EXHIBIT 10.33
Execution Copy
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
UNITED AUTO GROUP, INC.
MITSUI & CO., LTD.
and
MITSUI & CO. (U.S.A.), INC.
dated as of
February 22, 2002
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as
of February 22, 2002, among United Auto Group, Inc., a Delaware corporation (the
"Company"), Mitsui & Co., Ltd., a Japanese company ("Mitsui Japan"), Mitsui &
Co. (U.S.A.), Inc., a New York corporation ("Mitsui USA" and together with
Mitsui Japan, "Mitsui").
On January 31, 2001, the Company and Mitsui entered into a
Purchase Agreement (the "Purchase Agreement") pursuant to which, Mitsui agreed
to purchase at Closing (as described therein) 1,302,326 shares of voting common
stock par value 0.0001 per share of the Company subject to the terms and
conditions set forth therein.
If Mitsui desires to sell the shares of Common Stock, it may
be desirable to register such shares under the Securities Act (as defined
below).
As part of, and as consideration for, the acquisition of
shares of the Common Stock from the Company, the Company granted to Mitsui
certain registration and other rights with respect to its shares of Common Stock
pursuant to a Registration Rights Agreement among the Company, Mitsui Japan and
Mitsui USA dated as of February 28, 2001 ("Existing Agreement").
The parties wish to amend and restate in its entirety the
Existing Agreement to continue to provide for certain matters relating to the
registration and other rights with respect to Mitsui's shares of Common Stock,
on the terms and conditions provided in this Agreement.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" means "affiliate" as defined in Rule 405
promulgated under the Securities Act.
"AON" means Virginia Surety Company, Inc., a corporation
organized under the laws of the State of Illinois.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as it may be amended or restated from time to
time.
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"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
"Common Stock" means any shares of voting common stock, par
value $0.0001 per share, of the Company, now or hereafter authorized to be
issued, and, any and all securities of any kind whatsoever of the Company which
may be issued on or after the date hereof in respect of, in exchange for, or
upon conversion of shares of voting common stock pursuant to a merger,
consolidation, stock split, stock dividend, recapitalization of the Company or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Harvard" means Aeneas Venture Corporation, a Delaware
corporation."
"IMCG" means International Motor Cars Group I, L.L.C. and
International Motor Cars Group II, L.L.C.
"JPMP" means ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., a limited
partnership organized under the laws of the State of Delaware, and successor to
Chase Equity Associates, L.P., a limited partnership organized under the laws of
the State of California.
"JPMP/AON Registration Rights Agreement" means the
Registration Rights Agreement among the Company, JPMP and AON, dated as of
February 22, 2002.
"Penske" means (i) Penske Capital Partners, L.L.C., a limited
liability company organized under the laws of the State of Delaware, (ii) Penske
Corporation, a corporation organized under the laws of the State of Delaware,
(iii) except in the case of a registration of securities held by IMCG for the
account of JPMP and AON pursuant to the JPMP/AON Registration Rights Agreement,
IMCG and (iv) Penske Automotive Holdings Corp., a Corporation organized under
the laws of the State of Delaware.
"Penske Registrable Securities" refers collectively to the
"Registrable Securities" as defined in each of the Penske Registration Rights
Agreement.
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"Penske Registration Rights Agreements" means the Registration
Rights Agreement, dated May 3, 1999, by and among the Company, International
Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C., as
amended from time to time, and the Registration Rights Agreement, dated December
22, 2000, by and between the Company and Penske Automotive Holdings Corp., as
amended from time to time, and any subsequent agreement between the Company and
Penske or Penske Corporation granting to Penske or Penske Corporation
registration rights with respect to Common Stock.
"Person" means a corporation, an association, a partnership,
an organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Securities" means (i) any shares of Common Stock
owned by Mitsui, (ii) any shares of Common Stock that Mitsui may acquire after
the date hereof, and (iii) any shares of Common Stock issued with respect to the
Common Stock referred to in clause (i) by way of a stock dividend, stock split
or reverse stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
(a) when a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) when
such securities shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent public distribution of them shall not require
registration of them under the Securities Act, or (c) when such securities shall
have been sold in compliance with Rule 144 of the Securities Act. Any
certificate evidencing the Registrable Securities shall bear a legend stating
that the securities have not been registered under the Securities Act and
setting forth or referring to the restrictions on transferability and sale of
the securities.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section 2
hereof, including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters or Mitsui in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various
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jurisdictions), all word processing, duplicating and printing expenses, all
messenger and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of
"cold comfort" letters or any special audits required by, or incident to, such
registration, all fees and disbursements of underwriters (other than
underwriting discounts and commissions), all transfer taxes and all fees and
expenses of counsel to Mitsui of up to a maximum of $50,000 per registration;
provided, however, that Registration Expenses shall exclude, and Mitsui shall
pay, underwriting discounts and commissions in respect of the Registrable
Securities being registered.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
2. Registration Under the Securities Act, etc.
2.1 Incidental Registration.
(a) Right to Include Registrable Securities.
