EXHIBIT 10.32
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REGISTRATION RIGHTS AGREEMENT
AMONG
UNITED AUTO GROUP, INC., INTERNATIONAL MOTOR CARS GROUP I, L.L.C.,
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.,
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.,
AND
VIRGINIA SURETY COMPANY, INC.,
FEBRUARY 22, 2002
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REGISTRATION RIGHTS
AGREEMENT dated as of February 22, 2002
(this "Agreement"), among United Auto
Group, Inc., a Delaware corporation (the
"Company"), International Motor Cars Group
I, L.L.C., ("IMCG I"), a limited liability
company organized under the laws of the
State of Delaware, International Motor
Cars Group II, L.L.C., a limited liability
company organized under the laws of the
State of Delaware ("IMCG II," and together
with IMCG I, "IMCG"), ▇.▇. ▇▇▇▇▇▇ 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"), and Virginia Surety
Company, Inc., a corporation organized
under the laws of the State of Illinois
("AON").
WHEREAS, JPMP, AON, Penske Capital Partners, L.L.C., a limited
liability company organized under the laws of the State of Delaware ("Penske
Capital"), and Penske Corporation, a corporation organized under the laws of the
State of Delaware ("Penske Corporation," and together with Penske Capital,
"Penske") are parties to an Amended and Restated Limited Liability Company
Agreement dated as of the date hereof (as amended, the "IMCG I Operating
Agreement") for IMCG I.
WHEREAS, JPMP and Penske Capital are parties to an Amended and
Restated Limited Liability Company Agreement dated as of the date hereof, (as
amended, the "IMCG II Operating Agreement", and together with the IMCG I
Operating Agreement, the "Operating Agreements") for IMCG II.
WHEREAS, on February 1, 2002, IMCG I exercised Warrant No. 1
("Warrant No. 1") issuable for 3,915,580 shares of Voting Common Stock and
issued related Class A Units of IMCG I to the members thereof in accordance with
the provisions of the IMCG I Operating Agreement.
WHEREAS, on February 1, 2002, IMCG II exercised Warrant No. 2
("Warrant No. 2," and together with Warrant No. 1, the "Warrants") issuable for
1,106,113 shares of Non-Voting Common Stock and issued related Class B Units of
IMCG II to the members thereof in accordance with the provisions of the IMCG II
Operating Agreement.
WHEREAS, pursuant to agreements among IMCG, JPMP and AON, each
of JPMP and AON may, from time to time, cause IMCG to distribute shares of
Common Stock (as defined below) or securities convertible into Common Stock to
JPMP or AON, as the case may be.
WHEREAS, if JPMP or AON, after conversion of the Preferred
Stock or exercise of the Warrants, desires to sell shares of Common Stock
beneficially owned by JPMP and AON, it may be desirable to register such shares
under the Securities Act (as defined below).
WHEREAS, as part of, and as consideration for, the exercise of
the Warrants by IMCG on February 1, 2002, the Company hereby grants to IMCG,
JPMP and AON certain registration rights and other rights with respect to
certain shares of Voting Common Stock and Non-Voting Common Stock as more fully
set forth herein.
ACCORDINGLY, the parties hereto agree as follows:
ARTICLE I
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.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as it may be amended or restated hereafter from
time to time.
"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, and Non-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
Common Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise. Notwithstanding anything to the
contrary contained in this Agreement, the Company shall not be obligated to
register any Preferred Stock, Warrants or Non-Voting Common Stock.
"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.
"Mitsui" means, collectively, Mitsui & Co, Ltd., a Japanese
company and Mitsui & Co (U.S.A.), Inc., a New York corporation.
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"Non-Voting Common Stock" means any shares of non-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 Non-Voting Common Stock pursuant
to a merger, consolidation, stock split, stock dividend, recapitalization of the
Company or otherwise.
"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.
"Preferred Stock" means collectively, the Series A Preferred
Stock and the Series B Preferred Stock.
