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2,750,000 Shares
AMERCO
COMMON STOCK
UNDERWRITING AGREEMENT
December __, 1996
Lehman Brothers Inc.
Salomon Brothers Inc
As Representatives of the several
Underwriters named in Schedule I
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
AMERCO, a Nevada corporation (the "Company"), proposes and Paul F.
Shoen and Sophia M. Shoen, stockholders of the Company (the "Selling
Stockholders"), propose to sell an aggregate of 2,750,000 shares (the "Firm
Stock") of the Company's Common Stock, par value $.25 per share (the "Common
Stock"). Of the 2,750,000 shares of the Firm Stock, 2,250,000 are being sold by
the Company and 500,000 by the Selling Stockholders. In addition, the Company
proposes to grant to the Underwriters named in Schedule I hereto (the
"Underwriters") an option to purchase up to an additional 337,500 shares of the
Common Stock on the terms and for the purposes set forth in Section 3 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
concerning the purchase of the Stock from the Company and the Selling
Stockholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to each Underwriter as of the date of this
Agreement and as of each Delivery Date (defined herein) as follows:
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(a) A registration statement on Form S-3 (File No. 333-15485)
with respect to the Stock has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. If
any post-effective amendment to such registration statement has been
filed with the Commission prior to any Delivery Date, the most recent
such amendment has been declared effective by the Commission. Copies of
such registration statement and any amendments thereto have been
delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters.
As used in this Agreement, "Effective Time" means the
date and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of the Effective
Time; "Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 6(a) hereof and deemed
to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
and "Prospectus" means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules
and Regulations. Reference made herein to any Preliminary Prospectus or
to the Prospectus, shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act ("Incorporated Documents"), as of the date
of such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Time that is incorporated by reference in the
Registration Statement. For purposes of this Agreement, all references
to the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval system ("EDGAR"). The
Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus. The Commission has not issued any order
suspending the effectiveness of the Registration Statement, and no stop
order has been issued or threatened by the Commission.
(b) The Registration Statement conformed, on the Effective
Date or (with respect to Incorporated Documents or any Rule 462(b)
Registration Statement) on the date of filing thereof
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with the Commission, in all material respects, to the requirements of
the Securities Act and the Rules and Regulations, and the Registration
Statement on the Effective Date did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
the Prospectus conformed, as of the date hereof and each Delivery Date
(as defined below), in all material respects, to the requirements of
the Securities Act and the Rules and Regulations, and the Prospectus as
of the date hereof and each Delivery Date did not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from any Preliminary Prospectus, the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein (which
information shall be as set forth in Section 10(c)); the documents
incorporated by reference in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as the case
may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Price Waterhouse LLP, whose report is included in the
Prospectus, are independent certified public accountants as required by
the Securities Act. The financial statements and schedules (including
the related notes and supporting schedules) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition, results of operations and changes in
financial condition of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
(d) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation and is in good
standing under the laws of the jurisdiction of its organization, with
full power and authority (corporate and other) to own or lease its
properties and conduct its business as described in the Prospectus and
is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by it or
the location of the properties owned or leased by it make such
qualification necessary, except where the failure so to qualify would
not have a material adverse effect on the condition (financial or
other), stockholders' equity, results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole; and
none of the subsidiaries of the Company, other than any so identified
in Schedule II to this Agreement, is a "Significant Subsidiary," as
such term is defined in Rule 405 of the Rules and Regulations under the
Securities Act.
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(e) The Company has an authorized capitalization as set forth
in the Prospectus, all of the issued shares of capital stock of the
Company, including the Stock to be sold by the Selling Stockholders to
the Underwriters hereunder, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; and all of the issued
shares of capital stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued and are fully paid,
non-assessable (except for the shares of capital stock of Oxford Life
Insurance Company and Republic Western Insurance Company that are
further assessable to the extent of their respective par values in
accordance with Article 14, Section 10 of the Constitution of the State
of Arizona) and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(f) The unissued shares of the Stock to be issued and sold by
the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and
non-assessable and not subject to any rights of first refusal or other
restrictions on transfer, and the Stock will conform to the description
thereof contained in the Prospectus; none of the outstanding shares of
capital stock, including the Stock to be sold by the Selling
Stockholders to the Underwriters hereunder, was issued in violation of
any preemptive or other similar rights of any securityholder of the
Company which have not been waived.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company and is enforceable against the Company in
accordance with its terms.
(h) Except as described in or contemplated by the Prospectus,
there has not been any material adverse change in, or adverse
development that materially affects, the condition (financial or
other), stockholders' equity, results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole, from
the date as of which information is given in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under its respective articles or certificate
of incorporation or by-laws, or any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them is bound, or
to which any of their properties is subject, where such violation or
default would have a material adverse effect on the condition
(financial or other), stockholders' equity, results of operations,
assets, business or prospects of the Company and its subsidiaries taken
as a whole. The execution and delivery, fulfillment and consummation of
the transactions contemplated by this Agreement will not conflict with
or constitute a breach of, or a default (with the passage of time or
the giving of notice or otherwise) under, or result in the imposition
of a lien on any properties of the Company or any of its subsidiaries,
or an acceleration of indebtedness pursuant to, the articles or
certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or other
material agreement or instrument to which the
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Company or any of its subsidiaries is a party or by which it or any of
them is bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, or any law, rule, administrative
regulation, order or decree of any court or any governmental agency or
body having jurisdiction over the Company, any of its subsidiaries or
any of their respective properties. Except for the orders of the
Commission declaring the Registration Statement effective under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and permits and similar authorizations required under the
securities or "Blue Sky" laws of certain jurisdictions, no consent,
approval, authorization or order of any court, governmental agency or
body or financial institution is required in connection with the
transactions contemplated by this Agreement.
(j) Except as described in the Prospectus, the Company has not
sold or issued any shares of capital stock or issued any options on
convertible securities that give the holder thereof the right to
acquire any shares of Common Stock, during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act other
than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(k) Subsequent to the respective dates as of which information
is given in the Registration Statement, any Preliminary Prospectus and
the Prospectus, and prior to each Delivery Date, neither the Company
nor any of its subsidiaries has incurred or will have incurred any
liabilities or obligations for borrowed money, direct or contingent,
declared or paid any dividend on its capital stock or entered into any
transactions not in the ordinary course of business which would have a
material adverse effect on the condition (financial or other),
stockholders' equity, results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole.
(l) The Company and each of its subsidiaries owns, or has
valid rights to use in the manner currently used or proposed to be
used, all items of real and personal property which are material and
which they reasonably believe are necessary to the business of the
Company and its subsidiaries taken as a whole (including without
limitation all U-Haul Centers, manufacturing facilities, assembly
facilities and service centers described or referred to in the
Prospectus), free and clear of all liens, encumbrances and claims which
may materially interfere with the use thereof or have a material
adverse effect on the condition (financial or other), stockholders'
equity, results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole.
(m) Except as described in the Prospectus, the Company and
each of its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and
as is customary for companies engaged in similar businesses in similar
industries.
(n) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge
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of the Company, contemplated against the Company or any of its
subsidiaries which might result in any material adverse change in the
condition (financial or other), stockholders' equity, results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) Neither the Company nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject that might have a material
adverse effect on the condition (financial or other), stockholders'
equity, results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole.
(p) All licenses, permits or registrations required for the
business of the Company and each of its subsidiaries, as presently
conducted and proposed to be conducted, under any federal, state or
local laws, regulations or ordinances (including those related to
consumer protection, protection of the environment and regulation of
franchising) have been obtained or made, other than any such licenses,
permits or registrations, the failure of which to be obtained or made,
either individually or in the aggregate, would not have a material
adverse effect on the condition (financial or other), stockholders'
equity, results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole, and each of the Company
and its subsidiaries is in compliance with all such licenses, permits
or registrations.
(q) Except as disclosed in the Prospectus, the Company and its
subsidiaries comply in all material respects with all Environmental
Laws (as defined below), except to the extent that failure to comply
with such Environmental Laws could not have a material adverse effect
on the condition (financial or other), stockholders' equity, results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is the subject of any
pending or threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any of its subsidiaries
is needed to respond to a release of any Hazardous Materials (as
defined below) into the environment, resulting from the Company's or
any of its subsidiaries' business properties or assets or is in
contravention of any Environmental Law that could have a material
adverse effect on the condition (financial or other), stockholders'
equity, results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole. Except as disclosed in
the Prospectus, neither the Company nor any of its subsidiaries has
received any notice or claim, nor are there pending or threatened
lawsuits against them, with respect to violations of any Environmental
Law or in connection with any release of any Hazardous Material into
the environment that, in the aggregate, if the subject of any
unfavorable decision, ruling or finding, could have a material adverse
effect on the condition (financial or other), stockholders' equity,
results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole. As used herein, "Environmental Laws"
means any federal, state or local law, regulation, permit, rule or
order of any governmental authority, administrative body or court
applicable to the Company's or any of its subsidiaries' business
operations or the ownership or possession of any of their properties or
assets relating to environmental matters, and "Hazardous Materials"
means those substances that are regulated by or form the basis of
liability under any Environmental Laws.
