<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. 4)(1)
National Auto Credit, Inc.
(Name of Issuer)
Common Stock, $0.05 Par Value Per Share
(Title of Class or Securities)
632900 10 6
(CUSIP Number)
Ernest C. Garcia II
2525 E. Camelback Road, Suite 1150
Phoenix, Arizona 85016
(602) 552-3200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 7, 1999
(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 that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note. Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
- ---------------------------------
(1) 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 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).
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AMENDMENT NO. 4 TO SCHEDULE 13D
PURSUANT TO RULE 13d-2(a)
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
This Amendment No. 4 amends and supplements the original Schedule 13D
filed with the Securities and Exchange Commission on September 11, 1998 by
Ernest C. Garcia II, as amended by Amendment No. 1 on September 28, 1998, and as
further amended by Amendment No. 2 on November 20, 1998, and as further amended
by Amendment No. 3 on April 20, 1999.
The Reporting Persons are filing this Schedule 13D to reflect the new
information set forth herein, including the fact that:
- - On May 7, 1999, Mr. Garcia has resigned as proxy pursuant to a proxy
previously granted to Mr. Garcia by Mr. Sam J. Frankino, The Corrine L.
Dodero Trust for the Arts & Sciences, and Samuel J. and The Connie M.
Frankino Charitable Foundation (the "Frankino Persons"). Nothing
contained herein shall be construed as an admission that the Reporting
Persons, together with the Frankino Persons, constituted a "person" or
"group" for any purpose. Pursuant to Rule 13d-1(k)(2) under the
Exchange Act, the Reporting Persons are making this filing individually
rather than jointly with the Frankino Persons.
- - On May 10, 1999, for and in consideration of $1,000,000, Mr. Garcia and
Verde (the "Reporting Persons") granted to NAC the right and option
(the "Option") to purchase all (but not less than all) of their
combined 2,849,630 shares of NAC at any time from the date hereof and
continuing for a period of 45 days (as it may be extended, the "Term"),
at a purchase price of $1.50 per Share; provided that, NAC may, at its
option, extend the Term for an additional 45 days for and in
consideration of the sum of $500,000, payable in the manner set forth
above (the "Second Payment"), and provided further that, the aggregate
of the Payment and one-half of any Second Payment shall be deducted
from the aggregate amount payable by NAC to the Reporting Persons upon
exercise of the Option. NAC shall have the right to transfer the Option
at any time during the Term to any third-party.
- - In the event that NAC fails to exercise the Option during its term, (i)
the Reporting Persons shall have the right so long as they own at least
2,500,000 shares to designate one member to the board of directors of
NAC (which member shall be subject to approval by a majority of NAC's
directors), and (ii) the Reporting Persons shall have the right and the
option (the "Shareholder Option") to purchase up to 2,849,630 shares of
common stock from NAC, in whole or in part, at a per share price equal
to the lower of (A) $1.50 or (B) the average of the daily closing sale
price of the common stock over the 10 trading days immediately
preceding the expiration of the Term. The Shareholder Option is
exercisable (if at all) for a period of 30 days following expiration of
the Term.
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COVER PAGES
The cover pages are hereby amended in their entirety to reflect the
foregoing.
CUSIP NO. 632900 10 6 13D PAGE 3 OF PAGES
________________________________________________________________________________
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Ernest C. Garcia II
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
PF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
________________________________________________________________________________
7 SOLE VOTING POWER 2,715,630
NUMBER OF *See Proxy granted by Reporting Person disclosed in Item 4.
SHARES _________________________________________________________________
8 SHARED VOTING POWER 134,000
BENEFICIALLY
*See Proxy granted by Reporting Person disclosed in Item 4.
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER 2,715,630
REPORTING *See Proxy granted by Reporting Person disclosed in Item 4.
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER 134,000
WITH
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,849,630
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.98%
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
3
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CUSIP NO. 632900 10 6 13D PAGE 4 OF PAGES
________________________________________________________________________________
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOs. OF ABOVE PERSONS (ENTITIES ONLY)
Verde Investments, Inc.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
WC
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
________________________________________________________________________________
7 SOLE VOTING POWER 0
NUMBER OF
SHARES _________________________________________________________________
8 SHARED VOTING POWER 134,000
BENEFICIALLY
*See Proxy granted by Reporting Person disclosed in Item 4.
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER 0
REPORTING
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER 134,000
WITH
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
134,000
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
*See Proxy granted by Reporting Person disclosed in Item 4.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
4
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ITEM 1. SECURITY AND ISSUER.
Title of Class of
Equity Security: Common Stock, $0.05 par value per share
Name of Issuer: National Auto Credit, Inc. ("NAC")
Address of 30000 Aurora Road
Principal Office: Solon, Ohio 44139
ITEM 2. IDENTITY AND BACKGROUND.
The information in Item 2 is revised in its entirety to read as follows:
(a) NAME OF PERSON FILING:
A. Ernest C. Garcia -- Ernest C. Garcia II ("Mr. Garcia")
B. Verde Investments, Inc. -- Verde Investments, Inc. ("Verde")
(Garcia and Verde collectively, the "Reporting Persons")
This Schedule 13D, Amendment No. 4 ("Amendment No. 4") is jointly filed by the
Reporting Persons pursuant to Rule 13d-1(k)(1) promulgated by the Securities and
Exchange Commission ("SEC") under Section 13 of the Securities Exchange Act of
1934, as amended (the "Act"): (i) Mr. Garcia, by virtue of his direct beneficial
ownership of Common Stock of NAC; (ii) Mr. Garcia, by virtue of his indirect
beneficial ownership of Common Stock via his sole ownership of all of the common
stock of Verde, and (iii) Verde, by virtue of its direct beneficial ownership of
Common Stock of NAC.