"Registrable Securities" means (i) any shares of Voting Common
Stock distributed or distributable to or saleable for the account of JPMP or AON
by IMCG I or IMCG II, as the case may be, (ii) any shares of Voting Common Stock
issued or issuable upon the conversion, exercise or exchange of any shares of
Preferred Stock, Warrants, Non-Voting Common Stock or any other Common Stock
equivalents distributed or distributable to JPMP or AON by IMCG I or IMCG II, as
the case may be, and (iii) any shares of Common Stock issued with respect to the
Common Stock referred to in clauses (i) or (ii) 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, in the unqualified opinion of counsel to JPMP with respect to
securities held by or, distributed or distributable to JPMP or AON with respect
to securities held by, or distributed or distributable to AON, as applicable,
require registration of them under the Securities Act, or (c) when such
securities shall have been sold as permitted by, and in compliance with, the
Securities Act. Any certificate evidencing the Registrable Securities which are
restricted from free resale 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 JPMP or AON in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various 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
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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 (i) JPMP, up to a maximum of
$50,000 per registration, and (ii) AON, up to a maximum of $20,000 per
registration; provided, however, that Registration Expenses shall exclude, and
JPMP and AON shall pay, any applicable underwriting discounts and commissions,
if any, in respect of their respective 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.
"Series A Preferred Stock" means the Series A Convertible
Preferred Stock, par value $0.0001 per share, of the Company, which shares of
Series A Preferred Stock are convertible into shares of Voting Common Stock.
"Series B Preferred Stock" means the Series B Convertible
Preferred Stock, par value $0.0001 per share, of the Company, which shares of
Series B Preferred Stock are convertible into shares of Non-Voting Common Stock.
"Standstill Shares" means the sum of (i) 3,122,449 Registrable
Securities held by IMCG for the account of JPMP and (ii) 1,377,551 Registrable
Securities held by IMCG for the account of AON.
"Voting 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.
When reference is made herein to Registrable Securities held by IMCG
for the account of JPMP or AON (or similar references) such references shall be
to shares of capital stock of the Company contained in the JPMP Share Account or
the AON Share Account (as each such term is defined in the applicable Operating
Agreement(s)) held by IMCG for the account of such Persons.
ARTICLE II
REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION.
(a) Registration. The Company shall effect two (2) registrations
under the Securities Act of all of the Registrable Securities by means of a
shelf registration pursuant to Rule 415 of the Securities Act (or other
applicable rule), in accordance with Section 2.1(h) hereof. The Company (i)
shall effect such registration under the Securities Act of the Registrable
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Securities, (ii) shall use its best efforts to obtain acceleration of the
effective date of the registration statement relating to such registration, and
(iii) shall maintain the effectiveness of each such registration with respect to
the Registrable Securities held by IMCG for the respective accounts of each of
JPMP and AON, as applicable, until such time as the Company receives an
unqualified opinion of counsel to each of JPMP with respect to Registrable
Securities held by IMCG for the account of JPMP and AON, with respect to
Registrable Securities held by IMCG for the account of AON, as applicable, that
the Registrable Securities held by IMCG for the respective account of each of
JPMP and AON, in each case, such opinion to be reasonably acceptable to the
Company, to which such registration relates may be freely transferred pursuant
to Rule 144(k) promulgated under the Securities Act.
(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1, the Company may, upon notice
to JPMP and AON, include securities of the Company which are held by Persons
who, by virtue of agreements with the Company, are entitled to include such
securities, in each case, in any such registration (the "Other Stockholders").
(c) Registration Statement Form. Registrations under this Section 2.1
shall be on such appropriate registration form of the Commission as shall be
selected by the Company and as shall be reasonably acceptable to JPMP, after
consultation with AON.
(d) Expenses. The Company shall pay all Registration Expenses (except
as set forth in the definition of Registration Expenses) in connection with any
registration pursuant to this Section 2.1.
