EXHIBIT 1
PURCHASE AGREEMENT
between
MITSUI & CO., LTD.,
MITSUI & CO. (U.S.A.), INC.
and
X.X. XXXXXX PARTNERS (BHCA), L.P.
dated as of
April 4, 2003
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of April 4, 2003, between X.X. XXXXXX PARTNERS
(BHCA), L.P., a Delaware limited partnership ("Seller"), MITSUI & CO., LTD., a
Japanese company ("Mitsui Japan") and MITSUI & CO. (U.S.A.), INC., a New York
corporation ("Mitsui USA" and, together with Mitsui Japan, the "Purchasers").
RECITALS
WHEREAS, Seller beneficially owns 2,039,642 shares of Voting Common Stock (the
"Common Stock"), par value $0.0001 per share, of United Auto Group, Inc. (the
"Company") through International Motor Cars Group II, L.L.C.;
WHEREAS, Mitsui Japan desires to purchase from Seller, and Seller desires to
sell to Mitsui Japan, 1,291,766 shares of Common Stock (the "Mitsui Japan
Shares") at a purchase price equal to $12.00 per share;
WHEREAS, Mitsui USA desires to purchase from Seller, and Seller desires to sell
to Mitsui USA, 322,942 shares of Common Stock (the "Mitsui USA Shares" and
together with the Mitsui Japan Shares, the "Shares") at a purchase price equal
to $12.00 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 Mitsui Japan Purchase. At the Closing, Mitsui Japan shall
purchase (the "Mitsui Japan Purchase") from Seller, and Seller shall sell and
transfer to Mitsui Japan, the Mitsui Japan Shares for an aggregate purchase
price of $15,501,192 (the "Mitsui Japan Purchase Price").
1.2 The Mitsui USA Purchase. At the Closing, Mitsui USA shall purchase
(the "Mitsui USA Purchase") from Seller, and Seller shall sell and transfer to
Mitsui USA, the Mitsui USA Shares for an aggregate purchase price of $3,875,304
(the "Mitsui USA Purchase Price").
1.3 The Closing. Unless otherwise extended pursuant to Section 5.13,
the closing of the transaction contemplated by this Agreement (the "Closing")
shall take place at the offices of Seller, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000 on or before April 30, 2003 (the "Closing Date").
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1.4 Actions at the Closing. On the Closing Date, the following actions
shall occur (the "Closing Actions"):
(a) Seller shall transfer to Mitsui Japan stock certificates
representing the Mitsui Japan Shares, free and clear of Encumbrances (as
hereinafter defined), and deliver duly executed stock powers in the form
attached as Exhibit A hereto;
(b) Seller shall transfer to Mitsui USA stock certificates
representing the Mitsui USA Shares, free and clear of Encumbrances (as
hereinafter defined), and deliver duly executed stock powers in the form
attached as Exhibit A hereto;
(c) Mitsui Japan shall pay by wire transfer to Seller the Mitsui
Japan Purchase Price in cash; and
(d) Mitsui USA shall pay by wire transfer to Seller the Mitsui USA
Purchase Price in cash.
1.5 Purchsers' Obligations Conditional. The obligations of Mitsui Japan
and Mitsui USA to consummate the Mitsui Japan Purchase and the Mitsui USA
Purchase are conditioned upon the receipt of all requisite corporate approvals
of the Purchasers to consummate such transactions (the "Mitsui Corporate
Approval").
1.6 Seller's Obligations Conditional. The obligations of the Seller to
consummate each of the Mitsui Japan Purchase and the Mitsui USA Purchase shall
be conditioned upon the consummation of each other such purchase and neither
purchase shall occur if the other such purchase does not occur. For purposes of
this Section 1.6, the Mitsui Japan Purchase and the Mitsui USA Purchase shall be
deemed to occur simultaneously.
ARTICLE II
SELLER REPRESENTATIONS & WARRANTIES
Seller represents and warrants to the Purchasers as follows as of the
date hereof and as of the Closing Date:
2.1 Organization, Power and Authority. Seller is a limited partnership
organized and validly existing under the laws of the State of Delaware. Seller
has all requisite partnership 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
partnership action on the part of Seller, and this Agreement constitutes a
legal, valid and binding obligation of Seller, enforceable against Seller, in
accordance with its terms.