Certain information required by this Item 2 concerning the directors and
executive officers of Verde is set forth on Schedule 1 attached hereto, which is
incorporated herein by reference.
The Reporting Persons may be deemed to constitute a "group" for purposes of
Section 13(d)(3) of the Act.
(b) ADDRESS OF PRINCIPAL BUSINESS OFFICE OR, IF NONE, RESIDENCE:
A. Mr. Garcia -- 2525 East Camelback Road, Suite 1150, Phoenix, Arizona
85016
B. Verde -- 2525 East Camelback Road, Suite 1150, Phoenix, Arizona 85016
Also, see Schedule 1 attached hereto.
(c) PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND
ADDRESS OF CORPORATION IN WHICH EMPLOYMENT IS CONDUCTED:
A. Mr. Garcia -- Chairman and Chief Executive Officer of Ugly Duckling
Corporation, used automobile retail sales and finance company, 2525 E.
Camelback Rd, Suite 500, Phoenix, AZ 85016; (2)
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Chairman, Chief Executive Officer and President of Cygnet Financial
Corporation ("Cygnet"), providing various financial services primarily
to the sub-prime segment of the automobile finance industry; (3)
President, sole director and sole shareholder of Verde.
B. Verde -- Verde is an investment company involved in real estate and
other types of investments. See Information set forth under this Item
2. Also, see Schedule 1 attached hereto. Cygnet's and Verde's addresses
for their principal businesses and principal offices are the same as
the address provided under Item 2(b).
(d) WHETHER DURING LAST FIVE YEARS, SUCH PERSON CONVICTED IN A CRIMINAL
PROCEEDING (EXCLUDING TRAFFIC VIOLATIONS OR SIMILAR MISDEMEANORS) AND, IF SO,
GIVE THE DATES, NATURE OF CONVICTION, NAME AND LOCATION OF COURT, ANY PENALTY
IMPOSED, OR OTHER DISPOSITION OF THE CASE:
During the past five years, none of the Reporting Persons nor, to the best
knowledge of such persons, any of the persons named in Schedule 1 to this
Amendment No. 4, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). However, prior to 1992, Mr. Garcia was
involved in various real estate, securities, and banking ventures. Arising out
of two transactions in 1987 between Lincoln Savings and Loan Association
("Lincoln") and entities controlled by Mr. Garcia, the Resolution Trust
Corporation ("RTC"), which ultimately took over Lincoln, asserted that Lincoln
improperly accounted for the transactions and that Mr. Garcia's participation in
the transactions facilitated the improper accounting. Facing severe financial
pressures, Mr. Garcia agreed to plead guilty to one count of bank fraud, but in
light of his cooperation with authorities both before and after he was charged,
was sentenced to only three years probation, which has expired, was fined $50
(the minimum fine the court could assess), and during the period of his
probation, which ended in 1996, was banned from becoming an officer, director or
employee of any federally-insured financial institution or a securities firm
without governmental approval. In separate actions arising out of this matter,
Mr. Garcia agreed not to violate the securities laws, and filed for bankruptcy
both personally and with respect to certain entities he controlled. The
bankruptcies were discharged by 1993.
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(e) WHETHER DURING THE LAST FIVE YEARS, SUCH PERSON WAS A PARTY TO A CIVIL
PROCEEDING OF A JUDICIAL OR ADMINISTRATIVE BODY OF COMPETENT JURISDICTION AND AS
A RESULT OF SUCH PROCEEDING WAS OR IS SUBJECT TO A JUDGMENT, DECREE OR FINAL
ORDER ENJOINING FUTURE VIOLATIONS OF, OR PROHIBITING OR MANDATING ACTIVITIES
SUBJECT TO, FEDERAL OR STATE SECURITIES LAWS OR FINDING ANY VIOLATION WITH
RESPECT TO SUCH LAWS; AND, IF SO, IDENTIFY AND DESCRIBE SUCH PROCEEDINGS AND
SUMMARIZE THE TERMS OF SUCH JUDGMENT, DECREE OR FINAL ORDER:
During the past five years, none of the Reporting Persons nor, to the best
knowledge of such persons, any of the persons named in Schedule 1 to this
Amendment No. 4, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activity subject to, federal or state
securities laws or finding any violation with respect to such laws. However, for
Mr. Garcia, see the summary under Item 2(e) above.
(f) CITIZENSHIP:
A. Mr. Garcia -- United States of America
B. Verde -- Arizona. Also, see Schedule 1 attached hereto.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
No changes.
ITEM 4. PURPOSE OF TRANSACTION.
The information set forth in Item 4 is supplemented as follows:
On April 20, 1999, Sam J. Frankino, who directly owns 14,016,560 shares and has
both shared voting and investment power with respect to 1,000,000 shares held by
The Corrine L. Dodero Trust for the Arts & Sciences and 726,452 shares held by
The Samuel J. and Connie M. Frankino Charitable Foundation (collectively, the
"Frankino Persons") (together representing 55% of the outstanding common stock
of NAC), executed a revocable proxy in favor of Mr. Garcia, authorizing Mr.
Garcia, in his discretion, to vote the Frankino Persons' shares in connection
with certain corporate matters. On May 7, 1999, Mr. Garcia resigned as proxy
with respect to the Frankino Persons' shares.
On April 20, 1999, Mr. Garcia and Verde delivered an action by written consent
to NAC pursuant to which the shareholders purported to elect Mr. Garcia and Mr.
Steven Johnson as directors of NAC. However, NAC has informed Mr. Garcia and Mr.
Johnson that it did not have vacancies on its board of directors and, therefore,
the purported action by the shareholders was ineffective.