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(r) Except as described in the Prospectus and set forth on
Schedule III to this Agreement, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right (A) to require the Company to file the Registration Statement
or any other registration statement under the Securities Act (other
than a registration statement on Form S-8) with respect to any
securities of the Company owned or to be owned by such person or (ii)
to require the Company to include such securities owned or to be owned
by such person among the securities registered pursuant to the
Registration Statement or any other registration statement filed by the
Company under the Securities Act.
(s) There are no contracts or other documents that are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or (with
regard to documents required to be filed as exhibits) filed as exhibits
to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(t) No relationship, direct or indirect, exists between or
among the Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other hand,
which is required to be described in the Prospectus and which is not so
described.
(u) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940, as amended, and the rules
and regulations thereunder (collectively, the "Investment Company
Act").
(v) The Company is in compliance with all provisions of
Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder severally represents and warrants to each
Underwriter as of the date of this Agreement and as of the First Delivery Date
(as defined herein) as follows:
(a) The Selling Stockholder has, and immediately prior to the
First Delivery Date the Selling Stockholder will have, good and valid
title to the shares of Stock to be sold by the Selling Stockholder
hereunder on such date, free and clear of all liens, encumbrances,
equities or claims, and full right, power and authority to sell,
assign, transfer and deliver such shares to be sold by the Selling
Stockholder hereunder; and, upon delivery of such shares and payment
therefor pursuant hereto, good and valid title to such shares, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
(b) The Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with ChaseMellon
Shareholder Services, L.L.C., as custodian (the "Custodian"), for
delivery under this Agreement, certificates in negotiable form (with
signature guaranteed by a commercial bank or trust company having an
office or correspondent in the United States or a member firm of the
New York or American Stock Exchanges) representing the shares of Stock
to be sold by the Selling Stockholder hereunder.
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(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney") appointing
the Custodian and one or more other persons, as attorneys-in-fact, with
full power of substitution, and with full authority (exercisable by any
one or more of them) to execute and deliver this Agreement and to take
such other action as may be necessary or desirable to carry out the
provisions hereof on behalf of the Selling Stockholder.
(d) The Selling Stockholder has full right, power and
authority to enter into this Agreement, the Custody Agreement and the
Power of Attorney; the execution, delivery and performance of this
Agreement, the Custody Agreement and the Power of Attorney by the
Selling Stockholder constitutes the valid and binding agreement of such
Selling Stockholder and is enforceable against such Selling Stockholder
in accordance with its terms, and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other material agreement or instrument to
which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets of the
Selling Stockholder is subject, nor will such actions result in any
violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder; and,
except for the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and such
permits and similar authorizations as may be required under the
securities or "Blue Sky" laws of certain jurisdictions in connection
with the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Custody
Agreement or the Power of Attorney by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby.
(e) The Registration Statement on the Effective Date did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading to the extent that such statements or
omissions were made in reliance upon and in conformity with information
furnished or confirmed in writing to the Company by the Selling
Stockholders expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto (such information
herein the "Selling Stockholder Information"). Without having
undertaken to determine independently the accuracy or completeness of
either the representations and warranties of the Company contained in
Section 1 hereof or the information (other than Selling Stockholder
Information) contained in the Registration Statement, including the
Prospectus (and any amendment or supplement thereto), the Selling
Stockholder (A) does not have any actual knowledge that the
representations and warranties of the Company contained in Section 1
hereof are not true and correct; and (B) is familiar with the
Registration Statement and does not have any actual knowledge that the
Registration Statement contains any untrue statements of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; except that
the foregoing shall not apply to statements in or omissions from any
such document (A) made in reliance upon, and in
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conformity with, written information furnished to the Company by the
Underwriters specifically for use in the preparation thereof or (B) to
the extent, if any, such statements or omissions are inconsistent with
Selling Stockholder Information.
(f) The Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in Section 1
hereof are not materially true and correct, is familiar with the
Registration Statement and the Prospectus and has no knowledge of any
material fact, condition or information not disclosed in the
Registration Statement, as of the effective date, or the Prospectus, as
of the date thereof and the Delivery Date, which has adversely affected
or may adversely affect the business of the Company and is not prompted
to sell shares of Common Stock by any information concerning the
Company which is not set forth in the Registration Statement and the
Prospectus.
(g) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the Stock.
(h) Neither the Selling Stockholder, nor any of such Selling
Stockholder's affiliates (as defined in Rule 2720(b) of the NASD
Conduct Rules), directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has other association with, any member firm of the
National Association of Securities Dealers, Inc. (the "NASD").
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,250,000 shares of
the Firm Stock and each of Paul F. Shoen and Sophia M. Shoen hereby agrees to
sell 300,000 shares and 200,000 shares, respectively, of the Firm Stock,
severally and not jointly, to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule I hereto.
Each Underwriter shall be obligated to purchase from the Company, and from each
Selling Stockholder, that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be sold by the
Company, and by each Selling Stockholder, as the number of shares of the Firm
Stock set forth opposite the name of such Underwriter in Schedule I represents
of the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option
to purchase up to 337,500 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule I hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the
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Representatives so that no Underwriter shall be obligated to purchase Option
Stock other than in 100 share amounts. The price of both the Firm Stock and any
Option Stock shall be $___ per share.
The Company and the Selling Stockholders shall not be
obligated to deliver any of the Stock to be delivered on the First Delivery Date
or the Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the Stock to be purchased on such Delivery Date as provided
herein.
4. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of
the Firm Stock, the several Underwriters propose to offer the Firm Stock for
sale upon the terms and conditions set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the office of Milbank, Tweed, Hadley
& McCloy, at 10:00 A.M., New York City time, on the third full business day
following the date of this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the Company. This date
and time are sometimes referred to as the "First Delivery Date." On the First
Delivery Date, the Company and the Selling Stockholders shall deliver or cause
to be delivered certificates representing the Firm Stock to the Representatives
for the account of each Underwriter against payment to or upon the order of the
Company and the Selling Stockholders of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Firm Stock
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company and the Selling
Stockholders shall make the certificates representing the Firm Stock available
for inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement the option granted in Section 3 may be exercised in whole or in
part, at any time and from time to time, upon written notice being given to the
Company by the Representatives. Such notice shall set forth the aggregate number
of shares of Option Stock as to which the option is being exercised, the names
in which the shares of Option Stock are to be registered, the denominations in
which the shares of Option Stock are to be issued and the date and time, as
determined by the Representatives, when the shares of Option Stock are to be
delivered; provided, however, that this date and time shall not be earlier than
the First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised. The date and
time the shares of Option Stock are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second Delivery Date
are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined
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by agreement between the Representatives and the Company) at 10:00 A.M., New
York City time, on the Second Delivery Date. On the Second Delivery Date, the
Company shall deliver or cause to be delivered the certificates representing the
Option Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Stock, the Company shall make the certificates representing the Option Stock
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the Second
Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus (i) pursuant to Rule 424(b)
within the time period prescribed by the Rules and Regulations; to make
no further amendment or any supplement to the Registration Statement or
to the Prospectus prior to each Delivery Date except as permitted
herein; to notify the Representatives, promptly after it receives
notice, of the time when the Registration Statement or any amendment
thereto becomes effective or promptly after the filing of any
supplement or amendment to the Prospectus (other than any Incorporated
Document or any amendment or supplement relating to an offering of
securities other than the Stock) and to furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a Prospectus is required in connection with the
offering of Stock; to notify the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission and each amendment
thereto filed with the Commission, including in each case all consents
and exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies
of the Registration Statement, including all exhibits thereto, any
Preliminary Prospectus, the Prospectus and all amendments and
supplements to such documents (including the Incorporated Documents),
in each case as soon as available and in such quantities as are
reasonably requested;
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(d) As soon as practicable, but not later than 18 months after
the Effective Date, to make generally available to its security holders
and to the Representatives an earnings statement of the Company and its
subsidiaries conforming with the requirements of Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158),
covering a period of at least 12 months beginning on the first day of
the first fiscal quarter of the Company commencing after the later of
(i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission;
(e) For a period of five years following the Effective Date,
to furnish to the Representatives copies of all materials furnished by
the Company to its securityholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchanges upon which the securities of
the Company may be listed pursuant to requirements of or agreements
with such exchanges or to the Commission pursuant to the Exchange Act
or the applicable rules and regulations of the Commission thereunder;
(f) Promptly to take such action as the Representatives
reasonably may request to qualify the Stock for offering and sale under
the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Stock; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject;
(g) For a period of 120 days from the date of the Prospectus,
not to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person at
any time in the future, of) any shares of common stock of the Company
or any securities convertible into or exercisable or exchangeable for
shares of common stock of the Company (other than the Stock and shares
issued pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans existing on the date hereof), or
sell or grant options, rights or warrants with respect to any shares of
common stock of the Company or any securities convertible into or
exercisable or exchangeable for shares of common stock of the Company
(other than the grant of options pursuant to option plans existing on
the date hereof), or enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of shares of the
common stock of the Company, without the prior consent of the
Representatives;
(h) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus;
(i) Prior to the Effective Date, to apply for the listing or
inclusion of the Stock on the Nasdaq National Market System and to use
its best efforts to complete such listing, subject only to official
notice of issuance, prior to the First Delivery Date;
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(j) If it commences engaging in business with the government
of Cuba or with any person or affiliate located in Cuba after the date
the Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported
in the Prospectus, if any, concerning the Company's business with Cuba
or with any person or affiliate located in Cuba changes in any material
way, to provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department;
(k) To notify the Underwriters promptly of any downgrading in
the rating accorded any debt securities of the Company prior to each
Delivery Date, or any proposal to downgrade the rating of any debt
securities of the Company, by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations under the
Securities Act, or any public announcement that any such organization
has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities promptly after the
Company learns of such downgrading, proposal to downgrade or public
announcement; and
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act.
7. Further Agreements of the Selling Stockholder. Each Selling
Stockholder agrees:
(a) That the Stock to be sold by such Selling Stockholder
hereunder, which is represented by the certificates held in custody for such
Selling Stockholder, is subject to the interest of the Underwriters and the
other Selling Stockholders thereunder, that the arrangements made by such
Selling Stockholder are to that extent irrevocable, and that the obligations of
such Selling Stockholder hereunder shall not be terminated by any act of such
Selling Stockholder, by operation of law, by the death or incapacity of any
individual Selling Stockholder or by the occurrence of any other event.
(b) To promptly notify the Representatives of any change in
the veracity of any information contained in the Preliminary Prospectus,
Registration Statement or Prospectus regarding such Selling Stockholder.
(c) To deliver to the Representatives prior to the First
Delivery Date a properly completed and executed United States Treasury
Department Form W-9.
8. Expenses. The Company shall pay or cause to be paid (A) all
expenses (including any associated taxes) incurred in connection with the
authorization, issuance, sale and delivery of the Stock sold by the Company to
the Underwriters, (B) all fees and expenses (including, without limitation, fees
and expenses of the Company's accountants and counsel, but excluding fees and
expenses of counsel for the Underwriters except as set forth in clauses (C) and
(D) below or as otherwise agreed to by the Company) in connection with the
preparation, printing, filing, delivery and shipping of any Preliminary
Prospectus, the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), the Prospectus and any
amendments or supplements thereto and any documents incorporated by reference
into any of the foregoing and the printing, delivery and shipping
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of this Agreement and other underwriting documents, including, but not limited
to, any required questionnaires, Powers of Attorney, Blue Sky Memoranda,
Agreements Among Underwriters, the Custody Agreement, the Power of Attorney,
Selected Dealer Agreements and any legal investment survey, (C) all filing fees
and fees and disbursements and expenses of counsel to the Underwriters incurred
in connection with the qualification of the Securities under state securities
laws as provided in Section 6(f) hereof, (D) the filing fee of the National
Association of Securities Dealers, Inc., if any, and fees and disbursements and
expenses of counsel to the Underwriters in connection with any application to,
and any review of the offering of the Stock conducted by, the National
Association of Securities Dealers, Inc., including the preparation of materials
therefor, (E) any applicable listing or other fees, (F) the cost and charges of
any transfer agent or registrar and (G) all other costs and expenses incident to
the performance of its obligations hereunder for which provision is not
otherwise made in this Section . It is understood, however, that, except as
provided in this Section 8, each of the Underwriters shall pay all of its own
costs and expenses, including the fees of its counsel (except as set forth in
clauses (C) and (D) above or as otherwise agreed to by the Company) and any
advertising expenses incurred in connection with any offers it may make and that
neither the Underwriters nor the Company shall have any responsibility for costs
and expenses of the Selling Stockholders except as may be set forth in any
pre-existing written agreement. If the sale of the Stock provided for herein is
not consummated because any condition to the obligations of the Underwriters set
forth in Section 9 hereof is not satisfied, because of any termination pursuant
to Section 12 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters as described
in Section 11 hereof, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Stock, including in connection with
any investigation or preparation made by them in respect of the marketing of the
Stock or in contemplation of the performance by them of their obligations
hereunder.
9. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Stockholders contained herein, to the accuracy of the statements
of the Company's officers made in any certificate furnished pursuant to the
provisions of this Agreement, to the performance by the Company and the Selling
Stockholders of its obligations under this Agreement and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the Rules and Regulations and in accordance with
Section 6(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof nor any order directed to
any document incorporated by reference in any Prospectus shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or any Prospectus or otherwise shall have been complied with.
No order suspending the sale of the Stock in any jurisdiction
designated by the Representatives pursuant to Section 6(f) shall have
been issued, and no proceeding for that purpose shall have been
initiated or threatened.
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(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or any Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Custody
Agreement, the Power of Attorney, the Stock, any Preliminary
Prospectus, the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement, and the transactions
contemplated hereby and thereby, shall be satisfactory in all material
respects to counsel for the Underwriters, and the Company and the
Selling Stockholders shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives
the opinion, addressed to the Underwriters, of Snell & Wilmer L.L.P.,
counsel for the Company, dated as of each Delivery Date, to the effect
that:
(i) each of the Company, Oxford Life Insurance Company,
an Arizona corporation, and Republic Western Insurance
Company, an Arizona corporation, has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Nevada or the State of Arizona,
as the case may be, with full corporate power and authority to
own or lease its properties and conduct its business as
described in the Prospectus and to carry out the transactions
contemplated hereunder, and each of Amerco Real Estate
Company, a Nevada corporation, and U-Haul International, Inc.,
a Nevada corporation, is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
the State of Arizona;
(ii) the Company has an authorized capitalization as set
forth in the Prospectus and all the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the
Prospectus, and all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly and
validly authorized and issued are fully paid and
non-assessable (except for the shares of capital stock of
Oxford Life Insurance Company and Republic Western Insurance
Company that are further assessable to the extent of their
respective par values in accordance with Article 14, Section
10 of the Constitution of the State of Arizona) and, to the
best of such counsel's knowledge after due inquiry, are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock being offered hereunder
by the Company, and no rights of first refusal affecting such
Stock, pursuant
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to the Company's articles of incorporation or by-laws or any
agreement or other instrument known to such counsel;
(iv) to the best knowledge of such counsel, there is no
franchise, contract or other document of a character required
to be described in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required or
incorporated therein by reference as permitted by the Rules
and Regulations; and the statements included or incorporated
in the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(v) the Registration Statement has become effective under
the Securities Act; any required filing of any Preliminary
Prospectus and the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Prospectus (other than with
respect to financial statements and other financial and
statistical information, as to which such counsel need express
no opinion) comply as to form in all material respects with
the applicable requirements of the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder; and the documents incorporated by reference in the
Prospectus and any further amendment or supplement to any such
incorporated document made by the Company prior to such
Delivery Date (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;and such counsel has
no reason to believe that at the Effective Date the
Registration Statement (other than with respect to financial
statements and other financial and statistical information, as
to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than with respect to financial statements
and other financial and statistical information, as to which
such counsel need express no opinion) at its date and at such
Delivery Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except
such as have been obtained under the Securities Act and such
as may be required under the Blue Sky laws of any jurisdiction
in connection with the purchase
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and distribution of the Stock by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
(viii) the Stock conforms in all material respects to
the description thereof contained in the Prospectus;
(ix) the issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not (a) conflict with the articles of
incorporation or by-laws of the Company or any of its
Significant Subsidiaries or (b) result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such actions result in any
violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties or assets,
except (with regard to clause (b)) for such breaches,
violations, or defaults as would not have a material adverse
effect on the condition (financial or other), results of
operations, assets, business, or prospects of the Company and
its Subsidiaries taken as a whole.
(x) to the best of such counsel's knowledge, except as
described in the Prospectus and set forth on Schedule III to
this Agreement, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right (A) to require the Company to file the
Registration Statement or any other registration statement
under the Securities Act (other than a registration statement
on Form S-8) with respect to any securities of the Company
owned or to be owned by such person or (ii) to require the
Company to include such securities owned or to be owned by
such person among the securities registered pursuant to the
Registration Statement or any other registration statement
filed by the Company under the Securities Act; and
(xi) the Company is not, and is not directly or
indirectly controlled by, or acting on behalf of any person or
entity which is, an "investment company" within the meaning of
the Investment Company Act.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any jurisdiction
other than the State of Arizona, the State of Nevada or the United
States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Underwriters, (B) as to
matters involving the application of the laws of the State of Nevada,
upon the opinion delivered pursuant to Section 9(e) and, (C) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. Such counsel
may assume, for the purposes of such opinion and without investigation,
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that the substantive laws of the State of New York do not materially
differ from the substantive laws of the State of Arizona, and such
counsel need express no opinion as to the laws of New York or their
applicability to the matters covered by such opinion. References to the
Prospectus in this paragraph (d) include any supplements thereto at
each Delivery Date.
(e) The Representatives shall have received on each Delivery
Date an opinion, addressed to Snell & Wilmer L.L.P. and the
Representatives, of Lionel, Sawyer & Collins, counsel for the Company,
dated such Delivery Date, to the effect that:
(i) each of the Company, Amerco Real Estate Company, a
Nevada corporation, U-Haul International, Inc., a Nevada
corporation, Ponderosa Holdings, Inc., a Nevada corporation,
and U-Haul Leasing and Sales Co., a Nevada corporation (each,
a "Nevada Subsidiary" and, collectively, the "Nevada
Subsidiaries"), has been duly organized and is validly
existing as a corporation and is in good standing under the
laws of the State of Nevada, with full power and authority to
own or lease its properties and conduct its business as
described in the Prospectus and to carry out the transactions
contemplated hereunder and in the Prospectus;
(ii) the Company has an authorized capitalization as set
forth in the Prospectus and all the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus
in all material respects, and all of the issued shares of
capital stock of each Nevada Subsidiary have been duly and
validly authorized and issued are fully paid and
non-assessable and, to the best of such counsel's knowledge
after due inquiry, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims;
(iii) there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock, and no rights of first
refusal affecting the Stock, pursuant to the Company's
charter, articles or certificate of incorporation or by-laws
or any agreement or other instrument known to such counsel;
(iv) no consent, approval, authorization or order of any
court or governmental agency or body of the State of Nevada is
required for the consummation of the transactions contemplated
herein, except such as have been obtained under the Securities
Act and such as may be required under the Blue Sky laws of any
jurisdiction in connection with the purchase and distribution
of the Stock by the Underwriters and such other approvals
(specified in such opinion) as have been obtained; and
(v) neither the issuance and sale of the Stock nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or
constitute a default under any law or the articles or
certificate of incorporation or by-laws of the Company or any
of the Nevada Subsidiaries or any bond, debenture, note or any
other evidence of indebtedness of any indenture, mortgage,
deed of trust or other material agreement or instrument known
to
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such counsel and to which the Company or any of the Nevada
Subsidiaries is a party or bound or any judgment, order or
decree known to such counsel to be applicable to the Company
or any of the Nevada Subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the Nevada
Subsidiaries.
As used therein, the phrase "known to counsel" means
to such counsel's Actual Knowledge as Actual Knowledge is defined in
the Legal Opinion Accord of the ABA Section of Business Law (1991).
Such counsel need express no opinion as to laws other than the laws of
the State of Nevada and the federal laws of the United States of
America.
Such counsel may further assume information as to
certain contacts between the jurisdictions of New York and the
transactions contemplated herein, including the following:
(a) substantial negotiations relating to such
transactions have taken place in the State of New York,
(b) the Company is executing and delivering the Stock
in New York to raise proceeds for capital expenditures, working capital
and for certain other lawful and authorized ends, and
(c) the Representatives, as well as the external
counsel representing the Underwriters in connection with such
transactions, have their principal offices in the State of New York,
and negotiations in connection with such transactions have taken place
in certain of their offices, including such offices in New York.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any jurisdiction
other than the State of Nevada or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters, (B) as to matters
involving the laws of the State of Arizona, upon the opinion delivered
pursuant to Section 5(d), and (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph
(e) include any supplements thereto at each Delivery Date.
(f) The Representatives shall have received on the First
Delivery Date an opinion, addressed to the Representatives, of Grover
T. Wickersham, P.C., counsel for the Selling Shareholders, dated the
First Delivery Date, to the effect that:
(i) each Selling Stockholder has full right, power and
authority to enter into this Agreement, the Custody Agreement
and the Power of Attorney; the execution, delivery and
performance of this Agreement, the Custody Agreement and the
Power of Attorney by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or
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instrument known to such counsel to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such
Selling Stockholder is subject, nor will such actions result
in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling
Stockholder or the property or assets of such Selling
Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act, permits and similar
authorizations required under the Blue Sky laws of certain
jurisdictions in connection with the purchase and distribution
of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the
Custody Agreement or the Power of Attorney by such Selling
Stockholder and the consummation by such Selling Stockholder
of the transactions contemplated hereby and thereby;
(ii) this Agreement has been duly executed and delivered
by or on behalf of such Selling Stockholder;
(iii) a Custody Agreement and a Power of Attorney have been
duly executed and delivered by such Selling Stockholder and
constitute valid and binding agreements of such Selling
Stockholder, enforceable in accordance with their respective
terms;
(iv) immediately prior to the First Delivery Date, such
Selling Stockholder had good and valid title to the shares of
Stock to be sold by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities
or claims, and full right, power and authority to sell,
assign, transfer and deliver such shares to be sold by such
Selling Stockholder hereunder; and upon delivery of such
shares and payment therefor pursuant to this Agreement, good
and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims will pass to the several
Underwriters; and
(v) there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock being offered hereunder
by the Selling Stockholders, and no rights of first refusal
affecting such Stock, pursuant to the Company's articles of
incorporation or by-laws or any agreement or other instrument
known to such counsel.
In rendering such opinion, such counsel may
(i) state that their opinion is limited to matters governed by
the Federal laws of the United States of America and the laws
of the State of California and (ii) in rendering the opinion
in Section 9(f)(iv) above, rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on
the shares of Stock sold by such Selling Stockholder, provided
that such counsel shall furnish copies thereof to the
Representatives and state that they believe that both the
Underwriters and they are justified in relying upon such
certificate. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the
Underwriters and dated the
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First Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted
as counsel to such Selling Stockholder on a regular basis and
has acted as counsel to such Selling Stockholder in connection
with the preparation of the Registration Statement, and (y)
based on the foregoing, no facts have come to the attention of
such counsel which lead them to believe that the Registration
Statement, as of the Effective Date, contained any untrue
statement of a material fact relating to such Selling
Stockholder or omitted to state such a material fact required
to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus
contains any untrue statement of a material fact relating to
such Selling Stockholder or omits to state such a material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Preliminary Prospectus, the Registration
Statement or the Prospectus.
(g) The Representatives shall have received on each Delivery
Date an opinion, addressed to the Representatives, of Gary V.
Klinefelter, Secretary and General Counsel of the Company, dated the as
of each Delivery Date, to the effect that:
(i) each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full power and authority to
own or lease its properties and conduct its business as
described in the Prospectus and to carry out the transactions
contemplated hereunder, and is duly qualified to do business
as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts
material business;
(ii) all the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable (except for the shares of
capital stock of Oxford Life Insurance Company and Republic
Western Insurance Company that are further assessable to the
extent of their respective par values in accordance with
Article 14, Section 10 of the Constitution of the State of
Arizona), and, except as otherwise set forth in the Prospectus
and, except for the shares of capital stock of Picacho Peak
Investment Co., all outstanding shares of capital stock of the
subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests,
claims, liens or encumbrances;
(iii) there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Prospectus, and there is no franchise, contract or other
document of a character required to be described in any
Preliminary
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Prospectus, the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated in the
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of this Agreement
or the issuance and sale of the Stock nor the consummation of
any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof, will conflict with, result in
a breach or violation of or constitute a default under any law
or the articles or certificate of incorporation or by-laws of
the Company or any of its subsidiaries or any bond, debenture,
note or any other evidence of indebtedness of any indenture,
mortgage, deed of trust or other material agreement or
instrument and to which the Company or any of its subsidiaries
is a party or bound or any judgment, order or decree to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries; and
(v) to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and
the Prospectus (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel has
no reason to believe that at the Effective Date the
Registration Statement (other than the financial statements
and other financial and statistical information contained
therein, as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statements and
other financial and statistical information contained therein,
as to which such counsel need express no opinion) at its date
and at such Delivery Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(vi) the Company and each of its subsidiaries owns, or
has valid rights to use in the manner currently used or
proposed to be used to all real and personal property which
are material, in each case free and clear of all liens,
encumbrances and claims which may materially interfere with
the use thereof or have a material adverse effect on the
condition (financial or other), stockholders' equity, results
of operations, assets, business or prospects of the Company
and its subsidiaries;
(vii) to the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the
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Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(h) The Representatives shall have received from Milbank,
Tweed, Hadley & McCloy, counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and
sale of the Stock, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(i) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated each Delivery Date, to the effect that the signers of
such certificate have carefully examined the Preliminary Prospectus,
the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of such Delivery
Date with the same effect as if made on such Delivery Date and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to such Delivery Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other) stockholders' equity,
results of operations, assets, business or prospects of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(k) On the date hereof, the Company shall have furnished, and
on each Delivery Date, the Company shall furnish, a letter addressed to
the Representatives, in form and substance satisfactory to the
Representatives, from Price Waterhouse LLP, independent public
accountants, containing the statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information relating to the Company contained or incorporated by
reference into the Registration Statement and the Prospectus.
