
Common Stock for a consideration per share that is less than the
Conversion Price for the Series B Preferred in effect on the date
of, and immediately prior to, such issue or deemed issue.
ii. Deemed Issue of Additional Shares of Common Stock.
If the Corporation at any time or from time to time after the
date of this Certificate issues any Options or Convertible
Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of
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shares (as set forth in the instrument relating thereto without
regard to any provisions contained therein for a subsequent
adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible
Securities and Options therefor, the exercise of such Options and
conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the
time of such issue or, in case such a record date shall have been
fixed, as of the close of business on such record date, provided
that Additional Shares of Common Stock shall not be deemed to
have been issued unless the consideration per share (determined
pursuant to Section 3(d)(iv)) of such Additional Shares of Common
Stock would be less than the Conversion Price in effect on the
date of and immediately prior to such issue, or such record
date, as the case may be, and provided further that in any such
case in which Additional Shares of Common Stock are deemed to be
issued:
(1) except as provided in Section 3(d)(ii)(2), no
further adjustment in the Conversion Price shall be made upon the
subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange
of such Convertible Securities;
(2) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for
any change in the consideration payable to the Corporation, or
change in the number of shares of Common Stock issuable, upon the
exercise, conversion or exchange thereof (other than under or by
reason of provisions designed to protect against dilution), the
Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto) and
any subsequent adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or
the rights of conversion or exchange under such Convertible
Securities; and
(3) no readjustment pursuant to clause (2) above
shall have the effect of increasing the Conversion Price.
iii. Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. Except as provided by Section
3(d)(ii)(2), in the event the Corporation shall issue Additional
Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to Section 3(d)(ii)) without
consideration or for a consideration per share less than the
Conversion Price of the Series B Preferred in effect on the date
of and immediately prior to such issue, then and in each such
event the Conversion Price of the Series B Preferred shall be
reduced to the price (calculated to the nearest cent) at which
the Additional Shares of Common Stock are issued.
iv. Determination of Consideration. For purposes of
this Section 3(d), the consideration received by the Corporation
for the issue of any Additional Shares of Common Stock shall be
determined after payment of all commissions paid or discounts
given in connection with the issuance or deemed issuance of the
shares and shall be computed as follows:
(1) Cash and Property: Such consideration shall:
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(a) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the
Corporation;
(b) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of
such issue, as determined by the Board of Directors in the good
faith exercise of its reasonable business judgment; and
(c) in the event Additional Shares of Common
Stock are issued together with other shares or securities or
other assets of the Corporation for consideration that covers
both, be the proportion of such consideration so received for the
Additional Shares of Common Stock, computed as provided in
clauses (a) and (b) above, as determined by the Board of
Directors in the good faith exercise of its reasonable business
judgment.
(2) Options and Convertible Securities. The
consideration per share received by the Corporation for
Additional Shares of Common Stock deemed to have been issued
pursuant to Section 3(d)(ii), relating to Options and Convertible
Securities, shall be determined by dividing:
(a) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of
such Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible Securities,
the exercise of such Options for Convertible securities and the
conversion or exchange of such Convertible Securities, by
(b) the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such
Options or the conversion or exchange of such Convertible
Securities.
v. Other Adjustments.
(a) Subdivisions, Combinations, or Consolidations
of Series B Common Stock. In the event the outstanding shares of
Series B Common Stock shall be subdivided, combined or
consolidated, by stock split, stock dividend, combination or like
event, into a greater or lesser number of shares of Series B
Common Stock, the Conversion Price of the Series B preferred in
effect immediately prior to such subdivision, combination,
consolidation or stock dividend shall, concurrently with the
effectiveness of such subdivision, combination or consolidation,
be proportionately adjusted to achieve the result that, upon
conversion of the Series B Preferred into Series B Common Stock,
the Holder shall receive, as nearly as possible, the same
percentage of the outstanding shares of Series B Common Stock
that it would have had the Series B Preferred been converted
immediately prior to such subdivision, combination or
consolidation.
