Exhibit 18
Execution Copy
PURCHASE AGREEMENT
by and between
PENSKE AUTOMOTIVE HOLDINGS CORP.,
and
UNITED AUTO GROUP, INC.
dated as of
December 22, 2000
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PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of December 22, 2000, by and between UNITED
AUTO GROUP, Inc., a Delaware corporation (the "Company"), and PENSKE
AUTOMOTIVE HOLDINGS CORP., a Delaware corporation (the "Purchaser").
RECITALS
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Company, 2,139,535 shares of Voting Common
Stock, par value $0.0001 per share (the "Voting Common Stock") of the
Company, for a purchase price of $10.75 per share;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF SECURITIES
1.1. The Purchase. At the Closing on the date hereof, subject to
completion of all of the Closing Actions, the Purchaser shall purchase (the
"Purchase") from the Company, and the Company shall sell to the Purchaser,
an aggregate of 2,139,535 shares of Voting Common Stock (the "Securities")
at a purchase price of $10.75 per share and an aggregate purchase price of
$23,000,001.25 (the "Purchase Price").
1.2. Use of Proceeds. The Company will use the proceeds of the
Purchase [for general corporate purposes].
1.3. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place simultaneously with the
execution and delivery of this Agreement on the date hereof or on such
other date as the Company and the Purchaser may mutually determine (such
date, the "Closing Date").
1.4. Actions at the Closing. Simultaneously with, or prior to, the
execution and delivery of this Agreement, the following actions shall occur
(the "Closing Actions"):
(a) The Company shall issue the Securities to the Purchaser,
evidenced by stock certificates in the name of the Purchaser, free and
clear of encumbrances thereon other than as provided by the Registration
Rights Agreement.
(b) The Purchaser shall pay the Purchase Price to the Company by
wire transfer pursuant to instructions provided by the Company.
(c) A registration rights agreement (the "Registration Rights
Agreement") among the Company and the Purchaser, substantially in the form
of Exhibit A or as otherwise agreed to by the parties, will be duly
executed and delivered by the parties thereto. The term "Documents" means
collectively this Agreement and the Registration Rights Agreement.
(d) The Company shall deliver to the Purchaser a stock
certificate executed by its Secretary, substantially in the form of
Exhibit B.
(e) The Company has filed with the New York Stock Exchange an
Application for Listing of Additional Shares.
1.5. Legend.
(a) The parties hereby acknowledge and agree that each of the
certificates representing the shares of Voting Common Stock shall be
subject to stop transfer instructions and shall include the following
legend and any other legend required by law:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THESE
SHARES ARE SUBJECT TO CERTAIN LIMITATIONS ON TRANSFER, SALE,
ASSIGNMENT, PLEDGE OR OTHER DISPOSITION OF SUCH SHARES, AS MORE
FULLY SET FORTH IN THE PURCHASE AGREEMENT DATED AS OF DECEMBER
22, 2000 BY AND BETWEEN UNITED AUTO GROUP, INC. AND PENSKE
CORPORATION. A COPY OF SUCH AGREEMENT IS ON FILE WITH THE
SECRETARY OF THE COMPANY AND IS AVAILABLE FOR INSPECTION BY
STOCKHOLDERS OF THE COMPANY.
(b) The requirement that the above securities legend be placed
upon certificates evidencing shares of Voting Common Stock shall cease and
terminate upon the earliest of the following events: (i) when such shares
are transferred in an underwritten public offering, (ii) when such shares
are transferred pursuant to Rule 144 in compliance with the Securities Act
or (iii) when such shares are transferred in any other transaction if the
seller delivers to the Company an opinion of its counsel, which counsel and
opinion shall be reasonably satisfactory to the Company, or a "no-action"
letter from the staff of the Securities and Exchange Commission, in either
case to the effect that such legend is no longer necessary in order to
protect the Company against a violation by it of the Securities Act upon
any sale or other disposition of such shares without registration
thereunder. Upon the consummation of any event requiring the removal of a
legend hereunder, the Company, upon the surrender of certificates
containing such legend, shall, at its own expense, deliver to the holder of
any such shares as to which the requirement for such legend shall have
terminated, one or more new certificates evidencing such shares not bearing
such legend.
ARTICLE II
REPRESENTATIONS & WARRANTIES CONCERNING THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows as
of the date hereof:
2.1. Organization and Good Standing; Power and Authority;
Qualifications. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority to own, lease and operate
its properties, to carry on its business as presently conducted and as
proposed to be conducted. The Company has all requisite corporate power and
authority to enter into and carry out the transactions contemplated by the
Documents.
2.2. Authorization of the Documents. The execution, delivery and
performance of each of the Documents has been duly authorized by all
requisite corporate action on the part of the Company, including by a
disinterested majority of the board of directors of the Company in
accordance with Section 144 of the Delaware General Corporation Law, and
each of the Documents constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company, in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally.
