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Exhibit 10.38
Standstill Agreement
STOCK PURCHASE AND STANDSTILL AGREEMENT
This STOCK PURCHASE AND STANDSTILL AGREEMENT, dated as of November 3, 2000
(this "Agreement"), is made and entered into by and among READING ENTERTAINMENT,
INC., a Nevada corporation ("Reading"), FA, INC., a Nevada corporation and a
wholly owned subsidiary of Reading ("FA"), CITADEL HOLDING CORPORATION, a Nevada
corporation ("Citadel"), and CRAIG CORPORATION, a Nevada corporation ("Craig"
and, collectively with Reading, FA and Citadel, the "Stockholders"), on the one
hand, and NATIONAL AUTO CREDIT, INC., a Delaware corporation ("NAC" or the
"Company"), on the other hand.
WHEREAS, certain disputes and differences have arisen between the Company
and Sam J. Frankino, a former executive officer and current director and
stockholder of the Company ("Frankino"), and certain of his affiliates
(collectively, the "Frankino Parties"), which disputes have resulted in
litigation styled National Auto Credit, Inc. v. Sam J. Frankino, C.A. No. 17973
and Sam J. Frankino v. David L. Huber, et al., C.A. No. 17984, both pending in
the Court of Chancery of the State of Delaware (collectively referred to herein
as the "Actions"); and
WHEREAS, the Frankino Parties and the Company wish to enter into a
settlement agreement in the form attached as Attachment A to this Agreement (the
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"Settlement Agreement") pursuant to which, among other things, (i) all disputes
between the Company and the Frankino Parties, including the Actions, will be
settled without the admission of fault by any of them and (ii) the Company will
repurchase all of the shares of common stock, par value $.05 per share, of the
Company ("Company Common Stock") beneficially owned by the Frankino Parties; and
WHEREAS, the Stockholders own an aggregate of 10,055,000 shares of Company
Common Stock (the "Common Shares") and 100 shares of Series A Convertible
Preferred Stock, par value $.05 per share, of the Company (the "Preferred
Shares" and, together with the Common Shares, the "Shares") and, absent the
repurchase by the Company of certain of the Shares, as contemplated hereby, the
consummation of the transactions contemplated by the Settlement Agreement would
have the effect of vesting ownership of shares representing a majority of the
voting power of the Company in the Stockholders; and
WHEREAS, the Stockholders support the execution of the Settlement Agreement
by the Company and the consummation by the Company of the transactions
contemplated thereby and desire to assist the Company in its efforts to resolve
the disputes between it and the Frankino Parties, including the Actions; and
WHEREAS, in furtherance of the foregoing, the Company desires to acquire
from FA and FA is willing to sell to the Company Five Million Two Hundred
Seventy-Seven Thousand Eight Hundred Seventy-Nine (5,277,879) of the Common
Shares and all 100 of the Preferred Shares (collectively, the "Subject Shares"),
upon the terms and subject to the conditions hereinafter set forth, such that at
the time of the purchase of the Subject Shares, and after
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giving effect to the transactions contemplated by the Settlement Agreement, the
Stockholders shall own an aggregate of 33% of the issued and outstanding shares
of Company Common Stock, on a fully diluted basis (based on the number of shares
of Company Common Stock issued and outstanding on the date hereof, assuming the
prior exercise, conversion or exchange, as the case may be, of any options,
warrants, rights to acquire and securities convertible into or exchangeable for
such Company Common Stock issued and outstanding on the date hereof, and after
taking into account the repurchase by the Company of the Common Shares owned by
the Frankino Parties, which repurchase is occurring simultaneously with the
execution and delivery of this Agreement); and
WHEREAS, the Stockholders are willing to agree to certain restrictions
regarding the shares of the Company Common Stock they will continue to own
following the consummation of the transactions contemplated hereby.
NOW THEREFORE, in consideration of the above premises and the promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Stockholders and the Company
hereby agree as follows:
1. Repurchase of Subject Shares.
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(a) Upon the terms and subject to the conditions of this Agreement, at
the closing of the transactions contemplated hereby (the "Closing"), which
Closing is taking place contemporaneously with the execution and delivery of the
Agreement by the parties hereto, FA shall sell, transfer and convey to the
Company, and the Company shall acquire from FA, the Subject Shares at a purchase
price equal to the sum of (a) Seven Million Nine Hundred Sixteen Thousand Nine
Hundred Sixty-Eight Dollars and Fifty Cents ($7,916,968.50) ($1.50 per Subject
Share) and (b) an interest factor accruing from April 5, 2000 to the date of the
Closing at the simple annual rate of 12% (collectively, the "Purchase Price").
(b) At the Closing (A) the Company shall deliver to FA (i) the
Purchase Price, in immediately available United States Dollars, by wire transfer
to a bank account designated by FA, and (ii) an irrevocable instruction to its
transfer agent to issue a certificate representing 1,484,368 Common Shares,
representing the Common Shares in excess of the Subject Shares represented by
the Certificate (defined hereinbelow), duly executed by the Company in
contemplation of delivery of the same to FA at Closing hereunder (the "Excess
Shares"); and (B) FA shall deliver to the Company (i) a certificate (the
"Certificate") representing 6,762,247 Common Shares, duly endorsed or
accompanied by stock powers duly executed in blank and otherwise in form
reasonably satisfactory to the Company for transfer on the books of the Company
and (ii) such other instruments and documents as may be reasonably requested by
the Company to evidence its purchase of the Subject Shares. At the Closing,
subject to the delivery of the Purchase Price in accordance with this Paragraph,
FA shall simultaneously sell, convey, assign, transfer and deliver to the
Company, and the Company shall purchase, acquire and accept from FA, good and
valid title to the Subject Shares, free and clear of all liens, claims, charges
or other encumbrances (collectively, "Liens").
2. Representations and Warranties of the Company.
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The Company hereby represents and warrants to the Stockholders as
follows:
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(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and corporate authority to enter into this Agreement, and to
consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby, have been authorized by all necessary corporate action. This Agreement
has been duly executed and delivered by the Company and, assuming that this
Agreement constitutes a valid and binding obligation of each of the
Stockholders, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(c) The execution and delivery by the Company of this Agreement do
not, and the consummation by the Company of the transactions contemplated hereby
and compliance by the Company with the terms hereof will not, conflict with, or
result in any violation of or default under (i) any provision of the Company's
Restated Certificate of Incorporation, as amended, the Company's Amended and
Restated By-Laws or any other similar organizational documents of the Company,
(ii) any judgment, order, injunction or decree (an "Order"), or statute, law,
ordinance, rule or regulation ("Applicable Law"), applicable to the Company or
the property or assets of the Company or (iii) any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation
("Contracts") to which the Company is party or by which the Company or any of
the Company's assets may be bound. No consent, approval, order or authorization
of, notice to, or registration, declaration or filing with ("Governmental
Approval") any court, administrative agency or commission or other governmental
entity, authority or instrumentality, domestic or foreign ("Governmental
Authority"), is required to be obtained or made by or with respect to the
Company in connection with the execution and delivery of this Agreement or the
consummation by the Company of the transactions contemplated hereby.
(d) Set forth on Attachment B are true, correct and complete schedules
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setting forth the following:
(i) The total number of shares of Company Common Stock
currently issued and outstanding;
(ii) The total number of shares of Company Common Stock being
simultaneously repurchased from the Frankino Parties;
(iii) The total number of shares of Company Common Stock
subject to issuance upon the exercise of currently outstanding
stock options, calculated without reference to whether or not such
options are currently vested or exercisable;
(iv) The total number of shares of Company Common Stock subject
to issuance upon the exercise of conversion or exchange rights
under securities convertible into or exchangeable for Company
Common Stock or the exercise of any other rights to acquire
Company Common
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Stock, calculated without reference to whether or not such
conversion, exchange or other rights are currently vested or
exercisable;
(v) All outstanding equity securities of the Company, other
than Company Common Stock; and
(vi) All outstanding commitments to issue, grant or otherwise
transfer to any person any equity securities of the Company or
any of its subsidiaries, or any other securities convertible into
or exchangeable for or any other right to acquire equity
securities of the Company or any of its subsidiaries, calculated
without reference to whether such conversion, exchange or other
rights are currently vested or exercisable.
(e) The Settlement Agreement, attached hereto as Attachment A, is a
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true, correct and complete copy of the settlement agreement with Frankino
encompassing and including all agreements between the Company, its officers,
directors, affiliates and associates, on the one hand, and Frankino, his
affiliates, associates, relatives and related parties, on the other hand, and is
being simultaneously entered into by the parties thereto.
(f) Immediately following the Closing, the Board of Directors of the
Company will be comprised of the individuals set forth an Attachment C, all of
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whom have agreed to continue as directors of the Company for the remainders of
their respective terms, as such terms are likewise set forth on Attachment C.
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(g) Attached hereto as Attachment D is a true and correct copy of the
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Amended and Restated By-Laws of the Company, as presently in force.
(h) Attached hereto as Attachment E is a schedule of all Affiliate
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Agreements (as such term is defined in Paragraph 9, below) to which the Company
is a party as of the date hereof, together with a summary of the principal
business terms of each such Affiliate Agreement.
3. Representations and Warranties of the Stockholders.
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The Stockholders represent and warrant to the Company as set forth
below. The representations and warranties set forth in clauses (a) through (c)
are made on an individual basis, and each Stockholder makes the representations
and warranties set forth therein only with respect to itself. The
representations set forth in clause (d) below are made by the Stockholders on a
joint and several basis.
(a) Each of the Stockholders is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
and each has all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by each of the
Stockholders of this Agreement, and the consummation by each of the Stockholders
of the transactions contemplated hereby, have been authorized by all necessary
action, corporate or otherwise.
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This Agreement has been duly executed and delivered by each of the Stockholders,
and, assuming that this Agreement constitutes a valid and binding obligation of
the Company, constitutes a valid and binding obligation of each such
Stockholder, enforceable against each such Stockholder in accordance with its
terms.
