Exhibit 16
Execution Copy
PURCHASE AGREEMENT
by and among
PENSKE AUTOMOTIVE HOLDINGS CORP.
and
THE BANK OF NOVA SCOTIA
dated as of
December 15, 2000
<PAGE>
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of December 15, 2000, by and among THE BANK OF
NOVA SCOTIA (the "Bank"), a chartered bank organized under the laws of
Canada, and PENSKE AUTOMOTIVE HOLDINGS CORP., a Delaware corporation (the
"Purchaser").
RECITALS
WHEREAS, the Bank is the beneficial owner of 3,993,110 shares (the
"Shares") of Voting Common Stock (the "Common Stock"), par value $0.0001
per share of United Auto Group, Inc., a Delaware corporation (the
"Company");
WHEREAS, Calder & Co. ("Calder"), a partnership controlled by the Bank, is
the Bank's nominee and record holder of the Shares, subject to the order of
the Bank;
WHEREAS, Purchaser desires to purchase and the Bank desires to sell to
Purchaser all of the Shares at a purchase price equal to $10.50 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, subject to completion of all
of the Closing Actions, the Purchaser shall purchase (the "Purchase") from
the Bank, and the Bank shall sell to the Purchaser, the Shares at a
purchase price of $10.50 per Share and an aggregate purchase price of
$41,927,655.00 (the "Purchase Price"). In addition, each of Purchaser and
the Bank, shall pay to Moness, Crespi, Handt ("MCH") an amount equal to
$0.03 per Share for a total amount of $119,793.30 each (the "Commission").
1.2. 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 Bank and the Purchaser may mutually determine (such date,
the "Closing Date").
1.3. Actions at the Closing. On the Closing Date, the following
actions shall occur (the "Closing Actions"):
(a) The Bank shall transfer the Shares to the Purchaser,
evidenced by stock powers or other instruments reasonably requested by the
Purchaser, free and clear of Encumbrances (as hereinafter defined) thereon.
(b) The Purchaser shall pay the Purchase Price, less the Bank's
share of the MCH Commission ($119,793.30), to the Bank by wire transfer
pursuant to instructions provided by the Bank.
(c) The Purchaser shall pay the total Commission, consisting of
the Purchaser's share ($119,793.30) and the Bank's share ($119,793.30), to
MCH by wire transfer pursuant to instructions provided by MCH.
ARTICLE II
BANK REPRESENTATIONS & WARRANTIES
The Bank represents and warrants to the Purchaser as follows as of the date
hereof:
2.1. Organization and Good Standing; Power and Authority;
Qualifications. The Bank is a bank duly organized, validly existing and in
good standing under the laws of Canada and has all requisite 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 Bank
has all requisite power and authority to enter into and carry out the
transactions contemplated by this Agreement.
2.2. Authorization of the Documents. The execution, delivery and
performance of this Agreement has been duly authorized by all requisite
action on the part of the Bank, and this Agreement constitutes a legal,
valid and binding obligation of the Bank, enforceable against the Bank, in
accordance with its terms.
2.3. No Conflict. The execution, delivery and performance by the Bank
of this Agreement and the consummation by the Bank of the transactions
contemplated hereby; and the sale and delivery by the Bank of the Shares
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 Bank,
the Shares or any of their other respective 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 Bank, or result in the creation of
any Encumbrance, upon any of the properties or assets of the Bank,
including the Shares or (c) violate the charter or the by-laws of the Bank.
2.4. Consents. Except as would not prevent the Bank from consummating
the transaction contemplated hereby, no permit, authorization, consent or
approval of or by, or any notification of or filing with any person
(governmental or private) is required in connection with the execution,
delivery and performance by the Bank of this Agreement or any documentation
relating thereto, the consummation by the Bank of the transactions
contemplated hereby, or the sale or delivery of the Shares.
