CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF SERIES B PREFERRED STOCK OF
AMERCO
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Pursuant to Section 78.1955(1) of the
General Corporation Law of the State of Nevada
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We, Edward J. Shoen and Gary V. Klinefelter, being the
President and the Secretary, respectively, of AMERCO, a Nevada
corporation (the "Corporation"), do hereby certify that, pursuant
to authority conferred upon the Board of Directors by Article 5
of the Corporation's Restated Articles of Incorporation, and in
accordance with the provisions of Section 78.1955(1) of the
General Corporation Law of the State of Nevada, the Board of
Directors has adopted the following resolutions creating and
providing for the issuance of a series of its preferred stock,
designated Series B Preferred Stock:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of the Corporation by Article 5
of the Restated Articles of Incorporation, a series of
preferred stock is hereby established, the distinctive
designation of which shall be "Series B Preferred
Stock" (the "Series B Preferred") and the
qualifications, limitations, or restrictions thereof to
the extent not heretofore set forth in the Restated
Articles of Incorporation of the Corporation are as set
forth in EXHIBIT A to this resolution.
RESOLVED, that the officers of the Corporation
shall be, and each of them hereby is, authorized,
empowered and directed, for and on behalf of the
Corporation, to take all such actions as any such
officer deems necessary or appropriate in order to
effectuate fully the foregoing resolutions, including
the filing of an appropriate certificate relating to
the Series B Preferred with the Nevada Secretary of
State.
IN WITNESS WHEREOF, we have hereunto set our hands and seals
as President and Secretary, respectively, of the Corporation this
28th day of August, 1996, and we hereby affirm that the foregoing
Certificate is our act and deed and the act and deed of the
Corporation and that the facts stated therein are true.
AMERCO, a Nevada corporation
/S/ EDWARD J. SHOEN
----------------------------------------
Edward J. Shoen,
President
/S/ GARY V. KLINEFELTER
----------------------------------------
Gary V. Klinefelter,
Secretary
STATE OF ARIZONA )
)
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this
28th day of August, 1996, by Edward J. Shoen, the President of
AMERCO, a Nevada corporation, on behalf of the corporation.
/S/ BLANCHE I. PASSOLT
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
11/20/97
- ----------------------
STATE OF ARIZONA )
)
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this
28th day of August, 1996, by Gary V. Klinefelter, the Secretary
of AMERCO, a Nevada corporation, on behalf of the corporation.
/S/ BLANCHE I. PASSOLT
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
11/20/97
- ----------------------
EXHIBIT A
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 A 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 such 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 enti
tled 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
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, combi
nation 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
opinion 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 any 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 affecting
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), deemed 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.
l. "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 at 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 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 not 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.