EXHIBIT 12
[FORM OF]
PURCHASE AGREEMENT
BY AND AMONG
MITSUI & CO., LTD.,
MITSUI & CO. (U.S.A.), INC.,
[____________________________],
and
PENSKE CORPORATION
DATED AS OF
SEPTEMBER 14, 2006
TABLE OF CONTENTS
PAGE
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ARTICLE I
SALE AND PURCHASE OF SECURITIES
Section 1.1 The Purchase................................................ 1
Section 1.2 Purchase Price.............................................. 2
Section 1.3 The Closing................................................. 2
Section 1.4 Payment Instructions........................................ 2
Section 1.5 Actions at the Closing...................................... 2
Section 1.6 Legend...................................................... 3
ARTICLE II
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
Section 2.1 Status...................................................... 3
Section 2.2 Power and Authority......................................... 4
Section 2.3 Enforceability of this Agreement............................ 4
Section 2.4 No Conflict................................................. 4
Section 2.5 Consents.................................................... 5
Section 2.6 Title to Shares; "Big Boy" Representation................... 5
Section 2.7 Taxes....................................................... 5
ARTICLE III
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASERS
Section 3.1 Representations and Warranties of the Purchasers............ 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Intentionally deleted....................................... 7
ARTICLE V
CONDITIONS
Section 5.1 Conditions to Obligations of the Purchasers................. 7
Section 5.2 Conditions to Obligations of the Seller..................... 9
ARTICLE VI
TERMINATION
Section 6.1 Termination prior to Closing................................ 9
Section 6.2 Effects of Termination...................................... 10
Section 6.3 Survival of Representations................................. 10
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices..................................................... 10
Section 7.2 Amendments and Waivers...................................... 11
Section 7.3 Successors and Assigns...................................... 12
Section 7.4 Entire Agreement............................................ 12
Section 7.5 Governing Law............................................... 12
Section 7.6 Submission to Jurisdiction.................................. 12
Section 7.7 Counterparts................................................ 12
Section 7.8 Severability................................................ 12
Section 7.9 Specific Performance........................................ 13
Section 7.10 Further Assurances.......................................... 13
Section 7.11 Expenses.................................................... 13
ARTICLE VIII
DEFINITIONS
Section 8.1 Definitions................................................. 13
ii
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (the "Agreement") dated as of September 14, 2006 is
by and among 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, each individually, a "Purchaser", and together, the "Purchasers"),
[__________________] [, a _____________ limited liability company] (the
"Seller"), and PENSKE CORPORATION, a Delaware corporation, as paying agent (the
"Paying Agent"). Capitalized terms used in this Agreement are defined in Section
8.1.
RECITALS
WHEREAS, the Seller desires to sell to the Purchasers, and the Purchasers
desire to purchase from the Seller, [one-half] [all] of the Common Stock, par
value $0.0001 per share, of United Auto Group, Inc., a Delaware corporation (the
"Company"), that is to be distributed to Seller in Seller's capacity as a member
of Penske Associates, LLC, a Delaware limited liability company ("Associates")
in September 2006 (the "Distribution"), for a purchase price determined in
accordance with this Agreement;
WHEREAS, a number of other sellers desire to sell to the Purchasers, and
the Purchasers desire to purchase from such sellers, shares of Common Stock of
the Company pursuant to certain separate purchase agreements (the "Other
Purchase Agreements").
WHEREAS, Penske Corporation ("Penske") and the Seller desire to enter,
simultaneously to this Agreement, into a certain purchase agreement, dated as of
the date of this Agreement (the "Penske Purchase Agreement"), pursuant to which
the Seller will sell to Penske and Penske will purchase from the Seller a
certain number of Securities at a purchase price equal to the Purchase Price,
and to close, simultaneously to the transaction contemplated by this Agreement,
the transaction contemplated by the Penske Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and of the mutual
covenants, representations and warranties 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
Section 1.1 The Purchase. At the Closing, subject to the terms and
conditions hereof, the Seller shall sell to Purchasers [one-half] [all] of the
Common Stock received by Seller in the Distribution, of which (a) 80% shall be
sold to Mitsui Japan (the "Mitsui
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Japan Securities") at a purchase price per share determined in accordance with
Section 1.2 (the "Mitsui Japan Purchase Price") payable to the Paying Agent at
the Closing (the "Mitsui Japan Purchase"), and (b) 20% shall be sold to Mitsui
USA (the "Mitsui USA Securities" and, together with the Mitsui Japan Securities,
the "Securities") at a purchase price per share determined in accordance with
Section 1.2 (the "Mitsui USA Purchase Price" and, together with the Mitsui Japan
Purchase Price, the "Purchase Price") payable to the Paying Agent at the Closing
(the "Mitsui USA Purchase" and, together with the Mitsui Japan Purchase, the
"Purchase").
