Exhibit 10.19.1.3
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement (the "Amendment") is made and
entered into as of this 31st day of January, 1998 between and among United Auto
Group, Inc., a Delaware corporation, UAG Young, Inc., a Delaware corporation,
Xxx Xxxxx, Inc., an Indiana corporation, Xxx Xxxxx Chevrolet, Inc., an Indiana
corporation, Parkway Chevrolet, Inc., an Indiana corporation, Young Management
Group, Inc., an Indiana corporation, Xxxx X. Xxxxx, an individual resident of
the state of Indiana, Xxxxxxx X. Xxxxx, an individual resident of the state of
Indiana, Xxx X. Xxxxx, an individual resident of the state of Florida, Xxxxxx
X. Xxxxxxxx, III, an individual resident of the state of South Carolina,
Xxxxxxx X. Xxxxx Irrevocable GRAT Trust u/a dated 3/1/97, Xxx X. Xxxxx
Irrevocable GRAT Trust u/a dated 3/1/97, Irrevocable Trust for Xxxx X. Xxxxx
u/a dated 8/31/90 and Irrevocable Trust for Xxxxxxx X. Xxxxx u/a dated 8/31/90.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain Stock Purchase
Agreement dated as of September 25, 1997 (the "Stock Purchase Agreement");
WHEREAS, the parties hereto desire to further amend the terms of the
Stock Purchase Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Stock Purchase Agreement.
2. Prior to the Closing, UAG Young and UAG Young II, Inc., a Delaware
corporation shall form X. Xxxxx Chevrolet, LLC, a Delaware limited liability
company ("DYCLLC"). UAG Young and UAG Young II, Inc. shall constitute the
members of DYCLLC. Also prior to the Closing, UAG and certain Stockholders of
Xxx Xxxxx Chevrolet will form a Delaware limited liability company known as Xxx
Xxxxx Motors, LLC. X. Xxxxx and X. Xxxxx shall acquire and own a fifty-one
percent (51%) interest in the profits (after taking into account preferred
returns on contributed capital) and losses of Xxx Xxxxx Motors, LLC and shall
have majority control of Xxx Xxxxx Motors, LLC. Xxx Xxxxx Chevrolet shall have
a forty-nine percent (49%) interest in the profits (after taking into account
preferred returns on contributed capital) and losses of Xxx Xxxxx Motors, LLC.
3. At the Closing (i) DYCLLC shall acquire all of the assets of Xxx Xxxxx
Chevrolet except for (a) those assets used exclusively in connection with Xxx
Xxxxx Chevrolet's Honda dealership and (b) those assets arising out of or
relating to that certain 22.22% undivided interest in one (1) Cessna Citation
650, Serial Number 650-0028, FAA Registration Number N328QS and two (2) Xxxxxxx
TFE 731-3B-100S Engines, Serial Numbers P87161C and P87124C (the "Cessna
Citation") (such assets, exclusive of those described in (a) and (b), herein
collectively referred to as the "Chevrolet and Isuzu Assets") and Xxx Xxxxx
Chevrolet shall sell, assign, convey and transfer to DYCLLC all of its right,
title and interest in and to the Chevrolet and Isuzu Assets; and (ii) DYCLLC
shall assume all of the liabilities of Xxx Xxxxx Chevrolet except for those
liabilities arising out of or relating to Xxx Xxxxx Chevrolet's Honda
dealership or the Cessna Citation. UAG shall cause DYCLLC to pay in full,
contemporaneously with Closing, the Assumed Loans constituting part of such
assumed liabilities. Immediately after DYCLLC's acquisition of the
Chevrolet and Isuzu Assets in exchange for DYCLLC's transfer to Xxx Xxxxx
Chevrolet of the cash purchase price for such assets as set forth on the
Allocation Schedule, such purchase price consideration from such sale shall be
distributed as a dividend to the Stockholders of Xxx Xxxxx Chevrolet prior to
transfer of the Shares of Xxx Xxxxx Chevrolet as provided in Section 4 below.