(e) Effective Registration Statement. A registration pursuant to this
Section 2.1 shall not be deemed to have been effected (including for purposes of
paragraph (h) of this Section 2.1) (i) unless a registration statement with
respect thereto has become effective and has been kept continuously effective
for such period of time referred to in clause (iii) of Section 2.1(a) (or such
shorter period which shall terminate when all the Registrable Securities covered
by such registration statement have been sold pursuant thereto), (ii) if after
it has become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to JPMP and has not thereafter
become effective, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived.
(f) Underwritten Offering; Selection of Underwriters.
(i) JPMP and AON shall be entitled to one (1) underwritten
offering of Registrable Securities at JPMP's request; provided, however,
that neither JPMP nor AON shall be entitled to an underwritten offering of
Registrable Securities pursuant to this Section 2.1 until August 1, 2003,
it being understood that the foregoing restriction shall not apply to any
registration of Registrable Securities pursuant to Section 2.2 and shall
not preclude sales on securities, exchanges, or in the over-the-counter
markets, and, provided, further, that in the event that such underwritten
offering is not consummated or
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the registration statement with respect thereto is withdrawn, such
underwritten offering shall not count for purposes of this clause (i), it
being understood, however, that JPMP shall not be entitled to request more
than one (1) underwritten offering within any twelve (12) month period.
(ii) The underwriters of each underwritten offering of the
Registrable Securities to be so registered pursuant to this Section 2.1
shall be selected by JPMP, after consultation with AON, and shall be
subject to the approval of the Company, not to be unreasonably withheld or
delayed.
(g) Right to Withdraw. If the managing underwriter of any underwritten
offering shall advise JPMP and AON that the Registrable Securities covered by
the registration statement cannot be sold in such offering within a price range
acceptable to either JPMP or AON, then each of JPMP and AON shall have the right
to notify the Company in writing that such party has determined that the
registration statement with respect to the Registrable Securities held by JPMP
or AON, as applicable, be abandoned or withdrawn, in which event the Company
shall abandon or withdraw such registration statement with respect to the
Registrable Securities held by JPMP or AON, as applicable.
(h) Terms of Registration.
(i) Pursuant to the terms and provisions of this Section 2.1,
the Company shall effect two (2) shelf registrations of Registrable
Securities in accordance with the following:
(ii) The Company shall effect the first such shelf registration
pursuant to Rule 415 of the Securities Act (the "Initial Shelf
Registration") in accordance with the following provisions:
(A) in the event that the Company files a registration
statement with the Commission and such registration has been declared
effective on or before May 1, 2002, then the Company shall have the
Initial Shelf Registration declared effective on or prior to the day
immediately following the expiration of any "lock-up" period applicable
to IMCG, JPMP and AON pursuant to any related underwriting agreement,
it being agreed between the Company, IMCG, JPMP and AON that in no
event shall such "lock-up" period last longer than ninety (90) days; or
(B) in the event that (1) the Company does not file a
registration statement with the Commission or (2) a registration
statement has been filed but not declared effective on or before May 1,
2002, then the Company shall have the Initial Shelf Registration
declared effective on May 2, 2002.
(iii) The number of Registrable Securities that the Company
shall include in the Initial Shelf Registration shall be equal to the
difference between (X) the aggregate number of Registrable Securities held
by IMCG for the respective account of each of
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JPMP and AON minus (Y) the sum of (i) the aggregate number of Registrable
Securities actually sold by JPMP and AON in a registration effected
pursuant to clause (A) above and (ii) the Standstill Shares.
(iv) The Company shall have the second such shelf registration
pursuant to Rule 415 of the Securities Act (the "Second Shelf
Registration"), contemplated by Section 2.1(a) hereof, declared effective
by the Commission on or before February 1, 2003.
(v) The number of Registrable Securities that the Company shall
include in the Second Shelf Registration shall be equal to the number of
Registrable Securities that were not registered pursuant to the Initial
Shelf Registration, but shall in no event be less than the number of
Standstill Shares.