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2.3 No Conflict. The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions contemplated
hereby and the sale and delivery by 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 Seller, the Shares or any of Seller's
other respective 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
or lapse of time, or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any agreement of Seller, or result in the
creation of any Encumbrance, upon any of the properties or assets of Seller,
including the Shares, or (c) violate any provisions of Seller's organizational
documents, to the extent, with respect to any of the foregoing, that the same
would adversely affect the ability of Seller to carry out its obligations under
this Agreement.
2.4 Consents. Except as would not prevent Seller from consummating the
transactions contemplated hereby, no permit, authorization, consent or approval
of or by, or any notification of or filing with any person (governmental or
private) is required in connection with the execution, delivery and performance
by Seller of this Agreement or any documentation relating thereto, the
consummation by Seller of the transactions contemplated hereby, or the sale or
delivery of the Shares.
2.5 Ownership. As of the Closing Date, Seller will be the lawful owner
of the Shares, and Seller will have good title to the Shares, free and clear of
any and all mortgages, rights of first refusal or first offer, security
interests liens, mortgages, pledges, charges and similar restrictions (but other
than transfer restriction legends on the Share certificates and any such
restrictions contained in the Second Amended and Restated Stockholders'
Agreement dated as of February 22, 2002, by and among Purchaser, Seller and the
other parties thereto (the "Stockholders' Agreement"), the Amended and Restated
Limited Liability Company Agreement for International Motor Cars Group I, LLC
dated as of February 22, 2002 by and among Seller, Penske Capital and the other
parties thereto (the "IMCG I LLC Agreement"), and the Amended and Restated
Limited Liability Company Agreement for International Motor Cars Group II, LLC
dated as of February 22, 2002 by and among Seller and Penske Capital (the "IMCG
II LLC Agreement," and together with the IMCG I LLC Agreement, the "LLC
Agreements") (collectively, "Encumbrances"), and upon completion of the
transaction contemplated by this Agreement, Seller will transfer to Purchasers
good and valid title to the Shares free and clear of any Encumbrances (other
than transfer restriction legends on the Share certificates and any restrictions
applicable to Purchasers contained in the Stockholders' Agreement).
2.6 Public Filings. As of the Closing Date, Seller has reviewed all
filings that the Company has actually made prior to the Closing Date pursuant to
the Securities Exchange Act of 1934, as amended, and which are available for
review prior to the Closing Date.
2.7 Due Diligence. 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
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contemplated by this Agreement, Seller has relied on the advice of its
investment advisors and/or its legal counsel.
2.7 Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of Seller or under the authority of 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
ACKNOWLEDGEMENTS AND AGREEMENTS BY SELLER
3.1 Seller acknowledges and agrees that it is aware that Purchasers,
Purchasers' affiliates or any of their respective directors, officers,
employees, agents, brokers, trustees or advisors (collectively, "Purchaser
Related Persons" and each a "Purchaser Related Person") have or may have
material non-public information (which may be either favorable or adverse)
concerning the Company or the Shares that has not been disclosed by Purchasers
to Seller. Seller acknowledges that neither of the Purchasers nor any Purchaser
Related Person has any obligation to disclose to Seller any such material or
potentially material information. Seller represents that it has made its own
analysis and decision to sell the Shares.
3.2 Seller acknowledges that it has not requested that Purchasers or
any Purchaser Related Entity disclose to Seller any material non-public
information relating to the Company or the Shares. Seller also represents and
agrees that it is not relying upon any disclosure (or non-disclosure) made (or
not made) by Purchasers or any other Purchaser Related Person in connection with
its sale of the Shares.
3.3 Seller agrees that it has and will have no claims (under any
federal or state securities law or otherwise, to the extent permitted under
applicable law) against Purchasers or any other Purchaser Related Person in
connection with or arising out of any failure of Purchasers or any other
Purchaser Related Person to disclose any material non-public information in
connection with this transaction. Seller further covenants and agrees not to
assert any such claim.
