EXHIBIT 99.30
PUT AGREEMENT
THIS PUT AGREEMENT (the "Agreement"), dated as of October 24, 2001, is
entered into by and among Penske Corporation, a Delaware corporation
("Penske"), United Auto Group, Inc., a Delaware corporation ("UAG"), and
Xxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx, Co-Trustees of the Xxxxxxx Family 1984
Trust, UTD 3/27/84 ("J&L Xxxxxxx"), Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx,
Co-Trustees of the Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx Family Trust, UTD
9/1/92 ("T&C Xxxxxxx"), Xxxxxx X. Xxxxxxx, as Trustee of the Xxxxxxx
Grandchildrens' Trust #1 and as Trustee of the Xxxxxxx Grandchildrens'
Trust #2 (the "Grandchildrens' Trusts"), Xxxxxx X. Xxxxxxx ("X. Xxxxxxx")
and Xxxxxxx Xxxxx, Trustee of the Xxxxxxx Xxxxx Xxxxx Trust, UTD May 18,
2001 ("Xx. Xxxxx", and together with J&L Xxxxxxx, T&C Xxxxxxx, the
Grandchildrens' Trusts and X. Xxxxxxx, the "Stockholders" and each
individually, a "Stockholder").
A. Pursuant to that certain Stock Purchase Agreement dated July 20,
2001 as amended (the "Stock Purchase Agreement"), by and among UAG, UAG
West, Inc., a Delaware corporation ("UAG West"), GMG Motors, Inc., a
California corporation d/b/a BMW of San Diego (the "Company"), and the
Stockholders, UAG West is acquiring all of the issued and outstanding
shares of capital stock of the Company from the Stockholders in exchange
for a cash payment and shares of restricted common stock of UAG ("UAG
Stock").
B. To induce the Stockholders to enter into the Stock Purchase
Agreement, Penske has agreed to purchase the UAG Stock from the
Stockholders, at the Stockholders' option, on the terms and conditions
contained herein.
C. Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Put Options. During the period commencing fifteen (15) months after
the Closing Date and ending twenty-four (24) months following the Closing
Date (the "Term"), each Stockholder shall have the separate right
(individually and collectively the "Put Option"), at its option, to sell to
Penske any or all, but in no event less than fifty percent (50%), of the
shares of UAG Stock then owned by such Stockholder, and Penske shall be
obligated to purchase from the Stockholder the number of shares of UAG
Stock (the "Put Securities") specified in such Stockholder's Notice of Sale
(as hereinafter defined), free and clear of all liens and encumbrances, at
a price per share equal to the price per share used for determining the
Stock Component in the Stock Purchase Agreement, which is the average of
the closing prices of the UAG Stock as quoted on the New York Stock
Exchange for the twenty (20) trading days ending on the trading day
immediately prior to the Closing Date under the Stock Purchase Agreement
(the "Put Price"). Anything contained in this Agreement to the contrary
notwithstanding, each Stockholder shall have only one Put Option during the
Term of this Agreement, and, in the event a Stockholder exercises its Put
Option with respect to fewer than all of its shares of UAG Stock, Penske
shall have no obligation to purchase the remaining shares of UAG Stock
owned by such Stockholder.
2. Exercise of Put Options; Performance; and Default.
-------------------------------------------------
a. During the Term, Stockholders, and each of them individually,
may exercise their Put Option by delivering to Penske and UAG, at the
addresses specified in Section 5, a notice of sale (the "Notice of Sale"),
specifying the number of shares of UAG Stock with respect to which the
respective Stockholder desires to exercise its Put Option. On such date as
Penske shall notify the Stockholder and UAG, but not later than thirty (30)
days (subject to Section 6 hereof) after Penske's receipt of such Notice of
Sale, Penske shall transfer to the noticing Stockholder, in immediately
available funds by the method specified in such Notice of Sale, the Put
Price against the delivery by the respective Stockholder of the certificate
or certificates representing the shares of UAG Stock to be sold duly
endorsed in blank or with an assignment separate from certificate duly
endorsed by the Stockholder in blank. If the noticing Stockholder exercises
its Put Option with respect to fewer than all of its UAG Stock represented
by the certificate or certificates so delivered to Penske, Penske shall
tender the certificates and stock assignment to UAG, and UAG shall cancel
the certificates so tendered within thirty (30) days following the Notice
of Sale and (a) deliver to the Stockholder a new certificate evidencing the
number of shares of UAG Stock represented by the certificate or
certificates so delivered with respect to which the Put Option was not
exercised pursuant to such Notice of Sale, and (b) deliver to Penske a new
certificate evidencing the number of shares of UAG Stock purchased by
Penske pursuant to the Notice of Sale. Any certificates issued by UAG to
the Stockholder representing the unsold UAG Stock shall bear the same
legends as the UAG Stock issued to the Stockholder under the Stock Purchase
Agreement. Each Stockholder has a separate Put Option under this Agreement
and each Stockholder has an independent right to compel enforcement of the
terms of this Agreement in the event of any default by Penske.
b. In the event of default in the payment obligations set forth
in this Agreement, and following ten (10) days written notice of default
sent to Penske and UAG pursuant to the notice provision contained herein,
and no cure of the default having occurred within said ten (10) days, the
amount due from Penske for the Put Price that has been exercised shall be
increased by ten percent (10%) and that penalty shall be due together with
the amount of the Put Price specified above multiplied by the number of
shares of the exercised Put Option and interest shall thereafter accrue at
the rate of ten percent (10%) per annum on the unpaid amount arising as a
result of the exercise of the Put Option and the penalty stated herein
until paid in full, and all of the restrictive covenants relating to the
Restricted Stockholders as contained in Sections 6.14 and 6.15 of the Stock
Purchase Agreement shall automatically terminate, without the need for any
notice thereof. The default provisions contained herein shall apply to the
exercise of any Put Option by any of the Stockholders.
3. Termination. Subject to the provisions of Section 6 hereof, this
Agreement shall terminate without notice as to each Stockholder upon the
earliest of the following events: (i) the expiration of the Term; (ii) the
date on which a Stockholder exercises its Put Option with respect to some
or all of the UAG Stock and Penske pays for such UAG Stock and UAG has
issued and delivered to said stockholder a certificate for the balance of
shares, if applicable, or (iii) if and when the daily closing price of
UAG's common stock as listed on the New York Stock Exchange exceeds the Put
Price for a period of ninety (90) consecutive calendar days following the
first anniversary of the Closing Date and the UAG Stock could have been
sold by the Stockholder pursuant to an exemption from registration under
Rule 144 of the Securities Act or otherwise throughout the ninety (90) day
period.
4. Modification and Waiver. The parties hereto may amend, modify or
supplement this Agreement in such manner as may be agreed upon by them in
writing at any time. Any party may, by an instrument in writing, extend the
time for or waive the performance of any of the obligations of the others
or waive compliance by the others with any of the provisions contained
herein. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect such party's
right at a later date to enforce the same. No waiver by any party of a
breach of this Agreement, whether by conduct or otherwise, in any one or
more instances shall be deemed to be a further or continuing waiver of such
breach or a waiver of any condition or of any other breach of this
Agreement.
5. Notices. All notices or other communications required or permitted
hereunder shall be given in writing and shall be deemed sufficient if
delivered by hand, recognized overnight delivery service (e.g. Federal
Express, UPS, etc.) for next business day delivery or mailed by registered
or certified mail, postage prepaid (return receipt requested), as follows:
To Penske: Penske Corporation
Attn: General Counsel
00000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxxxx Xxxxx
Attn: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
To UAG: United Auto Group, Inc.
Attn: Xxxxxx Xxxxxxxxxxxxx
0000 Xxxx XxXxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxxxx Xxxxx
Attn: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
United Auto Group, Inc.
Attn: General Counsel
00000 Xxxxx Xxxxx Xxxx, Xxxxx 00X
Xxxxxxx, Xxxxxxxx 00000
To the Stockholders: Mr. and Xxx Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Mr. and Xxx. Xxxxx X. Xxxxxxx
3404 00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx X0X0X0
Xx. Xxxxxx X. Xxxxxxx
0000 Xxx Xxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Xx. Xxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Xx. Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xx Xxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx X. Small, Esq.