(i) Plan of Distribution. Subject to the provisions of this Agreement,
each of the Initial Shelf Registration and the Second Shelf Registration shall
include a plan of distribution of Registrable Securities as JPMP and AON deem
necessary and appropriate following consultation with the Company.
(j) Postponement. The Company shall not postpone the filing of any
registration statement required to be prepared and filed by it pursuant to this
Section 2.1 for any reason.
(k) Lock-up. From and after the date hereof, in the event that (i)
either of the Initial Shelf Registration or the Second Shelf Registration has
been declared effective and (ii) the Company has notified JPMP and AON of its
bona fide intent to consummate a public offering of primary securities, each of
IMCG, JPMP and AON hereby agree to be bound to a customary underwriting
"lock-up" period in connection with such offering, such "lock-up" period to
commence on the date that the public offering price is determined and shall last
no longer than 90 days; provided, that JPMP and AON shall only be subject to
such "lock-up" period if all officers, directors and 5% or more shareholders of
the Company are subject to such "lock-up" period in connection with such
offering. Notwithstanding the foregoing or anything else contained herein to the
contrary, neither JPMP, AON nor IMCG, with respect to any Registrable Securities
it holds for the account of JPMP and AON, shall be obligated to agree, or be
subject, to more than one "lock-up" period within any twelve-month period.
2.2 INCIDENTAL REGISTRATION.
(a) Right to Include Registrable Securities. If the Company at any time
proposes to register any of its securities under the Securities Act by
registration on Form ▇-▇, ▇-▇ or S-3 or any successor or similar form(s) (except
registrations on any Form ▇-▇, ▇-▇ or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation or acquisition of a business), whether or not
for sale for its own account, it will each such time give prompt written notice
to JPMP and AON of its intention to do so and of JPMP's and AON's rights under
this Section 2.2. Upon the written request of JPMP and AON (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by each of JPMP and AON), made as promptly as
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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 JPMP and AON, 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
use its reasonable best efforts to include in such registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by JPMP and AON (it being understood that any shares
included in such offering by JPMP and AON shall be calculated on a pro rata
basis, among JPMP and AON, determined with respect to all Registrable Securities
held by IMCG for the respective account of each of JPMP and AON (on a fully
diluted basis) on the date hereof). Notwithstanding anything to the contrary
contained in this Agreement, the Company may in its discretion withdraw any
registration commenced pursuant to this Section 2.2 without liability to the
holders of Registrable Securities. No registration effected under this Section
2.2 shall relieve the Company of its obligation to effect any registration under
Section 2.1. The Company will pay all Registration Expenses in connection with
any registration of Registrable Securities requested pursuant to this Section
2.2.
(b) Right to Withdraw. Each of JPMP and AON shall have the right to
withdraw its respective request for inclusion of its Registrable Securities held
by IMCG for its respective account in any registration statement pursuant to
this Section 2.2 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 2.2 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 2.2 Sale Amount is not exceeded, any other securities of the
Company requested to be included in such registration by such Person
initiating or demanding such registration; (C) thereafter, to the extent
the Section 2.2 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 2.2(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 2.2 Sale Amount is not exceeded, any other
holder of Company securities entitled to register such securities.
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(ii) Notwithstanding anything contained herein to the contrary,
with respect to the first primary offering of securities of the Company
following the date hereof, in the event that the managing underwriter
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 (A) all of the securities
proposed by the Company to be sold for its own account, (B) thereafter, to
the extent the Section 2.2 Sale Amount is not exceeded, any other
securities of the Company requested to be included in such registration by
JPMP, AON and Harvard up to an aggregate amount of 2,000,000 shares of
Common Stock (allocated among JPMP, AON and Harvard, such allocation to be
calculated on a pro rata basis among JPMP, AON and Harvard, determined
with respect to all shares of Common Stock held, or obtainable by
exercise, conversion or distribution of other securities of the Company,
by Harvard and IMCG (only with respect to those securities held by IMCG
for the respective accounts of JPMP and AON) (on a fully diluted basis) on
the date hereof), (C) thereafter, to the extent that the Section 2.2 Sale
Amount is not exceeded, any other securities of the Company requested to
be included in such registration by JPMP, AON and Harvard up to an
aggregate amount of 1,000,000 shares of Common Stock (allocated on a 3:1
ratio between Harvard, on the one hand, and JPMP and AON collectively, on
the other hand (allocated between JPMP and AON based upon their pro-rata
interests in IMCG on the date hereof) and (D) thereafter, to the extent
that the Section 2.2 Sale Amount is not exceeded, any other Registrable
Securities requested to be included in such registration by JPMP and AON
(allocated between JPMP and AON based upon their pro-rata interests in
IMCG on the date hereof).