4. At the Closing, the Shares of Xxx Xxxxx Chevrolet (the "DYC Shares")
together with stock powers relating thereto shall be delivered to and held by
Xxxxxx & Xxxxxx LLP as escrow agent (the "Escrow Agent") pursuant to the terms
of an escrow agreement agreed to by the parties (the "Honda Escrow Agreement")
and the purchase price for the DYC Shares as set forth on the Allocation
Schedule shall be paid to the Stockholders of Xxx Xxxxx Chevrolet. The Honda
Escrow Agreement shall provide that the Escrow Agent shall deliver the DYC
Shares to UAG Young on the earlier of (i) the date that is no more than three
(3) Business Days after receipt of Honda's approval of the transactions
contemplated hereby or (ii) the date on which the Escrow Agent receives written
notice from UAG Young directing the Escrow Agent to transfer the DYC Shares to
UAG Young, or (iii) December 16, 1998, on which date Escrow Agent shall be
deemed to have received written notice from UAG Young directing the Escrow
Agent to transfer the DYC Shares to UAG Young.
5. After the Closing Date but prior to the DYC Shares being transferred
to UAG Young by the Escrow Agent, Xxx Xxxxx Chevrolet shall contribute to Xxx
Xxxxx Motors, LLC all assets owned by Xxx Xxxxx Chevrolet exclusively and
specifically relating to Xxx Xxxxx Chevrolet's Honda dealership, and Xxx Xxxxx
Motors, LLC shall assume all liabilities of Xxx Xxxxx Chevrolet relating to
such assets.
6. At the Closing, the purchase price for the Shares of Heritage (the
"Heritage Shares") as set forth on the Allocation Schedule shall be paid to the
Heritage Stockholders, and the Heritage Shares together with irrevocable stock
powers relating thereto shall be delivered to and held by the Escrow Agent
pursuant to the terms of an escrow agreement to be agreed to by the parties
(the "Heritage Escrow Agreement"). The Heritage Escrow Agreement shall provide
that the Escrow Agent shall deliver the Heritage Shares to UAG Young on the
earlier of the date (i) that is no more than three (3) Business Days after
receipt of BMW's approval of the transactions contemplated hereby or (ii) the
date on which the Escrow Agent receives written notice from UAG Young directing
the Escrow Agent to transfer the Heritage Shares to UAG Young, or (iii)
December 16, 1998, on which date Escrow Agent shall be deemed to have received
written notice from UAG Young directing the Escrow Agent to transfer the DYC
Shares to UAG Young.
7. At the Closing, (a) Xxx Xxxxx Chevrolet and DYCLLC shall enter into a
management agreement pursuant to which DYCLLC shall manage the operations of
Xxx Xxxxx Chevrolet in return for a management fee and (b) UAG Young or UAG
Young Automotive Group, LLC ("UAG/YAG") and Heritage shall enter into a
management agreement pursuant to which UAG/YAG shall manage the operations of
Heritage in return for a management fee.
8. (a) UAG shall indemnify each Stockholder who holds Shares in Xxx Xxxxx
Chevrolet immediately prior to Closing for an amount equal to the excess of (i)
Taxes payable by the Stockholder in connection with the sale of the Chevrolet
and Isuzu Assets and the related distribution to the Stockholders as
contemplated by this Amendment plus the sale (as contemplated by this
Amendment) of the Shares of Xxx Xxxxx Chevrolet owned by the Stockholder over
(ii) the Taxes which would have been payable by such Stockholder had the Shares
of Xxx Xxxxx Chevrolet owned by such Stockholder been sold as contemplated by
the Stock Purchase Agreement prior to this
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Amendment when Xxx Xxxxx Chevrolet owned the Chevrolet and Isuzu Assets as well
as the assets related to Xxx Xxxxx Chevrolet's Honda dealership and the Cessna
Citation. Section 5.12 of the Stock Purchase Agreement shall apply to the sale
of the Shares of Xxx Xxxxx Chevrolet as contemplated by this Amendment. UAG
shall further indemnify each such Stockholder and any other person holding an
ownership interest in Xxx Xxxxx Chevrolet from and after January 31, 1998
(each, a "DYC Continuing Stockholder") in an amount equal to the excess of (i)
Taxes payable by the DYC Continuing Stockholder for any taxable period after
January 31, 1998 on the income and gain of Xxx Xxxxx Chevrolet attributable to
the DYC Continuing Stockholder under applicable tax law (with the amount of
such Taxes calculated as if the income and gain giving rise to such Taxes is
the marginal taxable income of the DYC Continuing Stockholder for the
applicable tax period), over (ii) the DYC Continuing Stockholder's
proportionate share of all cash distributions made by Xxx Xxxxx Chevrolet to
the DYC Continuing Stockholders during the applicable tax period. In addition,
UAG shall indemnify each of X. Xxxxx, X. Xxxxx and any of their respective
