<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
----------------
AMENDMENT NO. 1 TO
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
AMERCO
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.25 par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
02359100
- --------------------------------------------------------------------------------
(CUSIP Number)
Grover T. Wickersham, Esq.
Grover T. Wickersham, P.C.
430 Cambridge Avenue, Suite 100
Palo Alto, CA 94306
Telephone: (415) 323-6400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 15, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("1934 Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
This document consists of 14 Pages.
Index to Exhibits is located on Page 14.
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AMENDMENT NO. 1 TO SCHEDULE 13D
PURSUANT TO RULE 13d-2
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
The Reporting Person filed with the Securities and Exchange Commission (the
"Commission") his original Schedule 13D on May 14, 1994 (the "Original Schedule
13D"). This Amendment No. 1, pursuant to Rule 13d-2 under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), amends and supplements the
cover page and statements under Items 4 through 7 of the Original Schedule 13D.
Capitalized terms used in this Amendment No. 1 and not otherwise defined shall
have the meaning ascribed to such terms in the Original Schedule 13D.
The Reporting Person and other AMERCO stockholders entered into that
certain Amended and Restated Stockholder Agreement, dated as of May 11, 1992
(the "Stockholder Agreement"), which Agreement is described in the Schedule 13D
filed with the Commission on May 21, 1992 by a group (as that term is used in
Section 13(d)(3) of the 1934 Act), consisting of each of the signatories to such
Agreement (the "Group"). Such Schedule 13D has been subsequently amended by
Amendment No. 1 filed with the Commission on August 21, 1992, by Amendment No. 2
filed with the Commission on April 19, 1993, Amendment No. 3 filed with the
Commission on June 12, 1993, Amendment No. 4 filed with the Commission on
September 17, 1993, Amendment No. 5 filed with the Commission on April 25, 1994,
Amendment No. 6 filed with the Commission on May 31, 1994, Amendment No. 7 filed
with the Commission on September 9, 1994, Amendment No. 8 filed with the
Commission on December 19, 1994 and Amendment No. 9 filed with the Commission on
or about July 2, 1995. The Reporting Person did not sign the Group's Amendment
No. 9. He has taken the position that the Stockholder Agreement was terminated
due to breaches of certain operative provisions of the Share Repurchase and
Registration Rights Agreement of Sophia M. Shoen (another member of the Group,
as constituted by the May 11, 1992 Stockholder Agreement) and her subsequent
notice of termination of the Stockholder Agreement as a result thereof.
This Amendment No. 1 to Schedule 13D is filed by the Reporting Person in
his individual capacity and not as a member of the Group, based on his position
that he is no longer a member of the Group.
COVER PAGE
The cover page is hereby amended in its entirety to reflect the Reporting
Person's current ownership of AMERCO Common Stock, as follows:
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SCHEDULE 13D
-------------------------
CUSIP NO. 02359100 Page 4
-------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PAUL F. SHOEN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF
SHARES 7. SOLE VOTING POWER
BENEFICIALLY 2,493,058
OWNED BY -------------------------------------------------------
EACH 8. SHARED VOTING POWER
REPORTING 0
PERSON WITH -------------------------------------------------------
9. SOLE DISPOSITIVE POWER
2,493,058
-------------------------------------------------------
10. SHARED DISPOSITIVE POWER
0
-------------------------------------------------------
11. AGGREGATE AMOUNT OWNED BY EACH REPORTING PERSON
2,493,058
-------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
-------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4%
-------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
-------------------------------------------------------
3
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ITEM 4. PURPOSE OF TRANSACTION
The information set forth in Item 4 is amended in its entirety to read as
follows:
I. DISPUTES
The Reporting Person has been engaged in a series of disputes with AMERCO,
its directors and other related parties, which briefly can be summarized as
follows:
THE PROXY LITIGATION
On May 4, 1994, the Reporting Person delivered to AMERCO, in accordance
with Article II, Section 5 of AMERCO's Restated By-laws, three notices of action
to be taken at the 1994 Annual Stockholders Meeting of AMERCO (the "1994 Annual
Meeting"): the Reporting Person (i) nominated himself to stand for election as
one of the two Class IV Directors to be elected at the 1994 Annual Meeting; (ii)
submitted one shareholder proposal pursuant to Rule 14a-8 under the 1934 Act,
which sought to have AMERCO include in its proxy statement for the 1994 Annual
Meeting a proposal to amend and replace Article VII, Section 2, of the AMERCO
Restated By-laws by deleting the then-existing Article VII, Section 2 in its
entirety and by substituting in its place a new Article VII, Section 2, which
would terminate the restrictions on proposed sales, transfers, dispositions of
shares of AMERCO Common Stock (the "right of first refusal"); and (iii)
submitted three additional shareholder proposals concerning shareholder
liquidity and shareholder value for consideration at the 1994 Annual Meeting.
(In January 1995, AMERCO's Board of Directors revised the right of refusal
provision in the Restated By-laws to permit sales, transfers and other
dispositions of the AMERCO common stock by the ESOP Trust, in a bona fide
underwritten public offering or in a bona fide distribution pursuant to Rule 144
under the 1933 Act. See the discussion under "The Settlement with AMERCO and
Related Parties," below.)
Reporting Person commenced solicitation of proxies for the 1994 Annual
Meeting, but AMERCO and other parties refused to send the Reporting Person's
proxy statement to persons who own AMERCO Common Stock through the AMERCO ESOP.
As a result of the inability of the Reporting Person to communicate
adequately with AMERCO stockholders concerning his nomination and stockholder
proposals, on or about July 19, 1994, the Reporting Person filed a complaint in
the United States District Court for the District of Nevada (the "District
Court"), Case No. CV-N-94-0475-ECR (the "Proxy Litigation"), asserting claims
for legal and equitable relief against (i)AMERCO, (ii) Edward J. Shoen, Richard
J. Herrera, Mark V. Shoen, Aubrey K. Johnson, William E. Carty, James P. Shoen,
Charles J. Bayer and John M. Dodds (collectively, the "AMERCO Directors"), (iii)
the AMERCO ESOP and (iv)Donald W. Murney and Gary B. Horton (with Edward J.
Shoen, the "ESOP Trustee"). On or about July 20, 1994, the District Court
entered its Order temporarily restraining the holding of the 1994 Annual Meeting
(the "TRO"). Such TRO was subsequently extended. On or about October 5, 1994,
the District Court entered its Memorandum and Order, vacating the TRO and
issuing a preliminary injunction granting certain relief to the Reporting Person
(the "Preliminary Injunction"). On or about October 11, 1994, AMERCO, the AMERCO
Directors, the AMERCO ESOP and the ESOP Trustee filed their respective Notices
of Appeal from the Preliminary Injunction to the United States Court of Appeals
for the Ninth Circuit. On or about October 24, 1994, the District Court entered
an Order modifying the Preliminary Injunction (the "Modifying Order"). On or
about November 10, 1994, AMERCO, the AMERCO Directors, the AMERCO ESOP and the
ESOP Trustee filed their respective Notices of Appeal from the Modifying Order
to the United States Court of Appeals for the Ninth Circuit. There has been no
4
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final adjudication on the merits of any claim, defense, allegation or issue in
the Proxy Litigation, and no final ruling or determination in the appeals.
However, the disputes arising out of the Proxy Litigation have been settled. The
case in chief and all appeals were dismissed as of February 10, 1995, as
discussed below. See "The Settlement with AMERCO and Related Parties."
