EXHIBIT 99.32
EXECUTION COPY
PURCHASE AGREEMENT
between
PENSKE AUTOMOTIVE HOLDINGS CORP.,
INTERNATIONAL MOTOR CARS GROUP I, L.L.C
and
X.X. XXXXXX PARTNERS (BHCA), L.P.
dated as of
April 4, 2003
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of April 4, 2003, between X.X. Xxxxxx Partners
(BHCA), L.P., a Delaware limited partnership ("Seller"), Penske Automotive
Holdings Corp., a Delaware Corporation ("Penske Holdings") and
International Motor Cars Group I, L.L.C., a Delaware limited liability
company ("IMCG I," and together with Penske Holdings, the "Purchasers"),
and, solely for purposes of Sections 3.6, 3.7 and Article V of this
Agreement, Penske Corporation, a Delaware corporation ("Penske"), and,
solely for purposes of Sections 3.5, 3.6 and 3.7 of this Agreement, Penske
Capital Partners, L.L.C., a Delaware limited liability company ("Penske
Capital").
RECITALS
WHEREAS, Seller owns a membership interest (the "IMCG I LLC Interest") in
IMCG I and a membership interest (the "IMCG II LLC Interest") in
International Motor Cars Group II, L.L.C.;
WHEREAS, by reason of its ownership of the IMCG I LLC Interest, Seller
economically owns 1,260,300 of the shares of voting common stock (the
"Common Stock"), par value $0.0001 per share, of United Auto Group, Inc.
(the "Company") held by IMCG I;
WHEREAS, by reason of its ownership of the IMCG II LLC Interest, Seller
economically owns 1,969,117 of the shares of Common Stock held by IMCG II;
WHEREAS, Seller has the right to require that IMCG II distribute to it the
shares of Common Stock held by IMCG II that are beneficially owned by
Seller and will seek the distribution to it of such shares;
WHEREAS, Penske Holdings desires to purchase from Seller, and Seller
desires to sell to Penske Holdings, the IMCG I LLC Interest for an
aggregate purchase price of $15,123,600; and
WHEREAS, IMCG I desires to purchase from Seller, and Seller desires to sell
to IMCG I, 354,408 shares of Common Stock (the "Shares"), at a purchase
price equal to $12.00 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 Penske Holdings Purchase. At the Closing, Penske Holdings
shall purchase (the "Penske Holdings Purchase") from Seller, and Seller
shall sell, transfer and assign to Penske Holdings, the IMCG I LLC Interest
for an aggregate purchase price of $15,123,600 (the "LLC Interest Purchase
Price").
1.2 The IMCG I Purchase. At the Closing, IMCG I shall purchase (the
"IMCG I Purchase") from Seller, and Seller shall sell and transfer to IMGC
I, the Shares at a purchase price of $12.00 per Share and an aggregate
purchase price of $4,252,896 (the "Shares Purchase Price").
1.3 The Closing. Unless otherwise extended by Seller pursuant to
Section 6.12, the closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Seller, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, on or before April 15, 2003(the
"Closing Date").
1.4 Actions at the Closing. On the Closing Date, the following actions
shall occur (the "Closing Actions"):
(a) Seller shall assign and transfer to Penske Holdings the IMCG
I LLC Interest, free and clear of Encumbrances (as hereinafter defined)
(other than any restrictions applicable to the Purchasers contained in the
IMCG I LLC Agreement (as defined below) and the Stockholders' Agreement (as
defined below), as applicable) by executing and delivering the Assignment
and Transfer Agreement attached as Exhibit A hereto;
(b) Seller shall transfer to IMCG I stock certificates
representing the Shares, free and clear of Encumbrances (other than any
restrictions applicable to the Purchasers contained in the IMCG I LLC
Agreement and the Stockholders' Agreement, as applicable) and deliver duly
executed stock powers in the form attached as Exhibit B hereto;
(c) Penske Holdings shall pay by wire transfer to Seller the LLC
Interest Purchase Price in cash; and
(d) IMCG I shall pay by wire transfer to Seller the Shares
Purchase Price in cash.