(b) Reclassifications. In the case, at any time
after the date of this Certificate, of any capital reorganization
or any reclassification of the stock of the Corporation (other
than as a result of a subdivision, combination or consolidation
of shares), or the consolidation or merger of the Corporation
with or into another person (other than a consolidation or merger
(A) in which the Corporation is the continuing entity and that
does not result in any change in the common Stock or (B) that is
treated as a liquidation pursuant to Section 2(b)), the
Conversion Price shall be adjusted so that the shares of the
Series B Preferred shall, after such reorganization,
reclassification, consolidation or merger, be convertible into
the kind and number of shares of stock or other securities or
property of the Corporation or otherwise to which the Holder
would have been entitled if immediately prior to such
reorganization, reclassification, consolidation or merger if the
Holder had converted the shares of the Series B Preferred into
Series B Common Stock. The provisions of this clause 3(d)(v)(b)
shall similarly apply to successive reorganizations,
reclassifications, consolidations or mergers.
E. NO ADJUSTMENTS TO CONVERSION VALUE. The Corporation
shall not effect any stock split, stock dividend, combination or
recapitalization of the Series B Preferred and, therefore, the
Conversion Value of the Series B Preferred will not be adjusted.
F. CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of
each adjustment or readjustment of the Conversion Price of the
Series B Preferred pursuant to this Section 3, the Corporation at
its expense shall promptly compute such adjustment or
readjustment in accordance with the terms of this Certificate and
furnish to the Holder a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon
the written request at any time of the Holder, furnish or cause
to be furnished to the Holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) the Conversion Price
of the Series B Preferred at the time in effect, and (iii) the
number of shares of Series B Common Stock and the amount, if any,
of other property which at the time would be received upon the
conversion of the Series B Preferred.
G. STATUS OF CONVERTED STOCK. In case any shares of
Series B Preferred shall be converted pursuant to Section 3, the
shares so converted shall be canceled, shall not be reissuable
and shall cease to be a part of the outstanding capital stock of
the Corporation.
H. FRACTIONAL SHARES. In lieu of any fractional shares of
Series B Common Stock to which the Holder would otherwise be
entitled upon conversion, the Corporation shall pay cash equal to
such fraction multiplied by the fair market value of one share of
Series B Common Stock as determined by the Board of Directors in
the good faith exercise of its reasonable business judgment.
I. MISCELLANEOUS.
i. All calculations under this Section 3 shall be
made to the nearest cent or to the nearest one hundredth (1/100)
of a share, as the case may be.
ii. The Holder shall have the right to challenge any
determination by the Board of Directors of fair market value
pursuant to this Section 3, in which case such determination of
fair market value shall be made by an independent appraiser
selected jointly by the Board of Directors and the Holder, the
cost of such appraisal to be borne equally by the Corporation and
the Holder.
iii. No adjustment in the Conversion Price of the
Series B Preferred need be made if such adjustment would result
in a change in such Conversion Price of less than $0.01. Any
adjustment of less than $0.01 that is not made shall be carried
forward and shall be made at the time of and together with any
subsequent adjustment that, on a cumulative basis, amounts to an
adjustment of $0.01 or more in such Conversion Price.
J. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Series B Common Stock,
solely for the purpose of effecting the conversion of the shares
of Series B Preferred, such number of its shares of Series B
Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Series B Preferred.
If at any time the number of authorized but unissued shares of
Series B Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of Series B Preferred,
the Corporation will take such corporate action as may, in the
option of its counsel, be necessary to increase its authorized
but unissued shares of Series B Common Stock to such number of
shares as shall be sufficient for such purpose.
4. VOTING RIGHTS.
a. Except as otherwise required by law and Subsection
4(b), the Holder shall have no voting rights with respect to the
Series B Preferred.
b. So long as any of the shares of Series B preferred are
outstanding, the written consent of the holder shall be necessary
for authorizing, affecting or validating the amendment,
alteration, or repeal of any of the provisions of the Articles of
Incorporation of the Corporation or of any certificate amendatory
thereof or supplemental thereto (including any certificate of
amendment or any similar document relating to any series of
preferred stock) that would adversely affect the powers,
preferences, or special rights of the Series B Preferred,
including the creation or authorization of any class of Senior
Shares or Parity Shares. Any amendment or any resolution or
action of the Board of Directors that would create or issue any
series of Junior Shares out of the authorized shares of preferred
stock, or that would authorize, create, or issue any other Junior
Shares (whether or not already authorized), shall not be
considered to affect adversely the powers, preferences, or special
rights of the outstanding shares of the Series B Preferred.