THE ARBITRATION/TERMINATION OF STOCKHOLDER AGREEMENT
On or about April 8, 1994, the Reporting Person commenced an arbitration
proceeding against AMERCO pursuant to Section 4.11 of that certain Share
Repurchase and Registration Rights Agreement between the Reporting Person and
AMERCO, dated as of March 1, 1992 (the "Paul Shoen Registration Rights
Agreement"). In the arbitration, the Reporting Person requested various forms of
relief with respect to his demand to exercise certain registration rights and
certain share repurchase rights provided in the Paul Shoen Registration Rights
Agreement. He was joined in these proceedings by Sophia M. Shoen, who had
entered into a separate Share Repurchase and Registration Rights Agreement with
AMERCO, dated as of May 1, 1992 (the "Sophia Shoen Registration Rights
Agreement"). These arbitration proceedings are jointly referred to herein as the
"Arbitration."
A portion of the Arbitration focused on the Reporting Person's contention
that AMERCO had breached the Paul Shoen Registration Rights Agreement by failing
to timely (i) register a portion of his AMERCO Common Stock and (ii) honor his
share repurchase rights, as required by the Paul Shoen Registration Rights
Agreement. AMERCO finally agreed to proceed with and did close the final
repurchase transaction in January 1995. The public offering of the Reporting
Person's shares was closed in March 1995.
Also in the Arbitration, Sophia Shoen claimed that AMERCO breached certain
provisions of the Sophia Shoen Registration Rights Agreement, giving her the
right to terminate the Stockholder Agreement after notice and a failure to cure.
On January 5, 1995, Mark V. Shoen, one of the parties to the Stockholder
Agreement, filed a complaint in the Superior Court of Maricopa County, Case No.
CV9500235, against Sophia Shoen, seeking a declaratory judgment that the
Stockholder Agreement has not been terminated and remains in full force and
effect. Sophia Shoen has answered this complaint and counterclaimed for a
declaration that the Stockholder Agreement has terminated.
In February 1995, the Reporting Person entered into an agreement with
AMERCO and certain related parties which, in part, settled the Reporting
Person's claims in the arbitration. However, Sophia Shoen continued the
arbitration proceedings through to their conclusion.
In December 1995, the arbitrators issued their "Decision and Order
Regarding Liability." The majority of the three-member arbitration panel
concluded that AMERCO failed to comply with its obligations in Section 3.02(a)
and Section 3.13 of the Sophia Shoen Registration Rights Agreement. The
Stockholder Agreement, by its terms, may be terminated upon "the Company's
failure to comply with Section 3.02(a) of the Sophia Shoen Repurchase and
Registration Rights Agreement . . ." and terminates upon the stockholders'
receipt of notice from Sophia Shoen that (i) the Company did not comply with
Section 3.02(a) and (ii) as a result thereof, she desires to terminate the
agreement. Ms. Shoen gave such notice to the members of the Group in July 1994.
No new stockholder agreement has been entered into in which the Reporting Person
is a party.
To the knowledge of the Reporting Person, there has been no adjudication on
the merits of any claim, defense, allegation or issue in Mark Shoen's
declaratory judgment lawsuit.
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THE SHAREHOLDER LITIGATION
On or about August 2, 1988, an action was commenced in the Superior Court
of the State of Arizona, Maricopa County, by certain AMERCO shareholders
against, INTER ALIA, AMERCO and the persons who constituted the AMERCO Board of
Directors as of July 1988, including the Reporting Person. That lawsuit is
captioned SAMUEL W. SHOEN, M.D., ET AL. V. EDWARD J. SHOEN, ET AL., Case No. CV
88-20139 and is referred to herein as the "Shareholder Litigation."
On or about December 5, 1989, the Reporting Person, in his capacity as an
officer or director of AMERCO, entered into an indemnification agreement with
AMERCO, dated as of February 6, 1989. Such Indemnification Agreement was amended
as of February 8, 1990. This agreement, as amended, is referred to herein as the
"Indemnification Agreement."
The Shareholder Litigation came on for trial on August 17, 1994. Based on
the plaintiffs' theory of damages, the court ruled that plaintiffs could only
submit their case to the jury if they elected to transfer their stock to the
defendants at a price equal to the value of their stock in 1988. On October 7,
1994, the jury determined that such value was $81.12 per share, or approximately
$1.48 billion. Upon post-trial motions, the judge determined the value of
plaintiffs' stock in 1988 to be approximately $461.8 million or $25.30 per
share. On February 13, 1995, the plaintiffs filed a statement accepting the
remittitur (reduction), and judgment was entered on February 21, 1995 (the
"Arizona Judgment"). Based on the judgment, the six defendants, including the
Reporting Person, were held to be jointly and severally liable for the full
amount of the Arizona Judgment. In addition, punitive damages in the amount of
$7.0 million (reduced from the $70 million in punitive damages awarded by the
jury) were assessed against Edward J. Shoen, one of the defendants.
THE SETTLEMENT WITH AMERCO AND RELATED PARTIES
On or about February 3, 1995, the Reporting Person entered into a
settlement agreement with AMERCO, the AMERCO Directors, the AMERCO ESOP and the
ESOP Trustee (the "Settlement Agreement"). The Settlement Agreement was intended
to settle outstanding disputes among the parties with respect to the Proxy
Litigation, the Arbitration as it pertains to the Reporting Person, the Costs of
Defense Dispute and other controverted matters among the parties. The following
summary of the settlement is qualified in its entirety by the Settlement
Agreement, a copy of which is attached as an exhibit to this Amendment No. 1 to
Schedule 13D.
Pursuant to the Settlement Agreement, the Reporting Person was paid
$925,000 by AMERCO.
The AMERCO Directors agreed to nominate the Reporting Person for election
at the delayed 1994 Annual Meeting and to include him on management's slate of
directors. AMERCO and the AMERCO Directors agreed to select and appoint three
independent Trustees for the AMERCO ESOP; the Reporting Person agreed to
withdraw his shareholder proposals and to refrain from soliciting proxies for
the 1994 Annual Meeting. In addition, he agreed to enter into a new stockholder
agreement containing the same terms and conditions as the original Stockholder
Agreement in the event the Stockholder Agreement is terminated as a result of
Sophia Shoen's claims in the Arbitration. The parties agreed to, and did,
exchange mutual releases and stipulated to dismissals of all proceedings in the
Proxy Litigation, including all appeals, and the Arbitration as it pertained to
the Reporting Person.
With respect to the Shareholder Litigation, AMERCO reaffirmed that it will
afford the Reporting Person the same defense and indemnification rights that are
afforded to the other defendants
6
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in the Shareholder Litigation. Other agreements were made with respect to
payments of fees and expenses of the Reporting Person in the event of retrials,
appeals and other actions that could arise in the Shareholder Litigation.
See discussion below under "Chapter 11 Federal Bankruptcy Filings by
Certain Defendants in the Shareholder Litigation/Adversary Proceeding to Enjoin
the Annual Meetings of Stockholders" for a discussion of the continued delay in
holding the 1994 Annual Meeting at which the Reporting Person has an agreement
from AMERCO and the current directors to nominate him as a part of management's
slate.
CHAPTER 11 FEDERAL BANKRUPTCY FILINGS BY CERTAIN DEFENDANTS IN THE SHAREHOLDER
LITIGATION/ ADVERSARY PROCEEDING TO ENJOIN THE ANNUAL MEETINGS OF STOCKHOLDERS
On February 21, 1995, all the defendants in the Shareholder Litigation
other than the Reporting Person (I.E., Edward J. Shoen, James P. Shoen, Aubrey
K. Johnson, John M. Dodds and William E. Carty, referred to as the "Director
Defendants") filed for protection under Chapter 11 of the federal bankruptcy
laws, resulting in an automatic stay of the execution on the Arizona Judgment
against those defendants. Their cases are being jointly administered in the
United States Bankruptcy Court for the District of Arizona (Jointly Administered
Case No. 95-1430-PHX-JMM). The following description of certain portions of the
bankruptcy proceedings is taken from various public filings made by the Director
Defendants and others in the jointly-administered proceedings.
