Exhibit 99.1
Execution Copy
PURCHASE AGREEMENT
by and among
PENSKE AUTOMOTIVE HOLDINGS CORP.
and
THE BANK OF NOVA SCOTIA
dated as of
December 15, 2000
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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.
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(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
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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
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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
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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.
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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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
BANK:
Dated: December 15, 2000
THE BANK OF NOVA SCOTIA
By: /s/ D. N. Gillespie
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Name: D. N. Gillespie
Title: Managing Director
Unit Head
PURCHASER:
PENSKE AUTOMOTIVE HOLDINGS CORP.
By: /s/ Peter E. Mogk
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Name: Peter E. Mogk
Title: Treasurer
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