5. REDEMPTION.
A. OPTIONAL REDEMPTION. If the Holder exercises its
Conversion Rights pursuant to Section 3, then instead of
effecting the conversion, the Corporation may, by giving written
notice to the Holder (a "Notice of Redemption") not later than
one Business Day after receiving the Conversion Notice, elect to
redeem all (but not less than all) of the Series B Preferred
outstanding on the Redemption Date.
B. REDEMPTION VALUE. Upon any redemption of the Series B
Preferred, the Corporation shall pay out of funds legally
available therefor in cash a sum per share equal to the
Conversion Value, together with (i) all accrued but unpaid
dividends (including any interest accrued thereon) calculated as
of the Redemption Date, (ii) if the redemption Date is a date
other than the last day of a Payment Period, the Interim Payment;
and (iii) all other costs, fees, expenses, or amounts the
Corporation is required to pay Holder pursuant to the Stock
Purchase Agreement, regardless of the reason for such redemption
or such costs, fees, expenses, or amounts (collectively the
"Redemption Value").
C. NOTICE OF REDEMPTION. Any Notice of Redemption given
by the Corporation shall be delivered to the Holder, notifying
the Holder of the redemption to be effected. The Notice of
Redemption shall:
i. State that the Series B Preferred is to be
redeemed;
ii. Specify the date (the "Redemption Date") on which
the Series B Preferred is to be redeemed, which shall be not more
than ten Business Days following the date the Corporation
receives the Conversion Notice from the Holder;
iii. Request wire transfer or other instructions for
the payment of the Redemption Value.
D. TRANSFER INSTRUCTIONS. Not less than one Business Day
after delivery of the Notice of Redemption, the Holder shall
provide the Corporation with instructions for wire or other
transfer of the Redemption Value to the Holder.
E. COMPLETING THE REDEMPTION. On the Redemption Date:
i. The Holder shall surrender to the Corporation at
the principal offices of the Corporation the Holder's certificate
or certificates representing the shares to be redeemed or provide
a notice to the Corporation in writing that such certificates
have been lost, stolen or destroyed and that the Holder agrees to
indemnify the Corporation from any loss incurred by it in
connection with such certificates; and
ii. The Corporation shall pay the Redemption Value to
the Holder by wire or other transfer acceptable to the Holder,
and thereupon each surrendered or lost certificate shall be
canceled.
F. LACK OF LEGALLY AVAILABLE FUNDS. If the funds of the
Corporation legally available for redemption of the Series B
Preferred are insufficient to redeem the total number of shares
of Series B Preferred required to be redeemed on the Redemption
Date, then, at the Holder's election in its sole discretion, the
Corporation either shall redeem that number of shares of Series B
Preferred for which the Corporation has funds legally available
or shall not redeem any of the Series B Preferred.
G. EFFECT OF REDEMPTION. From and after the payment of
the Redemption Value, all rights of the Holder shall cease with
respect to such shares, and such shares shall not thereafter be
transferred on the books of the Corporation or be deemed to be
outstanding for any purpose whatsoever.
6. NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities
for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, any right
to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to
receive any other right, the Corporation shall notify the Holder,
at least 10 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for
the purpose of such dividend, distribution or right, and the
amount and character of such dividend, distribution or right.
7. NOTICES. All notices and other communications provided for
in this Certificate shall be given or made in writing and
telecopied, mailed by certified mail return receipt requested or
delivered to the intended recipient at such address as shall be
designated by such person in a notice to each other relevant
person given in accordance with this Section, in addition to any
other notices that may be required by law. All such
communications shall be deemed to have been duly given when
transmitted by telecopy, subject to telephone confirmation of
receipt, or when personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as provided
herein.
8. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE CORPORATION HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE SERIES B PREFERRED SHARES, THE
STOCK PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY
OR THE ACTIONS OF THE HOLDER IN THE NEGOTIATION, ADMINISTRATION,
OR ENFORCEMENT THEREOF.
9. INTEREST. Any amounts required to be paid under this
Certificate that are not paid on the first day such payment may
be made and any dividends in arrears shall bear interest from
that date at the lesser of (a) the Maximum Rate or (b) the sum of
four percent plus the rate per annum publicly announced from time
to time by NationsBank, N.A. as its prime rate in effect at its
principal office in Charlotte, North Carolina.
10. MAXIMUM RATE. Notwithstanding anything to the contrary
contained herein, in the event the Series B Preferred shall be
deemed to be debt instead of equity, no provisions of this
Certificate shall require the payment or permit the collection of
interest in excess of the Maximum Rate. If any excess of
interest in such respect shall be adjudicated to be so provided
in this Certificate or otherwise in connection with the Series B
Preferred, the provisions of this paragraph shall govern and
prevail, and neither the Corporation nor the successors or
assigns of the Corporation shall be obligated to pay the excess
amount of such interest, or any other excess sum paid with
respect to the Series B Preferred. If, for any reason, interest
in excess of the Maximum Rate shall be deemed charged, required
or permitted by any court of competent jurisdiction, any such
excess shall be applied as a payment and reduction of the
principal of indebtedness deemed to be evidenced by the Series B
Preferred; and, if such principal has been paid in full, any
remaining excess shall forthwith be paid to the Corporation. In
determining whether or not the interest paid or payable exceed the
Maximum Rate, the Corporation and the Holder shall, to the extent
permitted by applicable law, (i) characterize any nonprincipal
payment as an expense, fee, or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof and
(iii) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the entire term of
the indebtedness deemed to be evidenced by the Series B Preferred
so that the interest for the entire period does not exceed the
Maximum Rate.
11. DEFINITIONS.
a. Capitalized terms used in this Certificate and not
otherwise defined have the meanings given to those terms in the
Series B Stock Purchase Agreement between the Corporation and
Blue Ridge Investments, LLC, dated August 30, 1996.
b. "Additional Amounts" means such amounts, if any, as are
necessary to compensate the Holder for any costs incurred by Holder
which the Holder determines are attributable, directly or indirectly,
to its purchase or holding of the Series B Preferred or any reduction
in any amount receivable by the Holder as a holder of the Series B
Preferred to the extent such costs and reductions in amount are not
reflected in any dividends, fees, reimbursements or other amounts
received by the Holder hereunder or under the Stock Purchase Agreement,
resulting from (i) an increase (over the dividend rate paid
hereunder) in the cost of funding the purchase of the Series B
Preferred, or (ii) any Regulatory Change which:
(A) changes the basis of taxation of any amounts
payable generally to NationsBank under Eurodollar loans
(other than taxes imposed on the overall net income of
NationsBank or its applicable lending office (for of
such loans by the jurisdiction in which NationsBank has its
principal office or such applicable lending office);
(B) imposes or modifies any reserve, special deposit,
minimum capital, capital ratio, or similar requirement
relating to any extensions of credit or other assets of, or
any deposits with or other liabilities or commitments of,
NationsBank (including any of such loans or any deposits
referred to in the definition of "Floating Rate" herein); or
(C) imposes any other condition generally effecting
loans by NationsBank or any of such extensions of credit or
liabilities or commitments.
c. "Additional Shares of Common Stock" means all shares of
Common Stock issued (or, pursuant to Section 3(d)(ii), decreed to
be issued) by the Corporation after the date of this Certificate,
other than shares of Common Stock issued or issuable:
i. upon conversion of shares of Series B Preferred;
ii. as a dividend or distribution on Series B
Preferred;
iii. in a transaction described in Section 3(d)(v);
iv. by way of dividend or other distribution on shares
of Common Stock excluded from the definition of Additional Shares
of Common Stock.
d. "Affiliate" has the meaning given that term in Rule 405
promulgated by the Securities and Exchange Commission under the
Securities Act.
e. "Business Day" means (a) any day on which commercial
banks are not authorized or required to close in Charlotte, North
Carolina and (b) with respect to all payments, Conversions,
Payment Periods, and notices, any day which is a Business Day
described in clause (a) above and which is also a day on which
dealings in dollar deposits are carried out in the London
interbank market.
f. "Common Stock" means shares of the Corporation's common
stock, par value $0.25 per share, serial common stock, or other
securities entitled generally to vote in the election of
directors of the Corporation.
g. "Conversion Date" has the meaning given in Section
3(c).
h. "Conversion Notice" has the meaning given in Section
3(c).
i. "Conversion Price" has the meaning given in Section
3(b).
j. "Conversion Value" has the meaning given in Section
3(b).
k. "Convertible Securities" means any evidences of
indebtedness, shares or other securities convertible into or
exchangeable for Common Stock, except the Series B Preferred.
