SETTLEMENT AGREEMENT AND EXHIBITS
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(TENDERED FOR SIGNATURES)
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SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Agreement") is made this
19th day of September, 1995, by and among: (i) MARY ANNA SHOEN EATON,
a married woman in her sole and separate right ("Mary Anna");
(ii) MARAN, INC. ("Maran"); (iii) EDWARD J. SHOEN ("E. Shoen");
(iv) JAMES P. SHOEN ("J. Shoen"); (v) AUBREY K. JOHNSON ("Johnson");
(vi) JOHN M. DODDS ("Dodds"); (vii) WILLIAM E. CARTY ("Carty");
and (viii) AMERCO, a Nevada corporation ("AMERCO")
(collectively, the "Parties").
I. RECITALS.
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1.1 On August 2, 1988, Mary Anna and Maran, among others
(Mary Anna, Maran and the other plaintiffs will be referred to
collectively as the "Share Case Plaintiffs"), instituted an
action in the Superior Court of the State of Arizona in and for
Maricopa County (Case No. CV 88-20139) (the "Superior Court")
against E. Shoen, J. Shoen, Johnson, Dodds, and Carty (the
"Director Defendants"), and against Paul F. Shoen ("P. Shoen"),
all of whom were directors of AMERCO at the time (the "Arizona
Litigation").
1.2 After a jury verdict, post-trial motions, and the entry
of remittiturs which the Share Case Plaintiffs accepted, the
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Superior Court entered two (2) separate judgments in the Arizona
Litigation. A judgment for punitive damages against E. Shoen was
entered in the amount of $7,000,000.00 (the "Punitive Damage
Judgment"). A judgment against the Director Defendants and P.
Shoen was entered in the amount of $461,838,000.00 (the "Share
Case Judgment"). The Punitive Damage Judgment and the Share Case
Judgment will be collectively referred to hereinafter as the
"Arizona Litigation Judgments."
1.3 Mary Anna does not own any shares of the common stock
of AMERCO.
1.4 On February 21, 1995, E. Shoen filed a voluntary
Chapter 11 reorganization case in the United States Bankruptcy
Court for the District of Arizona (the "Court" or "Bankruptcy
Court"), which was assigned Case No. 95-1430-PHX-JMM.
1.5 On February 21, 1995, J. Shoen filed a voluntary
Chapter 11 reorganization case in the United States Bankruptcy
Court for the District of Arizona, which was assigned Case
No. 95-1431-PHX-JMM.
1.6 On February 21, 1995, Johnson filed a voluntary Chapter
11 reorganization case in the United States Bankruptcy Court for
the District of Arizona, which was assigned Case
No. 95-1432-PHX-CGC.
1.7 On February 21, 1995, Dodds filed a voluntary Chapter
11 reorganization case in the United States Bankruptcy Court for
the District of Arizona, which was assigned Case
No. 95-1433-PHX-RGM.
1.8 On February 21, 1995, Carty filed a voluntary Chapter
11 reorganization case in the United States Bankruptcy Court for
the District of Arizona, which was assigned Case No. 95-1434-PHX-GBN.
1.9 Pursuant to an Order entered by the Bankruptcy Court on
April 10, 1995, the Chapter 11 cases filed by E. Shoen, J. Shoen,
Johnson, Dodds, and Carty (collectively, the "Debtors") are being
jointly administered by the Court as Case No. 95-1430-PHX-JMM
(the "Reorganization Cases").
1.10 On March 27, 1995, E. Shoen filed a notice of appeal
before the Arizona Court of Appeals regarding the Punitive Damage
Judgment.
1.11 The Debtors assert that they retain unexpired appeal
rights with regard to the Share Case Judgment.
