<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-B
FOR REGISTRATION OF SECURITIES OF
CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
National Auto Credit, INC.
- ----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 34-1816760
- --------------------------------------- -----------------------
(State of incorporation or organization) (IRS Employer ID No.)
30000 Aurora Road, Solon, OH 44139
- --------------------------------------- -----------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, with New York Stock Exchange
$.05 par value
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
<PAGE> 2
Item 1. General Information
The registrant, National Auto Credit, Inc., was organized as New Nac,
Inc., on October 27, 1995, as a corporation organized under the laws of the
State of Delaware. The registrant's fiscal year ends on January 31. The
registrant changed its name from New NAC, Inc. to National Auto Credit, Inc. in
connection with the succession transaction described in Item 2, below.
Item 2. Transaction of Succession
National Auto Credit, Inc. (nka ARAC, Inc.), a Delaware corporation
("Old NAC") (Commission file no. 1-11513), formed the registrant for the
purpose of creating a holding company structure pursuant to Section 251(g) of
the Delaware General Corporation Law. The structure will result, prior to the
effectiveness of this registration statement, from a merger (the "Merger") of a
second-tier subsidiary of Old NAC (NAC Transco, Inc.) with and into Old NAC,
whereby the registrant, a first-tier subsidiary of Old NAC (and the parent of
NAC Transco, Inc.), will become the parent of Old NAC.
Item 3. Securities to be Registered
The registrant is authorized to issue 30,000,000 shares of the
registrant's common stock, $.05 par value. Upon the Merger and prior to the
effectiveness of this registration statement, approximately 25,839,472 shares
of the registrant's common stock, $.05 par value, will be issued and
outstanding, none of which will be held by or for the account of the registrant
other than 1,289,568 additional shares of $.05 par value common stock held in
the Treasury.
Item 4. Description of Registrant's Securities to be Registered
All shares of common stock participate equally in dividends when and
as declared by the Board of Directors, and have equal rights on a
share-for-share basis to receive pro rata the net assests of the Company upon
liquidation or dissolution. The common stock is not redeemable and has no
preemptive or conversion rights and is fully paid and nonassessable when issued
and paid for. The holders of common stock are entitled to one vote per share
upon all matters submitted to the stockholders, including the election of
directors. The Board of Directors of the registrant is divided into three
classes, one third of which shall be elected at each annual meeting of
stockholders.
-1-
<PAGE> 3
Under the provisions of the registrant's restated certificate of
incorporation, in connection with any "Business Combination" between the
registrant and a holder of 20% or more of the registrant's capital stock
entitled to vote in the election of directors (an "Interested Person"),
approval of two-thirds of the shares of such capital stock not owned by the
Interested Person is required. A Business Combination means (i) any merger of
the registrant or its subsidiaries with an Interested Person, (ii) any sale,
lease or other disposition of all or any substantial part of the assets of the
registrant or its subsidiaries to an Interested Person, or (iii) any issuance
or delivery to an Interested Person of voting securities or securities
convertible into or exercisable for voting securities of the registrant or its
subsidiaries, unless certain conditions intended to insure the fairness of such
transaction have been satisfied.
Item 5. Financial Statements and Exhibits
FINANCIAL STATEMENTS. With reference to holders of the registrant's
common stock, $.05 par value, the capital structure and balance sheet of the
registrant immediately after the Merger will be substantially the same as those
of National Auto Credit immediately prior to the Merger. Accordingly, no
financial statements or related exhibits are filed with this registration
statement.
Exhibits
---------
2 Agreement of Merger
3(1) Restated Certificate of Incorporation of Registrant
3(2) By-Laws of Registrant
21 Subsidiaries of Registrant
-2-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
National Auto Credit, Inc.
Dated: December 27, 1995 By: /s/ Davida S. Howard
---------------------------------
Davida S. Howard
Vice President-Finance and
Controller
<PAGE> 1
EXHIBIT 2
AGREEMENT OF MERGER
BETWEEN
NATIONAL AUTO CREDIT, INC.
(A DELAWARE CORPORATION),
NAC TRANSCO, INC.
(A DELAWARE CORPORATION)
AND
NEW NAC, INC.
(A DELAWARE CORPORATION)
RECITALS
A. NATIONAL AUTO CREDIT, INC. ("NAC") is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is authorized to issue 30,000,000 shares of common stock, par
value of $.05 per share ("NAC Common Stock"), of which 25,839,472 shares are
issued and outstanding, and 2,000,000 shares of preferred stock, par value $.05
per share ("NAC Preferred Stock"), of which no shares are issued and
outstanding.
B. NAC Transco, Inc. ("Transco"), is a wholly owned subsidiary of
New NAC, Inc., a wholly owned subsidiary of NAC ("NEW NAC"). Both Transco and
NEW NAC are duly organized, validly existing and in good standing under the
laws of the State of Delaware. Transco is authorized to issue 1,500 shares of
common stock, without par value (the "Transco Common Stock"), of which 100
shares are issued and outstanding and owned by NEW NAC. NEW NAC is authorized
to issue 30,000,000 shares of common stock, par value $.05 per share ("NEW NAC
Common Stock"), and 2,000,000 shares of preferred stock, par value $.05 per
share ("NEW NAC Preferred Stock").
C. The Board of Directors of each NAC and Transco (collectively,
the "Constituent Corporations") has adopted resolutions approving this
Agreement of Merger (the "Agreement") in accordance with Section 251(b) and (g)
of the Delaware General Corporation Law (the "DGCL") without submitting the
Agreement to their respective stockholders for approval.
ARTICLE I
GENERAL
1.01 Merger and Surviving Corporation. Subject to the terms and
provisions of this Agreement, and in accordance with the DGCL, at the Effective
Time (as defined in Section 1.02 hereof) Transco shall be merged with and into
NAC (the "Merger"). NAC shall be the
<PAGE> 2
surviving corporation of the Merger and shall continue its corporate existence
under the laws of the State of Delaware. At the Effective Time, the separate
corporate existence of Transco shall cease.
1.02. Parties to Conversion and Exchange. The Constituent
Corporations and NEW NAC shall effect the Merger in accordance with and subject
to the terms of this Agreement.
1.03. Effectiveness. This Agreement, and such other documents and
instruments as are required by, and complying in all respects with, the DGCL
shall be delivered to the appropriate state officials for filing. The Merger
shall become effective upon the filing of this Agreement with the Secretary of
State of the State of Delaware (the "Effective Time").