1. "Corporation" means AMERCO, a Nevada corporation.
m. "Excess Equity Offering" means any offer or sale of
equity securities of the Corporation or any of its subsidiaries,
whether public or private, after the date of this Certificate,
other than (i) the offer and sale of Series B Preferred issued to
Holder, (ii) the offer and sale by the Corporation of up to
$125,000,000 of equity securities in a single transaction
occurring on or before March 1, 1997, and (iii) issuances of
equity securities to employees of the Corporation or its
subsidiaries pursuant to written employee benefit plans existing
on the date of this Certificate in the maximum amount permitted
under such plans or arrangements on the date of this Certificate.
n. "Floating Rate" means, for any Payment Period, the rate
per annum that is the lesser of (x) the sum of (i) two and one-
quarter percent (2.25%), and (ii) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day
of such Payment Period for a term comparable to such Payment
Period, or if for any reason such rate is not available, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page (or any successor page)
as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Payment Period for a term comparable to
such Payment Period; provided, however, if more than one rate is
-------- -------
specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates, or (y) the Maximum
Rate. Dividends shall be computed on the basis of a year of 360
days and the actual number of days elapsed (including the first
day but excluding the last day) during the Payment Period unless
such calculation would result in the dividends exceeding the
Maximum Rate, in which case dividends shall be calculated on the
basis of a year of 365 or 366 days, as the case may be.
Notwithstanding the first sentence of this paragraph, if at any
time the dividend is limited by the terms of this Certificate to
the Maximum Rate, then any subsequent reduction in the Floating
Rate shall not reduce the dividend below the Maximum Rate until
the aggregate amount of dividends accrued equals the aggregate
amount of dividends which would have accrued on the Series B
Preferred if the dividend specified in the first sentence of this
paragraph had at all times been in effect.
o. "Holder" means the holder or holders of record of the
Series B Preferred.
p. "Interim Payment" means such amount or amounts as shall
be sufficient to compensate the Holder for any loss, cost, or
expense incurred by the Holder as a result of any payment or
prepayment for any reason on a date other than the last day of a
Payment Period. Without limiting the effect of the preceding
sentence, such compensation shall include an amount equal to the
excess, if any, of (i) the amount of dividends which otherwise
would have accrued on the Conversion Value of the Series B
Preferred redeemed from the period from the date of such
redemption to the last day of the Payment Period as the
applicable rate of dividends for such Series B Preferred provided
for herein, over (ii) the interest component of the amount the
Holder would have bid in the London interbank market for dollar
deposits of leading banks in amounts comparable to the Conversion
Value of the Series B Preferred redeemed and with the maturities
comparable to the applicable Payment Period.
q. "Junior Shares" means all classes and series of shares
that, by the terms of the Corporation's Articles of
Incorporation, or by law, shall be subordinate to the Series B
Preferred with respect to the right of the holders thereof to
receive dividends and to participate in the assets of the
Corporation distributable to shareholders upon any liquidation,
dissolution or winding-up of the Corporation.
r. "Liquidation Date" has the meaning given in Section
2(a).
s. "Maximum Rate" means the maximum rate of nonusurious
interest permitted from day to day by applicable law, and
calculated after taking into account any and all relevant fees,
payments, and other charges contracted for, charged or received
which are deemed to be interest under applicable law.
t. "NationsBank" means NationsBank Corporation, a Delaware
corporation.
u. "Options" means rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock
or Convertible Securities, other than the Series B Preferred.
v. "Parity Shares" means all classes and series of shares
that, by the terms of the Corporation's Articles of
Incorporation, or by law, shall be on parity with the Series B
Preferred with respect to the right of the holders thereof to
receive dividends and to participate in the assets of the
Corporation distributable to shareholders upon any liquidation,
dissolution or winding-up of the Corporation.