ARTICLE IV
PURCHASER REPRESENTATIONS & WARRANTIES
Each of the Purchasers represents and warrants to Seller as of the date
hereof and as of the Closing Date as to itself, as follows:
4.1 Organization. Such 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. This Agreement has been duly
authorized by all necessary action on the part of such
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Purchaser other than the receipt of the Mitsui Corporate Approval. Upon the
receipt of the Mitsui Corporate Approval, this Agreement shall constitute a
valid and binding agreement of such Purchaser enforceable against such Purchaser
in accordance with its terms.
4.2 No Conflict. The execution, delivery and performance by such
Purchaser of this Agreement and the consummation by such 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 such Purchaser, or any of its 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
such Purchaser or (c) violate the Certificate of Incorporation or the bylaws (or
equivalent governing documents) of such Purchaser.
4.3 Consents. Except as would not prevent such Purchaser from
consummating the transaction contemplated hereby and other than receipt of the
Mitsui Corporate Approval, no permit, authorization, consent or approval of or
by, or any notification of or filing with any person (governmental or private)
is required in connection with the execution, delivery and performance by such
Purchaser of this Agreement or any documentation relating thereto, or the
consummation by such Purchaser of the transactions contemplated hereby.
4.4 Brokers. No agent, broker, investment banker or other person or
entity acting on behalf of such Purchaser or under the authority of such
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.
4.5 Status of Purchaser. Such Purchaser is an accredited investor
within the meaning of the rules of the Securities Act of 1933, as amended (the
"Securities Act"), with full access to information respecting the business and
affairs of the Company. Further, such Purchaser understands and acknowledges the
restrictions imposed by the Securities Act respecting resales of the Shares and
represents that it is acquiring the Shares as principal and not on behalf of or
as agent for others or with a view towards redistribution thereof in violation
of the Securities Act.
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ARTICLE V
MISCELLANEOUS
5.1 Survival of Representations. The representations and warranties
made in this Agreement shall survive for a period ending six months after the
Closing Date; provided that the representation and warranty of Seller set forth
in Section 2.5 shall survive without limitation.
5.2 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 Seller, to:
X.X. Xxxxxx Partners (BHCA), L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Official Notices Clerk
(ii) if to Mitsui Japan, to:
Mitsui & Co., Ltd.
First Motor Vehicles Div.
0-0, Xxxxxxxxx, 0-Xxxxxx, Xxxxxxx-Xx
Xxxxx, Xxxxx
Attention: General Manager of First Motor Vehicles
Division
(ii) if to Mitsui USA, to:
Mitsui & Co. (U.S.A.), Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Manager, Detroit Machinery
Department, Second Machinery Division
Copy: Legal Department
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
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5.3 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.
5.4 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 assigns, whether so expressed or not.
5.5 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
5.6 Governing Law. 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 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.
5.7 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.
5.8 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.
5.9 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.
5.10 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.
5.11 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.
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5.12 Transfer Taxes. All stock transfer taxes (excluding all income,
gains and similar taxes), if any, required to be paid in connection with the
transfer of Shares by Seller shall be paid by Purchasers.
5.13 Termination. This Agreement shall terminate and be of no force and
effect (i) upon written notice of either Purchasers or Seller if the Closing has
not occurred by 5:00 PM (NYT) on April 30, 2003, other than due to a material
breach of this Agreement by the party seeking to terminate or due to the
occurrence of a "force majeure", or (ii) upon written notice of either
Purchasers or Seller if the closing has not occurred by 5:00 PM (NYT) on May 5,
2003 following the occurrence of a "force majeure".
5.14 Mitsui Corporate Approval. The Purchasers shall use their
reasonable best efforts to present the Mitsui Japan Purchase and the Mitsui USA
Purchase for consideration by the Mitsui Board of Directors or the committee or
committees to which it has delegated power over such decision. However, the
parties acknowledge and agree that the decision to grant the Mitsui Corporate
Approval shall be in the sole discretion of the Mitsui Board of Directors or
such committee or committees, and the Purchasers shall not be subject to any
liability by reason of the failure to occur of the Mitsui Corporate Approval.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SELLER:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
PURCHASERS:
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
EXHIBIT A
FORM OF STOCK POWER