Under reorganization plans submitted by the Director Defendants on
April 25, 1995, the Director Defendants proposed to transfer (or cause to be
transferred) to a stock transfer trust (the "Stock Transfer Trust"), property
having a stipulated or adjudicated value in excess of $461.8 million. Each of
the plaintiff-creditors would receive a trust certificate representing an
undivided, fractional beneficial interest in the Stock Transfer Trust. According
to the respective Disclosure Statements, the property transferred to the Stock
Transfer Trust was expected to consist of (i) approximately $300 million in
Series B 7 1/2% non-voting cumulative redeemable preferred stock issued by the
Company or one of its subsidiaries; (ii) a 1993 REMIC certificate held by the
Company with a face value of $11,518,452, evidencing a pool of 61 commercial
mortgage loans secured by mortgages or deeds of trust on 60 self-storage
properties; (iii) mortgage loans with an aggregate principal balance of
approximately $109,913,871 on property held by the Company, one or more of its
subsidiaries, or two corporations affiliated with the Company; and (iv) real
property held free and clear by the Company or its subsidiaries having a total
value of approximately $50 million. According to the reorganization plan, upon
the funding of the Stock Transfer Trust, the plaintiffs participating in the
Stock Transfer Trust would be obligated to transfer their shares of Common Stock
to the Company or its designee.
Alternatively, and in lieu of their respective proportionate shares of the
property to be transferred to the Stock Transfer Trust, the proposed plans
provided that each of the plaintiff-creditors could elect to participate in a
settlement and receive a discounted cash payment in full satisfaction of his or
her proportionate claim, in an amount of up to $350 million. This discounted
settlement amount, according to the disclosure statements, would be paid by
AMERCO to satisfy the claims of the plaintiff-creditors electing to participate
in the settlement. One plaintiff-creditor accepted this offer to settle in
October 1995 for a cash payment made by AMERCO of $74,084,999.
In exchange for accepting either an interest in the Stock Transfer Trust or
the discounted cash settlement, under the reorganization plans, the plaintiff-
creditors would be obligated to transfer their Common Stock to AMERCO or its
designee.
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In its Memorandum Decision dated January 26, 1996, the Bankruptcy Court
denied confirmation of the Director Defendants' plans of reorganization. On
February 23, 1996, the Director Defendants moved for rehearing and for an order
denying standing with respect to the Reporting Person, which motion was denied
by order dated March 4, 1996.
Also after the Bankruptcy Court denied confirmation, the Director
Defendants, on January 29, 1996, proposed further modifications to their
reorganization plans. On March 15, 1996, the plans were confirmed as modified.
The modified plans provide that their Effective Date will occur on or before
October 1, 1996. The Effective Date can be extended, however, should
circumstances warrant, as determined by the Bankruptcy Court.
Prior to confirmation of the Director Defendants' modified plans, the
Company paid an aggregate of $69,013,766.88 to two additional plaintiff-
creditors in satisfaction of their claims under the Arizona Judgment (excluding
punitive damages). The plans provide for payment in cash of the balance of the
principal amount owed under the Arizona Judgment (excluding punitive damages) by
the Effective Date. The Director Defendants have reserved the right to
challenge whether interest on the Arizona Judgment is required to be paid to the
remaining plaintiff-creditors as a condition to transfer of their stock on the
Company.
Also on April 25, 1995, the Director Defendants filed an action in the
United States Bankruptcy Court for the District of Arizona entitled EDWARD J.
SHOEN, ET AL. V. LEONARD S. SHOEN, ET AL., Case No. 95-1430-PHX-JMM, Adversary
No. 95-284, seeking injunctive relief to prevent AMERCO from conducting its 1994
and 1995 annual meetings of stockholders until the "effective date" of the
Director Defendants' reorganization plans and/or to prevent the plaintiffs from
voting their Common Stock in any stockholder meeting that was held prior to such
confirmation and transfer of the plaintiffs' stock pursuant to the Arizona
Judgment.
The adversary proceeding brought by the Director Defendants in their
bankruptcy cases was intended to postpone any election for so long as the
plaintiffs still own and could vote their shares, since the plaintiffs' faction
controlled the largest block of AMERCO shares and therefore could directly
impact management and control of the Company, as well as perhaps make it
impossible for the Director Defendants to proceed further with their proposed
plans of reorganization. The Reporting Person opposed this attempt on the part
of the Director Defendants to obtain a temporary restraining order and
preliminary injunction. Although the plaintiff-creditors and the Reporting
Person opposed the Director Defendants' action, on June 8, 1995, the Bankruptcy
Court granted their motion to postpone the election of directors, and therefore,
no annual meeting of AMERCO stockholders has been held since September 1993.
During the spring of 1995, the delayed 1994 Annual Meeting was rescheduled
for July 21, 1995, but was postponed by order of the Bankruptcy Court on May 26,
1995, when a temporary restraining order was issued, as described below. When
held, two directors are to be elected for four year terms and one director is to
be elected to a one-year term. At the 1995 Annual Meeting, two additional
directors are to be elected for four-year terms.
THE SETTLEMENT WITH PLAINTIFFS IN THE SHAREHOLDER LITIGATION
Although he at the time was jointly and severally liable with the Director-
Defendants for the $461.8 million Arizona Judgment in the Shareholder
Litigation, the Reporting Person chose not to file for federal bankruptcy
protection. Instead, he negotiated a settlement with the plaintiffs in the
Shareholder Litigation and sought relief from stays.
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On or about April 25, 1995, the Reporting Person entered into a settlement
agreement with the plaintiffs. Under the terms of this settlement, the Reporting
Person agreed to pay the plaintiffs $1,500,000 toward the reduction in principal
on the Arizona Judgment. In consideration therefor, the plaintiffs agreed to
release any and all executions of judgment against the Reporting Person and his
property and agreed that no interest would accrue or be payable by the Reporting
Person, personally, or his assets, under the Arizona Judgment for period. In
addition, the plaintiffs agreed that no interest would accrue or be payable by
the Reporting Person personally, or by his assets, under the Arizona Judgment.
In his attempts to make a good faith effort to satisfy the Arizona Judgment in
accordance with the agreement, the Reporting Person agreed to approach
prospective purchasers to discuss the sale of the plaintiffs' shares
representing 47% of AMERCO outstanding Common Stock on the open market. In
order for the Reporting Person to implement the settlement agreement, the
Reporting Person sought stay relief to market the shares and to remove the
"poison pill" resolution which required the consent of the AMERCO board of
directors to any transfer of a controlling block of common stock. On June 30,
1995, the Bankruptcy Court entered an order denying the Report Person's request
for stay relief.
II. SALES OF SECURITIES
Since the original filing of the Schedule 13D, the Reporting Person has
engaged in the following transactions in the Common Stock of AMERCO:
1. On June 30, 1994, the Reporting Person sold an aggregate of 58,825
shares to the ESOP Trust. The shares were sold to the ESOP Trust at $17.00
(aggregate gross proceeds of approximately $1,000,000), the most recent
appraised value for the Common Stock. This transaction represented the
culmination of the delayed share repurchase transaction, which was one of the
subjects of the Arbitration. Because this repurchase transaction was between the
Reporting Person and a second party to the Stockholder Agreement, the total
number of shares beneficially owned by the Group, as reflected on the Cover Page
of this Amendment No. 1 to Schedule 13D, did not change.
2. On January 17, 1995, the Reporting Person sold an aggregate of 50,632
shares to the ESOP Trust. The shares were sold to the ESOP Trust at $19.85 per
share, the closing sales price of the AMERCO Common Stock on the last trading
day preceding the closing(aggregate gross proceeds of approximately $1,000,000).