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On May 10, 1999, for and in consideration of $1,000,000, Mr. Garcia and Verde
(the "Reporting Persons") entered into an agreement (the "Agreement") with NAC,
granting NAC the right and option (the "Option") to purchase all (but not less
than all) of their combined 2,849,630 shares of NAC at any time from the date
hereof and continuing for a period of 45 days (as it may be extended, the
"Term"), at a purchase price of $1.50 per Share; provided that, NAC may, at its
option, extend the Term for an additional 45 days for and in consideration of
the sum of $500,000, payable in the manner set forth above (the "Second
Payment"), and provided further that, the aggregate of the Payment and one-half
of any Second Payment shall be deducted from the aggregate amount payable by NAC
to the Reporting Persons upon exercise of the Option. NAC has the right to
transfer the Option at any time during the Term to any third-party.
In the event that NAC fails to exercise the Option during its term, (i) the
Reporting Persons has the right so long as they own at least 2,500,000 shares to
designate one member to the board of directors of NAC (which member shall be
subject to approval by a majority of NAC's directors), and (ii) the Reporting
Persons shall have the right and the option (the "Shareholder Option") to
purchase up to 2,849,630 shares of common stock from NAC, in whole or in part,
at a per share price equal to the lower of (A) $1.50 or (B) the average of the
daily closing sale price of the common stock over the 10 trading days
immediately preceding the expiration of the Term. The Shareholder Option is
exercisable (if at all) for a period of 30 days following expiration of the
Term.
In order to facilitate these agreements and the Option exercise price, NAC and
the Reporting Persons appointed a third-party escrow agent to hold the Reporting
Persons' shares for the duration of the Term. The Reporting Persons also
executed an irrevocable Proxy in favor of a director of NAC which gives him the
power to vote the shares during the Term.
The Reporting Persons also agreed with NAC that for a period of one year, they
will not take any action which adversely impacts or interferes with (i) the
business and operations of NAC, (ii) completion of the audit of NAC's financial
statements, (iii) existence, composition, function or purpose of the Special
Committee of NAC's board of directors, (iv) efforts of NAC to preserve and
maximize its assets, (v) efforts of NAC to continue to stabilize its operations,
(vi) efforts of NAC to ensure proper financial and accounting reporting and
controls, and (vii) efforts of NAC to restore public confidence in NAC. The
Reporting Persons also agreed that for a period of one year, they will not
acquire beneficial ownership of any additional shares of NAC without prior
consent of NAC's board of directors. These provisions will terminate if NAC
fails to exercise the Option.
The description of these transactions are summaries only, the agreements are
attached as exhibits hereto.
Although in light of the agreements referred above the Reporting Persons have no
further plans regarding NAC, if the Option is not exercised, the Reporting
Persons may consider other alternatives with respect to their investment of the
NAC securities including, without limitation, plans or proposals such as the
following: (1) changing the Certificate of Incorporation or By-Laws of NAC; (2)
changing the management or board of directors of NAC; (3) changing the
capitalization of NAC; (4) terminating NAC's registration of its securities
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended;
(5) effecting a corporate transaction, such as a merger, reorganization or sale
or purchase of assets or a joint venture, partnership or management arrangement
involving NAC or any of its subsidiaries and/or affiliate entities or persons,
which may include transactions with other entities in which the Reporting
Persons have an ownership interest; (6) acquiring additional securities of NAC;
(7) disposing of NAC securities through sales, transfers and other means; (8)
other changes in NAC's business or corporate structure; and (9) other actions
similar to any of those listed above.
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ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in Item 5 is amended as follows:
(a) AGGREGATE NUMBER AND PERCENTAGE OF SECURITIES BENEFICIALLY OWNED:
Verde is the direct beneficial owner of 134,000 shares of Common Stock,
representing 0.5% of NAC's Common Stock. Mr. Garcia is the direct
beneficial owner of 2,715,630 shares of Common Stock and the indirect
beneficial owner of 134,000 shares of Common Stock owned by Verde,
together representing 9.98% and 2,849,630 shares of NAC Common Stock.
By virtue of the relationship between Mr. Garcia and Verde described in
Item 2, Mr. Garcia may be deemed to possess indirect beneficial
ownership of the shares of Common Stock beneficially owned by Verde.
(b) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS:
See Item 4 regarding the agreements executed by the Reporting Persons.
(c) TRANSACTIONS EFFECTED DURING THE PAST 60 DAYS OR SINCE THE MOST RECENT
FILING ON SCHEDULE 13D, WHICHEVER IS LESS:
See Items 3 and 4.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Item 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1: Agreement, dated May 10, 1999
Exhibit 99.2: Proxy from Reporting Persons, dated May 10, 1999
Exhibit 99.3: Escrow Agreement, dated May 10, 1999
Exhibit 99.4: Agreement re Joint Filing of Schedule 13D, Amendment No. 4
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ Ernest C. Garcia II
Dated: May 12, 1999 ____________________________________________
Ernest C. Garcia II
Dated: May 12, 1999 Verde Investments, Inc.
an Arizona corporation
/s/ Ernest C. Garcia II
By: ________________________________________
Name: Ernest C. Garcia II
Its: President
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SCHEDULE 1 TO SCHEDULE 13D, AMENDMENT NO. 4
EXECUTIVE OFFICERS AND DIRECTORS
INFORMATION FOR VERDE INVESTMENTS, INC.
Ernest C. Garcia II Director, President and Sole Shareholder
Steven P. Johnson Vice President/General Counsel/Secretary
Randall Andrus Vice President/Real Estate
Nancy V. Young Treasurer
(1) Each person is a citizen of the United States. Each person's
principal office and principal business address is the same as
that listed under Item 2(b) of Amendment No. 4.
