EXHIBIT 7
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated April 12, 1999 (this
"Agreement"), among Trace International Holdings, Inc. ("Stockholder"),
International Motor Cars Group I, L.L.C. and International Motor Cars Group
II, L.L.C. (collectively, the "Purchaser").
WHEREAS, United Auto Group, Inc., a Delaware corporation (the
"Company"), and Purchaser, are contemporaneously herewith entering into a
Securities Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), which provides, among other things, for the acquisition by
Purchaser of shares of Preferred Stock and Warrants to purchase shares of
Common Stock upon the terms and subject to the conditions set forth
therein;
WHEREAS, as a condition to its willingness to enter into the
Purchase Agreement, Purchaser has requested that Stockholder make certain
agreements with respect to the shares of Common Stock beneficially owned by
Stockholder and listed under Stockholder's name on the signature page
hereto (the "Stockholder Shares"), upon the terms and subject to the
conditions hereof; and
WHEREAS, in order to induce Purchaser to enter into the Purchase
Agreement, Stockholder is willing to make certain agreements with respect
to the Stockholder Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Voting Agreements; Proxy.
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(a) For so long as this Agreement is in effect, in any meeting of
stockholders of the Company, however called, and in any action by consent
of the stockholders of the Company, Stockholder shall vote, or, if
applicable, give consents with respect to, all of the Stockholder Shares
(and any other shares of Common Stock over which Stockholder has voting
power) (collectively, "Shares") that are held on the record date applicable
thereto in favor of (i) the Purchase Agreement, (ii) the transactions
contemplated by the Purchase Agreement and (iii) any actions required in
furtherance thereof. Any such vote shall be cast or consent shall be given
in accordance with such procedures relating thereto as shall ensure that it
is duly counted for purposes of determining that a quorum is present and
for purposes of recording the results of such vote or consent.
(b) Upon the written request of Purchaser, Stockholder, in
furtherance of the transactions contemplated hereby and by the Purchase
Agreement, and in order to secure the performance by Stockholder of its
duties under this Agreement, shall promptly execute, in accordance with the
provisions of Section 212 of the Delaware General Corporation Law, and
deliver to Purchaser an irrevocable proxy, substantially in the form
attached as Exhibit A hereto, and irrevocably appoint Purchaser or its
designees, with full power of substitution, its attorney and proxy to vote
or, if applicable, to give consent with respect to, all Shares with regard
to any of the matters referred to in Section 1(a) at any meeting of the
stockholders of the Company, however called, or in connection with any
action by written consent by the stockholders of the Company. Stockholder
acknowledges and agrees that (i) such proxy, if and when given, shall be
coupled with an interest, shall constitute, among other things, an
inducement for Purchaser to enter into the Purchase Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise
upon the occurrence of any event, except as provided in Section 14 hereof,
and (ii) that no subsequent proxies with respect to the Shares shall be
given (and if given shall not be effective), with respect to any of the
matters referred to in Section 1(a).
2. Covenants. (a) From and after the date of this Agreement,
Stockholder agrees not to: (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation,
encumbrance, tender or other disposition of, any Stockholder Shares; (ii)
grant any proxies with respect to any Shares, deposit any Shares into a
voting trust or enter into a voting or option agreement with respect to any
Shares; (iii) take any action, directly or indirectly through any of its
affiliates (other than the Company or any of its subsidiaries), which the
Company is prohibited from taking under Section 4.2 of the Purchase
Agreement; (iv) vote in any manner (i.e. by ballot, proxy, written consent
or otherwise) any Shares in favor of any other transaction that is proposed
by any Person (including the Company) as an alternative to the transactions
contemplated by the Purchase Agreement; or (v) take any action which would
make any representation or warranty of Stockholder herein untrue or
incorrect or prevent, burden or materially delay the consummation of the
transactions contemplated by this Agreement; provided, however, that
Stockholder may take any action described in clause (i) or (ii) above if
any third party which obtains the right to vote any Shares as a result of
such action assumes (in a writing executed by any such third party and
delivered to Purchaser) Stockholder's obligations under this Agreement with
respect to such Shares.
(b) Stockholder agrees that from and after the date of this
Agreement through and including the date this Agreement is terminated,
without the prior written consent of Purchaser, which may be withheld in
Purchaser's sole discretion, Stockholder shall not vote or give any consent
with respect to any Shares in favor of an Alternative Transaction (as
defined in the Purchase Agreement) other than an Alternative Transaction
involving the sale of all or substantially all of the capital stock or
assets of the Company.
3. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Purchaser that, except as set forth on Schedule
3:
(a) Capacity; No Violations. Stockholder has the legal capacity
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Stockholder, and constitutes a valid and binding agreement of Stockholder
enforceable against Stockholder in accordance with its terms, except as
enforceability against Stockholder may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to the rights of creditors generally and other general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and such execution and delivery and
performance by Stockholder of this Agreement will not (i) conflict with,
require a consent, waiver or approval under, or result in a breach or
default under, any of the terms of any contract, commitment or other
obligation to which Stockholder is a party or by which Stockholder is
bound; (ii) violate any order, writ, injunction, decree or statute, or any
law, rule or regulation applicable to Stockholder or the Shares; or (iii)
result in the creation of, or impose any obligation on Stockholder to
create, any Encumbrance other than transfer restrictions imposed by
applicable Federal and state securities laws upon the Shares.
(b) Shares. As of the date of this Agreement, Stockholder is the
record holder of, and has good and valid title to, the Shares free and
clear of all Encumbrances other than transfer restrictions imposed by
applicable Federal and state securities laws. The Shares are the only
shares of any class of capital stock of the Company which Stockholder has
the right, power or authority (sole or shared) to sell or vote, and
Stockholder does not have any right to acquire, nor is it the beneficial
owner of, any other shares of any class of capital stock of the Company or
any securities convertible into or exchangeable or exercisable for any
shares of any class of capital stock of the Company. There are no options
or rights to acquire, or other contracts (including proxies, voting trusts
or voting agreements) relating to, the Shares to which Stockholder is a
party.
4. Adjustments; Additional Shares. In the event (i) of any stock
dividend, stock split, recapitalization, reclassification, combination or
exchange of Shares on, of or affecting the Shares, or (ii) Stockholder
shall become the beneficial owner of any additional Shares or other
securities entitling the holder thereof to vote or give consent with
respect to the matters set forth in Section 1(a) hereof, then the terms of
this Agreement shall apply to the Shares held by Stockholder immediately
following the effectiveness of the events described in clause (i) above or
Stockholder becoming the beneficial owner of the Shares or other
securities, as described in clause (ii) above, in each case as though they
were Shares hereunder.
5. Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement.
6. Specific Performance. Stockholder acknowledges and agrees that
if it fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Purchaser for
which money damages would not be an adequate remedy. In such event,
Stockholder agrees that Purchaser shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, if Purchaser should institute an action or proceeding seeking
specific enforcement of the provisions hereof, Stockholder hereby waives
the claim or defense that Purchaser has an adequate remedy at law and
hereby agrees not to assert in any such action or proceeding the claim or
defense that such a remedy at law exists. Stockholder further agrees to
waive any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
7. Notices. All notices or other communications under this
Agreement shall be in writing and shall be deemed duly given, effective (i)
three business days later, if sent by registered or certified mail, return
receipt requested, postage prepaid, (ii) when sent, if sent by telecopier
or fax, provided that the telecopy or fax is promptly confirmed by
telephone confirmation thereof, (iii) when served, if delivered personally
to the intended recipient, and (iv) one business day later, if sent by
overnight delivery via a national courier service, and in each case,
addressed to the intended recipient at the address set forth as follows:
If to the Purchaser:
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c/o Penske Capital Partners, L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
with a copy to:
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Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
if to Stockholder:
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Trace International Holdings, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
8. Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective
successors and assigns; provided, however, that each such successor in
interest or assign shall agree to be bound by the provisions of this
Agreement. Nothing in this Agreement, express or implied, is intended to
confer upon any person or entity other than Purchaser, Stockholder and
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
9. Entire Agreement; Amendments. This Agreement contains the
entire agreement between Stockholder and Purchaser with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect to such
subject matter. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the
party against whom any waiver, change, amendment, modification or discharge
may be sought.
10. Assignment. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that: (i) Purchaser may assign
its rights and obligations hereunder to any of its affiliates or direct or
indirect wholly owned subsidiaries, but no such transfer shall relieve
Purchaser of its obligations hereunder if such transferee does not perform
such obligations; and (ii) Stockholder may assign its rights and
obligations hereunder without the consent of Purchaser in accordance with
Section 2.
11. Defined Terms; Headings. Capitalized terms not otherwise
defined herein shall have the meaning ascribed to such terms in the
Purchase Agreement. The section headings herein are for convenience only
and shall not affect the construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same
document.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (regardless
of the laws that might otherwise govern under applicable Delaware
principles of conflicts of law).
14. Termination. This Agreement shall terminate at the earlier of
(i) the date the Second Closing occurs under the Purchase Agreement, (ii)
December 31, 1999, and (iii) on the date the Purchase Agreement is
terminated pursuant to the terms thereof; provided, that the parties shall
continue to be liable for any breach of this Agreement following any such
termination. In addition, Stockholder may terminate this Agreement on or
after the 2-month anniversary of the date of the Initial Closing (as
defined in the Securities Purchase Agreement) by written notice to
Purchaser if the Proxy Statement (as defined in the Purchase Agreement) has
not been filed with the Securities and Exchange Commission prior to such
date, and the parties are not working reasonably diligently to file the
Proxy Statement with the Securities and Exchange Commission.
IN WITNESS WHEREOF, Purchaser and Stockholder have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
INTERNATIONAL MOTOR CARS GROUP I, L.L.C.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
TRACE INTERNATIONAL HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
Number of Shares Subject to this Agreement:
4,016,110
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the
undersigned pursuant to the Stockholder Voting Agreement, dated as of April
12, 1999 (the "Voting Agreement"), among the undersigned, International
Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C.,
each a Delaware limited liability company ("Purchaser"), a copy of such
agreement being attached hereto and incorporated by reference herein, the
undersigned hereby irrevocably appoints ______________________ and
___________________ and _____________________, and each of them, attorneys,
agents and proxies, with full power of substitution, for the undersigned
and in the name, place and stead of the undersigned, to vote or, if
applicable, to give written consent, in such manner as each such attorney,
agent and proxy or his substitute shall in his sole discretion deem proper
to record such vote or consent in the manner set forth in Section 1(a) of
the Voting Agreement with respect to all shares of Common Stock, par value
$.0001 per share (the "Shares"), of United Auto Group, Inc., a Delaware
corporation (the "Company"), (i) which the undersigned is or may be
entitled to vote at any meeting of the Company held after the date hereof,
whether annual or special and whether or not an adjourned meeting, or, if
applicable, with respect to which the undersigned is or may be entitled to
give written consent in connection with any action by written consent by
the stockholders of the Company to give written consent with respect
thereto. This Proxy is coupled with an interest, shall be irrevocable and
binding on any successor in interest of the undersigned and shall not be
terminated by operation of law or otherwise upon the occurrence of any
event (except as provided in Section 14 of the Voting Agreement),
including, without limitation, the death or incapacity of the undersigned.
This Proxy shall operate to revoke any prior proxy as to the Shares
heretofore granted by the undersigned. This Proxy shall terminate upon the
date on which the Voting Agreement shall terminate in accordance with
Section 14 of the Voting Agreement. This Proxy has been executed in
accordance with Section 212 of the Delaware General Corporation Law.
Dated:
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TRACE INTERNATIONAL HOLDINGS, INC.
By:
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Name:
Title:
