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EXHIBIT 4.3
LOCKUP, STANDSTILL AND VOTING AGREEMENT
LOCKUP, STANDSTILL AND VOTING AGREEMENT (this "AGREEMENT"), dated as of
December 15, 2000, by and among NATIONAL AUTO CREDIT, INC. ("NAC"), a Delaware
corporation, and (each of the following, a "SHAREHOLDER," and all of the
following together, collectively, the "SHAREHOLDERS"): Xxxxxx X. Xxxxxx, XX;
Verde Reinsurance Company, Ltd., a Nevis Island corporation; Xxxxx Xxxxxx III
2000 Trust; Xxxxx Xxxxxx 2000 Trust; Xxx Xxxxx; Xxxxxx Xxxxxxx; Xxxx Xxxxxx;
EJMS Investors Limited Partnership, an Arizona limited partnership; Xxxxx
Xxxxxxxxx; Xxxxx Xxxxxxx; Xxxxx Xxxxxxx; Xxxx Xxxxxx; and Xxxxx Xxxxxx.
RECITALS:
WHEREAS, concurrently with the execution of this Agreement, NAC, ZLT
Acquisition Corp. ("ZLT"), a Delaware corporation wholly owned by NAC, ZoomLot
Corporation ("ZOOMLOT"), a Delaware corporation, and the Shareholders have
entered into a certain Merger Agreement and Plan of Reorganization (the "MERGER
AGREEMENT"), dated as of even date herewith, pursuant to which the parties have
agreed, upon the terms and subject to the conditions set forth therein, to merge
ZoomLot into ZLT (the "MERGER");
WHEREAS, the Merger Agreement contemplates that each share of the common
stock of ZoomLot shall be converted into or otherwise become shares of NAC
Capital Stock (as hereinafter defined) such that, following the Merger, each
Shareholder will be a shareholder of NAC;
WHEREAS, Shareholders have represented that they currently Beneficially
Own (as hereinafter defined), in the aggregate, approximately 400,000 shares of
the common stock (the "COMMON STOCK"), $.05 par value, of NAC, as more
particularly set forth on Exhibit G to the Merger Agreement;
WHEREAS, upon the closing of the transactions contemplated by the
Merger Agreement, the Shareholder Group (as hereinafter defined) will
Beneficially Own collectively approximately 18.9% of the Common Stock issued and
outstanding immediately after such closing; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, NAC has required each Shareholder to agree, and each Shareholder has
agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, covenants and agreements contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
SECTION 1. - CERTAIN DEFINITIONS. In addition to the terms defined
elsewhere in this Agreement, capitalized terms defined in the Merger Agreement
and used but not defined in this Agreement have the respective meanings ascribed
to them in the Merger Agreement. For purposes of this Agreement:
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(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"); PROVIDED, HOWEVER, that notwithstanding paragraph (d) of
Rule 13d-3, for purposes hereof a Shareholder shall not be deemed to
"beneficially own" shares of any class or series of NAC Capital Stock having
voting rights until such time as such Shareholder actually acquires such shares
or acquires the right to vote such shares.
(b) "CAPITAL STOCK" means any class or series of the capital stock of
NAC, whether voting or non-voting.
(c) "COLLATERAL NAC SECURITIES" means, collectively, (i) any shares of
Common Stock or other securities of NAC issued by NAC as a dividend or other
distribution on account of any Capital Stock issued to any Shareholder in
connection with or as part of the Merger, (ii) any shares of Common Stock or
other securities of NAC issued by NAC upon the exercise, conversion, or exchange
of any such Capital Stock, and (iii) any shares of Common Stock or other
securities of NAC issued by NAC in full or partial consideration of the price
payable by NAC upon the redemption (whether at the option of NAC or the holder
of the respective security) of any such Capital Stock.
(d) "FAMILY MEMBER" of any Shareholder means (i) the spouse of such
Shareholder, (ii) each child and grandchild of such Shareholder or of the spouse
of such Shareholder, (iii) each parent of such Shareholder, (iv) each sibling of
such Shareholder, (v) each mother-, father-, sister- and brother-in-law of such
Shareholder and (vi) each trust or similar arrangement under or pursuant to
which such Shareholder or any other individuals referred to in the preceding
clauses (i) through (v) is a trustee (or similar official) or a direct or
indirect beneficiary.