(2) In addition to the listed positions, Mr. Johnson is the Senior
Vice President and General Counsel of both Ugly Duckling
Corporation and Cygnet Financial Corporation. These companies
and businesses are described within Item 2 of Amendment No. 4.
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EXHIBIT INDEX
Exhibit No. Description
Exhibit 99.1: Agreement, dated May 10, 1999
Exhibit 99.2: Proxy from Reporting Persons, dated May 10, 1999
Exhibit 99.3: Escrow Agreement, dated May 10, 1999
Exhibit 99.4: Agreement re Joint Filing of Schedule 13D, Amendment No. 4
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Exhibit 99.1
NATIONAL AUTO CREDIT, INC.
30000 AURORA RD.
SOLON, OHIO 44139
May 10, 1999
Ernest C. Garcia II
2525 E. Camelback Road
Suite 1150
Phoenix, Arizona 85011
Dear Mr. Garcia:
This agreement sets forth our mutual understanding with respect to the
grant of an option to purchase certain shares of the Company's common stock held
by you and certain other related matters. Accordingly we hereby agree as
follows.
1. GRANT OF OPTIONS.
a. You are the beneficial owner of 2,849,630 shares (the "Shares") of
the Common Stock, par value $0.05 per share (the "Common Stock"), of National
Auto Credit, Inc. (the "Company"). For and in consideration of the sum of
$1,000,000 (the "Payment"), paid concurrently herewith by the Company by either
check or wire transfer of immediately available funds to an account designated
by you (the receipt of which is hereby acknowledged), you hereby grant the
Company the right and option (the "Option") to purchase all but not less than
all of the Shares from you at any time from the date hereof and continuing for a
period of 45 days (as it may be extended, the "Term"), at a purchase price of
$1.50 per Share; provided that, the Company may, at its option, extend the Term
for an additional 45 days for and in consideration of the sum of $500,000,
payable in the manner set forth above (the "Second Payment"), and provided
further that, the aggregate of the Payment and one-half of any Second Payment
shall be deducted from the aggregate amount payable by the Company to you upon
exercise of the Option. The Company shall have the right to transfer the Option
at any time during the Term to any third-party.
b. In the event that the Company fails to exercise the Option during
the Term, (i) the Company hereby agrees to provide you with the right, for so
long as you own at least 2,500,000 Shares, to designate one member to the Board
of Directors of the Company (which member shall be subject to the approval of a
majority of the Company's existing Board of Directors and/or Directors approved
by them ("Existing Directors"), such approval not to be unreasonably withheld or
delayed) and (ii) the Company hereby grants you the right and the option (the
"Shareholder Option") to purchase up to 2,849,630 shares of Common Stock from
the Company, in whole or in part, at any time from the expiration of the Term
and continuing for a period of 30 days, at a per share purchase price equal to
the lower of (A) $1.50 or (B) the average of the daily closing sale price of the
Common Stock in the over-the-counter market (as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System or such other
system then in use, or if the Common Stock is not quoted by any such
organization, the daily average of the closing bid and asked price as furnished
by a professional market maker making a market in the Common Stock selected by
the Existing Directors and you) over the ten trading days immediately prededing
the expiration of the Term.
c. You hereby represent to the Company that the Shares are the only
shares of Common Stock that you beneficially own, that you are the owner of the
Shares and that upon the exercise of the Option by the Company, valid and
marketable title to the Shares, free and clear of all liens, encumbrances and
restrictions, will pass to the Company (or any third-party transferee of the
Option, as the case may be). Concurrently with the grant of the Option to the
Company, you will
<PAGE> 2
Ernest C. Garcia II
May 10, 1999
Page 2
enter into a proxy in favor of Henry Tuh, in the form attached hereto as
Appendix I, and an escrow agreement (pursuant to which you will deposit
certificates evidencing the Shares and the Company will deposit the amounts to
be paid to you in consideration thereof), in the form attached hereto as
Appendix II. The Company hereby represents to you that it has the power and
authority to enter into and execute this Agreement and perform the transactions
contemplated hereby; that this Agreement and such transactions have been
approved by any necessary action on the part of the Company; that the execution
and delivery of this Agreement and the performance by the Company of such
transactions will not violate or conflict with any provisions of the Company's
Certificate of Incorporation or Bylaws, any material contract to which the
Company is a party or by which the Company or any of its properties may be
bound or any law, rule, regulation, order, decree or judgment to which the
Company is subject; and that any shares of Common Stock issued to you pursuant
to the valid exercise of the Shareholder Option will be validly issued,
fully paid and non-assessable.
2. CERTAIN ACTIONS.
a. In connection with the transactions contemplated hereby, you
hereby agree that for a period of one year from the date of this Agreement, you
will not take (and you will use your reasonable best efforts to cause your
affiliates and associates to refrain from taking), directly or indirectly,
without the prior written consent of the Existing Directors, any action which
adversely impacts or interferes with the (i) business and operations of the
Company, (ii) completion of the audit of the Company's financial statements,
(iii) existence, composition, function or purpose of the Special Committee of
the Company's Board of Directors or (iv) efforts of the Board of Directors to
(A) preserve and maximize the assets of the Company, (B) continue to stabilize
the operations of the Company; (C) ensure proper financial and accounting
reporting and controls and (D) restore public confidence in the Company;
provided, however, that nothing in this Agreement shall restrict the ongoing
business operations of the Ugly Duckling Corporation or its subsidiaries, which
the parties acknowledge has business operations similar to those of the
Company. In addition, you hereby agree that for a period of one year from the
date of this Agreement, you will not acquire beneficial ownership of any
additional shares of Common Stock without the prior written consent of the
Existing Directors.
b. In addition, you agree to cooperate with the Company and its Board
of Directors, as well as all governmental, quasi-governmental and regulatory
authorities and securities exchanges, in connection with all inquiries,
investigations and proceedings that currently exist and may hereafter arise,
provided that, the Company will reimburse you for your reasonable out of pocket
expenses (including customary hourly fees charged by you and reasonable
attorneys' fees and costs) in connection with all such inquiries,
investigations and proceedings.
c. You hereby acknowledge that you are aware, and that you will
advise your Representatives (as defined below), as appropriate, that the United
States securities laws may prohibit any person who has received material,
non-public information concerning certain matters which are the subject of this
Agreement from purchasing or selling securities of the Company or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell
such securities.