1.5 Seller's Obligations Conditional. The obligations of the Seller to
consummate each of the Penske Holdings Purchase and the IMCG I Purchase
shall be conditioned upon the consummation of each other such purchase and
neither purchase shall occur if the other such purchase does not occur. For
purposes of this Section 1.5, the Penske Holding Purchase and the IMCG I
Purchase shall be deemed to occur simultaneously.
ARTICLE II
SELLER REPRESENTATIONS & WARRANTIES
Seller represents and warrants to the Purchasers as follows as of the
date hereof and as of the Closing Date:
2.1 Organization; Power and Authority. Seller is a limited partnership
orgainized and validly existing under the laws of the State of Delaware.
Seller has all requisite partnership 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
partnership action on the part of Seller, and this Agreement constitutes a
legal, valid and binding obligation of Seller, enforceable against Seller,
in accordance with its terms.
2.3 No Conflict. The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions
contemplated hereby and the sale, transfer, assignment and delivery by
Seller of the IMCG I LLC Interest and 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 Seller, the IMCG I LLC Interest,
the Shares or any of Seller's 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 Seller, or result in the creation of
any Encumbrance, upon any of the properties or assets of Seller, including
the IMCG I LLC Interest and the Shares, or (c) violate any provisions of
Seller's organizational documents, to the extent, with respect to any of
the foregoing, that the same would adversely affect the ability of Seller
to carry out its obligations under this Agreement.
2.4 Consents. Except as would not prevent Seller from consummating the
transactions 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 Seller of this Agreement or any documentation
relating thereto, the consummation by Seller of the transactions
contemplated hereby, or the sale, assignment, transfer or delivery of the
IMCG I LLC Interest and the Shares.
2.5 Ownership. As of the Closing Date, Seller will be the lawful owner
of the IMCG I LLC Interest and the Shares, and Seller will have good title
to the IMCG I LLC Interest and the Shares, free and clear of any and all
mortgages, rights of first refusal or first offer, security interests
liens, mortgages, pledges, charges and similar restrictions (collectively,
"Encumbrances") (but other than transfer restriction legends on the Share
certificates and any such Encumbrances contained in the Second Amended and
Restated Stockholders' Agreement dated as of February 22, 2002, by and
among Purchaser, Seller and the other parties thereto (the "Stockholders'
Agreement"), the Amended and Restated Limited Liability Company Agreement
for International Motor Cars Group I, LLC dated as of February 22, 2002, by
and among Seller, Penske Capital Partners, L.L.C. ("Penske Capital") and
the other parties thereto (the "IMCG I LLC Agreement"), and the Amended and
Restated Limited Liability Company Agreement for International Motor Cars
Group II, LLC, dated as of February 22, 2002, by and among Seller and
Penske Capital (the "IMCG II LLC Agreement," and together with the IMCG I
LLC Agreement, the "LLC Agreements")), and upon completion of the
transaction contemplated by this Agreement, Seller will transfer to Penske
Holdings good and valid title to the IMCG I LLC Interest and will transfer
to IMCG I the Shares free and clear of any Encumbrances (other than
transfer restriction legends on the Share certificates and any Encumbrances
applicable to the Purchasers contained in the IMCG I LLC Agreement or the
Stockholders' Agreement, as applicable).
2.6 Public Filings. As of the Closing Date, Seller has reviewed all
filings that the Company has actually made prior to the Closing Date
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and which are available for review prior to the Closing Date.
2.7 Due Diligence. Seller has such knowledge and experience in
financial and business matters that Seller is capable of evaluating the
merits and risks of completing the transactions contemplated by this
Agreement. Seller has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to enter into and complete the
transactions contemplated by this Agreement. In evaluating the merits and
risk of the transactions contemplated by this Agreement, Seller has relied
on the advice of its investment advisors and/or its legal counsel.
2.8 Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of Seller or under the authority of Seller 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
ACKNOWLEDGEMENTS AND AGREEMENTS
3.1 Seller acknowledges and agrees that it is aware that the
Purchasers, the Purchasers' affiliates or any of their respective
directors, officers, employees, agents, brokers, trustees or advisors
(collectively, "Purchaser Related Persons" and each a "Purchaser Related
Person") have or may have material non-public information (which may be
either favorable or adverse) concerning the Company, the Common Stock, the
Shares, IMCG I or the IMCG I LLC Interest that has not been disclosed by
the Purchasers to Seller. Seller acknowledges that neither the Purchasers
nor any Purchaser Related Person has any obligation to disclose to Seller
any such material or potentially material information. Seller acknowledges
that it has made its own analysis and decision to sell, transfer and assign
the IMCG I LLC Interest and the Shares.