3. On March 16, 1995, the Commission declared effective AMERCO's
Registration Statement on Form S-3, SEC File No. 33-57125 (the "Paul Shoen
Registration Statement") covering the offer and sale of 500,000 shares of AMERCO
Common Stock owned by the Reporting Person. The Reporting Person sold an
aggregate of 500,000 shares in a bona fide underwritten public offering, at an
initial public offering price of $19.50, for aggregate gross proceeds of
$9,750,000. The closing of the public offering was held on March 22,1995. This
closing represented the culmination of the public offering required by the
Reporting Person's exercise of certain of his registration rights and was
conducted under the supervisory authority of the panel of arbitrators in the
aforementioned Arbitration.
4. Between May 23, 1995 and May 29, 1996, the Reporting Person has
engaged in a series of sales pursuant to Rule 144, as follows:
<TABLE>
<CAPTION>
<S> <C> <C>
May 23, 1995 45,000 shares $ 984,385.00
June 5, 1995 10,000 shares 215,000.00
June 6, 1995 2,500 shares 53,750.00
June 7, 1995 2,500 shares 53,750.00
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
June 19, 1995 27,000 shares 588,937.50
November 1, 1995 10,000 shares 172,500.00
November 8, 1995 10,000 shares 180,000.00
November 17, 1995 5,000 shares 99,375.00
November 17, 1995 5,000 shares 98,750.00
November 17, 1995 25,000 shares 493,750.00
November 22, 1995 8,000 shares 152,000.00
November 30, 1995 45,000 shares 877,500.00
December 5, 1995 10,000 shares 196,250.00
December 7, 1995 5,000 shares 98,750.00
December 28, 1995 2,000 shares 410,000
January 3, 1996 55,000 shares 1,117,187.50
January 4, 1996 25,000 shares 507,812.50
April 10, 1996 1,500 shares 33,187.60
April 10, 1996 4,500 shares 94,500.00
April 10, 1996 1,000 shares 20,250.00
April 10, 1996 3,000 shares 60,000.00
April 10, 1996 5,000 shares 105,625.00
April 19, 1996 5,000 shares 102,500.00
April 24, 1996 1,000 shares 21,875.00
April 24, 1996 1,000 shares 22,000.00
April 24, 1996 1,000 shares 22,125.00
April 30, 1996 1,000 shares 22,250.00
April 30, 1996 1,000 shares 22,375.00
May 1, 1996 1,000 shares 22,500.00
May 1, 1996 1,000 shares 22,625.00
May 3, 1996 2,000 shares 45,750.00
May 3, 1996 1,500 shares 34,500.00
May 6, 1996 500 shares 11,500.00
May 9, 1996 3,000 shares 68,525.00
May 13, 1996 5,000 shares 115,000.00
May 13, 1996 1,000 shares 23,125.00
May 13, 1996 2,000 shares 45,500.00
May 13, 1996 2,000 shares 45,750.00
May 14, 1996 3,000 shares 69,000.00
May 14, 1996 2,000 shares 46,250.00
May 15, 1996 5,000 shares 115,000.00
May 24, 1996 11,000 shares 233,750.00
May 29, 1996 1,000 shares 21,625.00
</TABLE>
III. POSSIBLE SALE OF PLAINTIFFS' STOCK
As discussed above, the Reporting Person was a named defendant in the
shareholder litigation that resulted in the Arizona Judgment. He has entered
into the Settlement Agreement with the plaintiffs, as discussed above, and prior
to confirmation of the Director Defendants' reorganization plans, attempted to
determine a means by which the Arizona Judgment could be paid other than by the
Company as the Director Defendants proposed. It is the Reporting Person's
position that it would be in the best interests of AMERCO and its stockholders
if an independent buyer or buyers for the plaintiffs' stock could be found,
rather than having AMERCO effect the redemption of the plaintiffs' stock upon
payment by AMERCO of the consideration proposed by the Director Defendants. As
a result, the Reporting Person entered into discussions with potential
purchasers from time to time after
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entry of the judgment. He reached no definitive agreements with any party. He
has no plans to purchase such stock himself. In fact, the Reporting Person has
been periodically selling a portion of his stake in AMERCO, and intends to
continue to do so for the foreseeable future. See paragraph 4 above and Item 5
below for details of the Reporting Person's sales of AMERCO Common Stock.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The information set forth in Item 5 is revised in its entirety to read as
follows:
The interest of the Reporting Person in the securities of AMERCO, without
regard to the Stockholder Agreement, is as follows:
(i) Aggregate number of shares: 2,493,058(1)
(ii) Percentage of class: 7.4%(2)
____________
(1) Does not include 779.33 shares allocated to the Reporting Person's account
in the AMERCO Employee Savings and Profit Sharing and Employee Stock
Ownership Trust or 71,976 shares owned indirectly through Oxford Life
Insurance Company, Trustee under that certain Irrevocable Trust dated
December 20, 1982.
(2) Based on 32,790,923 shares outstanding, which includes 27,028,428 shares of
Common Stock and 5,762,495 shares of Series A Common Stock, pursuant to the
Company's Quarterly Report on Form 10-Q for the Quarter Ended December 31,
1995.
The Reporting Person has sole power to vote or to direct the vote of the
shares set forth above and sole power to dispose or to direct the disposition of
the shares set forth above. AMERCO's Restated By-laws contain certain
restrictions on disposition of the shares, including a right of first refusal in
favor of the Company. However, on or about January 10, 1995, AMERCO amended its
Restated By-laws to modify the right of first refusal to permit certain
transactions, including sales made in a bona fide underwritten public offering
or in a bona fide public distribution pursuant to Rule 144 under the Securities
Act of 1933, as amended (the "1933 Act").
The Reporting Person has effected no transactions in AMERCO Common Stock
during the past sixty days.
No other person is known to have the right to receive, or the power to
direct the receipt of, dividends from or the proceeds from the sale of the
AMERCO Common Stock of the Reporting Person.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The information set forth in Item 6 is revised in its entirety to read as
follows:
STOCKHOLDER AGREEMENT
The Reporting Person and others entered into the Stockholder Agreement, as
amended, in May 1992. The signatories to the Stockholder Agreement were Edward
J. Shoen, an individual, Mark V. Shoen, an individual, Sophia M. Shoen, an
individual, James P. Shoen, an individual, Paul F. Shoen, an individual, certain
corporations controlled by the individuals, and The AMERCO Employee Savings,
Profit Sharing and Employee Stock Ownership Trust dated as of May 1, 1992 (the
"Plan" or the "ESOP"). See "The Arbitration/Termination of the Stockholder
Agreement" and "The Settlement with AMERCO and Related Parties," above, for a
discussion of Sophia M. Shoen's notice of termination of the Stockholder
Agreement. The Reporting Person believes that the Stockholder Agreement has been
terminated and he has not entered into a new agreement with the members of the
Group or any other persons.
SHARE REPURCHASE AND REGISTRATION RIGHTS AGREEMENT (THE "REGISTRATION RIGHTS
AGREEMENT")
The Registration Rights Agreement between the Reporting Person and AMERCO
restricts the disposition of Common Stock held by the Reporting Person. In
exchange for such restrictions, the Reporting Person was granted the ability to
dispose of his shares of AMERCO Common Stock through share repurchase and public
offering registration rights.