3. CONFIDENTIAL TREATMENT.
<PAGE> 3
Ernest C. Garcia II
May 10, 1999
Page 3
a. Unless otherwise agreed to in writing by the Company, you agree
to, except as required by law, keep all confidential information about the
Company confidential and not to disclose or reveal any such confidential
information to any person.
b. You agree that you will have no discussion, correspondence or other
contact or communication with the Company concerning the Company or its
securities except with the Chairman of the Board of Directors, the President of
the Company and their designated representatives.
4. Miscellaneous.
a. The parties agree that money damages would not be a sufficient
remedy for any breach of this Agreement by the other party or its
Representatives, and that in addition to all other remedies, each party shall
be entitled to specific performance and injunctive and other equitable relief
as a remedy for any such breach. Each party further agrees to waive, and to use
its respective best efforts to cause its Representatives to waive, any
requirement for the securing or posting of any bond in connection with such
remedy.
b. For the purpose of this Agreement, the term "Representatives" when
used in respect of any person, shall mean such person's affiliates, directors,
officers, employees, agents or controlling persons.
c. Each party hereby releases, discharges, cancels and waives any and
all claims, demands, causes of action, damages and liabilities of any nature
whatsoever, whether in law or in equity, whether known or unknown to the
parties and whether contingent or otherwise, which such party has against the
other at the time of execution of this Agreement. Nothing contained in this
Agreement shall be construed as an admission by any party that such party has
violated any statute, law, rule or regulation, or breached any contract or
agreement.
d. The parties hereby acknowledge that the Company has not nominated
or appointed you as a Director of officer of the Company and you have neither
been elected nor served as such; and that based on the information contained in
your Schedule 13D filed with the Securities and Exchange Commission on April
20, 1999, you are not a beneficial owner of 10% or more of the Common Stock.
The Company hereby agrees that it will not seek to recover any profit that may
be realized by you in connection with the transactions contemplated hereby
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended.
e. From the date hereof until the expiration of the Term, each of the
parties agrees to consult with the other in issuing any press release or
otherwise making any public statement with respect to this Agreement and the
transactions contemplated hereby, and neither party shall issue any such press
release or make any such public statement without the prior written consent of
the other, except as may be required by applicable law, rule or regulation,
order of a court or governmental agency or by obligations pursuant to any
listing agreement with any national securities exchange or automated quotation
service.
f. The parties shall not make, and shall use their respective
reasonable best efforts to cause their respective Representatives to refrain
from making, at any time after the date hereof, disparaging or derogatory
remarks, whether oral or written, regarding the other or its Representatives;
provided that this obligation shall not apply to disclosures required by
applicable law, rule or
<PAGE> 4
Ernest C. Garcia II
May 10, 1999
Page 4
provided that this obligation shall not apply to disclosures required by
applicable law, rule or regulation, order of a court or governmental agency or
obligations pursuant to any listing agreement with any national securities
exchange or automated quotation service.
g. You hereby withdraw (i) your letter (the "April 20 Letter") to the
Board of Directors of the Company dated April 20, 1999, pursuant to which you
requested certain information of the Company pursuant to Section 220(d) of the
General Corporation Law of the State of Delaware (the "DGCL"); (ii) the written
consent of stockholders pursuant to Section 228 of the DGCL enclosed with the
Aril 20 Letter; and (iii) the Notice of Special Meeting, dated April 20, 1999,
called by you and Steven Johnson (it being understood that following the
expiration of the Term, nothing herein shall prevent you from exercising any
rights in this regard that may have been available to you).
h. No failure or delay by a party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof, or the
exercise of any right, power or privilege hereunder. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to principles of conflict of laws. The exclusive forum for all
disputes arising out of this Agreement and the transactions contemplated hereby
shall be the state courts of the State of Delaware. All modifications of,
waivers of and amendments to this Agreement must be in writing and signed by you
and the Company.
i. Either party may terminate this Agreement upon a material breach by
the other party; provided that without otherwise limiting the rights of the
parties, (i) in the event of such a breach by you, you will return the Payment
and any Second Payment to the Company no later than two business days following
demand by the Company and (ii) in the event of such a breach by the Company, you
shall not be required to return the Payment or any Second Payment to the Company
(it being agreed that the provisions of this Section 4(i) are in addition to and
not in satisfaction of the rights and remedies that each party may have against
the other). In addition, the provisions of Section 2(a), 2(b) (solely as it
relates to your agreement to cooperate with the Company and its Board of
Directors), 4(c) and 4(e) shall terminate in the event that the Company fails to
exercise the Option.
Please confirm your agreement with the foregoing by signing where
indicated below and returning to the undersigned a copy of this Agreement.
<PAGE> 5
Ernest C. Garcia II
May 10, 1999
Page 5
Very truly yours,
NATIONAL AUTO CREDIT, INC.
------------------------------
Name:
Title:
Accepted and Agreed as of the
date first written above:
/s/ Ernest C. Garcia II
- --------------------------------
ERNEST C. GARCIA II (*)
*On his own behalf and, for the purposes of
Section 1(a), on behalf of Verde Investments,
Inc., in his capacity as President.
/s/ Steven Johnson
- ---------------------------------
STEVEN JOHNSON (**)
**For the purposes of Section 4(c), (d) and
(g) only
<PAGE> 1
Exhibit 99.2
IRREVOCABLE PROXY COUPLED WITH AN INTEREST
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, each a
stockholder of NATIONAL AUTO CREDIT, INC., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint Henry Toh, the true and
lawful attorney-in-fact and proxy (the "Attorney in Fact") of the undersigned
for and in its name, place and stead to attend all meetings of the stockholders
of the Company, to receive notices thereof and to vote all 2,849,630 shares of
the Company's Common Stock, par value $0.05 per share, that the undersigned
beneficially own, as well as any other shares of capital stock of the Company
that the undersigned may acquire beneficial ownership of after the date hereof
(collectively, the "Subject Shares"), at all meetings of the stockholders or
any adjournment or adjournments thereof, and to exercise all consensual or
other voting rights with respect to the Subject Shares on any matter, subject
to the limitations set forth below.
This proxy is coupled with an interest and is irrevocable for the period
from the date hereof through the Term (as defined in the Letter Agreement among
Ernest C. Garcia II, Steven Johnson and the Company of even date herewith). This
proxy shall terminate immediately upon any breach by the Company of such
agreement or the escrow agreement referred to therein. The undersigned hereby
ratifies and confirms all that the said Attorney in Fact may lawfully do or
cause to be done by virtue hereof. In the event that this proxy purports to
grant an interest in the Subject Shares that is greater than the interest of the
undersigned therein, this proxy shall be deemed replaced by a grant of an
interest that is valid and enforceable and that comes closest to expressing the
interest of the undersigned in the Subject Shares. The rights and obligations
of the Attorney in Fact hereunder may be delegated and assigned to any other
individual or entity, and the Attorney in Fact shall be entitled to exercise
all rights hereunder with full rights of substitution.
This proxy may not be amended or terminated (except as provided above)
unless such amendment or termination shall have been approved by the Board of
Directors of the Company.
GIVEN at Phoenix, AZ this 10th day of May, 1999.
VERDE INVESTMENTS, INC.
/s/ ERNEST C. GARCIA II
-------------------------
ERNEST C. GARCIA II
/s/ ERNEST C. GARCIA II
- ------------------------------
ERNEST C. GARCIA II, PRESIDENT
STATE OF ARIZONA )
) ss:
COUNTY OF MARICOPA )
BE IT REMEMBERED, that on May 10, 1999, before me, the subscriber, a Notary
Public in the State of Arizona, personally appeared ERNEST C. GARCIA II, to me
known, who being by me duly sworn did depose and say that he resides at
Phoenix, Arizona, that he is the person described in and who executed the
above instrument on his own behalf, and in the case of Verde Investments, Inc.,
as a duly authorized officer of said corporation, and he acknowledged that he
signed and delivered the same as his voluntary act and deed.
/s/ KATHLEEN CHACON
- ------------------- (Seal of the "OFFICIAL SEAL"
Notary Public state of Arizona) KATHLEEN CHACON
Notary Public-Arizona
Maricopa County
My Commission Expires 9/15/01
<PAGE> 1
Exhibit 99.3
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of May 10, 1999, (the "Agreement"), between
National Auto Credit, Inc., a Delaware corporation (the "Company"), Ernest C.
Garcia II (the "Investor") and Gordon, Fournaris & Mammarella, P.A., a Delaware
professional corporation, as Escrow Agent (the "Escrow Agent").
WHEREAS, the Investor and the Company are parties to a Letter Agreement
(the "Letter Agreement"), dated as of the date hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions. Terms used without definition herein shall have the
respective meanings ascribed thereto in the Letter Agreement.
2. Appointment of Escrow Agent; Deposit of Shares and Funds in Escrow.
The Company and the Investor hereby appoint the Escrow Agent as the escrow
agent under this Agreement, and the Escrow Agent accepts such appointment
according to the terms and conditions set forth herein. Within two business
days of the date hereof, the Company and the Investor shall have deposited with
the Escrow Agent, and the Escrow Agent hereby acknowledges receipt of, (a)
certificates registered in the name of the Investor (or other entities holding
Common Stock beneficially owned by the Investor) evidencing the Shares
(together with appropriate stock powers duly endorsed in blank or accompanied
by other duly executed instruments of transfer in favor of the Company), which,
for the avoidance of doubt, constitute 2,849,630 shares of Common Stock and (b)
funds (the "Funds") in the amount of $3,274,445, which, for the avoidance of
doubt, constitutes the consideration to be paid by the Company to the Investor
upon exercise of the Option, without giving effect to the making of the Second
Payment and the deduction from such consideration required in connection
therewith; provided that upon the making of the Second Payment (which the
Company agrees to give the Escrow Agent concurrent notice of), the Funds shall
be reduced by $250,000 in accordance with Section 3 hereof. The Escrow Agent
shall hold, manage, administer, distribute and dispose of the Shares and the
Funds in accordance with the terms and conditions of this Agreement. The Escrow
Agent shall hold the Shares and the Funds in the escrow created hereunder in
its principal offices in the City of Wilmington, Delaware; provided that, the
Escrow Agent may, at the instruction and expense of the Company, deposit the
Funds in an insured interest bearing account with a commercial bank located in
the State of Delaware with total capital and surplus in excess of $500 million
(it being agreed and understood that all interest in respect of the Funds shall
be credited for the account of the Company).