1.12 The Debtors have filed plans of reorganization
(collectively, including all amendments, modifications, and
restatements, the "Plans") in their respective Reorganization
Cases. The Bankruptcy Court has set October 2, 1995 as the
deadline to file ballots voting on the Plans (the "Ballot
Deadline"), and has set November 6, 1995, as the date when
hearings will begin regarding confirmation of the Plans. AMERCO
has agreed, under certain conditions, to fund the Plans.
1.13 Mary Anna and Maran have entered into this Agreement,
and have agreed to settle their claim(s), to avoid the
uncertainty of litigation and to finally resolve the many years
of litigation between Mary Anna, Maran, the Director Defendants,
and AMERCO.
1.14 The Parties want to terminate all past, present, and
potential controversies between and among the Parties, including,
but not limited to, the issues raised in the Arizona Litigation
and the Arizona Litigation Judgments, and to fully and finally
compromise and settle the Arizona Litigation Judgments against
the Debtors, and all other claims which Mary Anna, her spouse
TIMOTHY EATON ("Timothy"), and Maran (on the one hand) and the
Director Defendants and AMERCO (on the other hand) have or may
have against each other.
II. OPERATIVE PROVISIONS.
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2.1 The Parties hereby acknowledge the accuracy of the
foregoing "Recitals," which are incorporated into the "Operative
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Provisions" segment of this Agreement as though fully set forth
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herein and are made a part of the "Operative Provisions" for all
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purposes.
SATISFACTION OF THE ARIZONA JUDGMENTS
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2.2 In consideration of the promises and the mutual
covenants set forth herein, the Parties stipulate and agree that
on approval of this Agreement by an Order of the Bankruptcy Court
in the Reorganization Cases:
(a) The Director Defendants, or their designee, will pay to
Mary Anna the sum of $41,352,083.20 in settlement and full
satisfaction of all claims of Mary Anna against the Debtors,
AMERCO, any subsidiary or affiliate of AMERCO, and any officers,
directors, employees, agents, representatives, attorneys and
accountants of any of the foregoing, including, but not limited
to the claims of Mary Anna arising out of the Arizona Litigation
Judgments, and any and all claims of Mary Anna for
nondischargeability or objections to discharges against the
Debtors (the "Settlement Amount").
(b) Upon payment of the Settlement Amount and the Stock
Purchase Amount pursuant to the Stock Purchase Agreement, any and
all claims of Mary Anna and Maran against the Debtors, arising
from the Arizona Litigation Judgments or otherwise, will be
deemed fully satisfied, including but not limited to, any claims
which have been or may be asserted by Mary Anna or Maran
(collectively or individually) in the Reorganization Cases.
(c) The payments to be made pursuant to this Section 2.2
and the transfers to be effected will be made and transferred at
the Closing (as hereinafter defined).
2.3 By virtue of their receipt of the foregoing amounts,
and full satisfaction and settlement of their claims against the
Debtors, Mary Anna and Maran will not be deemed to have cast a
vote to accept or reject any of the Plans.
2.4 If this Agreement is not approved prior to the Ballot
Deadline, the Ballot Deadline will be deemed automatically
extended as to Mary Anna and Maran for a period of three (3)
business days after the entry of the Bankruptcy Court's Order
denying approval of this Agreement.
2.5 This Agreement does not impose a requirement on any of
the Parties as to how they must report the proceeds described in
this Agreement for federal and/or state income tax purposes.
2.6 Payment of the Settlement Amount to Mary Anna and the
Stock Purchase Amount to Maran and performance of the Parties
under this Agreement is not contingent upon confirmation of any
of the Plans in the Reorganization Cases.
APPROVALS AND CLOSING
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2.7 Promptly upon execution of this Agreement, the Debtors
will execute and file with the Bankruptcy Court a Motion to
Approve Stock Purchase Agreement and Settlement Agreement, along
with a proposed Order Granting Motion for Approval of Stock
Purchase Agreement and Settlement Agreement, and Mary Anna and
Maran will separately support said motion and cooperate in any
Court appearances or further filings, notices or other actions
necessary to obtain the approval of this Agreement by the
Bankruptcy Court.