Pursuant to the Registration Rights Agreement, the Reporting Person had the
right to, and did, elect to require AMERCO (either directly or indirectly
through the ESOP) to repurchase, with certain limitations and over a 3-1/2 year
period, an aggregate of $3,000,000 of AMERCO Common Stock owned by the Reporting
Person. Pursuant to the Registration Rights Agreement, (i) on May 15, 1992,
Pafran, Inc. (the former personal holding company of the Reporting Person) sold
23,148 shares of Common Stock to the ESOP Trust at the appraised value of $10.80
per share, for an aggregate sales price of approximately $250,000; (ii) on April
30, 1993, the Reporting Person sold 48,387 shares of Common Stock to the ESOP
Trust at the appraised value of $15.50 per share, for an aggregate sales price
of approximately $750,000; (iii) on June 30, 1994, the Reporting Person sold an
aggregate of 58,825 shares of Common Stock to the ESOP Trust at the appraised
value of $17.00 per share, for an aggregate sales price of approximately
$1,000,000; and (iv) on January 17, 1995, the Reporting Person sold an aggregate
of 50,632 shares of Common Stock to the ESOP Trust at $19.75 per share, the
closing sales price on the last trading day preceding the transaction, for an
aggregate sales price of approximately $1,000,000.
Under the Registration Rights Agreement, the Reporting Person, subject to
certain limitations and restrictions, may also elect to cause AMERCO to effect a
registration under the 1933 Act, and applicable state securities laws of shares
of Common Stock (or, if certain conditions are met, other AMERCO securities
having greater liquidity or marketability) held by the Reporting Person. Only
two such registrations may be requested. All expenses of such registrations are
to be borne by the Company except underwriting discounts and commissions. The
first registration obligation was fulfilled on March 22, 1995 upon the closing
of the underwritten public offering of 500,000 shares owned by the Reporting
Person. See Section II of Item 4, above. The Reporting Person may exercise one
remaining registration right demand, but he has no current intention to do so.
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The description of the Share Repurchase and Registration Rights Agreement
contained herein is qualified in its entirety by reference to the Share
Repurchase and Registration Rights Agreement, a copy of which is attached to the
Schedule 13D filed by the Group in May 1992.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
In addition to the Exhibits filed with the Original Schedule 13D, the
following are filed as Exhibits to this Amendment No. 1 to Schedule 13D:
Settlement Agreement, dated as of February 3, 1995 among the Reporting
Person, AMERCO, the AMERCO Directors and the AMERCO Trustee.
Agreement, dated April 25, 1995 among the Reporting Person and the
Plaintiffs in the Shareholder Litigation.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 1 to Schedule 13D
is true, complete and correct.
Dated this 30th day of May, 1996.
/s/ Paul F. Shoen
----------------------------------------
Paul F. Shoen
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INDEX TO EXHIBITS
SEQUENTIAL PAGE
EXHIBITS NUMBER
1. Stockholder Agreement, dated as of May 1,
1992 among all members of the Group(1)
2. Share Repurchase and Registration Rights
Agreement dated as of March 1, 1992 among
the Reporting Person, Pafran, Inc. and AMERCO(2)
3. Letter dated April 8, 1994 from counsel to
the Reporting Person to counsel to AMERCO
giving notice of anticipatory breach of the
Share Repurchase and Registration Rights
Agreement(3)
4. Shareholder Proposal and accompanying exhibits
submitted to AMERCO by the Reporting Person
pursuant to Rule 14a-8 for consideration at
the 1994 Annual Stockholders Meeting(2)
5. Notice and accompanying exhibit pertaining to
submission of three Shareholder Proposals to
AMERCO by the Reporting Person for consideration
at the 1994 Annual Stockholders Meeting(3)
6. Notice and accompanying exhibit pertaining to
the Reporting Person's nomination of himself
as a Class IV Director, to stand for election at
the 1994 Annual Stockholders Meeting(3)
7. Settlement Agreement, dated as of February 3,
1995 among the Reporting Person, AMERCO,
the AMERCO Directors and the AMERCO Trustee
8. Agreement, dated as of April 25, 1995 among
the Reporting Person and the Plaintiffs in the
Shareholder Litigation
____________
(1) Incorporated by reference to a previously-filed Schedule 13D filed by
the Group (including the Reporting Person) on May 21, 1992.
(2) Filed as part of the Original Schedule 13D only in paper format
pursuant to Rule 101(c)(3) of Regulation S-T.
(3) Filed as part of the Original Schedule 13D.
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Exhibit 7
SETTLEMENT AGREEMENT
This Settlement Agreement, dated as of February 3, 1995 (the "Execution
Date"), is made by and among PAUL F. SHOEN ("P. SHOEN"); AMERCO, a Nevada
corporation; EDWARD J. SHOEN, RICHARD J. HERRERA, MARK V. SHOEN, AUBREY K.
JOHNSON, WILLIAM E. CARTY, JAMES P. SHOEN, CHARLES J. BAYER and JOHN M. DODDS
(collectively, the "AMERCO DIRECTORS"); the AMERCO EMPLOYEE SAVINGS, PROFIT
SHARING AND EMPLOYEE STOCK OWNERSHIP PLAN (the "AMERCO ESOP"); and DONALD W.
MURNEY and GARY B. HORTON (with EDWARD J. SHOEN, the "ESOP TRUSTEES").
I. RECITALS
A. THE PROXY LITIGATION.
1.1 On or about July 19, 1994, P. Shoen filed a complaint in the
United States District Court for the District of Nevada (the "District Court"),
asserting claims for legal and equitable relief against AMERCO, the AMERCO
DIRECTORS, the AMERCO ESOP and the ESOP TRUSTEES, under the caption PAUL F.
SHOEN v. AMERCO, et al., Case No. CV-N-94-0475-ECR (hereinafter referred to as
the "PROXY LITIGATION").
1.2 On or about July 20, 1994, the District Court entered its Order
temporarily restraining the holding of AMERCO's 1994 Annual Meeting (the "TRO").
Subsequent orders of the District Court extended the effect of the TRO until the
District Court's ruling on P. SHOEN's application for a preliminary injunction,
which is discussed below.
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1.3 On or about October 5, 1994, the District Court entered its
Memorandum and Order, vacating the TRO, and issuing a preliminary injunction
granting certain relief (the "Preliminary Injunction").
1.4 On or about October 11, 1994, AMERCO and the AMERCO DIRECTORS,
and the AMERCO ESOP and the ESOP TRUSTEES, filed their respective Notices of
Appeal from the Preliminary Injunction to the United States Court of Appeals for
the Ninth Circuit. The appeal taken by AMERCO and the AMERCO DIRECTORS bears
Case No. 94-16812, and the appeal taken by the AMERCO ESOP and the ESOP TRUSTEES
bears Case No. 94-16809 (collectively, the "FIRST APPEALS").
1.5 On or about October 24, 1994, the District Court entered an Order
in the PROXY LITIGATION, modifying the Preliminary Injunction (the "Modifying
Order").
1.6 On or about November 10, 1994, AMERCO and the AMERCO DIRECTORS,
and the AMERCO ESOP and ESOP TRUSTEES, filed their respective Notices of Appeal
from the Modifying Order to the United States Court of Appeals for the Ninth
Circuit. The appeal taken by AMERCO and the AMERCO DIRECTORS bears Case No. 94-
17101, and the appeal taken by the AMERCO ESOP and the ESOP TRUSTEES bears Case
No. 94-17103 (collectively, the "SECOND APPEALS").
1.7 As of the Execution Date, there has been no final adjudication on
the merits of any claim, defense, allegation or issue in the PROXY LITIGATION,
and there has been no final ruling
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or determination in the FIRST APPEALS or the SECOND APPEALS.
B. THE PAUL SHOEN ARBITRATION.
1.8 On or about April 8, 1994, P. SHOEN commenced an arbitration
proceeding against AMERCO pursuant to Section 4.11 of that certain Share
Repurchase and Registration Rights Agreement between P. SHOEN and AMERCO, dated
as of March 1, 1992 (the "Registration Rights Agreement").
1.9 In his arbitration proceeding initiated on or about April 8,
1994, P. SHOEN requested various forms of relief. (The arbitration claims and
proceedings initiated by P. SHOEN are referred to hereinafter as the "PAUL SHOEN
ARBITRATION".)