(e) "LOCKUP PERIOD" shall have the meaning set forth in Section 7(a)
below.
(f) "NAC VOTING SHARES" means shares of the Common Stock and any other
class or series of NAC Capital Stock having voting rights.
(g) "PERSON" means any individual, corporation, partnership (limited
or general), limited liability company, trust, joint venture or other entity.
(h) "PRE-OWNED NAC SHARES" of any Shareholder mean the shares of
Common Stock owned by such Shareholder as of the date of this Agreement as
reflected in Exhibit G to the Merger Agreement.
(i) "SHAREHOLDER GROUP" means the Shareholders, together with their
respective affiliates (i.e., a Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control
with, the Shareholder.) and associates (as such term is defined in Rule 14a-1(a)
under the Exchange Act) and any other Person with whom any of them acts as a
partnership, limited partnership, syndicate or other group for the purpose of
acquiring, holding or disposing of, or voting or otherwise granting any consent
or approval with respect to the votes or similar rights attendant to, any
securities of NAC. For the purposes of the foregoing, all Family Members of any
Shareholder shall be deemed to be members of the Shareholder Group.
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(j) As used herein, the term "VOTE" shall also include the giving of
written consents or written approvals.
(k) "VOTING PERIOD" shall have the meaning set forth in Section 5(a)
below.
SECTION 2. - REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder, with respect to such Shareholder only, represents and warrants to
NAC as follows:
(a) OWNERSHIP OF SHARES. Such Shareholder is the sole record and
Beneficial Owner of the number of shares of the common stock of ZoomLot (the
"ZOOMLOT SHARES") set forth in the column opposite his/her/its name on Exhibit G
to the Merger Agreement. There are no outstanding options or other rights to
acquire from such Shareholder, or obligations of such Shareholder to sell or to
acquire, any of the ZoomLot Shares except pursuant to the Merger Agreement.
Except as disclosed in SCHEDULE 2(a) to this Agreement, with respect to all of
such Shareholder's ZoomLot Shares and all shares of the Common Stock
Beneficially Owned by such Shareholder prior to the date hereof such Shareholder
has, and with respect to any and all NAC Capital Stock to be acquired in the
Merger such Shareholder will have, sole voting power and sole power to issue
instructions with respect to the matters herein, sole power of disposition, sole
power of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with no
limitations, qualifications or restrictions on such rights, subject, however, to
applicable securities laws and the terms of the Merger Agreement and this
Agreement.
(b) POWER; BINDING AGREEMENT. Such Shareholder has the legal capacity,
power and authority to enter into and perform all of such Shareholder's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings under Sections 13(d) and 16 of
the Exchange Act, no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority (a "GOVERNMENTAL
ENTITY") is necessary for the execution of this Agreement by such Shareholder
and the consummation by such Shareholder of the transactions contemplated by
this Agreement. None of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated by this Agreement or compliance by such Shareholder with any of the
provisions, terms and conditions of this Agreement shall (i) conflict with or
result in any breach of any organizational documents applicable to such
Shareholder, (ii) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
such Shareholder is a party or by which such Shareholder or any of his/her/its
properties or assets may
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be bound, or (iii) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Shareholder or any of such
Shareholder's properties or assets.
(d) NO ENCUMBRANCE. Except as expressly permitted by this Agreement,
the ZoomLot Shares are now, and at all times during the term of this Agreement
all of the NAC Capital Stock and all Collateral NAC Securities owned or held by
such Shareholder will be, held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all mortgages, claims,
charges, liens, security interests, pledges or options, proxies, voting trusts
or agreements, understandings or arrangements, or any other rights whatsoever
("ENCUMBRANCES"), except for any such Encumbrances arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of such
Shareholder.
(f) RELIANCE BY NAC. Such Shareholder understands and acknowledges
that NAC is entering into the Merger Agreement in reliance upon such
Shareholder's execution, delivery and performance of this Agreement.