Section 1.2 Purchase Price. The purchase price of each share shall be the
average of the daily closing sales prices of the Common Stock of the Company for
the twenty (20) consecutive trading days as reported on the New York Stock
Exchange immediately preceding September 12, 2006 (the "Current Market Value").
The Purchase Price shall be the amount determined by multiplying the number of
Securities by the Current Market Value.
Section 1.3 The Closing. The closing of the sale and purchase of the
Securities (the "Closing") shall take place at the offices of Penske
Corporation, 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx, at 9:00 a.m.,
Michigan time, as soon as practicable, but in any event not earlier than
September 12, 2006 nor later than five Business Days thereafter and, in any
event, only upon the satisfaction or waiver of the conditions contained in
Article V, unless the parties otherwise agree in writing (the "Closing Date").
Section 1.4 Payment Instructions. At the Closing, the Purchasers shall
deliver funds in the amount equal to the Purchase Price to the Paying Agent
pursuant to Sections 1.5(c) and 1.5(d) by wire transfer to the Paying Agent
Account. For the avoidance of doubt, the Purchasers shall have fully satisfied
their obligations hereunder to pay the Purchase Price upon delivery of the
Purchase Price to the Paying Agent.
Section 1.5 Actions at the Closing. At the Closing, the following actions
shall occur (the "Closing Actions"):
(a) The Seller shall deliver, or cause to be delivered, to Mitsui
Japan the Mitsui Japan Securities sold hereunder by the Seller, evidenced
by a stock certificate in the name of Mitsui Japan, duly endorsed for
transfer or accompanied by duly executed stock powers or other instruments
of transfer duly executed, or in an electronic format acceptable to the
Purchasers, and bearing or accompanied by all requisite stock transfer
stamps. The Mitsui Japan Securities are delivered free and clear of all
Liens, encumbrances, options and claims thereon.
(b) The Seller shall deliver, or cause to be delivered, to Mitsui USA
the Mitsui USA Securities sold hereunder by the Seller, evidenced by a
stock certificate in the name of Mitsui USA, duly endorsed for transfer or
accompanied by duly executed stock powers or other instruments of transfer
duly executed or in
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an electronic format acceptable to the Purchasers, and bearing or
accompanied by all requisite stock transfer stamps. The Mitsui USA
Securities are delivered free and clear of all Liens, encumbrances, options
and claims thereon.
(c) Mitsui Japan shall pay the Mitsui Japan Purchase Price to the
Paying Agent. The Mitsui Japan Purchase Price is to be held by the Paying
Agent in the name of Mitsui Japan and shall be released to the account of
the Seller, who delivered, or caused to be delivered, Mitsui Japan
Securities in accordance with Section 1.5(a), if, and only if, the stock
certificate representing the Mitsui Japan Securities has been duly and
validly delivered to Mitsui Japan in accordance with Section 1.5(a).
(d) Mitsui USA shall pay the Mitsui USA Purchase Price to the Paying
Agent. The Mitsui USA Purchase Price is to be held by the Paying Agent in
the name of Mitsui USA and shall be released to the account of the Seller,
who delivered, or caused to be delivered, Mitsui USA Securities in
accordance with Section 1.5(b), if, and only if, the stock certificate
representing the Mitsui USA Securities has been duly and validly delivered
to Mitsui USA in accordance with Section 1.5(b).
Section 1.6 Legend. The parties hereby acknowledge and agree that each of
the certificates representing the Securities shall include the following legend
and any other legend required by applicable Laws:
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.
ARTICLE II
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
The Seller hereby represents and warrants to each Purchaser as follows
as of the date hereof and as of the Closing Date:
Section 2.1 Status.
(a) If, and to the extent that, the Seller is a limited liability
company (or a corporation), such Seller is a limited liability company (or
a corporation) duly organized, validly existing and in good standing under
the Laws of Delaware and in any other state or jurisdiction in which it is
licensed to do business and has all requisite corporate power
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and authority to carry on its business as now conducted. Such Seller has
delivered to Purchasers complete copies of such Seller's organizational
documents as currently in effect, and such Seller is not in violation of
any provision of such organizational documents.