If Penske exercises its right to cause the Company to effect the registration
under the Securities Act of all or part of the Penske Registrable Securities,
pursuant to any of the Penske Registration Rights Agreements, and if as a result
of exercising such right the Company proposes to register any of the Penske
Registrable Securities under the Securities Act by registration on Form ▇-▇, ▇-▇
or S-3 or any successor or similar form(s), the Company will each such time give
prompt written notice to Mitsui of its intention to register the Penske
Registrable Securities and of Mitsui's rights under this Section 2.1. Upon the
written request of Mitsui (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by Mitsui), made as promptly
as practicable and in any event within 30 days after the receipt of any such
notice (15 days if the Company states in such written notice or gives telephonic
notice to Mitsui, with written confirmation to follow promptly thereafter,
stating that (i) such registration will be on Form S-3 and (ii) such shorter
period of time is required because of a planned filing date), the Company shall
include in such registration under the Securities Act all Registrable Securities
which the Company has been so requested to register by Mitsui subject only to
the terms and conditions set forth herein. Notwithstanding anything to the
contrary contained in this Agreement, but subject in each case to the terms of
each Penske Registration Rights Agreement, the Company may in its
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discretion withdraw any registration commenced pursuant to this Section 2.1
without liability to the holders of Registrable Securities. The Company will pay
all Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 2.1.
(b) Right to Withdraw. Mitsui shall have the
right to withdraw its request for inclusion of any of its Registrable Securities
in any registration statement pursuant to this Section 2.1 at any time prior to
the execution of an underwriting agreement with respect thereto by giving
written notice to the Company of its request to withdraw.
(c) Priority in Incidental Registrations.
(i) Subject to clause (ii) below, if the managing underwriter of any
underwritten offering shall inform the Company by letter of its belief that the
number of Registrable Securities requested to be included in such registration,
when added to the number of other securities to be offered in such registration,
would materially adversely affect such offering, then the Company shall include
in such registration, (the "Section 2.1 Sale Amount"), (A) all of the securities
proposed by the Company to be sold for its own account; (B) thereafter, to the
extent the Section 2.1 Sale Amount is not exceeded, any other securities of the
Company requested to be included in such registration by JPMP, AON, Mitsui,
Penske and its Affiliates, and Harvard on a pro rata basis, with the amount of
securities of JPMP, AON, Mitsui, Penske and its Affiliates, with respect to
securities not held for the account of JPMP and AON, and Harvard to be included
based on the pro rata amount of shares of Common Stock held, or obtainable by
exercise or conversion of other securities of the Company, by JPMP, AON, Mitsui,
Penske and its Affiliates, with respect to securities not held for the account
of JPMP and AON, and Harvard, it being understood that for purposes of this
Section 2.1(c) JPMP and AON shall be deemed to "hold" that aggregate number of
Registrable Securities held by IMCG for the account of each of JPMP and AON; and
(D) thereafter, to the extent the Section 2.1 Sale Amount is not exceeded, any
other holder of Company securities entitled to register such securities.
(ii) Notwithstanding anything contained
herein to the contrary, with respect to the first primary offering of securities
of the Company following the date of this Amendment Agreement, the Company shall
have no obligation to register any Registrable Securities so long as none of
Penske or any of its Affiliates shall have exercised their rights to cause the
Company to effect the registration under the Securities Act of all or part of
the Penske Registrable Securities, pursuant to any of the Penske Registration
Rights Agreements.
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(d) The Company represents and warrants
that, as of the date hereof, no Person has rights to require the Company to
effect the registration under the Securities Act of Common Stock, except as
disclosed prior to the date hereof in the Company's filings with the U.S.
Securities and Exchange Commission.
(e) After the date hereof, the Company shall
not grant to any Person, rights to require the Company to effect a registration
under the Securities Act of Common Stock unless the Company simultaneously
enters into an amendment of this Agreement pursuant to which Mitsui will be
granted rights to require the Company to effect a registration under the
Securities Act of Common Stock that are equal to the rights granted to such
Person.