3.2 Seller acknowledges that it has received certain limited
information from Purchaser and it has not requested that the Purchasers or
any Purchaser Related Entity disclose to Seller any other information
relating to the Company, the Common Stock, the Shares, IMCG I, or the IMCG
I LLC Interest. Seller also acknowledges that it is not relying upon any
disclosure (or non-disclosure) made (or not made) by the Purchasers or any
other Purchaser Related Person in connection with its sale, transfer and
assignment of the IMCG I LLC Interest and the Shares.
3.3 Seller agrees that it has and will have no claims (under any
federal or state securities law or otherwise, to the extent permitted under
applicable law) against the Purchasers or any other Purchaser Related
Person in connection with or arising out of any failure of the Purchasers
or any other Purchaser Related Person to disclose any material non-public
information in connection with this transaction. Seller further covenants
and agrees not to assert any such claim.
3.4 In the event that any Purchaser intends to makes any public
announcement or public filing pursuant to the Exchange Act or otherwise in
connection with, or as a result of, the transactions contemplated by this
Agreement, such Purchaser, shall provide Seller with a reasonable
opportunity to review and comment on such announcement or filing and shall
consider any such comments in good faith prior to publication or filing.
3.5 Pursuant to Section 9.1 of the IMCG I LLC Agreement, Penske
Capital hereby consents to the transfer by Seller of the IMCG I LLC
Interest to Penske Holdings as contemplated hereby. Additionally, Penske
Capital and Seller hereby acknowledge and agree that, immediately following
the Closing, Seller will be deemed to have withdrawn from IMCG I in
accordance with Section 10.1 of the IMCG I LLC Agreement.
3.6 Each of the Purchasers, Penske, Penske Capital (collectively, the
"Purchaser Affiliated Releasors") does from and after the Closing hereby
release forever and discharge Seller, each of Seller's affiliates, and each
of their respective directors, officers, employees, agents, brokers,
trustees or advisors (collectively, the "Seller Releasees"), of and from
any and all claims, demands, causes of action, damages or liabilities of
any kind or nature whatsoever ("Claims") that relate to or arise out of any
dealings, relationships or transactions by and between such Purchaser
Affiliated Releasor, on the one hand, and any Seller Releasee, on the other
hand, insofar as such relates to the Company, IMCG I, the Common Stock, the
Shares, the Stockholders Agreement or the IMCG I LLC Agreement, in law or
equity, which against any Seller Releasee such Purchaser Affiliated
Releasor, has ever had, now has or which it hereafter can, shall or may
have, whether or not now known, from the beginning of the world to the
Closing Date. Notwithstanding the foregoing, the Purchasers do not release
or discharge any Seller Affiliated Releasee for any Claims arising out of,
in connection with, or relating to, any covenant, representation or
warranty or other obligation by Seller made or performed prior to the
Closing or by Selller to be performed after the Closing, in each case,
pursuant to this Agreement.
3.7 Seller does from and after the Closing hereby release forever and
discharge each of the Purchasers, Penske, Penske Capital, and each of their
respective affiliates, directors, officers, employees, agents, brokers,
trustees or advisors (collectively, the "Purchaser Affiliated Releasees"),
of and from any and all Claims that relate to or arise out of any dealings,
relationships or transactions by and between Seller, on the one hand, and
any Purchaser Affiliated Releasee, on the other hand, insofar as such
relates to the Company, IMCG I, the Common Stock, the Shares, the
Stockholders Agreement or the IMCG I LLC Agreement, in law or equity, which
against any Purchaser Affiliated Releasee Seller has ever had, now has or
which it hereafter can, shall or may have, whether or not now known, from
the beginning of the world to the Closing Date. Notwithstanding the
foregoing, Seller does not release or discharge any Purchaser Affiliated
Releasee for any Claims arising out of, in connection with, or relating to,
any covenant, representation or warranty or other obligation by Purchaser
made or performed prior to the Closing or by Purchaser to be performed
after the Closing, in each case, pursuant to this Agreement.