2.5. Ownership. The Bank is the lawful owner through its nominee,
Calder, of the Shares, and the Bank has good title to the Shares, free and
clear of any and all mortgages, rights of first refusal or first offer,
security interest liens, mortgages, pledges, charges and similar
restrictions (collectively, "Encumbrances"), and upon completion of the
transaction contemplated by this Agreement, the Bank will cause Calder to
transfer to the Purchaser good and valid title to the Shares free and clear
of any Encumbrances.
2.6. Brokers. Except as set forth in Section 1.1, no agent, broker,
investment banker or other person or entity acting on behalf of the Bank or
under the authority of the Bank is or will be entitled to any fee or
commission directly or indirectly from any party hereto in connection with
any of the transactions contemplated hereby.
ARTICLE III
PURCHASER REPRESENTATIONS & WARRANTIES
The Purchaser represents and warrants to the Bank as of the date hereof as
follows:
3.1. Investment. The Purchaser is acquiring the Shares for its own
account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
3.2. No Registration. The Purchaser understands that (i) the Shares
have not been registered under the Securities Act or any state securities
laws, (ii) the Shares 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, and
(iii) the Shares may be further restricted by legends on the share
certificates.
3.3. Accredited Investor. The Purchaser is an "Accredited Investor"
(as defined in Rule 501(a) under the Securities Act).
3.4. Organization. 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 this Agreement. The Agreement has
been duly authorized by all necessary action on the part of the Purchaser.
The Agreement constitutes a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms.
3.5. Authorization. The execution, delivery and performance of this
Agreement has been duly authorized by all requisite corporate action on the
part of the Purchaser, and each part of this Agreement constitutes a legal,
valid and binding obligation of the Purchaser, enforceable against the
Purchaser, in accordance with its terms.
3.6. No Conflict. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby 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, (b) conflict with or result in any breach of any of the terms,
conditions, or provisions of, or constitute (with due notice, lapse of time
or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any agreement of the Purchaser or (c) violate the
Certificate of Incorporation or the bylaws of the Purchaser.
3.7. Consents. Except as would not prevent the Purchaser from
consummating the transaction contemplated hereby, no permit, authorization,
consent or approval of or by , or any notification of or filing with any
person (governmental or private) is required in connection with the
execution, delivery and performance by the Purchaser of this Agreement or
any documentation relating thereto, or the consummation by the Purchaser of
the transactions contemplated hereby. Purchaser represents that its
acquisition of the Shares from the Bank is exempt from the requirements of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act")
under 16 C.F.R. Section 802.21. Purchaser agrees that it shall indemnify
the Bank and holds the Bank harmless from any penalties under the HSR Act
with respect to this acquisition.
3.8. Brokers. Except as set forth in Section 1.1, no agent, broker,
investment banker or other person or entity acting on behalf of the
Purchaser or under the authority of the Purchaser is or will be entitled to
any fee or commission directly or indirectly from any party hereto in
connection with any of the transactions contemplated hereby.
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 Bank, to:
S.D.N. Belcher
Executive Vice President
The Bank of Nova Scotia
40 King Street West, 6th Floor
Toronto, Ontario
Canada M5H 1H1
and
D. Norman Gillespie
The Bank of Nova Scotia
One Liberty Plaza, 25th Floor
New York, NY 10006
with a copy to:
Chaim J. Fortgang, Esq.
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, NY 10019
(ii) if to the Purchaser, to:
Penske Automotive Holdings Corp.
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. Penske may freely assign the
right to purchase stock but not its obligations under this Agreement to any
wholly-owned subsidiary of Penske.
4.4. Entire Agreement. This Agreement (with the documents referred to
herein or delivered pursuant hereto) 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. 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.
4.9. 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.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
BANK:
THE BANK OF NOVA SCOTIA
By: /s/ Peter E. Mogk
----------------------------
Name: Peter E. Mogk
Title: Treasurer
PURCHASER:
PENSKE AUTOMOTIVE HOLDINGS CORP.
By: /s/ D.N. Gillespie
----------------------------
Name: D.N. Gillespie
Title: Managing Director/
Unit Head
