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EXHIBIT 99
AGREEMENT OF MERGER
BETWEEN
NATIONAL AUTO CREDIT, INC.
(A DELAWARE CORPORATION),
NAC TRANSCO, INC.
(A DELAWARE CORPORATION)
AND
NEW NAC, INC.
(A DELAWARE CORPORATION)
RECITALS
A. NATIONAL AUTO CREDIT, INC. ("NAC") is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is authorized to issue 30,000,000 shares of common stock, par
value of $.05 per share ("NAC Common Stock"), of which 25,839,472 shares are
issued and outstanding, and 2,000,000 shares of preferred stock, par value $.05
per share ("NAC Preferred Stock"), of which no shares are issued and
outstanding.
B. NAC Transco, Inc. ("Transco"), is a wholly owned subsidiary of
New NAC, Inc., a wholly owned subsidiary of NAC ("NEW NAC"). Both Transco and
NEW NAC are duly organized, validly existing and in good standing under the
laws of the State of Delaware. Transco is authorized to issue 1,500 shares of
common stock, without par value (the "Transco Common Stock"), of which 100
shares are issued and outstanding and owned by NEW NAC. NEW NAC is authorized
to issue 30,000,000 shares of common stock, par value $.05 per share ("NEW NAC
Common Stock"), and 2,000,000 shares of preferred stock, par value $.05 per
share ("NEW NAC Preferred Stock").
C. The Board of Directors of each NAC and Transco (collectively,
the "Constituent Corporations") has adopted resolutions approving this
Agreement of Merger (the "Agreement") in accordance with Section 251(b) and (g)
of the Delaware General Corporation Law (the "DGCL") without submitting the
Agreement to their respective stockholders for approval.
ARTICLE I
GENERAL
1.01 Merger and Surviving Corporation. Subject to the terms and
provisions of this Agreement, and in accordance with the DGCL, at the Effective
Time (as defined in Section 1.02 hereof) Transco shall be merged with and into
NAC (the "Merger"). NAC shall be the
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surviving corporation of the Merger and shall continue its corporate existence
under the laws of the State of Delaware. At the Effective Time, the separate
corporate existence of Transco shall cease.
1.02. Parties to Conversion and Exchange. The Constituent
Corporations and NEW NAC shall effect the Merger in accordance with and subject
to the terms of this Agreement.
1.03. Effectiveness. This Agreement, and such other documents and
instruments as are required by, and complying in all respects with, the DGCL
shall be delivered to the appropriate state officials for filing. The Merger
shall become effective upon the filing of this Agreement with the Secretary of
State of the State of Delaware (the "Effective Time").
1.04. Termination. This Agreement may be terminated at any time
prior to the Effective Time by any of the Constituent Corporations and NEW NAC
by written notice to the other Constituent Corporations and NEW NAC, as the
case may be, prior to the Effective Time.
1.05. Amendment. This Agreement may be amended by the written
agreement of the Constituent Corporations and NEW NAC, to the extent permitted
by law, at any time prior to the Effective Time.
ARTICLE II
CAPITAL STOCK
2.01. Merger. At the Effective Time, each share of NAC Common Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted and exchanged into one share of NEW NAC Common Stock and each share
of NEW NAC Common Stock issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted and exchanged into one share of NAC
Common Stock. No shares of NAC Common Stock shall cease to exist by reason of
such conversion and exchange and all shares of NAC Common Stock held in
treasury by NAC prior to the conversion and exchange shall become shares of NEW
NAC Common Stock likewise held by NEW NAC.
2.02. Certificates. Following the Effective Time, each holder of an
outstanding certificate or certificates theretofore representing shares of NAC
Common Stock may, but shall not be required to, surrender the same to NEW NAC
for issuance of a new certificate or certificates in such holder's name or for
transfer, and each such holder or transferee will be entitled to receive a
certificate or certificates representing the same number of shares of NEW NAC.
Without any further action on the part of NAC or NEW NAC, each outstanding
certificate which, immediately before the Effective Time, represented NAC
Common Stock, shall be deemed and treated for all corporate purposes to
represent the ownership of the same number of shares of NEW NAC Common Stock as
though a surrender or transfer and exchange had taken place.
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2.03. Cancellation of Transco Common Stock Held by NEW NAC.
Immediately upon the Effective Time, each share of Transco Common Stock issued
and outstanding immediately before the Effective Time shall be canceled and all
rights in respect thereof shall cease. NEW NAC, as the sole holder of such
Transco Common Stock, consents to such cancellation.
ARTICLE III
3.01. Certificate of Incorporation, By-Laws, Directors and Officers
of NAC. At the Effective Time, the Certificate of Incorporation, By-Laws,
directors and officers of NAC, immediately prior to the effective time shall be
the Certificate of Incorporation, By- Laws, directors and officers of NAC,
except that Article FIRST shall be amended and restated as follows:
FIRST: The name of the Corporation is ARAC, Inc.
[THIS SPACE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Merger as of December 27, 1995.
NATIONAL AUTO CREDIT, INC.
By: /s/ Xxx X. Xxxxxxxx
_____________________________________
Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
NAC TRANSCO, INC.
By: /s/ Xxx X. Xxxxxxxx
____________________________________________
Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
NEW NAC, INC.
By: /s/ Xxx X. Xxxxxxxx
____________________________________________
Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board
Each of the undersigned hereby certifies that the above Agreement of Merger has
been adopted pursuant to Section 251(g) of the Delaware General Corporation
Law, as amended, and that the conditions specified in the first sentence of
such Section 251(g) have been satisfied.
/s/ Xxxxxx X. Xxxxxxx /S/ Xxxxxx X. Xxxxxxx
_____________________________________ ______________________________________
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Secretary, National Auto Credit, Inc. Secretary, NAC Transco, Inc.
December 27, 1995 December 27, 1995
Date: _____________________________ Date: ________________________________
/s/ Xxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxx
Secretary, New NAC, Inc.
December 27, 1995
Date: _____________________________
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