w. "Payment Period" means each period commencing on the
date any shares of Series B Preferred are first issued or, in the
case of each subsequent, successive Payment Period, the last day
of the next preceding Payment Period, and ending on the
numerically corresponding day in the first, second or third
calendar month thereafter, as the Holder may select by written
notice to the Corporation at least three days before the
commencement of the applicable Payment Period, except that each
such Payment Period which commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (a) each Payment
Period which would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (or, if such
succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); (b) any Payment
Period which would otherwise extend beyond a Conversion Date,
Redemption Date or Liquidation Date shall end on the Conversion
Date, Redemption Date or Liquidation Date, as appropriate and (c)
no Payment Period shall have a duration of less than one (1)
month. If Holder shall fail to give the Corporation a notice of
the length of a Payment Period prior to the end of the then
current Payment Period, such Payment Period shall automatically
be continued on the last day thereof as Payment Period having a
term of one month.
x. "Picacho" means Picacho Peak Investment Co., a Nevada
corporation.
y. "Redemption Date" has the meaning given in Section
5(c).
z. "Regulatory Change" means any change after the date of
this Certificate in United States federal, state or foreign laws
or regulations (including Regulation D of the Board of Governors
of the Federal Reserve System as the same may be amended or
supplemented from time to time) or the adoption or making after
such date of any interpretations, directives or requests applying
to a class of institutions including NationsBank of or under any
United States federal, state or foreign laws or regulations
(whether or nor having the force of law) by any court or
governmental or monetary authority charged with the
interpretation or Administration thereof.
aa. "Senior Shares" means all classes and series of shares,
including the Corporation's Series A 8 1/2% Preferred Stock, that,
by the terms of the Corporation's Articles of Incorporation, or
by law, shall be senior to the Series B Preferred with respect to
the right of the holders thereof to receive dividends and to
participate in the assets of the Corporation distributable to
shareholders upon any liquidation, dissolution or winding-up of
the Corporation.
bb. "Series B Common Stock" means the Series B common
stock, $0.25 par value per share, of the Corporation.
cc. "Stock Purchase Agreement" means the Series B Stock
Purchase Agreement between the Corporation and Blue Ridge
Investments, LLC, dated August 30, 1996.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
OF
AMERCO
Pursuant to Section 78.1955 of the General Corporation Law
of the State of Nevada, AMERCO (the "Company"), a corporation
organized and existing under the General Corporation Law of the
State of Nevada, in accordance with the provisions of Section
78.035 and 78.195 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation of the
Company, the said Board of Directors on July 13, 1998, adopted
the following resolution amending and restating that certain
Certificate of Designation of Series C Preferred Stock, and
creating a series of Three Million (3,000,000) shares of
Preferred Stock designated as Series C Junior Participating
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board
of directors in accordance with the provisions of its Restated
Articles of Incorporation that certain Certificate of Designation
of Series C Preferred Stock be and it hereby is amended and
restated and that the designation and amount thereof and the
powers, preferences and relative, participating, optional and
other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount.
-----------------------
There shall be a series of the Preferred Stock which shall
be designated as the "Series C Junior Participating Preferred
Stock," no par value, and the number of shares constituting such
series shall be 3,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors,
provided, that no decrease shall reduce the number of shares of
Series C Junior Participating Preferred Stock to a number less
than that of the shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by
the Company.
Section 2. Dividends and Distributions.
----------------------------
(A) Subject to the rights of the holders of any shares of
any series of preferred stock of the Company ranking prior and
superior to the Series C Junior Participating Preferred Stock
with respect to dividends, the holders of shares of Series C
Junior Participating Preferred Stock, in preference to the
holders of shares of Common Stock, par value $0.25 per share, and
shares of Serial Common Stock, par value $0.25, of the Company
(the "Common Stock"), and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on any regular quarterly
dividend payment date as shall be established by the Board of
Directors (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series C Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series C Junior Participating
Preferred Stock. In the event the Company shall at any time
after July 13, 1998 (the "Rights Declaration Date") declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of
Series C Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on
the Series C Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend $1.00
per share on the Series C Junior Participating Preferred Stock
shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders
of shares of Series C Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series
C Junior Participating Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may, in accordance with applicable law, fix a record
date for the determination of holders of shares of Series C
Junior Participating Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable
law.
