EXHIBIT 4
Execution Copy
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
UNITED AUTO GROUP, INC.
MITSUI & CO., LTD.
and
MITSUI & CO. (U.S.A.), INC.
dated as of
February 22, 2002
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
February 22, 2002, among United Auto Group, Inc., a Delaware corporation (the
"Company"), Mitsui & Co., Ltd., a Japanese company ("Mitsui Japan"), Mitsui &
Co. (U.S.A.), Inc., a New York corporation ("Mitsui USA" and together with
Mitsui Japan, "Mitsui").
On January 31, 2001, the Company and Mitsui entered into a Purchase
Agreement (the "Purchase Agreement") pursuant to which, Mitsui agreed to
purchase at Closing (as described therein) 1,302,326 shares of voting common
stock par value 0.0001 per share of the Company subject to the terms and
conditions set forth therein.
If Mitsui desires to sell the shares of Common Stock, it may be
desirable to register such shares under the Securities Act (as defined below).
As part of, and as consideration for, the acquisition of shares of
the Common Stock from the Company, the Company granted to Mitsui certain
registration and other rights with respect to its shares of Common Stock
pursuant to a Registration Rights Agreement among the Company, Mitsui Japan and
Mitsui USA dated as of February 28, 2001 ("Existing Agreement").
The parties wish to amend and restate in its entirety the Existing
Agreement to continue to provide for certain matters relating to the
registration and other rights with respect to Mitsui's shares of Common Stock,
on the terms and conditions provided in this Agreement.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" means "affiliate" as defined in Rule 405 promulgated
under the Securities Act.
"AON" means Virginia Surety Company, Inc., a corporation organized
under the laws of the State of Illinois.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as it may be amended or restated from time to
time.
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"Commission" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Common Stock" means any shares of voting common stock, par value
$0.0001 per share, of the Company, now or hereafter authorized to be issued,
and, any and all securities of any kind whatsoever of the Company which may be
issued on or after the date hereof in respect of, in exchange for, or upon
conversion of shares of voting common stock pursuant to a merger, consolidation,
stock split, stock dividend, recapitalization of the Company or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Harvard" means Aeneas Venture Corporation, a Delaware corporation."
"IMCG" means International Motor Cars Group I, L.L.C. and
International Motor Cars Group II, L.L.C.
"JPMP" means X.X. Xxxxxx Partners (BHCA), L.P., a limited
partnership organized under the laws of the State of Delaware, and successor to
Chase Equity Associates, L.P., a limited partnership organized under the laws of
the State of California.
"JPMP/AON Registration Rights Agreement" means the Registration
Rights Agreement among the Company, JPMP and AON, dated as of February 22, 2002.
"Penske" means (i) Penske Capital Partners, L.L.C., a limited
liability company organized under the laws of the State of Delaware, (ii) Penske
Corporation, a corporation organized under the laws of the State of Delaware,
(iii) except in the case of a registration of securities held by IMCG for the
account of JPMP and AON pursuant to the JPMP/AON Registration Rights Agreement,
IMCG and (iv) Penske Automotive Holdings Corp., a Corporation organized under
the laws of the State of Delaware.
"Penske Registrable Securities" refers collectively to the
"Registrable Securities" as defined in each of the Penske Registration Rights
Agreement.
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"Penske Registration Rights Agreements" means the Registration
Rights Agreement, dated May 3, 1999, by and among the Company, International
Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C., as
amended from time to time, and the Registration Rights Agreement, dated December
22, 2000, by and between the Company and Penske Automotive Holdings Corp., as
amended from time to time, and any subsequent agreement between the Company and
Penske or Penske Corporation granting to Penske or Penske Corporation
registration rights with respect to Common Stock.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Securities" means (i) any shares of Common Stock owned
by Mitsui, (ii) any shares of Common Stock that Mitsui may acquire after the
date hereof, and (iii) any shares of Common Stock issued with respect to the
Common Stock referred to in clause (i) by way of a stock dividend, stock split
or reverse stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
(a) when a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) when
such securities shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent public distribution of them shall not require
registration of them under the Securities Act, or (c) when such securities shall
have been sold in compliance with Rule 144 of the Securities Act. Any
certificate evidencing the Registrable Securities shall bear a legend stating
that the securities have not been registered under the Securities Act and
setting forth or referring to the restrictions on transferability and sale of
the securities.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section 2
hereof, including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters or Mitsui in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various
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jurisdictions), all word processing, duplicating and printing expenses, all
messenger and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of
"cold comfort" letters or any special audits required by, or incident to, such
registration, all fees and disbursements of underwriters (other than
underwriting discounts and commissions), all transfer taxes and all fees and
expenses of counsel to Mitsui of up to a maximum of $50,000 per registration;
provided, however, that Registration Expenses shall exclude, and Mitsui shall
pay, underwriting discounts and commissions in respect of the Registrable
Securities being registered.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
2. Registration Under the Securities Act, etc.
2.1 Incidental Registration.
(a) Right to Include Registrable Securities. If Penske
exercises its right to cause the Company to effect the registration under the
Securities Act of all or part of the Penske Registrable Securities, pursuant to
any of the Penske Registration Rights Agreements, and if as a result of
exercising such right the Company proposes to register any of the Penske
Registrable Securities under the Securities Act by registration on Form X-0, X-0
or S-3 or any successor or similar form(s), the Company will each such time give
prompt written notice to Mitsui of its intention to register the Penske
Registrable Securities and of Mitsui's rights under this Section 2.1. Upon the
written request of Mitsui (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by Mitsui), made as promptly
as practicable and in any event within 30 days after the receipt of any such
notice (15 days if the Company states in such written notice or gives telephonic
notice to Mitsui, with written confirmation to follow promptly thereafter,
stating that (i) such registration will be on Form S-3 and (ii) such shorter
period of time is required because of a planned filing date), the Company shall
include in such registration under the Securities Act all Registrable Securities
which the Company has been so requested to register by Mitsui subject only to
the terms and conditions set forth herein. Notwithstanding anything to the
contrary contained in this Agreement, but subject in each case to the terms of
each Penske Registration Rights Agreement, the Company may in its
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discretion withdraw any registration commenced pursuant to this Section 2.1
without liability to the holders of Registrable Securities. The Company will pay
all Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 2.1.
(b) Right to Withdraw. Mitsui shall have the right to
withdraw its request for inclusion of any of its Registrable Securities in any
registration statement pursuant to this Section 2.1 at any time prior to the
execution of an underwriting agreement with respect thereto by giving written
notice to the Company of its request to withdraw.
(c) Priority in Incidental Registrations. (i) Subject to
clause (ii) below, if the managing underwriter of any underwritten offering
shall inform the Company by letter of its belief that the number of Registrable
Securities requested to be included in such registration, when added to the
number of other securities to be offered in such registration, would materially
adversely affect such offering, then the Company shall include in such
registration, (the "Section 2.1 Sale Amount"), (A) all of the securities
proposed by the Company to be sold for its own account; (B) thereafter, to the
extent the Section 2.1 Sale Amount is not exceeded, any other securities of the
Company requested to be included in such registration by JPMP, AON, Mitsui,
Penske and its Affiliates, and Harvard on a pro rata basis, with the amount of
securities of JPMP, AON, Mitsui, Penske and its Affiliates, with respect to
securities not held for the account of JPMP and AON, and Harvard to be included
based on the pro rata amount of shares of Common Stock held, or obtainable by
exercise or conversion of other securities of the Company, by JPMP, AON, Mitsui,
Penske and its Affiliates, with respect to securities not held for the account
of JPMP and AON, and Harvard, it being understood that for purposes of this
Section 2.1(c) JPMP and AON shall be deemed to "hold" that aggregate number of
Registrable Securities held by IMCG for the account of each of JPMP and AON; and
(D) thereafter, to the extent the Section 2.1 Sale Amount is not exceeded, any
other holder of Company securities entitled to register such securities.
(ii) Notwithstanding anything contained herein to the
contrary, with respect to the first primary offering of securities of the
Company following the date of this Amendment Agreement, the Company shall have
no obligation to register any Registrable Securities so long as none of Penske
or any of its Affiliates shall have exercised their rights to cause the Company
to effect the registration under the Securities Act of all or part of the Penske
Registrable Securities, pursuant to any of the Penske Registration Rights
Agreements.
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(d) The Company represents and warrants that, as of the
date hereof, no Person has rights to require the Company to effect the
registration under the Securities Act of Common Stock, except as disclosed prior
to the date hereof in the Company's filings with the U.S. Securities and
Exchange Commission.
(e) After the date hereof, the Company shall not grant
to any Person, rights to require the Company to effect a registration under the
Securities Act of Common Stock unless the Company simultaneously enters into an
amendment of this Agreement pursuant to which Mitsui will be granted rights to
require the Company to effect a registration under the Securities Act of Common
Stock that are equal to the rights granted to such Person.
(f) After the date hereof, the Company shall not grant
to any Person rights to include Common Stock in a registration under the
Securities Act of Common Stock that are more favorable to such Person than the
rights granted to Mitsui hereunder unless the Company simultaneously enters into
an amendment of this Agreement pursuant to which Mitsui will be granted rights
to include Common Stock in a registration under the Securities Act that are
equal to the rights provided to such Person.
2.2 Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect the registration of any
registrable securities under the Securities Act as provided in the Penske
Registration Rights Agreements and if, in such event, Mitsui is entitled to
register Registrable Securities pursuant to this Agreement, the Company shall,
unless and until either Mitsui has withdrawn its request or is no longer
entitled to include in such registration, all or any portion of the Registrable
Securities, as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect such
registration (and shall include all financial statements required by
the Commission to be filed therewith) and thereafter use its
reasonable best efforts to cause such registration statement to
become effective; provided, however, that before filing such
registration statement (including all exhibits) or any amendment or
supplement thereto or comparable statements under securities or blue
sky laws of any jurisdiction, the Company shall as promptly as
practicable furnish such documents to Mitsui and each underwriter,
if any, participating
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in the offering of the Registrable Securities and their respective
counsel, which documents will be subject to the reasonable review
and comments of Mitsui, each underwriter and their respective
counsel; and provided, further, however, that the Company may
discontinue any registration of its securities pursuant to Section
2.1 or which are not Registrable Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) notify Mitsui of the Commission's requests for amending or
supplementing the registration statement and the prospectus, and
prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities
covered by such registration statement for such period as shall be
required for the disposition of all of such Registrable Securities
in accordance with the intended method of distribution thereof;
provided, that except with respect to any such registration
statement filed pursuant to Rule 415 under the Securities Act, such
period need not exceed 180 days;
(c) furnish, without charge, to Mitsui and each underwriter
such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents, as
Mitsui and such underwriters may reasonably request;
(d) use its reasonable best efforts (i) to register or qualify
all Registrable Securities and other securities covered by such
registration statement under such securities or blue sky laws of
such States of the United States of America where an exemption is
not available and as Mitsui or any managing underwriter shall
reasonably request, (ii) to keep such registration or qualification
in effect for so long as such registration statement remains in
effect, and (iii) to take any other action which may be reasonably
necessary
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or advisable to enable Mitsui to consummate the disposition in such
jurisdictions of the securities to be sold by Mitsui, except that
the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subsection (d) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(e) furnish to Mitsui and each underwriter, if any,
participating in the offering of the securities covered by such
registration statement, a signed counterpart of (i) an opinion of
counsel for the Company, and (ii) a "comfort" letter signed by the
independent public accountants who have certified the Company's or
any other entity's financial statements included or incorporated by
reference in such registration statement, covering substantially the
same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the accountants'
comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' comfort letters delivered to
the underwriters in underwritten public offerings of securities (and
dated the dates such opinions and comfort letters are customarily
dated) and, in the case of the legal opinion, such other legal
matters, and, in the case of the accountants' comfort letter, such
other financial matters, as the underwriters, may reasonably
request;
(f) promptly notify Mitsui and each managing underwriter, if
any, participating in the offering of the securities covered by such
registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement
related thereto or post-effective amendment to such registration
statement has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus related
thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of
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any of the Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose; (v) at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon 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 any material fact required to be
stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were
made, and in the case of this clause (v), at the request of Mitsui
promptly prepare and furnish to Mitsui and each managing
underwriter, if any, participating in the offering of the
Registrable Securities, 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
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 in the light of the circumstances under which they were
made;
(g) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to Mitsui a copy of any amendment
or supplement to such registration statement or prospectus;
(h) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all
Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such
registration;
(i) (i) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
listed on the principal securities exchange on which similar
securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the
rules of such
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exchange, or (ii) if no similar securities are then so listed, use
its reasonable best efforts to (x) cause all such Registrable
Securities to be listed on a national securities exchange or (y)
failing that, secure designation of all such Registrable Securities
as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ
authorization for such shares and, without limiting the generality
of the foregoing, to arrange for at least two market makers to
register as such with respect to such shares with the National
Association of Securities Dealers, Inc.;
(j) deliver promptly to counsel to Mitsui and each
underwriter, if any, participating in the offering of the
Registrable Securities, copies of all correspondence between the
Commission and the Company, its counsel or auditors;
(k) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration
statement;
(l) provide a CUSIP number for all Registrable Securities, no
later than the effective date of the registration statement; and
(m) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into
account the needs of the Company's business) in their marketing of
Registrable Securities.
The Company may require Mitsui to furnish the Company such information
regarding Mitsui and the distribution of the Registrable Securities as the
Company may need for the purpose of effecting a registration of Common Stock,
including Registrable Securities, under the Securities Act. The Company shall be
excused from any obligation to Mitsui hereunder to the extent that Mitsui's
failure to deliver such information has impaired the Company's ability to
perform its obligations hereunder and comply with applicable laws and
regulations under the Securities Act, and for so long as Mitsui has not
delivered such information to the extent required by applicable law.
Mitsui agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (f) (iii), (iv) or
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(v) of this Section 2.2, Mitsui will, to the extent appropriate, discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until, in the case of paragraph (f)(v)
of this Section 2.2, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (f)(v) of this Section 2.2 and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in its possession, of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
2.3 Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 2.1 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection therewith,
all of the Registrable Securities to be included in such registration shall be
subject to such underwriting agreements, and Mitsui shall be party to such
underwriting agreements in form and substance reasonably acceptable to it.
2.4 Indemnification.
(a) Indemnification by the Company. The Company agrees
that in the event of any registration of any securities of the Company under the
Securities Act, the Company shall indemnify and hold harmless Mitsui, its
respective directors, officers, members, partners, agents and affiliates and
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls Mitsui or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, or liabilities, joint or several, to which Mitsui or any such
director, officer, member, partner, agent or affiliate or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities, joint or several (or
actions or proceedings, whether commenced or threatened, in respect thereof),
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made not
misleading, and the Company shall reimburse Mitsui and each such director,
officer, member, partner, agent or affiliate, underwriter and controlling Person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability,
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action or proceeding; provided that the Company shall not be liable in any such
case to Mitsui or any such director, officer, member, partner, agent, affiliate,
or controlling person to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Mitsui, specifically stating that it is for use in
the preparation thereof; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any person from whom the person asserting any such losses, claims,
damages or liabilities (the "Claimant") purchased securities, or any person
controlling such person, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendment or supplement
thereto) was not sent or given by or on behalf of such person to such Claimant,
if required by law to have been so delivered, at or prior to the written
confirmation of the sale of the securities sold to such Claimant, and if the
prospectus (as so amended and supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities. Such indemnity shall remain
in full force regardless of any investigation made by or on behalf of Mitsui or
any such director, officer, member, partner, agent, affiliate, underwriter or
controlling Person and shall survive the transfer of such securities by Mitsui.
(b) Indemnification by Mitsui. As a condition to
including any Registrable Securities in any registration statement, Mitsui shall
indemnify and hold harmless (in the same manner and to the same extent as set
forth in paragraph (a) of this Section 2.4) the Company, and each director of
the Company, each officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of Mitsui specifically stating that it
is for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement;
provided, however, that the liability of such indemnifying party under this
Section 2.4(b) shall be limited to the amount of proceeds (net of expenses and
underwriting discounts and
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commissions) received by such indemnifying party in the offering giving rise to
such liability. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by Mitsui.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section 2.4,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.4, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
otherwise than under this Section 2.4. In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
or proceeding include both the indemnified party and the indemnifying party and
if in the opinion of outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other indemnified parties
which are in conflict with or in addition to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to defend such action or proceeding on behalf of such indemnified party
or parties, provided, however, that the indemnifying party shall be obligated to
pay for only one counsel and one local counsel for all indemnified parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such indemnified
party for any legal expenses subsequently incurred by the latter in connection
with the defense thereof (unless the first proviso in the preceding sentence
shall be applicable). No indemnifying party shall be liable for any settlement
of any action or proceeding effected without its written consent. No
indemnifying party shall, without the
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consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which 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.