2.8 The Parties will effectuate the transfers described in
Section 2.2 above pursuant to a "Closing" which will occur on the
first business day that is fourteen (14) calendar days after
approval of this Agreement by the Bankruptcy Court, unless that
date is voluntarily extended, in writing, by the mutual agreement
of the Parties (the "Closing Date"); provided, however, subject
to Sections 2.10 and 2.12 below, that in no event will the
Closing Date occur later than November 6, 1995, unless the
Parties mutually agree, in writing, upon a later date.
Hereinafter all references to "Closing Date" will include any
mutually agreed extensions for Closing beyond November 6, 1995.
2.9 Closing of the transaction contemplated by this
Agreement will occur at the offices of Streich Lang, P.A., in Las Vegas,
Nevada, unless otherwise mutually agreed by the Parties, and the
following will occur at the Closing:
(a) Maran, or its duly authorized representative, will
deliver the Maran Shares duly endorsed. In the event that Maran
cannot deliver stock certificates for all of the Maran Shares,
Maran, or its duly authorized representative, will provide a duly
executed affidavit of lost stock certificate, in the form
attached hereto as Exhibit "A" and by this reference incorporated
herein, at the Closing.
(b) The Director Defendants, or their designee, will pay
the Settlement Amount to Mary Anna and the Stock Purchase Amount
(pursuant to the Stock Purchase Agreement) to Maran in cash or
immediately available funds, pursuant to the respective
instructions of Mary Anna and Maran, said instructions to be
given three (3) days prior to the Closing Date.
(c) The Releases (defined below) will become fully
operative and effective without further action of the Parties and
will be exchanged.
SPECIFIC PERFORMANCE
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2.10 In the event that Mary Anna and Maran (or either of
them) fail or refuse to perform their obligations pursuant to
this Agreement, AMERCO and the Debtors will be entitled to
specific performance of this Agreement, pursuant to the terms of
Section 2.12 below, if each of the following has occurred:
(a) the Parties have approved the final settlement
documents, including this Agreement;
(b) the Bankruptcy Court has approved this Agreement;
and
(c) the Director Defendants, or their designee, have
deposited the Settlement Amount and the Stock Purchase Amount
into an escrow account to be established for that purpose at at
a bank, title company, or escrow company independent of the
Director Defendants or their affiliates (the "Escrow Agent") for
delivery to Mary Anna and Maran on or before the Closing Date.
2.11 In the event that any of the foregoing conditions is
not satisfied, this Agreement and the underlying settlement will
be null and void and the Parties will not be prejudiced by virtue
of having entered into this Agreement.
2.12 If all of the conditions set forth in Section 2.10
above are met, AMERCO and the Debtors will be entitled to obtain
an order from the Bankruptcy Court granting specific performance
(the "Specific Performance Order") as follows:
(a) An authorized officer of AMERCO and each of the
Debtors will file a sworn affidavit (the "Non-Performance
Affidavits") with the Bankruptcy Court, setting forth: (i)
that the Bankruptcy Court approved this Agreement prior to the
Closing Date; (ii) that the Director Defendants, or their
designee, deposited the Settlement Amount and the Stock
Purchase Amount with the Escrow Agent on or before the Closing
Date; (iii) that the Closing was to occur on a specified date;
and (iv) that Mary Anna and Maran have refused to appear
(either personally or through an authorized representative)
at the Closing and perform. A Motion for entry of the Specific
Performance Order will accompany the Nonperformance Affidavits.
(b) AMERCO and the Debtors will promptly serve notice of
the Motion and copies of the Non-Performance Affidavit(s) upon
Mary Anna and Maran and their counsel.
(c) Mary Anna and Maran will not be entitled to file a
Response to the Motion unless the Response is accompanied by a
sworn affidavit alleging that the Non-Performance Affidavit(s)
contain(s) false statements (collectively, the "Controverting
Response"). The affidavit(s) also must specify the allegedly
false statements and must state what the affiant claims to be the
true facts.