ARTICLE IV
PURCHASER REPRESENTATIONS & WARRANTIES
Each of the Purchasers represents and warrants to Seller as of the
date hereof and as of the Closing Date as to itself, as follows:
4.1 Organization. Such 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. This Agreement has
been duly authorized by all necessary action on the part of such Purchaser.
This Agreement constitutes a valid and binding agreement of such Purchaser
enforceable against such Purchaser in accordance with its terms.
4.2 No Conflict. The execution, delivery and performance by such
Purchaser of this Agreement and the consummation by such 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 such 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 such Purchaser or (c) violate the
Certificate of Incorporation or the bylaws (or equivalent governing
documents) of such Purchaser.
4.3 Consents. Except as would not prevent such Purchaser from
consummating the transactions 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 such Purchaser of this
Agreement or any documentation relating thereto, or the consummation by
such Purchaser of the transactions contemplated hereby.
4.4 Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of such Purchaser or under the authority of such
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.
4.5 Status of Purchaser. Such Purchaser is an accredited investor
within the meaning of the rules of the Securities Act of 1933, as amended
(the "Securities Act"), with full access to information respecting the
business and affairs of the Company. Further, such Purchaser understands
and acknowledges the restrictions imposed by the Securities Act respecting
resales of the IMCG I LLC Interest, the Common Stock underlying the IMCG I
LLC Interest or the Shares and represents that it is acquiring the IMCG I
LLC Interest or the Shares, as applicable, as principal and not on behalf
of or as agent for others who are not Purchaser Related Persons or with a
view towards redistribution thereof in violation of the Securities Act.
ARTICLE V
WAIVER OF RIGHT OF FIRST REFUSAL;
DISLOSURE OF CERTAIN TAX INFORMATION
5.1 Waiver. Penske hereby agrees to waive and does waive any and all
rights it may have under or related to Section 4.1 of the Stockholders'
Agreement with respect to the transactions contemplated by this Agreement.
5.2 Disclosure of Certain Tax Information. Notwithstanding any other
agreement to the contrary, Penske and Seller hereby agree that Seller (and
each employee, representative, or other agent of Seller) may disclose to
any and all persons, without limitation of any kind, the tax treatment and
tax structure of the transactions contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) that are
provided to Seller relating to such tax treatment and tax structure.
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representations. The representations, warranties and
acknowledgements made in this Agreement shall survive for a period ending
six months after the Closing Date provided that the representation and
warranty of Seller set forth in Section 2.5 shall survive without
limitation.
6.2 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 Seller, to:
X.X. Xxxxxx Partners (BHCA), L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Official Notices Clerk
(ii) if to Penske Holdings, to:
Penske Automotive Holdings Corp.
c/o Penske Corporation
00000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(iii) if to IMCG I, to:
International Motor Cars Group I, L.L.C.
c/o Penske Corporation
00000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(iv) if to Penske, to:
Penske Corporation
00000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
6.3 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.
6.4 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 assigns, whether so expressed or not. .
6.5 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
6.10 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.
6.11 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 might 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,
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.
6.12 Transfer Taxes. All transfer taxes, if any, required to be paid
by Seller (a) in connection with the transfer of the Shares shall be paid
by IMCG I and (b) in connection with the transfer of the IMCG I LLC
Interest shall be paid by Penske Holdings.
6.13 Termination. In the event that the Closing has not occurred by
5:00 PM (NYT) on April 15, 2003, other than due to a material breach of
this Agreement by Seller, this Agreement shall automatically terminate and
be of no further force and effect unless extended by Seller, such extension
to be in Seller's sole discretion. In the event of a material breach by
Seller of this Agreement, either Purchaser may terminate this Agreement at
anytime after April 15, 2003.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
PENSKE AUTOMOTIVE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
INTERNATIONAL MOTOR CARS GOUP II, L.L.C.
By: Penske Capital Partners, L.L.C.,
as Managing Member
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
(SOLELY FOR PURPOSES OF SECTIONS 3.6, 3.7 AND ARTICLE V OF THIS AGREEMENT):
PENSKE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
(SOLELY FOR PURPOSE OF SECTIONS 3.5, 3.6 AND 3.7 OF THIS AGREEMENT)
PENSKE CAPITAL PARTNERS, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
