EXHIBIT 99.31
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of February 14, 2003, by and among the persons
listed on the attached Schedule A (individually, a "Seller" and
collectively, the "Sellers"), and PENSKE AUTOMOTIVE HOLDINGS CORP., a
Delaware corporation (the "Purchaser").
RECITALS
WHEREAS, the Sellers collectively own 289,243 shares (the "Shares") of
Voting Common Stock (the "Common Stock"), par value of $0.0001 per share of
United Auto Group, Inc., a Delaware corporation (the "Company");
WHEREAS, Purchaser desires to purchase and each of the Sellers desire to
sell to Purchaser all of the Shares at a purchase price equal to $17.2865
per share.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants 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
1.1. The Purchase. At the Closing, subject to completion of all of the
Closing Actions, the Purchaser shall purchase (the "Purchase") from each
Seller, and each Seller shall sell to the Purchaser, that number of Shares
listed next to each Seller's name on the attached Schedule A at a purchase
price of $17.2865 per Share and an aggregate purchase price of
$5,000,000.00 (the "Purchase Price").
1.2. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place in one or more series of closing
at the offices of Xxxxxx X. Small, a Professional Corporation, on January
28, 2003 or on such other date as the Sellers and the Purchaser may
mutually determine (such date, the "Closing Date").
1.3. Actions at the Closing. On each Closing Date, the following
actions shall occur (the "Closing Actions"):
(a) Each Seller shall transfer the Shares being tender at such
Closing to the Purchaser, evidenced by stock certificates and stock powers
or other instruments reasonably requested by the Purchaser, free and clear
of Encumbrances (as hereinafter defined) thereon.
(b) The Purchaser shall pay the portion of the Purchase Price set
forth next to each Seller's name on Schedule A to each Seller by wire
transfer pursuant to instructions provided by each Seller for the shares
being tendered at such Closing.
ARTICLE II
SELLER REPRESENTATIONS & WARRANTIES
Each Seller, severally and not jointly, represents and warrants to the
Purchaser as follows as of the date hereof and as of each Closing Date:
2.1. Organization and Good Standing; Power and Authority;
Qualifications. The Sellers that are organized as trusts are each duly
organized, validly existing and in good standing under the laws of
California and have all requisite power and authority to own, lease and
operate their respective properties, to carry on their respective business
as presently conducted and as proposed to be conducted. Each Seller has all
requisite power and authority to enter into and carry out the transactions
contemplated by this Agreement.
2.2. Authorization of the Documents. The execution, delivery and
performance of this Agreement has been duly authorized by all requisite
action on the part of each Seller, and this Agreement constitutes a legal,
valid and binding obligation of each Seller, enforceable against each
Seller, in accordance with its terms.
2.3. No Conflict. The execution, delivery and performance by each
Seller of this Agreement and the consummation by each Seller of the
transactions contemplated hereby; and the sale and delivery by each Seller
of the Shares will not (a) violate any provision of law, statute, rule or
regulation, or any ruling, writ, injunction, order, judgment or decree of
any court, administrative agency or other governmental body applicable to
any Seller, the Shares by the Seller or any Sellers other respective
properties or assets, (b) conflict with or result in any breach of any of
the terms, conditions or previsions 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 of any
Seller, or result in the creation of any encumbrance, upon any of the
properties or assets of any Seller, including the Shares or (c) violate the
trust agreement of the Sellers that are trusts.
2.4. Consents. Each Seller represents that he/she/it has no knowledge
of any consents required or any permit, authorization, or approval of or
by, or any notification of or filing with any person (governmental or
private) that is required in connection with the execution, delivery and
performance by each Seller of this Agreement or any documentation relating
thereto, the consummation by each Seller of the transactions contemplated
hereby, or the sale or delivery of the Shares. In making these
representations, Sellers have relied upon the representations of Purchaser
and Company that the legend conditions on the Shares being transferred by
Sellers do not need to be removed prior to the sale of the Shares to
Purchaser, and that Sellers (individually and collectively) have no filing
obligations or requirements with the Securities and Exchange Commission or
any other governmental agency or authority that is required to permit the
contemplated sale of the Shares as expressed herein.
2.5. Ownership. Each Seller is the lawful owner of the Shares listed
next to each Seller's name on the attached Schedule A, and each Seller has
good title to the Shares listed next to each Seller's name on the attached
Schedule A, free and clear of any and all mortgages, rights of first
refusal or first offer, security interests liens, mortgages, pledges,
charges and similar restrictions (collectively, "Encumbrances"), and upon
completion of the transaction contemplated by this Agreement, each Seller
will transfer to the Purchaser good and valid title to the Shares free and
clear of any Encumbrances.