successors-in-interest holding an ownership interest in Xxx Xxxxx Motors, LLC
(each a "Young Owner") in an amount equal to the excess of (i) the Taxes
payable by the Young Owner for any taxable period on income and gain of Xxx
Xxxxx Motors, LLC attributable to the Young Owner (or gain on a disposition of
an ownership interest in Xxx Xxxxx Motors, LLC) under applicable tax law (with
the amount of such Taxes calculated as if the income (or gain) giving rise to
such Taxes is the marginal taxable income of the Young Owner for the applicable
tax period), over (ii) the Young Owner's proportionate share of all cash
distributions by Xxx Xxxxx Motors, LLC to its members (or of cash proceeds to
the Young Owner from disposition of an interest in Xxx Xxxxx Motors, LLC)
during the applicable tax period. UAG shall further indemnify each DYC
Continuing Stockholder and each Young Owner from and against all liabilities,
losses, damages, demands, claims, actions, proceedings, judgments, costs and
expenses (including reasonable attorneys' fees) relating to, arising from or in
connection with the operation after Closing of any business or other activity
of Xxx Xxxxx Chevrolet or Xxx Xxxxx Motors, LLC. In all of the above
situations, UAG shall also pay the indemnified party an additional amount
necessary to cover any Taxes imposed on such party as a result of payments
received under this Subsection (a), including for this purpose payments
received pursuant to this sentence.
(b) UAG shall indemnify each Stockholder who holds Shares in Heritage
immediately prior to the Closing for an amount equal to the excess of (i) Taxes
payable by the Stockholder in connection with the sale of such Shares (as
contemplated by this Amendment), over (ii) the Taxes which would have been
payable by such Stockholder had the Stockholder's Shares in Heritage been sold
as contemplated by the Stock Purchase Agreement prior to this Amendment.
Section 5.12 of the Stock Purchase Agreement shall apply to the sale of Shares
in Heritage as contemplated by this Amendment. In addition, UAG shall indemnify
each such Stockholder and any other person holding an ownership interest in
Heritage from and after January 31, 1998 (each, a "Heritage Continuing
Stockholder") in an amount equal to the excess of (i) Taxes payable by the
Heritage Continuing Stockholder for any taxable period after January 31, 1998
on the income and gain of Heritage attributable to the Heritage Continuing
Stockholder under applicable tax law (with the amount of such Taxes calculated
as if the income and gain giving rise to such Taxes is the marginal taxable
income of the Heritage Continuing Stockholder for the applicable tax period),
over (ii) the Heritage Continuing Stockholder's proportionate share of all cash
distributions made by Heritage to the Heritage Continuing Stockholders during
the applicable tax period. UAG shall further indemnify each Heritage Continuing
Stockholder from and against all liabilities, losses, damages, demands, claims,
actions, proceedings, judgments, costs and expenses (including reasonable
attorneys' fees) relating to, arising from or in connection with the operation
after January 31, 1998 of any business or other activity of Heritage. In all of
the above situations, UAG shall also pay the indemnified party an
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additional amount necessary to cover any Taxes imposed on such party as a
result of payments received under this Subsection (b), including for this
purpose payments received pursuant to this sentence.
(c) Amounts required to be indemnified under this Section shall be paid
upon UAG's receipt of written statements reasonably evidencing the
indemnifiable amount owed by the indemnified party, provided that UAG shall not
be required to make an indemnity payment more than ten (10) days prior to the
date on which the indemnified party is required to pay such amount.
9. This Amendment may be executed by facsimile signature and any number
of counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original. If any one or more of the
provisions of this Amendment shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of this Amendment shall not be affected thereby.
10. This Amendment shall supersede all prior amendments to the Stock
Purchase Agreement and shall survive the Closing Date and the consummation of
the transactions contemplated by the Stock Purchase Agreement.
11. This Amendment shall be governed by and construed in accordance with
the laws of the state of Indiana without giving effect to any choice or
conflict of law provision or rule that would cause laws of any other
jurisdiction to apply.
12. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, transferees and assigns.