Section 3. Voting Rights.
---------------
The holders of shares of Series C Junior Participating
Preferred Stock shall have the following voting rights:
(A) Each share of Series C Junior Participating Preferred
Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the stockholders of the Company.
In the event the Company shall at any time after the Rights
Declaration Date declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
number of votes to which holders of shares of Series C Junior
Participating Preferred Stock were entitled immediately prior to
such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein, in the Company's
Restated Articles of Incorporation or by law, the holders of
shares of Series C Junior Participating Preferred Stock, the
holders of shares of Common Stock, and the holders of shares of
any other capital stock of the Company having general voting
rights, shall vote together as one class on all matters submitted
to a vote of stockholders of the Company.
(C) Except as otherwise set forth herein or in the
Company's Restated Articles of Incorporation, and except as
otherwise provided by law, holders of Series C Junior
Participating Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
----------------------
(A) Whenever dividends or distributions payable on the
Series C Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series C Junior Participating Preferred Stock
outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series C Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series C Junior Participating Preferred
Stock, except dividends paid ratably on the Series C Junior
Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares
are then entitled;
(iii) except as permitted in Section 4(A)(iv)
below, redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series C Junior Participating Preferred
Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Company
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series C Junior
Participating Preferred Stock; and
(iv) purchase or otherwise acquire for
consideration any shares of Series C Junior Participating
Preferred Stock, or any shares of stock ranking on a parity
with the Series C Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph(A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares.
------------------
Any shares of Series C Junior Participating Preferred Stock
purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. The Company shall cause all such shares
upon their cancellation to be authorized but unissued shares of
Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
---------------------------------------
(A) Subject to the rights of holders of any shares of any
series of Preferred Stock of the Company ranking prior and
superior to the Series C Junior Participating Preferred Stock
with respect to liquidation, upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Company, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of
Series C Junior Participating Preferred Stock shall have received
$100.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment (the "Series C Liquidation Preference").
Following the payment of the full amount of the Series C
Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series C Junior Participating
Preferred Stock, unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the
Series C Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to reflect such
events as stock dividends, and subdivisions, combinations and
consolidations with respect to the Common Stock) (such number in
clause (ii) being referred to as the "Adjustment Number").
Following the payment of the full amount of the Series C
Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series C Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series C Junior
Participating Preferred Stock and holders of shares of Common
Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Series C Junior Participating
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event there are not sufficient assets available
to permit payment in full of the Series C Liquidation Preference
and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series C Junior
Participating Preferred Stock, then such remaining assets shall
be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the
event there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
---------------------------
In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of Series C Junior Participating Preferred Stock shall
at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment herein set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Company shall at
any time after the Rights Declaration Date declare or pay any
dividend on Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of
Series C Junior Participating Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to
such event.
Section 8. Redemption.
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The shares of Series C Junior Participating Preferred Stock
shall not be redeemable.
Section 9. Ranking.
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The Series C Junior Participating Preferred Stock shall rank
junior to all other series of the Company's Preferred Stock as to
the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Fractional Shares.
------------------
Series C Junior Participating Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series C
Junior Participating Preferred Stock."
Pursuant to Section 78.1955(4) of the General Corporation
Law of the State of Nevada, (a) attached is the original
designation, (b) no shares of Series C Junior Participating
Preferred Stock have been issued, and (c) set forth above is the
amended and restated designation of the series, the number of the
series, and the voting powers, designations, preferences,
limitations, restrictions and relative rights of the series.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the
penalties of perjury this 4th day of August, 1998.
By: /s/ Edward J. Shoen
------------------------------
Name: Edward J. Shoen
Title: President
Attest
By: /s/ Gary V. Klinefelter
---------------------------
Name: Gary V. Klinefelter
Title: Secretary
State of Arizona )
) SS
County of Maricopa )
This instrument was acknowledged before me on 8-4-98 (date)
by Edward J. Shoen and Gary V. Klinefelter as President and
Secretary of AMERCO.
/s/ Nancy Jo Beiley
--------------------------------
Notary