(d) Contribution. If the indemnification provided for in
this Section 2.4 shall for any reason be held by a court to be unavailable to an
indemnified party under subsection (a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under subsection (a) or (b) hereof, the indemnified
party and the indemnifying party under subsection (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as shall
be appropriate to reflect not only the relative fault but also the relative
benefits received by the indemnifying party and the indemnified party from the
offering of the securities covered by such registration statement as well as any
other relevant equitable considerations. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 2.4(d) were
to be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to in the
preceding sentence of this Section 2.4(d). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such Person's consent, which consent shall not be
unreasonably withheld. Notwithstanding anything in this subsection (d) to the
contrary, no indemnifying party (other than the Company) shall be required to
contribute any amount in excess of the proceeds (net of expenses and
underwriting discounts and commissions) received by such party from the sale of
the Registrable Securities in the offering to which the losses, claims, damages
or liabilities of the indemnified parties relate.
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(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subsections of this
Section 2.4 (with appropriate modifications) shall be given by the Company and
Mitsui with respect to any required registration or other qualification of
securities under any federal, state or blue sky law or regulation of any
governmental authority other than the Securities Act. The indemnification
agreements contained in this Section 2.4 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the transfer of any of the Registrable Securities by
Mitsui.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.4 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
2.5 Unlegended Certificates. In connection with the offering
of any Registrable Securities registered pursuant to this Section 2, the Company
shall promptly after the sale of such Registrable Securities (i) facilitate the
timely preparation and delivery to Mitsui and the underwriters, if any,
participating in such offering, of unlegended certificates representing
ownership of such Registrable Securities being sold in such denominations and
registered in such names as requested by Mitsui or such underwriters, and (ii)
instruct any transfer agent and registrar of such Registrable Securities to
release any stop transfer orders with respect to any such Registrable
Securities.
2.6 No Required Sale. Nothing in this Agreement shall be
deemed to create an independent obligation on the part of Mitsui to sell any
Registrable Securities pursuant to any effective registration statement.
3. Rule 144. The Company shall take all actions reasonably necessary
to enable Mitsui to sell its Common Stock without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, or (ii) any similar rule or regulation hereafter
adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of Mitsui, the Company will deliver to such
holder a written statement as to whether it has complied with such requirements.
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4. Amendments and Waivers. This Agreement may be amended, modified
or supplemented only by written agreement of the parties.
5. Adjustments. In the event of any change in the capitalization of
the Company as a result of any stock split, stock dividend, reverse split,
combination, recapitalization, merger, consolidation, or otherwise, the
provisions of this Agreement shall be appropriately adjusted.
6. 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:
(a) If to Mitsui to:
Mitsui & Co., Ltd.
First Motor Vehicles Div.
0-0, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx, Xxxxx
Attention: General Manager of First Motor Vehicles Div.
If to Mitsui USA:
Mitsui & Co. (U.S.A.), Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Manager,
Detroit Machinery & Automotive Department,
Second Machinery Division
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxxxxxx Xxxxxx, Esq.
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(b) If to the Company, to it at:
United Auto Group
00000 Xxxxx Xxxxx Xxxx
Xxxxx X00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
7. Assignment; Third Party Beneficiaries; Majority Controls. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns.
This Agreement may not be assigned by the Company, without the prior written
consent of Mitsui. Mitsui may, at its election, at any time or from time to
time, assign its rights or delegate its obligations under this Agreement, in
whole or in part, to any purchaser or other transferee of Registrable Securities
held by it; provided, however, that any rights to withdraw shares from inclusion
in a registration statement pursuant to Section 2 shall be made only by Mitsui
for itself and all such purchasers and transferees; and provided, further, that
any decision hereunder made by the holders of the majority of the Registrable
Securities shall be binding on all other holders of Registrable Securities.
8. Remedies. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not control or otherwise affect the meaning hereof.
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10. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights and obligations of the parties hereto shall be
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 of the parties hereto hereby irrevocably
consents to submit to the jurisdiction of the courts of the State of New York
and the United States of America located in the County 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 (and agrees
not to commence any action or proceeding relating thereto except in such
courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in Section
6 hereof shall be effective service of process for any action or proceeding
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States
of America located in the County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in an
inconvenient forum.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction. If any restriction or provision of this
Agreement is held unreasonable, unlawful or unenforceable in any respect, such
restriction or provision shall be interpreted, revised or applied in a manner
that renders it lawful and enforceable to the fullest extent possible under law.
13. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute and
deliver all 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.
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14. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
[Remainder of page left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
UNITED AUTO GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
MITSUI & CO., LTD.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title:
MITSUI & CO. (U.S.A.), INC.
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title:
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