3. Release of Shares and Funds From Escrow. The Escrow Agent shall hold
the Shares and the Funds in escrow in accordance with this Agreement and shall
release the Shares and the Funds only as follows:
(a) Upon the exercise of the Option by the Company (or any
third-party which the Company has, in accordance with the Letter Agreement,
transferred the Option to), the Escrow Agent shall release the Shares and the
Funds from the escrow created hereunder and deliver the Shares to the Company
(or such third-party transferee) and deliver the Funds to the Investor. The
Company shall concurrently notify the Escrow Agent of its exercise of the
Option.
<PAGE> 2
(b) If the Company has not exercised the Option, upon the expiration
of the Term or in the event of a breach of this Agreement or the Letter
Agreement resulting in a termination of Agreement and the Letter Agreement, the
Escrow Agent shall release the Shares and the Funds from the escrow created
hereunder and deliver the Shares to the Investor and deliver the Funds to the
Company.
(c) Any delivery required to be made hereunder by the Escrow Agent
shall be delivered in accordance with written instructions given to the Escrow
Agent by the party entitled under this Agreement to receive such delivery.
(d) Upon the giving or any notice of the making of any Second
Payment by the Company pursuant to Section 2 hereof, the Escrow Agent shall
release $250,000 of the Funds from the escrow created hereunder and deliver
such amount to the Company.
(e) Upon the release of the Shares and the Funds by the Escrow Agent
in accordance with this Section 3, this Agreement and the escrow created
hereunder shall terminate and the Escrow Agent shall be discharged from all
further obligations hereunder.
4. Conditions to Escrow. The Escrow Agent agrees to hold the Shares and
the Funds and to perform in accordance with the terms and provisions of this
Agreement. The Company and the Investor agree that the Escrow Agent does not
assume any responsibility for the failure of the Company or the Investor to
perform in accordance with the Letter Agreement or this Agreement. The
acceptance by the Escrow Agent of its responsibilities hereunder is subject to
the following terms and conditions, which the parties hereto agree shall govern
and control with respect to the Escrow Agent's rights, duties, liabilities and
immunities:
(a) The Escrow Agent may conclusively rely, and shall be protected in
acting or refraining from acting upon, any written notice, certification,
request, waiver, consent, receipt or other paper or document furnished to it,
not only as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information therein
contained which the Escrow Agent reasonably believes to be genuine and to have
been executed and presented by the proper party or parties. Should it be
necessary for the Escrow Agent to act upon any instructions, directions,
documents or instruments issued or signed by or on behalf of any corporation,
fiduciary, or individual acting on behalf of another party hereto, it shall not
be necessary for the Escrow Agent to inquire into such corporation's,
fiduciary's or individual's authority, capacity, existence or identity. The
Escrow Agent is also relieved from the necessity of satisfying itself as to the
authority of the persons executing this Agreement in a representative capacity.
It is understood that any references herein to joint instructions or joint
written instructions or words of similar import include any instructions signed
in counterpart.
(b) The Escrow Agent shall not be liable for any error of judgment or for
any act done or step taken or omitted by it in good faith, or for any mistake
of fact or law, or for anything which it may do or refrain from doing in
connection herewith, except for its own gross negligence or willful misconduct.
(c) The Escrow Agent may consult with, and obtain advice from, legal
counsel in the event of any question as to any of the provisions hereof or the
duties hereunder, and it shall incur no liability and shall be fully protected
in acting in good faith in accordance with the opinion and
-2-
<PAGE> 3
instructions of such counsel. The reasonable costs of such counsel's services
shall be paid to the Escrow Agent in accordance with Section 6 below.
(d) The Escrow Agent shall have no duties except those which are
expressly set forth herein and it shall not be bound by (i) the Letter
Agreement or any agreement of the other parties hereto (whether or not it has
any knowledge thereof) or by any notice of a claim, or demand with respect
thereto or (ii) any waiver, modification, amendment, termination or rescission
of this Agreement, in either case unless the Escrow Agent agrees thereto in
writing.
(e) The Escrow Agent may resign and be discharged from its duties and
obligations hereunder by giving notice in writing of such resignation
specifying a date (no earlier than 30 days following the date of such notice)
when such resignation will take effect, provided, however, that until a
successor escrow agent is appointed by the Investor and the Company and such
successor accepts such appointment, the Escrow Agent shall continue to hold the
Shares and the Funds and otherwise comply with the terms of this Agreement; and
provided further that the parties to this Escrow Agreement agree to use their
best efforts to mutually agree on a successor escrow agent within 30 days after
the giving of Escrow Agent's notice and if no such successor escrow agent shall
be appointed within 30 days of the Escrow Agent providing its notice, the
Escrow Agent may, at the expense of the Company and the Investor, (i) appoint a
successor escrow agent which shall be a national or state-chartered banking,
trust or savings association or (ii) petition any court of competent
jurisdiction for the appointment of a successor escrow agent. Any successor
escrow agent shall execute and deliver an instrument accepting such appointment
and it shall, without further acts, be vested with all the estates, properties,
rights, powers and duties of the predecessor escrow agent as if originally
named as escrow agent. The resigning Escrow Agent shall thereupon be discharged
from any further obligations under this Escrow Agreement.
(f) Upon delivery of all of the Shares and all of the Funds pursuant to
the terms of Section 3 above or to a successor escrow agent, the Escrow Agent
shall thereafter be discharged from any further obligations hereunder. The
Escrow Agent is hereby authorized, in any and all events, to comply with and
obey any and all final judgments, orders and decrees (not subject to appeal) of
any court of competent jurisdiction which may be filed, entered or issued, and,
if it shall so comply or obey, it shall not be liable to any other person by
reason of such compliance or obedience.
(g) The Escrow Agent shall not have any responsibility or liability for
the completeness, correctness or accuracy of any transactions between the
Investor, on the one hand, and the Company, on the other hand.
(h) In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Shares or the Funds which, in its sole opinion, are in conflict with either
other instructions received by it or any provision of this Agreement, it shall
without liability of any kind, be entitled to hold the Shares and the Funds
pending the resolution of such uncertainty to the Escrow Agent's sole
satisfaction, by final judgment of a court or courts of competent jurisdiction
or otherwise.
5. Indemnification. The Company and the Investor, jointly and severally,
hereby agree to indemnify the Escrow Agent, its directors, officers, agents and
employees and any person who "controls" the Escrow Agent within the meaning of
Section 15 of the Securities Act of 1933 (collectively, the "Indemnified
Parties") for and to hold them harmless against any loss, liability or expense
(including, without limitation, all expenses reasonably incurred in its
investigation and defense
-3-
<PAGE> 4
and costs and expenses reasonably incurred in enforcing this right of
indemnification) incurred without gross negligence or willful misconduct on the
part of the Indemnified Parties arising out of or in connection with this
Agreement. The provisions of this Section 5 shall survive the termination of
this Agreement.
6. Escrow Costs; No Right of Set-off. The Escrow Agent shall be entitled
to be paid a fee of $4,500 for its services pursuant to this Agreement and to
be reimbursed for its reasonable costs and expenses hereunder (including
reasonable counsel fees), which fees, costs and expenses shall be paid from
time to time by the Company. Nothing in this Section 6 limits the Escrow
Agent's rights against the Company and the Investor for the payment of amounts
due to the Escrow Agent under Section 5 above or the Escrow Agent's fees, costs
and expenses hereunder.
7. Miscellaneous.
(a) Governing Law; Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflict of laws. The parties agree that the exclusive forum
for all disputes arising out of this Agreement and the transactions
contemplated hereby shall be the state courts of the State of Delaware.
(b) Paragraph and Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part of this Agreement.
(c) Notices. All notices and other communications to any party hereunder
shall be in writing (including facsimile or similar writing) and shall be given:
(i) if to the Company, to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Daniel D. Rubino, Esq.
Facsimile: (212) 728-8111
(ii) if to the Investor, to: with a copy
(which shall not constitute
notice) to:
Ernest C. Garcia II Steven D. Pidgeon, Esq.
2525 E. Camelback Road Snell & Wilmer L.L.P.
Suite 1150 One Arizona Center
Phoenix, Arizona 85011 Phoenix, Arizona 85004-0001
Facsimile: (602) 522-3160 Facsimile: (602) 382-6070
-4-
<PAGE> 5
(iii) if to the Escrow Agent, to:
Gordon, Fournaris & Mammarella, P.A.
1220 North Market Street, Suite 700
Wilmington, DE 19801
Facsimile: (302) 652-1142
or such other address or facsimile number as a party may hereafter specify by
like notice to the other parties. Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified herein and the appropriate
confirmation is provided; (ii) if given via a nationally recognized courier
service marked "Next Day Delivery," one business day following the date of the
delivery to such courier service; (iii) if given via United States mail, five
days after such notice is deposited in the mail in a postage pre-paid envelope;
or (iv) if given by any other means, when delivered at the address specified
herein.
(d) Expenses and Taxes. Each party shall pay its own fees and expenses
incurred in connection with the transactions contemplated hereby.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
(f) Entire Agreement, Amendment and Waiver. This Agreement and the Letter
Agreement constitute the entire understanding of the parties hereto and
supersede all prior agreements or understandings with respect to the subject
matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived only with the written
consent of the Company and Investor. No course of dealing between the Company
and Investor nor any delay in exercising any rights hereunder shall operate as a
waiver of any rights of either party hereto.
(g) Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not effect the remaining
provisions of this Agreement which shall remain in full force and effect.
(h) Specific Performance. The parties hereto agree that this Agreement may
be enforced by either party through specific performance, injunctive relief and
other equitable relief. Both parties further agree to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
equitable relief and that this provision is without prejudice to any other
rights that the parties hereto may have for any failure to perform this
Agreement.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same instrument.
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first written above.
NATIONAL AUTO CREDIT, INC.
_____________________________________
Name:
Title:
/s/ Ernest C. Garcia II
_____________________________________
ERNEST C. GARCIA II (*)
GORDON, FOURNARIS & MAMMARELLA, P.A.
By:__________________________________
Petrer S. Gordon, Esquire
President
(*) On his own behalf and, for purposes of delivery of
134,000 shares of Common Stock, on behalf of Verde
Investments, Inc., as President.
<PAGE> 1
EXHIBIT 99.4
AGREEMENT RE JOINT FILING OF
SCHEDULE 13D, AMENDMENT NO. 4
The undersigned hereby agrees:
1. Each of them is individually eligible to use the Schedule 13D,
Amendment No. 4 ("Amendment No. 4") to which this Exhibit is attached, and such
Amendment No. 4 is filed on behalf of each of them; and
2. Each of them is responsible for the timely filing of such Amendment
No. 4 and any further amendments thereto, and for the completeness and accuracy
of the information concerning such person contained therein; but none of them is
responsible for the completeness or accuracy of the information concerning the
other persons making the filing, unless such person knows or has reason to
believe that such information is inaccurate.
DATED: May 12, 1999
ERNEST C. GARCIA II
/s/ Ernest C. Garcia II
By:________________________________________
Ernest C. Garcia II
Its: As an Individual
VERDE INVESTMENTS, INC.
/s/ Ernest C. Garcia II
By:________________________________________
Ernest C. Garcia II
Its: President
12