(l) Subsequent to dates as of which information is given in
the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto),
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there shall not have been (i) any change in the capital stock or
long-term debt of the Company and its subsidiaries, taken as a whole,
or (ii) any change in or affecting the condition (financial or other),
stockholders' equity, results of operations, assets, business or
prospects of the Company and its subsidiaries, taken as a whole, which
in any case referred to in clause (i) or (ii) above, in the judgment of
the Representatives, materially impairs the investment quality of the
Stock.
(m) Prior to such time, none of the following shall have
occurred: (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the National Association of Securities
Dealers Automated Quotation National Market System or any other
national exchange on which such securities may be listed or trading in
the Company's Series A 8 1/2% Preferred Stock shall have been suspended
by the Commission or the New York Stock Exchange or any other national
exchange on which such securities may be listed, or trading in
securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotation National Market
System shall have been suspended or limited or minimum prices shall
have been established on either such Exchange or Market System, (ii) a
banking moratorium shall have been declared either by Federal or New
York State authorities, (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crises or (iv) any
material adverse change in the existing financial, political or
economic conditions in the United States, including any effect of
international conditions on the financial markets in the United States,
the effect of which is to make it, in the judgment of the
Representatives, impractical or inadvisable to proceed with the
solicitation of offers to purchase the Stock or the purchase of the
Stock from the Company, as the case may be.
(n) Prior to such time, there shall not have been any decrease
in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(o) Prior to each Delivery Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(p) At the date of this Agreement, the Representatives shall
have received a lock-up agreement substantially in the form of Exhibit
A hereto signed by Edward J. Shoen, Mark V.
Shoen and James P. Shoen.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel for the Representatives.
10. Indemnification and Contribution.
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(a) The Company shall indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which
that Underwriter, director, officer, employee, agent or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of
qualifying any or all of the Stock under the securities laws of any
state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii)
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Stock or the offering contemplated
hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct)
and shall reimburse each Underwriter, the directors, officers,
employees and agents of each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee, agent or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement or in any Blue Sky
Application in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein (which information shall be determined as set forth
in Section 10(c)); and provided, further, that as to any Preliminary
Prospectus or supplement thereto this indemnity agreement shall not
inure to the benefit of any Underwriter, the directors, officers,
employees and agents of each Underwriter or any person controlling that
Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Stock to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as
the same may be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus or supplement
thereto was corrected in that Prospectus, unless such failure resulted
from non-compliance by the Company with Section 6(c). For purposes of
the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated by
reference
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therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
Preliminary Prospectus or supplement thereto or the Prospectus to any
person other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written request therefor. The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling
director, officer, employee, agent or person of that Underwriter.
(b) The Selling Stockholders, jointly and severally, shall
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, director, officer, employee, agent
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein, any material fact required to be stated
therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by
any Underwriter in connection with, or relating in any manner to, the
Stock or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii)
above (provided that the Selling Stockholders shall not be liable under
this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct), but in each case
only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance on and
in conformity with Selling Stockholder Information, and shall reimburse
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by that Underwriter, director, officer and
employee, agent or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Selling Stockholders shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
in any such amendment or supplement or in any Blue Sky Application in
reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein
(which information shall be determined as set forth in Section 10(c))
and provided, further, that as to any Preliminary Prospectus or
supplement thereto this indemnity agreement shall not inure to the
benefit of any Underwriter, the directors, officers, employees and
agents of each Underwriter or any person controlling that Underwriter
on account of any loss, claim, damage, liability or action arising from
the sale of Stock to any person by that Underwriter if that Underwriter
failed to send or
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give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities
Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus or supplement thereto was corrected in that
Prospectus. For purposes of the second proviso to the immediately
preceding sentence, the term Prospectus shall not be deemed to include
the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any
document incorporated by reference in a Preliminary Prospectus or
supplement thereto or the Prospectus to any person other than a person
to whom such Underwriter has delivered such incorporated documents in
response to a written request therefor. Notwithstanding the provisions
of this Section 10(b), the Selling Stockholders' aggregate liability
under this Section 10(b) shall be limited to an amount equal to the
total net proceeds from the sale of the Stock (before deducting
expenses) received by the Selling Stockholders pursuant to this
Agreement. The foregoing indemnity agreement is in addition to any
liability which the Selling Stockholder may otherwise have to any
Underwriter or any director, officer, employee, agent or controlling
person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company),
each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the
Securities Act, and each Selling Stockholder from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer,
controlling person or Selling Stockholder may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement or a material fact contained (A)
in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (B) in any Blue
Sky Application or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or the
Selling Stockholders through the Representatives by or on behalf of
that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer, controlling
person or Selling Stockholder for any legal or other expenses
reasonably incurred by the Company or any such director, officer,
controlling person or Selling Stockholder in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
any Underwriter may otherwise have to the Company or any such director,
officer, controlling person or Selling Stockholder. The Underwriters
severally confirm and the Company and the Selling Stockholders
acknowledge that the statements with respect to the public offering of
the Stock by the Underwriters set forth on the cover page of, the
legends on the inside front cover page of and the information contained
under the caption "Underwriting" in, the Prospectus constitute the only
information concerning such Underwriters furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion
in the Preliminary Prospectus, the Registration Statement and the
Prospectus.
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(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 10 the indemnified party shall notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ
counsel to represent jointly the Representatives and those other
Underwriters and their respective directors, officers, agents and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Company or any Selling Stockholder under this Section 10,
if, in the reasonable judgment of the Representatives, there are legal
defenses available to them which are different from or in addition to
those available to such indemnifying party (it being understood that
the Company and Selling Stockholders shall not, in connection with any
one such claim or action or separate but substantially similar or
related claims or actions in the same jurisdiction arising out of the
same allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (other than
local counsel which shall be engaged only for purposes of appearing
with such counsel in such jurisdictions in which such firm of attorneys
is not licensed to practice)), and in that event the fees and expenses
of such separate counsel shall be paid by the Company and the Selling
Stockholder. An indemnifying party will not, without the prior written
consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding and an indemnifying party shall not be
liable for any settlement of any claim or action effected without its
written consent (which consent shall not be unreasonably withheld).
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 10(a), 10(b) or 10(c) in respect of
any loss, claim, damage or liability, or any action in respect thereof,
referred to therein (other than by reason of the failure to give
notice, as provided in the first section of Section 10(d)), then each
indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified
party as a
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result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders
on the one hand and the Underwriters on the other from the offering of
the Stock or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Selling Stockholders
on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and any Underwriters on
the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the sale of the Stock
(before deducting expenses) received by the Company and the Selling
Stockholders on the one hand, and the total commissions received by the
Underwriter with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company and
Selling Stockholders or any Underwriter, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to in this Section 10(e). The amount paid or
payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this
Section 10(e) shall be deemed to include, for purposes of this Section
10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
10(e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which Stock
underwritten by it through such Underwriter and distributed to the
public was offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Underwriter's obligation to contribute as
provided in this Section 10(e) are several and not joint.
11. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule I
hereto bears to the total number of shares of the Firm Stock set opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the
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defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of shares of the Stock to be purchased on
such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 3.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be purchased
on such Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule I hereto who, pursuant to
this Section 11, purchases Firm Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company and the Selling
Stockholders for damages caused by its default. If other underwriters are
obligated or agree to purchase the Stock of a defaulting or withdrawing
Underwriter, either the Representatives, the Company or the Selling Stockholders
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
12. Termination. This Agreement may be terminated for any
reason at any time by the Company or any Underwriter upon the giving of one
day's written notice of such termination to the other parties hereto; provided,
however, if such terminating party is an Underwriter, such termination shall be
effective only with respect to such terminating party. In addition, the Company
may terminate this Agreement in accordance with the preceding sentence with
respect to any one or more of the Underwriters without terminating this
Agreement with respect to all of the Underwriters. If, at the time of a
termination, an offer to purchase any of the Stock has been accepted by the
Company but the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such Stock is
delivered. The agreements contained in Section 6(e), 6(g), 7(a), 8 and 10 and
the representations and warranties of the Company in Section 1 and the
representations and warranties of the Selling Stockholders in Section 2 shall
survive the delivery of the Stock and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
13. Notices. Except as otherwise provided herein, all notices
and other communications provided pursuant to the terms of the Agreement shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication, which shall be confirmed.
All communication is effective only upon receipt. Notices to the Underwriters
shall be directed to them as follows:
31
31
Lehman Brothers, Inc.
Three World Financial Center
[9th Floor]
New York, New York 10285
Attention: Syndicate Department
Telephone: (212) []
Telecopier: (212) 526-6588
Salomon Brothers Inc
Seven World Trade Center
[32nd Floor]
New York, New York 10048
Attention: [ ]
Telephone: (212) [ ]
Telecopier: (212) [ ]
Notices to the Company shall be directed to it as follows:
AMERCO
1325 Airmotive Way
Suite 100
Reno, Nevada 89502-3239
Telephone: (702) 688-6300
Telecopier: (702) 688-6338
14. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters and the
Company, the Selling Stockholders and their respective successors and assigns.
This Agreement is for the sole benefit of only those persons, except that (A)
the representations, warranties, indemnities and agreements of the Company and
the Selling Stockholders contained in this Agreement also shall be deemed to be
for the benefit of the directors, officers, employees and agents of any
Underwriter and the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriter contained in Section 10(c) shall be deemed to be
for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Securities Act and any agent of the Selling
Stockholders and their respective successors and assigns. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 14, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained in this
Agreement.
15. Certain Definitions. The word "subsidiary" has the meaning
set forth in Rule 405 of the Rules and Regulations under the Securities Act.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York (without giving effect to the
principles of choice of law).
32
32
17. Counterparts. This Agreement may be executed in
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
18. Headings. The headings used in this Agreement are inserted
for convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance of this Agreement in the space provided for that
purpose below.
Very truly yours,
AMERCO
By:___________________________
Name: Gary V. Klinefelter
Title: Secretary
THE SELLING STOCKHOLDERS:
------------------------------
Paul F. Shoen
------------------------------
Sophia M. Shoen
CONFIRMED AND ACCEPTED, as
of the date first above
written for itself and as
Representative of the
several Underwriters named
in Schedule I hereto:
LEHMAN BROTHERS, INC.
By:___________________________
Name:
Title:
SALOMON BROTHERS INC
33
33
By:___________________________
Name:
Title:
34
Schedule I
Number of
Underwriters Shares
------------ ---------
Lehman Brothers Inc.
Salomon Brothers Inc
---------------
Total
35
Schedule II
List of Significant Subsidiaries
pursuant to Section 1(d)
U-Haul International, Inc. - a Nevada Corporation
Amerco Real Estate Company - a Nevada Corporation
Oxford Life Insurance Company - an Arizona Corporation
Republic Western Insurance Company - an Arizona Corporation
36
Schedule III
List of Agreements to Register
Securities pursuant to Section 1(r)
1. Share Repurchase and Registration Rights Agreement, dated as of March
1, 1992, among AMERCO, Paul F. Shoen and PAFRAN, INC.
2. Share Repurchase and Registration Rights Agreement, dated as of May 1,
1992, among AMERCO, Sophia M. Shoen and SOPHMAR, INC.
3. Preferred Stock Purchase Agreement, dated August 30, 1996, between
AMERCO and Blue Ridge Investments, L.L.C.
4. Registration Rights Agreement, dated as of August 30, 1996, between
AMERCO and NationsBank Corporation.
37
Exhibit A
[Form of lock-up from other stockholders
pursuant to Section 9(p)]
Lehman Brothers Inc.
Salomon Brothers Inc
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Re: Proposed Public Offering by AMERCO
Dear Sirs:
The undersigned, a stockholder and director of AMERCO, a Nevada
corporation (the "Company"), understands that Lehman Brothers Inc. and Salomon
Brothers Inc (the "Representatives") propose to enter into an Underwriting
Agreement (the "Underwriting Agreement") with the Company and the Selling
Stockholders referred to therein providing for the public offering of shares
(the "Securities") of the Company's Common Stock, par value $.25 per share (the
"Common Stock"). For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Underwriting Agreement that, during a period of
120 days from the date of the Prospectus, the undersigned will not, directly or
indirectly, offer for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future, of) any shares of
common stock of the Company or any securities convertible into or exercisable or
exchangeable for shares of common stock of the Company, or sell or grant
options, rights or warrants with respect to any shares of common stock of the
Company or any securities convertible into or exercisable or exchangeable for
shares of common stock of the Company, or enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of shares of the common stock
of the Company, without the prior consent of the Representatives.
Very truly yours,
Signature: ___________________
Print Name: __________________
38
AMERCO
CUSTODY AGREEMENT
THIS AGREEMENT, dated as of December __, 1996, among AMERCO, a
Nevada corporation (the "Company"), the undersigned stockholders of the Company
(the "Selling Stockholders") and ChaseMellon Shareholder Services, L.L.C., a
Delaware limited liability company, as custodian (the "Custodian").
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (File No.
333-15485) on Form S-3 (the "Registration Statement") in connection with the
proposed offer and sale to the public of shares of its Common Stock, par value
$.25 per share (the "Common Stock"), to be offered and sold by the Company and
by and on behalf of the Selling Stockholders (the "Public Offering"); and
WHEREAS, to induce Lehman Brothers Inc. and Salomon Brothers
Inc, the representatives (the "Representatives") of the several underwriters of
the Public Offering (the "Underwriters"), to enter into the Underwriting
Agreement referred to in Section 3 hereof, and to assure the Underwriters that
the shares of Common Stock to be offered by the Selling Stockholders in
accordance with its previous request to the Underwriters will be delivered to
the Representatives at the closing of the Public Offering and to provide for the
orderly processing of the Registration Statement and sale of such shares of
Common Stock, it is necessary and in the best interests of the Selling
Stockholders and the Company to enter into the following agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements hereinafter set forth and other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Appointment of Custodian. The Custodian is hereby appointed
to act and to hold and dispose of the shares of the Selling Stockholders' Common
Stock to be offered and sold under the terms of the Registration Statement
pursuant to the instructions of the Selling Stockholders or an attorney-in-fact
for the Selling Stockholders (each, an "Attorney-in-Fact") appointed by the
Selling Stockholders pursuant to a power of attorney executed by the Selling
Stockholders and attached hereto as Appendix I (the "Power of Attorney"), all in
accordance with the terms and conditions of this Agreement.
2. Deposit of Shares. On or prior to the execution of this
Agreement, the Selling Stockholders shall have deposited with the Custodian
certificates in negotiable form representing the number of shares of Common
Stock set forth opposite such Selling Stockholders' name on Exhibit A hereto
(the "Deposit Stock"), registered in its name (or the names of its nominee if
properly identified) and duly endorsed in blank for transfer by separate stock
power, the signatures thereto being guaranteed by a commercial bank or trust
company having an office or correspondent in the United States or a member firm
of the New York Stock or American Stock Exchanges. The stock certificates and
the separate endorsed stock powers shall have been delivered to the Custodian at
the address set forth in Section 10 hereof for deposit with the Custodian. Upon
the reasonable request of the Custodian, the Selling Stockholders agree to
furnish any other documentation which the transfer agent of the Company may
request in order to assure the sale and transfer of the Deposit Stock.
39
- 2 -
The Deposit Stock represented by the certificates so deposited
with the Custodian by the Selling Stockholders are subject to the interests
hereunder of the Underwriters; provided, however, that until payment by the
Underwriters of the purchase price for the Deposit Stock, the Selling
Stockholders shall remain the owner of the Deposit Stock and shall have the
right to vote the Deposit Stock and to receive all dividends and distributions
therefrom; the arrangements for the custody and delivery of such certificates
made by the Selling Stockholders hereunder are not subject to termination by any
acts of the Selling Stockholders, or by operation of law, whether by the death
or incapacity of such Selling Stockholders or the occurrence of any other event,
except as provided in Section 4 hereof; and if any such death, incapacity or any
other such event shall occur before the delivery of the Deposit Stock hereunder,
the Custodian is nevertheless fully authorized and directed to deliver
certificates for the Deposit Stock in accordance with the terms and conditions
of this Agreement and the Underwriting Agreement (as defined below) as if such
death, incapacity or other event had not occurred, regardless of whether or not
the Custodian shall have received notice of such death, incapacity or other
event.
3. Underwriting Agreement. The Selling Stockholders
acknowledge receipt of a draft of an underwriting agreement among the Company,
the Selling Stockholders and the Underwriters relating to the offering of shares
of Common Stock and the purchase thereof by the Underwriters, a copy of which is
attached hereto as Appendix II. The definitive underwriting agreement, to be in
substantially the form of such draft (the "Underwriting Agreement"), will set
forth the terms and conditions of the sale and purchase of said shares and
provide for the rights and responsibilities, and the representations,
warranties, covenants and indemnities, which will be expected of the Selling
Stockholders in connection therewith. It is understood that the Underwriting
Agreement will be executed by the Representatives, the Company, and by either
the Selling Stockholders or by an Attorney-in-Fact on behalf of the Selling
Stockholders, effective after the Registration Statement becomes effective with
the Securities and Exchange Commission (the "Commission"), at which time the
price to be paid to the Selling Stockholders by the Underwriters for the Common
Stock being offered will be inserted in the Underwriting Agreement; provided,
however, the public offering price at which the Deposit Stock is sold shall be
subject to the limitations set forth in Paragraph l(a) of the Power of Attorney.
The Selling Stockholders hereby approve the draft of the Underwriting Agreement
attached hereto as Appendix II, together with any and all such changes thereto
as are approved by any Attorney-in-Fact; provided, however, that no such changes
represent for the undersigned any material adverse change from the provisions of
Appendix II hereto.
4. Custodian to Act on Direction of Attorneys-in-Fact. The
Attorneys-in-Fact, and each of them, have been authorized pursuant to the Power
of Attorney to execute and deliver the Underwriting Agreement on behalf of the
Selling Stockholders who have executed such Power of Attorney and to direct at
the First Delivery Date referred to in the Underwriting Agreement the release of
all of the Deposit Stock to the Underwriters pursuant to the terms of the
Underwriting Agreement. The Custodian is hereby authorized and directed to
deliver the Deposit Stock pursuant to instructions from the Underwriters at the
First Delivery Date upon receipt of (a) a wire transfer of immediately available
funds, in an amount sufficient to pay the Selling Stockholders the aggregate
purchase price for the Deposit Stock purchased on the First Delivery Date less
transfer taxes, if any, and (b) instructions from either the Selling
Stockholders or their Attorney-in-Fact so to release such shares. The Custodian
shall have no liability whatsoever for releasing the Deposit Stock to the
40
- 3 -
Underwriters in accordance with the provisions of the foregoing sentence;
provided, that the foregoing shall not affect or in any way limit the
indemnification or other provisions contemplated by the Underwriting Agreement.
If the Underwriting Agreement shall not be entered into and the transactions
contemplated thereby consummated prior to January 31, 1997 (or such later date
as shall be agreed to by the parties hereto), then the Custodian is to return to
the Selling Stockholders all of the Deposit Stock held by the Custodian for the
Selling Stockholders at the address set forth on the signature page hereto, and
shall destroy all stock powers relating thereto delivered to it pursuant to
Section 2 hereof. Upon the mailing of all or a portion of the Deposit Stock to
the Selling Stockholders in accordance with this Section 4, the Custodian shall
have no further responsibility hereunder.
5. Representations and Warranties of Selling Stockholders.
Each Selling Stockholder severally represents and warrants to the Company and
each Underwriter as follows:
(a) The representations and warranties to be set forth in
Section 2 of the Underwriting Agreement (in substantially the form attached
hereto) are true and correct;
(b) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and constitutes a legal and binding
obligation of the Selling Stockholder, enforceable in accordance with its terms;
(c) The Selling Stockholder has full legal right, capacity,
power and authority to execute this Agreement, to enter into the Underwriting
Agreement and to sell, transfer, assign and deliver the Deposit Stock to be sold
by the Selling Stockholder in accordance with the Underwriting Agreement and
valid and marketable title to such Deposit Stock will be passed to the
Underwriters pursuant to the Underwriting Agreement;
(d) The information concerning the Selling Stockholder which
will be in the preliminary prospectus, the Registration Statement, the final
prospectus and any amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, conform in all
material respects to the requirements of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state any material fact
required to be therein or necessary to make statements therein not misleading;
and
(e) The attention of the Selling Stockholder has been directed
to the rules of the Commission which prohibit Selling Stockholders from bidding
for or purchasing any shares of the Common Stock, or attempting to induce anyone
else to bid for or purchase any such shares, or taking any other action which
might tend to stabilize or raise the price of the shares of Common Stock, until
the distribution of Common Stock pursuant to the Registration Statement has been
completed; the Selling Stockholder has not taken and will not take, directly or
indirectly, any action which would violate the foregoing rules.
Each Selling Stockholder hereby further represents and
warrants that the foregoing representations and warranties will be true and
correct on the date the Underwriting Agreement is executed and at the First
Delivery Date referred to in the Underwriting Agreement. The Selling
41
- 4 -
Stockholders will immediately notify the Attorneys-in-Fact, the Company and the
Underwriters of the occurrence of any event which shall cause the
representations, warranties and agreements contained herein not to be true and
correct during the period of the Public Offering of the Common Stock.
For purposes of rendering an opinion pursuant to the
Underwriting Agreement, Grover T. Wickersham, P.C. may rely on the
representations and warranties of the Selling Stockholders set forth herein and
in the Underwriting Agreement as if said representations and warranties had been
set forth in a separate certificate addressed to said counsel at and as of the
Delivery Date; and for purposes of delivering any certificate on behalf of the
Selling Stockholders which may be required in connection with the delivery of
the Deposit Stock, pursuant to the Underwriting Agreement, the Attorneys-in-Fact
may rely on the representations and warranties of the Selling Stockholders set
forth herein and in the Underwriting Agreement as if said representations and
warranties had been set forth in a separate certificate directed to the
Attorneys-in-Fact at the Delivery Date.
6. Payment to Selling Stockholders.
(a) The Selling Stockholders hereby direct the Custodian to
receive payment for such Selling Stockholders' shares of Deposit Stock, such
payment to be made by the representatives of the several Underwriters by wire
transfer of immediately available funds for the purchase price of the Deposit
Stock upon delivery of the appropriate number of shares of Deposit Stock, all in
accordance with the terms and conditions of the Underwriting Agreement and
Section 4 hereof.
(b) Upon receipt of such payment from the Representatives by
the Custodian, the Custodian shall promptly forward to the Selling Stockholders
to the account(s) designated in writing by the Selling Stockholders such wire
transferred funds for the purchase price of such Selling Stockholders' Deposit
Stock as set forth in the Underwriting Agreement.
7. Return of Common Stock. In the event the Deposit Stock is
not sold pursuant to the Underwriting Agreement because of the limitations set
forth in Section 3 of this Agreement, then the Custodian shall promptly return
the Deposit Stock to the Selling Stockholders at the addresses set forth on the
signature page hereto. Upon the mailing of all or a portion of the Deposit Stock
to the Selling Stockholders in accordance with this Section 7, the Custodian
shall have no further responsibility hereunder.
8. Extent of Duties and Obligations of Custodian. In all
respects, the duties and obligations of the Custodian shall be determined solely
by the express provisions of this Agreement, and the Custodian shall not be
liable for any act or failure to act on its part hereunder except for gross
negligence or willful misconduct, and shall be fully protected, as against the
Selling Stockholders, in any such action as the Custodian may take hereunder in
reliance on advice of accountants, attorneys or other independent experts
selected by it (which may include attorneys employed by the Custodian or outside
counsel). No implied covenants or obligations shall be read into this Agreement
against the Custodian. None of the provisions contained in this Agreement shall
require the Custodian to expend or risk its own funds or otherwise incur
personal financial
42
- 5 -
liability in the performance of any of its duties, or in the exercise of any of
its rights or powers, hereunder.
Nothing in this Agreement, expressed or implied, shall give or
be construed to give any person, firm or corporation, other than the parties
hereto, the Underwriters, the Attorneys-in-Fact, Grover T. Wickersham, P.C., the
Selling Stockholders, such other counsel who may render an opinion on behalf of
such Selling Stockholders and Milbank, Tweed, Hadley & McCloy, as counsel to the
Underwriters, any legal or equitable right, remedy or claim under or in respect
to this Agreement or under or in respect of any covenant, condition or provision
herein contained.
Notwithstanding anything in this Section 9 to the contrary,
the foregoing shall not affect or in any way limit the indemnification or other
provisions contemplated by the Underwriting Agreement.
9. Effective Date of Agreement. This Agreement shall become
effective with respect to the Selling Stockholders upon receipt of a copy of
this Agreement, duly executed by the Selling Stockholders, by the Custodian at
the following address:
[ ]
[ ]
[ ]
[ ]
10. Definitions. The words "it" and "its" shall be construed
where appropriate, to be singular or plural, or masculine, feminine or neuter.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York (without giving effect to the
principles of choice of law).
12. Counterparts. This Agreement may be executed in
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
13. Successors. This Agreement shall be binding upon the
parties and their heirs, legal representatives, distributees, successors and
assigns.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
AMERCO
By:
-------------------------------------
Name: Gary V. Klinefelter
Title: Secretary
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
as Custodian
By:
-------------------------------------
SELLING STOCKHOLDERS:
- ---------------------------------
Name: Paul F. Shoen
Address: P.O. Box 524
Glenbrook, NV 89413
- ---------------------------------
Name: Sophia M. Shoen
Address: 5104 N. 32nd Street
Phoenix, AZ 85018
44
Exhibit A
Number of
Shares of
Selling Stockholders Common Stock
-------------------- ------------
1. Paul F. Shoen 300,000
2. Sophia M. Shoen 200,000
-------
Total 500,000
=======
45
Appendix I
AMERCO
Public Offering of Common Stock
Irrevocable Power of Attorney of Selling Stockholder
[ ]
[ ]
[ ]
[ ]
The undersigned stockholder of AMERCO, a Nevada corporation
(the "Company"), understands that it is contemplated that the undersigned
stockholder of the Company (the "Selling Stockholder"), will sell shares of
Common Stock, par value $.25 per share (the "Common Stock"), of the Company to
certain underwriters to be named in the underwriting agreement (referred to
below), represented by Lehman Brothers Inc. and Salomon Brothers Inc, the
representatives (the "Representatives") of the several underwriters (the
"Underwriters"), which Underwriters propose to offer and sell such shares to the
public. The undersigned also understands that, in connection with such offer and
sale, the Company has filed a Registration Statement (File No. 333-15485) (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") to register the shares to be offered under the Securities Act of
1933, as amended.
Concurrently with the execution and delivery of this Power of
Attorney, the undersigned is also executing and delivering a Custody Agreement
(the "Custody Agreement") pursuant to which certificates for the number of
shares of Common Stock to be sold by the undersigned as set forth at the end of
this instrument are being deposited with ChaseMellon Shareholder Services,
L.L.C., as custodian (the "Custodian").
Capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Custody Agreement.
1. In connection with the foregoing, the undersigned hereby
irrevocably constitutes and appoints the Custodian, Grover T. Wickersham and
Debra K. Weiner as attorneys-in-fact (individually, an "Attorney" and
collectively, the "Attorneys") of the undersigned, each with full power and
authority to act together or alone, including full power of substitution, in the
name of and for and on behalf of the undersigned with respect to all matters
arising in connection with the sale of Common Stock in connection with the
Registration Statement by the undersigned except as specifically limited herein,
including, but not limited to, the power and authority to take any and all of
the following actions:
(a) to sell, assign and transfer to the Underwriters pursuant
to the Underwriting Agreement (defined below) the number of shares of
Common Stock of the Company to be sold to the Underwriters specified
below and represented by the certificates deposited by the undersigned
with the Custodian pursuant to the Custody Agreement, at a purchase
price per share to be paid by the Underwriters, as determined by
negotiation between the Company and the Representatives;
(b) for the purpose of effecting such sale, to make, execute,
deliver and perform the undersigned's obligations under the
Underwriting Agreement substantially in the form of
46
- 2 -
the agreement filed as Appendix II to the Custody Agreement (such
agreement, in the form in which executed, being herein called the
"Underwriting Agreement") receipt of a copy of which is hereby
acknowledged, among the Company, the Selling Stockholders and the
Underwriters, containing such additions to or changes in the terms,
provisions and conditions thereof, as the Attorney in his or her sole
discretion shall determine, including, subject to the limitation set
forth in paragraph 1(a) hereof, the purchase price per share to be paid
by the Underwriters and including any additions to or changes in the
terms, provisions and conditions thereof relating to the Public
Offering of such shares by the Underwriters;
(c) to give such orders and instructions to the Custodian and
the transfer agent for the Common Stock as the Attorneys, or any one of
them, in their or in his or her sole discretion shall determine, with
respect to (i) the transfer on the books of the Company of the shares
of Common Stock of the Company to be sold by the undersigned to the
Underwriters in order to effect such sale including giving the name in
which new certificates for such shares are to be issued and the
denominations thereof, (ii) the delivery to or for the account of the
Underwriters of certificates for such shares against receipt by the
Custodian of the purchase price to be paid therefor and (iii) the
remittance to the undersigned of new certificates representing that
number of shares of Common Stock, if any, that is in excess of the
number of shares sold by the undersigned to the Underwriters relating
to the Public Offering contemplated in the Registration Statement;
(d) to retain legal counsel in connection with any and all
matters referred to herein;
(e) to execute and deliver any amendment to the Custody
Agreement; provided, however, that no such amendment shall increase the
number of shares of Common Stock to be sold by the undersigned above
the number of shares of Common Stock specified below to be sold to
Underwriters;
(f) to endorse (in blank or otherwise) on behalf of the
undersigned the certificate or certificates representing the shares of
Common Stock to be sold by the undersigned, or a stock power or powers
attached to such certificate or certificates;
(g) to make, acknowledge, verify and file on behalf of the
undersigned applications, consents to service of process and such other
documents, undertakings or reports as may be required by law with state
commissioners or officers administering state securities laws; and
(h) to make, exchange, acknowledge and deliver all such other
contracts, powers of attorney, orders, receipts, notices, requests,
instructions, certificates, letters and other writings, including
communications to the Commission, and amendments to the Underwriting
Agreement and in general to do all things and to take all actions, that
the Attorneys, or any one of them, in their or his or her sole
discretion may consider necessary or proper in connection with or to
carry out the aforesaid sale of shares of Common Stock to the
Underwriters and the Public Offering thereof in connection with the
Registration Statement, as fully as could the undersigned if
personally present and acting.
47
- 3 -
2. This Power of Attorney and all authority conferred hereby
are granted and conferred subject to the interests of the Underwriters and in
consideration of those interests, and for the purpose of completing the
transactions contemplated by the Underwriting Agreement and this Power of
Attorney; this Power of Attorney and all authority conferred hereby shall be
irrevocable and shall not be terminated by the undersigned or by operation of
law, whether by the death or incapacity of the undersigned, or by the occurrence
of any other event. If any event described in the preceding sentence shall occur
before the delivery of the shares of Common Stock to be sold by the undersigned
under the Underwriting Agreement, certificates for such shares of Common Stock
shall be delivered by or on behalf of the undersigned in accordance with the
terms and conditions of the Underwriting Agreement and the Custody Agreement,
and all other actions required to be taken under the Underwriting Agreement and
the Custody Agreement shall be taken, and action taken by the Attorneys, or any
one of them, pursuant to this Power of Attorney shall be as valid as if such
event had not occurred, whether or not the Custodian or the Attorneys, or any
one of them, shall have received notice of such event.
Notwithstanding the foregoing, if the Underwriting Agreement
shall not be entered into and the transactions contemplated thereby consummated
prior to January 31, 1997 (or such later date as shall be agreed to by the
undersigned), then from and after such date, this Power of Attorney shall be
terminated; subject, however, to all lawful action done or performed by the
Attorneys, or any one of them, pursuant to this Power of Attorney prior to such
date.
3. The undersigned ratifies all that the Attorneys, or any
one of them, shall do pursuant to paragraphs 1 and 2 of this Power of Attorney.
4. The Attorneys shall be entitled to act and rely upon any
statement, request, notice or instructions respecting this Power of Attorney
given to the Attorneys by the undersigned; provided, however, that the Attorneys
shall not be entitled to act on any statement or notice to the Attorneys with
respect to a Delivery Date under the Underwriting Agreement, or with respect to
the termination of the Underwriting Agreement, or advising that the Underwriting
Agreement has not been executed and delivered, unless such statement or notice
shall have been confirmed in writing to the Attorneys by the Representatives.
5. In acting hereunder, the Attorneys may rely on the
representations, warranties and agreements of the undersigned made in the
Custody Agreement.
6. The undersigned hereby agrees to indemnify and hold
harmless the Attorneys against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which they may become subject insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any action taken or omitted to be taken by said
Attorney pursuant hereto, except if such expenses, losses, claims, damages or
liabilities shall result from the gross negligence or willful misconduct of said
Attorney. It is understood that the Attorneys (acting in that capacity alone)
shall serve without compensation.
7. This Power of Attorney shall be governed by and construed
in accordance with the laws of New York (without regard to principles of choice
of law).
48
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Date: December __, 1996
Number of Shares
of Common Stock to Be _____________________________
Sold to Underwriters: Signature
_________ Shares Signature Guaranteed by:
___________________________________
Authorized Signature
By
(Note: The signature must be
guaranteed by a commercial bank or
trust company having an office or
correspondent in the United States
or by a member firm of the New York
or American Stock Exchanges)
49
Appendix II
(Underwriting Agreement)