REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into this 31st day of May, 1997, by and among United Auto Group,
Inc., a Delaware corporation (the "Company") and Xxxx Xxxx, Xx., Xxxxxxx X.
Xxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
(collectively, the "Stockholders").
IN CONSIDERATION of the mutual promises and covenants set forth
herein, and intending to be legally bound, the parties hereto hereby agree as
follows:
1. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; REGISTRATION RIGHTS
1.1. CERTAIN DEFINITIONS. The following terms shall have the
meanings set forth below:
(a) "Holder" shall mean the Stockholders and any holder of
Registrable Securities to whom the rights conferred by this Agreement have
been transferred in compliance with Section 1.2 hereof.
(b) "Other Stockholders" shall mean persons who, by virtue
of agreements with the Company other than this Agreement, are entitled to
include their securities in certain registrations hereunder.
(c) "Prior Holder" shall mean any person or entity who has
previously been granted rights pursuant to an agreement with the Company (the
"Prior Registration Rights Agreements") to have shares of UAG Stock (as
defined below) registered under the Securities Act of 1933, as amended (the
"Securities Act").
(d) "Registrable Securities" shall mean shares of the
Company's common stock, $.0001 par value per share (the "UAG Stock") issued to
the Stockholders pursuant to that certain Stock Purchase Agreement dated April
12, 1997, between UAG, Xxxx Xxxx Chevrolet, Inc., Xxxxxxx
Chevrolet-Oldsmobile, Inc., Xxxx-Xxxxxxx Chevrolet, Inc., and the Stockholders
(the "Stock Purchase Agreement"), provided that Registrable Securities shall
not include any shares of UAG Stock which have previously been registered or
which have been sold to the public or which have been sold in a private
transaction in which the transferor's rights under this Agreement are not
assigned.
(e) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and applicable rules and
regulations
thereunder and the declaration or ordering of the effectiveness of such
registration statement.
(f) "Registration Expenses" shall mean all expenses incurred
in effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, and expenses of any regular or special audits incident
to or required by any such registration, but shall not include (i) Selling
Expenses (as hereafter defined), (ii) fees and disbursements of counsel for
the Holders, (iii) the compensation of regular employees of the Company, which
shall be paid in any event by the Company, and (iv) blue sky fees and expenses
incurred in connection with the registration or qualification of any
Registrable Securities in any state, province or other jurisdiction in a
registration pursuant to Section 1.3 hereof to the extent that the Company
shall otherwise be making no offers or sales in such state, province or other
jurisdiction in connection with such registration.
(g) "Restricted Securities" shall mean any Registrable
Securities required to bear the legend set forth in Section 1.2(c) hereof.
(h) "Rule 144" shall mean Rule 144 as promulgated by the SEC
under the Securities Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the SEC.
(i) "Rule 145" shall mean Rule 145 as promulgated by the SEC
under the Securities Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the SEC.
(j) "Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities.
1.2. RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or
any portion of the Registrable Securities unless and until (i) there is then
in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement, or (ii) the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 1.2 (unless waived by the
Company) and (A) such Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition and (B) if reasonably
requested by the Company, such Holder shall have furnished the Company with an
opinion of counsel, reasonably
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satisfactory to the Company, that such disposition will not require
registration of such shares under the Securities Act, it being understood that
the Company will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
(b) Notwithstanding the provisions of subparagraphs (i) and
(ii) of paragraph (a) above, no such registration statement or opinion of
counsel shall be necessary for a transfer by a Holder which is (A) a
partnership to its partners in accordance with partnership interests, or (B)
to the Holder's family member or a trust for the benefit of an individual
Holder or one or more of his family members, provided the transferee will be
subject to the terms of this Section 1.2 to the same extent as if he were an
original Holder hereunder.
(c) Each certificate representing Registrable Securities
shall (unless otherwise permitted by the provisions of this Agreement) be
stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH
ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
(d) The Company shall be obligated to promptly reissue
certificates without legends at the request of any Holder thereof if the
Holder shall have obtained an opinion of counsel (which counsel may be counsel
to the Company) reasonably acceptable to the Company to the effect that the
securities proposed to be disposed of may lawfully be so disposed of in
compliance with the Securities Act without registration, qualification or
legend.
(e) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with
respect to such securities shall be removed upon receipt by the Company of an
order of the appropriate blue sky authority authorizing such removal or if the
Holder shall request such removal and shall have obtained and delivered to the
Company an opinion of counsel reasonably acceptable to the Company to the
effect that such legend and/or stop-transfer instructions are no longer
required pursuant to applicable state securities laws.
1.3. COMPANY REGISTRATION.
(a) Right to Piggyback. If, at any time after the date
hereof, the Company shall determine to register any of
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its securities either for its own account or the account of a security holder
or holders exercising their respective demand registration rights, other than
a registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any
registration form that does not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice
thereof, which notice briefly describes the Holders' rights under
this Section 1.3 (including notice deadlines); and
(ii) use its best efforts to include in such
registration (and any related filing or qualification under
applicable blue sky laws), except as set forth in Section 1.3(b)
below, and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests,
made by any Holder and received by the Company within twenty (20)
days after the written notice from the Company described in clause
(i) above is mailed or delivered by the Company, provided that
such Holders shall have requested for inclusion in such
registration at least twenty-five (25%) of the aggregate number of
the Registrable Securities which have been issued to the Holder
prior to the date of such written request. Such written request
may specify all or a part of a Holder's Registrable Securities.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event, the right of any Holder to
registration pursuant to this Section 1.3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company.
Notwithstanding any other provision of this Section 1.3, if the
representative of the underwriters advises the Company in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the representative may (subject to the limitations set forth
below) exclude all Registrable Securities from, or limit the number of
Registrable Securities to be included in, the registration and underwriting.
The Company shall so advise all Holders of securities requesting registration,
and the number of shares of securities that are entitled to be included in the
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registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter as set forth in
Section 1.9. If any person does not agree to the terms of any such
underwriting, he shall be excluded therefrom by written notice from the
Company or the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
If shares are so withdrawn from the registration and if the number
of shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares so withdrawn, with such
shares to be allocated among the persons requesting additional inclusion in
accordance with Section 1.9 hereof.
1.4. EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
Section 1.3 hereof shall be borne by the Company. All Selling Expenses
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf.
1.5. REGISTRATION PROCEDURES. In the case of each
registration effected by the Company pursuant to Section 1.3 hereof, the
Company will keep each Holder advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company
will use its best efforts to:
(a) keep such registration effective for a period of one
hundred twenty (120) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto,
whichever first occurs, provided that such 120-day period shall be extended
for a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of any underwriter;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus,
as a Holder from time to time may reasonably request;
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(d) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or incomplete in the light of
the circumstances then existing, and at the request of any such Holder,
prepare and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing; provided, however, that the Company shall not be
obligated to prepare and furnish any such prospectus supplements or amendments
relating to any material nonpublic information at any such time as the Board
of Directors of the Company has determined that, for good business reasons,
the disclosure of such material nonpublic information at that time is contrary
to the best interests of the Company in the circumstances and is not otherwise
required under applicable law (including applicable securities laws);
(e) cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange and/or included in
any national quotation system on which similar securities issued by the
Company are then listed or included;
(f) provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and
a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration;
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
months, beginning with the first month after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act; and
(h) in connection with any underwritten offering pursuant to
a registration statement filed pursuant to Section 1.3 hereof, the Company
will enter into an underwriting agreement reasonably necessary to effect the
offer and sale of Registrable Securities, provided such underwriting agreement
contains customary underwriting provisions and provided further that if
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the underwriter so requests, the underwriting agreement will contain customary
indemnity and contribution provisions.
1.6. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, legal counsel, and accountants and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification, or
compliance has been effected pursuant to this Section 1, and each underwriter,
if any, and each person who controls within the meaning of Section 15 of the
Securities Act any underwriter, against all expenses, claims, losses, damages,
and liabilities (or actions, proceedings, or settlements in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any prospectus, offering circular, or other
document (including any related registration statement, notification, or the
like) incident to any such registration, qualification, or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule
or regulation thereunder applicable to the Company or relating to action or
inaction required of the Company in connection with any such registration,
qualification, or compliance, and will reimburse each such Holder, each of its
officers, directors, partners, legal counsel, and accountants and each person
controlling such Holder, each such underwriter, and each person who controls
any such underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating and defending or settling any such claim,
loss, damage, liability, or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability, or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by such
Holder or underwriter and stated to be specifically for use therein. It is
agreed that the indemnity agreement contained in this Section 1.6(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent has not been unreasonably withheld).
(b) Each Holder will, if Registrable Securities held by him
are included in the securities as to which such registration, qualification,
or compliance is being effected, indemnify the Company, each of its directors,
officers, partners, legal counsel, and accountants and each underwriter, if
any, of the Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, each other such Holder and Other
Stockholders, and each of their officers, directors, and partners, and each
person controlling
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such Holder or Other Stockholders, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular, or other
document, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Company and such Holders, Other
Stockholders, directors, officers, partners, legal counsel, and accountants,
persons, underwriters, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein; provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld) and (ii) that in no
event shall any indemnity under this Section 1.6 exceed the gross proceeds
from the offering received by such Holder.
(c) Each party entitled to indemnification under this
Section 1.6 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
1, to the extent such failure is not prejudicial. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and litigation
resulting therefrom.
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(d) If the indemnification provided for in this Section 1.6
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the conduct, statements or
omissions that resulted in such loss, liability, claim, damage, or expense as
well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into by the Indemnifying Party and the Indemnified Party in
connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
1.7. INFORMATION BY HOLDER. Each Holder of Registrable
Securities shall furnish to the Company such information regarding such Holder
and the distribution proposed by such Holder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in this Section 1.
1.8. RULE 144 REPORTING. With a view to making available
the benefits of certain rules and regulations of the SEC that may permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) make and keep public information regarding the Company
available as those terms are understood and defined in Rule 144 under the
Securities Act;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Securities and Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); and
(c) so long as a Holder owns any Restricted Securities,
furnish to the Holder forthwith upon written request
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a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as a Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing a Holder to sell
any such securities without registration.
1.9. ALLOCATION OF REGISTRATION OPPORTUNITIES. Subject to the
rights of the Prior Holders contained in the Prior Registration Rights
Agreements, notwithstanding any other provision of this Section 1.9, in any
circumstance in which all of the Registrable Securities and other shares of
the Company with registration rights (the "Other Shares") requested to be
included in a registration on behalf of the Holders or Other Stockholders
cannot be so included as a result of limitations of the aggregate number of
shares of Registrable Securities and Other Shares that may be so included, the
number of shares of Registrable Securities and Other Shares that may be so
included shall be allocated among the Holders and Other Stockholders
requesting inclusion of shares pro rata on the basis of the number of shares
of Registrable Securities and Other Shares held by such Holders and Other
Stockholders; provided, however, that such allocation shall not operate to
reduce the aggregate number of Registrable Securities and Other Shares to be
included in such registration, if any Holder or Other Stockholders does not
request inclusion of the maximum number of shares of Registrable Securities
and Other Shares allocated to him pursuant to the above-described procedure,
the remaining portion of his allocation shall be reallocated among those
requesting Holders and Other Stockholders whose allocations did not satisfy
their requests pro rata on the basis of the number of shares of Registrable
Securities and Other Shares which would be held by such Holders and Other
Stockholders, assuming conversion, and this procedure shall be repeated until
all of the shares of Registrable Securities and Other Shares which may be
included in the registration on behalf of the Holders and Other Stockholders
have been so allocated.
1.10. DELAY OF REGISTRATION. No Holder shall have any
right to take any action to restrain, enjoin, or otherwise delay any
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE STOCKHOLDERS
2.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Stockholders as follows:
(a) The execution, delivery and performance of this
Agreement by the Company has been duly authorized by all
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requisite corporate action and will not violate any provision of law, any
order of any court or other agency of government, the Certificate of
Incorporation or Bylaws of the Company, or any provision of any material
indenture, agreement or other instrument to which it or any of its properties
or assets is bound, or conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such material
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles,
the discretion of courts in granting equitable remedies and public policy
considerations.
2.2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
Stockholders represents and warrants to the Company as follows:
(a) The execution, delivery and performance of this
Agreement by the Stockholders will not violate any provision of law, any order
of any court or any agency or government, or any provision of any material
indenture or agreement or other instrument to which he or any of his
properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
material indenture, agreement or other instrument, or result in the creation
or imposition of any lien, charge, or encumbrance of any nature whatsoever
upon any of the properties or assets of the Stockholders.
(b) This Agreement has been duly executed and delivered by
the Stockholders and constitutes the legal, valid and binding obligation of
the Stockholders, enforceable against the Stockholders in accordance with its
terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforceability of creditors' rights generally, general equitable
principles, the discretion of courts in granting equitable remedies and public
policy considerations.
3. MISCELLANEOUS
3.1. LOCKUP AGREEMENT. In consideration for the Company's
agreeing to its obligations under this Agreement, each Holder agrees that upon
prior notice by the Company to such Holder and effective upon the request of
the underwriters managing a public offering for sale by the Company of its
securities, such Holder shall be obligated for the lesser of 120
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days or the length of time the Company has agreed to be bound not to sell,
loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those included in the registration and
other than to any transferee which agrees to be bound by this Section 3.1)
without the prior written consent of such underwriters.
3.2. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Delaware, as if entered into by and
between Delaware residents exclusively for performance entirely within
Delaware.
3.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
3.4. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
constitutes the full and entire understanding and agreement between the
parties with regard to the subject hereof and thereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated, except
by a written instrument signed by the Company and the Holders of at least
fifty-one percent (51%) of the Registrable Securities and any such amendment,
waiver, discharge or termination shall be binding on all the Holders, but in
no event shall the obligation of any Holder hereunder be materially increased,
except upon the written consent of such Holder.
3.5. NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
United States first-class mail, postage prepaid, or delivered personally by
hand or nationally recognized courier addressed (a) if to a Holder, as
indicated in the stock records of the Company or at such other address as such
Holder shall have furnished to the Company in writing, or (b) if to the
Company, at United Auto Group, Inc., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 or at such other address as the Company shall have furnished to
each Holder in writing. All such notices and other written communications
shall be effective on the date of mailing or delivery.
3.6. DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach or default of
the Company under this Agreement shall impair any such right, power or remedy
of such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement or any
waiver on the part of any Holder of any provisions or conditions
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of this Agreement must be made in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Holder, shall be cumulative
and not alternative.
3.7. RIGHTS; SEVERABILITY. Unless otherwise expressly provided
herein, a Holder's rights hereunder are several rights, not rights jointly
held with any of the other Holders. In case any provision of the Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
3.8. INFORMATION CONFIDENTIAL. Each Holder acknowledges that the
information received by them pursuant hereto may be confidential and for its
use only, and it will not use such confidential information in violation of
the Exchange Act or reproduce, disclose or disseminate such information to any
other person (other than its employees or agents having a need to know the
contents of such information, and its attorneys), except in connection with
the exercise of rights under this Agreement, unless the Company has made such
information available to the public generally or such Holder is required to
disclose such information by a governmental body.
3.9. TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
3.10. 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.
3.11. PRIOR REGISTRATION RIGHTS AGREEMENTS. To the extent that
any of the provisions herein conflict with any provisions of the Prior
Registration Rights Agreements, such conflicts shall be resolved in favor of
the rights granted in the Prior Registration Rights Agreements.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
sealed this Agreement or have caused this Agreement to be duly executed under
seal on its behalf by an officer or representative thereto duly authorized,
all as of the date first above written.
UNITED AUTO GROUP, INC.
By: /s/ Xxxxxx Xx Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxx Xxxx, Xx.
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
[Signatures continued on following page]
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/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxx X. Xxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx., by Xxxx Xxxx,
Xx. as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxx X. Xxxxxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
/s/ Xxxx Xxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxxx, by Xxxx Xxxx, Xx.
as attorney-in-fact
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TABLE OF CONTENTS
Page
1. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
REGISTRATION RIGHTS..................................................... 1
1.1. Certain Definitions............................................. 1
1.2. Restrictions on Transfer........................................ 2
1.3. Company Registration............................................ 3
1.4. Expenses of Registration........................................ 5
1.5. Registration Procedures........................................ 5
1.6. Indemnification................................................. 7
1.7. Information by Holder........................................... 9
1.8. Rule 144 Reporting.............................................. 9
1.9. Allocation of Registration Opportunities........................10
1.10. Delay of Registration..........................................10
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE STOCKHOLDERS.......................................................10
2.1. Representations and Warranties of the Company...................10
2.2. Representations and Warranties of the Stockholders..............11
3. MISCELLANEOUS...........................................................11
3.1. Lockup Agreement................................................11
3.2. Governing Law...................................................12
3.3. Successors and Assigns..........................................12
3.4. Entire Agreement; Amendment; Waiver.............................12
3.5. Notices, etc....................................................12
3.6. Delays or Omissions.............................................12
3.7. Rights; Severability............................................13
3.8. Information Confidential........................................13
3.9. Titles and Subtitles............................................13
3.10. Counterparts...................................................13
3.11. Prior Registration Rights Agreements...........................13
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