(b) If, and to the extent that, the Seller is a natural person, such
Seller is a resident of the state specified in the address set forth on the
signature page as of signing, has the legal age, the competence and any
other prerequisite required by applicable Laws to enter into, execute,
perform and consummate this Agreement and any action required in connection
with the execution and delivery by such Seller of this Agreement or any
documentation relating thereto, the consummation by such Seller of the
transactions contemplated hereby or thereby, or the sale or delivery of the
Securities, provided that if Seller moves from such state of residence to
another state between the signing and Closing of this Agreement, such
Seller shall promptly inform the Purchasers of such change in state of
residence.
(c) If, and to the extent that, the Seller is a married natural person
and resides in a so-called "community property" state, the Seller's spouse
has consented to the transactions contemplated by this Agreement.
Section 2.2 Power and Authority. The Seller has full power and authority to
execute and deliver this Agreement, to perform the Seller's obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery by the Seller of this Agreement, the performance of the Seller's
obligations hereunder, and the consummation by the Seller of the transactions
contemplated hereby have been duly and validly authorized by all requisite
action of the Seller. The Seller has duly executed and delivered this Agreement.
Section 2.3 Enforceability of this Agreement. This Agreement constitutes a
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms.
Section 2.4 No Conflict. The execution, delivery and performance by the
Seller of this Agreement and the consummation by the Seller of the transactions
contemplated hereby and thereby, and the sale and delivery by the Seller of the
Securities will not (a) violate any provision of any applicable Laws (including
stock exchange rules), or any ruling, writ, injunction, order, judgment or
decree of any court, administrative agency or other governmental body applicable
to the Seller or any of the Seller's properties or assets, (b) give any
governmental body or other Person the right to challenge any of the transactions
contemplated by this Agreement, (c) contravene, conflict with, or result in any
violation or breach of any 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 to which the
Seller is a party, (d) result in the creation of any mortgage, Lien, security
interest, loan, charge or encumbrance, upon any of the
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properties or assets of the Seller, (e) require any consent or other action by
any Person under any provision of any material agreement or other instrument to
which the Seller is a party, or (f) if the Seller is a limited liability company
(or a corporation), conflict with or result in any violation or breach of any
provision of any of the organizational documents of such Seller or any of its
subsidiaries.
Section 2.5 Consents. No permit, authorization, consent or approval of or
by, or any notification of or filing of the Seller with any Person is required
in connection with the execution and delivery by the Seller of this Agreement or
any documentation relating thereto, the consummation by the Seller of the
transactions contemplated hereby or thereby, or the sale or delivery of the
Securities that has not been made and obtained as of the date hereof.
Section 2.6 Title to Shares; "Big Boy" Representation. The Securities have
been duly authorized and validly issued and are fully paid and non-assessable.
The Seller owns the Securities, legally and beneficially and of record, free and
clear of any and all Liens, encumbrances, options and claims. The Seller has the
right and authority to sell the Securities. Except as disclosed to the
Purchasers in writing prior to the date hereof, the Seller is not an "Affiliate"
(as such term is defined under the Securities Act ; and referred to herein as
"Affiliate") of the Company and has not been an Affiliate of the Company during
the three months prior to the date hereof. The Seller acknowledges that the
Purchasers may possess material information not known to the Seller, including
without limitation, information received on a confidential basis or information
received on privileged basis from the attorneys and financial advisors
representing the Company and/or from the attorneys and financial advisors
representing the senior creditors of the Company. The Seller agrees that
Purchasers shall have no liability to the Seller with respect to the
non-disclosure of any information in Purchasers' possession relating either
directly or indirectly to the financial condition or prospects of the Company or
the value of the Securities. Upon delivery of and payment for the Securities at
the Closing, the Purchasers will acquire good and valid title to all of the
Securities, free and clear of any and all Liens, encumbrances and claims.
Section 2.7 Taxes.
(a) All transfer, documentary, sales, use, stamp, registration, value
added and other such taxes and fees (including any penalties and interest)
incurred in connection with transactions contemplated by this Agreement
(including any real property transfer tax and any similar tax) shall be
paid by the Seller when due, and the Seller will, at its own expense, file
all necessary tax returns and other documentation with respect to all such
taxes and fees, and, if required by applicable Laws, each Purchaser will,
and will cause its affiliates to, join in the execution of any such tax
returns and other documentation.