(c) The execution and delivery by each Stockholder of this Agreement
do not, and the consummation by each Stockholder of the transactions
contemplated hereby and compliance by each Stockholder with the terms hereof
will not, conflict with, or result in any violation of or default under, (i) any
provision of the certificate of incorporation, by-laws or any other similar
organizational documents of such Stockholder, (ii) any Order, or Applicable Law,
applicable to any of the Stockholders or the property or assets of any such
Stockholder or (iii) any Contracts to which any Stockholder is a party or by
which any Stockholder or any Stockholder's assets may be bound. No Governmental
Approval of any Governmental Authority is required to be obtained or made by or
with respect to any Stockholder in connection with the execution and delivery of
this Agreement by such Stockholder or the consummation by such Stockholder of
the transactions contemplated hereby.
(d) The Stockholders own an aggregate of 10,055,000 shares of Company
Common Stock and 100 shares of Series A Convertible Preferred Stock, par value
$.05 per share, of the Company ( "Company Preferred Stock"), in each case,
including the Subject Shares, and have good and valid title to such Shares, free
and clear of all Liens, and such Shares are the only securities of the Company
that the Stockholders or any of their Affiliates (as defined below) own
beneficially or of record as of the date hereof. As used herein, the term
"Affiliate" shall mean (i) any entity in which any one or more of the
Stockholders owns, directly or indirectly, a greater than 15% beneficial
interest, (ii) any partnership in which any of the Stockholders is a general
partner or managing member and (iii) any entity in which James J. Cotter
("Cotter") or any of his children owns, directly or indirectly, a greater than
10% beneficial interest (other than through their ownership interest in any of
the Stockholders) or in which Cotter or any of his children serves as an
officer, director, general partner or managing member. Notwithstanding the
foregoing, no entity shall be deemed to be an Affiliate for purposes of this
Agreement if, and to the extent that, such entity acquires, or continues to
hold, shares of Company Common Stock or other equity securities of the Company
(i) over the opposition of any of the Stockholders or Cotter, which opposition
shall be expressed in writing with a copy delivered to the Company in accordance
with the notice provisions set forth in Paragraph 11 hereof, and (ii) with the
intention or for the purpose of causing a breach of the obligations of any of
the Stockholders to the Company pursuant to this Agreement. The term
"Affiliate" shall not include the Company or any of its subsidiaries or Gish
Biomedical, Inc. ("Gish"), so long as, in the case of Gish, the combined
ownership, direct or indirect, of the Stockholders in such company represents
less than 20% of the voting power of such company. To the best knowledge and
belief of each of the Stockholders, Gish does not beneficially own any of the
Company's equity securities.
4. Standstill Agreement.
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(a) Each of the Stockholders hereby covenants and agrees that, from
and after the date hereof and at all times through and including August 31,
2003, unless this Agreement shall be earlier terminated in accordance with the
provisions of Paragraph 10 hereof, they, and each of them, will not, nor will
they permit their respective Affiliates to,
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directly or indirectly, in any manner acquire, or agree to acquire, any
beneficial interest in any equity securities of the Company, to the extent that
the acquisition of such equity securities would increase the beneficial
ownership of the Stockholders and their Affiliates to more than 33% of the
aggregate voting power of the Company's equity securities then outstanding,
calculated on a fully diluted basis.
(b) Each of the Stockholders hereby covenants and agrees that, from
and after the date hereof and at all times through and including August 31,
2003, unless this Agreement shall be earlier terminated in accordance with the
provisions of Paragraph 10 hereof, they, and each of them, will not, nor will
they permit their respective Affiliates, to make or in any way participate in
any "solicitation" of "proxies" (as such terms are used in the proxy rules of
the United States Securities and Exchange Commission) to vote any voting
securities of the Company ("Company Voting Stock") in connection with the
election of the directors of the Company (other than proxies to vote Company
securities beneficially owned by any one or more of the Stockholders and/or
their respective Affiliates, which proxies shall be voted in accordance with
Paragraph 6, hereof), or otherwise seek to alter the composition of the
Company's Board of Directors.
(c) Each of the Stockholders hereby covenants and agrees that, from
and after the date hereof and at all times through and including August 31,
2001, unless this Agreement shall be earlier terminated in accordance with the
provisions of Paragraph 10 hereof, they, and each of them, will not, nor will
they permit their Affiliates to make or in any way participate in any way in any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
United States Securities and Exchange Commission) to vote Company Voting Stock,
with respect to any matter, other than the election of directors of the Company,
which is governed by Paragraph 4(b) hereof (a "Non-Election Issue"), which may
be submitted to a vote of the stockholders of the Company, other than proxies
to vote Company Voting Stock beneficially owned by any one or more of the
Stockholders and/or their respective Affiliates with respect to any such Non-
Election Issue.
(d) Notwithstanding anything to the contrary contained in Paragraphs
4(a) through 4(c) hereof, nothing contained in this Agreement shall be construed
to prevent any of the Stockholders or any of their respective Affiliates from:
(i) making a tender offer for all of the outstanding Company Common Stock so
long as such tender offer is made on an any and all basis; or (ii) communicating
with any other holder or holders of the Company's outstanding securities,
including, without limitation, the expression of the opinion of the
Stockholders with respect to any third-party solicitation of proxies, provided
that such Stockholder does not (A) provide to any security holder of the Company
a form of proxy or other authorization permitting the Stockholder (or its
designee) to vote any equity security of the Company on such security holder's
behalf or (B) accept from any security holder of the Company a proxy or other
authorization permitting the Stockholder (or its designee) to vote any equity
security of the Company on such security holder's behalf, provided that clauses
(A) and (B), above, shall not be deemed to prevent the solicitation of proxies
to vote Company securities beneficially owned by such Stockholders, as
contemplated by Paragraphs 4(b) and 4(c) above.
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5. Restrictions on Sales of Shares
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(a) From and after the date hereof and at all times prior to the
termination of this Agreement in accordance with the provisions of Paragraph 10
hereof, no Stockholder shall, directly or indirectly, sell, pledge, assign,
dispose of or otherwise transfer (other than in connection with a pledge to
secure indebtedness owed to any one or more institutional lender(s))
(collectively, "Transfer") any of the shares owned by such Stockholder, and no
Stockholder shall permit any Affiliate of such Stockholder to Transfer any of
the shares owned by such Affiliate, in each case, other than to a Permitted
Transferee (as defined below).
(b) As used in this Agreement, the term "Permitted Transferee" means:
(i) the Company and its affiliates (as used in this Agreement, the term
"affiliates" shall have the meaning ascribed to such term in Rule 12b-2 of the
General Rules and regulations promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")); (ii) any Affiliate of any Stockholder
who agrees in writing to be bound by the provisions of Paragraph 4 hereof; (iii)
any Transferee who is a party to any tender offer, merger, reorganization or
transfer of all or substantially all of the assets of the Company approved by
the Board of Directors of the Company; (iv) any Transferee that agrees in
writing to be bound by the provisions of Paragraph 4 hereof; (v) any Transferee
who, after giving effect to the proposed Transfer, will own, directly or
indirectly, beneficially or of record, not more than 15% of the issued and
outstanding Company Voting Stock (including, for purposes of this calculation,
any shares of Company Voting Stock held by affiliates of such Transferee);
(vi) any person or entity to whom a Stockholder Transfers Shares in reliance on
the provisions of Rule 144 promulgated under the Securities Act of 1933, as
amended (other than the provisions of Rule 144(k) thereunder or any successor
provision thereto), and in compliance with the restrictions on volume, manner of
sale and any other applicable restrictions imposed thereby; (vii) any Transferee
who acquires Shares pursuant to a tender offer for the securities of the Company
or (viii) any successor by merger of any Stockholder or (ix) any Transferee who
acquires shares pursuant to the exercise of FA's piggyback registration rights
or in a registered secondary offering of Shares, provided that such shares are
offered for sale in an underwritten public offering or otherwise sold in a
broadly distributed public offering. Notwithstanding anything to the contrary
contained herein, a Permitted Transferee that agrees to be bound by the
provisions of Paragraph 4 hereof shall not be entitled to any other rights or
benefits under this Agreement; provided that such limitations will not apply to
the transfer under clause (viii) above.
(c) In the case of any Transfer to a Permitted Transferee under
clauses (ii) or (iv) of Paragraph 5(b) above, or, to the extent that the sale
involves a sale of greater than 10% of issued and outstanding Company Voting
Stock, under clause (v) of Paragraph 5(b) above, the Transferring Stockholder
shall deliver to the Company (A) at least seven (7) Business Days prior to such
Transfer, a written notice stating its intention to Transfer the Shares to be
Transferred, the name of the Transferee, whether such Transferee is an
Affiliate, the number of Shares to be Transferred, and the price and other
material terms and conditions of the Transfer, and (B) in the case of any
Transfer to a Permitted Transferee under clauses (ii), (iv) or (viii) of
Paragraph 5(b) above, on or prior to the effective date of such Transfer and in
a form reasonably acceptable to the Company in consultation with its legal
counsel, the Transferee's written acknowledgment of and agreement to be bound by
the provisions of Paragraph 4 hereof. In the case of a Transfer to a Permitted
Transferee made solely under the
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authority of clause (v) of Paragraph 5(b) above and involving a sale of greater
than 10% of the Company's issued and outstanding Voting Stock, the Company will
have the right, upon notice to the Stockholders, to terminate the obligations
imposed upon the Company pursuant to Paragraph 8(a) hereof.
(d) At, or promptly following the Closing,
(i) Each certificate representing the Shares, other than the
Subject Shares, shall be stamped or otherwise imprinted with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER CONTAINED IN THE STOCK PURCHASE AND STANDSTILL
AGREEMENT, DATED AS OF NOVEMBER __, 2000, BY AND AMONG READING
ENTERTAINMENT, INC., FA, INC., CITADEL HOLDING CORPORATION, CRAIG
CORPORATION AND NATIONAL AUTO CREDIT, INC. (THE "COMPANY") AND MAY NOT BE
TRANSFERRED EXCEPT AS PERMITTED BY THE TERMS THEREOF.
(ii) Each certificate representing Shares that were acquired from
the Company by FA on April 5, 2000, shall be stamped or otherwise
imprinted with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES
LAWS OF ANY STATE. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, DISPOSED OF OR OTHERWISE TRANSFERRED
("TRANSFERRED"), AND THE COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH
SECURITIES, EXCEPT (A) PURSUANT TO RULE 144 UNDER THE ACT OR (B) UPON
RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY, THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT.