2.6. Additional Purchases. Each Seller is aware and acknowledges that
the Purchaser and its affiliates has purchased shares of the Company's
Common Stock at a per share purchase price in excess of $17.2865 per share
and that Purchaser or its affiliates may from time to time engage in one or
more transactions involving the purchase of some or all of the Common Stock
of the Company at a purchase price in excess of $17.2865 per share. No
Seller by virtue of the completion of any such transaction or transactions
will be entitled to any additional consideration of any kind in exchange
for the sale and delivery by each or any Seller of the Shares to Purchaser.
2.7. Due Diligence. Each Seller has such knowledge and experience in
financial and business matters that Seller is capable of evaluating the
merits and risks of completing the transactions contemplated by this
Agreement. Seller has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to enter into and complete the
transactions contemplated by this Agreement. In evaluating the merits and
risk of the transactions contemplated by this Agreement, Seller has relied
on the advice of its investment advisors and/or its legal counsel.
2.8. Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of any Seller or under the authority of any Seller
is or will be entitled to any fee or commission directly or indirectly from
any party hereto in connection with any of the transactions contemplated
hereby.
ARTICLE III
PURCHASER REPRESENTATIONS & WARRANTIES
Purchaser represents and warrants to each Seller as of the date hereof and
as of each Closing Date as follows:
3.1. Investment. Purchaser is acquiring the Shares for its own
account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). The Purchaser understands that (i) the Shares have not
been registered under the Securities Act or any state securities laws, (ii)
the Shares 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, and (iii) the
Shares may be further restricted by legends set forth on the share
certificates. Purchaser and Company acknowledge that Company, prior to
issuance, placed legend conditions on the Shares being transferred by
Sellers and that said legends do not need to be removed prior to the sale
of the Shares to Purchaser, and that Sellers (individually and
collectively) have no filing obligations or requirements with the
Securities and Exchange Commission or any other governmental agency or
authority that is required to permit the contemplated sale of the Shares to
Purchaser as stated herein.
3.2. Accredited Investor. The Purchaser is an "Accredited Investor"
(as defined in Rule 501(a) under the Securities Act).
3.3. Organization. The Purchaser is duly organized and validly
existing under the laws of the state of its organization and has all power
and authority to enter into and perform this Agreement. The Agreement has
been duly authorized by all necessary action on the part of the Purchaser.
The Agreement constitutes a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms.
3.4. Authorization. The execution, delivery and performance of this
Agreement has been duly authorized by all requisite corporate action on the
part of the Purchaser, and each part of this Agreement constitutes a legal,
valid and binding obligation of the Purchaser, enforceable against the
Purchaser, in accordance with its terms.
3.5. No Conflict. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby will not (a) violate any provision of law,
statute, rule or regulation, or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other
governmental body applicable to the Purchaser or its subsidiaries or
affiliates, or any of its or their properties or assets, (b) conflict with
or result in any breach of any of the terms, conditions, or provisions of,
or constitute (with due notice, lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration) under any
agreement of the Purchaser, its subsidiaries or affiliates, or (c) violate
the Certificate of Incorporation or the bylaws of the Purchaser.
3.6. Consents. Purchaser represents (as to itself and as to its
subsidiaries and affiliates) that it (and they) has no knowledge of any
consents required or any permit, authorization, or approval of or by, or
any notification of or filing with any person or entity (governmental or
private) that is required in connection with the execution, delivery and
performance by the Purchaser of this Agreement or any documentation
relating thereto, or the consummation by the Purchaser of the transactions
contemplated hereby. Purchaser represents that it has no knowledge of any
consents required or any permit, authorization, or approval of or by, or
any notification of or filing with any person or entity (governmental or
private) that is required of Sellers in connection with the execution,
delivery and performance by each Seller of this Agreement or any
documentation relating thereto, or the consummation by each Seller of the
transactions contemplated hereby, or the sale or delivery of the Shares.
3.7. Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of the Purchaser or under the authority of the
Purchaser is or will be entitled to any fee or commission directly or
indirectly from any party hereto in connection with any of the transactions
contemplated hereby.
ARTICLE IV
MISCELLANEOUS
4.1. 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 any Seller, to the respective Sellers as follows:
Mr. and Xxx. Xxxxx X. Xxxxxxx, Co-Trustees
The Xxxxxxx Family 1984 Trust
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Mr. and Xxx. Xxxxxx X. Xxxxxxx, Co-Trustees
The Xxxxxx X. and Xxxxx Xxxxxxx Family Trust
0000 Xxx Xxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Xx. Xxxxxx X. Xxxxxxx, individually and as Trustee
The Xxxxxxx Grandchildrens' Trust #2
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Xxx. Xxxxxxx Xxxxx, Trustee
The Xxxxxxx Xxxxx Xxxxx Trust
0000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Xx. Xxxxxx X. Xxxxxxx, Trustee
The Xxxxxxx Grandchildrens' Trust #1
0000 Xxx Xxxx Xxxxx
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
(ii) if to the Purchaser, to:
Penske Automotive Holdings Corp.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attention: General Counsel
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
4.2. 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.