1.04. Termination. This Agreement may be terminated at any time
prior to the Effective Time by any of the Constituent Corporations and NEW NAC
by written notice to the other Constituent Corporations and NEW NAC, as the
case may be, prior to the Effective Time.
1.05. Amendment. This Agreement may be amended by the written
agreement of the Constituent Corporations and NEW NAC, to the extent permitted
by law, at any time prior to the Effective Time.
ARTICLE II
CAPITAL STOCK
2.01. Merger. At the Effective Time, each share of NAC Common Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted and exchanged into one share of NEW NAC Common Stock and each share
of NEW NAC Common Stock issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted and exchanged into one share of NAC
Common Stock. No shares of NAC Common Stock shall cease to exist by reason of
such conversion and exchange and all shares of NAC Common Stock held in
treasury by NAC prior to the conversion and exchange shall become shares of NEW
NAC Common Stock likewise held by NEW NAC.
2.02. Certificates. Following the Effective Time, each holder of an
outstanding certificate or certificates theretofore representing shares of NAC
Common Stock may, but shall not be required to, surrender the same to NEW NAC
for issuance of a new certificate or certificates in such holder's name or for
transfer, and each such holder or transferee will be entitled to receive a
certificate or certificates representing the same number of shares of NEW NAC.
Without any further action on the part of NAC or NEW NAC, each outstanding
certificate which, immediately before the Effective Time, represented NAC
Common Stock, shall be deemed and treated for all corporate purposes to
represent the ownership of the same number of shares of NEW NAC Common Stock as
though a surrender or transfer and exchange had taken place.
- 2 -
<PAGE> 3
2.03. Cancellation of Transco Common Stock Held by NEW NAC.
Immediately upon the Effective Time, each share of Transco Common Stock issued
and outstanding immediately before the Effective Time shall be canceled and all
rights in respect thereof shall cease. NEW NAC, as the sole holder of such
Transco Common Stock, consents to such cancellation.
ARTICLE III
3.01. Certificate of Incorporation, By-Laws, Directors and Officers
of NAC. At the Effective Time, the Certificate of Incorporation, By-Laws,
directors and officers of NAC, immediately prior to the effective time shall be
the Certificate of Incorporation, By- Laws, directors and officers of NAC,
except that Article FIRST shall be amended and restated as follows:
FIRST: The name of the Corporation is ARAC, Inc.
[THIS SPACE LEFT BLANK INTENTIONALLY]
- 3 -
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Merger as of December 27, 1995.
NATIONAL AUTO CREDIT, INC.
By: /s/ Sam J. Frankino
_____________________________________
Name: Sam J. Frankino
Title: Chairman of the Board
NAC TRANSCO, INC.
By: /s/ Sam J. Frankino
____________________________________________
Name: Sam J. Frankino
Title: Chairman of the Board
NEW NAC, INC.
By: /s/ Sam J. Frankino
____________________________________________
Name: Sam J. Frankino
Title: Chairman of the Board
Each of the undersigned hereby certifies that the above Agreement of Merger has
been adopted pursuant to Section 251(g) of the Delaware General Corporation
Law, as amended, and that the conditions specified in the first sentence of
such Section 251(g) have been satisfied.
/s/ Thomas J. Dostart /S/ Thomas J. Dostart
_____________________________________ ______________________________________
Name: Thomas J. Dostart Name: Thomas J. Dostart
Secretary, National Auto Credit, Inc. Secretary, NAC Transco, Inc.
December 27, 1995 December 27, 1995
Date: _____________________________ Date: ________________________________
/s/ Thomas J. Dostart
_____________________________________
Name: Thomas J. Dostart
Secretary, New NAC, Inc.
December 27, 1995
Date: _____________________________
- 4 -
<PAGE> 1
EXHIBIT 3(1)
RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW NAC, INC.
NEW NAC, Inc., a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1) The name of the Corporation is NEW NAC, Inc. The date of
filing its original Certificate of Incorporation with the Secretary
of State was October 27, 1995.
2) This Restated Certificate of Incorporation amends the
Certificate of Incorporation to read in their entirety as set forth in the text
below, restates and integrates the Certificate of Incorporation as so amended,
and has been duly adopted in accordance with Sections 242 and 245 of the
Delaware General Corporation Law.
3) The text of the Certificate of Incorporation is amended hereby and
restated to read as herein set forth in full:
FIRST: The name of the Corporation is "National Auto Credit, Inc."
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 West Orange Street, in the City of Wilmington,
County of New Castle and the registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware. Without limiting
the generality of the foregoing, the purpose or purposes for which the
Corporation is formed are to engage in the business of purchasing, acquiring,
owning, leasing, selling, transferring, encumbering, generally dealing in,
repairing, renovating, and servicing all types of new and used automobiles,
trucks, and other motor vehicles and any parts or accessories used in
connection therewith; and the purchasing, acquiring, owning, selling, and
generally dealing in all types of supplies used by all types of motor vehicles.
In general, to do everything incidental or conducive to the full
accomplishment of the foregoing objects; and to do any and everything necessary
and proper to carry on any business authorized hereby, and to any other
legitimate business not expressly mentioned herein which is not prohibited by
the laws of the State of Delaware or the laws of any other state or
jurisdiction in which the Corporation does or may do business; and to exercise
all the powers conferred upon a corporation by the laws of the State of
Delaware, the above enumerated powers being merely descriptive and not limiting
as to any and all powers which the corporation may be authorized to do and
perform under the laws of the State of Delaware.
FOURTH: The Corporation is authorized to issue two classes of stock
to be designated respectively "preferred" and "common." The total number of
shares of all classes of stock
<PAGE> 2
which the Corporation shall have authority to issue is thirty-two million
(32,000,000) shares, consisting of thirty million (30,000,000) shares of common
stock, having a par value of five cents ($.05) per share, and two million
(2,000,000) shares of preferred stock, having a par value of five cents ($.05)
per share. The shares of preferred stock may be issued as a class without
series, or if so determined from time to time by the board of directors, either
in whole or in part in one or more series, each series to be expressly
designated by distinguishing number, letter, or title prior to the issue of any
shares thereof. The shares of preferred stock, and each series thereof, may
have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, liquidation, optional,
or other special rights and qualifications, limitations, or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
providing for the issue of such stock adopted by the board of directors of the
Corporation pursuant to the provisions of this Article FOURTH.
