EXHIBIT B
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STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated April 12, 1999 (this "Agreement"),
among Aeneas Venture Corporation ("Stockholder"), International Motor Cars Group
I, L.L.C. and International Motor Cars Group II, L.L.C. (collectively, the
"Purchaser").
WHEREAS, United Auto Group, Inc., a Delaware corporation (the
"Company"), and Purchaser, are contemporaneously herewith entering into a
Securities Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), which provides, among other things, for the acquisition by
Purchaser of shares of Preferred Stock and Warrants to purchase shares of Common
Stock upon the terms and subject to the conditions set forth therein;
WHEREAS, as a condition to its willingness to enter into the Purchase
Agreement, Purchaser has requested that Stockholder make certain agreements with
respect to the shares of Common Stock beneficially owned by Stockholder and
listed under Stockholder's name on the signature page hereto (the "Stockholder
Shares"), upon the terms and subject to the conditions hereof; and
WHEREAS, in order to induce Purchaser to enter into the Purchase
Agreement, Stockholder is willing to make certain agreements with respect to the
Stockholder Shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Voting Agreements; Proxy.
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(a) For so long as this Agreement is in effect, in any meeting of
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, Stockholder shall vote, or, if applicable, give
consents with respect to, all of the Stockholder Shares (and any other shares of
Common Stock over which Stockholder has voting power) (collectively, "Shares")
that are held on the record date applicable thereto in favor of (i) the Purchase
Agreement, (ii) the transactions contemplated by the Purchase Agreement and
(iii) any actions required in furtherance thereof. Any such vote shall be cast
or consent shall be given in accordance with such procedures relating thereto as
shall ensure that it is duly counted for purposes of determining that a quorum
is present and for purposes of recording the results of such vote or consent.
(b) Upon the written request of Purchaser, Stockholder, in furtherance
of the transactions contemplated hereby and by the Purchase Agreement, and in
order to secure the performance by Stockholder of its duties under this
Agreement, shall promptly execute, in accordance with the provisions of Section
212 of the Delaware General Corporation Law, and deliver to Purchaser an
irrevocable proxy, substantially in the form attached as Exhibit A hereto, and
irrevocably appoint Purchaser or its designees, with full power of substitution,
its attorney and proxy to vote or, if applicable, to give consent with respect
to, all Shares with regard to any of the matters referred to in Section 1(a) at
any meeting of the stockholders of the Company, however called, or in connection
with any action by written consent by the stockholders of the Company.
Stockholder acknowledges and agrees that (i) such proxy, if and when given,
shall be coupled with an interest, shall constitute, among other things, an
inducement for Purchaser to enter into the Purchase Agreement, shall be
irrevocable and shall not be terminated by operation of law or otherwise upon
the occurrence of any event, except as provided in Section 14 hereof, and (ii)
that no subsequent proxies with respect to the Shares shall be given (and if
given shall not be effective), with respect to any of the matters referred to in
Section 1(a).
2. Covenants. (a) From and after the date of this Agreement,
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Stockholder agrees not to: (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance,
tender or other disposition of, any Stockholder Shares; (ii) grant any proxies
with respect to any Shares, deposit any Shares into a voting trust or enter into
a voting or option agreement with respect to any Shares; (iii) take any action,
directly or indirectly through any of its affiliates (other than the Company or
any of its subsidiaries), which the Company is prohibited from taking under
Section 4.2 of the Purchase Agreement; (iv) vote in any manner (i.e. by ballot,
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proxy, written consent or otherwise) any Shares in favor of any other
transaction that is proposed by any Person (including the Company) as an
alternative to the transactions contemplated by the Purchase Agreement; or (v)
take any action which would make any representation or warranty of Stockholder
herein untrue or incorrect or prevent, burden or materially delay the
consummation of the transactions contemplated by this Agreement; provided,
however, that Stockholder may take any action described in clause (i) or (ii)
above if any third party which obtains the right to vote any Shares as a result
of such action assumes (in a writing executed by any such third party and
delivered to Purchaser) Stockholder's obligations under this Agreement with
respect to such Shares.
(b) Stockholder agrees that from and after the date of this Agreement
through and including the date this Agreement is terminated, without the prior
written consent of Purchaser, which may be withheld in Purchaser's sole
discretion, Stockholder shall not vote or give any consent with respect to any
Shares in favor of an Alternative Transaction (as defined in the Purchase
Agreement) other than an Alternative Transaction involving the sale of all or
substantially all of the capital stock or assets of the Company.
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3. Representations and Warranties of Stockholder. Stockholder
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represents and warrants to Purchaser that:
(a) Capacity; No Violations. Stockholder has the legal capacity to
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enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Stockholder, and
constitutes a valid and binding agreement of Stockholder enforceable against
Stockholder in accordance with its terms, except as enforceability against
Stockholder may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to the rights of
creditors generally and other general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and such
execution and delivery and performance by Stockholder of this Agreement will not
(i) conflict with, require a consent, waiver or approval under, or result in a
breach or default under, any of the terms of any contract, commitment or other
obligation to which Stockholder is a party or by which Stockholder is bound;
(ii) violate any order, writ, injunction, decree or statute, or any law, rule or
regulation applicable to Stockholder or the Shares; or (iii) result in the
creation of, or impose any obligation on Stockholder to create, any Encumbrance
other than transfer restrictions imposed by applicable Federal and state
securities laws upon the Shares.
(b) Shares. As of the date of this Agreement, Stockholder is the
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record holder of, and has good and valid title to, the Shares free and clear of
all Encumbrances other than transfer restrictions imposed by applicable Federal
and state securities laws. The Shares are the only shares of any class of
capital stock of the Company which Stockholder has the right, power or authority
(sole or shared) to sell or vote, and Stockholder does not have any right to
acquire, nor is it the beneficial owner of, any other shares of any class of
capital stock of the Company or any securities convertible into or exchangeable
or exercisable for any shares of any class of capital stock of the Company.
There are no options or rights to acquire, or other contracts (including
proxies, voting trusts or voting agreements) relating to, the Shares to which
Stockholder is a party.
4. Adjustments; Additional Shares. In the event (i) of any stock
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dividend, stock split, recapitalization, reclassification, combination or
exchange of Shares on, of or affecting the Shares, or (ii) Stockholder shall
become the beneficial owner of any additional Shares or other securities
entitling the holder thereof to vote or give consent with respect to the matters
set forth in Section 1(a) hereof, then the terms of this Agreement shall apply
to the Shares held by Stockholder immediately following the effectiveness of the
events described in clause (i) above or Stockholder becoming the beneficial
owner of the Shares or other securities, as described in clause (ii) above, in
each case as though they were Shares hereunder.
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5. Expenses. Each party hereto shall pay its own expenses incurred
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in connection with this Agreement.
6. Specific Performance. Stockholder acknowledges and agrees that if
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it fails to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to Purchaser for which money damages
would not be an adequate remedy. In such event, Stockholder agrees that
Purchaser shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if Purchaser should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, Stockholder hereby waives the claim or defense that Purchaser has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. Stockholder
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
7. Notices. All notices or other communications under this Agreement
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shall be in writing and shall be deemed duly given, effective (i) three business
days later, if sent by registered or certified mail, return receipt requested,
postage prepaid, (ii) when sent, if sent by telecopier or fax, provided that the
telecopy or fax is promptly confirmed by telephone confirmation thereof, (iii)
when served, if delivered personally to the intended recipient, and (iv) one
business day later, if sent by overnight delivery via a national courier
service, and in each case, addressed to the intended recipient at the address
set forth as follows:
If to the Purchaser:
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c/o Penske Capital Partners, L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
with a copy to:
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Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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if to Stockholder:
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Aeneas Venture Corporation
c/o Charlesbank Capital Partners, L.L.C.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx
with a copy to:
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Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx Xxxx
8. Parties in Interest. This Agreement shall inure to the benefit of
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and be binding upon the parties named herein and their respective successors and
assigns; provided, however, that each such successor in interest or assign shall
agree to be bound by the provisions of this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any person or entity
other than Purchaser, Stockholder and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
9. Entire Agreement; Amendments. This Agreement contains the entire
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agreement between Stockholder and Purchaser with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such subject matter. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its
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rights or obligations under this Agreement without the prior written consent of
the other party hereto, except that: (i) Purchaser may assign its rights and
obligations hereunder to any of its affiliates or direct or indirect wholly
owned subsidiaries, but no such transfer shall relieve Purchaser of its
obligations hereunder if such transferee does not perform such
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obligations; and (ii) Stockholder may assign its rights and obligations
hereunder without the consent of Purchaser in accordance with Section 2.
