Exhibit 1.1
▇▇▇▇▇▇ AUTOMOTIVE GROUP, INC.
COMMON STOCK (PAR VALUE $0.01)
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FORM OF UNDERWRITING AGREEMENT
MARCH ...., 2002
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Automotive Group, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in SCHEDULE I hereto (the "Underwriters") an aggregate
of . . . . . . .shares and, at the election of the Underwriters, up to . . . .
.. . additional shares of Common Stock, par value $.01 per share ("Stock") of the
Company and the stockholders of the Company named in SCHEDULE II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of . . . . . . . shares of
Stock. The aggregate of . . . . shares to be sold by the Company and the Selling
Stockholders is herein called "Firm Shares" and the aggregate of . . . . .
additional shares to be sold by the Company is herein called the "Optional
Shares". The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares".
Prior to the First Time of Delivery (as defined below), substantially
all of the membership interests in ▇▇▇▇▇▇ Automotive Group L.L.C., a Delaware
limited liability company ("▇▇▇▇▇▇ Automotive LLC"), will be contributed to the
Company and to a wholly-owned subsidiary of the Company pursuant to that
certain Transfer and Exchange Agreement, to be dated as of March , 2002,
among ▇▇▇▇▇▇ Automotive Holdings L.L.C., the Company and the Dealers and
Managers parties thereto (the "Transfer and Exchange Agreement"). The transfer
of substantially all of the membership interests in ▇▇▇▇▇▇ Automotive LLC to the
Company and a wholly-owned subsidiary pursuant to the Transfer and Exchange
Agreement is hereinafter referred to as the "Transfer".
1. (a) The Company and ▇▇▇▇▇▇ Automotive LLC, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(1) A registration statement on Form S-1 (File No. 333-65998)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form S-1;
(iv) Neither the Company, ▇▇▇▇▇▇ Automotive LLC nor any of
their respective subsidiaries has sustained since the date of the
latest audited financial statements included in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
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any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or membership interests, short-term debt or
long-term debt of the Company, ▇▇▇▇▇▇ Automotive LLC or any of their
respective subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity, members' equity or results of operations of the
Company, ▇▇▇▇▇▇ Automotive LLC and their respective subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(v) The Company, ▇▇▇▇▇▇ Automotive LLC and each of their
respective subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus
(including, without limitation, such liens imposed under the Credit
Agreement, dated as of January 17, 2001, between ▇▇▇▇▇▇ Automotive LLC
and the lenders named therein, and the wholesale agreement of even date
therewith and between such parties (collectively, the "Credit
Facility"))or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company, ▇▇▇▇▇▇ Automotive LLC and each of
their respective subsidiaries; and any real property and buildings held
under lease by the Company, ▇▇▇▇▇▇ Automotive LLC and each of their
respective subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company, ▇▇▇▇▇▇ Automotive LLC and each of their
respective subsidiaries, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, and to general equity principles;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each "significant subsidiary" (as
such term is defined in Rule 1-02 of Regulation S-X promulgated under
the Act) of the Company that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and each
significant subsidiary of the Company that is a limited liability
company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of its jurisdiction
of formation;
(vii) ▇▇▇▇▇▇ Automotive LLC has been duly formed and is
validly existing as a limited liability company in good standing under
the laws of the State of Delaware, with power and authority (limited
liability company and other) to own its properties and conduct the
business of the Company as described in the Prospectus prior to the
consummation of the Transfer and to conduct its business as a
wholly-owned subsidiary of the Company upon the consummation of the
Transfer, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or
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disability by reason of the failure to be so qualified in any such
jurisdiction; each significant subsidiary of ▇▇▇▇▇▇ Automotive LLC that
is a corporation has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation; and each significant subsidiary of ▇▇▇▇▇▇ Automotive LLC
that is a limited liability company has been duly formed and is validly
existing as a limited liability company in good standing under the laws
of its jurisdiction of formation;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus under the caption "Description of
Capital Stock"; and all of the issued shares of capital stock and all
of the issued membership interests of each subsidiary of the Company
and ▇▇▇▇▇▇ Automotive LLC have been duly and validly authorized and
issued, are, in the case of shares of capital stock, fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company or ▇▇▇▇▇▇ Automotive LLC, as the
case may be, free and clear of all liens (other than liens imposed
under the Credit Facility), encumbrances, equities or claims;
(ix) All of the issued membership interests of ▇▇▇▇▇▇
Automotive LLC have been duly and validly authorized and issued; upon
the effective time of the Transfer as provided in the Transfer and
Exchange Agreement, 100 percent of the membership interests of ▇▇▇▇▇▇
Automotive LLC shall be owned directly or indirectly by the Company;
(x) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(xi) The Transfer and Exchange Agreement has been duly
authorized by the Company and ▇▇▇▇▇▇ Automotive LLC and the Transfer
will conform in all material respects to the description thereof
contained in the Prospectus;
(xii) The issue and sale of the Shares to be sold by the
Company, the Transfer and the compliance by the Company and ▇▇▇▇▇▇
Automotive LLC with all of the provisions of this Agreement and the
Transfer and Exchange Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, Franchise Agreement (as defined herein), framework
franchise agreement or other material agreement or instrument to which
the Company, ▇▇▇▇▇▇ Automotive LLC or any of their respective
subsidiaries is a party or by which the Company, ▇▇▇▇▇▇ Automotive LLC
or any of their respective subsidiaries is bound or to which any of the
property or assets of the Company, ▇▇▇▇▇▇ Automotive LLC or any of
their respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company, the Certificate of Formation or Limited
Liability Company Agreement of ▇▇▇▇▇▇ Automotive LLC, or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, ▇▇▇▇▇▇ Automotive LLC or any
of their respective subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares, the consummation of the Transfer
or the consummation by the Company and ▇▇▇▇▇▇ Automotive LLC of the
transactions contemplated by this Agreement and the Transfer
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and Exchange Agreement, except the registration under the Act of the
Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(xiii) Neither the Company nor any of those of its or ▇▇▇▇▇▇
Automotive LLC's subsidiaries that are corporations are in violation of
their respective Certificates of Incorporation or By-laws; neither
▇▇▇▇▇▇ Automotive LLC nor any of those of its or the Company's
subsidiaries that are limited liability companies are in violation of
their respective Certificates of Formation or Limited Liability Company
Agreements, and neither the Company, ▇▇▇▇▇▇ Automotive LLC nor any of
their respective subsidiaries are in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other material agreement or instrument to which they are
parties or by which they or any of their properties may be bound;
(xiv) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(xv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company, ▇▇▇▇▇▇
Automotive LLC or any of their respective subsidiaries is a party or of
which any property of the Company, ▇▇▇▇▇▇ Automotive LLC or any of
their respective subsidiaries is the subject which, if determined
adversely to the Company, ▇▇▇▇▇▇ Automotive LLC or any of their
respective subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company,
▇▇▇▇▇▇ Automotive LLC or any of their respective subsidiaries; and, to
the best of the Company's and ▇▇▇▇▇▇ Automotive LLC's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xvi) Neither the Company nor ▇▇▇▇▇▇ Automotive LLC is and,
after giving effect to the offering and sale of the Shares, neither the
Company nor ▇▇▇▇▇▇ Automotive LLC will be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(xvii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which has certified certain
financial statements of the Company, ▇▇▇▇▇▇ Automotive LLC and their
respective subsidiaries, and ▇▇▇▇▇ ▇▇▇▇ P.L.L.C., which has certified
certain financial statements of ▇▇▇▇▇▇ Chevrolet, Inc. and affiliated
entities are each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(xviii) The Company, ▇▇▇▇▇▇ Automotive LLC and their
respective subsidiaries have obtained all environmental permits,
licenses and other authorizations required by federal, state and local
law in order to conduct their businesses as described in the
Prospectus, except where failure to do so would not have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity, members' equity or results of
operations of the Company, ▇▇▇▇▇▇ Automotive LLC or any of their
respective subsidiaries (a "Material Adverse Effect"); the Company and
its subsidiaries are conducting their businesses in compliance with
such permits, licenses and authorizations and with applicable
environmental laws, except where the failure to be in
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compliance would not, individually or in the aggregate, have a Material
Adverse Effect; and neither the Company, ▇▇▇▇▇▇ Automotive LLC nor any
of their respective subsidiaries are in violation of any federal or
state law or regulation relating to the storage, handling, disposal,
release or transportation of hazardous or toxic materials, which
violation would subject the Company, ▇▇▇▇▇▇ Automotive LLC or any of
their respective subsidiaries to any liability or disability, except
where such violations would not, individually or in the aggregate, have
a Material Adverse Effect;
(xix) The Company, ▇▇▇▇▇▇ Automotive LLC and each of their
respective subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from
all governmental or regulatory authorities that are necessary to own or
lease their properties and conduct their businesses as described in the
Prospectus, except for such licenses, franchises, permits
authorizations, approvals and orders, the failure to obtain which would
not, individually or in the aggregate, have a Material Adverse Effect;
(xx) The Company, ▇▇▇▇▇▇ Automotive LLC and each of their
respective subsidiaries are conducting business in compliance with all
applicable statutes, rules, regulations, standards, guides and orders
administered or issued by any governmental or regulatory authority in
the jurisdictions in which it is conducting business, except where the
failure to be so in compliance would not, individually or in the
aggregate, have a Material Adverse Effect;
(xxi) The Company, ▇▇▇▇▇▇ Automotive LLC or a wholly-owned
direct or indirect subsidiary has entered into a franchise agreement
with each of the manufacturers listed on Schedule III hereto
(collectively, the "Franchise Agreements", and each a "Franchise
Agreement"), each of which has been duly authorized, executed and
delivered by the Company, ▇▇▇▇▇▇ Automotive LLC or such subsidiary, is
in full force and effect and constitutes the valid and binding
agreement between the parties thereto, enforceable in accordance with
its terms, subject to applicable federal and state franchise laws and
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, and to general equity principles; the
Franchise Agreements permit the Company, ▇▇▇▇▇▇ Automotive LLC or a
subsidiary or subsidiaries to operate a vehicle sales franchise at the
locations indicated on Schedule III; the Company, ▇▇▇▇▇▇ Automotive LLC
and their subsidiaries are in compliance with all material terms and
conditions of the Franchise Agreements, and, to the best knowledge of
the Company and ▇▇▇▇▇▇ Automotive LLC, there has not occurred any
material default under any of the Franchise Agreements or any event
that with the giving of notice or the lapse of time would constitute a
material default thereunder; and
(xxii) Except as disclosed in the Prospectus, no holders of
any securities of the Company or ▇▇▇▇▇▇ Automotive LLC have any rights
to require the Company or ▇▇▇▇▇▇ Automotive LLC to register any
securities of the Company under the Act.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters, the Company and ▇▇▇▇▇▇ Automotive
LLC that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to
be sold by such Selling Stockholder hereunder, have been obtained; and
such Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power-of-Attorney and the Custody Agreement
and, upon the issuance of the Shares
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to or on behalf of the Selling Stockholder prior to the First Time of
Delivery, such Selling Stockholder shall have full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, the Power of Attorney and
the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the provisions
of the Certificate of Formation or Limited Liability Company Agreement
of such Selling Stockholder if such Selling Stockholder is a limited
liability company] or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder;
(iii) Assuming that the shares to be sold by such Selling
Stockholder have been validly issued to such Selling Stockholder by the
Company, such Selling Stockholder shall have, immediately prior to the
First Time of Delivery (as defined in Section 4 hereof), good and valid
title to the Shares to be sold by such Selling Stockholder hereunder,
free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters;
(iv) Such Selling Stockholder shall not, during the period
beginning from the date hereof and continuing to and including the date
two years after the date of the Prospectus, offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the prior written consent of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will not contain any untrue
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statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(vii) In order to avoid backup withholding of U.S. Federal
income tax on the cash received in connection with the transactions
herein contemplated, such Selling Stockholder will deliver to you prior
to or at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Internal Revenue Service Form W-9
(or other applicable form or statement specified by applicable
regulations of the United States Department of the Treasury in lieu
thereof);
(viii) Immediately prior to the First Time of Delivery,
certificates in negotiable form representing all of the Shares to be
sold by such Selling Stockholder hereunder shall have been placed in
custody under a Custody Agreement, in the form heretofore furnished to
you (the "Custody Agreement"), duly executed and delivered by such
Selling Stockholder to ▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇, each as custodian
(the "Custodian"), and such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you
(the "Power of Attorney"), appointing the persons indicated in SCHEDULE
II hereto, and each of them, as such Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Stockholder hereunder
and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the
Custody Agreement; and
(ix) The Shares represented by the certificates to be held in
custody for such Selling Stockholder under the Custody Agreement shall
be subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable; the obligations of
the Selling Stockholders hereunder to the extent permitted by
applicable law shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Stockholder or, in
the case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in
the case of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other event; if
any individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation should
be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement and of the
Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant
to the Powers of Attorney to the extent permitted by applicable law
shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or
not the Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of the Selling
Stockholders, at a purchase price per share of $.............., the number of
Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Shares to be sold by the
Company and each of the Selling Stockholders as set forth opposite their
respective names in SCHEDULE II hereto by a fraction, the numerator of
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which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in SCHEDULE I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from the Company and all of the Selling Stockholders
hereunder and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in SCHEDULE I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company, as and to the extent indicated in SCHEDULE II hereto,
hereby grants to the Underwriters the right to purchase at their election up
to ................... Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the
Company and, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree
in writing, earlier than two or later than ten business days after the date
of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to ▇▇▇▇▇▇▇, Sachs & Co., for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Custodian on
behalf of each of the Selling Stockholders, as their interests may appear, to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York time, on ............., 2002 or such other time and date as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., the Company and the Selling Stockholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. to the Company of the Underwriters' election to purchase
such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and
the Company may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the "First Time of Delivery", such time and date
for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any
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additional documents requested by the Underwriters pursuant to Section 7(n),
will be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will be held
at the Closing Location at 1:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section
4 and Section 5, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company and ▇▇▇▇▇▇ Automotive LLC, jointly and severally, agree
with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) As soon as practicable on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your request
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
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sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company's stockholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (A) pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement or (B) in
connection with acquisitions, provided that such securities shall not exceed in
the aggregate 10% of the stock to be outstanding immediately following the
offering contemplated hereby and provided, further, that the recipients of such
securities agree to be bound by this Section 5(e) for the duration of the 180
day period), without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.;
(f) To furnish to the Company's stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to the Company's stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to the
Company's stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange (the "Exchange);
(j) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act; and
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(k) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
6. The Company, ▇▇▇▇▇▇ Automotive LLC and each of the Selling
Stockholders covenant and agree with one another and with the several
Underwriters that (a) the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the
Exchange; (v) the filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar, and (viii) all
other costs and expenses incident to the performance of the obligations of the
Company, ▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders hereunder which are
not otherwise specifically provided for in this Section; and (b) each Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel for such Selling Stockholder; (ii) such Selling
Stockholder's pro rata share of the fees and expenses of the Attorneys-in-Fact
and the Custodian; and (iii) all expenses and taxes incident to the sale and
delivery of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder. It is understood, however, that the Company, and ▇▇▇▇▇▇
Automotive LLC shall bear, and the Selling Stockholders shall not be required to
pay or to reimburse the Company or ▇▇▇▇▇▇ Automotive LLC for, the cost of any
other matters not directly relating to the sale and purchase of the Shares
pursuant to this Agreement, and that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company, ▇▇▇▇▇▇ Automotive LLC and of the Selling Stockholders herein are,
at and as of such Time of Delivery, true and correct, the condition that the
Company, ▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders shall have performed
all of its and their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
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effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and such other related matters as you
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Cravath, Swaine & ▇▇▇▇▇, counsel for the Company, shall have
furnished to you, in form and substance satisfactory to you, (i) their written
opinion, dated such Time of Delivery, to the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(B) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(C) This Agreement has been duly authorized, executed and
delivered by the Company;
(D) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any (x) indenture, or
loan agreement with a financial institution, or (y) material mortgage,
deed of trust, or other agreement or instrument, in the case of the
agreements and instruments described in clause (y), known to such
counsel, to which the Company or any of its significant subsidiaries is
a party or by which the Company or any of its significant subsidiaries
is bound or to which any of the property or assets of the Company or
any of its significant subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
significant subsidiaries or any of their properties;
(E) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration
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under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters; provided that such
opinion may be limited to the laws of the United States, the laws of
the State of New York and the General Corporation Law and Limited
Liability Company Act of the State of Delaware;
(F) Each "significant subsidiary" (as defined in Rule 1-02 of
Regulation S-X promulgated under the Act) of the Company that is a
corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each
such subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims (such counsel being
entitled to (i) rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates, and (ii)
exclude from such opinion such liens as are imposed under the terms of
the Credit Facility);
(G) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(H) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting" insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair; and
(I) The Company is not an "investment company", as such term
is defined in the Investment Company Act; and
(ii) their letter, dated such Time of Delivery, to the effect that:
The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules and information of a financial or accounting nature therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules
and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in paragraph (H) of this
Section 7(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment
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thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and information of a
financial or accounting nature therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and information of a
financial or accounting nature therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
information of a financial or accounting nature therein, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required.
(d) General counsel to the Company or other counsel of the Company
satisfactory to you shall have furnished to you, in form and substance
satisfactory to you, (i) his written opinion, dated such Time of Delivery, to
the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(B) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(C) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
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(D) Each significant subsidiary of the Company that is a
limited liability company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of its
jurisdiction of formation; and all of the issued membership interests
of each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to (i) rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates, and (ii) exclude from such opinion such
liens and encumbrances as are imposed under the terms of the Credit
Facility);
(E) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
do not interfere with the use and continued use made and proposed to
be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use and continued use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries (in giving the opinion in this clause, such counsel may
(i) state that no examination of record titles for the purpose of
such opinion has been made, and that they are relying upon a general
review of the titles of the Company and its subsidiaries, upon
opinions of local counsel and abstracts, reports and policies of
title companies rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its subsidiaries,
upon opinions of counsel to the lessors of such property and, in
respect of matters of fact, upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying
upon such opinions, abstracts, reports, policies and certificates,
(ii) exclude from such opinion liens, encumbrances, defects and
exceptions that would not have a Material
-16-
Adverse Effect and (iii) exclude from such opinion such liens and
encumbrances as are imposed under the terms of the Credit Facility);
(F) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(G) This Agreement has been duly authorized, executed and
delivered by the Company;
(H) (x) The Company is not in violation of its
Certificate of Incorporation or By-laws, nor is it in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, or lease or agreement
or other instrument to which it is a party or by which it or
any of its properties may be bound;
(y) To such counsel's knowledge, none of the
significant subsidiaries of the Company that are corporations
are in violation of their respective Certificates of
Incorporation or
-17-
By-laws, none of the significant subsidiaries of the Company
that are limited liability companies are in violation of their
respective Certificates of Formation or Limited Liability
Company Agreements, and no such significant subsidiary is in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement,
or lease or agreement or other material instrument to which it
is a party or by which it or any of its properties may be
bound; and
(z) To the knowledge of such counsel, none of the
subsidiaries of the Company that are not significant
subsidiaries are (I) in the case of corporations, in violation
of their respective Certificates of Incorporation or By-laws,
and (II) in the case of limited liability companies, in
violation of their respective Certificates of Formation or
Limited Liability Company Agreements, and no such subsidiary
is in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement,
or lease or agreement or other material instrument to which it
is a party or by which it or any of its properties may be
bound;
provided that such counsel may exclude from such opinion such
violations and defaults that would not have a Material Adverse Effect;
(ii) his letter dated such Time of Delivery, to the effect that:
The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules and information of a financial or accounting nature therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules
and regulations thereunder; they have no reason to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and information of a
financial or accounting nature therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus or any further amendment or supplement
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thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and information of a
financial or accounting nature therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
information of a financial or accounting nature therein, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required.
(e) With respect to the First Time of Delivery, the respective counsel
for each of the Selling Stockholders, as indicated in SCHEDULE II hereto, each
shall have furnished to you their written opinion with respect to each of the
Selling Stockholders for whom they are acting as counsel (a draft of each such
opinion is attached as ANNEX II hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder in accordance with
their terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by such
Selling Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Formation or
Limited Liability Company Agreement of such Selling Stockholder if such
Selling Stockholder is a limited liability company or any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with
the Shares to be sold by such Selling Stockholder hereunder, except for
those consents that have been duly obtained and are in full force and
effect, such as have been obtained under the Act and such as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters;
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(iv) Assuming that the shares to be sold by such selling
stockholder have been validly issued to such selling stockholder by the
company, immediately prior to such Time of Delivery, such Selling
Stockholder had good and valid title to the Shares to be sold at such
Time of Delivery by such Selling Stockholder under this Agreement, free
and clear of all liens, encumbrances, equities or claims, and full
right, power and authority to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder; and
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, or claims, has been transferred to each of the
several Underwriters; provided that the Underwriters paid value
therefore and have purchased such Shares without notice of an adverse
claIm thereto (within the meaning of the Uniform Commercial Code as in
effect as of such Time of Delivery in the State of New York).
In rendering the opinion in paragraph (iv), such counsel may rely upon
a certificate of such Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, or claims on, the Shares sold by such
Selling Stockholder, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such certificate. In
rendering such opinions such counsel may qualify such opinions by noting that no
opinion is expressed as to the validity or enforceability of any provision which
purports to provide that the powers granted under a power of attorney will
survive the death or incompetence of the principal. Such counsel may also note
that it has not been asked to review, nor has it reviewed, nor is it expressing
any opinion with respect to the accuracy or completeness of any representation
or warranty made by the Selling Stockholder or any other party in the
Registration Statement, this Agreement or any document or instrument executed in
connection with the transactions contemplated thereby.
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in ANNEX I hereto;
(g) (i) Neither the Company, ▇▇▇▇▇▇ Automotive LLC nor any of their
respective subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
membership interests, short-term debt or long-term debt of the Company, ▇▇▇▇▇▇
Automotive LLC or any of their respective subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity, members' equity or results
of operations of the Company, ▇▇▇▇▇▇ Automotive LLC and any of their respective
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
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(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war; or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(j) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from each of (i) ▇▇▇▇▇▇ Automotive Holdings L.L.C. and
(ii) the persons listed on Schedule IV (such persons, the "Designated
Persons"), substantially to the effect that during the period beginning from the
date hereof and continuing to and including the date, (i) in the case of ▇▇▇▇▇▇
Automotive Holdings L.L.C., 180 days and (ii) in the case of each Designated
Person, two years after the date of the Prospectus, such persons shall not
offer, sell, contract to sell or otherwise dispose of any Shares or securities
of the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior written
consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.;
(k) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(l) Prior to the First Time of Delivery, the Transfer and Exchange
Agreement shall have been duly authorized, executed and delivered by each of the
parties thereto, and the Transfer shall have taken place;
(m) No legal action challenging the Transfer, the terms of the Transfer
and Exchange Agreement or the transactions contemplated thereby shall have been
filed and remain outstanding, the effect of which, in the judgment of ▇▇▇▇▇▇▇,
Sachs & Co. makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the same manner contemplated by the Prospectus; and
(n) The Company, ▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders
shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling Stockholders,
respectively, satisfactory to you as to the accuracy of the representations and
warranties of the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders,
respectively, herein at and as of such Time of Delivery, as to the performance
by the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders of all of
their respective obligations hereunder to be performed at or prior to such Time
of Delivery, and as to such other matters as you may reasonably request, and the
Company and ▇▇▇▇▇▇ Automotive LLC shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a), (f), (l) and (m) of
this Section.
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8. (A) The Company and ▇▇▇▇▇▇ Automotive LLC, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Company, ▇▇▇▇▇▇ Automotive LLC nor ▇▇▇▇▇▇ shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders, and including, in the case of
CNC Automotive, L.L.C., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Selling Stockholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Stockholder shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and provided further that no
Selling Stockholder shall be liable under this Section 8(b) in an aggregate
amount greater than the product of (x) the number of Shares purchased by the
Underwriters from such Selling Stockholder under Section 2 hereof, TIMES (y)
the initial public offering price per Share as set forth on the front cover
of the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company,
▇▇▇▇▇▇ Automotive LLC and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof)
-22-
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and will reimburse the
Company, ▇▇▇▇▇▇ Automotive LLC and each Selling Stockholder for any legal or
other expenses reasonably incurred by the Company, ▇▇▇▇▇▇ Automotive LLC or such
Selling Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnified party shall have
reasonably concluded (with the advice of counsel) that there may be defenses
available to it which are different from those or in addition to those available
to the indemnifying party, in which case, the indemnifying party shall be
responsible for the fees and expenses of counsel for the indemnified party it
being understood, however, that the company and the selling stockholders shall
not be responsible for the fees and expenses of more than one separate firm of
attorneys for the Underwriters or controlling persons in any one action or
series of related actions. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling
Stockholders on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice
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required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, ▇▇▇▇▇▇
Automotive LLC and the Selling Stockholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company,
▇▇▇▇▇▇ Automotive LLC and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, ▇▇▇▇▇▇ Automotive LLC or the Selling Stockholders in question on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, ▇▇▇▇▇▇ Automotive LLC, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company, ▇▇▇▇▇▇ Automotive LLC and the
Selling Stockholders under this Section 8 shall be in addition to any liability
which the Company, ▇▇▇▇▇▇ Automotive LLC and the respective Selling Stockholders
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company [(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company)], each
officer and director of ▇▇▇▇▇▇ Automotive LLC, and to each person, if any, who
controls the Company, ▇▇▇▇▇▇ Automotive LLC or any Selling Stockholder within
the meaning of the Act.
9. (A) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed
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periods, you notify the Company and the Selling Stockholders that you have so
arranged for the purchase of such Shares, or the Company and the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Stockholders shall have the right to
postpone Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 6 hereof, the indemnity and contribution agreements in
Section 8 hereof and the obligations of ▇▇▇▇▇▇ Automotive LLC in Section 13
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, ▇▇▇▇▇▇ Automotive LLC, the Selling
Stockholders and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any of the Selling
Stockholders, or any officer or director or controlling person of the Company,
▇▇▇▇▇▇ Automotive LLC or any controlling person of any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, ▇▇▇▇▇▇ Automotive LLC nor the Selling Stockholders shall
then be under any liability to any Underwriter except as provided in Sections 6,
8 and 13 hereof; but, if for any other reason any Shares are not delivered by or
on behalf of the Company and the Selling Stockholders as provided herein, the
Company and each of the Selling Stockholders pro rata (based on the number of
Shares to be sold by the Company and such Selling Stockholder hereunder), will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you,
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including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6, 8 and
13 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of you as the representatives; and in
all dealings with any Selling Stockholder hereunder, you, the Company and ▇▇▇▇▇▇
Automotive LLC shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in SCHEDULE II hereto; and if to the Company or ▇▇▇▇▇▇
Automotive LLC shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company, ▇▇▇▇▇▇ Automotive LLC or the Selling
Stockholders by you on request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. ▇▇▇▇▇▇ Automotive LLC covenants and agrees with the Underwriters
that it shall ensure and guarantee the compliance by the Company with all of the
Company's obligations hereunder.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, ▇▇▇▇▇▇ Automotive LLC and the Selling
Stockholders and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company, ▇▇▇▇▇▇ Automotive LLC and each person who
controls the Company, ▇▇▇▇▇▇ Automotive LLC, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
-26-
18. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us ten (10) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company, ▇▇▇▇▇▇ Automotive LLC and each of the Selling Stockholders. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company, ▇▇▇▇▇▇
Automotive LLC and the Selling Stockholders for examination, upon request, but
without warranty on your part as to the authority of the signers thereof.
[The remainder of this page has been left blank intentionally]
-27-
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Stockholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to
a validly existing and binding Power-of-Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
▇▇▇▇▇▇ Automotive Group, Inc.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ Automotive Group, L.L.C.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇
C.V. "▇▇▇" ▇▇▇▇▇▇
CNC Automotive, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof
at New York, New York
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:
-----------------------------------
▇▇▇▇▇▇▇, Sachs & Co.
On behalf of each of the Underwriters
-28-
SCHEDULE I
Total Number Number of Optional Shares
of Firm Shares to be Purchased if
Underwriter to be Purchased Maximum Option Exercised
----------- --------------- ------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.............
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated.........
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc..........
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........
Total...........................
Schedule I-1
SCHEDULE II
Total Number
of Firm Shares
Underwriter to be Sold
----------- ----------
The Company...................................
The Selling Stockholders(1)...................
▇▇▇▇▇▇ ▇▇▇▇▇▇(a).........................
C.V. "▇▇▇" ▇▇▇▇▇▇(b).....................
CNC Automotive, L.L.C.(c)
Total....................................
---------------------
(1) Each Selling Stockholder has appointed ▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇,
and each of them as Attorneys-in-Fact.
(a) This Selling Stockholder is represented by ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) This Selling Stockholder is represented by The ▇▇▇▇▇ Firm, P.C., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(c) This Selling Stockholder is represented by Brooks, Pierce, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 2000 Renaissance Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
Schedule II-1
[TO BE UPDATED TO REFLECT ACQUISITIONS AND DIVESTITURES]
SCHEDULE III
DEALERSHIP FRANCHISE ADDRESS CITY STATE
Crown Mazda/BMW/Acura Acura ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Crown Acura Acura ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Acura Acura ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Acura Acura ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Acura of Austin Acura ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇
Crown Pontiac-GMC Audi ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Plaza Porsche Audi / Land Rover Audi ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Atlanta AU LLC Audi ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
Crown Mazda/BMW/Acura BMW ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Crown Pontiac-GMC BMW ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Motor Mall BMW ▇▇▇▇ ▇▇ ▇ ▇ ▇▇. ▇▇▇▇▇▇ ▇▇
Plaza BMW Cadillac BMW ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
Prestige, Inc. BMW ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick Buick ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick Buick ▇▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Pontiac/Buick Buick ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
Plaza BMW Cadillac Cadillac ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Chevrolet Chevrolet ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Chevrolet Chevrolet ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet Chevrolet ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet Chevrolet ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet-Oldsmobile Chevrolet ▇▇▇▇ ▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet, Oldsmobile Chevrolet ▇▇▇▇ ▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
Courtesy Chrysler Jeep Chrysler ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Hope Auto Company Chrysler ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
McLarty Auto Mall Chrysler ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇ Daewoo Daewoo ▇▇▇ ▇-▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Crown Dodge Dodge ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Dodge Country Dodge ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
Hope Auto Company Dodge ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
McLarty Auto Mall Dodge ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Crown ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Deland ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Hope Auto Company Ford ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
North Point ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ Auto Mall Ford ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Crown Pontiac-GMC GMC ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Crown Pontiac GMC/Isuzu GMC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Coggin Pontiac-GMC GMC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
JW Courtesy Pontiac-GMC Truck GMC ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick GMC ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick GMC ▇▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ GMC/Suzuki GMC ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
Schedule III-1
DEALERSHIP FRANCHISE ADDRESS CITY STATE
▇▇▇▇▇▇ Automotive Atlanta, L.L.C. Hino ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
Crown Honda Honda ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Crown Honda-Volvo Honda ▇▇▇▇ ▇▇ ▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇ Honda Honda ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Imports Honda ▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Honda Honda ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Deland Honda Honda ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Honda Honda ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Motor Mall Honda ▇▇▇▇ ▇▇ ▇ ▇ ▇▇. ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Honda Honda ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Honda Honda ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Honda Honda ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Hyundai Hyundai ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ Damerow Hyundai Hyundai ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Hyundai Hyundai ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Infiniti of Tampa Infiniti ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
Plaza Infiniti Infiniti ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Atlanta Infiniti L.L.C. Infiniti ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Automotive St. Louis, L.L.C. Infiniti MO
▇▇▇▇▇▇ Automotive Atlanta, L.L.C. International ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
Truck & Engine
Corp. (Navistar)
Crown Pontiac GMC/Isuzu Isuzu ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Courtesy Lincoln-Mercury/Isuzu Isuzu ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Isuzu Isuzu ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Automotive Atlanta, L.L.C. Isuzu ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Atlanta Jaguar LLC Jaguar ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jeep Jeep ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Courtesy Chrysler Jeep Jeep ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Hope Auto Company Jeep ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Crown Pontiac-GMC Kia ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Coggin Kia Kia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Kia of ▇▇▇▇▇▇▇ Kia ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Kia Kia ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Plaza Porsche Audi / Land Rover Land Rover ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Lexus Lexus ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Lexus Lexus ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Plaza Lexus Lexus ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
Courtesy Lincoln-Mercury/Isuzu Lincoln ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Lincoln Mercury, LLC Lincoln ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Plano Lincoln-Mercury, Inc. Lincoln ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇
Hope Auto Company Lincoln ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Premier Autoplaza Lincoln ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
North Point Ford Lincoln ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Crown Mazda/BMW/Acura Mazda ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Imports Mazda ▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Mazda Mazda ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
Courtesy Mazda of ▇▇▇▇▇▇▇ Mazda ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
North Point, Inc. Mazda ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Schedule III-2
DEALERSHIP FRANCHISE ADDRESS CITY STATE
▇▇▇▇▇▇▇▇ Mazda Mazda ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Mercedes-Benz of Tampa Mercedes ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Motor Mall Mercedes ▇▇▇▇ ▇▇ ▇ ▇ ▇▇. ▇▇▇▇▇▇ ▇▇
Plaza Mercedes Mercedes ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
Deland Lincoln-Mercury Mercury ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Plano Lincoln-Mercury, Inc. Mercury ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
Courtesy Lincoln-Mercury/Isuzu Mercury ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Premier Autoplaza Mercury ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
North Point Ford Mercury ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Crown Mitsubishi Mitsubishi ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Mitsubishi Mitsubishi ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇ Mitsubishi Mitsubishi ▇▇▇ ▇-▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Crown Nissan Nissan ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Nissan of Regency Nissan ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ Nissan of the Avenues Nissan ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Nissan of Tampa Nissan ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇ Nissan South Nissan ▇▇▇ ▇-▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇ Nissan North Nissan ▇▇▇▇ ▇-▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Premier Autoplaza Nissan ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Nissan/Olds Nissan ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Nissan Nissan ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet, Oldsmobile Oldsmobile ▇▇▇▇ ▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Chevrolet-Oldsmobile Oldsmobile ▇▇▇▇ ▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Nissan/Olds Oldsmobile ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ TX
▇▇▇▇▇▇ Motor Trucks Peterbilt ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Crown Pontiac-GMC Pontiac ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Crown Pontiac GMC/Isuzu Pontiac ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Coggin Pontiac-GMC Pontiac ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
JW Courtesy Pontiac-GMC Truck Pontiac ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick Pontiac ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Pontiac-GMC-Buick Pontiac ▇▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Premier Autoplaza Pontiac ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Pontiac/Buick Pontiac ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
Plaza Porsche Audi / Land Rover Porsche ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Subaru Subaru ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ City OR
▇▇▇▇▇ ▇▇▇▇▇▇▇ GMC/Suzuki Suzuki ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Suzuki Suzuki ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Buddy Hutdhinson Toyota Toyota ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Courtesy Toyota of ▇▇▇▇▇▇▇ Toyota ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇ Toyota Toyota ▇▇▇ ▇-▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Prestige, Inc. Toyota ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Toyota Toyota ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
North Point, Inc. Volkswagen ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Crown GVO L.L.C. Volvo ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Crown Honda-Volvo Volvo ▇▇▇▇ ▇▇ ▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Premier Autoplaza Volvo ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Schedule III-3
SCHEDULE IV
(a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇; and
(b) Each Specified Shareholder, as such term is defined in Section 4.01 of
that certain Shareholders Agreement, the form of which has been filed as Exhibit
10.11 to the Registration Statement.
SCHEDULE IV-1
ANNEX I
Pursuant to Section 7(e) of the
Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
pro forma financial information) examined by them and included in the
Prospectus or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited consolidated interim financial statements;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows
Annex I-1
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
representatives of the underwriters (the "Representatives"),
or any increases in any items specified by the
Representatives, in each case as compared with amounts shown
in the latest balance sheet included in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vi) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and
Annex I-2
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
Annex I-3