There is hereby expressly granted to the board of directors of the
Corporation authority to fix or alter the dividend rights, dividend rates,
dividend preferences and participations, conversion rights, voting rights,
rights, and terms of redemption (including sinking fund provisions), the
redemption price or prices, the rights and preferences in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation or upon any distribution of assets by the Corporation and any other
special rights, qualifications, limitations on and restrictions of, any wholly
unissued class or series of shares of preferred stock and the number of shares
constituting any such series and the designation thereof, or any of them, and
to increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series shall be
so decreased, the shares constituting such decrease shall resume the status
whichthey had prior to the adoption of the resolution originally fixing the
number of shares of such series.
Except to the extent otherwise provided in the resolution or
resolutions of the board of directors of the Corporation providing for the
initial issue of shares of a particular preferred series, any series shall be
entitled to vote for each share thereof so held, shall vote share for share
with the holders of the common stock without distinction as to class, and shall
not be entitled to vote separately as a class or series of a class. The number
of shares of preferred stock authorized to be issued may be increased or
decreased from time to time by the affirmative vote of the holders of a
majority of the stock of the corporation entitled to vote, and the holders of
the preferred stock shall not be entitled to vote separately as a class or
series of a class on any such increase or decrease.
The number of shares of preferred stock authorized to be issued may be
increased or decreased from time to time by the affirmative vote of the holders
of a majority of the stock of the Corporation entitled to vote, and the holders
of the preferred stock shall not be entitled to vote separately as a class or
series of a class on any such increase or decrease.
Subject to the prior and superior rights of the preferred stock set
forth in any resolution or resolutions of the board of directors of the
Corporation providing for the initial issuance of any particular series of
preferred stock, such dividends (payable in cash, stock, or otherwise) as may
be determined by the board of directors of the Corporation may be declared and
paid on the common stock from time to time out of any funds legally available
therefor, and the preferred stock shall not be entitled to participate in any
such dividend.
FIFTH: No holder of stock of the Corporation of any class shall have
any preferential, preemptive or other right to subscribe for or to purchase
from the Corporation any stock of the Corporation of any class, whether or not
now authorized, or to purchase any bonds, certificates of indebtedness,
debentures, notes, obligations or other issue whether or not the same shall be
- 2 -
<PAGE> 3
convertible into stock of the Corporation of any class, or shall entitle the
owner or holder to purchase stock of the Corporation of any class.
SIXTH: Any merger or consolidation of the Corporation with or into
any other corporation, or any sale, lease, exchange or other disposition of all
or substantially all of the property and assets of the Corporation to or with
any other corporation, person or other entity, with respect to which any
stockholder vote or consent is required by Law, shall require the affirmative
vote of the holders of at least two-thirds of each class of stock outstanding
and entitled to vote at any meeting of the stockholders. Such affirmative vote
shall be required notwithstanding the fact that some lesser percentage may be
specified by Law or otherwise. This Article SIXTH may not be altered, added
to, amended or repealed except by the affirmative vote the holders of
two-thirds in interest of each class of stock outstanding entitled to vote at a
meeting called for said purpose, provided notice of the proposed alteration,
addition, amendment or repeal shall have been given in the notice of such
meeting of stockholders.
In addition to any approval of the board of directors or any vote or
consent of stockholders required by the Laws of the State of Delaware or the
Certificate of Incorporation of this Corporation, any act or transaction by or
involving the surviving corporation (the "Surviving Corporation") of the merger
of NAC Transco, Inc. with and into the corporation then-known as National Auto
Credit, Inc., effected on December 27, 1995, pursuant to which this Corporation
became a holding company, which act or transaction requires for its adoption
under the Delaware General Corporation Law or the certificate of incorporation
of the Surviving Corporation the approval of the stockholders of the Surviving
Corporation, pursuant to Section 251(g) of the Delaware General Corporation
Law, shall require, in addition, the approval of the stockholders of this
Corporation (or any successor by merger), by the same vote as is required by
the Delaware General Corporation Law and/or the certificate of incorporation of
the Surviving Corporation.
In addition to any approval of the board of directors or any vote or
consent of stockholders required by the Laws of the State of Delaware or any
other provisions of the Corporation's Certificate of Incorporation or Bylaws or
otherwise, whether now or hereafter in effect, there shall be required for the
approval, adoption or authorization of any Business Combination (as defined
herein) with an Interested Person (as defined herein), or an affiliate or
associate of an Interested Person, the affirmative vote of the holders of at
least two-thirds of each class of shares of stock of the Corporation entitled
to vote in elections of directors, considered separately, which are not owned,
directly or indirectly, by such Interested Person, unless such Business
Combination has been approved by a majority of the Continuing Directors (as
defined herein) or unless all of the following conditions are satisfied:
(1) The consideration to be received per share in such Business
Combination by holders of the stock of the Corporation is payable in cash in an
amount not less than the highest price per share (including the highest per
share brokerage commission, transfer tax and soliciting dealers' fees) paid by
such Interested Person in acquiring any shares of each respective class or
series of the Corporation's stock, plus an amount per share equal to the per
share equivalent of the Corporation's Excess Current Assets. As used herein,
"Excess Current Assets" shall mean the total current assets of the Corporation
reduced by two times the total current liabilities of the Corporation. For
purposes of the foregoing, Excess Current Assets shall be the highest amount
shown on the audited balance sheets of the Corporation as of the close of all
fiscal years ending during the period commencing on the date such Interested
Person first acquired any shares of stock of the Corporation and terminating on
the fifteenth day prior to the date on which the proxy statement referred to in
subparagraph 6 below is mailed to all stockholders of the Corporation;
provided, however, that if no such fiscal year ends during said period, the
date for determination of Excess Current Assets shall be the end of the fiscal
year immediately preceding the date of the initial purchase by such Interested
Person of shares of stock of the Corporation.
- 3 -
<PAGE> 4
For purposes of this provision, current assets and current liabilities of the
Corporation shall be determined on a consolidated basis as shown on the audited
financial statement of the Corporation and all of its subsidiaries for the
applicable fiscal year; and
(2) The consideration to be received per share in such Business
Combination by holders of the stock of the Corporation is payable in cash in an
amount not less than the aggregate of the earnings per share of Common Stock of
the Corporation for the four full consecutive fiscal quarters, or the last
fiscal year reported, whichever is higher, immediately preceding the record
date for solicitation of votes with respect to such Business Combination,
multiplied by the then price/earnings ratio (if any) of such Interested Person
as customarily computed and reported to the financial community; and
(3) The consideration to be received per share in such Business
Combination by holders of the stock of the Corporation bears at least the same
or a greater percentage relationship to the market price of the Corporation's
Common Stock immediately prior to the announcement of such Business Combination
as the highest per share price (including the highest per share brokerage
commission, transfer tax and soliciting dealers' fees) which such Interested
Person has theretofore paid for any of the shares of stock of the Corporation
already owned by it bears to the market price of the Corporation's Common Stock
immediately preceding the first acquisition of any stock of the Corporation by
such Interested Person; and
(4) From and after the time such Interested Person became the
beneficial owner of twenty percent (20%) or more of the stock of the
Corporation entitled to vote in the election of directors and prior to the
consummation of such Business Combination (i) such Interested Person shall have
taken all steps within its power, including without limitation the voting of
its stock in the Corporation, to insure that the Corporation's board of
directors includes at all times representation by Continuing Director(s) (as
defined herein) at least proportionate to the stock holdings of the
Corporation's stockholders not affiliated with such Interested Person (with a
Continuing Director to occupy any resulting fractional board position); (ii)
such Interested Person shall not have acquired any newly issued shares of stock
or treasury stock, directly or indirectly, from the Corporation (except upon
conversion of convertible securities acquired by it prior to obtaining a 20%
interest in the stock of the Corporation or as a result of a pro rata stock
dividend or stock split); (iii) such Interested Person shall not have acquired
any additional shares of the Corporation's outstanding stock or securities
convertible into stock of the Corporation except as part of the transaction
which results in such Interested Person acquiring its 20% interest; and (iv)
there shall have been no reduction in the dividends paid on the Corporation's
stock which would result in a quarterly dividend per share which is less than
the most recent quarterly dividend per share which has been declared by the
board of directors of the Corporation and approved by a majority of the
Continuing Directors. For purposes of this subparagraph 4, the term "dividend"
shall not include extra dividends; the most recently quarterly dividend per
share shall be adjusted for any subsequent increase or decrease in the
outstanding stock of the Corporation; and if the board of directors shall fail
to authorize any quarterly dividend, the dividend per share shall be considered
zero; and
(5) At any time prior to the consummation of such Business
Combination, such Interested Person shall not have (i) made any major change in
the Corporation's equity capital structure or business without the approval of
a majority of the Continuing Directors and/or (ii) received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or tax credits
provided by the Corporation;
(6) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, as amended, shall be mailed to all
stockholders of the Corporation for the purpose of soliciting stockholder
approval of such Business Combination and shall contain at the front
- 4 -
<PAGE> 5
thereof, in a prominent place, any recommendations as to the advisability (or
inadvisability) of such Business Combination which the Continuing Directors, or
any of them, may choose to state and, if deemed necessary or desirable by a
majority of the Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness (or lack thereof) of the terms of such Business
Combination from the point of view of stockholders of the Corporation who are
not affiliated with such Interested Person (such investment banking firm to be
selected by a majority of the Continuing Directors and to be paid a reasonable
fee for its services by the Corporation upon receipt of such opinion).
For the purposes of this Article SIXTH:
(1) "Affiliate" and "associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
(2) A person shall be the "owner" and "owns" shares of stock of
the Corporation (other than shares of the Corporation's stock held in its
treasury): (i) which such person and its affiliates and associates own
beneficially, directly or indirectly, whether of record or not; (ii) which such
person or any of its affiliates or associates has the right to acquire,
pursuant to any agreement upon the exercise of conversion rights, warrants or
options, or otherwise; (iii) which such person or any of its affiliates or
associates has the right to sell or vote pursuant to any agreement, or (iv)
which are owned, directly or indirectly, by any other person with which such
first mentioned person, its affiliates or associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation.
(3) "Business Combination" means:
(a) Any merger or consolidation of the Corporation or any
subsidiary of the Corporation with or into any Interested Person
(regardless of the identity of the surviving corporation);
(b) Any sale, lease, or other disposition of all or any
substantial part of the assets of the Corporation or any subsidiary of
the Corporation to any Interested Person for cash or securities or
both;
(c) Any issuance or delivery of securities of the
Corporation or a subsidiary of the Corporation (which the owner shall
have the right to vote, or to vote upon exercise, conversion or by
contract) to an Interested Person in consideration for or in exchange
of any securities or other property (including cash) or both.
(4) "Interested Person" is any person, together with its
affiliates and associates, which (i) as of the record date for the
determination of stockholders entitled to notice of any proposed Business
Combination or any amendment to this Article SIXTH, and to vote thereon or
consent there to, or as of the date of any such vote or consent, or immediately
prior to the consummation of any Business Combination, owns, directly or
indirectly, twenty percent (20%) or more of the shares of stock of the
Corporation entitled to vote in elections of directors; or (ii) as of any of
the dates specified in clause (i) of this Paragraph (4) is an affiliate of the
Corporation and at any time prior thereto owned 20 percent or more of the
shares of stock of the Corporation entitled to vote in elections of directors.
(5) "Person" is an individual, partnership, corporation, trust or
other entity.
- 5 -
<PAGE> 6
(6) "Subsidiary of the Corporation" is any corporation of which
fifty percent (50%) or more of any class of stock is beneficially owned,
directly or indirectly, by the Corporation.
(7) "Stock of the Corporation" shall mean shares of any class or
series of Capital Stock of the Corporation.
(8) "Continuing Director" shall mean a person (i) who is a member
of the board of directors of the Corporation elected prior to the time that an
Interested Person became the beneficial owner of fifteen percent of the stock
of the Corporation entitled to vote in the election of directors, or (ii) if
there is no Interested Person, a member of the board of directors, or (iii) a
member of the board of directors who was recommended or elected to succeed a
Continuing Director by a majority of the other Continuing Directors.
A majority of the Continuing Directors shall have the sole and
exclusive power and duty to determine for the purposes of this Article SIXTH,
on the basis of information known to them, whether (i) any person beneficially
owns more than 20 percent of the shares of stock of the Corporation entitled to
vote in elections of directors, (ii) any person is an affiliate or associate of
another, and (iii) any person has an agreement arrangement or understanding
with another.
Nothing contained in this Article Sixth shall be construed to relieve
any Interested Person from any obligations or duties otherwise required by law.
No amendment to these Articles of Incorporation shall amend, alter,
change or repeal any of the provisions of this Article SIXTH, unless such
amendment, in addition to receiving any stockholder vote or consent required by
the laws of the State of Delaware or any other provision of the Articles of
Incorporation in effect at the time, shall receive the affirmative vote or
consent of the holders of at least two-thirds of the shares of stock of the
Corporation entitled to vote in elections of directors which are not owned,
directly or indirectly, by an Interested Person if the vote or consent on such
amendment were a vote or consent on a Business Combination.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders of the Corporation
shall not be subject to the payment of corporate debts to any extent whatever.
NINTH: At all elections of directors of the Corporation, each
stockholder shall be entitled to one vote for each share of the capital voting
stock of the Corporation held by such stockholder, and there shall be no right
to cumulate votes of said shares at an election of directors of the
Corporation.
TENTH: The board of directors shall have power without stockholder
action, to make, amend or repeal any or all By-Laws of the Corporation. In
addition to the powers and authorities herein or by statute expressly conferred
upon it, the board of directors may exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation, subject
nevertheless, to the provisions of the laws of the State of Delaware, of the
Certificate of Incorporation and of the By-Laws of the Corporation.
ELEVENTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this
- 6 -
<PAGE> 7
corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
TWELFTH: The Corporation may purchase, from time to time, and to the
extent permitted by the Laws of Delaware, shares of any class of stock issued
by it. Such purchases may be made either in the open market or at private or
public sale, and in such manner and amounts, from such holder or holders of
outstanding shares of the Corporation and at such prices as the board of
directors of the Corporation shall from time to time determine, and the board
of directors is hereby empowered to authorize such purchases from time to time
without any vote of the holders of any class of shares now or hereafter
authorized and outstanding at the time of any such purchase.
THIRTEENTH: Any director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation as
a vendor, purchaser, employee, agent, lessor, lessee or otherwise.
No transaction contract or other act of the Corporation shall be void
or voidable or in any way affected or invalidated by reason of the fact that
any director or officer, or any firm or corporation in which such director or
officer is a member or is a shareholder, director or officer, is in any way
interested in such transaction, contract or other act provided the fact that
such director, officer, firm or corporation is so interested shall be disclosed
or shall be known to the board of directors or such members thereof as shall be
present at any meeting of the board of directors at which action upon any such
transaction, contract or other act shall be taken; nor shall any such director
or officer be accountable or responsible to the Corporation for or in respect
of any such transaction, contract or other act of the Corporation or for any
gains or profits realized by him by reason of the fact that he or any firm of
which he is a member or any corporation of which is a shareholder, director or
officer is interested in such transaction, contract or other act; and any such
director may be counted in determining the existence of a quorum at any meeting
of the board of directors of the corporation which shall authorize or take
action in respect of any such transaction, contract or other act, and may vote
thereat to authorize, ratify or approve any such transaction, contract or other
act with like force and effect as if he or any firm of which he is a member or
any corporation of which is a shareholder, director or officer were not
interested in such transaction, contract or other act.
FOURTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation
in the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, directors and officers are subject to this
reserved power.
FIFTEENTH: No director shall be personally liable to the Corporation
or any stockholder for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived improper personal benefit.
- 7 -
<PAGE> 8
Each person who is or was made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis for such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided
hereinafter, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
herein shall be a contract right and shall include the right to be paid by the
Corporation for the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon the delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified hereunder or otherwise. The Corporation may, by action of its
Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
If a claim under this Article FIFTEENTH is not paid in full by the
Corporation within thirty (30) days after written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
- 8 -
<PAGE> 9
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article FIFTEENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation, By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss under the Delaware General
Corporation Law.
[THIS SPACE LEFT BLANK INTENTIONALLY]
- 9 -
<PAGE> 10
IN WITNESS WHEREOF, this certificate was executed this 27th day of
December, 1995.
/s/ Sam J. Frankino
___________________________________
SAM J. FRANKINO,
Chairman of the Board of Directors
ATTEST:
By /s/ Thomas J. Dostart
_________________________________
Thomas J. Dostart, Secretary
<PAGE> 1
EXHIBIT 3(2)
NEW NAC, INC.
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
<S> <C> <C>
Offices
- -------
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Fiscal Year - Stockholders
- --------------------------
Section 1. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 4. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Notice of Meetings and Adjourned Meetings . . . . . . . . . . . . . . . . . 2
Section 6. Stockholders' List . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Quorum and Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 8. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 9. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 10. Action of Stockholders Without a Meeting . . . . . . . . . . . . . . . . . 4
ARTICLE III
Board of Directors
- ------------------
Section 1. Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2. Election of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
- i -
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 9. Telephone Communication . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 10. Action of Directors Without a Meeting . . . . . . . . . . . . . . . . . . . 8
Section 11. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 12. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 13. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
Notices
- -------
Section 1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
Officers
- --------
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3. Other Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6. Vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 7. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
- ii -
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 8. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9. Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 10. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 12. Controller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 13. Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
Loans, Checks, Deposits, etc.
- -----------------------------
Section 1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Loans and Evidence of Indebtedness . . . . . . . . . . . . . . . . . . . . 14
Section 3. Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Securities Held By the Corporation . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
Shares and Their Transfer
- -------------------------
Section 1. Share Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2. Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . 17
Section 3. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4. Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5. Protection of Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
Corporate Seal 18
- --------------
ARTICLE IX
Miscellaneous 18
- -------------
</TABLE>
- iii -
<PAGE> 4
BY-LAWS
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. OTHER OFFICES. The corporation may also have offices
at such other places both within and without the State of Delaware as the board
of directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
FISCAL YEAR - STOCKHOLDERS
Section 1. FISCAL YEAR. The first fiscal year of the corporation
shall end January 31, 1996 and thereafter commence on the first day of February
each year and end on the last day of January unless changed from time to time
by action of the board of directors.
Section 2. ANNUAL MEETING. The annual meeting of the
stockholders for the election of directors and for the transaction of any other
proper business, shall be held at such date and time during the first eight
months of each calendar year as shall be determined by the board of directors.
If no earlier date is determined by the board of directors, the annual meeting
shall be held on the fourth Tuesday in August of each year, if not a legal
holiday under the laws of the State where such meeting is to be held and if a
legal holiday under the laws of such State, then on the next succeeding
business day not a legal holiday under the laws of such State.
Section 3. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise provided by statute
or by the Certificate of Incorporation, may be
- 1 -
<PAGE> 5
called at any time by the chairman of the board, or the president, or any vice
president, or secretary, and shall be called by the president or secretary at
the request in writing of a majority of the directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Any such
request shall state the purpose or purposes of the proposed meeting.
Section 4. PLACE OF MEETINGS. All meetings of the stockholders
for the election of directors shall be held at such place either within or
without the State of Delaware as shall be designated from time to time by the
board of directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of such
meeting.
Section 5. NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Written
notice of the annual meeting or a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than fifty (50) days before the date of the meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice. When a meeting is adjourned to another time
or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty (30) days or if a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
Section 6. STOCKHOLDERS' LIST. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders,
- 2 -
<PAGE> 6
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
Section 7. QUORUM AND ADJOURNMENTS. At such meeting of the
stockholders, except as otherwise provided by statute or by the Certificate of
Incorporation, the holders of a majority of the issued and outstanding shares
of each class of stock entitled to vote thereat, present in person or
represented by proxy, shall be necessary and sufficient to constitute a quorum
for the transaction of business. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented.
Section 8. VOTING. When a quorum is present or represented at
any meeting, the vote of the holders of a majority of the shares of stock
having voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the Certificate of Incorporation or of
these By-Laws a different vote is required, in which case such express
provision shall govern and control the decision of such question.
- 3 -
<PAGE> 7
Section 9. PROXIES. At each meeting of the stockholders, each
stockholder shall, unless otherwise provided by the Certificate of
Incorporation, be entitled to one vote in person or by proxy for each share of
stock held which has voting power upon the matter in question, but no proxy
shall be voted after three years from its date, unless the proxy provides for a
longer period.
Section 10. ACTION OF STOCKHOLDERS WITHOUT A MEETING. Whenever
the vote of stockholders at a meeting thereof is required or permitted to be
taken for or in connection with any corporate action, whether by any provision
of the statutes or of the Certificate of Incorporation or otherwise, such
corporate action may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 1. NUMBER OF DIRECTORS. The number of directors
constituting the board shall be fixed from time to time by vote of a majority
of the entire board of directors; and no vacancy shall be deemed to exist in
the board unless and until the number of directors in office falls below the
number so fixed. No decrease in the number of directors shall shorten the term
of any incumbent director. Directors may, but need not, be stockholders.
- 4 -
<PAGE> 8
Section 2. ELECTION OF DIRECTORS. The directors shall be elected
at the annual meeting of stockholders, or if not so elected, at a special
meeting of stockholders called for that purpose. Directors shall hold office
for a term of three years and shall be divided into three classes so that
approximately one-third of the board shall stand for election at each annual
meeting of stockholders. At the annual meeting of stockholders in 1996, and at
each annual meeting thereafter, approximately one-third of the membership of
the board shall be elected for three year terms. If the number of directors is
changed, any increase or decrease in directors shall be apportioned among the
classes so as to maintain all classes as nearly equal in number as possible and
any individual director elected to any class shall hold office for a term which
shall coincide with the term of such class. At any meeting of stockholders at
which directors are to be elected, only persons nominated as candidates shall
be eligible for election, and the candidates receiving the greatest number of
votes shall be elected. Nominations for the election of directors may be made
by the board of directors. Nominations for election of directors may also be
made by any stockholder entitled to vote for the election of directors, by
notice in writing, delivered or mailed, postage prepaid, to the secretary of
the corporation not less than fourteen nor more than fifty days prior to any
meeting of the stockholders called for the election of directors. Each such
notice shall set forth the name, age, business address, residence address and
principal occupation or employment of each nominee proposed in such notice, and
the number of shares of stock of the corporation which are beneficially owned
by such nominee. The chairman of the meeting at which directors are to be
elected may, if the facts warrant, determine that a nomination was not made in
accordance with the foregoing procedure and, if the chairman should so
determine, the defective nomination shall be disregarded.
- 5 -
<PAGE> 9
Section 3. REMOVAL. Subject to any provision in the Certificate
of Incorporation to the contrary, any director may be removed with or without
cause, at any time by the affirmative vote of the holders of record of a
majority of the outstanding shares of stock entitled to vote in the election of
directors, at a special meeting of the stockholders called for that purpose;
and the vacancy in the board of directors caused by such removal may be filled
by the stockholders, or if not so filled, by a majority of the board of
directors remaining in office or by the sole remaining director.
Section 4. VACANCIES. A resignation from the board of directors
shall be deemed to take effect immediately or at such other time as the
director may specify. When one or more directors shall resign from the board,
effective at a future date, a majority of the directors then in office,
including those who have resigned, although less than a quorum, shall have the
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective. Newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the board for any reason may be filled by vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, at any meeting of the board. A director elected to
fill a vacancy shall be elected to hold office until the expiration of the term
of the class to which he or she has been elected and until a successor shall be
duly elected or qualified or until his or her earlier death, resignation or
removal.
Section 5. ANNUAL MEETING. After each annual election of
directors, on the same day the board of directors may meet for the purpose of
organization, the election of officers and the transaction of other business at
the place where the annual meeting of the stockholders for the election of
directors is held. Notice of such meeting need not be given. Such meeting may
be
- 6 -
<PAGE> 10
held at any other time or place which shall be specified in a notice given as
hereinafter provided for special meetings of the board of directors or in a
consent and waiver of notice thereof signed by all the directors.
Section 6. REGULAR MEETINGS. Regular meetings of the board of
directors may be held at such places (within or without the State of Delaware)
and at such times as the board shall by resolution determine. If any day fixed
for a regular meeting shall be a legal holiday at the place where the meeting
is to be held, then the meeting which would otherwise be held on that day shall
be held at such place at the same hour and on the next succeeding business day
not a legal holiday. Notice of regular meetings need not be given.
Section 7. SPECIAL MEETINGS. Special meetings of the board of
directors shall be held whenever called by the president, or by any vice
president, or by any two of the directors. Notice of each such meeting shall
be mailed to each director, addressed to such director at his or her residence
or usual place of business, at least three (3) days before the day on which the
meeting is to be held, or shall be sent to such director by telegraph, cable or
wireless so addressed, or shall be delivered personally or by telephone, at
least 24 hours before the time the meeting is to be held. Each such notice
shall state the time and place (within or without the State of Delaware) of the
meeting but need not state the purposes thereof, except as otherwise provided
by statute or by these By-Laws. Notice of any meeting of the board need not be
given to any director who shall be present at such meeting; and any meeting of
the board shall be a legal meeting without any notice thereof having been
given, if all of the directors then in office shall be present thereat.
Section 8. QUORUM. Except as otherwise provided by statute or by
these By-Laws, a majority of the total number of directors (or the closest
whole number thereto) shall be
- 7 -
<PAGE> 11
required to constitute a quorum for the transaction of business at any meeting,
and the affirmative vote of a majority of the directors present at a meeting at
which a quorum is present shall be necessary for the adoption of any resolution
or the taking of any other action. In the absence of a quorum, the director or
directors present may adjourn any meeting from time to time until a quorum be
had. Notice of any adjourned meeting need not be given.
Section 9. TELEPHONE COMMUNICATIONS. Members of the board of
directors or any committee thereof may participate in a meeting of such board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this subsection shall
constitute presence in person at such meeting.
Section 10. ACTION OF DIRECTORS WITHOUT A MEETING. Any action
required or permitted to be taken at any meeting of the board of directors or
of any committee thereof may be taken without a meeting if all members of the
board or of such committee, as the case may be, consent thereto in writing and
such written consent is filed with the minutes or proceedings of the board or
such committee.
Section 11. COMPENSATION. Directors, as such, shall not receive
any stated salary for their services, but by resolution of the board of
directors a fixed sum and expenses of attendance, if any, may be allowed for
attendance at such regular and special meeting of the board or of any committee
thereof. Nothing herein contained shall be construed so as to preclude any
director from serving the corporation in any other capacity, or from serving
any of its stockholders, subsidiaries or affiliated corporations in any
capacity, and receiving compensation therefor.
- 8 -
<PAGE> 12
Section 12. COMMITTEES. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of two or more of the directors of the
corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. Any such committee, to the extent provided in
the resolution, shall have and may exercise the powers of the board of
directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees, the member or members thereof present
at any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of any such absent or
disqualified member. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the board
of directors. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
Section 13. INDEMNIFICATION. The corporation shall indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or
served any other enterprise at the request of the corporation, against any and
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred in connection with such action,
suit or proceeding, in any circumstances,
- 9 -
<PAGE> 13
and to the full extent, permitted by Section 145 of the Delaware Corporation
Law, any amendment thereto, or any law of similar import.
ARTICLE IV
NOTICES
Section 1. NOTICES. Whenever under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be necessary
that personal notice be given, and such notice may be given in writing, by
mail, addressed to such director or stockholder, at such director or
stockholder's address as it appears on the records of the corporation or at his
or her residence or usual place of business, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegraph, cable or wireless, and such notice shall be deemed to be given when
the same shall be filed, or in person or by telephone, and such notice shall be
deemed to be given when the same shall be delivered.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to
be given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
- 10 -
<PAGE> 14
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a
chairman of the board, a president, one or more vice presidents, a secretary,
and a treasurer. Any two or more offices may be held by the same person.
Section 2. ELECTION OF OFFICERS. The officers shall be elected
by the board of directors and each shall hold office at the pleasure of the
board of directors until a successor shall have been duly elected and
qualified, or until such officer's death, or until such officer resigns or has
been removed in the manner hereinafter provided.
Section 3. OTHER OFFICERS. In addition to the officers named in
Section 1 of this Article, the corporation may have such other officers and
agents as may be deemed necessary by the board of directors. Such other
officers and agents shall be appointed in such manner, have such duties and
hold their offices for such terms, as may be determined by resolution of the
board of directors.
Section 4. RESIGNATION. Any officer may resign at any time by
giving written notice of resignation to the board of directors, to the
president or to the secretary of the corporation. Any such resignation shall
take effect at the time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 5. REMOVAL. Any officer may be removed, either with or
without cause, by action of the directors.
Section 6. VACANCY. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled by the board of
directors.
- 11 -
<PAGE> 15
Section 7. CHAIRMAN OF THE BOARD. The chairman of the board
shall be the chief executive officer of the corporation, shall preside at all
meetings of stockholders and of the board of directors, shall have general
control and management of the business affairs and policies of the corporation,
and shall see that all orders and resolutions of the board of directors are
carried into effect. Except where by law the signature of the president is
required, the chairman of the board shall possess the same power as the
president to sign all certificates, contracts, and other instruments of the
corporation. During the absence or disability of the president, the chairman
of the board shall exercise all the powers and discharge all of the duties of
the president. The chairman shall have such other powers and perform such
other duties as from time to time may be conferred or imposed upon the chairman
by the board of directors.
Section 8. PRESIDENT. The president of the corporation shall be
the chief operating officer of the corporation. During the absence or
disability of the chairman of the board, the president shall exercise all of
the powers and discharge all of the duties of the chairman of the board. The
president shall possess power to sign all certificates, contracts and other
instruments of the corporation. The president shall, in the absence of the
chairman of the board, preside at all meetings of the stockholders and of the
board of directors. The president shall perform all such other duties as are
incident to the office of president or are properly required by the board of
directors.
Section 9. VICE PRESIDENT. In the event of the absence or
disability of the chairman of the board and the president, the vice president,
or, in case there shall be more than one vice president, the vice president
designated by the board of directors, shall perform all the duties of the
president, and when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the president. Except where by law the signature of
the president is required,
- 12 -
<PAGE> 16
each of the vice presidents shall possess the same power as the president to
sign all certificates, contracts, obligations and other instruments of the
corporation. Any vice president shall perform such other duties and may
exercise such other powers as from time to time may be assigned by these
By-Laws or by the board of directors or by the president.
Section 10. SECRETARY. The secretary shall, if present, act as
secretary of, and keep the minutes of, all the proceedings of the meetings of
the stockholders and of the board of directors and of any committee of the
board of directors in one or more books to be kept for that purpose; shall
perform such other duties as shall be assigned by the president or the board of
directors; and, in general, shall perform all duties incident to the office of
secretary.
Section 11. TREASURER. If required by the board of directors,
the treasurer shall give a bond for the faithful discharge of the duties of the
treasurer, in such sum and with such surety or sureties as the board of
directors shall determine. The treasurer shall keep or cause to be kept full
and accurate records of all receipts and disbursements in the books of the
corporation and shall have the care and custody of all funds and securities of
the corporation. The treasurer shall disburse the funds of the corporation as
may be ordered by the board of directors, shall render to the president and
directors, whenever they request it, an account of all transactions performed
as treasurer and shall perform such other duties as may be assigned by the
chairman of the board or the board of directors; and, in general, shall perform
all duties incident to the office of treasurer.
Section 12. CONTROLLER. The controller, if such office is
created by the board, shall be the chief accounting officer of the corporation.
The controller shall keep or cause to be kept all books of account and
accounting records of the corporation and shall keep and maintain, or cause to
be kept and maintained, adequate and correct accounts of the properties and
business
- 13 -
<PAGE> 17
transactions of the corporation. The controller shall prepare or cause to be
prepared appropriate financial statements for the corporation and shall perform
such other duties as may be assigned by the chairman of the board or the board
of directors; and, in general, shall perform all duties incident to the office
of controller.
Section 13. SALARIES. The salaries of the officers shall be
fixed from time to time by the board of directors or by the chairman of the
board. Any such decision by the chairman of the board shall be final unless
expressly overruled or modified by action of the board of directors, in which
event such action of the board of directors shall be conclusive of the matter.
Nothing contained herein shall preclude any officer from serving the
corporation in any other capacity, including that of director, or from serving
any of its stockholders, subsidiaries or affiliated corporations in any
capacity and receiving a proper compensation therefor.
ARTICLE VI
LOANS, CHECKS, DEPOSITS, ETC.
Section 1. GENERAL. All checks, drafts, bill of exchange or
other orders for the payment of money, issued in the name of the corporation,
shall be signed by such person or persons and in such manner as may from time
to time be designated by the board of directors, which designation may be
general or confined to specific instances.
Section 2. LOANS AND EVIDENCES OF INDEBTEDNESS. No loan shall be
contracted on behalf of the corporation, and no evidence of indebtedness shall
be issued in its name, unless authorized by the board of directors. Such
authorization may be general or confined to specific instances. Loans so
authorized by the board of directors may be effected at any time for the
corporation from any bank, trust company or other institution, or from any
firm, corporation or individual. All bonds, debentures, notes and other
obligations or evidences of indebtedness
- 14 -
<PAGE> 18
of the corporation issued for such loans shall be made, executed and delivered
as the board of directors shall authorize. When so authorized by the board of
directors any part of or all the properties, including contract rights, assets,
business or good will of the corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness of the corporation, and of the
interest thereon, by instruments executed and delivered in the name of the
corporation.
Section 3. BANKING. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositaries as the board of directors
may authorize. The board of directors may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-Laws, as it may deem expedient. For the purpose of
deposit and for the purpose of collection for the account of the corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the corporation shall be endorsed, assigned and delivered by such
person or persons and in such manner as may from time to time be authorized by
the board of directors.
Section 4. SECURITIES HELD BY THE CORPORATION. Unless otherwise
provided by resolution adopted by the board of directors, the chairman of the
board, the president or any vice president may from time to time appoint an
attorney or attorneys, or an agent or agents, to exercise in the name and on
behalf of the corporation the powers and rights which the corporation may have
as the holder of stock or other securities in any other corporation to vote or
to consent in respect of such stock or other securities; and the chairman of
the board, the president, or any vice president may instruct the person or
persons so appointed as to the manner
- 15 -
<PAGE> 19
of exercising such powers and rights, and the chairman of the board, the
president, or any vice president may execute or cause to be executed in the
name and on behalf of the corporation and under its corporate seal, or
otherwise, all such written proxies, powers of attorney or other written
instruments as the chairman of the board, the president, or any vice-president
may deem necessary in order that the corporation may exercise such powers and
rights.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. SHARE CERTIFICATES. Every stockholder shall be
entitled to have a certificate certifying the number of shares of stock of the
corporation owned by him, signed by, or in the name of the corporation by the
chairman of the board or the president or a vice president and by the treasurer
or an assistant treasurer, or the secretary or an assistant secretary of the
corporation (except that when any such certificate is countersigned by a
transfer agent other than the corporation or its employee or by a registrar
other than the corporation or its employee the signatures of any such officers
may be facsimiles). If the corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except in the
case of restrictions on transfers of securities which are required to be noted
on the certificate, in lieu of the foregoing requirements, there may be set
forth on the face or back of the certificate which the corporation shall issue
to represent such class or series of stock, a statement that the corporation
will furnish without charge to each stockholder who so requests the
designations,
- 16 -
<PAGE> 20
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. LOST, STOLEN OR DESTROYED CERTIFICATES. The board of
directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to advertise
the same in such manner as it shall require and/or give the corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 3. TRANSFERS. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 4. RECORD DATES. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose
- 17 -
<PAGE> 21
of any other lawful action, the board of directors may fix, in advance, a
record date, which shall not be less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to such meeting or to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
Section 5. PROTECTION OF CORPORATION. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
- 18 -
<PAGE> 22
ARTICLE IX
MISCELLANEOUS
Except as otherwise provided herein, these By-Laws may be altered,
added to, amended or repealed as follows: (a) at any meeting of the
stockholders by affirmative vote of a majority in interest of each class of
stock outstanding and entitled to vote thereat, provided notice of the proposed
alteration, addition, amendment or repeal shall have been given in the notice
of such meeting; or (b) by the board of directors, except with respect to any
provision of which by law, the Certificate of Incorporation or By-Laws requires
action by the stockholders. Any amendments adopted by the Board shall be
reported to the stockholders at the next meeting of stockholders. Any Bylaw
adopted by the board of directors may be amended or repealed by the
stockholders, as provided in this Section. The provisions contained in
Sections 1 through 13 of Article III of these By-Laws shall not be amended,
altered or repealed except (a) by the affirmative vote of the holders of at
least two-thirds of each class of stock outstanding and entitled to vote at any
meeting of the stockholders, provided notice of the proposed amendment,
alteration or repeal shall have been given in the notice of such meeting or (b)
by the board of directors, provided a majority of the Continuing Directors, (as
defined in Article SIXTH of the Certificate of Incorporation) concur in the
amendment, alteration or repeal.
- 19 -
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
Percent Owned
By National Auto
Corporate Name State of Organization Credit, Inc
- -------------- --------------------- ----------------
<S> <C> <C>
ARAC, Inc. (1) Delaware 100%
NAC, Inc. Delaware 100%
National Motors, Inc. Delaware 100%
</TABLE>
All of the subsidiaries listed above are included in the consolidated financial
statements of the Company. The Company also has various subsidiaries which,
when considered in the aggregate, do not constitute a significant subsidiary.
(1) Former name was National Auto Credit, Inc. Name was changed in
conjunction with the transaction described in Item 2. of this Registration
Statement.