Xxxxxx X. Small, a Professional
Corporation 00000 Xxxx Xxxxx Xxxxx, Xxxxx
000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
or such other address as shall be furnished in writing by such party, and
any such notice or communication shall be effective and be deemed to have
been given as of the date so delivered or three (3) days after the date so
mailed; provided, however, that notice or communication changing any of the
addresses set forth above shall be effective and deemed given only upon its
receipt. Although notices may also be communicated via facsimile, such
communication is not a valid means of communication to satisfy the
requirements under this Section.
6. UAG Stock; Securities Matters. This Agreement applies only to the
UAG Stock issued to the Stockholders pursuant to the Stock Purchase
Agreement and not to any other securities of UAG now owned or hereafter
acquired by the Stockholders. Further, the Stockholders acknowledge that
Penske is an affiliate of UAG, and may from time to time have access to
material, nonpublic information concerning UAG. If Penske has possession of
material, nonpublic information concerning UAG at the time a Notice of Sale
is given by a Stockholder, and independent legal counsel (not house or
staff legal counsel, but an independent attorney, such as Xxxxxxxxx Xxxxx)
for Penske opines in writing to Penske and to Stockholders that Penske has
a legal obligation not to purchase the tendered UAG Stock until such
information is made public, then the obligation of Penske to purchase the
UAG Stock pursuant to the Notice of Sale shall be delayed until such time
as Penske may act in accordance with the Notice of Sale (e.g. when the
nonpublic information is publicly disclosed or the impairment of performing
under this Agreement no longer exists). If Penske is unable to perform its
obligations due to its possession of material nonpublic information and
Penske's inability to perform continues for a period of six (6) months
following receipt by Penske of Notice of Sale, and the Put Price was not
exceeded for a period of ninety (90) consecutive calendar days during said
period and the Stockholders had the ability to sell their UAG Stock
pursuant to an exemption from registration under Rule 144 of the Securities
Act or otherwise throughout a ninety (90) consecutive calendar day period,
then the Put Price shall be increased by ten percent (10%). The Term of
this Agreement and all time periods stated herein relating to the exercise
of the Put Option, and the time period for the trading price as set forth
above, shall be extended by a period equal to the duration of the delay for
any Stockholder for a delay under this Section 6 has occurred.
7. Gender and Number Etc. All words or terms used in this Agreement,
regardless of the number or gender is which they are used, shall be deemed
to include any other number and any other gender as the context may
require. "Hereof," "herein," and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole, and not to any
particular paragraph or provision, unless expressly so stated.
8. Assignment. This Agreement shall not be assignable by the
Stockholders without the prior written consent of Penske and UAG. Subject
to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the respective successors, assigns, heirs and personal
representatives of the parties hereto.
9. Entire Agreement and Captions. This Agreement sets forth the entire
understanding of the parties hereto and supersedes all prior agreements,
arrangements and communications, whether oral or written between or among
the parties with respect to the subject matters hereof. Captions appearing
in this Agreement are for convenience of reference only and shall not be
deemed to explain, limit or amplify the provisions hereof.
10. Counterparts. This Agreement may be executed by facsimile
signature(s) and in any number of counterparts, all of which shall be
considered one and the same agreement and each of which shall be deemed an
original.
11. Severability. If any one of more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected thereby. To the extent permitted by
applicable law, each party waives any provision of law which renders any
provision of this Agreement invalid, illegal or unenforceable in any
respect.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California and any actions for
enforcement or interpretation shall be brought in the County of San Diego,
State of California, which the parties agree to be the most convenient
forum.
13. No Strict Construction. The parties have participated jointly in
the negotiation and drafting of this Agreement. If a question of
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
14. Fees and Expenses. The Stockholders and Company will pay the fees
and expenses of the Stockholders and the Company incurred in connection
with the negotiation and drafting of this Agreement. Penske and UAG shall
pay their fees and expenses in connection with the negotiation and drafting
of this Agreement. The cost of legal opinions to be provided relating to
the ability or inability to timely act upon the exercise of one or more Put
Options shall be paid by Penske, and the cost of legal opinions to be
provided relating to the ability of Stockholders to exercise their rights
and sell their stock pursuant to Rule 144 shall be paid by UAG. The legal
fees to be paid by UAG pursuant to this provision shall not in the
aggregate exceed $6,000.00. In the event that UAG fails to pay same, then
Penske shall pay said legal fees.