1.10 As of the Execution Date, there has been no adjudication on the
merits of any claim, defense, allegation or issue in the PAUL SHOEN ARBITRATION.
C. THE DEFENSE COSTS DISPUTE.
1.11 On or about August 2, 1988, an action was commenced in the
Superior Court of the State of Arizona, Maricopa County, by certain AMERCO
shareholders, against, INTER ALIA, the persons who constituted the AMERCO Board
of Directors as of July 1988, including P. SHOEN. That lawsuit is captioned
SAMUEL W. SHOEN, M.D., ET AL. V. EDWARD J. SHOEN, ET AL., Case No. CV 88-20139
(the "SHAREHOLDER LITIGATION").
1.12 On or about December 5, 1989, P. SHOEN entered into an Indemnity
Agreement with AMERCO, dated as of February 6, 1989.
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1.13 During the trial of the SHAREHOLDER LITIGATION from August to
October 1994, P. SHOEN was separately represented by counsel of his own
choosing.
1.14 A dispute has arisen between P. SHOEN and AMERCO concerning the
extent of AMERCO's obligation, if any, to bear the cost of separate and
independent counsel chosen by P. SHOEN in the SHAREHOLDER LITIGATION, and in any
future appeal(s) and/or retrial(s) of the SHAREHOLDER LITIGATION (the "DEFENSE
COSTS DISPUTE").
D. THE P. SHOEN REGISTRATION.
1.15 On or about September 1, 1994, P. SHOEN gave notice to AMERCO of
his intention to register and sell 500,000 shares of his AMERCO common stock
pursuant to the Registration Rights Agreement (the "P. SHOEN Registration").
1.16 On or about December 29, 1994, AMERCO commenced an arbitration
proceeding against P. SHOEN demanding arbitration of certain disputes related to
the P. SHOEN Registration (the "AMERCO Arbitration").
E. THE REVISION OF THE RIGHT OF FIRST REFUSAL.
1.17 On or about January 10, 1995 AMERCO modified the right of first
refusal contained in its Bylaws as reflected on Exhibit No. 1 which is attached
hereto. A fundamental assumption of the parties' settlement negotiations is
that this modification will remain in effect.
F. THE SETTLEMENT CONFERENCE.
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1.18 On or about December 14, 1994, upon motion filed by AMERCO and
the AMERCO DIRECTORS in the PROXY LITIGATION, the District Court ordered all of
the parties to this Settlement Agreement (collectively, the "Parties" or,
individually, a "Party") to participate in a settlement conference before
Magistrate Judge Robert Johnston in Las Vegas, Nevada.
1.19 The Settlement Conference was convened by Magistrate Judge
Johnston on January 12, 1995 (hereinafter, the "Settlement Date"), and all of
the Parties to the Settlement Agreement participated therein, either directly or
through their authorized representatives.
1.20 At the Settlement Conference, the Parties hereto, represented by
counsel, freely and voluntarily negotiated and placed on the record before the
Magistrate Judge the terms of their settlement. The Parties enter into this
Settlement Agreement for the purpose of memorializing their settlement and
settling and compromising all the Parties' disputes in the PROXY LITIGATION, the
FIRST APPEALS, the SECOND APPEAL, the PAUL SHOEN ARBITRATION, the DEFENSE COSTS
DISPUTE, and any and all other claims or disputes based on any acts, events,
representations or omissions occurring on or before the Settlement Date, between
and/or among P. SHOEN and any or all of the other Parties to this Settlement
Agreement, except as specifically provided herein, without any Party to this
Settlement Agreement admitting or conceding, either expressly or implicitly, any
liability or wrongdoing whatsoever.
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II. SETTLEMENT TERMS
2.1 The Parties to this Settlement Agreement covenant and agree that,
upon the execution of this Settlement Agreement, they will instruct their
respective legal counsel promptly to sign and file with the District Court a
Stipulation for Dismissal of the PROXY LITIGATION in substantially the same form
as is attached hereto as Exhibit No. 2, and incorporated herein by this
reference. The Parties further covenant and agree that they will take such
further action, if any, as may be necessary to ensure that the PROXY LITIGATION
shall be dismissed promptly, with prejudice, each side to bear its own costs and
fees. The Parties further agree that if any third party attempts to intervene
as a plaintiff in the PROXY LITIGATION, AMERCO and/or the other defendants shall
be responsible for defending against and otherwise responding to such
intervention, and P. SHOEN shall be obligated only to join in any opposition
that AMERCO may submit and provide such reasonable assistance as AMERCO may
request, at AMERCO's expense. P. SHOEN covenants and agrees that he will not
encourage any third party to pursue any of the claims asserted in the PROXY
LITIGATION, and that he will not assist in any way any third party to pursue any
such claims; provided, however, that P. SHOEN may provide any discovery or
testimony required by law.
2.2 The Parties covenant and agree that, upon the execution of this
Settlement Agreement, they will instruct their respective counsel promptly to
sign and file with the Ninth Circuit the Stipulation for Dismissal of the FIRST
APPEALS and
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the SECOND APPEALS in substantially the same forms as are attached hereto as
Exhibit Nos. 3 and 4, and incorporated herein by this reference. The Parties
further covenant and agree that they will take such further action, if any, as
may be necessary to ensure that the FIRST APPEALS and the SECOND APPEALS shall
be dismissed promptly, each side to bear its own costs and fees.
2.3 P. SHOEN and AMERCO covenant and agree that, upon execution of
this Settlement Agreement by all Parties, they will instruct their respective
counsel promptly to sign and file with the arbitration panel in the PAUL SHOEN
ARBITRATION the Stipulation for Dismissal in substantially the same form as is
attached hereto as Exhibit No. 5, and incorporated herein by this reference. P.
SHOEN and AMERCO further covenant and agree that they will take such further
action, if any, as may be necessary to ensure that the PAUL SHOEN ARBITRATION
shall be dismissed promptly, each side to bear its own costs and fees.
2.4 AMERCO covenants and agrees that immediately upon the execution
of this Settlement Agreement by all Parties, it will pay to P. SHOEN the sum of
NINE HUNDRED TWENTY-FIVE THOUSAND and NO/100 DOLLARS ($925,000.00).
2.5 AMERCO covenants and agrees that it will afford to P. SHOEN the
same defense and indemnification rights that are afforded to the other
defendants in the SHAREHOLDER LITIGATION. Except to the extent of the
compromise of the DEFENSE COSTS DISPUTE provided in subparagraphs 2.5.1 through
2.5.4 of this Settlement Agreement, nothing set forth in this Settlement
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Agreement shall be deemed to limit, alter or otherwise affect the terms of P.
SHOEN's Indemnity Agreement with AMERCO dated as of February 6, 19989 (the
"Indemnity Agreement"), or any rights or obligations P. SHOEN may have under
applicable common or statutory law.
2.5.1 AMERCO covenants and agrees that if there is a retrial
of the SHAREHOLDER LITIGATION only as to P. SHOEN, AMERCO will reimburse P.
SHOEN for the defense costs and fees for counsel of P. SHOEN's own choosing,
including the costs and fees incurred by P. SHOEN for any subsequent appeal(s).
2.5.2 AMERCO covenants and agrees that if there is a retrial
limited to the issue of damages in the SHAREHOLDER LITIGATION as to multiple
defendants, including P. SHOEN, AMERCO will pay up to FIFTY THOUSAND and NO/100
DOLLARS ($50,000.00) to reimburse P. SHOEN for separate defense costs and fees
for counsel of P. SHOEN's own choosing incurred for such retrial, including any
subsequent appeal(s) therefrom. In exchange, P. SHOEN covenants and agrees that
AMERCO shall not be obligated, in connection with such retrial, including any
subsequent appeal(s) therefrom, to reimburse P. SHOEN for in excess of FIFTY
THOUSAND and NO/100 DOLLARS ($50,000.00) for separate defense costs and fees
incurred by P. SHOEN.