2.3. No Conflict. The execution, delivery and performance by the
Company of the Documents and the consummation by the Company of the
transactions contemplated hereby and thereby; and the issuance, sale and
delivery by the Company of the Securities will not (a) violate any
provision of law, statute, rule or regulation, or any ruling, writ,
injunction, order, judgment or decree of any court, administrative agency
or other governmental body applicable to the Company or any of its
properties or assets, (b) conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute (with due notice or
lapse of time, or both) a default (or give rise to any right of
termination, cancellation or acceleration) under any agreement of the
Company, or result in the creation of any mortgage, lien, security
interest, loan, charge or encumbrance, upon any of the properties or assets
of the Company or (c) violate the Certificate of Incorporation or the
by-laws of the Company.
2.4. Consents. No permit, authorization, consent or approval of or by,
or any notification of or filing (including any filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) with any
person (governmental or private) is required in connection with the
execution, delivery and performance by the Company of the Documents or any
documentation relating thereto, the consummation by the Company of the
transactions contemplated hereby or thereby, or the issuance, sale or
delivery of the Securities.
2.5. Closing Actions. Subject to the execution and delivery of the
Documents, the Closing Actions that the Company is required to complete
have been completed.
ARTICLE III
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASER
3.1. Representations and Warranties of the Purchaser.The Purchaser
represents and warrants to the Company as of the date hereof as follows:
(a) The Purchaser is acquiring the Securities for its own
account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act.
(b) The Purchaser understands that (i) the Securities have not
been registered under the Securities Act or any state securities laws, and
(ii) the Securities may not be sold unless such disposition is registered
under the Securities Act and applicable state securities laws or is exempt
from registration and/or regulation thereunder as the case may be.
(c) The Purchaser is an "Accredited Investor" (as defined in Rule
501(a) under the Securities Act).
(d) The Purchaser is duly organized and validly existing under
the laws of the state of its organization and has all power and authority
to enter into and perform the Documents. Each of the Documents has been
duly authorized by all necessary action on the part of the Purchaser. Each
of the Documents constitutes a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally.
(e) The execution, delivery and performance of each of the
Documents has been duly authorized by all requisite corporate action on the
part of the Purchaser, and each of the Documents constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser,
in accordance with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally.
(f) The execution, delivery and performance by the Purchaser of
each of the Documents and the consummation by the Purchaser of the
transactions contemplated thereby will not (a) violate any provision of
law, statute, rule or regulation, or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other
governmental body applicable to the Purchaser, or any of its properties or
assets or (b) violate the certificate of incorporation or the bylaws of the
Purchaser.
(g) No permit, authorization, consent or approval of or by, or
any notification of or filing (including any filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) with any
person (governmental or private) is required in connection with the
execution, delivery and performance by the Company of the Documents or any
documentation relating thereto, the consummation by the Company of the
transactions contemplated hereby or thereby, or the issuance, sale or
delivery of the Securities.
ARTICLE IV
MISCELLANEOUS
4.1. Notices. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy (with confirmation promptly sent by
regular mail), nationally recognized overnight courier or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by such party to the
other parties:
(i) if to the Company, to:
United Auto Group, Inc.
13400 Outer Drive, West
Suite B36
Detroit, Michigan 48239-4001
Attention: General Counsel
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Valerie Ford Jacob, Esq.
Robert C. Schwenkel, Esq.
(ii) if to the Purchaser, to:
Penske Corporation
13400 Outer Drive, West
Detroit, Michigan 48239-4001
Attention: General Counsel
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
4.2. Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the party against
whom enforcement of such amendment, modification, supplement or waiver is
sought.
4.3. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and the personal representatives and assigns of the
parties hereto, whether so expressed or not.
4.4. Entire Agreement. This Agreement (with the documents referred to
herein or delivered pursuant hereto and together with the Documents)
embodies the entire agreement and understanding between the parties hereto
and supersedes all prior agreements and understandings relating to the
subject matter hereof.
4.5. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York without
giving effect (to the fullest extent permitted by law) to the conflicts of
law principles thereof which might result in the application of the laws of
any other jurisdiction.
4.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. All signatures need not appear on any one
counterpart.
4.7. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
4.8. Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in equity, shall
be entitled to injunctive relief, including specific performance, to
enforce such obligations without the posting of any bond, and, if any
action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is
an adequate remedy at law.
4.9. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such 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.
4.10. Expenses. Each party to this Agreement shall bear its own cost
and expenses, including fees of consultant(s), accountant(s), counsel, and
other persons acting on behalf of or for such party except as provided for
in Article IV.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
COMPANY:
UNITED AUTO GROUP, INC.
By: /s/ Phillip M. Hartz
--------------------
Name: Phillip M. Hartz
Title: Senior Vice President
PURCHASER:
PENSKE AUTOMOTIVE HOLDINGS CORP.
By: /s/ Peter E. Mogk
-----------------
Name: Peter E. Mogk
Title: Treasurer