SECTION 3. - DISCLOSURE. Each Shareholder agrees to permit NAC to publish
and disclose in all documents and schedules filed with the Securities and
Exchange Commission (the "SEC"), and any press release or other disclosure
document that NAC, in its sole discretion, determines to be necessary or
desirable in connection with the Merger and any transactions related to the
Merger, such Shareholder's identity and ownership of NAC Common Stock (and, if
applicable, Capital Stock and Collateral NAC Securities) and the nature of
Shareholder's commitments, arrangements and understandings under this Agreement.
SECTION 4. - DIRECTORS AND OFFICERS. Notwithstanding any provision of this
Agreement to the contrary, nothing in this Agreement shall limit or restrict a
Shareholder from acting in the capacity as a director or officer of ZoomLot or
NAC (it being understood that this Agreement shall apply to a Shareholder solely
in such Shareholder's capacity as a shareholder of ZoomLot prior to the Merger
and of NAC thereafter).
SECTION 5. - VOTING AGREEMENT
(a) As used herein, the term "VOTING PERIOD" shall mean each period
commencing at such time as the Shareholder Group Beneficially Owns NAC Voting
Shares that, if voted, would be able to be exercised with respect to a number of
votes in excess of 15% of the total number of votes that could then be cast by
the holders of all of the NAC Voting Shares then issued and outstanding on any
manner with respect to which NAC Voting Shares may then be voted (regardless of
whether such percentage ownership is the consequence of any acquisition or other
action taken by or on behalf of any member of the Shareholder Group, any action
taken by NAC (such as, by way of example only, a repurchase, redemption or
cancellation of other shares of NAC Voting Shares) or any other situation or
circumstance) and continuing until such time as the Shareholder Group
Beneficially Owns NAC Voting Shares that, if voted, would not be able to be
exercised with respect to a number of votes equal to at least 8% of the total
number of votes that could then be cast by the holders of all of the NAC Voting
Shares then issued and outstanding on any manner with respect to which NAC
Voting Shares may then be voted. In the event, following
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the termination of a Voting Period on account of the Shareholder Group
Beneficially Owning NAC Voting Shares that, if voted, would be able to be
exercised with respect to a number of votes equal to less than 15% of the total
number of votes that could then be cast by the holders of all of the NAC Voting
Shares then issued and outstanding on any manner with respect to which NAC
Voting Shares may then be voted, the Shareholder Group shall again Beneficially
Own NAC Voting Shares that, if voted, would be able to be exercised with respect
to a number of votes equal to in excess of 15% of the total number of votes that
could then be cast by the holders of all of the NAC Voting Shares then issued
and outstanding on any manner with respect to which NAC Voting Shares may then
be voted, a new Voting Period will commence.
(b) During each Voting Period, unless the requirements of this clause
(b) have been waived by NAC pursuant to a resolution adopted by the Board of
Directors of NAC, each Shareholder shall promptly and timely, (I) on each and
every matter that is submitted to the shareholders of NAC for their vote and
with respect to which the NAC Voting Shares then owned by such Shareholder or
with respect to which such Shareholder has voting power may be voted, or the
votes attendant to such Shares may be exercised, vote all such NAC Voting
Shares, or exercise such votes, in the same proportions in which all other NAC
Voting Shares voted on such matter are voted (without taking into consideration,
in determining such proportions, any NAC Voting Shares that are not voted or
with respect a "non-vote" or abstention is exercised or registered) and (II) on
each and every matter that is submitted to the shareholders of NAC for their
consent or approval and with respect to which such Shareholder may grant any
right of consent or approval attendant to the NAC Voting Shares then owned by
such Shareholder or with respect to which such Shareholder has voting power,
exercise such right of consent or approval in the same proportions in which the
right of consent or approval attendant to all other NAC Voting Shares is granted
or denied. Notwithstanding anything contained in the foregoing to the contrary,
at such time as the holders of shares of NAC's outstanding Series B Preferred
Stock are not entitled to elect at least one member to NAC's Board of Directors,
a Shareholder shall be entitled to vote all of the NAC Voting Shares then owned
by such Shareholder or with respect to which such Shareholder has voting power,
or otherwise exercise any consent or approval attendant to such Shares, in favor
of the election to NAC's Board of Directors of any nominee selected by the
Shareholders' Representative as contemplated by Section 1.10 of the Merger
Agreement.