13. Schedules 2.11(a), 2.11(c), 2.11(d) and 2.11(e) delivered herewith
are hereby substituted for the corresponding schedules previously furnished to
UAG and Schedules 2.10(d) and 2.15 are supplemented by the Supplements to
Schedules 2.10(d) and 2.15 delivered herewith.
14. The purchase price payable under the Stock Purchase Agreement shall
be allocated as set forth on the attached Allocation Schedule.
15. The obligation of UAG and its Affiliates under the Stock Purchase
Agreement and this Amendment to perform their respective covenants and
agreements with respect to the transactions contemplated by the Stock Purchase
Agreement and this Amendment involving or relating to Xxx Xxxxx Chevrolet,
Shares of Xxx Xxxxx Chevrolet, Heritage or Shares of Heritage shall not, from
and after the date hereof, be subject to any condition precedent (regardless of
whether specified in the Stock Purchase Agreement) except the continuing
accuracy (other than as affected by the transactions contemplated by this
Agreement) of the representations and warranties under Section 3.1 of the Stock
Purchase Agreement.
16. The obligations of UAG and its Affiliates under this Amendment, and
each Stockholder's right to enforce such obligations and to recover Costs
arising out of or resulting from any breach of such obligations, shall not be
subject to or in any manner limited by (i) the Stockholders Threshold Amount or
the Stockholders Cap or (ii) the proviso in clause (ii) of the first sentence
of Section 9.2(a) but shall be subject to the procedures set forth in Section
9.3 of the Stock
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Purchase Agreement and any claims asserted by the Internal Revenue Service or
any other taxing authority for which UAG and its Affiliates may be liable
pursuant to the provisions of this Amendment shall be deemed to constitute
Third Party Claims for purposes of Section 9.3 of the Stock Purchase Agreement.
17. Section 9.2(b) of the Stock Purchase Agreement is hereby amended by
(i) correcting the reference to "Section 9.2(b)" in the first line thereof to
read "Section 9.2(a)" and (ii) deleting the parenthetical "(as defined in this
Agreement and the Merger Agreement)" that begins in the third line of Section
9.2(b)(ii).
18. To the extent that the terms or provisions of this Amendment conflict
or are inconsistent with those of the Stock Purchase Agreement, the terms and
provisions of this Amendment shall control and modify those of the Stock
Purchase Agreement. Except as so modified, the terms and provisions of the
Stock Purchase Agreement shall remain in full force and effect. All references
in the Stock Purchase Agreement to "this Agreement" shall include reference to
this Amendment, and to the Stock Purchase Agreement as amended by this
Amendment, for purposes of applying the terms and provisions of the Stock
Purchase Agreement.
19. The right of any UAG Indemnified Party to recover Costs or any other
damages arising from or in connection with Environmental Concerns, including
On-Site Concerns, Off-Site Concerns, On-Site Considerations, and Off-Site
Considerations, as such terms are defined in the Environmental Indemnification
Agreement dated as of January 31 by and between Xxxx X. Xxxxx, Xxxxxxx X.
Xxxxx, UAG and the other signatories thereto (the "Environmental
Indemnification Agreement"), shall in all events be limited to the rights
expressly provided under the Environmental Indemnification Agreement.
20. The right of any UAG Indemnified Party to recover Costs or any other
damages arising from a matter specifically dealt with under Section 10 of the
Closing Date Agreement of even date herewith between certain of the parties
hereto and others ("CDA") shall in all events be limited to the rights
expressly set forth in the CDA.
21. (a) The Final Net Worth, as such term is defined in Section 1.4(g) of
the Stock Purchase Agreement, shall equal the Final Net Worth determined in
accordance with Section 1.4(a)-(f) and this Section, plus the additional amount
of $28,702, which additional amount shall be allocated to the Companies as
shown on the attached Incremental Net Worth Adjustment Schedule.
(b) The parties acknowledge that the Closing Date Balance Sheet
will include the General Motors factory receivables relating to Xxxxxx
Chevrolet included in general ledger accounts 261-4667, 261 Collect and 000X
(xxx "Xxxxxx Xxxxxxxxxxx"). To the extent that the amount of the Xxxxxx
Receivables actually collected from General Motors after January 31, 1998 is
less than the amount of the Xxxxxx Receivables on the Closing Date Balance
Sheet, the amount of such shortfall shall be deducted from the Final Net Worth.