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(b) The Securities have not been purchased, held or sold in connection
with any transaction required to be reported under section Section 1.6011-4
of the Treasury Regulations. The Seller will not be reporting a loss for
U.S. federal income tax purposes in connection with the Purchase in excess
of fifty (50)% of the Purchase Price.
ARTICLE III
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASERS
Section 3.1 Representations and Warranties of the Purchasers. Each
Purchaser represents and warrants to the Seller as of the date hereof and as of
the Closing Date as follows:
(a) Such Purchaser is acquiring Securities for its own account, for
investment and not with a view to the distribution thereof within the
meaning of the Securities Act.
(b) Such 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) Such Purchaser is an "Accredited Investor" (as defined in Rule
501(a) under the Securities Act).
(d) Such Purchaser is duly organized and validly existing under the
Laws of the jurisdiction of its organization and has all power and
authority to enter into this Agreement.
(e) The execution and delivery of this Agreement has been duly
authorized by all requisite corporate action on the part of such Purchaser,
and this Agreement constitutes a legal, valid and binding obligation of
such Purchaser, enforceable against such 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 such Purchaser of this
Agreement and the consummation by such Purchaser of the transactions
contemplated thereby will not (a) violate any provision of applicable Laws
related to either Purchaser, or any of its properties or assets, or (b)
violate the certificate of incorporation or the bylaws of either Purchaser.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Intentionally deleted
ARTICLE V
CONDITIONS
Section 5.1 Conditions to Obligations of the Purchasers. The obligations of
the Purchasers to consummate the Purchase shall be subject to the fulfillment on
or prior to the Closing of each of the following conditions:
(a) No Injunction, etc. Consummation of the transactions contemplated
hereby shall not have been restrained, enjoined or otherwise prohibited or
made illegal by any applicable Laws.
(b) Representations, Performance. The representations and warranties
of the Seller and of Penske contained in this Agreement and in any
certificate or other writing delivered pursuant hereto or contemporaneously
herewith referring to this Agreement shall be true and correct in all
respects at and as of the date hereof and at and as of the Closing Date
with the same effect as though made at and as of the Closing Date. The
Seller shall have in all material respects duly performed and complied with
all agreements, covenants and conditions required by this Agreement to be
performed or complied with by the Seller at or prior to the Closing.
(c) Consents, Amendments and Approvals. The Purchasers shall have
received duly executed and delivered copies of any waivers, consents,
terminations and approvals contemplated by this Agreement, all in form and
substance reasonably satisfactory to the Purchasers.
(d) No Litigation, etc. No litigation shall have been filed and be
pending, no governmental authority shall have notified the Purchasers or
any Seller of its intention to commence, or recommend the commencement of,
litigation and no Laws shall have been enacted, entered, enforced,
promulgated or issued with respect to or deemed applicable, which in any
case seeks or purports to challenge, prohibit, interfere with, limit,
delay, restrain, impose damages or other material obligations in connection
with or increase the cost of the consummation of the transactions
contemplated by this Agreement, including without limitation the
acquisition, ownership, voting or disposition by the Purchasers of any
Securities.
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(e) Actions of Associates. Associates shall have authorized and
approved the distribution of, and have distributed, the Securities to the
Seller. Associates shall have delivered to the Purchasers a certificate,
dated the Closing Date and signed by a duly authorized officer to the
effect set forth in this Section 5.1(e).
(f) Officers' Certificates by Seller. If, and to the extent that, the
Seller is a limited liability company (or a corporation), such Seller shall
have delivered to the Purchasers a certificate in form and substance
reasonably satisfactory to Mitsui, dated the Closing Date and signed by a
duly authorized officer to the effect set forth in Section 5.1(b).
(g) Penske Purchase Agreement. Penske shall have closed the
transaction with the Seller and certain other sellers pursuant to which
Penske will purchase from the Seller and certain other sellers in the
aggregate a certain number of Securities to be purchased by Purchasers
under this Agreement and the Other Purchase Agreements at the same price
per share as determined in accordance with Section 1.2 and as contemplated
by the Penske Purchase Agreement.
(h) Simultaneous Closing with Other Purchase Agreements. The
Purchasers, the Paying Agent and a number of other sellers shall have
entered into certain Other Purchase Agreements on the same terms and
conditions as contemplated by this Agreement, pursuant to which, in each
case, such seller will sell to Purchasers and Purchasers will acquire from
such seller a number of Securities, to be determined in accordance with
each such Other Purchase Agreement. The Purchasers have closed any and all
transactions contemplated by any and all Other Purchase Agreements
simultaneously with the Closing of this Agreement, provided that the
aggregate consideration to be paid by Purchasers under this Agreement and
all Other Purchase Agreements shall not exceed US$33,000,000.
(i) Certificates and Letters. The Purchasers shall have received from
the Company, the Paying Agent and certain other shareholders of the Company
such certificates, letters and other information in support of this
transaction as the Purchasers may reasonably request, including without
limitation duly executed copies of certain side letters, substantially in
the form provided by Purchasers, in connection with (i) the Purchase
Agreement, dated February 16, 2004, among Mitsui Japan, Mitsui USA,
International Motor Cars Group I, L.L.C., International Motor Cars Group
II, L.L.C., Paying Agent, Penske Automotive Holdings Corp. and the Company,
(ii) the Stockholders Agreement, dated March 26, 2004, among International
Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C.,
Mitsui Japan, Mitsui USA, Paying Agent and Penske Automotive Holdings
Corp., and (iii) the Second Amended and Restated
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Registration Rights Agreement, dated Xxxxx 00, 0000, xxxxx xxx Xxxxxxx,
Xxxxxx Xxxxx and Mitsui USA.
(j) Legal Opinion. The Seller shall have delivered, or caused to be
delivered, to the Purchasers a legal opinion, dated the Closing Date, from
counsel reasonably acceptable to Purchasers and in form and substance
reasonably satisfactory to Purchasers that the transactions contemplated by
this Agreement and the Other Purchase Agreements comply with applicable
law, that the Securities may be sold without registration as contemplated
herein and such other matters as Purchasers may reasonably request.
Section 5.2 Conditions to Obligations of the Seller. The obligation of the
Seller to consummate the Purchase shall be subject to the satisfaction or waiver
at or prior to the Closing of the following condition:
(a) Representations, Performance. The representations and warranties
of the Purchasers contained in this Agreement and in any certificate or
other writing delivered pursuant hereto shall be true and correct in all
respects at and as of the date hereof and at and as of the Closing Date
with the same effect as though made at and as of the Closing Date. The
Purchasers shall have in all material respects duly performed and complied
with all agreements, covenants and conditions required by this Agreement to
be performed or complied with by the Purchasers at or prior to the Closing.
ARTICLE VI
TERMINATION
Section 6.1 Termination prior to Closing. This Agreement may be terminated
at any time prior to the Closing upon written notice of such termination by the
terminating party to the other party setting forth the basis for such
termination:
(a) by mutual written consent of the Seller and the Purchasers;
(b) (i) by the Purchasers, if any of the applicable conditions set
forth in Section 5.1 have not been satisfied or waived on or before
September 15, 2006, or (ii) by the Seller, if any of the applicable
conditions set forth in Section 5.2 have not been satisfied or waived on or
before September 15, 2006; provided, however, that the right to terminate
this Agreement pursuant to this Section 6.1(b) shall not be available to
any party whose breach of any provision of this Agreement results in the
failure of the Closing to be consummated by such time;
(c) by either the Purchasers or the Seller, if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission
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shall have issued an order, decree or ruling or taken any other action
having the effect of permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement; or
(d) by the Purchasers or the Seller, (i) if any representation or
warranty of the other set forth in this Agreement shall be untrue in any
material respect when made to the extent that such first party did not have
actual knowledge of such breach as of the date of this Agreement, or (ii)
upon a breach in any material respect of any covenant or agreement on the
part of the other set forth in this Agreement, in each case which would
constitute a failure of the condition to Closing of the first party.
Section 6.2 Effects of Termination. In the event of termination of this
Agreement pursuant to Section 6.1, this Agreement shall become void and have no
effect, without any liability to any Person in respect hereof, except for any
liability resulting from such party's breach of this Agreement.
Section 6.3 Survival of Representations. The representations and warranties
made in this Agreement shall survive for a period ending eighteen months after
Closing, provided that the representations and warranties of the Seller set
forth in Section 2.6 shall survive without limitation.
ARTICLE VII
MISCELLANEOUS
Section 7.1 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 Seller, to the address specified for the Seller on the
signature page.
with a copy to:
Penske Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
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(ii) if to the Purchasers, to:
Mitsui & Co., Ltd.
First Motor Vehicles Div.
0-0, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx, Xxxxx
Attention: General Manager of First Motor Vehicles Div.
and
Mitsui & Co. (U.S.A.), Inc.
Detroit Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Detroit Machinery Department
with a copy to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxx and Xxxxx X. X. Xxxxx
(iii) if to Penske or the Paying Agent, to:
Penske Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: President
with a copy to:
Penske Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
Section 7.2 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.
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Section 7.3 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.
Section 7.4 Entire Agreement. This Agreement (with the documents referred
to herein or delivered pursuant hereto and together with this Agreement and with
any documents delivered contemporaneously herewith referring to 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.
Section 7.5 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 CONFLICTS OF LAW PRINCIPLES THEREOF WHICH MIGHT RESULT IN
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
Section 7.6 Submission to Jurisdiction. Each of the Seller and the
Purchasers hereby (i) irrevocably submit to the jurisdiction of the courts of
the State of New York and the Federal courts of the United States of America
located in the State 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 (ii) agree that service of any process,
summons or notice by international courier to the address set forth in Section
7.1 shall be effective service of process for any action or proceeding brought
against it in any such court.
Section 7.7 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.
Section 7.8 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.
Section 7.9 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.
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Section 7.10 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 (including, without limitation, this Agreement, certificates,
instruments and documents contemplated by Article V) 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.
Section 7.11 Expenses. Each party to this Agreement shall bear its own cost
and expenses, including fees of consultant(s), accountant(s), counsel, and any
other Person acting on behalf of or for such party.
ARTICLE VIII
DEFINITIONS
Section 8.1 Definitions. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings specified below:
"Affiliate" has the meaning set forth in Section 2.6.
"Agreement" has the meaning set forth in the first paragraph.
"Associates" has the meaning set forth in the first paragraph.
"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 Laws or
other governmental action to close in New York, New York, United States of
America or Tokyo, Japan.
"Closing" has the meaning set forth in Section 1.3.
"Closing Actions" has the meaning set forth in Section 1.5.
"Closing Date" has the meaning set forth in Section 1.3.
"Common Stock" means the 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.
"Current Market Value" has the meaning set forth in Section 1.2.
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"Distribution" has the meaning set forth in the Recitals.
"Laws" means all applicable laws, statutes, ordinances, rules, regulations,
judgments, injunctions, orders and decrees, directives or treaties.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or capital lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Mitsui Japan" has the meaning set forth in the first paragraph.
"Mitsui Japan Purchase" has the meaning set forth in Section 1.1.
"Mitsui Japan Purchase Price" has the meaning set forth in Section 1.1.
"Mitsui Japan Securities" has the meaning set forth in Section 1.1.
"Mitsui USA" has the meaning set forth in the first paragraph.
"Mitsui USA Purchase" has the meaning set forth in Section 1.1.
"Mitsui USA Purchase Price" has the meaning set forth in Section 1.1.
"Mitsui USA Securities" has the meaning set forth in Section 1.1.
"Other Purchase Agreements" has the meaning set forth in the Recitals.
"Paying Agent" has the meaning set forth in the first paragraph.
"Paying Agent Account" means the account of the Paying Agent specified
below:
Bank: LaSalle Bank, Troy, Michigan
ABA Number: 000000000
Account Name: Penske Corporation
Account Number: 6871237308
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
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"Penske" has the meaning set forth in the Recitals.
"Penske Purchase Agreement" has the meaning set forth in the Recitals.
"Purchase" has the meaning set forth in Section 1.1.
"Purchase Price" has the meaning set forth in Section 1.1.
"Purchasers" has the meaning set forth in the first paragraph.
"Securities" has the meaning set forth in Section 1.1.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning set forth in the first paragraph.
"Treasury Regulations" means the regulations prescribed under the Internal
Revenue Code of 1986, as amended.
[This Section 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.
SELLER:
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Name
Wire Transfer Information:
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Address:
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MITSUI & CO., LTD.
By:
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Name: Xxxxxx Xxxxxxxx
Title: General Manager
First Motor Vehicles Division
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MITSUI & CO. (U.S.A.), INC.
By:
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President and
General Manager
Machinery Division
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PENSKE CORPORATION
By:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
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