4.3. 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. Penske may freely assign the
right to purchase stock but not its obligations under this Agreement to any
wholly-owned subsidiary of Penske Corporation.
4.4. Entire Agreement. This Agreement (with the documents referred to
herein or delivered pursuant hereto) embodies the entire agreement relating
to the sale of the Shares and the understanding between the parties hereto
relating to the sale of the Shares by the Sellers to Purchaser. The parties
hereto and affiliates and subsidiaries, and entities in which they have an
ownership interest, are parties to other agreements that are not modified
or affected in any manner by the execution of this Agreement, with the
exception of the Put Agreement dated October 24, 2001, which shall be
deemed to have been terminated upon the payment and delivery of the
consideration by the Purchaser to the Sellers in accordance with the terms
of this Agreement and the payment of legal fees as referred to in Section
4.9.
4.5. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Michigan without
giving effect (to the fullest extent permitted by law) to the conflicts of
law principles thereof which might result in the application of the laws of
any other jurisdiction.
4.6. 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 and signatures may be delivered by telecopy followed by the
pages containing the original signatures of the parties to this Agreement.
4.7. 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.
4.8. 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.
4.9. Expenses. Each party to this Agreement shall bear its own cost
and expenses, including fees of consultant(s), accountant(s), counsel, and
other persons acting on behalf of or for such party, except that Purchaser
shall pay the fees of Sellers $6,000.00 as allowed by the provisions of
Section 14. of the Put Agreement, and UAG's check for that amount shall be
delivered to Xxxxxx X. Small, a Professional Corporation, concurrent with
the closing and delivery of share certificates and documents to give effect
to this Agreement.
4.10. 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 might 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,
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SELLERS:
/s/ XXXXX X. XXXXXXX AND XXXXXX XXXXXXX
---------------------------------------------------
XXXXX X. XXXXXXX AND XXXXXX XXXXXXX, CO-TRUSTEES OF
THE XXXXXXX FAMILY 1984 TRUST, UTD 3/27/84
/s/ XXXXXX X. XXXXXXX AND XXXXX XXXXXXX
---------------------------------------------------
XXXXXX X. XXXXXXX AND XXXXX XXXXXXX, CO-TRUSTEES OF
THE XXXXXX X. XXXXXXX AND XXXXX XXXXXXX FAMILY
TRUST, UTD 9/1/92
/s/ XXXXXX X. XXXXXXX
---------------------------------------------------
XXXXXX X. XXXXXXX, AS TRUJSTEE OF THE XXXXXXX
GRANDCHILDRENS' TRUST #l, UTD12/31/91
/s/ XXXXXX X. XXXXXXX
---------------------------------------------------
XXXXXX X. XXXXXXX, AS TRUSTEE OF THE XXXXXXX
GRANDCHILDRENS' TRUST #2, UTD 12/31/91
/s/ XXXXXX X. XXXXXXX
---------------------------------------------------
XXXXXX X. XXXXXXX
/s/ XXXXXXX XXXXX
---------------------------------------------------
XXXXXXX XXXXX, TRUSTEE OF THE XXXXXXX XXXXX XXXXX
TRUST, UTD 5/18/2001
PURCHASER:
PENSKE AUTOMOTIVE HOLDINGS CORP.
/s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------------------
By: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
SCHEDULE A
----------
NAME NUMBER OF SHARES PORTION OF PURCHASE
---- ---------------- -------------------
PRICE
-----
Xxxxx X. Xxxxxxx and Xxxxxx 81,292 1,405,255.05
Xxxxxxx, Co-Trustees of the
Xxxxxxx Family 1984 Trust, UTD
3/27/84
Xxxxxx X. Xxxxxxx and Xxxxx 46,053 796,095.18
Xxxxxxx, Co-Trustees of the Xxxxxx
X. Xxxxxxx and Xxxxx Xxxxxxx
Family Trust, UTD 9/1/92
Xxxxxx X. Xxxxxxx, as Trustee of 55,873 965,848.61
the Xxxxxxx Grandchildrens' Trust
#1, UTD 12/31/91
Xxxxxx X. Xxxxxxx, as Trustee of 37,249 643,904.84
the Xxxxxxx Grandchildrens' Trust
#2, UTD 12/31/91
Xxxxxx X. Xxxxxxx 46,053 796,095.18
Xxxxxxx Xxxxx, Trustee of the 22,723 392,801.14
Xxxxxxx Xxxxx Xxxxx Trust, UTD
5/18/2001
TOTAL 289,243 $5,000,000.00
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