With respect to Shares (A) that are Transferred to a Permitted Transferee
pursuant to clauses (iii), (v) or (vii) of Paragraph 5(b) hereof, and (B) as
to which the Transfer restrictions imposed by this Agreement have as a result of
such Transfer terminated, upon request of the Transferring Stockholder, the
Company shall cause to be issued certificates representing such Shares without
the restrictive legend set forth above in clause (i) stamped or otherwise
imprinted thereon. With respect to any Shares (X) that are Transferred to a
Permitted Transferee pursuant to clauses (vi) or (ix) of Paragraph 5(b) hereof,
and (Y) as to which all Transfer restrictions have terminated (including any
Transfer restrictions imposed by this Agreement and any Transfer restrictions
imposed by federal or state securities laws), upon request of the Transferring
Stockholder, the Company shall cause to be issued certificates representing such
Shares without any portion of the restrictive legends set forth above in clauses
(i) and (ii) stamped or otherwise imprinted thereon. Upon the termination of
this Agreement, the Company, upon the request of any holder of Shares, shall
cause to be issued certificates representing such Shares without the legend set
forth above in clause (i) stamped or otherwise imprinted thereon.
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6. Voting Agreement.
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In connection with each election of directors of the Company occurring
after the date hereof and prior to the termination of this Agreement in
accordance with the provisions of Paragraph 10 hereof, whether at an annual or
special meeting of the Company's stockholders or otherwise, each Stockholder
shall vote, or shall cause to be voted, all shares of the Company's outstanding
equity securities as to which such Stockholder exercises voting control in the
same manner and in the same proportion as the shares held by all stockholders
of the Company other than the Stockholders are voted in connection with such
election. Notwithstanding the foregoing, each Stockholder shall be free to cast
all of the votes which such Stockholder is entitled to cast in favor of the
election of the Stockholder Nominees.
7. Board Representation.
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(a) Upon written notice from the Stockholders designating their
nominees, the Company shall promptly cause two (2) designees of the Stockholders
(including any successors to such designees, the "Stockholder Nominees") to be
appointed to the Company's Board of Directors. So long as the nominees
specified in such notice are directors and/or executive officers of any one or
more of the Stockholders, such nominees shall be appointed to the Board of
Directors of the Company before any other action is taken by the Board of
Directors of the Company (other than ministerial actions such as the calling of
a meeting of the Board of Directors of the Company to take action upon such
nominees). The Stockholder Nominees shall initially be James J. Cotter and
Scott A. Braly and shall be appointed to fill vacancies on the Company's Board
of Directors created by the resignation therefrom, as contemplated by the
Settlement Agreement, of Frankino and/or certain other individuals appointed by
or affiliated with Frankino having terms of office expiring at the 2002 annual
meetings of the Company's stockholders. Until the termination of this Agreement
in accordance with the provisions of Paragraph 10 hereof, the Company shall
cause the Stockholder Nominees to be included in the slate of nominees nominated
by the Company's Board of Directors for election as directors of the Company
with respect to each annual or special meeting of the Company's stockholders
held for the purpose of electing directors of the Company (or with respect to
any election of directors of the Company to be effectuated through action by
written consent), and shall solicit proxies from the holders of the outstanding
Company Voting Stock in favor of the election of the Stockholder Nominees on the
same basis and to the same extent that proxies are solicited in favor of the
election of all other nominees for director of the Company nominated by the
Board of Directors of the Company. Any vacancy on the Company's Board of
Directors created by the resignation or removal of a Stockholder Nominee shall
be filled by the appointment of another Stockholder Nominee. The Stockholders
will cause each Stockholder Nominee to deliver to the Company along with such
Stockholder Nominee's notice of nomination a completed directors and officers
questionnaire in the form then in use by the Company.
(b) The Stockholders acknowledge and agree that the Stockholder
Nominees will be required to recuse themselves from any deliberations of the
Company's Board of Directors regarding whether or not the Company should or will
amend or terminate this Agreement and the Stockholder Nominees shall not vote on
any resolution or other proposed action of the Company's Board of Directors
regarding such amendment or termination.
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(c) Until such time as the Stockholder Nominees have been appointed to
the Company's Board of Directors, or in the event that thereafter any
Stockholder Nominee for any reason is not able to attend any meeting of the
Board of Directors or any committee of the Board of Directors on which such
Stockholder Nominee serves, the Stockholders shall be entitled to send an
observer to such meeting in the stead of such absent Stockholder Nominee;
provided that any such observer shall not be entitled to vote on any matter
before the Company's Board of Directors, and the presence or absence of such
observer shall not be considered for purposes of determining the existence of a
quorum. The costs and expenses of the attendance of such observer at any such
meeting will be treated the same as if such cost or expense had been incurred by
a director of the Company.
(d) The Company shall give to the Stockholder Nominees (and prior to
the appointment of such Stockholder Nominees, to the Stockholders) not less than
three (3) full business days notice of any meeting of the Board of Directors of
the Company or any meeting of any committee of the Board of Directors of the
Company upon which any Stockholder Nominee serves. In other words, and by way
of example, notice of any meeting to be held on a Friday must be received by not
later than the close of business on the preceding Monday, assuming that there
are no legal holidays during such period. This notice must be accompanied by an
agenda for the meeting, and copies of any and all materials provided to any one
or more of the other directors of the Company with respect to that meeting. In
the event that materials are distributed to any one or more directors of the
Company following the giving of such notice, copies of such materials will be
provided to the Stockholder Nominees (and prior to the appointment of such
Stockholder Nominees, to the Stockholders) on the same day as they are provided
to such directors. The purpose of this provision is to ensure that the
Stockholder Nominees (or prior to the appointment of such Stockholder Nominees,
the Stockholders) are provided the same access to information as any other
director of the Company.
8. Company Covenants.
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(a) At all times from and after the date hereof until the earliest to
occur of (i) the preparation, adoption and public disclosure by the Board of
Directors of the Company of a five-year business plan for the Company and its
subsidiaries on a consolidated basis (the Company and its subsidiaries being
collectively referred to herein on a consolidated basis as "NAC") and (ii) the
termination of this Agreement in accordance with the provisions of Paragraph 10
hereof, the Company shall not, directly or indirectly through one or more
affiliates (A) acquire any assets, in any transaction or in any series of
related transactions, by merging or consolidating or otherwise combining with
any one or more corporations, partnerships or/or other entities, or by purchase
(whether for cash, debt and/or securities) in a transaction which would be
material to NAC or (B) issue, in any transaction or in any series of related
transactions, a material amount of the securities of NAC.
(b) At all times from and after the date hereof until the termination
of this Agreement in accordance with the provisions of Paragraph 10 hereof, the
Company, consistent with the stockholder approval policy of The Nasdaq Stock
Market, as set forth in Section 4310(G) of the National Association of
Securities Dealers, Inc. Manual or any successor provision thereto, shall obtain
the approval of its stockholders for any plan or arrangement: (i) in connection
with the acquisition of the stock or assets of another company (A) if any
10
<PAGE>
director, officer or substantial stockholder of the Company has a 5% or greater
interest (or such persons collectively have a 10% or greater interest), directly
or indirectly, in the company or assets to be acquired or in the consideration
to be paid in the transaction or series of related transactions and the present
or potential issuance of Company Voting Stock, or securities convertible into
or exercisable or exchangeable for Company Voting Stock, could result in an
increase in outstanding shares of Company Voting Stock or voting power of 5% or
more; or (B) where, due to the present or potential issuance of Company Voting
Stock, or securities convertible into or exercisable or exchangeable for
Company Voting Stock, other than pursuant to a public offering for cash, (1) the
Company Voting Stock (or securities convertible into or exercisable or
exchangeable for Company Voting Stock) to be issued has or will have upon
issuance voting power equal to or in excess of 20% of the voting power
outstanding before the issuance of such Company Voting Stock or such securities
convertible into or exercisable or exchangeable for Company Voting Stock; or (2)
the number of shares of Company Voting Stock (or securities convertible into or
exercisable or exchangeable for Company Voting Stock) to be issued is or will be
equal to or in excess of 20% of the number of shares of Company Voting Stock
outstanding before the issuance of the stock or securities; (ii) in connection
with a transaction other than a public offering involving (A) the sale or
issuance by the Company of Company Voting Stock (or securities convertible into
or exercisable or exchangeable for Company Voting Stock) at a price less than
the greater of book or market value, which sale or issuance, together with sales
by officers, directors or substantial stockholders of the Company, equals 20% or
more of the Company Voting Stock or 20% or more of the voting power outstanding
before the issuance; or (B) the sale or issuance by the Company of Company
Voting Stock (or securities convertible into or exercisable or exchangeable for
Company Voting Stock) equal to 20% or more of the Company Voting Stock or 20%
or more of the voting power outstanding before the issuance; or (iii) pursuant
to which any person shall acquire more than 33% of the Company's total assets
(calculated on a consolidated basis in accordance with United States generally
accepted accounting principles, consistently applied). Notwithstanding the
foregoing, the Company and the Stockholders shall amend this Paragraph 8(b) if,
and to the extent that, any such amendment is necessary to attain compliance
with the listing criteria of any recognized securities exchange or automated
inter-dealer quotation system upon which listing of the Company's securities is
sought or obtained. The Company represents that it is not currently aware of
any such listing criteria which would require such amendment.
(c) The Company shall give prompt notice to the Stockholders of any
proposed changes to the Settlement Agreement.
9. Related Party Transactions.
--------------------------
From and after the date hereof, until the termination of this
Agreement in accordance with the provisions of Paragraph 10 hereof, the Board
of Directors of the Company shall periodically conduct a review of all Related
Party Transactions, defined below and shall utilize the Audit Committee or a
comparable committee of the Company's Board of Directors, in either event,
consisting entirely of disinterested directors, for review of potential conflict
of interest situations. Moreover, until the termination of this Agreement in
accordance with the provisions of Paragraph 10 hereof, NAC shall not make any
payments, loans, advances or other distributions to, or enter into any
transaction, agreement or arrangement (each, a "Related Party Transaction")
with, any of its affiliates, officers, directors or stockholders or any
11
<PAGE>
associates or family members of any of the foregoing (collectively, the "Company
Affiliates"), or make any changes in or modify any agreements, Contracts,
arrangements, payables, obligations or understandings between NAC and any such
Company Affiliate (the "Affiliate Agreements"), other than in the ordinary
course of business consistent with past practice or as required by the Affiliate
Agreements, unless such Related Party Transaction or Affiliate Agreement
amendment shall have previously been approved by the Company's Board of
Directors (including by a majority of the disinterested directors) or by a
committee of the Company's Board of Directors consisting solely of disinterested
directors.
10. Termination.
-----------
(a) This Agreement may be terminated at any time:
(i) by mutual written agreement of the Company and the
Stockholders;
(ii) by either the Company or the Stockholders, effective upon
notice to the other party or parties of such termination, if any
Governmental Authority shall have issued an order, decree or ruling or
taken any other action (which order, decree or ruling the parties
shall use their reasonable best efforts to lift), in each case
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree,
ruling or other action shall have become final and nonappealable;
(iii) by either the Company or the Stockholders, effective upon
notice to the other party or parties of such termination, if a
proposal to sooner terminate the Agreement is approved by either (A)
the holders of a majority of the combined voting power of the
Company's outstanding capital stock entitled to vote thereon
(calculated without reference to any equity securities of the Company
held by the Stockholders or their respective Affiliates) or (B) a
majority of the independent Directors of the Company (provided that,
in the case of a termination under clause (B) above, the provisions
of Paragraphs 8 and 9 hereof will survive any such termination until
immediately following the next annual meeting of the Company's
stockholders occurring not less than 120 days following receipt of
notice of such termination);
(iv) by either the Company or the Stockholders, effective upon
notice to the other party or parties of such termination, in the event
that any person or entity not affiliated with, or acting at the
request or direction of, the Company or any of the Stockholders,
directly or indirectly, shall in any manner acquire, agree to acquire
or initiate a fully financed and unconditional (other than usual and
customary conditions to closing) tender offer or exchange offer
seeking to acquire, directly or indirectly, a beneficial interest in
securities of the Company representing in excess of 15% of the then
issued and outstanding Company Voting Stock;
(v) by either the Company or the Stockholders, effective upon
notice to the other party or parties of such termination, in the event
that the Board of
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<PAGE>
Directors of the Company shall propose any Change in Control
Transaction (as defined below); provided that in the case of a
termination under this Paragraph 10(a)(v), the provisions of
Paragraphs 6, 8(b) and 9 will survive any such termination until
immediately following the next annual meeting of the Company's
stockholders occurring not less than 120 days following receipt of
notice of such termination. As used in this Agreement, the term
"Change in Control Transaction" means (i) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) or all or substantially all of the assets of the
Company; (ii) any sale, lease exchange or other transfer (in one
transaction or a series of related transactions) of shares of capital
stock of the Company such that any person or group (other than the
holders generally of the Company's capital stock immediately prior to
such transaction or series of transactions) shall become the owner,
directly or indirectly, beneficially or of record, of shares
representing more than twenty percent (20%) of the aggregate ordinary
voting power represented by the issued and outstanding Company Voting
Stock ; or (iii) any merger, consolidation, recapitalization,
acquisition or similar transaction (other than any such transaction
involving only the Company and/or one or more wholly owned
subsidiaries of the Company) in which the outstanding Company Voting
Stock is converted into or exchanged for cash, securities or other
property, such that immediately after such transaction any person or
group (other than the holders generally of such capital stock
immediately prior to such transaction or series of transactions) shall
become the owner, directly or indirectly , beneficially or of record,
of shares representing more than twenty percent (20%) of the aggregate
ordinary voting power represented by the issued and outstanding
Company Voting Stock; or
(vi) by the Stockholders, effective upon notice to the Company of
such termination, in the event that any Stockholder Nominee, in favor
of whose election to the Company's Board of Directors each of the
Stockholders has voted its Shares, is (A) not elected to the Company's
Board of Directors as a result of any action or inaction by the
Company or (B) removed from the Company's Board of Directors and not
replaced by another Stockholder Nominee; provided, however, that the
-------- -------
resignation of a Stockholder Nominee or the refusal of a Stockholder
Nominee to stand for election shall not result in a termination of
this Agreement pursuant to this Paragraph 10(a)(vi) so long as any
vacancy resulting from such resignation or refusal is filled by a
Stockholder Nominee promptly following the receipt by the Company of
written notification from the Stockholders as to the identity of such
replacement Stockholder Nominee and a completed directors and officers
questionnaire in the form used by the Company in connection with its
most recent annual meeting of stockholders.
(b) This Agreement shall terminate automatically, and without any
action on the part of any party hereto:
13
<PAGE>
(i) in the event that the Stockholders collectively own, directly
or indirectly, beneficially or of record, together with all Affiliates
of such Stockholders, Shares representing, in the aggregate, less than
10% or 90% or more of the Company's then issued and outstanding
Company Voting Stock; or
(ii) on August 31, 2003.
11. Notices.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed given on the day when delivered personally or by facsimile
transmission (with confirmation), on the next Business Day when delivered to a
nationally recognized overnight courier or five (5) Business Days after
deposited as registered or certified mail (return receipt requested), in each
case, postage prepaid, addressed to the recipient party at its address set forth
below (or at such other address or facsimile number for a party as shall be
specified by like notice; provided, however, that any notice of a change of
address or facsimile number shall be effective only upon receipt thereof):
(a) If to the Company, to:
National Auto Credit, Inc.
30000 Aurora Road
Solon, Ohio 44139
Attention: David L. Huber, Chief Executive Officer
Facsimile: (440) 349-3141
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Jonathan J. Lerner, Esquire
Facsimile: (212) 735-2000
and
De Martino Finkelstein Rosen & Virga
1818 N. Street, N.W., Suite 400
Washington, D.C. 20036
Attention: Ralph V. DeMartino, Esq.
Facsimile: (202) 659-1290
14
<PAGE>
(b) if to the Stockholders, to:
In the case of Reading Entertainment, Inc., to:
Reading Entertainment, Inc.
550 S. Hope Street, Suite 1800
Los Angeles, California 90071
Attention: S. Craig Tompkins, Vice Chairman
Facsimile: (213) 239-0548
In the case of FA, Inc., to:
c/o Reading Entertainment, Inc.
550 S. Hope Street, Suite 1800
Los Angeles California 90071
Attention: S. Craig Tompkins, Vice Chairman
Facsimile: (213) 239-0548
In the case of Citadel Holding Corporation, to:
c/o Reading Entertainment, Inc.
550 S. Hope Street, Suite 1825
Los Angeles, California 90071
Attention: S. Craig Tompkins, Vice Chairman
Facsimile: (213) 239-0549
In the case of Craig Corporation, to:
c/o Reading Entertainment, Inc.
550 S. Hope Street, Suite 1825
Los Angeles, California 90071
Attention: S. Craig Tompkins, President
Facsimile: (213) 239-0549
12. Miscellaneous.
--------------
(a) This Agreement may not be amended except pursuant to a writing
signed by all parties hereto. Notwithstanding anything to the contrary
contained herein, the Stockholders shall not be entitled to amend the provisions
of Paragraph 4 hereof unless: (i) the holders of a majority of the combined
voting power of the Company's outstanding capital stock entitled to vote thereon
(calculated without reference to any equity securities of the Company held by
the Stockholders or their respective Affiliates) shall approve a proposal
submitted by the Board of Directors of the Company authorizing such amendment or
(ii) a majority of the independent members of the Company's Board of Directors
shall approve a resolution authorizing such amendment.
15
<PAGE>
(b) Unless specifically provided herein, this Agreement is not
intended to create, and shall not create, any rights in any person or entity
that is not a party to this Agreement.
(c) This Agreement has been prepared, and negotiations in connection
with it have been carried on, by the efforts of each of the parties hereto, and
this Agreement is to be construed fairly and in accordance with its plain
meaning, and not strictly against any particular party, and no party hereto
shall be deemed to be the draftsperson hereof.
(d) This Agreement constitutes the entire understanding of the parties
concerning its subject matter and may not be modified, altered, or discharged
except by a writing signed by all of the parties. No representations or
promises except those set forth herein have been made to induce any party to
enter into this Agreement.
(e) This Agreement shall be binding on each of the parties hereto and
on their respective successors and assigns.
(f) The representations and warranties set forth in Paragraphs 2 and 3
hereof shall survive indefinitely following the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, excluding its choice of law or conflicts
of law or other provisions which might result in the selection of the
substantive law of another jurisdiction. Each party hereto agrees that any
claim relating to this Agreement shall be brought solely in the State or Federal
Court for such jurisdiction, and each party hereto consents to the jurisdiction
of such Court for purposes hereof.
(h) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(i) If any provision in this Agreement shall be found or be held to be
invalid or unenforceable, then the meaning of such provision shall be construed,
to the extent feasible, so as to render the provision enforceable, and if no
feasible interpretation would save such provision, it shall be severed from the
remainder of this Agreement which shall remain in full force and effect unless
the severed provision is essential and material to the rights or benefits
received by any party hereto. In such event, the parties to this Agreement
shall use best efforts to negotiate, in good faith, a substitute, valid and
enforceable provision or agreement which most nearly effects the parties' intent
in entering into this Agreement.
[SIGNATURE PAGE FOLLOWS]
16
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Stock
Purchase and Standstill Agreement as of the date first above written.
NATIONAL AUTO CREDIT, INC.
By: /s/ David L. Huber
----------------------------
Name: David L. Huber
---------------------
Title: President and CEO
--------------------
READING ENTERTAINMENT, INC.
By: /s/ S. Craig Tompkins
----------------------------
Name: S. Craig Tompkins
---------------------
Title: Vice Chairman
--------------------
FA, INC.