(c) All determinations concerning the Beneficial Ownership percentage
of the Shareholder Group, including the determination of whether a shareholder
is a member of the Shareholder Group, shall be made by NAC's Board of Directors
in its reasonable discretion. Any director who was nominated by the Shareholders
or the Shareholders' Representative pursuant to the Merger Agreement shall not
participate in the discussion or decision with respect to such determination.
(d) In order more fully to assure the performance by each Shareholder
of his/her/its obligations under the foregoing provisions of this Section 5,
each Shareholder hereby irrevocably constitutes and appoints Xxxxx XxXxxxxx and
_______________, or either of them and each of them individually, as such
Shareholder's true and lawful attorney-in-fact and agent (with full power of
substitution and resubstitution), to act for and in the name, place and stead of
such Shareholder, in any and all capacities, to perform such Shareholder's
obligations under this Agreement in the event that such Shareholder shall fail
to perform such obligations him-, her- or itself.
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(e) Notwithstanding anything contained herein to the contrary, in the
event the Reading Settlement is terminated, other than pursuant to Section
10(b)(i) thereof on account of the Stockholders (as defined in the Reading
Settlement) collectively owning, directly or indirectly, beneficially or of
record, together with all Affiliates (as defined in the Reading Settlement) of
such Stockholders, in the aggregate, less than 10% of NAC's then issued and
outstanding Company Voting Stock (as defined in the Reading Settlement), the
restrictions in the foregoing provisions of this Section 5 shall terminate and
no longer be binding upon any of the parties hereto.
SECTION 6. - STANDSTILL AGREEMENT
(a) STANDSTILL. At all times from and after the date hereof, and until
June 30, 2003, except with the approval or consent of the Board of Directors of
NAC as evidenced by a resolution duly adopted by such Board, each Shareholder
shall not, and shall not permit any entity controlled by such Shareholder to, in
any manner, directly or indirectly:
(i) acquire, or offer or agree to acquire, directly or indirectly,
by purchase or otherwise, any beneficial interest in the NAC Capital
Stock, or any securities convertible into or exchangeable for, or any
other right to acquire NAC Capital Stock (except by way of (A) stock
dividends or other distributions made on a pro rata basis with respect
to NAC Merger Shares acquired by such Shareholder as a result of the
Merger Agreement or such Shareholders' Pre-Owned Shares, (B) the
issuance of securities upon the conversion or exchange of such NAC
Merger Shares or (C) the issuance of securities in full or partial
payment for any price payable by NAC upon the redemption of such NAC
Merger Shares) if, immediately following such acquisition, the members
of the Shareholder Group would Beneficially Own, in the aggregate,
more than 45% (the "STANDSTILL PERCENTAGE") of the then outstanding
Common Stock (it being agreed and understood that, for purposes of
determining whether the Shareholder Group would Beneficially Own in
the aggregate more than the Standstill Percentage of the then
outstanding Common Stock, (I) each Shareholder shall, for each share
of Series C Preferred Stock that is Beneficially Owned by such
Shareholder and that is not, by it terms, convertible into shares of
Common Stock, be deemed to own ten (10) shares of Common Stock (which
number shall be subject to adjustment on account of any stock split,
reorganization or recapitalizations) and (II) in addition to such
other shares of Common Stock as are then outstanding, there shall be
deemed to be outstanding a number of shares of Common Stock equal to
the product of (A) the number of shares of Series C Preferred Stock
then outstanding times (B) ten (10) (which number shall be subject to
adjustment on account of any stock split, reorganization or
recapitalizations)); provided, that if NAC repurchases or
recapitalizes any of its shares and such repurchases or
recapitalization result in the members of the Shareholder Group owning
more than the Standstill Percentage at the effective time of such
repurchase or recapitalization, no member of the Shareholder Group
shall be obligated to divest him-, her- or itself of shares of NAC
Capital Stock to meet the Standstill Percentage, but no member of the
Shareholder Group shall (except by way of (A) stock dividends or other
distributions made on a pro rata basis with respect to NAC Merger
Shares acquired by such Shareholder as a result of the Merger