11. Defined Terms; Headings. Capitalized terms not otherwise defined
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herein shall have the meaning ascribed to such terms in the Purchase Agreement.
The section headings herein are for convenience only and shall not affect the
construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware (regardless of the laws
that might otherwise govern under applicable Delaware principles of conflicts of
law).
14. Termination. This Agreement shall terminate at the earlier of
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(i) the date the Second Closing occurs under the Purchase Agreement, (ii)
December 31, 1999, and (iii) on the date the Purchase Agreement is terminated
pursuant to the terms thereof; provided, that the parties shall continue to be
liable for any breach of this Agreement following any such termination. In
addition, Stockholder may terminate this Agreement on or after the 2-month
anniversary of the date of the Initial Closing (as defined in the Securities
Purchase Agreement) by written notice to Purchaser if the Proxy Statement (as
defined in the Purchase Agreement) has not been filed with the Securities and
Exchange Commission prior to such date, and the parties are not working
reasonably diligently to file the Proxy Statement with the Securities and
Exchange Commission.
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IN WITNESS WHEREOF, Purchaser and Stockholder have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
INTERNATIONAL MOTOR CARS GROUP I, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title:
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title:
AENEAS VENTURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Number of Shares Subject to this Agreement:
2,843,656
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EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Stockholder Voting Agreement, dated as of April 12, 1999 (the
"Voting Agreement"), among the undersigned, International Motor Cars Group I,
L.L.C. and International Motor Cars Group II, L.L.C., each a Delaware limited
liability company ("Purchaser"), a copy of such agreement being attached hereto
and incorporated by reference herein, the undersigned hereby irrevocably
appoints and and
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, and each of them, attorneys, agents and proxies, with
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full power of substitution, for the undersigned and in the name, place and stead
of the undersigned, to vote or, if applicable, to give written consent, in such
manner as each such attorney, agent and proxy or his substitute shall in his
sole discretion deem proper to record such vote or consent in the manner set
forth in Section 1(a) of the Voting Agreement with respect to all shares of
Common Stock, par value $.0001 per share (the "Shares"), of United Auto Group,
Inc., a Delaware corporation (the "Company"), (i) which the undersigned is or
may be entitled to vote at any meeting of the Company held after the date
hereof, whether annual or special and whether or not an adjourned meeting, or,
if applicable, with respect to which the undersigned is or may be entitled to
give written consent in connection with any action by written consent by the
stockholders of the Company to give written consent with respect thereto. This
Proxy is coupled with an interest, shall be irrevocable and binding on any
successor in interest of the undersigned and shall not be terminated by
operation of law or otherwise upon the occurrence of any event (except as
provided in Section 14 of the Voting Agreement), including, without limitation,
the death or incapacity of the undersigned. This Proxy shall operate to revoke
any prior proxy as to the Shares heretofore granted by the undersigned. This
Proxy shall terminate upon the date on which the Voting Agreement shall
terminate in accordance with Section 14 of the Voting Agreement. This Proxy has
been executed in accordance with Section 212 of the Delaware General Corporation
Law.
Dated:
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AENEAS VENTURE CORPORATION
By:
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Name:
Title:
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