2.5.3 AMERCO covenants and agrees that if there is a retrial
of liability and damages in the SHAREHOLDER LITIGATION as to multiple
defendants, including P. SHOEN, AMERCO will pay up to ONE HUNDRED THOUSAND and
NO/100 DOLLARS
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($100,000.00) to reimburse P. SHOEN for separate defense costs and fees for
counsel of P. SHOEN's own choosing incurred for such retrial, including any
subsequent appeal(s) therefrom. In exchange, P. SHOEN covenants and agrees that
AMERCO shall not be obligated, in connection with such retrial, including any
subsequent appeal(s) therefrom, to reimburse P. SHOEN for in excess of ONE
HUNDRED THOUSAND and NO/100 DOLLARS ($100,000.00) for separate defense costs and
fees incurred by P. SHOEN.
2.5.4 P. SHOEN covenants and agrees that if there is an
appeal from the Superior Court's rulings on any or all of the post-trial motions
pending in the SHAREHOLDER LITIGATION as of the Settlement Date, and that appeal
involves multiple defendants, including P. SHOEN, without an intervening trial,
P. SHOEN, and not AMERCO, will bear the costs and fees for separate counsel of
his own choosing, if any, incurred in connection with such appeal.
2.5.5 To the extent, if any, that P. SHOEN decides to have
his interests in any proceedings in the SHAREHOLDER LITIGATION represented by
the legal counsel provided by AMERCO for the representation of the other
defendants, AMERCO covenants and agrees that it will pursue and protect P.
SHOEN's interests equally with the interests of the other defendants.
2.6 The AMERCO DIRECTORS, in the exercise of their business judgment,
agree to nominate P. SHOEN as one of the AMERCO DIRECTORS' slate of candidates
for election to the AMERCO
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Board of Directors for a term expiring at the 1998 AMERCO Annual Meeting, which
position will be filled at AMERCO's 1994 Annual Meeting (I.E., at the first
Annual Meeting of AMERCO shareholders held after the date of this Settlement
Agreement or an adjournment or postponement thereof). AMERCO shall solicit
proxies and otherwise support the election of P. SHOEN as a Director at the 1994
Annual Meeting in the same manner and with the same resources and materials as
it uses on behalf of all other candidates on the AMERCO DIRECTORS' slate. P.
SHOEN covenants and agrees that he will not solicit proxies for any candidate
for election to the AMERCO Board of Directors at the 1994 Annual Meeting. The
AMERCO DIRECTORS make no representation as to the likelihood of success of their
slate of candidates for election to the Board of Directors at the 1994 Annual
Meeting. In the event that P. SHOEN is elected to the AMERCO BOARD, he shall
have the same rights, privileges and perquisites as a director as are afforded
to each of the other directors.
2.7 P. SHOEN covenants and agrees that he will run at the 1994 Annual
Meeting of AMERCO shareholders only as one of AMERCO's management's candidates
for Director, and that he will not also run in the 1994 Annual Meeting election
as a Director candidate of any other group or constituency. P. SHOEN further
covenants and agrees that he will not conduct his own proxy campaign in support
of or in opposition to any proposal for decision by shareholder vote at the 1994
Annual Meeting of AMERCO Annual Meeting originally scheduled for July 21, 1994,
and he
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covenants and agrees that he will not submit any new proposals or nominations
for the 1994 Annual Meeting. Nothing contained in this paragraph shall be
deemed to limit or restrict P. SHOEN's ability to submit nominations or
proposals, or to solicit proxies, for the 1995 and later Annual Meetings of
AMERCO. Similarly, nothing contained in this paragraph shall be deemed to
obligate any Party to this Settlement Agreement to nominate and/or support P.
SHOEN for election to the AMERCO Board of Directors at any Annual Meeting other
than the 1994 Annual Meeting.
2.8 P. SHOEN hereby reaffirms and ratifies that certain Amended and
Restated Stockholder Agreement dated as of May 1, 1992, to which P. SHOEN is a
party (the "Stockholder Agreement"), and acknowledges that he shall remain bound
by the Stockholder Agreement in accordance with the terms of this Settlement
Agreement. P. SHOEN covenants and agrees with EDWARD J. SHOEN, MARK V. SHOEN,
JAMES P. SHOEN and the ESOP TRUSTEES (collectively, the "Stockholder Parties"),
for and on behalf of the AMERCO Employee Savings and Profit Sharing and Employee
Stock Ownership Trust (the "ESOP Trust"), that if the Stockholder Agreement is,
or shall be declared to have been, terminated or invalidated for any reason as a
result of any default, breach, failure to perform, omission or action which
occurred prior to the Settlement Date (or any future court ruling based on such
prior default, breach, failure to perform, omission or action), P. SHOEN will
promptly enter into a new agreement with EDWARD J.
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SHOEN, MARK V. SHOEN, JAMES P. SHOEN and, if they so choose, the ESOP TRUSTEES
(or any successor Trustees, as the case may be), for and on behalf of the ESOP
Trust, as well as any other stockholder of AMERCO common stock who desires to
become a party to such agreement in accordance with its terms, to combine the
voting power of P. SHOEN's AMERCO common stock voted respectively by EDWARD J.
SHOEN, MARK V. SHOEN, JAMES P. SHOEN and, if they so choose, the ESOP TRUSTEES
(or any successor Trustees, as the case may be), for and on behalf of the ESOP
Trust, as well as the voting power of the AMERCO common stock voted by any other
AMERCO stockholder who desires to become a party to such agreement in accordance
with its terms, on the same terms and conditions as those contained in the
Stockholder Agreement, for the remainder of the full term established in the
Stockholder Agreement (I.E., until March 5, 1999). P. SHOEN expressly
acknowledges and warrants that his agreement, as set forth in the immediately
preceding sentence, is not merely an agreement to agree, but rather is a
statement of his present intention and agreement that he will continue to be
bound by the terms and provisions set forth in the Stockholder Agreement for the
duration of its term. P. SHOEN and the Stockholder Parties covenant and agree
that they will vote in favor of the AMERCO DIRECTORS' slate of candidates for
election at the 1994 Annual Meeting, including P. SHOEN.
2.9 AMERCO and the AMERCO DIRECTORS covenant and agree that they will
proceed in good faith to select and appoint three
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independent Trustees for the AMERCO ESOP.
III. RELEASES.
3.1 In consideration of the promises and covenants set forth in this
Settlement Agreement, P. SHOEN, for himself and his marital community, heirs,
executors, administrators, assigns, agents, representatives and beneficiaries,
does hereby release and forever discharge AMERCO, the AMERCO DIRECTORS, the
AMERCO ESOP and the ESOP TRUSTEES, and their respective marital communities,
predecessors, successors, affiliates, parents, subsidiaries, agents,
representatives, servants, employees and attorneys, of and from any and all
claims, liabilities, demands and causes of action of whatsoever nature, whether
known or unknown, asserted or unasserted, for any and all relief, damages or
losses of whatsoever nature, whether contractual or extracontractual, direct or
consequential, known or unknown, which are based upon or arise from events,
acts, representations or omissions occurring on or before the Settlement Date.
3.2 In consideration of the promises and covenants set forth in this
Settlement Agreement, AMERCO, the AMERCO DIRECTORS, the AMERCO ESOP, and the
ESOP TRUSTEES, for themselves and their respective marital communities,
predecessors, successors, affiliates, parents, subsidiaries, heirs, assigns,
executors, administrators, agents, representatives and beneficiaries, do hereby
release and forever discharge P. SHOEN, his marital community, and his agents,
representatives, servants, employees and attorneys, of and from any and all
claims, liabilities,
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demands and causes of action or whatsoever nature, whether known or unknown,
asserted or unasserted, for any and all relief, damages or losses of whatsoever
nature, whether contractual or extracontractual, direct or consequential, known
or unknown, which are based upon or arise from events, acts, representations or
omissions occurring on or before the Settlement Date.