Agreement or such Shareholders' Pre-Owned Shares, (B) the issuance of
securities upon the
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conversion or exchange of such NAC Merger Shares or (C) the issuance
of securities in full or partial payment for any price payable by NAC
upon the redemption of such NAC Merger Shares) acquire any additional
shares of NAC Capital Stock unless such acquisition would otherwise be
permitted under this Section 6;
(ii) solicit proxies or consents or become a "participant"
in a "solicitation" (as such terms are defined in Regulation 14A under
the Exchange Act) of proxies or consents with respect to securities of
NAC with regard to any matter;
(iii) seek to advise, encourage or influence any Person with
respect to the voting of any securities of NAC, or induce, attempt to
induce or in any manner assist any other Person in initiating any
stockholder proposal or tender or exchange offer for securities of NAC
or any change of control of NAC, or for the purpose of convening a
stockholders' meeting of NAC; provided, that (A) any Shareholder may
tender in any such tender or exchange offer and (B) no presentation
before or other communication with the Board of Directors of NAC shall
be deemed to constitute a violation of the foregoing restriction or
prohibition;
(iv) acquire or agree to acquire, by purchase or otherwise, more
than 5% of any class of equity securities of any entity that, prior to
the time such Shareholder acquires more than 5% of such class, is
publicly disclosed (by filing with the Securities and Exchange
Commission or otherwise), or is otherwise known to such Shareholder,
to be the beneficial owner of more than 5% of the outstanding NAC
Capital Stock or any class or series thereof;
(v) make any public announcement regarding any possibility,
intention, plan or arrangement relating to a tender or exchange offer
for securities of NAC or a business combination (or other similar
transaction that would result in a change of control), sale of assets,
liquidation or other extraordinary corporate transaction between such
Shareholder and NAC, or take any action that could reasonably be
expected to require NAC to make a public announcement regarding any of
the foregoing;
(vi) deposit any securities of NAC in a voting trust or subject
any securities of NAC to any arrangement or agreement with respect to
the voting of securities of NAC, other than as provided in this
Agreement; or
(vii) form, join or in any way participate in a partnership,
limited partnership, syndicate or other group (or otherwise act in
concert with any other Person, except as a member of the Shareholder
Group), for the purpose of (A) acquiring, holding or voting of
securities of NAC (other than pursuant to the Merger Agreement), or
(B) taking any other actions restricted or prohibited under clauses
(i) through (vi) of this Section 6(a), or announce an intention to do,
or enter into any arrangement or understanding with others to do, any
of the actions restricted or prohibited under clauses (i) through (vi)
of this Section 6(a).
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(b) PERMITTED TRANSACTIONS.
(i) The restrictions contained in Section 6(a) of this
Agreement shall immediately and automatically be suspended upon the
occurrence and during the continuation of any of the following events
and/or the completion of any competing proposal of a shareholder,
unless the relevant event occurs with the consent or approval of NAC's
Board of Directors: (i) the filing with the SEC of a Schedule 13D (or
any successor filing) by any Person or group outside the Shareholder
Group indicating that such Person or group has acquired more than 15%
of the outstanding shares of Common Stock, which Schedule 13D
expresses the filing party's intention to assume control of NAC,
whether by tender offer, merger, proxy contest or otherwise; (ii) the
commencement of a tender offer by any Person or group outside the
Shareholder Group to acquire 15% or more of the outstanding shares of
Common Stock; (iii) the solicitation of proxies by any Person (other
than NAC or a member of the Shareholder Group) to which Rules 14a-3 to
14a-15 under the Exchange Act (or any successor rules) applies that is
intended to effect a change in the majority of members of NAC's Board
of Directors or .
(ii) Section 6(a) hereof shall not prohibit transfers between
members of the Shareholder Group or to their affiliates or Family
Members, provided that each such transferee who has not previously
executed this Agreement shall have agreed in writing, in form and
substance reasonably acceptable to NAC and delivered to NAC, to be
bound hereby.