15. Attorney's Fees. If any party to this Agreement shall bring any
action, suit, counterclaim, appeal, arbitration, or mediation for any
relief against the other, declaratory or otherwise, to enforce the terms
hereof or to declare rights hereunder (collectively, an Action), the losing
party shall pay to the prevailing party (as defined below) the attorneys'
fees and costs (at the prevailing party's attorneys' then-prevailing rates
as increased from time to time by such counsel) incurred in the preparation
and service of notices of default or breach and consultations in connection
therewith, whether or not a legal action is commenced in connection with
such default or breach, bringing and prosecuting such Action and/or
enforcing any judgment, order, ruling, or award (collectively, a Decision)
granted therein, all of which shall be deemed to have accrued on the
commencement of such Action and shall be paid whether or not such Action is
prosecuted to a Decision. Any Decision entered in such Action shall contain
a specific provision providing for the recovery of attorneys' fees and
costs incurred in enforcing such Decision. The court or arbitrator may fix
the amount of reasonable attorneys' fees and costs on the request of either
party, but the award is intended to fully reimburse all attorneys' fees
reasonably incurred. For the purposes of this paragraph, attorneys' fees
shall also include, without limitation, fees incurred in connection with
the following: (1) post-judgment motions, appeals, and collection actions;
(2) contempt proceedings; (3) garnishment, levy, debtor and third party
examinations; (4) discovery; (5) bankruptcy litigation; and (6) probate
proceedings and/or litigation. "Prevailing Party" within the meaning of
this paragraph includes, without limitation, a party who agrees to dismiss
an Action on the other party's payment of the sums allegedly due or
performance of the covenants allegedly breached, or who obtains
substantially the relief sought by it. "Prevailing Party" shall include,
without limitation, a party who substantially obtains or defeats the relief
sought, as the case may be, whether by judgment, or the abandonment by the
other party of its claim or defense.
16. Time is of the Essence. Time is of the essence with respect to
this Agreement.
17. Independent Counsel. Each party to this Agreement has been advised
to seek and obtain the advice of independent counsel in the negotiation and
execution of this Agreement. This Agreement was executed voluntarily
without any duress or undue influence on the part of or on behalf of the
parties hereto. The parties acknowledge that they have read and understood
this Agreement and its legal effect. Each party acknowledges that it has
had a reasonable opportunity to obtain independent legal counsel for advice
and representation in connection with this Agreement, and, in the absence
of having obtained independent counsel, has waived that opportunity prior
to the execution of this Agreement, and its/his/her signature on this
Agreement acknowledges that waiver. Each party further acknowledges that it
is not relying on and it is not for the purposes of the negotiation,
execution, and delivery of this Agreement, a client of the legal counsel
employed by any of the other parties to this Agreement.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PENSKE: PENSKE CORPORATION
By: /s/ Xxxxx X. Penske
---------------------------------
Its: Chairman and CEO
--------------------------
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Its: Executive Vice President
--------------------------
UAG: UNITED AUTO GROUP, INC.
By: /s/ Xxxxx X. Penske
---------------------------------
Its: Chairman and CEO
--------------------------
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Its: Executive Vice President
--------------------------
STOCKHOLDERS: Xxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx,
Co-Trustees of the Xxxxxxx Family 1984
Trust; UTD 3/27/84
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, Co-Trustee
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx, Co-Trustee
Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx,
Co-Trustees of the Xxxxxx X. and Xxxxx
Xxxxxxx Family Trust, UTD 9/1/92
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Co-Trustee
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, Co-Trustee
Xxxxxx X. Xxxxxxx, as Trustee of the
Xxxxxxx Grandchildrens' Trust #1
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Co-Trustee
Xxxxxx X. Xxxxxxx, as Trustee of the
Xxxxxxx Grandchildrens' Trust #2
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Co-Trustee
Xxxxxxx Xxxxx, Trustee of the Xxxxxxx
Xxxxx Xxxxx Trust, UTD 5/18/01
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