(d) Plan of Distribution. Any participation by holders of Registrable
Securities in a registration by the Company pursuant to this Section 2.2 shall
be in accordance with the Company's plan of distribution.
2.3 REGISTRATION PROCEDURES.
If and whenever the Company is required to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2.1 and
2.2 hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as reasonably
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 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 IMCG, JPMP, AON and each underwriter, if any, participating in the
offering of the Registrable Securities and their respective counsel, which
documents will be subject to the reasonable review and comments of JPMP, AON,
each underwriter and their respective counsel; and provided, further, however,
that the Company may
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discontinue any registration of its securities pursuant to Section 2.2 or which
are not Registrable Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) notify IMCG, JPMP and AON 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 IMCG, JPMP, AON 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 JPMP, AON 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 JPMP, AON 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 or
advisable to enable IMCG, JPMP and AON to consummate the disposition in such
jurisdictions of the securities to be sold by JPMP and AON, 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 IMCG, JPMP, AON 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, JPMP or AON may reasonably request;
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(f) promptly notify IMCG, JPMP, AON 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 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 JPMP or AON promptly prepare and furnish to JPMP or AON, as the
case may be, 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; and
(vi) at any time when the representations and warranties of the Company
contemplated by Section 2.4(a) hereof cease to be true and correct;
(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 JPMP and AON 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) 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 exchange, or (ii) if no similar securities are then so listed, use
its commercially reasonable efforts to (x) cause all such Registrable Securities
to be listed on a national securities exchange or failing that, (y) secure
designation of all such Registrable Securities as a NASDAQ "national market
system security" within the meaning of
11
Rule 11Aa2-1 of the Commission or failing that, (z) 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 IMCG, JPMP, AON 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 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 (including Company
management) and otherwise provide reasonable assistance to IMCG, JPMP, AON and
the underwriters (taking into account the needs of the Company's business) in
their marketing of Registrable Securities, including, without limitation, the
participation and cooperation of such employees and personnel (including Company
management) in any "road show" or similar event undertaken by IMCG, JPMP, AON or
the underwriters.
The Company may require IMCG, JPMP and AON to furnish the Company
such information regarding IMCG, JPMP and AON and the distribution of the
Registrable Securities as the Company may from time to time reasonably request
in writing to comply with its obligations hereunder. The Company shall be
released from any obligation to JPMP or AON hereunder for so long as JPMP or
AON, as the case may be, has not delivered such information to the extent
required for purposes of the registrations.
Each of JPMP and AON 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 (v) of this Section 2.3, JPMP or AON, as the case may be, 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 paragraphs (f)(iii) and (f)(iv) of this Section 2.3, such
stop order, suspension, or other proceeding has been terminated, and, in the
case of paragraph (f)(v) of this Section 2.3, its receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (f)(v) of this
Section 2.3 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. If the disposition by JPMP or AON, as the
case may be, of its securities is discontinued pursuant to the foregoing
sentence, the Company shall extend the period of effectiveness of the
registration statement required pursuant to Section 2.3(b) by the number of days
during the period from and including the date of the giving of notice to and
including the date when JPMP or AON, as the case may be, shall have received
copies of the supplemented or amended prospectus contemplated by paragraph
(f)(v) of this Section 2.3.