3.3 Nothing contained in this Settlement Agreement, including the
releases set forth in paragraphs 3.1 and 3.2, shall be deemed to release,
discharge or otherwise affect (a) the claims asserted by AMERCO in the AMERCO
Arbitration; (b) any claim that might be asserted after the Settlement Date by
P. SHOEN or by AMERCO relating to the P. SHOEN Registration, regardless of
whether such claim is based upon acts or events occurring before the Settlement
Date; (c) any claim or cause of action of Sophia M. Shoen against any Party
hereto, and any claim or cause of action against Sophia M. Shoen by any Party
hereto; (d) any claim for contribution or indemnity against any Party to this
Settlement Agreement with respect to any claim or liability arising out of the
SHAREHOLDER LITIGATION; and (e) any right, duty or obligation of any Party
hereto, after the Settlement Date, pursuant to this Settlement Agreement, the
Registration Rights Agreement, the Stockholder Agreement, the P. SHOEN Merger
Option Agreement, the Stockholder Agreement, the P. SHOEN Merger Option
Agreement dated as of March 1, 1992 and/or P. SHOEN's Consulting Agreement with
AMERCO dated as of March 5, 1992.
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IV. MISCELLANEOUS PROVISIONS
4.1 This Settlement Agreement contains all of the material terms and
provisions that were negotiated among the Parties at the Settlement Conference
in the PROXY LITIGATION on January 12, 1995, and is the complete and exclusive
statement of the entire settlement agreement among the Parties hereto. No Party
has relied upon any representations, covenants, agreements or warranties of any
kind, by, between or among any of the Parties hereto, relating to any of the
terms or provisions contained in this Settlement Agreement, that are not set
forth specifically herein.
4.2 This Settlement Agreement may not be modified except by a writing
signed by all Parties hereto.
4.3 This Settlement Agreement, and all of the rights and obligations
set forth herein, shall be binding upon and inure to the benefit of the Parties
hereto, their respective marital communities, and their successors, heirs and
assigns.
4.4 The Parties to this Settlement Agreement, for themselves and for
their successors, heirs, assigns, personal representatives, administrators and
marital communities, hereby represent and warrant to each other that (a) they
have full capacity and authority to enter into, execute, deliver and perform
this Settlement Agreement; and (b) they have not assigned or transferred any
claim, liability, demand or cause of action released by paragraphs 3.1 and 3.2
above.
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4.5 This Settlement Agreement is to be construed and enforced in
accordance with the laws of the State of Nevada.
4.6 This Settlement Agreement may be executed by the Parties hereto
in any number of counterparts, and each counterpart shall be deemed a duplicate
original. Similarly, a photocopy or facsimile of any signature page signed in
counterpart by any Party to this Settlement Agreement shall be deemed a
duplicate original, provided the original or a photocopy thereof is delivered to
counsel for P. SHOEN and AMERCO within five business days of the Execution Date.
/s/ Paul F. Shoen
----------------------------------
PAUL F. SHOEN
AMERCO, a Nevada corporation
By
------------------------
Its
------------------------
AMERCO EMPLOYEE SAVINGS, PROFIT
SHARING AND EMPLOYEE STOCK
OWNERSHIP PLAN
By /s/ Edward J. Shoen
------------------------
Trustee
By /s/ Donald W. Murney
-----------------------------
Trustee
By /s/ Gary B. Horton
-----------------------------
Trustee
/s/ Edward J. Shoen
-----------------------------
EDWARD J. SHOEN
-16-
<PAGE>
/s/ Mark V. Shoen
-----------------------------------
MARK V. SHOEN
/s/ James P. Shoen
----------------------------------
JAMES P. SHOEN
/s/ Richard J. Herrera
--------------------------------
RICHARD J. HERRERA
/s/ William E. Carty
----------------------------------
WILLIAM E. CARTY
/s/ Aubrey K. Johnson
----------------------------------
AUBREY K. JOHNSON
/s/ John M. Dodds
----------------------------------
JOHN M. DODDS
/s/ Charles J. Bayer
----------------------------------
CHARLES J. BAYER
/s/ Donald W. Murney
----------------------------------
DONALD W. MURNEY
/s/ Gary B. Horton
----------------------------------
GARY B. HORTON
APPROVED as to form and content:
LATHAM & WATKINS
Attorneys for Paul F. Shoen
By: /s/ Marc W. Rappel
----------------------------------
Marc W. Rappel
STREICH LANG, P.A.
Attorneys for AMERCO and
Edward J. Shoen, Mark V. Shoen,
James P. Shoen, Richard J. Herrera,
William E. Carty, and Aubrey K.
Johnson, in their capacities as
Directors of AMERCO
By: /s/ James A. Ryan
---------------------------------
James A. Ryan
CAHILL GORDON & REINDEL
Attorneys for Charles J. Bayer and
John M. Dodds, in their capacities
as Directors of AMERCO
-17-
<PAGE>
By: /s/ Lawrence A. Silverman
----------------------------------
Lawrence A. Silverman
GIBSON, DUNN & CRUTCHER
Attorneys for the AMERCO Employee
Savings, Profit Sharing and Employee
Stock Ownership Plan, and Gary B.
Horton, Edward J. Shoen and
Donald W. Murney, in their
capacities as Trustees of the AMERCO
Employee Savings, Profit Sharing and
Employee Stock Ownership Plan
By: /s/ Wayne W. Smith
----------------------------------
Wayne W. Smith
-18-
<PAGE>
AGREEMENT
1. This Agreement is effective as a full and binding agreement upon signatures
of the parties and or their agents. On full execution of this agreement, Paul
will pay to the Plaintiffs 1.5 million dollars ("Payment"). The Payment shall
be credited to a reduction of the principal amount of the Judgment in Maricopa
County Case CV-88-21039 ("Judgment").
2. If the Judgment has not been paid within 120 days after the below date,
Paul shall then take reasonable steps to demand that the Company pay off the
Judgment pursuant to his rights of indemnification. If needed, this shall
consist of an immediate demand for indemnification, litigation or arbitration if
the demand is denied, and appeal of any litigation if appropriate. Plaintiff
shall cooperate with Paul in such pursuit.
3. Paul may seek a ruling that this Agreement represents a good faith
settlement which bars any claims for indemnification or contribution against him
relating to the Judgment ("Good Faith Finding"). Paul may decide in his sole
discretion when and if to seek a Good Faith Finding. Plaintiffs shall cooperate
in seeking such Finding.
4. Upon execution of this Agreement, Plaintiff shall release any and all
execution of the Judgment against Paul or his property. Upon satisfaction of
the Judgment from any source, Plaintiffs shall execute and file a satisfaction
of the Judgment. In consideration of the foregoing, no interest shall accrue or
be payable by Paul personally, or Paul's assets, under the Judgment for any
period.
5. Except as set forth, nothing herein releases nor creates rights in third
parties who have not signed this Agreement. The Agreement does not affect the
rights of parties to this Agreement against third parties who are not parties to
this Agreement. The parties will execute further documents appropriate to carry
out this Agreement.
DATED THIS 25TH DAY OF APRIL, 1995.
/s/ L. S. Shoen /s/ Gil Shaw
- ----------------------------------- -----------------------
L. S. Shoen, for and on behalf of all Gil Shaw, attorney
Plaintiffs for L.S. Shoen et al
/s/ Paul Shoen
- ----------------------------------
Paul Shoen