(iii) Notwithstanding anything contained herein to the contrary,
in the event the Reading Settlement is terminated, other than pursuant
to Section 10(b)(i) thereof on account of the Stockholders (as defined
in the Reading Settlement) collectively owning, directly or
indirectly, beneficially or of record, together with all Affiliates
(as defined in the Reading Settlement) of such Stockholders, in the
aggregate, less than 10% of NAC's then issued and outstanding Company
Voting Stock (as defined in the Reading Settlement), the restriction
contained in Section 6(a) shall terminate and no longer be binding
upon any of the parties hereto.
SECTION 7. - LOCKUP AGREEMENT.
(a) DEFINITION OF LOCKUP. As used herein, the term "LOCKUP" shall mean
the agreement of Shareholder not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any NAC Capital Stock
without the prior written consent of NAC, from the date hereof and extending for
such period of time (the "LOCKUP PERIOD") as set forth herein.
(b) FORFEITABLE SHARE LOCKUP PERIOD. The Forfeitable Shares
Beneficially Owned or to be Beneficially Owned by any Shareholder (and all
Collateral NAC Securities (i) issued by NAC as a dividend or other distribution
on account of any Forfeitable Shares, (ii) issued by NAC upon the exercise,
conversion or exchange of any Forfeitable Shares or
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(iii) issued by NAC in full or partial consideration of the price payable by NAC
upon the redemption (whether at the option of NAC or the holder of the
respective security) of any Forfeitable Shares) shall be subject to Lockup until
September 30, 2004.
(c) NON-FORFEITABLE SHARE LOCKUP PERIOD.
(i) The Nonforfeitable Shares (and all Collateral NAC Securities
(i) issued by NAC as a dividend or other distribution on account of
any Nonforfeitable Shares, (ii) issued by NAC upon the exercise,
conversion or exchange of any Nonforfeitable Shares or (iii) issued by
NAC in full or partial consideration of the price payable by NAC upon
the redemption (whether at the option of NAC or the holder of the
respective security) of any Nonforfeitable Shares) received or to be
received by any Shareholder shall be subject to Lockup until June 30,
2002.
(ii) Thereafter, one-half (1/2) of the Nonforfeitable Shares
(and one-half (1/2) of all Collateral NAC Securities (i) issued by NAC
as a dividend or other distribution on account of any Nonforfeitable
Shares, (ii) issued by NAC upon the exercise, conversion or exchange
of any Nonforfeitable Shares or (iii) issued by NAC in full or partial
consideration of the price payable by NAC upon the redemption (whether
at the option of NAC or the holder of the respective security) of any
Nonforfeitable Shares) shall be released from Lockup, and one-half
(1/2) of the Nonforfeitable Shares (and one-half (1/2) of all
Collateral NAC Securities (i) issued by NAC as a dividend or other
distribution on account of any Nonforfeitable Shares, (ii) issued by
NAC upon the exercise, conversion or exchange of any Nonforfeitable
Shares or (iii) issued by NAC in full or partial consideration of the
price payable by NAC upon the redemption (whether at the option of NAC
or the holder of the respective security) of any Nonforfeitable
Shares) shall continue to be subject to Lockup until December 31,
2002.
(d) RESTRICTIONS ON EXERCISE OF CERTAIN RIGHTS DURING THE STANDSTILL
PERIOD. For so long as any security issued by NAC is subject to Lockup pursuant
to this Section 7, the holder thereof shall not exercise any right (i) to
convert such security into any other security or securities of NAC other than
shares of Common Stock or (ii) to require or cause NAC to redeem such security.
(e) ADDITIONAL LOCKUP AGREEMENT. If an underwriter managing an
underwritten offering of NAC's securities in connection with the registration of
shares of NAC Capital Stock requires the officers or directors of NAC to enter
into a lockup agreement (an "INSIDER LOCKUP AGREEMENT"), each Shareholder also
agrees to execute and deliver to such underwriter an additional lockup
agreement, in substantially the same form and upon substantially same terms as
the Insider Lockup Agreement, not to exceed the time limitations set forth in
Section 2.2 (b) of the Registration Rights Agreement.
SECTION 8. - PROXIES. Each Shareholder represents that any proxies given
by such Shareholder prior to this Agreement regarding the ZoomLot Shares are not
irrevocable, and that
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any such proxies have been revoked. Each Shareholder covenants that he/she/it
shall not give a proxy or otherwise transfer any voting or similar rights with
respect to any NAC Voting Shares to any Person during the term of this
Agreement, except as expressly permitted by this Agreement. Notwithstanding the
foregoing, a Shareholder may give a proxy to the person(s) designated by NAC's
Board of Directors in connection with a proxy solicitation by NAC's Board of
Directors or to the Shareholder Representative, provided that, pursuant to such
proxy, the holder of such proxy is directed, during any Voting Period, is
designated to be voted or exercised in accordance with Section 6 above. Any
proxy granted or issued by any Shareholder in violation of the foregoing
provisions of this Section 9 shall be null and void and of no force or effect.
SECTION 9. - LEGEND/STOP TRANSFER.
(a) Any certificate evidencing NAC Voting Shares or any Collateral NAC
Securities issued at any time, including the certificates issued to the
Shareholders representing the NAC Merger Shares, shall (in addition to such
other legend(s) as may be required under the Merger Agreement of by law) have
the following legend written, printed or stamped upon the face thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS, CONDITIONS AND RESTRICTIONS OF A LOCKUP, STANDSTILL AND VOTING
AGREEMENT, DATED AS OF DECEMBER 15, 2000, AMONG NATIONAL AUTO CREDIT,
INC. AND CERTAIN SHAREHOLDERS, A COPY OF WHICH AGREEMENT IS ON FILE AT
THE OFFICES OF NATIONAL AUTO CREDIT, INC. SUCH AGREEMENT, AMONG OTHER
THINGS, MAY RESTRICT THE TRANSFER AND VOTING RIGHTS OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED, ENCUMBERED OR DISPOSED OF, EXCEPT AS EXPRESSLY
PROVIDED IN SUCH AGREEMENT. STOP TRANSFER INSTRUCTIONS HAVE BEEN
PLACED AGAINST THE SECURITIES AND THE CERTIFICATES EVIDENCING THE
SECURITIES TO RESTRICT THEIR TRANSFER, EXCEPT AS PERMITTED UNDER SUCH
AGREEMENT.
(b) Each Shareholder consents to the placing of stop transfer
instructions against such Shareholder's NAC Voting Shares and NAC Collateral
Securities and the certificates evidencing the NAC Voting Shares and NAC
Collateral Securities to restrict their transfer except as permitted under this
Agreement.
SECTION 10. - TERMINATION. This Agreement shall terminate on December 31,
2007; provided that certain provisions hereof, or the effect thereof, may
terminate prior thereto in accordance with the terms of this Agreement.
SECTION 11. - MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement and any other agreements, documents or instruments referred to herein
or therein) constitutes the entire agreement with respect to the subject matter
hereof and thereof and
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supersedes all other prior or contemporaneous agreements and understandings,
both written and oral, among the parties, or any of them, with respect to such
subject matter.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of NAC and the
Shareholders' Representative, and any effort to make any assignment in violation
of the foregoing shall be null and void and of no force or effect. This
Agreement shall be binding upon and enforceable against each party and each
party's respective heirs, beneficiaries, executors, representatives, successors
and assigns and shall inure to the benefit of and be enforceable by each party
and each party's respective heirs, beneficiaries, executors, representatives,
successors and permitted assigns.
(c) AMENDMENT AND MODIFICATION. This Agreement may not be amended,
altered, supplemented or otherwise modified except as provided in a written
agreement executed and delivered by the parties hereto; provided, however, that
any amendment, alteration, supplement or other modification signed by the
Shareholders' Representative shall be binding upon each and all of the
Shareholders with the same force and effect as if the same had been signed by
each of the Shareholders.