12
2.4 UNDERWRITTEN OFFERINGS.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering requested by JPMP pursuant to a
registration under Section 2.1, the Company shall enter into a customary
underwriting agreement (in the form of underwriting agreement used at such time
by the managing underwriter(s)) with a managing underwriter or underwriters
selected pursuant to Section 2.1(f) which shall contain such terms as are
generally prevailing in agreements of the managing underwriter(s), including,
without limitation, their customary provisions relating to indemnification and
contribution (the "Customary Terms"), it being agreed that such Customary Terms
relating to indemnification and contribution of the underwriter by the Company
shall supercede the provisions of Section 2.6 hereof insofar as those provisions
of Section 2.6 relate to indemnification and contribution of the underwriter by
the Company. If required by the underwriters, IMCG, JPMP and AON (if
participating in the offering) shall be party to such underwriting agreement and
may, at their respective option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters shall also be made to and for the benefit
of IMCG, JPMP and AON, and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of JPMP and AON. Neither JPMP nor AON shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding JPMP or AON, their respective ownership of and title to the
Registrable Securities, and their respective intended methods of distribution
and other representations that constitute Customary Terms, and any liability of
JPMP or AON to any underwriter or other person under such underwriting agreement
shall be several and not joint, and shall be limited to liability arising from
breach of their respective representations and warranties and shall be limited
to an amount equal to the proceeds (net of expenses and underwriting discounts
and commissions) that each of JPMP and AON, respectively, derives from such
registration.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 2.2 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.
2.5 PREPARATION; REASONABLE INVESTIGATION.
In connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement, the Company will
give each of IMCG, JPMP and AON, their respective underwriters, if any, and
their respective counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and give each of them such reasonable
access to its books and records and such reasonable opportunities to discuss the
business of the Company with its officers and employees and the independent
public accountants who have certified its financial statements, and supply all
other information reasonably requested by each of them, as shall be
13
necessary or appropriate, in the opinion of JPMP or AON, and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.6 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 each of JPMP and AON, their
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 JPMP or AON or any
such underwriter within the meaning of the Securities Act, against any losses,
claims, damages, expenses, or liabilities, joint or several, to which JPMP or
AON 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, expenses 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 JPMP, AON 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, action or proceeding; provided that the Company shall not be liable
in any such case to JPMP, AON, or any such director, officer, member, partner,
agent, affiliate, underwriter, 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 JPMP or AON, as the case may be,
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, expenses 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 JPMP, AON or any such director, officer,
member, partner, agent, affiliate, underwriter or controlling Person and shall
survive the transfer of such securities by JPMP or AON, as the case may be.
14
(b) Indemnification by JPMP and AON. As a condition to including any
Registrable Securities in any registration statement, each of JPMP and AON,
severally and not jointly, shall indemnify and hold harmless (in the same manner
and to the same extent as set forth in paragraph (a) of this Section 2.6) 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 JPMP or AON, as the case may be, 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 2.6(b) shall be
limited to the amount of proceeds (net of expenses and underwriting discounts
and 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 JPMP or AON, as the case may be.
(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 2.6, 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 2.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. 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
15
for any settlement of any action or proceeding effected without its written
consent. No indemnifying party shall, without the 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
2.6 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, expenses 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, expense 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 2.6(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 2.6(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, expenses or liabilities of the indemnified parties relate.
(e) Other Indemnification. Indemnification and contribution similar to
that specified in the preceding subsections of this Section 2.6 (with
appropriate modifications) shall be given by the Company, JPMP, and AON 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 2.6 shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
(other than any applicable underwriting agreement) 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 JPMP or AON, as the case may be.
16
(f) Indemnification Payments. The indemnification and contribution
required by this Section 2.6 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.
2.7 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 JPMP, AON 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 JPMP, AON 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.
2.8 NO REQUIRED SALE.
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of JPMP or AON to sell any Registrable Securities
pursuant to any effective registration statement.