(f) After the date hereof, the Company shall
not grant to any Person rights to include Common Stock in a registration under
the Securities Act of Common Stock that are more favorable to such Person than
the rights granted to Mitsui hereunder unless the Company simultaneously enters
into an amendment of this Agreement pursuant to which Mitsui will be granted
rights to include Common Stock in a registration under the Securities Act that
are equal to the rights provided to such Person.
2.2 Registration Procedures. If and whenever the
Company is required to use its reasonable best efforts to effect the
registration of any registrable securities under the Securities Act as provided
in the Penske Registration Rights Agreements and if, in such event, Mitsui is
entitled to register Registrable Securities pursuant to this Agreement, the
Company shall, unless and until either Mitsui has withdrawn its request or is no
longer entitled to include in such registration, all or any portion of the
Registrable Securities, as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect
such registration (and shall include all financial statements
required by the Commission to be filed therewith) and
thereafter use its reasonable best efforts to cause such
registration statement to become effective; provided, however,
that before filing such registration statement (including all
exhibits) or any amendment or supplement thereto or comparable
statements under securities or blue sky laws of any
jurisdiction, the Company shall as promptly as practicable
furnish such documents to Mitsui and each underwriter, if any,
participating
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in the offering of the Registrable Securities and their
respective counsel, which documents will be subject to the
reasonable review and comments of Mitsui, each underwriter and
their respective counsel; and provided, further, however, that
the Company may discontinue any registration of its securities
pursuant to Section 2.1 or which are not Registrable
Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) notify Mitsui of the Commission's requests for
amending or supplementing the registration statement and the
prospectus, and prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by
such registration statement for such period as shall be
required for the disposition of all of such Registrable
Securities in accordance with the intended method of
distribution thereof; provided, that except with respect to
any such registration statement filed pursuant to Rule 415
under the Securities Act, such period need not exceed 180
days;
(c) furnish, without charge, to Mitsui and each
underwriter such number of conformed copies of such
registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other
documents, as Mitsui and such underwriters may reasonably
request;
(d) use its reasonable best efforts (i) to register or
qualify all Registrable Securities and other securities
covered by such registration statement under such securities
or blue sky laws of such States of the United States of
America where an exemption is not available and as Mitsui or
any managing underwriter shall reasonably request, (ii) to
keep such registration or qualification in effect for so long
as such registration statement remains in effect, and (iii) to
take any other action which may be reasonably necessary
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or advisable to enable Mitsui to consummate the disposition in
such jurisdictions of the securities to be sold by Mitsui,
except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for
the requirements of this subsection (d) be obligated to be so
qualified or to consent to general service of process in any
such jurisdiction;
(e) furnish to Mitsui and each underwriter, if any,
participating in the offering of the securities covered by
such registration statement, a signed counterpart of (i) an
opinion of counsel for the Company, and (ii) a "comfort"
letter signed by the independent public accountants who have
certified the Company's or any other entity's financial
statements included or incorporated by reference in such
registration statement, covering substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent
to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants'
comfort letters delivered to the underwriters in underwritten
public offerings of securities (and dated the dates such
opinions and comfort letters are customarily dated) and, in
the case of the legal opinion, such other legal matters, and,
in the case of the accountants' comfort letter, such other
financial matters, as the underwriters, may reasonably
request;
(f) promptly notify Mitsui and each managing
underwriter, if any, participating in the offering of the
securities covered by such registration statement (i) when
such registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to such registration statement has
been filed, and, with respect to such registration statement
or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission for
amendments or supplements to such registration statement or
the prospectus related thereto or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (iv) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of
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any of the Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; (v) at any time
when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, in
the light of the circumstances under which they were made, and
in the case of this clause (v), at the request of Mitsui
promptly prepare and furnish to Mitsui and each managing
underwriter, if any, participating in the offering of the
Registrable Securities, a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers
of such securities, such prospectus shall not include 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 in the light of the
circumstances under which they were made;
(g) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve
months beginning with the first full calendar month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and
promptly furnish to Mitsui a copy of any amendment or
supplement to such registration statement or prospectus;
(h) provide and cause to be maintained a transfer agent
and registrar (which, in each case, may be the Company) for
all Registrable Securities covered by such registration
statement from and after a date not later than the effective
date of such registration;
(i) (i) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement
to be listed on the principal securities exchange on which
similar securities issued by the Company are then listed (if
any), if the listing of such Registrable Securities is then
permitted under the rules of such
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exchange, or (ii) if no similar securities are then so listed,
use its reasonable best efforts to (x) cause all such
Registrable Securities to be listed on a national securities
exchange or (y) failing that, secure designation of all such
Registrable Securities as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 of the Commission
or (z) failing that, to secure NASDAQ authorization for such
shares and, without limiting the generality of the foregoing,
to arrange for at least two market makers to register as such
with respect to such shares with the National Association of
Securities Dealers, Inc.;
(j) deliver promptly to counsel to Mitsui and each
underwriter, if any, participating in the offering of the
Registrable Securities, copies of all correspondence between
the Commission and the Company, its counsel or auditors;
(k) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement;
(l) provide a CUSIP number for all Registrable
Securities, no later than the effective date of the
registration statement; and
(m) make available its employees and personnel and
otherwise provide reasonable assistance to the underwriters
(taking into account the needs of the Company's business) in
their marketing of Registrable Securities.
The Company may require Mitsui to furnish the Company such information
regarding Mitsui and the distribution of the Registrable Securities as the
Company may need for the purpose of effecting a registration of Common Stock,
including Registrable Securities, under the Securities Act. The Company shall be
excused from any obligation to Mitsui hereunder to the extent that Mitsui's
failure to deliver such information has impaired the Company's ability to
perform its obligations hereunder and comply with applicable laws and
regulations under the Securities Act, and for so long as Mitsui has not
delivered such information to the extent required by applicable law.
Mitsui agrees that upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraph (f) (iii), (iv)
or
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(v) of this Section 2.2, Mitsui will, to the extent appropriate, discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until, in the case of paragraph (f)(v)
of this Section 2.2, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (f)(v) of this Section 2.2 and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in its possession, of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
2.3 Incidental Underwritten Offerings. In the case of
a registration pursuant to Section 2.1 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection therewith,
all of the Registrable Securities to be included in such registration shall be
subject to such underwriting agreements, and Mitsui shall be party to such
underwriting agreements in form and substance reasonably acceptable to it.
2.4 Indemnification.
(a) Indemnification by the Company. The
Company agrees that in the event of any registration of any securities of the
Company under the Securities Act, the Company shall indemnify and hold harmless
Mitsui, its respective directors, officers, members, partners, agents and
affiliates and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
Mitsui or any such underwriter within the meaning of the Securities Act, against
any losses, claims, damages, or liabilities, joint or several, to which Mitsui
or any such director, officer, member, partner, agent or affiliate or
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities, joint or
several (or actions or proceedings, whether commenced or threatened, in respect
thereof), arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made not misleading, and the Company shall reimburse Mitsui and each
such director, officer, member, partner, agent or affiliate, underwriter and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability,
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action or proceeding; provided that the Company shall not be liable in any such
case to Mitsui or any such director, officer, member, partner, agent, affiliate,
or controlling person to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Mitsui, specifically stating that it is for use in
the preparation thereof; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any person from whom the person asserting any such losses, claims,
damages or liabilities (the "Claimant") purchased securities, or any person
controlling such person, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendment or supplement
thereto) was not sent or given by or on behalf of such person to such Claimant,
if required by law to have been so delivered, at or prior to the written
confirmation of the sale of the securities sold to such Claimant, and if the
prospectus (as so amended and supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities. Such indemnity shall remain
in full force regardless of any investigation made by or on behalf of Mitsui or
any such director, officer, member, partner, agent, affiliate, underwriter or
controlling Person and shall survive the transfer of such securities by Mitsui.
(b) Indemnification by Mitsui. As a
condition to including any Registrable Securities in any registration statement,
Mitsui shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.4) the Company, and each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
but only to the extent such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of Mitsui specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 2.4(b) shall be limited to the amount of proceeds (net of
expenses and underwriting discounts and
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commissions) received by such indemnifying party in the offering giving rise to
such liability. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by Mitsui.
(c) Notices of Claims, etc. Promptly after
receipt by an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subsections of this
Section 2.4, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.4, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
otherwise than under this Section 2.4. In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
or proceeding include both the indemnified party and the indemnifying party and
if in the opinion of outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other indemnified parties
which are in conflict with or in addition to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to defend such action or proceeding on behalf of such indemnified party
or parties, provided, however, that the indemnifying party shall be obligated to
pay for only one counsel and one local counsel for all indemnified parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such indemnified
party for any legal expenses subsequently incurred by the latter in connection
with the defense thereof (unless the first proviso in the preceding sentence
shall be applicable). No indemnifying party shall be liable for any settlement
of any action or proceeding effected without its written consent. No
indemnifying party shall, without the
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consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification
provided for in this Section 2.4 shall for any reason be held by a court to be
unavailable to an indemnified party under subsection (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under subsection (a) or (b)
hereof, the indemnified party and the indemnifying party under subsection (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as shall be appropriate to reflect not only the relative
fault but also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities covered by such
registration statement as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 2.4(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the preceding sentence of this
Section 2.4(d). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld. Notwithstanding anything in this subsection (d) to the contrary, no
indemnifying party (other than the Company) shall be required to contribute any
amount in excess of the proceeds (net of expenses and underwriting discounts and
commissions) received by such party from the sale of the Registrable Securities
in the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate.