(d) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand (with written confirmation of
receipt) or (iii) the expiration of five (5) business days after the day when
mailed by certified or registered mail, postage prepaid, addressed at the
following addresses (or at such other address for a party as shall be specified
by like notice); provided, however, that any notice of change of address or
facsimile number shall be effective only upon the receipt thereof:
If to National Auto Credit to:
National Auto Credit, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attn: Chief Executive Officer
FAX: ________________
with a copy to:
Xxxxxx Xxxxxx Xxxxxx & Xxxx
000 Xxxxx Xxx., 0xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
FAX: 000-000-0000
If to the Shareholders
(or any of them):
Xxxxxx X. Xxxxxx, XX
Verde Capital Partners, LLC
0000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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FAX: 000-000-0000
with a copy to:
Xxxxx & Xxxxxx, L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
FAX: 000-000-0000
(e) SEVERABILITY. Any term or provision of this Agreement that is held
to be invalid, illegal or unenforceable in any respect in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(f) SPECIFIC PERFORMANCE. Each of the Shareholders recognizes and
acknowledges that a breach by him/her/it of any of the covenants and agreements
contained in this Agreement will cause NAC to sustain damages for which it would
not have an adequate remedy at law for monetary damages, and therefore, each
Shareholder agrees that, in the event of any such breach or threatened breach,
NAC shall be entitled to the remedy of specific performance of such covenants
and agreements and injunctive and other equitable relief, without being required
to post any bond or provide any other surety or undertaking, in addition to any
other remedy to which it may be entitled, at law or in equity.
(g) NO WAIVER. No provision hereof may be waived, in whole or in part,
except as provided in a written agreement executed and delivered by the parties
hereto; provided, however, that any waiver signed by the Shareholders'
Representative shall be binding upon each and all of the Shareholders with the
same force and effect as if the same had been signed by each of the
Shareholders. No waiver of any breach or default hereunder shall be considered
valid unless in writing. The failure of any party to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect of
this Agreement at law or in equity, or to insist upon compliance by any other
party with its obligation under this Agreement, and any custom or practice of
the parties at variance with the terms of this Agreement, will not constitute a
waiver by such party of his/her/its right to exercise any such or other right,
power or remedy or to demand such compliance.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
(i) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to the principles of conflict of law thereof.
(j) INTERPRETATION. The descriptive headings used herein are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Paragraphs refer to
sections and paragraphs of this Agreement unless
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otherwise stated. Words such as "herein," "hereinafter," "hereof," "hereto,"
"hereby" and "hereunder," and words of like import, unless the context requires
otherwise, refer to this Agreement (including the exhibits and attachments
hereto). As used in this Agreement, the masculine, feminine and neuter genders
shall be deemed to include the others if the context requires. This Agreement is
the product of mutual negotiation; and no party shall be deemed the draftsperson
hereof or of any portion or provision hereof.
(k) EXPENSES. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring the expenses (subject, however, to clause (l) below).
(l) INDEMNIFICATION. Each Shareholder shall indemnify and hold
harmless NAC from and against, and shall reimburse NAC for, any and all damages,
charges, claims, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees and other costs of collection or enforcement)
resulting from or occasioned by any breach by such Shareholder of any of
his/her/its representations, warranties, covenants and other agreements set
forth in this Agreement.
(m) FURTHER ASSURANCES. From time to time, at any other party's
request and without further consideration, each party shall execute and deliver
any additional documents and take any further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement. No Shareholder
shall take any action inconsistent with the purposes and provisions of this
Agreement.
(n) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, NAC and the Shareholders have caused this Agreement to
be duly executed as of the day and year first written above.
NATIONAL AUTO CREDIT, INC., a Delaware
corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
------------------------------------
XXXXXX X. XXXXXX, XX
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VOTING AGREEMENT
SIGNATURE PAGE
VERDE REINSURANCE COMPANY, LTD., a Nevis
Island corporation
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxx, XX
Title: Managing Director
XXXXX XXXXXX III 2000 TRUST
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXX XXXXXX 2000 TRUST
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
--------------------------------------
XXX XXXXX
--------------------------------------
XXXXXX X. XXXXXXX
--------------------------------------
XXXX XXXXXX
EJMS INVESTORS LIMITED PARTNERSHIP,
an Arizona limited partnership
By: SMJE Investors, LLC, an Arizona
limited liability company, the
General Partner
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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VOTING AGREEMENT
SIGNATURE PAGE
-----------------------------------------
XXXXX XXXXXXXXX
-----------------------------------------
XXXXX XXXXXXX
-----------------------------------------
XXXXX XXXXXXX
-----------------------------------------
XXXX XXXXXX
-----------------------------------------
XXXXX XXXXXX
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SCHEDULE 2(a)
SHARED VOTING POWER AND OTHER POWERS
None
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