2.9 ACTION BY IMCG.
Notwithstanding anything contained herein to the contrary, IMCG shall
not take any action for, or exercise any right on behalf of, JPMP or AON without
the prior direction or approval of JPMP or AON, as applicable, and IMCG agrees
to take all necessary actions to effectuate the terms of this Agreement on
behalf of JPMP and AON or otherwise. Furthermore, and for the avoidance of
doubt, in the event of a liquidating distribution or dissolution of any of IMCG
I or IMCG II, the rights of JPMP and AON hereunder shall not be effected in any
way, and JPMP and AON shall continue to be entitled to the rights and benefits
of this Agreement with respect to any Registrable Securities held by JPMP or
AON, as the case may be.
ARTICLE III
RULE 144
The Company shall take all actions reasonably necessary to enable
holders of Registrable Securities to sell such securities without registration
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144, 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 JPMP or AON, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
17
ARTICLE IV
AMENDMENTS AND WAIVERS
This Agreement may be amended, modified or supplemented only by written
agreement of the party against whom enforcement of such amendment, modification
or supplement is sought.
ARTICLE V
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.
ARTICLE VI
NOTICE
All notices and other communications hereunder shall be in writing and,
unless otherwise provided herein, shall be deemed to have been given when
received by the party to whom such notice is to be given at its address set
forth below, or such other address for the party as shall be specified by notice
given pursuant hereto:
(a) If to JPMP, to it at:
c/o ▇.▇. ▇▇▇▇▇▇ Partners, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to:
▇'▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.;
(b) If to AON, to it at:
Virginia Surety Company, Inc.
c/o Aon Advisers, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
18
with a copy to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
(c) If to the Company, to it at:
United Auto Group, Inc.
c/o Penske Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
(d) If to IMCG I, to it at:
c/o Penske Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(e) If to IMCG II, to it at:
c/o Penske Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
ARTICLE VII
ASSIGNMENT; THIRD PARTY BENEFICIARIES
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 or IMCG, without the
prior written consent of JPMP and AON. JPMP or AON may, at its election, at any
time or from time to time, assign its rights under this Agreement, in whole or
in part, to any of its Affiliates; provided, however, that any rights to
withdraw shares from inclusion in a registration statement pursuant to Section 2
shall be made only by JPMP or AON for itself and all such Affiliates.
19
ARTICLE VIII
REMEDIES
The parties hereto acknowledge and agree that irreparable damage would
occur in the event that any provision of this Agreement was not performed in
accordance with its specific terms or was otherwise breached, and further
acknowledge and agree that money damages are an inadequate remedy for the breach
of this Agreement because of the difficulty of ascertaining the amount of damage
that would be suffered in the event of such breach. The parties hereto
accordingly agree that they each shall be entitled to obtain specific
performance of any provision of this Agreement and injunctive or other equitable
relief to prevent or cure breaches of any provision of this Agreement, this
being in addition to any other remedy to which they may be entitled by law or
equity.
The parties hereto further agree that they shall not be permitted or
have the right to terminate or suspend performance of any provision of this
Agreement, it being agreed that all provisions of this Agreement shall continue
and be specifically enforceable in all events and under all circumstances
regardless of any events, occurrences, actions or omissions before or after the
date hereof. In furtherance of the foregoing, the parties hereto agree that they
shall not be permitted to, and shall not, bring any claim seeking to terminate
or suspend performance of any provision of this Agreement or seeking any
determination that any provision of this Agreement (including, without
limitation, this Article VIII) is invalid, inapplicable or unenforceable. 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.
ARTICLE IX
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.
ARTICLE X
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. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and the United States of America located in the County
of New York for any action or proceeding arising out of or relating to this
Agreement and 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
20
document by U.S. registered mail to its respective address set forth in Article
VI 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.
ARTICLE XI
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.
ARTICLE XII
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.
ARTICLE XIII
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.
ARTICLE XIV
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.
21
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
VIRGINIA SURETY COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
INTERNATIONAL MOTOR CARS GROUP I,
L.L.C.
By: Penske Capital Partners, L.L.C.
as Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.
By: Penske Capital Partners, L.L.C.
as Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer