EXHIBIT 2
SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
BY AND AMONG
AENEAS VENTURE CORPORATION,
INTERNATIONAL MOTOR CARS GROUP I, L.L.C.,
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.,
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.,
MITSUI & CO., LTD.,
MITSUI & CO. (U.S.A.), INC.,
PENSKE CORPORATION,
PENSKE CAPITAL PARTNERS, L.L.C.,
PENSKE AUTOMOTIVE HOLDINGS CORP.,
VIRGINIA SURETY COMPANY, INC.
AND
UNITED AUTO GROUP, INC.
Dated as of February 22, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................ 2
1.1 Definitions........................................................................ 2
1.2 Rules of Construction.............................................................. 5
ARTICLE II BOARD COMPOSITION AND VOTING AGREEMENTS........................................... 5
2.1 Board Composition.................................................................. 5
2.2 Composition of Committees of the Board of Directors................................ 5
2.3 Voting Agreement................................................................... 6
2.4 Reduction in Right of PCP Entities to Designate Directors.......................... 6
2.5 Suspension of Right to Designate Directors......................................... 6
2.6 Replacement Directors.............................................................. 6
2.7 Termination of Article II.......................................................... 7
2.8 Quorum............................................................................. 7
ARTICLE III STANDSTILL PROVISIONS............................................................ 7
3.1 Standstill Provisions.............................................................. 7
3.2 Exceptions to the Standstill Provisions............................................ 8
3.3 Standstill Provisions applicable to JPMP and AON................................... 8
3.4 Exceptions to the Standstill Applicable to JPMP and AON............................ 9
3.5 Penske Standstill with respect to Company Offering................................. 9
3.6 Action by PCP Entities............................................................. 10
ARTICLE IV TRANSFER RESTRICTIONS............................................................. 10
4.1 Right of First Offer............................................................... 10
4.2 Tag-Along Rights................................................................... 12
4.3 Transferees; Noncomplying Transfers................................................ 12
ARTICLE V CERTAIN COVENANTS.................................................................. 13
5.1 Legend on Certificates............................................................. 13
5.2 ▇▇▇▇▇ ▇▇▇▇▇▇ to Serve as Chairman and Chief Executive Officer...................... 14
5.3 Registration Rights Agreement...................................................... 14
5.4 Regulatory Matters................................................................. 15
5.5 Confidentiality Obligation......................................................... 15
5.6 Further Assurances................................................................. 16
ARTICLE VI MUTUAL REPRESENTATIONS AND WARRANTIES............................................. 16
6.1 Organization....................................................................... 16
6.2 Authorization, Validity and Enforceability......................................... 16
6.3 No Violation or Breach............................................................. 16
ARTICLE VII TERM............................................................................. 17
7.1 Term............................................................................... 17
7.2 Effects of Termination............................................................. 17
ARTICLE VIII MISCELLANEOUS PROVISIONS........................................................ 17
8.1 Survival........................................................................... 17
8.2 Notices............................................................................ 17
8.3 Amendments......................................................................... 19
8.4 Assignment and Parties in Interest................................................. 19
8.5 Expenses........................................................................... 20
8.6 Entire Agreement................................................................... 20
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8.7 Descriptive Headings............................................................... 20
8.8 Counterparts....................................................................... 20
8.9 Governing Law; Jurisdiction........................................................ 20
8.10 Severability....................................................................... 21
8.11 Specific Performance............................................................... 21
8.12 Transfers to Affiliates............................................................ 21
8.13 Public Filings..................................................................... 22
Exhibits
Exhibit A - Form of Registration Rights Agreement
Exhibit B - Form of Regulatory Sideletter
Schedules
Schedule 5.3 - Agreements granting registration rights
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THIS SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT (the "Agreement")
dated as of February 22, 2002 by and among
AENEAS VENTURE CORPORATION, a Delaware
corporation ("Harvard"), INTERNATIONAL MOTOR
CARS GROUP I, L.L.C., a Delaware limited
liability company ("PCP I"), INTERNATIONAL
MOTOR CARS GROUP II, L.L.C., a Delaware
limited liability company ("PCP II" and,
together with PCP I, the "PCP Entities"),
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"),
PENKSE CORPORATION, a Delaware corporation
("Penske Corporation"), PENSKE AUTOMOTIVE
HOLDINGS CORP., a Delaware corporation
("Penske Holdings"), PENSKE CAPITAL
PARTNERS, L.L.C., a Delaware limited
liability company ("Penske Capital," and
together with Penske Corporation and Penske
Holdings, "Penske"), and UNITED AUTO GROUP,
INC., a Delaware corporation (the
"Company").
WHEREAS, Harvard, the PCP Entities, Penske Capital, Penske
Corporation, Mitsui and the Company are parties to a certain Amended and
Restated Stockholders Agreement dated as of February 28, 2001 (the "Existing
Agreement");
WHEREAS, the parties to the Existing Agreement wish to amend
and restate in its entirety the Existing Agreement to continue to provide for
certain matters relating to the ownership and transfer of the Common Stock, and
to bind new parties to such Existing Agreement, on the terms and conditions
provided in this Agreement.
NOW, THEREFORE, in consideration of the promises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings specified below:
"Adjusted Beneficial Ownership" has the meaning set forth in
Section 2.4.
"Affiliate" means "affiliate" as defined in Rule 405
promulgated under the Securities Act.
"AON" means Virginia Surety Company, Inc., an Illinois
corporation.
"AON Standstill Shares" has the meaning set forth in Section
3.3.
"Beneficial Ownership" means "beneficial ownership" as defined
in Rule 13d-3 promulgated under the Exchange Act. The term "Beneficial Owner"
shall have a correlative meaning.
"Business Day" means a calendar day, other than (a) a Saturday
or Sunday, and (b) a day on which commercial banks are required or permitted by
law or other governmental action to close in New York, New York, United States
of America and Tokyo, Japan.
"Common Stock" means the voting Common Stock, par value $.0001
per share, and non-voting Common Stock, par value $.0001 per share, of the
Company, and includes any securities issued with respect to such shares by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, amalgamation, merger, consolidation or other reorganization or
otherwise.
"Company" has the meaning set forth in the recitals hereto.
"Direction Letters" means the each of (i) the direction letter
dated as of the date hereof among PCP I, JPMP, AON, Penske Capital and Penske
Corporation and (ii) the direction letter dated as of the date hereof among PCP
II, JPMP and Penske Capital.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Harvard" has the meaning set forth in the preamble.
"Independent Directors" means persons nominated by the
immediately preceding directors who (i) were initially nominated by the audit
committee of the Company and (ii) are not Affiliates of either the PCP Entities
or their respective Affiliates (other than the Company).
"Indication of Intent" has the meaning set forth in Section
4.1.
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"JPMP" means ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., a Delaware
limited partnership, and successor to Chase Equity Associates, L.P., a
California limited partnership.
"JPMP Standstill Shares" has the meaning set forth in Section
3.3.
"Limited Transfer Period" has the meaning set forth in Section
4.1.
"Mitsui" has the meaning set forth in the preamble.
"Operating Agreements" means each of (i) the Amended and
Restated Limited Liability Company Agreement for PCP I and (ii) the Amended and
Restated Limited Liability Company Agreement for PCP II, each dated as of the
date hereof, and each as amended from time to time.
"PCP Directors" has the meaning set forth in Section 2.1.
"PCP Entities" has the meaning set forth in the preamble.
"PCP I" has the meaning set forth in the preamble.
"PCP II" has the meaning set forth in the preamble.
"Penske" has the meaning set forth in the recitals hereto.
"Penske Capital" has the meaning set forth in the preamble.
"Penske Corporation" has the meaning set forth in the
preamble.
"Penske Holdings" has the meaning set forth in the preamble.
"Penske Offer" has the meaning set forth in Section 4.1.
"Penske Purchase Amount" has the meaning set forth in Section
4.1.
"Penske Rejection" has the meaning set forth in Section 4.1.
"Permitted Transferee" of a person means (a) a corporation,
partnership or other entity wholly owned by such person; provided, that such
corporation, partnership or other entity shall agree in writing that it shall
transfer to such person any Restricted Securities which it holds prior to such
time as it ceases to be wholly owned by such person, and (b) the equity owners
of such person to the extent such equity owners receive a pro rata distribution
of Restricted Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof, as amended, among JPMP, AON, the Company
and the other parties thereto.
"Regulatory Sideletter" has the meaning set forth in Section
5.4.
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"Rejected Shares" has the meaning set forth in Section 4.1.
"Rejected Share Transfer Period" has the meaning set forth in
Section 4.1.
"Restricted Securities" means any Common Stock or other equity
security of the Company Beneficially Owned by a Restricted Stockholder and any
securities convertible, exercisable or exchangeable for Common Stock or such
other equity securities, including, without limitation, the Series A Preferred
Stock, the Series B Preferred Stock and the Warrants.
"Restricted Stockholder" means each of Harvard, Penske, the
PCP Entities and Mitsui.
"Section 3.3 Standstill Period" has the meaning set forth in
Section 3.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means the Series A Convertible
Preferred Stock, par value $.000l per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible
Preferred Stock, par value $.000l per share, of the Company.
"Standstill Shares" has the meaning set forth in Section 3.3.
"Tag-Along Notice" has the meaning set forth in Section 4.2.
"Tag-Along Stockholders" has the meaning set forth in Section
4.2.
"Transfer" means any direct or indirect transfer, sale,
assignment, gift, pledge, mortgage, hypothecation or other disposition of any
interest. The terms "Transferee," "Transferor," "Transferred," and
"Transferable" shall each have a correlative meaning.
"Transfer Amount" has the meaning set forth in Section 4.1.
"Transfer Notice" has the meaning set forth in Section 4.1.
"Transferring Party" has the meaning set forth in Section 4.1.
"Underwritten Offering" has the meaning set forth in Section
4.1.
"Underwritten Offer Period" has the meaning set forth in
Section 4.1.
"Underwritten Share Price" has the meaning set forth in
Section 4.1.
"Unlimited Share Transfer Period" has the meaning set forth in
Section 4.1.
"Warrants" means warrants exercisable for Common Stock.
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When reference is made herein to securities held by the PCP Entities
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 the PCP Entities for the account of such Persons.
1.2 RULES OF CONSTRUCTION.
Unless the context otherwise requires: (a) a term has the meaning
assigned to it by this Agreement; (b) an accounting term not otherwise defined
has the meaning assigned to it in accordance with generally accepted accounting
principles in effect in the United States of America; (c) "or" is not exclusive;
and (d) words in the singular include the plural, and in the plural include the
singular. The language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party. Any references to any statute
or law shall also refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
ARTICLE II
BOARD COMPOSITION AND VOTING AGREEMENTS
2.1 BOARD COMPOSITION.
The Restricted Stockholders will vote their shares of Common Stock to
elect the following directors:
(i) ▇▇▇▇▇ ▇▇▇▇▇▇, and four (4) additional directors designated
by the PCP Entities (the "PCP Directors").
(ii) One (1) director nominated by Mitsui.
(iii) Three (3) Independent Directors.
If Mitsui elects not to designate a person for the position of director
of the Company, Mitsui shall have the right to nominate a non-voting observer to
the Board of Directors of the Company (the "Observer"). The Restricted
Stockholders shall cause their nominees on the Board of Directors of the Company
to permit the Observer to participate in all meetings of the Board of Directors
of the Company. The Observer shall be entitled to receive all materials and
information distributed to directors of the Company and shall have access to the
Company's management and records as if such Observer were a director.
2.2 COMPOSITION OF COMMITTEES OF THE BOARD OF DIRECTORS.
The Restricted Stockholders shall use their reasonable best efforts to
have the Compensation and Stock Option Committee of the Board of Directors of
the Company consist of four persons as follows:
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ and one (1) additional PCP Director.
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(ii) Two (2) Independent Directors.
2.3 VOTING AGREEMENT.
Each of the Restricted Stockholders agrees to vote all of the voting
securities of the Company Beneficially Owned by it in favor of the persons to be
nominated as directors pursuant to Section 2.1 and to take all other reasonable
action to cause such Persons to be elected as the only directors of the Company.
2.4 REDUCTION IN RIGHT OF PCP ENTITIES TO DESIGNATE DIRECTORS.
Notwithstanding anything to the contrary contained in this Agreement,
at such time as the percentage Beneficial Ownership in the Company of the PCP
Entities together with the Beneficial Ownership in the Company of Penske, taken
together ("Adjusted Beneficial Ownership"), is reduced below 20% then the number
of PCP Directors shall be reduced to the applicable number in the chart below:
If such Adjusted Beneficial No. of PCP Directors to be
Ownership is equal to or greater than: But less than: designated thereafter
-------------------------------------- -------------- --------------------------
17.5% 20.0% 4
15.0% 17.5% 3
12.5% 15.0% 2
10.0% 12.5% 1
Any reduction resulting from application of this Section 2.4 shall take place on
the earlier to occur of (x) the first meeting of stockholders of the Company
following the determination of such reduction, and (y) the first vacancy on the
Board of Directors following the determination of such reduction.
2.5 SUSPENSION OF RIGHT TO DESIGNATE DIRECTORS.
Notwithstanding anything to the contrary contained in this Agreement,
the right of the PCP Entities or Mitsui, as the case may be, to designate
directors of the Company shall be suspended as follows:
(a) with respect to the PCP Entities, their Adjusted Beneficial
Ownership combined with the Beneficial Ownership in the Company of Penske is
reduced below 10%; or
(b) with respect to Mitsui together with any of its Affiliates, its
Beneficial Ownership is reduced below 2.5%.
2.6 REPLACEMENT DIRECTORS.
During such time as the right of either the PCP Entities or Mitsui to
nominate directors is reduced or suspended pursuant to Section 2.4 or 2.5, the
Restricted Stockholders shall use their reasonable best efforts to have the
successors to such directors both: (a) be selected by a majority
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of the remaining Board of Directors, excluding the director whose position is no
longer entitled to be designated by Mitsui or the PCP Entities, and (b) not be
Affiliates of the PCP Entities and their Affiliates (other than the Company and
its subsidiaries).
2.7 TERMINATION OF ARTICLE II.
The provisions contained in this Article II shall terminate and be of
no further effect from and after the third anniversary of this Agreement.
2.8 QUORUM.
The presence of at least six Directors shall constitute a quorum for
the purpose of meetings of the Board of Directors of the Company.
ARTICLE III
STANDSTILL PROVISIONS
3.1 STANDSTILL PROVISIONS.
Subject to Section 3.2, at any time prior to December 14, 2003, each
Restricted Stockholder shall not, and shall cause its Affiliates not to, either
alone or as part of a "group" (as such term is used in Rule 13d-5 (as such rule
is currently in effect) of the Exchange Act), directly or indirectly:
(a) acquire or seek to acquire, by purchase or otherwise, ownership
(including, but not limited to, Beneficial Ownership) of (i) any capital stock
of the Company, or direct or indirect rights (including convertible securities)
or options to acquire such capital stock or (ii) any of the assets or businesses
of the Company, or direct or indirect rights or options to acquire such assets
or businesses;
(b) offer, seek or propose to enter into any transaction of merger,
consolidation, sale of substantial assets or any other business combination
involving the Company or any of its Affiliates, whether or not any parties other
than such Restricted Stockholder and its Affiliates are involved;
(c) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined or used in Regulation 14A
under the Exchange Act) or become a "participant" in any "election contest" (as
such terms are defined or used in Rule 14a-11 under the Exchange Act) to vote,
or seek to advise or influence any person or entity with respect to the voting
of, any voting securities of the Company of any of its Affiliates, except as set
forth in Article II of this Agreement;
(d) initiate or propose any stockholder proposals for submission to
a vote of stockholders, whether by action at a stockholder meeting or by written
consent, with respect to the Company or any of its Affiliates, or except as
provided in this Agreement propose any person for election to the Board of
Directors of the Company;
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(e) disclose to any third party, or make any filing under the
Exchange Act, including, without limitation, under Section 13(d) thereof,
disclosing, any intention, plan or arrangement inconsistent with the foregoing;
(f) form, join or in any way participate in a group to take any
actions otherwise prohibited by the terms of this Agreement;
(g) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of the foregoing; or
(h) make any public announcement with respect to any of the
foregoing.
3.2 EXCEPTIONS TO THE STANDSTILL PROVISIONS.
Notwithstanding the foregoing, the provisions of Section 3.1 shall not
prohibit:
(a) any transaction by a Restricted Stockholder approved by either
(i) a majority of the members of the Board of Directors who are neither
designated by such Restricted Stockholder nor otherwise affiliated with such
Restricted Stockholder, or (ii) a majority of the stockholders of the Company
other than such Restricted Stockholder and its Affiliates;
(b) (i) in the case of the PCP Entities, the acquisition of
securities or of Beneficial Ownership of securities if, after giving effect to
such acquisition, the Beneficial Ownership of the PCP Entities in the Company is
less than or equal to 65% and (ii) in the case of each of Harvard and Mitsui,
the acquisition of securities of the Company or of Beneficial Ownership of
securities of the Company if, after giving effect to such acquisition, the
Beneficial Ownership of each such Restricted Stockholder in the Company is less
than or equal to 49%;
(c) the granting by the Board of Directors of options to Affiliates
of Restricted Stockholders;
(d) the exercise of stock options; or
(e) any transaction contemplated by, or in furtherance of, the
Regulatory Sideletter, the Registration Rights Agreement or this Agreement.
3.3 STANDSTILL PROVISIONS APPLICABLE TO JPMP AND AON.
(a) From the date hereof through January 31, 2003 (the "Section 3.3
Standstill Period"):
(i) JPMP, or the PCP Entities for the account of JPMP, shall
hold shares of Series A Preferred Stock, Series B Preferred Stock or
Common Stock representing at least 3,122,449 shares of Common Stock on
an as-converted basis, in the aggregate (as adjusted for stock splits,
reverse stock splits, combinations, reclassifications or similar
events) (the "JPMP Standstill Shares"), and shall not Transfer such
shares, except to a Permitted Transferee or Affiliate of JPMP;
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(ii) AON, or the PCP Entities for the account of AON, shall
hold shares of Series A Preferred Stock or Common Stock representing at
least 1,377,551 shares of Common Stock on an as-converted basis, in the
aggregate (as adjusted for stock splits and the like ) (the "AON
Standstill Shares," and together with the JPMP Standstill Shares, the
"Standstill Shares"), and shall not Transfer such shares, except to a
Permitted Transferee or Affiliate of AON; and
(iii) in the event that Penske so requests, JPMP shall use all
reasonable efforts to convert any of its Standstill Shares, whether
held by JPMP or a PCP Entity for the account of JPMP, which represent
non-voting capital stock of the Company into voting capital stock of
the Company; provided, however, that JPMP shall have no obligation to
effect such conversion if such conversion would cause or could
reasonably be expected to cause (A) a Regulatory Problem (as defined in
the Regulatory Sideletter), (B) a filing requirement pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1976, as amended, or (C) a violation of the
applicable securities laws or any rule or regulation of any exchange on
which any shares of capital stock of the Company are listed.
(b) From the date hereof through and including May 1, 2002, other
than as contemplated by Section 2.2 (c) of the Registration Rights Agreement,
neither JPMP nor AON shall direct the PCP Entities to Transfer any shares of
capital stock of the Company, except to the respective Permitted Transferees or
Affiliates of JPMP and AON; provided, however, that the foregoing restrictions
shall not prohibit JPMP or AON from directing the PCP Entities to Transfer
shares of capital stock of the Company in a private sale.
3.4 EXCEPTIONS TO THE STANDSTILL APPLICABLE TO JPMP AND AON.
Notwithstanding the foregoing, in the event that during the Section 3.3
Standstill Period, Penske or any of its Affiliates Transfers Restricted
Securities (other than (i) with respect to Restricted Securities (A) to any
Affiliate of Penske or (B) a Transfer by a PCP Entity of securities held by such
PCP Entity for the account of either JPMP or AON at the direction of JPMP or
AON, or (ii) with respect only to those securities Transferred from Penske
Corporation's, JPMP's or AON's respective "Share Account" (as defined in the
Operating Agreement(s)) to the "Carry Account" (as defined in the Operating
Agreement(s)), a Transfer to Penske Capital or by Penske Capital to its members
or by such members to their members ad infinitum) in one transaction or a series
of related transactions that represent an amount in excess of five hundred
thousand (500,000) shares of Common Stock (determined on an as-converted basis)
in the aggregate, the provisions of Sections 3.3(a) and (b) shall terminate
immediately prior to such Transfer and be of no further force or effect.
3.5 PENSKE STANDSTILL WITH RESPECT TO COMPANY OFFERING.
Penske and each of its Affiliates (other than the Company) shall not
Transfer (other than a Transfer by a PCP Entity of securities held by such PCP
Entity for the account of either JPMP or AON at the direction of JPMP or AON) or
dispose of any Restricted Securities (i) as part of, or in connection with the
first primary public offering of securities of the Company which includes a
secondary sale component to occur following the date hereof, provided such
offering
9
occurs on or before August 1, 2003, or (ii) pursuant to Rule 144 promulgated
under the Securities Act from the date hereof through and including May 1, 2002.
3.6 ACTION BY PCP ENTITIES.
Notwithstanding anything contained herein to the contrary but subject
to the terms and provisions of the Direction Letters, the PCP Entities 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 the PCP Entities
agree to take all necessary actions to effectuate the terms of this Agreement on
behalf of JPMP and AON or otherwise.
ARTICLE IV
TRANSFER RESTRICTIONS
4.1 RIGHT OF FIRST OFFER.
(a) At any time after February 1, 2003 but before February 1, 2005,
if JPMP or AON, as the case may be (the "Transferring Party"), desires to
Transfer any Standstill Shares held by the PCP Entities for their respective
accounts (other than to a Permitted Transferee or an Affiliate), and directs the
PCP Entities to so Transfer any Standstill Shares, such Transferring Party
shall, before such Transfer, take the following actions:
(i) Inform Penske Corporation in writing (which shall include
by facsimile) of its intent to Transfer such Standstill Shares (the
"Transfer Notice") and shall include in such Transfer Notice, the
number of Standstill Shares such Transferring Party intends to Transfer
(the "Transfer Amount").
(ii) Upon receipt of a Transfer Notice, Penske Corporation
shall have twenty-four (24) hours from the time of delivery of the
Transfer Notice to inform the Transferring Party whether it desires to
purchase any such Standstill Shares.
(iii) In the event that Penske Corporation informs the
Transferring Party in writing that it does not intend to purchase any
such Standstill Shares or provides no response prior to the expiration
of such twenty-four (24) hour period (the "Penske Rejection"), such
Transferring Party shall be entitled to Transfer such Standstill
Shares, free and clear of the restrictions set forth in this Section
4.1 to any party for any consideration for ten (10) Business Days from
the effective time of such Penske Rejection (the "Unlimited Transfer
Period"). To the extent that the Transferring Party has not Transferred
such Standstill Shares within the Unlimited Transfer Period, such
Transferring Party shall again comply with the provisions of this
Section 4.1 prior to Transferring such Standstill Shares which were not
so Transferred.
(iv) In the event that Penske Corporation informs the
Transferring Party in writing that it intends to purchase any such
Standstill Shares (the "Penske Offer"), Penske Corporation shall
indicate to the Transferring Party the per share price, in cash, it is
willing to pay for such Standstill Shares to be purchased by it and the
number of such
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Standstill Shares which Penske Corporation intends to purchase (the
"Penske Purchase Amount") and such Penske Offer shall be irrevocable
for twenty-four (24) hours.
(v) If the Transferring Party accepts the Penske Offer, the
parties shall complete the Transfer of such Standstill Shares within
five (5) Business Days from the date of delivery of such acceptance by
the Transferring Party to Penske Corporation. In the event that the
Penske Purchase Amount is less than the Transfer Amount, the
Transferring Party shall be entitled to Transfer such remaining
Standstill Shares (the "Rejected Shares"), free and clear of the
restrictions set forth in this Section 4.1, for ten (10) Business Days
from the time of the receipt by the Transferring Party of the Penske
Offer to any party for any consideration (the "Rejected Share Transfer
Period"). To the extent that the Transferring Party has not Transferred
all of such Rejected Shares within the Rejected Share Transfer Period,
such Transferring Party shall again comply with the provisions of this
Section 4.1 prior to Transferring such Standstill Shares which were not
so Transferred.
(vi) If the Transferring Party rejects the Penske Offer, for a
period of five (5) Business Days from the date of delivery of such
rejection by the Transferring Party to Penske Corporation (the "Limited
Transfer Period"), such Transferring Party shall be able to Transfer
such Standstill Shares, free and clear of the restrictions set forth in
this Section 4.1, to any other party for a per share price, in cash,
not less than the per share price set forth in the Penske Offer. To the
extent that the Transferring Party has not Transferred all of such
Standstill Shares within the Limited Transfer Period, such Transferring
Party shall again comply with the provisions of this Section 4.1 prior
to Transferring such Standstill Shares which were not so Transferred.
(b) In the event that a Transferring Party intends to Transfer
shares in an underwritten offering (the "Underwritten Offering") pursuant to
Section 2.1 of the Registration Rights Agreement, the Transferring Party shall
provide Penske Corporation with the Transfer Notice and the Transfer Amount
proposed to be sold in such Underwritten Offering. Penske Corporation, or its
Affiliates, shall have the right to purchase all or any portion of the
underwritten shares for a period of 30 days (the "Underwritten Offer Period")
following receipt of the Transfer Notice at a purchase price equal to the 20-day
trailing average closing price of the Common Stock as quoted on the New York
Stock Exchange Composite Index determined as of the date of delivery of the
Transfer Notice (the "Underwritten Share Price") and shall deliver a non-binding
indication of intention to purchase (an "Indication of Intent") such shares
within 15 days following receipt of the Transfer Notice. If Penske Corporation
or its Affiliates do not elect to purchase all of the underwritten shares within
such 30 day period or have not delivered an Indication of Intent within the
aforementioned 15 days, then the Transferring Party shall be free to sell the
portion of the underwritten shares not purchased by Penske Corporation or its
Affiliates in the Underwritten Offering pursuant to the Registration Rights
Agreement; provided, that if such Underwritten Offering is not completed within
120 days from the date of the Transfer Notice, then the underwritten shares will
again be offered to Penske Corporation pursuant to the terms of this Section
4.1(b). Any purchase of underwritten shares by Penske Corporation or its
Affiliates shall be completed within 15 days following the expiration of the
Underwritten Offer Period.
11
4.2 TAG-ALONG RIGHTS.
(a) In the event any of the PCP Entities or Penske desires to
Transfer any Restricted Securities to a third party (other than (i) with respect
to any Restricted Securities (A) to their respective Permitted Transferees or
Affiliates or (B) pursuant to the direction of JPMP or AON, as the case may be,
with respect to those securities of the Company held by the PCP Entities for
their respective accounts, or (ii) with respect only to those securities
Transferred from Penske Corporation's, JPMP's or AON's respective "Share
Account" (as defined in the Operating Agreement(s)) to the "Carry Account" (as
defined in the Operating Agreement(s)) and those securities held in Penske
Capital's "Share Account" (as defined in the Operating Agreement(s)) to Penske
Capital or by Penske Capital to its members or by such members to their members
ad infinitum (it being understood that in no event will this clause (ii) apply
to any Transfer by Penske Corporation)) at any time prior to February 1, 2005,
such PCP Entity or Penske, as the case may be, shall notify JPMP, AON, Mitsui
and Harvard (the "Tag-Along Stockholders") in writing, of such proposed Transfer
and its terms and conditions (the "Tag-Along Notice"); and
(b) Within ten (10) Business Days of the date of the Tag-Along
Notice, each Tag-Along Stockholder shall notify the PCP Entities or Penske, as
the case may be, if it elects to participate in such Transfer. Any such
Tag-Along Stockholder that fails to notify such PCP Entity or Penske, as the
case may be, within such ten (10) Business Day period shall be deemed to have
waived its rights to participate in such Transfer. Each such Tag-Along
Stockholder that so notifies the PCP Entities or Penske, as the case may be,
shall have the right to Transfer, at the same price per share of Common Stock
and on the same terms and conditions as the applicable PCP Entity or Penske, as
the case may be, an amount of shares of Common Stock or Common Stock equivalents
equal to the shares of Common Stock or Common Stock equivalents the Transferee
actually proposes to purchase multiplied by a fraction, the numerator of which
shall be the number of shares of Common Stock and Common Stock equivalents
issued and owned by such Tag-Along Stockholder (or held by a PCP Entity for such
Tag-Along Stockholder's account) and the denominator of which shall be the
aggregate number of shares of Common Stock and Common Stock equivalents issued
and owned by such PCP Entity (or both PCP Entities, if both are selling pursuant
to such transaction) (but excluding any such shares held by such PCP Entity for
the account of a Tag-Along Stockholder) and/or Penske (if Penske is selling
pursuant to such transaction) and each other Tag-Along Stockholder exercising
its rights under this Section (assuming for purposes of calculating such
fraction the conversion of all convertible securities and the exercise of all
options and warrants held by the PCP Entities, Penske and each Tag-Along
Stockholder exercising its rights under this Section).
4.3 TRANSFEREES; NONCOMPLYING TRANSFERS.
In the event of any purported Transfer of any Restricted Securities in
violation of Article IV of this Agreement, such purported Transfer shall be void
and of no effect, and no dividend of any kind whatsoever nor any distribution
pursuant to liquidation or otherwise shall be paid by the Company to the
purported transferee in respect of such Restricted Securities (all such
dividends and distributions being deemed waived), and the voting rights of such
Restricted Securities, if any, on any matter whatsoever shall remain vested in
the Transferor, and the Transferor shall not be relieved of any of its
obligations hereunder as the holder of such Restricted Securities. In the
12
event of such a non-complying Transfer, the Company shall not Transfer any such
Restricted Securities on its books or recognize the purported Transferee as a
stockholder, for any purpose, until all applicable provisions of this Agreement
have been complied with.
ARTICLE V
CERTAIN COVENANTS
5.1 LEGEND ON CERTIFICATES.
(a) Each certificate for capital stock of the Company held by the
Restricted Stockholders, JPMP or AON (or a PCP Entity for the account of JPMP or
AON), as the case may be, shall be stamped or otherwise imprinted with the
legends in substantially the following forms, until such time as any Restricted
Securities (i) are registered pursuant to the Securities Act or (ii) are freely
Transferable, in the opinion of counsel (such opinion to be reasonably
acceptable to the Company) to such Restricted Stockholder, JPMP or AON, as the
case may be, with respect to such Restricted Securities held by, or attributable
to, such counsel's client, pursuant to Rule 144(k) promulgated under the
Securities Act, at which time the Company shall cooperate with such holder to
ensure that such legends are removed as promptly as practicable:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY
THAT CERTAIN SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, BY
AND AMONG, AENEAS VENTURE CORPORATION, INTERNATIONAL MOTOR CARS
GROUP I, L.L.C., INTERNATIONAL MOTOR CARS GROUP II, L.L.C., ▇.▇.
▇▇▇▇▇▇ PARTNERS (BHCA), L.P., MITSUI & CO., LTD., MITSUI & CO.
(USA), INC., PENSKE CORPORATION, PENSKE AUTOMOTIVE HOLDINGS CORP.,
PENSKE CAPITAL PARTNERS, L.L.C., VIRGINIA SURETY COMPANY, INC., AND
UNITED AUTO GROUP, INC., A COUNTERPART OF WHICH SECOND AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT HAS BEEN PLACED ON FILE BY THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS AND ITS REGISTERED
OFFICE. A COPY OF SUCH SECOND AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
RECORD
13
HOLDER HEREOF UPON WRITTEN REQUEST TO THE COMPANY AT THE PRINCIPAL
PLACE OF BUSINESS OF THE COMPANY."
5.2 ▇▇▇▇▇ ▇▇▇▇▇▇ TO SERVE AS CHAIRMAN AND CHIEF EXECUTIVE OFFICER.
(a) From and after the date hereof, the PCP Entities shall cause
▇▇▇▇▇ ▇▇▇▇▇▇:
(i) to serve as the Chairman of the Company until August 3,
2002 and as Chief Executive Officer of the Company until August 3,
2002; provided, however, such obligation shall cease if pursuant to
Sections 2.4 or 2.5, PCP Directors shall no longer constitute a
majority of the Company's Board of Directors.
5.3 REGISTRATION RIGHTS AGREEMENT.
(a) Registrations. The Company shall effect a total of two (2) shelf
registrations pursuant to Rule 415 of the Securities Act (or other applicable
rule) of the capital stock of the Company held by the PCP Entities for the
respective account of each of JPMP and AON, in accordance with the provisions of
the Registration Rights Agreement, a form of which is attached hereto as Exhibit
A.
(b) No conflicts. The Company shall not enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the PCP Entities, JPMP and AON in the Registration Rights Agreement, or
otherwise conflicts with the provisions thereof. In the event that the Company
enters into any such agreement that grants rights to any party that are senior
to or otherwise superior to those granted to each of IMCG (with respect to
securities held for the accounts of JPMP and AON), JPMP or AON thereunder, with
regard to priority or "cut-backs" in any registration under the Securities Act,
the Company shall also grant such senior or superior rights to each of IMCG
(with respect to securities held for the accounts of JPMP and AON), JPMP and
AON. In the event that the Company enters into any agreement with respect to its
securities that grants rights to any party that are senior to or otherwise
superior to those granted to Mitsui in the registration rights agreement between
Mitsui and the Company referred to in Schedule 5.3 hereto, with regard to
priority or "cut-backs" in any registration under the Securities Act, the
Company shall also grant such senior or superior rights to Mitsui. In the event
that the Company enters into any agreement with respect to its securities that
grants rights to any party that are senior to or otherwise superior to those
granted to Harvard in the registration rights agreement between Harvard and the
Company referred to in Schedule 5.3 hereto, with regard to priority or
"cut-backs" in any registration under the Securities Act, the Company shall also
grant such senior or superior rights to Harvard. Each of the parties hereto
represents and warrants to each of IMCG (with respect to securities held for the
accounts of JPMP and AON), Mitsui, JPMP and AON that it has not previously
entered into any agreement with respect to its securities granting any
registration rights to any party except as set forth on Schedule 5.3 hereto. The
parties hereto acknowledge that in the event of a conflict or inconsistency
between the Registration Rights Agreement and any other agreement regarding the
registration rights of capital stock of the Company (including, but not limited
to, those agreements set forth on Schedule 5.3 hereto), the provisions of the
Registration Rights Agreement shall control, and each party hereto acknowledges
the rights of JPMP and AON under Section 2.2 thereof.
14
5.4 REGULATORY MATTERS.
(a) Cooperation of Other Stockholders. Each Restricted Stockholder
and AON agrees to cooperate with the Company in all reasonable respects in
complying with the terms and provisions of the letter agreement between the
Company, the PCP Entities and JPMP, a copy of which is attached hereto as
Exhibit B, regarding regulatory matters (the "Regulatory Sideletter"), including
without limitation, voting to approve amending the Company's certificate of
incorporation, the Company's by-laws or this Agreement in a manner reasonably
acceptable to the Restricted Stockholders, AON and JPMP or any Affiliate of JPMP
entitled to make such request pursuant to the Regulatory Sideletter in order to
remedy a Regulatory Problem (as defined in the Regulatory Sideletter). Anything
contained in this Section 5.4 to the contrary notwithstanding, no Restricted
Stockholder or AON shall be required under this Section 5.4 to take any action
that would adversely affect in any material respect its rights under this
Agreement or as a stockholder of the Company.
(b) Covenant Not to Amend. The Company, each Restricted Stockholder
and AON agree not to take any action to amend or waive the voting or other
provisions of the Company's certificate of incorporation, the Company's by-laws
or this Agreement if such amendment or waiver would cause JPMP or any its
Affiliates to have a Regulatory Problem (as defined in the Regulatory
Sideletter). JPMP agrees to notify the Company as to whether or not it would
have a Regulatory Problem (as defined in the Regulatory Sideletter) promptly
after JPMP has notice of such amendment or waiver.
5.5 CONFIDENTIALITY OBLIGATION.
(a) Mitsui shall treat as secret and confidential any and all
confidential information communicated by the Company to the member of the Board
of Directors designated by Mitsui or the Observer and shall therefore not
disclose or communicate such confidential information to any person or entity,
except to those employees and persons within Mitsui and/or its affiliates who
need to have access to such information for the purpose of monitoring Mitsui's
investment in the Company. Any such employee or person shall be bound by this
confidentiality obligation and shall be informed of the confidential nature of
the information.
(b) The obligations imposed above shall not apply to information.
(i) which becomes publicly available;
(ii) which Mitsui can establish was already in its possession
at the time such information was communicated to it;
(iii) which is received from a third party without restriction
and without breach of this Agreement;
(iv) which Mitsui can establish has been independently
developed by it; or
(v) which is required to be disclosed by applicable law, legal
process or, in connection with any judicial process, arbitration or
other proceeding.
15
5.6 FURTHER ASSURANCES.
Each of the parties hereto shall use commercially reasonable efforts to
do such additional things and execute such documents as are reasonably necessary
or proper to carry out and effectuate the intent of this Agreement or any part
hereof.
ARTICLE VI
MUTUAL REPRESENTATIONS AND WARRANTIES
Each of the parties hereto represents and warrants to the others as
follows:
6.1 ORGANIZATION.
It is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation.
6.2 AUTHORIZATION, VALIDITY AND ENFORCEABILITY.
It has full power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance by it
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary corporate action, its board of
directors or other governing body, as applicable, and no other proceedings on
its part are necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly executed and delivered by it,
and constitutes the legal, valid and binding obligation of it, enforceable
against it in accordance with the terms hereof, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting rights of creditors generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
6.3 NO VIOLATION OR BREACH.
The execution, delivery and performance by it of this Agreement and the
consummation of the transactions contemplated hereby, do not and will not
conflict with, result in a violation or breach of, constitute a default (or an
event which with the giving of notice or the lapse of time or both would
constitute a default) or give rise to any right of termination or acceleration
of any right or obligation of it under, or result in the creation or imposition
of any lien, mortgage, pledge, security interest, claim, right of first refusal
or other limitation on transfer or other encumbrance upon any of its Restricted
Securities or shares of Common Stock of the Company, as the case may be, by
reason of the terms of, (a) its memorandum of association, certificate of
incorporation, by-laws or other charter or organizational document, (b) any
contract, agreement, lease, license, mortgage, note, bond, debenture, indenture
or other instrument or obligation to which it is a party or by or to which it or
its assets or properties may be bound or subject, (c) any order, writ, judgment,
injunction, award, decree, law, statute, rule or regulation applicable to it or
(d) any license, permit, order, consent, approval, registration, authorization
or qualification with or under any governmental agency, other than in the case
of clauses (b), (c) or (d) above any conflict, violation, breach or default
which would not, individually or in the aggregate together
16
with all other such conflicts, violations, breaches or defaults, have a material
adverse effect on it or have a material adverse effect on its ability to perform
its obligations, or consummate the transactions contemplated, hereunder.
ARTICLE VII
TERM
7.1 TERM.
This Agreement shall commence on the date hereof, and shall terminate
on December 31, 2009. This Agreement shall terminate with respect to a
Restricted Stockholder, JPMP or AON at such time as such entity ceases to
Beneficially Own any Restricted Securities or any shares of Common Stock of the
Company, as the case may be.
7.2 EFFECTS OF TERMINATION.
Upon termination of this Agreement, this Agreement (other than Section
8.9) shall thereafter become void and have no effect, and no party hereto shall
have any liability or obligation to any other party hereto in respect of this
Agreement, except for any liability resulting from such party's breach of this
Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 SURVIVAL.
All of the representations, warranties, covenants, and agreements of
the parties contained in this Agreement shall survive until this Agreement is
terminated.
8.2 NOTICES.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given (a) when delivered personally to the
recipient, (b) two Business Days after the date when sent to the recipient by
reputable express courier service (charges prepaid), or (c) seven Business Days
after the date when mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the parties at the addresses indicated below:
If to Harvard Aeneas Venture Corporation
c/o Charlesbank Capital Partners, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
With a copy to: (which Ropes & ▇▇▇▇
17
shall not One International Place
constitute notice) ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Penske: c/o Penske Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to either c/o Penske Corporation
PCP Entity: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to JPMP: c/o ▇.▇. ▇▇▇▇▇▇ Partners, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: (which ▇'▇▇▇▇▇▇▇▇ LLP
shall not constitute ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Mitsui Japan: Mitsui & Co., Ltd.
First Motor Vehicles Div.
▇-▇, ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
Attention: General Manager of First Motor
Vehicles Division
If to Mitsui USA: Mitsui & Co. (U.S.A.), Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Manager,
Detroit Machinery and
Automotive Department,
Second Machinery Division
With a copy to: (which Debevoise & ▇▇▇▇▇▇▇▇
shall not constitute ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
18
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to AON: Virginia Surety Company, Inc.
c/o Aon Advisers, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: (which Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
shall not constitute Bank One Plaza
notice) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company: United Auto Group, Inc.
c/o Penske Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party hereto may, from time to time, designate
in writing delivered pursuant to the terms of this Section 8.2.
8.3 AMENDMENTS.
The terms, provisions and conditions of this Agreement may not be
changed, modified or amended in any manner except by an instrument in writing
duly executed by all of the parties hereto; provided, however, that the terms,
provisions and conditions of Sections 3.3, 3.4, 3.5, 4.1, and 5.3 may be amended
by an instrument in writing duly executed by each of Penske, JPMP and AON,
provided that any such amendment shall not adversely affect any Restricted
Stockholder.
8.4 ASSIGNMENT AND PARTIES IN INTEREST.
(a) Neither this Agreement nor any of the rights, duties, or
obligations of any party hereunder may be assigned or delegated (by operation of
law or otherwise) by any party hereto, other than to an Affiliate of such party,
without the prior written consent of the other parties hereto.
(b) Other than as set forth below, this Agreement shall not confer
any rights or remedies upon any person or entity other than the parties hereto
and their respective permitted successors and assigns; provided, however, that
(i) the rights set forth in Article II hereof shall not inure to the benefit of
any Transferee (other than a Permitted Transferee) without the prior written
consent of each Restricted Stockholder (other than the Transferor), (ii) the
provisions of
19
this Agreement shall not be binding on any Transferee other than a Permitted
Transferee of Restricted Securities or shares of Common Stock of the Company, as
the case may be, and (iii) JPMP and AON are intended third party beneficiaries
of Sections 3.2, 3.5 and Article VI.
8.5 EXPENSES.
On the date hereof or as promptly as practicable thereafter, the
Company shall reimburse JPMP and AON for all legal, accounting, investment
banking, and other expenses incurred by them in connection with the transactions
contemplated by this Agreement, the Registration Rights Agreement, the Operating
Agreements, and any and all documents related thereto (including the reasonable
fees and reasonable expenses of ▇'▇▇▇▇▇▇▇▇ LLP, counsel to JPMP and Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to AON).
8.6 ENTIRE AGREEMENT.
This Agreement and the other documents executed on the date hereof
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede and are in full substitution for any and all
prior agreements and understandings among them relating to such subject matter,
and no party shall be liable or bound to the other party hereto in any manner
with respect to such subject matter by any warranties, representations,
indemnities, covenants, or agreements except as specifically set forth herein or
in the other documents executed on the date hereof.
8.7 DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
8.8 COUNTERPARTS.
For the convenience of the parties, any number of counterparts of this
Agreement may be executed by any one or more parties hereto, and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which shall constitute, and shall be deemed to constitute, in the aggregate
but one and the same instrument.
8.9 GOVERNING LAW; JURISDICTION.
(a) This Agreement shall be governed by and construed in accordance
with 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.
(b) Each of the parties hereto hereby irrevocably and
unconditionally 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
further agrees that service of any process, summons, notice or document to its
respective address set forth in Section 8.2 shall be effective service of
process for any action or
20
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.
8.10 SEVERABILITY.
In the event that any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein, shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, then to the
maximum extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
instrument. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
8.11 SPECIFIC PERFORMANCE.
(a) 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.
(b) 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 until terminated pursuant to the terms of this Agreement,
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 Section 8.11) is invalid, inapplicable or unenforceable.
8.12 TRANSFERS TO AFFILIATES.
In the event of any Transfer of capital stock of the Company by any
party hereto to an Affiliate of such party (other than with respect only to
those securities Transferred from Penske Corporation's, JPMP's or AON's
respective "Share Accounts" (as defined in the Operating
21
Agreement(s)) to the Carry Account (as defined in the Operating Agreement(s))
and those securities held in Penske Capital's "Share Account" (as defined in the
Operating Agreement(s)) to Penske Capital or by Penske Capital to its members of
by such member to their members ad infinitum (it being understood that in no
event with this exception apply to any Transfer by Penske Corporation)), prior
to the effectiveness of such Transfer, such Transferee shall execute a joinder
to this Agreement and shall otherwise agree to be bound by the provisions of
this Agreement in the same manner as the Transferor.
8.13 PUBLIC FILINGS.
Prior to making any filings required by Sections 13 or 16 of the
Securities Exchange Act of 1934, as amended, each of the PCP Entities, JPMP and
AON shall provide such other parties with a reasonable opportunity to review
such filings and comment thereon.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AENEAS VENTURE CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
INTERNATIONAL MOTOR CARS GROUP I,
L.L.C.
By: Penske Capital Partners, L.L.C.,
as Managing Member
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
MITSUI & CO., LTD.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director and Chief Operation Officer
Motor Vehicles, Marine & Aerospace Group
MITSUI & CO. (U.S.A.), INC.
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and General Manager
Second Machinery Division
PENSKE CAPITAL PARTNERS, L.L.C.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
PCP Holdings, Inc. as Assignee of
PENSKE CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
PENSKE AUTOMOTIVE HOLDINGS CORP.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice Chairman
UNITED AUTO GROUP, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
FOR PURPOSES OF SECTIONS
3.3, 3.4, 4.1, 4.2, 5.1,
5.3, 5.4, 7.1, AND ARTICLE
VIII ONLY:
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Partner
VIRGINIA SURETY COMPANY, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
Form of Registration Rights Agreement
EXHIBIT B
Form of Regulatory Sideletter
Schedule 5.3
Registration Rights Agreement among EMCO Motor Holdings, Inc., Aeneas Venture
Corporation, and the other parties thereto dated as of October 15, 1993, as
amended on July 31, 1996.
Registration Rights Agreement among United Auto Group, Inc., International Motor
Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. dated as of
April 12, 1999.
Registration Rights Agreement among United Auto Group, Inc. and Penske
Automotive Holding Corp. dated as of December 22, 2000.
Registration Rights Agreement among United Auto Group, Inc., Mitsui & Co., Ltd.,
and Mitsui & Co. (USA), Inc., dated as of February 28, 2001, as amended.