By: /s/ S. Craig Tompkins
----------------------------
Name: S. Craig Tompkins
---------------------
Title: Vice Chairman
--------------------
CITADEL HOLDING CORPORATION
By: /s/ S. Craig Tompkins
----------------------------
Name: S. Craig Tompkins
---------------------
Title: Vice Chairman
--------------------
CRAIG CORPORATION
By: /s/ S. Craig Tompkins
----------------------------
Name: S. Craig Tompkins
---------------------
Title: President
--------------------
17
<PAGE>
ATTACHMENT A
SETTLEMENT AGREEMENT AND RELEASE
(INCLUDING AGREEMENT FOR SALE OF SHARES)
SETTLEMENT AGREEMENT AND RELEASE
(INCLUDING AGREEMENT FOR SALE OF SHARES)
----------------------------------------
This Agreement, effective November ____, 2000, is made and entered into
among by and among Samuel J. Frankino, individually and as trustee and president
of the Foundation (as defined below), trustee of the Trust (as defined below)
and managing partner of the Partnership (as defined below) ("Frankino"), the
Samuel J. Frankino and Connie M. Frankino Charitable Foundation (the
"Foundation"), the Corrine L. Dodero Trust for the Arts and Sciences (the
"Trust") and Frankino and Frankino Investment Company, a Nevada general
partnership (the "Partnership" and, collectively with Frankino in all capacities
listed above, the Foundation and the Trust, the "Frankino Parties" or
"Sellers"), on the one hand, and National Auto Credit, Inc., a Delaware
corporation (the "Company"), on the other hand.
WHEREAS, the Frankino Parties own an aggregate of 15,743,012 shares (the
"Shares") of common stock, par value $.05 per share, of the Company ("Company
Common Stock"); and
WHEREAS, certain disputes and differences have arisen between Frankino and
the Company, which disputes have resulted in litigation styled National Auto
Credit, Inc. v. Sam J. Frankino, C.A. No. 17973 and Sam J. Frankino v. David L.
Huber, et al., C.A. No. 17984, both pending in the Court of Chancery of the
State of Delaware (collectively referred to herein as the "Actions"); and
WHEREAS, Frankino and the Company wish to settle all disputes between them
without the admission of fault by any of them; and
WHEREAS, the Frankino Parties and the Company wish to waive, as permitted
by Paragraph 4 thereof, the restrictions imposed by the Order Maintaining Status
Quo, dated as of April 13, 2000, entered in connection with the Actions (the
"Status Quo Order") to the extent necessary to consummate the transactions
contemplated hereby; and
WHEREAS, the Company believes that the settlement and the other
transactions provided for herein are fair to, and in the best interests of, the
Company and its stockholders;
NOW THEREFORE, in consideration of the above premises and the promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Frankino Parties and
the Company hereby agrees as follows:
1. Upon the terms and subject to the conditions of this Agreement, at the
closing of the transactions contemplated hereby (the "Closing"), which Closing
is taking place contemporaneously with the execution and delivery of this
Agreement by the parties hereto, Sellers shall sell, convey, assign, transfer
and deliver to the Company, and the Company shall purchase, acquire and accept
from Sellers, good and valid title to all of the Shares, free and clear of all
liens, claims, charges or other encumbrances (collectively, "Liens"). In
consideration of the aforesaid sale, conveyance, assignment, transfer and
delivery of the Shares, at the Closing, the Company shall pay and convey to
Sellers a total of Thirty-Five Million Three Hundred Forty Thousand Dollars
($35,340,000), or $2.245 per Share, in
-1-
<PAGE>
immediately available United States Dollars, by wire transfer to bank accounts
designated by Sellers, as follows: (a) Frankino: Eighty-Seven Thousand Five
Hundred Forty-Seven Dollars and Forty-One Cents ($87,547.41); (b) Foundation:
Twenty-Eight Million Five Hundred Sixty-Eight Thousand Four Hundred Nine Dollars
and Forty-Five Cents ($28,568,409.45); (c) Trust: Four Million Four Hundred
Eighty-Nine Thousand Six Hundred Eleven Dollars and Seven Cents ($4,489,611.07);
and (d) Partnership: Two Million One Hundred Ninety-Four Thousand Four Hundred
Thirty-Two Dollars and Seven Cents ($2,194,432.07).
2. Upon the terms and subject to the conditions of this Agreement, at the
closing of each of the transactions contemplated by this Paragraph 2 (the
"Subsequent Closings"), which Subsequent Closings shall take place as soon as is
reasonably practicable following the receipt by the Company of certificates
representing the Additional Sellers' Shares (as defined below) held by each
Additional Seller (as defined below), each of William Maund; Lorraine Dodero;
William Dodero and Lorraine Dodero, as joint tenants; and Lorraine Dodero, as
trustee of a grantor trust for the benefit of Corrine Dodero (collectively, the
"Additional Sellers") shall sell, convey, assign, transfer and deliver to the
Company, and the Company shall purchase, acquire and accept from each such
Additional Seller, good and valid title to all of the shares of Company Common
Stock held by such Additional Seller, as set forth on Exhibit I attached hereto
-------
(the "Additional Sellers' Shares"), free and clear of all Liens. In
consideration of the aforesaid sale, conveyance, assignment, transfer and
delivery of the Additional Sellers' Shares, at the Subsequent Closings, the
Company shall pay and convey to each Additional Seller a purchase price equal to
the product of (a) One Dollar and Fifty Cents ($1.50) multiplied by (b) the
number of Additional Sellers' Shares set forth opposite such Additional Seller's
name on Exhibit I attached hereto, in immediately available United States
-------
Dollars, payable to each such Additional Seller by bank cashier's check,
certified check or wire transfer at the applicable Subsequent Closing.
3. The Company shall reimburse to Frankino legal expenses in the amount of
Two Million Eleven Thousand Six Hundred Dollars ($2,011,600.00), which shall be
paid at the Closing by wire transfer of immediately available United States
Dollars to a bank account designated by Frankino.
4. The Company and Frankino agree to use their best, good faith efforts to
consummate the settlement of the action captioned In Re: National Auto Credit,
Inc. Securities Litigation, Case No. 1:98CV0264, which is currently pending in
the United States District Court for the Northern District of Ohio.
5. The Company makes the following representations with respect to the
transactions set forth in Paragraphs 1 and 2 above:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and corporate authority to enter into this Agreement, and to
consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by the Company of this
Agreement, and the consummation of the transactions contemplated hereby have
been authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Company and, assuming that this Agreement
constitutes a valid and binding obligation of Sellers, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
(c) Given that, pursuant to Paragraph 8 hereof, the parties hereto
have waived the restrictions imposed by the Status Quo Order to the extent
necessary to consummate the transactions contemplated hereby, the execution and
delivery by the Company of this Agreement do not, and the consummation of the
transactions contemplated
-2-
<PAGE>
hereby and compliance with the terms hereof will not, conflict with, or result
in any violation of or default under, (i) any provision of the Company's
Restated Certificate of Incorporation, as amended, the Company's Amended and
Restated By-Laws or any other similar organizational documents of the Company,
(ii) any judgment, order, injunction or decree (an "Order"), or statute, law,
ordinance, rule or regulation ("Applicable Law"), applicable to the Company or
the property or assets of the Company or (iii) any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation
("Contracts") to which the Company is a party or by which the Company or any of
the Company's assets may be bound. Other than any consent, approval, order or
authorization of, notice to, or registration, declaration or filing
("Governmental Approval") that may be required under the terms of the Status Quo
Order, if any, no Governmental Approval of any court, administrative agency or
commission or other governmental entity, authority or instrumentality, domestic
or foreign ("Governmental Authority"), is required to be obtained or made by or
with respect to the Company in connection with the execution and delivery of
this Agreement or the consummation by the Company of the transactions
contemplated hereby.
6. The Sellers, jointly and severally, make the following representations
with respect to the transactions set forth in Paragraph 1 above and, on behalf
of the Additional Sellers, the Sellers, jointly and severally, make the
following representations with respect to the transactions set forth in
Paragraph 2 above:
(a) The Trust is a duly constituted charitable trust duly organized
and validly existing under the laws of the State of Florida, the Foundation is a
not-for-profit corporation duly organized, validly existing and in good standing
under the laws of the State of Ohio, and the Partnership is a general
partnership duly organized, validly existing and in good standing under the laws
of the State of Nevada, and each has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by the Sellers of this
Agreement, and the consummation of the transactions contemplated hereby, have
been authorized by all necessary action, corporate or otherwise. This Agreement
has been duly executed and delivered by the Sellers, and, assuming that this
Agreement constitutes a valid and binding obligation of the Company, constitutes
a valid and binding obligation of each of the Sellers, enforceable against each
of the Sellers in accordance with its terms.
(c) Given that, pursuant to Paragraph 8 hereof, the parties hereto
have waived the restrictions imposed by the Status Quo Order to the extent
necessary to consummate the transactions contemplated hereby, the execution and
delivery by Sellers of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of or default under, (i) any provision
of the organizational documents of the Sellers that are not natural persons,
(ii) any Order, or Applicable Law, applicable to any of the Sellers or the
property or assets of the Sellers or (iii) any Contracts to which any Seller is
a party or by which any Seller or any Seller's assets may be bound. Other than
any Governmental Approval that may be required under the terms of the Status Quo
Order, if any, no Governmental Approval of any Governmental Authority is
required to be obtained or made by or with respect to any Seller in connection
with the execution and delivery of this Agreement or the consummation by any
Seller of the transactions contemplated hereby.
(d) The Sellers own an aggregate of Fifteen Million Seven Hundred
Forty-Three Thousand Twelve (15,743,012) shares of Company Common Stock and have
good and valid title to such Shares, free and clear of all Liens, and the Shares
are the only securities of the Company that the Sellers or, except as set forth
on Exhibit I attached hereto, any of their affiliates or associates own
---------
beneficially or of record as of the date hereof (as each such term is
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<PAGE>
used under the regulations promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")). The Additional Sellers own an aggregate
of One Hundred Twenty Thousand Three Hundred Forty-Eight (120,348) shares of
Company Common Stock and have good and valid title to such Additional Sellers'
Shares, free and clear of all Liens, and the Additional Sellers' Shares are the
only securities of the Company that the Additional Sellers own beneficially or
of record as of the date hereof (as each such term is used under the regulations
promulgated under the Exchange Act).
7. The Frankino Parties agree that from and after the date hereof, they,
and each of them, will not, nor will they permit their affiliates or cause or
assist in any way their associates or other representatives to, directly or
indirectly, alone or in concert or in conjunction with any other "Person" or
"Group" (as such terms are used in Section 13(d)(3) of the Exchange Act) (a) in
any manner acquire, agree to acquire or to make any proposal (or request
permission to make any proposal) to acquire, directly or indirectly, any
beneficial interest in any securities of, equity interest in or any property or
assets (other than property or assets transferred in the ordinary course of the
Company's business) of the Company or any of its subsidiaries, (b) except with
the prior written consent of the Company, propose to the Company or any of its
stockholders to enter into any merger or business combination involving the
Company or any of its subsidiaries or to purchase a material portion of the
assets of the Company or any of its subsidiaries, (c) make or in any way
participate in any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the U.S. Securities and Exchange Commission) to vote, or seek to
advise or influence any Person with respect to the voting of, any voting
securities of the Company or any of its subsidiaries, (d) form, join or in any
way participate in a Group with respect to any voting securities of the Company
or any of its subsidiaries, (e) seek, alone or in concert with others, to
control, change or influence the management, Board of Directors or policies of
the Company or its affiliates or propose any matter to be voted upon by the
stockholders of the Company, (f) disclose any intention, plan or arrangement
inconsistent with the foregoing, (g) assist, advise or encourage any other
Person in doing any of the foregoing, or (h) make any request or proposal to
amend, waive or terminate any provisions of this Paragraph 7.
8. By executing this Agreement, each of the parties hereto hereby waives,
as permitted by Paragraph 4 thereof, the restrictions imposed by the Status Quo
Order to the extent necessary to consummate the transactions contemplated
hereby. Upon the exchange of fully executed copies of this Agreement, the
Frankino Parties and the Company shall each, through their respective counsel,
(i) effect dismissals with prejudice of the Actions, which dismissals shall
become effective upon the execution and filing of comparable dismissals from
Reading Entertainment, Inc., a Nevada corporation ("Reading"), FA, Inc., a
Nevada corporation and a wholly owned subsidiary of Reading ("FA"), and Slusser
Associates, Inc., a Delaware corporation ("Slusser"), if such comparable
dismissals are required to effect a full dismissal of the Actions, and (ii)
jointly take such action as shall be necessary to vacate, dissolve or otherwise
terminate the operation of the Status Quo Order. Each of the parties shall bear
its own fees and expenses in connection with the Actions and the dismissal
thereof pursuant to this Paragraph 8.
9. The Frankino Parties, for themselves, their heirs, administrators,
executors, representatives, beneficiaries and assigns, hereby release and
discharge the Company, Reading, FA and Slusser, and each of their respective
past, present and future officers, directors, stockholders, parent and/or
subsidiary companies, affiliated entities, successors-in-interest,
representatives, agents, employees, attorneys and assigns, and the individuals'
heirs, administrators, executors, representatives, attorneys and assigns
(collectively, the "NAC Group"), from any and all claims, demands, causes of
action, actions, judgments, liens,
-4-
<PAGE>
indebtedness, costs, damages, obligations, attorneys' fees, losses and liability
of whatever kind and character, whether known or unknown, foreseen or
unforeseen, arising from the beginning of time to the date hereof that each of
them has against the members of the NAC Group, including, without limiting the
generality of the foregoing, those related in any way to the Actions; provided,
--------
that nothing contained herein shall be deemed to release (a) any member of the
NAC Group from any of its obligations under this Agreement or the Exhibits
hereto or (b) the Company from any challenge by Frankino related to amounts
reported by the Company to the Internal Revenue Service as income attributable
to Frankino. The Frankino Parties covenant and agree not to sue any member of
the NAC Group with respect to any claim (a) related in any way to the Actions
and/or (b) otherwise released herein.
10. The Company, for itself and its affiliated entities, successors-in-
interest, representatives, agents and assigns, and the individuals' heirs,
administrators, executors, representatives, attorneys and assigns, hereby
release and discharge the Frankino Parties, together with their heirs,
administrators, executors, representatives, beneficiaries, attorneys and assigns
(the "Frankino Group"), from any and all claims, demands, causes of action,
actions, judgments, liens, indebtedness, costs, damages, obligations, attorneys'
fees, losses and liability of whatever kind and character, whether known or
unknown, foreseen or unforeseen, arising from the beginning of time to the date
hereof that each of them has against the members of the Frankino Group,
including, without limiting the generality of the foregoing, those related in
any way to the Actions; provided, that nothing contained herein shall release
--------
any member of the Frankino Group from any of its obligations under this
Agreement or the Exhibits hereto. The Company covenants and agrees not to sue
the Frankino Parties with respect to any claim (a) related in any way to the
Actions and/or (b) otherwise released herein.
11. (a) The Company shall cause each of the following individuals and
entities to deliver to the Frankino Parties on the date hereof, a release on the
terms set forth in Exhibit II attached hereto: David L. Huber, Donald Jasensky,
-------
James J. McNamara, Phillip A. Sauder, Henry Y.L. Toh, Peter Zackaroff, John A.
Gleason, William S. Marshall, National Cinemas, Inc., Reading, FA and Slusser.
(b) The Company shall [use its reasonable best effort to] cause
Reading, FA and Slusser to execute and file dismissals with prejudice of the
Actions, if such dismissals are necessary to effect a full dismissal of the
Actions.
(c) The Frankino Parties shall cause each of the following individuals
to deliver to the Company on the date hereof an agreement on the terms set forth
in Exhibit III hereto: Lorraine Dodero, William Dodero, William Maund and
-----------
Robert Upton.
(d) Frankino shall deliver to the Company on the date hereof a letter
in the form of Exhibit IV hereto.
----------
12. Except as set forth below, the rights of any Frankino Party to
indemnification by the Company, including advancement of fees, costs and/or
expenses or other damages, under the Company's Restated Certificate of
Incorporation, as amended, the Company's Amended and Restated By-laws,
applicable law or otherwise shall be unaffected by the provisions of this
Agreement, and the following provisions shall not abrogate any rights of any of
the Frankino Parties or any of the persons referenced in Paragraph 11(c) hereof
under directors and officers insurance policies issued to the Company. The
parties to this Agreement hereby acknowledge and agree that any rights to
indemnification by the Company to which any of the Frankino Parties is or would
be entitled pursuant to the Company's Restated Certificate of Incorporation, as
amended, the Company's Amended and Restated By-laws, applicable law or otherwise
shall be limited as follows: (i) none of the Frankino Parties shall be entitled
to, and each of them hereby waives and forever forgives any rights to, any such
indemnification for fees, costs and/or expenses or other damages incurred by any
such person or entity on or prior to the date
-5-
<PAGE>
of this Agreement in connection with the Actions or any other action or
proceeding arising from or based upon the same facts and circumstances that form
the basis of the Actions; provided, that the Company shall not be entitled to,
--------
and hereby waives and forever forgives any rights to, reimbursement from any of
the Frankino Parties for amounts previously paid by the Company to any of the
Frankino Parties or their counsel; and (ii) none of the Frankino Parties shall
be entitled to, and each of them hereby waives and forever forgives any rights
to, advancement of, or reimbursement for, fees, costs and/or expenses or other
damages incurred by any such person or entity after the date of this Agreement
in connection with any threatened or pending action, suit or proceeding (whether
civil, criminal, administrative or investigative) known to the Company and/or
such individual or entity as of the date hereof (a "Known Proceeding"), except
as follows: At the conclusion or termination of each such known proceeding, the
Company shall indemnify the Frankino Parties in accordance with, and as
permitted by, the Company's Restated Certificate of Incorporation, as amended,
the Company's Amended and Restated By-laws, and applicable law, to the extent of
Fifty Percent (50%) of the aggregate amount of fees, costs, and/or expenses or
other damages which each such individual or entity incurs in connection with
each such Known Proceeding.
13. The Frankino Parties shall cooperate with the Company as fully as
reasonably possible in connection with the prosecution or defense of any claim
by the Company against any person not a party to this Agreement or against the
Company by any person not a party to this Agreement. The Company shall, and
shall cause each of its directors, officers, employees, advisors, consultants,
affiliates and subsidiaries, to cooperate with the Frankino Parties, and each of
them, as fully as reasonably possible in connection with the defense of any
claim or known proceeding related in any way to Frankino's relationship with the
Company.
14. By entering into this Agreement, neither the Frankino Parties nor the
Company intends to make, nor shall they be deemed to have made, any admission of
any kind.
15. Unless specifically provided herein, this Agreement is not intended to
create, and shall not create, any rights in any person or entity that is not a
party to this Agreement.
16. This Agreement has been prepared, and negotiations in connection with
it have been carried on, by the efforts of each of the parties hereto, and this
Agreement is to be construed fairly and in accordance with its plain meaning,
and not strictly against any particular party, and no party hereto shall be
deemed to be the draftsperson hereof.
17. This Agreement constitutes the entire understanding of the parties
concerning its subject matter and may not be modified, altered, or discharged
except by a writing signed by all of the parties. No representations or
promises except those set forth herein have been made to induce any party to
enter into this Agreement.
18. This Agreement shall be binding on each of the parties hereto and on
their respective successors and assigns.
19. The representations and warranties set forth in Paragraphs 5 and 6
hereof shall survive indefinitely following the execution of this Agreement and
the consummation of the transactions contemplated hereby.
20. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, excluding its choice of law or conflicts of
law or other provisions which might result in the selection of the substantive
law of another jurisdiction. Each party hereto agrees that any claim relating
to this Agreement shall be brought solely in the Court of Chancery of the State
of Delaware in and for New Castle County, unless the Court of Chancery of the
State of Delaware lacks subject matter jurisdiction, in which case any such
claim shall be brought in the Superior Court of the State of Delaware in and for
New Castle County, and each party hereto consents to the jurisdiction of such
Court for purposes hereof.
-6-
<PAGE>
21. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
-7-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and
Release on the date(s) set forth below.
Date:
------------------ ----------------------------------
SAMUEL J. FRANKINO
SAMUEL J. FRANKINO AND CONNIE M. FRANKINO
CHARITABLE FOUNDATION
Date: By:
------------------ -------------------------------
Its:
------------------------------
CORRINE L. DODERO TRUST FOR THE ARTS AND
SCIENCES
Date: By:
------------------ -------------------------------
Its:
------------------------------
FRANKINO AND FRANKINO
INVESTMENT COMPANY
Date: By:
------------------ -------------------------------
Its:
------------------------------
NATIONAL AUTO CREDIT, INC.