(d) AMERCO and the Debtors will be entitled to entry of
the Specific Performance Order without a hearing on the Motion
unless a Controverting Response has been filed, in which event
AMERCO and the Debtors will have the right to an expedited
hearing on the Motion.
(e) The Bankruptcy Court will retain jurisdiction over this
Agreement and the underlying settlement to enter the Specific
Performance Order.
(f) The Parties agree that the Bankruptcy Court
administering the Reorganization Cases has in personam
jurisdiction over Mary Anna and Maran.
(g) Upon receipt of a certified copy of the Specific
Performance Order, the Escrow Agent will release the Settlement
Amount and the Stock Purchase Amount to Mary Anna and Maran,
respectively, or, alternatively, act solely in reliance on their
instructions as to the disposition of said funds.
(h) The Specific Performance Order will specifically
authorize and direct AMERCO or its stock transfer agent to
transfer the Maran Shares on the books of AMERCO.
(i) Upon entry of the Specific Performance Order, the
Releases (defined below) will be immediately effective.
RELEASES
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2.13 Contemporaneously with the execution of this Agreement,
the Parties and Timothy have executed the respective "Releases,"
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in the forms attached hereto as Exhibits "B" and "C" and by this
reference incorporated herein (the "Releases"), which will become
effective on the earlier to occur of the Closing Date or entry of
the Specific Performance Order. Should neither of the foregoing
events occur, the Releases will be null and void.
2.14 Mary Anna represents and warrants on behalf of herself
and on behalf of Maran that, notwithstanding that she is a
married woman, her interest in the Share Case Judgment, the
Punitive Damage Judgment, and any claims against the Debtors and
AMERCO which are being released pursuant to this Agreement are
her sole and separate property and sole and separate claims; and
that her spouse, Timothy, has no interest in or claim to the
Share Case Judgment, the Punitive Damage Judgment, any claims
against the Debtors and AMERCO which are being released pursuant
to this Agreement, the Settlement Amount, or the Stock Purchase
Amount. Notwithstanding the foregoing, Timothy has executed, and
has joined with Mary Anna and Maran in executing, the Release in
favor of AMERCO and the Debtors in exchange for, and in
consideration of, AMERCO's and the Debtors' inclusion of Timothy
in the Release which AMERCO and the Debtors have executed in
favor of Mary Anna, Timothy, and Maran.
2.15 Mary Anna, Timothy, and Maran, on behalf of themselves,
and as to their claims only on behalf of any officers, directors,
employees, agents, representatives, attorneys and accountants of
any of them, will release the Debtors, AMERCO, any subsidiary or
affiliate of AMERCO, and any officers, directors, employees,
agents, representatives, attorneys and accountants of any of the
foregoing, pursuant to the "Release" attached hereto as Exhibit
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"B" contemporaneously with the execution of this Agreement, and
subject to Sections 2.13 and 2.14 above.
2.16 AMERCO and the Debtors, on behalf of themselves and any
officers, directors, employees, agents, representatives, attorneys
and accountants of any of them, will release Mary Anna, Timothy,
and Maran and any officers, directors, employees, agents,
representatives, attorneys and accountants of any of them, pursuant
to the "Release" attached hereto as Exhibit "C" contemporaneously
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with the execution of this Agreement, and subject to Sections 2.13
and 2.14 above.
GENERAL PROVISIONS
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2.17 The Parties hereby agree to do such acts, and to
execute such documents, as may be necessary or appropriate to
implement and accomplish the purposes of this Agreement and the
intent of the Parties.
2.18 This Agreement, and the Bankruptcy Court Order
approving this Agreement, will survive any dismissal of the
Reorganization Cases, and will be fully effective and
enforceable.
2.19 The Parties agree that the laws of the State of Arizona,
and the provisions of the United States Bankruptcy Code, 11 U.S.C.