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(e) Other Indemnification. Indemnification
and contribution similar to that specified in the preceding subsections of this
Section 2.4 (with appropriate modifications) shall be given by the Company and
Mitsui with respect to any required registration or other qualification of
securities under any federal, state or blue sky law or regulation of any
governmental authority other than the Securities Act. The indemnification
agreements contained in this Section 2.4 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the transfer of any of the Registrable Securities by
Mitsui.
(f) Indemnification Payments. The
indemnification and contribution required by this Section 2.4 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred.
2.5 Unlegended Certificates. In connection with the
offering of any Registrable Securities registered pursuant to this Section 2,
the Company shall promptly after the sale of such Registrable Securities (i)
facilitate the timely preparation and delivery to Mitsui and the underwriters,
if any, participating in such offering, of unlegended certificates representing
ownership of such Registrable Securities being sold in such denominations and
registered in such names as requested by Mitsui or such underwriters, and (ii)
instruct any transfer agent and registrar of such Registrable Securities to
release any stop transfer orders with respect to any such Registrable
Securities.
2.6 No Required Sale. Nothing in this Agreement shall
be deemed to create an independent obligation on the part of Mitsui to sell any
Registrable Securities pursuant to any effective registration statement.
3. Rule 144. The Company shall take all actions reasonably
necessary to enable Mitsui to sell its Common Stock without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, or (ii) any similar rule or regulation hereafter
adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of Mitsui, the Company will deliver to such
holder a written statement as to whether it has complied with such requirements.
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4. Amendments and Waivers. This Agreement may be amended,
modified or supplemented only by written agreement of the parties.
5. Adjustments. In the event of any change in the
capitalization of the Company as a result of any stock split, stock dividend,
reverse split, combination, recapitalization, merger, consolidation, or
otherwise, the provisions of this Agreement shall be appropriately adjusted.
6. Notices. Except as otherwise provided in this Agreement,
all notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or by telecopy (with confirmation promptly sent by regular mail),
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(a) If to Mitsui to:
Mitsui & Co., Ltd.
First Motor Vehicles Div.
▇-▇, ▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
Attention: General Manager of First Motor Vehicles Div.
If to Mitsui USA:
Mitsui & Co. (U.S.A.), Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Manager,
Detroit Machinery & Automotive Department,
Second Machinery Division
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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(b) If to the Company, to it at:
United Auto Group
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
7. Assignment; Third Party Beneficiaries; Majority Controls.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by the Company, without the prior
written consent of Mitsui. Mitsui may, at its election, at any time or from time
to time, assign its rights or delegate its obligations under this Agreement, in
whole or in part, to any purchaser or other transferee of Registrable Securities
held by it; provided, however, that any rights to withdraw shares from inclusion
in a registration statement pursuant to Section 2 shall be made only by Mitsui
for itself and all such purchasers and transferees; and provided, further, that
any decision hereunder made by the holders of the majority of the Registrable
Securities shall be binding on all other holders of Registrable Securities.
8. Remedies. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
9. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not control or otherwise affect the meaning hereof.
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10. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights and obligations of the parties
hereto shall be governed by, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof which might result in the
application of the laws of any other jurisdiction. Each of the parties hereto
hereby irrevocably consents to submit to the jurisdiction of the courts of the
State of New York and the United States of America located in the County of New
York solely in respect of the interpretation and enforcement of the provisions
of this Agreement, and in respect of the transactions contemplated hereby (and
agrees not to commence any action or proceeding relating thereto except in such
courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in Section
6 hereof shall be effective service of process for any action or proceeding
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States
of America located in the County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in an
inconvenient forum.
11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision of
this Agreement is held unreasonable, unlawful or unenforceable in any respect,
such restriction or provision shall be interpreted, revised or applied in a
manner that renders it lawful and enforceable to the fullest extent possible
under law.
13. Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all further acts and things and shall execute
and deliver all other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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14. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
[Remainder of page left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officers thereunto duly
authorized.
UNITED AUTO GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
MITSUI & CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
MITSUI & CO. (U.S.A.), INC.
By: /s/ Shozabura Maruyama
----------------------------
Name: Shozabura Maruyama
Title:
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