Date: By:
------------------ -------------------------------
Its:
------------------------------
-8-
<PAGE>
EXHIBIT I
---------
OWNERSHIP OF NATIONAL AUTO CREDIT, INC. COMMON STOCK
BY AFFILIATES AND ASSOCIATES OF THE FRANKINO PARTIES
----------------------------------------------------
<TABLE>
<CAPTION>
Affiliate/Associate Shares Owned
------------------- ------------
<S> <C>
William Maund............................................. 4,000
Lorraine Dodero........................................... 279
William Dodero and Lorraine Dodero, as joint
tenants with rights of survivorship.................... 88,619
Lorraine Dodero, as trustee of a grantor trust for the
benefit of her daughter, Corrine Dodero 27,450
Total................................................. 120,348
=======
</TABLE>
-1-
<PAGE>
EXHIBIT II
----------
RELEASE OF CLAIMS AND WAIVER/1/
----------------------------
This Release of Claims and Waiver (this "Release and Waiver") is executed
as of the 30th day of November, 2000 by [[_____], an individual resident of the
State of [_____]/2/ [[_____], a [_____] corporation]/3/ (the "Releasing Party").
In consideration of the covenants and agreements set forth in the
Settlement Agreement and Release (Including Agreement for Sale of Shares), dated
as of the date hereof (the "Settlement Agreement"), by and among Samuel J.
Frankino, individually and as trustee and president of the Foundation (as
defined below), trustee of the Trust (as defined below) and managing partner of
the Partnership (as defined below) ("Frankino"), the Samuel J. Frankino and
Connie M. Frankino Charitable Foundation (the "Foundation"), the Corrine L.
Dodero Trust for the Arts and Sciences (the "Trust") and Frankino and Frankino
Investment Company, a Nevada general partnership (the "Partnership" and,
collectively with Frankino in all capacities listed above, the Foundation and
the Trust, the "Frankino Parties"), on the one hand, and National Auto Credit,
Inc., a Delaware corporation, on the other hand, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Releasing Party, for itself and its [affiliated entities, successors-in-
interest, representatives, agents and assigns,]/4/ [heirs, administrators,
executors, representatives, beneficiaries and assigns,]/5/ hereby releases and
discharges each of the Frankino Parties, Lorraine Dodero, William Dodero,
William Maund and Robert Upton, together with their respective heirs,
administrators, executors, representatives, beneficiaries, attorneys and assigns
(collectively, the "Frankino Group"), from any and all claims, demands, causes
of action, actions, judgments, liens, indebtedness, costs, damages, obligations,
attorneys' fees, losses and liability of whatever kind and character, whether
known or unknown, foreseen or unforeseen, arising from the beginning of time to
the date hereof that the Releasing Party has against the members of the Frankino
Group, including, without limiting the generality of the foregoing, those
related in any way to the cases pending before the Court of Chancery of the
State of Delaware captioned National Auto Credit, Inc. v. Sam J. Frankino, C.A.
No. 17973 and Sam J. Frankino v. David L. Huber, et al., C.A. No. 17984 (such
cases being collectively referred to herein as the
--------------
/1/ To be executed by David L. Huber, Donald Jasensky, James J. McNamara,
Phillip A. Sauder, Henry Y.L. Toh, Peter Zackaroff, John A. Gleason, William S.
Marshall, National Cinemas, Inc., Reading, FA and Slusser.
/2/ To be inserted if Releasing Party is an individual.
/3/ To be inserted if Releasing Party is a corporation.
/4/ To be inserted if Releasing Party is a corporation.
/5/ To be inserted if Releasing Party is an individual.
-1-
<PAGE>
"Actions"); provided, that nothing contained herein shall release any member of
the Frankino Group from any of its obligations under the Settlement Agreement or
the Exhibits thereto. The Releasing Party covenants and agrees not to sue any of
the Frankino Parties with respect to any claim (a) related in any way to the
Actions and/or (b) otherwise released herein.
So that the transactions contemplated by the Settlement Agreement may
proceed, the Releasing Party hereby waives, as permitted by paragraph 4 thereof,
the restrictions imposed by the Order Maintaining Status Quo, dated as of April
13, 2000, entered in connection with the Actions.
This Release and Waiver shall be governed by and construed in accordance
with the laws of the State of Delaware, excluding its choice of law or conflicts
of law or other provisions which might result in the selection of the
substantive law of another jurisdiction. The Releasing Party hereby agrees that
any claim relating to this Release and Waiver shall be brought solely in the
Court of Chancery of the State of Delaware in and for New Castle County, unless
the Court of Chancery of the State of Delaware lacks subject matter
jurisdiction, in which case any such claim shall be brought in the Superior
Court of the State of Delaware in and for New Castle County, and the Releasing
Party hereby consents to the jurisdiction of such Court for purposes hereof.
IN WITNESS WHEREOF, the undersigned Releasing Party has executed this
Release and Waiver as of the date first above written.
RELEASING PARTY
By:
-------------------------
Name:
Title:
-2-
<PAGE>
EXHIBIT III
RELEASE OF CLAIMS, RESIGNATION
AND STANDSTILL AGREEMENT/1/
------------------------
This Release of Claims, Resignation and Standstill Agreement (this
"Release") is executed as of the 30th day of November, 2000 by [_____], an
individual resident of the State of [_____] (the "Releasing Party").
In consideration of the covenants and agreements set forth in the
Settlement Agreement and Release (Including Agreement for Sale of Shares), dated
as of the date hereof (the "Settlement Agreement"), by and among Samuel J.
Frankino, individually and as trustee and president of the Foundation (as
defined below), trustee of the Trust (as defined below) and managing partner of
the Partnership (as defined below) ("Frankino"), the Samuel J. Frankino and
Connie M. Frankino Charitable Foundation (the "Foundation"), the Corrine L.
Dodero Trust for the Arts and Sciences (the "Trust") and Frankino and Frankino
Investment Company, a Nevada general partnership (the "Partnership" and,
collectively with Frankino in all capacities listed above, the Foundation and
the Trust, the "Frankino Parties"), on the one hand, and National Auto Credit,
Inc., a Delaware corporation (the "Company"), on the other hand, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Releasing Party, for itself, its heirs, administrators,
executors, representatives, beneficiaries and assigns, hereby releases and
discharges each of the Company, Reading Entertainment, Inc., a Nevada
corporation ("Reading"), FA, Inc., a Nevada corporation and a wholly owned
subsidiary of Reading ("FA"), Slusser Associates, Inc., a Delaware corporation
("Slusser"), David L. Huber, Donald Jasensky, James J. McNamara, Phillip A.
Sauder, Henry Y.L. Toh, Peter Zackaroff, John A. Gleason and William S.
Marshall, and each of their respective past, present and future officers,
directors, stockholders, parent and/or subsidiary companies, affiliated
entities, successors-in-interest, representatives, agents, employees, attorneys
and assigns, and the heirs, administrators, executors, representatives,
attorneys and assigns of any individual included within the foregoing
(collectively, the "NAC Group"), from any and all claims, demands, causes of
action, actions, judgments, liens, indebtedness, costs, damages, obligations,
attorneys' fees, losses and liability of whatever kind and character, whether
known or unknown, foreseen or unforeseen, arising from the beginning of time to
the date hereof that the Releasing Party has against the members of the NAC
Group, including, without limiting the generality of the foregoing, those
related in any way to the cases pending before the Court of Chancery of the
State of Delaware captioned National Auto Credit, Inc. v. Sam J. Frankino, C.A.
No. 17973 and Sam J. Frankino v. David L. Huber, et al., C.A. No. 17984 (such
cases being collectively referred to herein as the "Actions"); provided, that
nothing contained herein shall be deemed to release any member of the NAC Group
from any of its obligations under the Settlement Agreement or the Exhibits
thereto. The Releasing Party hereby covenants and agrees not to sue any member
of the NAC Group with respect to any claim (a) related in any way to the Actions
and/or (b) otherwise released herein.
______________________
/1/ To be executed by Lorraine Dodero, William Dodero, William Maund and Robert
Upton.
-1-
<PAGE>
The Releasing Party hereby resigns, effective as of the date hereof, from
any and all positions with the Company, including any position as a director,
executive officer and/or employee of the Company.
The Releasing Party agrees that from and after the date hereof, the
Releasing Party will not, nor will it permit its affiliates or cause or assist
in any way its associates or other representatives to, directly or indirectly,
alone or in concert or in conjunction with any other "Person" or "Group" (as
such terms are used in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) (a) in any manner acquire, agree to acquire or to make any proposal
(or request permission to make any proposal) to acquire, directly or indirectly,
any beneficial interest in any securities of, equity interest in or any property
or assets (other than property or assets transferred in the ordinary course of
the Company's business) of the Company or any of its subsidiaries, (b) except
with the prior written consent of the Company, propose to the Company or any of
its stockholders to enter into any merger or business combination involving the
Company or any of its subsidiaries or to purchase a material portion of the
assets of the Company or any of its subsidiaries, (c) make or in any way
participate in any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the U.S. Securities and Exchange Commission) to vote, or seek to
advise or influence any Person with respect to the voting of, any voting
securities of the Company or any of its subsidiaries, (d) form, join or in any
way participate in a Group with respect to any voting securities of the Company
or any of its subsidiaries, (e) seek, alone or in concert with others, to
control, change or influence the management, Board of Directors or policies of
the Company or its affiliates or propose any matter to be voted upon by the
stockholders of the Company, (f) disclose any intention, plan or arrangement
inconsistent with the foregoing, (g) assist, advise or encourage any other
Person in doing any of the foregoing, or (h) make any request or proposal to
amend, waive or terminate any provisions of this Release.
This Release shall be governed by and construed in accordance with the laws
of the State of Delaware, excluding its choice of law or conflicts of law or
other provisions which might result in the selection of the substantive law of
another jurisdiction. The Releasing Party hereby agrees that any claim relating
to this Release shall be brought solely in the Court of Chancery of the State of
Delaware in and for New Castle County, unless the Court of Chancery of the State
of Delaware lacks subject matter jurisdiction, in which case any such claim
shall be brought in the Superior Court of the State of Delaware in and for New
Castle County, and the Releasing Party hereby consents to the jurisdiction of
such Court for purposes hereof.
IN WITNESS WHEREOF, the undersigned Releasing Party has executed this
Release of Claims, Resignation and Standstill Agreement as of the date first
above written.
RELEASING PARTY
By:
-----------------------------
Name:
---------------------------
Title:
---------------------
-2-
<PAGE>
EXHIBIT IV
----------
TO THE BOARD OF DIRECTORS, NATIONAL AUTO CREDIT, INC.:
I, Samuel J. Frankino, hereby resign from all positions with National Auto
Credit, Inc., including my directorship, effective immediately.
Dated:
----------------- -------------------------
Samuel J. Frankino
-1-
<PAGE>
ATTACHMENT B
NATIONAL AUTO CREDIT, INC.
COMMON STOCK OUTSTANDING AS OF NOVEMBER 3, 2000
<TABLE>
<CAPTION>
NATIONAL AUTO CREDIT, INC.
COMMON STOCK OUTSTANDING
AS OF 11/03/00
Company Treasury Shares Shares of
Common of Company Company
Stock Common Common Stock
Issued Stock Outstanding
-------- -------------- ------------
<S> <C> <C> <C>
Number of shares at 11/03/00 36,710,907 (1,957,945) 34,752,962
Purchase of shares of Company Common Stock
held by the Frankino Parties and certain
related parties: 15,921,865 (15,921,865) (15,921,865)
Purchase of shares of Company Common Stock
held by Citadel and FA, Inc.:
Total shares of Company Common Stock held
by Citadel and FA, Inc. 10,055,000
Shares of Company Common Stock
purchased by NAC (5,277,879) (5,277,879) (5,277,879)
-----------
Remaining shares of Company Common Stock
held by Citadel and FA, Inc. 4,777,121
----------
------------------------------------------------
Total shares outstanding 36,710,907 (23,100,876) 13,610,031
------------------------------------------------
Shares of Company Common Stock subject to
issuance upon exercise of options
outstanding:
1993 Equity Plan 855,000 855,000
1983 Stock Option Plan 4,400 4,400
Total shares of Company Common Stock ------------------------------------------------
outstanding on a fully diluted basis 37,570,307 (22,922,023) 14,648,284
================================================
Ownership of Citadel and FA on shares outstanding 35.1%
Ownership of Citadel and FA on a fully diluted basis 33.0%
</TABLE>
-1-
<PAGE>
ATTACHMENT C
POST-CLOSING COMPOSITION OF
NATIONAL AUTO CREDIT, INC.
BOARD OF DIRECTORS
POST-CLOSING COMPOSITION OF NATIONAL AUTO CREDIT, INC. BOARD OF DIRECTORS:
<TABLE>
<CAPTION>
NAME TERM EXPIRES AT ANNUAL MEETING
---- ------------------------------
<S> <C> <C>
James J. McNamara Through 2000
Phillip A. Sauder Through 2000
Peter Zackaroff Through 1999/1/
Donald Jasensky Through 2001
Henry Y. L. Toh Through 2001
John A. Gleason Through 2000
William S. Marshall Through 2001
Scott Braly Through 2002
James J. Cotter Through 2002
David L. Huber Through 1999/1/
</TABLE>
-----------------
/1/ Peter Zackaroff and David L. Huber stand for re-election at the next Annual
Meeting of National Auto Credit, Inc.'s shareholders with their terms to expire
in 2002.
-1-
<PAGE>
ATTACHMENT D
AMENDED AND RESTATED BY-LAWS OF
NATIONAL AUTO CREDIT, INC.
AMENDED AND RESTATED BY-LAWS OF NATIONAL AUTO CREDIT, INC.
Incorporated Under the Laws of the State of Delaware
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 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.
<PAGE>
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, 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.
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. Procedures For Action By Written Consent.
10.1 Request for Record Date. (a) The record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting shall be as fixed by the board or as otherwise established under this
Section 10.1 Any person seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
addressed to the Secretary and delivered to the Corporation and signed by a
stockholder of record, request that a record date be fixed for such purpose. The
written notice shall contain at a minimum the information set forth 1. Section
10.1(b). Following receipt of the notice, the board shall have five (5) business
days to determine the validity of the request. Following the determination of
the validity of the requested, the board may fix a record date for such purpose
which shall be no more then five (5) business days after the date upon which the
resolution fixing the record date is adopted by the board and shall not precede
the date such resolution is adopted. If the board fails within ten (10) business
days after the Corporation receives such
<PAGE>
notice to fix a record date for such purpose, the record date shall be the day
on which the first written consent is delivered to the Corporation in the manner
described in Section 10.3 below unless prior action by the board is required
under the General Corporation Law of Delaware, in which event the record date
shall be at the close of business on the day on which the board adopts the
resolution taking such prior action.
(b) Any stockholder's notice required by this Section 10.1 shall describe
the action that the stockholder proposes to take by consent. For each such
proposal, the notice shall set forth (i) the text of the proposal (including the
text of any resolutions to be effected by consent and the language of any
proposed amendment to the bylaws of the Corporation), (ii) the reasons for
soliciting consents for the proposal, (iii) any material interest in the
proposal held by the stockholder and the beneficial owner, if any, on whose
behalf the action is to be taken, and (iv) any other information relating to the
stockholder, the beneficial owner, or the proposal that would be required to be
disclosed in filings in connection with the solicitation of proxies or consents
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
("Exchange Act") and the rules and regulations promulgated thereunder. To the
extent the proposed action by consent involves the election of directors, the
notice shall set forth as to each person whom the stockholder proposes to elect
as a director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation and employment of the person, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person, and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies or consents for the election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. In addition to the foregoing, the notice shall set forth as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the notice is given (i) the name and address of such stockholder and of such
beneficial owner, as they appear on the Corporation's books, (ii) the class and
number of shares of capital stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, as to
the stockholder giving the notice, (iii) a description of all arrangements or
understandings between such stockholder and any other person or persons
regarding the proposed action by consent, (iv) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which
intends to (1) deliver a proxy statement and/or consent solicitation statement
to holders of at least the percentage of the Corporation's outstanding capital
stock required to effect the action by consent either to solicit consents or to
solicit proxies to execute consents, and/or (2) otherwise solicit proxies or
consents from stockholders in support of the action to be taken by consent, and
(v) any other information relating to such stockholder that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies or consents relating to the proposed
action by consent pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. The Corporation may require the stockholder
of record and/or beneficial owner requesting a record date for proposed
stockholder action by consent to furnish such other information as it may
reasonably require to determine the validity of the request for a record date.
10.2 Form of Consent. Every written consent purporting to take or
authorize the taking of corporate action and/or related revocations (each such
written consent and related revocation is referred to in this Section 10 as a
"Consent") shall bear the date of signature of each stockholder who signs the
Consent, and no Consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the earliest dated Consent delivered in the
manner required by this Section 10.2, Consents signed by a sufficient number of
stockholder to take such action are so delivered to the Corporation.
10.3 Delivery of Consent. A Consent shall be delivered to the Corporation
by delivery to its registered office in the State of Delaware or its principal
place of business. Delivery shall be made by hand or by certified or registered
mail, return receipt requested. In the event of the delivery to the Corporation
of a Consent, the Secretary of the Corporation shall provide for the safe-
keeping of such Consent and shall promptly conduct such ministerial review of
the sufficiency of the Consents and of the validity of the action to be taken by
shareholder consent as the Secretary deems necessary or
<PAGE>
appropriate, including, without limitation, whether the holders of a number of
shares having the requisite voting power to authorize or take the action
specified in the Consent have given consent; provided, however, that if the
corporate action to which the Consent relates is the removal or replacement of
one or more members of the board, the Secretary of the Corporation shall
promptly designate two persons, who shall not be members of the board, to serve
as Inspectors with respect to such Consent and such Inspectors shall discharge
the functions of the Secretary of the Corporation under this Section 10.3. If
after such investigation the Secretary or the Inspectors (as the case may be)
shall determine that the Consent is valid and that the action therein specified
has been validly authorized, that fact shall forthwith be certified on the
records of the Corporation kept for the purpose of recording the proceedings of
meetings of stockholders, and the Consent shall be filed in such records, at
which time the Consent shall become effective as stockholder action. In
conducting the investigation required by this Section 10.3, the Secretary or the
Inspectors (as the case may be) may, at the expense of the Corporation, retain
special legal counsel and any other necessary or appropriate professional
advisors, and such other personnel as they may deem necessary or appropriate to
assist them, and shall be fully protected in relying in good faith upon the
opinion of such counsel or advisors.
10.4 Effectiveness of Consent. No action by written consent without a
meeting shall be effective until such date as the Secretary or the Inspectors,
as applicable, certify to the Corporation that the consents delivered to the
Corporation in accordance with Section 10.3represent at least the minimum number
of votes that would be necessary to take the corporate action.
10.5 Challenge to Validity of Consent. Nothing contained in this Section
10 shall in any way be construed to suggest or imply that the board or any
stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certificate by the Secretary or
the Inspectors, as applicable, or to take any other action (including, without
limitation, the commencement, prosecution, or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Number of Directors. The number of directors constituting the
whole board shall be thirteen (13), and no vacancy shall be deemed to exist in
the board unless the number of directors in office falls below that number. No
decrease in the number of directors shall shorten the term of any incumbent
director. Directors may, but need not, be stockholders.
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
<PAGE>
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.
Section 3. 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 4. 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 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 5. 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 6. 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 7. 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 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 8. 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
<PAGE>
each other, and participation in a meeting pursuant to this subsection shall
constitute presence in person at such meeting.
Section 9. 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 10. 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 therefore.
Section 11. 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 12. 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, 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.
<PAGE>
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.
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.
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.
<PAGE>
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, 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 financial 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 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 therefore.
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
<PAGE>
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 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 depositories 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 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 of 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, 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.
<PAGE>
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 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.
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 80% of the outstanding shares 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-Laws, the Certificate of Incorporation or By-Laws requires
action by the stockholders. Any By-Law adopted by the board of directors may be
amended or repealed by the stockholders, as provided in this Section. Dated as
of: April 05, 2000
<PAGE>
ATTACHMENT E
AFFILIATE AGREEMENTS
None