Section Section 101 et seq., will govern and control this Agreement,
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including, but not limited to, any documents executed pursuant to
this Agreement.
2.20 No provision of this Agreement may be waived, modified,
or altered, except by a writing executed by all of the Parties hereto.
2.21 Time and strict performance are of the essence of this
Agreement.
2.22 This Agreement (including, but not limited to, all
exhibits and release provisions) will inure to the benefit of,
and will be binding on, all of the Parties and their respective
heirs, assigns, representatives, and successors in interest of any kind.
2.23 The language of this Agreement has been freely and
voluntarily negotiated between the Parties, each of whom has been
advised and is represented by competent and effective counsel.
The Parties have been fully advised of the legal effect of this
Agreement and have read this Agreement in its entirety or have
had it read to them. By executing this Agreement, the Parties
represent and warrant to each other that each of them understands
the contents of this Agreement. This Agreement is intended to be
enforceable according to its written terms, and there are no
promises, oral agreements, or expectations of the Parties to the
contrary.
2.24 The Parties agree that this Agreement may be executed
in multiple counterparts, each of which will be deemed an
original document, and when all of the Parties hereto have
executed one or more counterparts, all such counterparts, taken
together, will constitute a single agreement.
DATED this 19th day of September, 1995.
AMERCO, a Nevada corporation
By /S/ Gary Klinefelter
____________________
Its Secretary & General Counsel
____________________________
EDWARD J. SHOEN
/S/ Edward J. Shoen
___________________
JAMES P. SHOEN
/S/ James P. Shoen
__________________
AUBREY K. JOHNSON
/S/ Aubrey K. Johnson
_____________________
JOHN M. DODDS
/S/ John M. Dodds
__________________
WILLIAM E. CARTY
/S/ William E. Carty
____________________
MARAN, INC.
By /S/ Mary Anna Shoen Eaton
_________________________
Its President
____________________
MARY ANNA SHOEN EATON
/S/ Mary Anna Shoen Eaton
EXHIBIT "A"
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AFFIDAVIT FORM (LOST STOCK CERTIFICATE)
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AFFIDAVIT
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I, MARY ANNA SHOEN EATON, PRESIDENT OF MARAN, INC., do
hereby certify that Maran, Inc.'s share certificate:
Certificate No. Company Name Number Shares
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5110 AMERCO, a Nevada Corp. 3,343,076
has been lost or misplaced and after diligent search cannot be
found.
I hereby make this statement of lost certificate under
oath in order to induce the Company to transfer Maran, Inc.'s
stock ownership in AMERCO pursuant to the Stock Purchase
Agreement dated September 19, 1995. Maran, Inc. hereby agrees to
hold harmless and indemnify the Company for any loss occasioned
by the reappearance of such certificate.
MARAN, INC.
DATED: ______________ By:_____________________
Mary Anna Shoen Eaton,
President
STATE OF ________________
COUNTY OF ________________
I, Mary Anna Shoen Eaton, President of Maran, Inc.,
being first duly sworn, depose and declare the foregoing to be a
complete and correct statement to the best of my knowledge,
information and belief.
_____________________
Mary Anna Shoen Eaton
Subscribed and sworn to before me this ____ day of
________________, 1995.
_____________
Notary Public
(Notarial Seal)
EXHIBIT "B"
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RELEASE EXECUTED BY MARY ANNA,
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TIMOTHY, AND MARAN
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INCORPORATED BY REFERENCE
TO EXHIBIT 10.5
FILED WITH THE COMPANY'S
QUARTERLY REPORT OF FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 1995,
FILE NO. 0-7862.
EXHIBIT "C"
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RELEASE EXECUTED BY AMERCO AND THE DEBTORS
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INCORPORATED BY REFERENCE
TO EXHIBIT 10.6
FILED WITH THE COMPANY'S
QUARTERLY REPORT OF FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 1995,
FILE NO. 0-7862.