To the extent that the amount of the Xxxxxx Receivables actually collected by
Xxxxxx Chevrolet after the Closing Date exceeds the amount of the Xxxxxx
Receivables, such amounts shall be added to the Final Net Worth. UAG shall
cause Xxxxxx Chevrolet to cooperate with the Xxxxxx and use diligence to
collect as much of the Xxxxxx Receivables as possible until such time as the
Xxxxxx Receivables matter is resolved with General Motors although Xxxxxx
Chevrolet shall have no obligation to commence any proceedings against General
Motors. If resolution of the Xxxxxx Receivables matter occurs after payment is
made with respect to Final Net
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Worth, the appropriate party shall promptly pay the other the amount of the
shortfall or excess in the Xxxxxx Receivables. Any outstanding amount with
respect to the Xxxxxx Receivables shall be deemed to have been finally resolved
with General Motors for purposes hereof on the earlier of the date that the
Xxxxxx Receivables matter is agreed to with General Motors or December 15,
1998.
(c) Clause (f) of Section 1.8 of the Stock Purchase Agreement
contemplates that certain cash dividends to Stockholders of the Companies shall
be declared and paid by the Companies on or before the Closing Date. To the
extent such dividends have not been declared and paid on or before such date as
contemplated in such clause (f) (the "unpaid dividends"), no unpaid dividends
shall thereafter be payable under such clause, and the Net Worth as of the
Closing shall reflect that the unpaid dividends have not been accrued or paid
for purposes of Section 1.4.
22. The Closing Date and Closing for purposes of the Stock Purchase
Agreement shall be deemed to be January 31, 1998. The Closing Date Balance
Sheet to be delivered pursuant to Section 1.4 of the Stock Purchase Agreement
shall be prepared and dated as of January 31, 1998.
23. In the event that a Stockholder or other Person who is entitled under
the Stock Purchase Agreement or this Amendment to receive reimbursement of
Taxes is a grantor trust or other entity (such trust or other entity referred
to as "Entity") not itself subject to the payment of Taxes, such Entity shall,
for purposes of any reimbursement of Taxes under the Stock Purchase Agreement
and this Amendment, be deemed liable for payment of any Taxes payable by its
grantor beneficiary, or owner, provided that all payments required to be made
under the Stock Purchase Agreement or this Amendment for reimbursement of any
such Taxes shall be made directly to such Entity.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
UNITED AUTO GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
UAG YOUNG, INC.,
By: /s/Xxxxxx X. Xxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
XXX XXXXX, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Its: President
----------------------
SIGNATURES CONTINUED ON FOLLOWING PAGE
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XXX XXXXX CHEVROLET, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Its: President
----------------------
PARKWAY CHEVROLET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx III
---------------------------
Its: President
-----------------------
YOUNG MANAGEMENT GROUP, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Its: President
----------------------
/s/ Xxxx X. Xxxxx
------------------------------
XXXX X. XXXXX, individually
/s/ Xxxxxxx X. Xxxxx
------------------------------
XXXXXXX X. XXXXX, individually
/s/ Xxx X. Xxxxx
-------------------------------
XXX X. XXXXX, individually
/s/ Xxxxxx X. Xxxxxxxx III
--------------------------------
XXXXXX X. XXXXXXXX, III, individually
XXXXXXX X. XXXXX IRREVOCABLE GRAT
TRUST U/A DATED 3/1/97
/s/ Xxxx X. Xxxxx
----------------------------------
XXXX X. XXXXX, TRUSTEE
SIGNATURES CONTINUED ON FOLLOWING PAGE
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
XXXXXXX X. XXXXX, TRUSTEE
XXX X. XXXXX IRREVOCABLE GRAT TRUST
U/A DATED 3/1/97
/s/ Xxxx X. Xxxxx
--------------------------------------
XXXX X. XXXXX, TRUSTEE
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
XXXXXXX X. XXXXX, TRUSTEE
IRREVOCABLE TRUST FOR XXXX X. XXXXX
U/A DATED 8/31/90
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
XXXXXX X. XXXXXXX, TRUSTEE
/s/ Xxx Xxxxxxxxx
--------------------------------------
XXX XXXXXXXXX, TRUSTEE
IRREVOCABLE TRUST FOR XXXXXXX X.
XXXXX U/A DATED 8/31/90
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
XXXXXX X. XXXXXXX, TRUSTEE
/s/ Xxx Xxxxxxxxx
--------------------------------------
XXX XXXXXXXXX, TRUSTEE
