EXHIBIT 99.33
April 4, 2003
Mitsui & Co., Ltd.
First Motor Vehicles Div.
0-0, Xxxxxxxxx 0-Xxxxx, Xxxxxxx-xx
Xxxxx, Xxxxx 100-0004
Mitsui & Co. (U.S.A.), Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The parties to this letter agreement (this "Agreement") wish to
provide for certain rights relating to transfers of the equity securities
of United Auto Group, Inc. (the "Company") in accordance with the terms of
this Agreement. Certain capitalized terms used herein are defined in
Section 1(c) below.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Tag-Along Rights.
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(a) In the event that any of the PCP Entities or Penske desires
to Transfer any Restricted Securities to a third party (other than (i) with
respect to any Restricted Securities, to their respective Permitted
Transferees or Affiliates or (ii) with respect only to those securities
Transferred from Penske Corporation's "Share Account" (as defined in the
Operating Agreement(s)) to the "Carry Account" (as defined in the Operating
Agreement(s)) and those securities held in the "Share Account" (as defined
in the Operating Agreement(s)) of Penske Capital Partners, L.L.C. to Penske
Capital Partners, L.L.C. or by Penske Capital Partners, L.L.C. to its
members or by such members to their members ad infinitum (it being
understood that in no event will this clause (ii) apply to any Transfer by
Penske Corporation)) at any time on or after February 1, 2005 and before
February 1, 2006, such PCP Entity or Penske, as the case may be, shall
notify you in writing, of such proposed Transfer and its terms and
conditions (the "Tag Along Notice"); and
(b) Within ten (10) Business Days of the date of the Tag-Along
Notice, you shall notify the PCP Entities or Penske, as the case may be, if
you elect to participate in such Transfer. If you fail to notify such PCP
Entity or Penske, as the case may be, within such ten (10) Business Day
period, you shall be deemed to have waived your right to participate in
such Transfer. If you notify such PCP Entity or Penske, as the case may be,
in accordance with this section, you shall have the right to Transfer, at
the same price per share of Common Stock and on the same terms and
conditions as the applicable PCP Entity or Penske, as the case may be, an
amount of shares of Common Stock or Common stock equivalents equal to the
shares of Common Stock or Common Stock equivalents the Transferee actually
proposed to purchase multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock and Common Stock equivalents issued
and owned by you and the denominator of which shall be the aggregate number
of shares of Common Stock and Common Stock equivalents issued and owned by
you and such PCP Entity (or both PCP Entities, if both are selling pursuant
to such transaction) and/or Penske (if Penske is selling pursuant to such
transaction) and Harvard (to the extent that Harvard is selling in this
transaction by virtue of a similar tag-along agreement with the PCP
Entities and Penske) (assuming for purposes of calculating such fraction
the conversion of all convertible securities and the exercise of all
options and warrants held by the PCP Entities, Penske, Harvard and you).
(c) Capitalized terms used in this Section 1 of this Agreement
shall have the meanings specified below:
"Affiliate" means "affiliate" as defined in Rule 405 promulgated
under the Securities Act.
"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 law or other governmental action to close in New York,
New York, United States of America and Tokyo, Japan.
"Common Stock" means the voting Common Stock, par value $.0001
per share, and non-voting Common Stock, par value $.001 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.
"Harvard" means Aeneas Venture Corporation.
"Operating Agreements" means each of (i) the Amended and Restated
Limited Liability Company Agreement for International Motor Cars Group
I, L.L.C. and (ii) the Amended and Restated Limited Liability
Agreement for International Motor Cars Group II, L.L.C., as amended.
"PCP Entities" means each of International Motor Cars Group I,
L.L.C. and International Motor Cars Group II, L.L.C.
"Penske" means each of Penske Corporation, Penske Automotive
Holdings Corp. and Penske Capital Partners, L.L.C.
"Permitted Transferee" of a person means (a) a corporation,
partnership or other entity wholly owned by such person; provided,
that such corporation, partnership or other entity shall agree in
writing that it shall transfer to such person any Restricted
Securities which it holds prior to such time as it ceases to be wholly
owned by such person, and (b) the equity owners of such person to the
extent such equity owners receive a pro rata distribution of
Restricted Securities.
"Restricted Securities" means any Common Stock or other equity
security of the Company owned, directly or indirectly, by a PCP
Entity, Penske or an Affiliate of a PCP Entity or Penske or by any
other person who holds such securities on behalf of a PCP Entity,
Penske or an Affiliate, and any securities convertible, exercisable or
exchangeable for Common Stock or such other equity securities.
"Transfer" means any direct or indirect transfer, sale,
assignment, gift, pledge, mortgage, hypothecation or other disposition
of any interest. The terms "Transferee," "Transferor, "Transferred,"
and "Transferable" shall each have a correlative meaning.
2. Public Filings. Prior to the making of any filings required by
Sections 13 of the Securities Exchange Act of 1934, as amended, each of the
PCP Entities and Penske, on the one hand, and you, on the other hand, shall
provide the other party or parties with a reasonable opportunity to review
such filings and comment thereon.
3. Governing Law; Jurisdiction. 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. Each
party to this Agreement irrevocably submits 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.
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument. All signatures need not appear on
any one counterpart.
5. Further Assurances. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute
and deliver all such other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
6. 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.
7. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their successors and
permitted assigns.
8. Termination. This Agreement shall terminate (i) if the Purchase
Agreement entered into on the date hereof between you and X.X. Xxxxxx
Partners (BHCA), LP terminates without the transactions contemplated
thereby having been consummated, or (ii) at such time at which you cease to
own any Common Stock or other equity security of the Company.
[The remainder of this page was left intentionally blank]
Please acknowledge the foregoing agreement by signing the enclosed
original of this Agreement and returning the original to the undersigned.
Very truly yours,
PENSKE CORPORATION
By /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
PENSKE CAPITAL PARTNERS, L.L.C.
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
PENSKE AUTOMOTIVE HOLDINGS CORP.
By /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
INTERNATIONAL MOTOR CARS GROUP I,
L.L.C.
By: Penske Capital Partners, L.L.C.,
as Managing Member
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
INTERNATIONAL MOTOR CARS GROUP II,
L.L.C.
By: Penske Capital Partners, L.L.C.,
as Managing Member
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Agreed to by:
MITSUI & CO., LTD.
By /s/ Munemasa Izumi
---------------------------
Name: Munemasa Izumi
Title: General Manager
First Business Department
First Motor Vehicles Division
MITSUI & CO. (U.S.A.), INC.
By /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: S.V.P. & General Manager
SECOND MACHINERY DIVISION
