EXHIBIT 35
VOTING AND TRANSFER RIGHTS AGREEMENT
AMONG
PENSKE CORPORATION
and
THE PERSONS SIGNATORY HERETO
Dated as of August 1, 2003
WHEREAS, the persons signatory hereto under the heading "HOLDERS"
(individually, a "Holder" and, collectively, "Holders") shall receive shares of
Common Stock (as hereafter defined) of United Auto Group, Inc. (the "Company")
from affiliates of Penske Corporation, a Delaware corporation ("Penske"), in the
amount set forth on the signature page hereto;
NOW, THEREFORE, in consideration of the Shares received and the
promises, mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings specified below:
"Beneficial Ownership" means "beneficial ownership" as defined in Rule 13d-3
promulgated under the Exchange Act. The term "Beneficial Owner" shall have a
correlative meaning.
"Business Day" means a calendar day, other than (a) a Saturday or Sunday, and
(b) a day on which commercial banks are required or permitted by law or other
governmental action to close in New York, New York, United States of America.
"Common Stock" means the Class A Common Stock, par value $.0001 per share, of
the Company, and includes any securities issued with respect to such shares by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, amalgamation, merger, consolidation or other
reorganization or otherwise.
"Permitted Transferee" of a person means (a) a corporation, partnership or other
entity wholly owned by such person and (b) an inter vivos trust or substantially
similar entity designed for estate or tax planning purposes, provided that such
corporation, partnership or other entity or such trust or similar entity shall
agree in writing to comply with the terms hereof.
"Shares" means the shares of Common Stock issued to a Holder as set forth on the
signature page hereto.
"Sole Beneficial Owner" shall mean a person who is the Beneficial Owner of
Shares, who does not share Beneficial Ownership of such Shares with any other
person (other than pursuant to this Agreement) and who is the only person (other
than pursuant to
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applicable community property laws) with a direct economic interest in the
Shares, other than a Permitted Transferee. An economic interest of the Company
(or of any other person with respect to which the Company has expressly agreed
to in writing) as pledgee shall be disregarded for this purpose.
"Transfer" means any direct or indirect transfer, sale, assignment, gift,
pledge, mortgage, hypothecation or other disposition of any interest. The terms
"Transferee," "Transferor," "Transferred," and "Transferable" shall each have a
correlative meaning.
ARTICLE II
VOTING AGREEMENT
2.1. VOTING AGREEMENT.
Each Holder hereby agrees to vote any Shares subject to the restrictions set
forth in Section 3.2 hereof as directed by Penske, or, in the absence of any
direction by Penske, in favor of any proposal or any director nominee
recommended by the Board of Directors of the Company, at any meeting of the
stockholders of the Company, and at any adjournment thereof, and on any other
occasion in respect of which the consent of such Holder with respect to its
Shares may be given or may be requested or solicited by the Company, whether at
a meeting or pursuant to the execution of a written consent or otherwise, for
all purposes. Each Holder further agrees that such Holder will not vote any
Shares subject to the restrictions set forth in Section 3.2 hereof in favor of
the approval of any corporate action in contravention of the direction specified
above. Each Holder further agrees that any breach of this Section 2.1 shall
result in a forfeiture of the Shares in favor of Penske.
ARTICLE III
TRANSFER RESTRICTIONS
3.1 RIGHT OF FIRST OFFER
At any time prior to termination of this Agreement, if Holder desires to
Transfer any Shares held by Holder (other than the Shares eligible for transfer
immediately as set forth in 3.2(b)(i) and other than to a Permitted Transferee),
such Holder shall, before such Transfer, take the following actions:
(i) Inform Penske in writing (which shall include by facsimile) of
its intent to Transfer such Shares (the "Transfer Notice") and
shall include in such Transfer Notice, the number of shares
such Transferring Party intends to Transfer (the "Transfer
Amount").
(ii) Upon receipt of a Transfer Notice, Penske shall have three
business days from the time of delivery of the Transfer Notice
to inform such Holder whether it desires to purchase any
Shares.
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(iii) In the event that Penske informs such Holder in writing that
it does not intend to purchase any such Shares or provides no
response prior to the expiration of such period, such Holder
shall be entitled to Transfer such Shares, free and clear of
the restrictions set forth in this Section 3.1. Upon such
transfer, if in accordance with the terms of this Agreement,
Holder shall have no further obligations under this Section
3.1.
(iv) In the event that Penske informs such Holder in writing that
it intends to purchase any such Shares, Penske shall purchase
such shares for the purchase price equal to the closing price
of the Common Stock as quoted on the New York Stock Exchange
Composite Index determined as of the date of delivery of the
Transfer Notice (or for fair market value as reasonably
determined by Penske in the event the Common Stock is no
longer listed on the New York Stock Exchange). In such event
the parties shall complete the Transfer of such Shares within
five Business Days from the date of delivery of such notice to
Holder.
3.2 TRANSFER PROHIBITION
(a) Each Holder agrees that such Holder (or, if applicable, such Holder's
Permitted Transferee) shall at all times be the Sole Beneficial Owner of the
Shares owned by the Holder on the date hereof, except as set forth in paragraph
(b).
(b) Notwithstanding Section 3.2(a), a Holder may:
(i) commencing on the date hereof, Transfer up to 33% of such Holder's
Shares as set forth on the signature page hereto; and
(ii) commencing on the date that is one year from the date hereof, Transfer
an aggregate (together with all other Transfers made pursuant to this paragraph
(b)) of up to 66% of such Holder's Shares as set forth on the signature page
hereto.
Notwithstanding Section 3.2 (a), a Holder may Transfer any Shares commencing on
the date that is two years from the date hereof. Any Transfer in compliance with
the provisions of this Section 3.2, shall nonetheless be subject to Section 3.1
hereof.
3.3 TRANSFEREES; NONCOMPLYING TRANSFERS.
In the event of any purported Transfer of any Shares in violation of Article III
of this Agreement, such purported Transfer shall be void and of no effect, and
no dividend of any kind whatsoever nor any distribution pursuant to liquidation
or otherwise shall be received by the purported transferee in respect of such
Shares (all such dividends and distributions being deemed waived), and the
voting rights of such Shares, if any, on any matter whatsoever shall remain
vested in the Transferor, and the Transferor shall not be relieved of any of its
obligations hereunder as the holder of such Shares.
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3.4 LEGEND.
Each Holder understands and agrees that any share certificate representing
Shares Beneficially Owned by such Holder may bear a legend noted conspicuously
on each such certificate, agreement or other instrument reading substantially as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A VOTING AND TRANSFER RIGHTS AGREEMENT AMONG PENSKE
CORPORATION AND THE PERSONS NAMED THEREIN, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF PENSKE CORPORATION AND WHICH, AMONG OTHER
MATTERS, PLACES RESTRICTIONS ON THE DISPOSITION OF SUCH SECURITIES. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SOLD, EXCHANGED,
TRANSFERRED, ASSIGNED, PLEDGED, PARTICIPATED, HYPOTHECATED OR OTHERWISE
DISPOSED OF ONLY IN ACCORDANCE THEREWITH."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Holder severally represents and warrants to Penske as follows:
(i) such Holder has (and with respect to Shares to be acquired in the
future, will have) good, valid and marketable title to the Shares, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement or permitted
hereby;
(ii) this Agreement constitutes the legal, valid and binding obligation of
such Holder, enforceable against such Holder in accordance with its terms
(subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general equitable principles (whether
considered in a proceeding in equity or at law));
(iii) there are no actions, suits or proceedings pending, or, to the
knowledge of such Holder, threatened against or affecting such Holder or such
Holder's assets in any court or before or by any federal, state, municipal or
other domestic or foreign governmental department, commission, board, bureau,
agency or instrumentality which, if adversely determined, would impair the
ability of such Holder to perform or comply with this Agreement;
(iv) such Holder understands that his ability to transfer the Shares is
subject to legal and contractual restrictions and that the Shares have not been
registered under the United States Securities Act of 1933, and that he is
holding the Shares for his own account, for
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investment, and not for distribution, assignment or resale to others, and no
other person has any direct or indirect beneficial interest in such shares
(other than Penske); and
(v) each Holder that is not a natural person, additionally and severally
represents and warrants that:
(i) such Holder is duly organized and validly existing in good standing
under the laws of the jurisdiction of such Holder's formation;
(ii) such Holder has full right, power and authority to enter into and
perform this Agreement; and (iii) the execution and delivery of this Agreement
and the performance of the transactions contemplated herein have been duly
authorized, and no further proceedings on the part of such Holder are necessary
to authorize the execution, delivery and performance of this Agreement; and this
Agreement has been duly executed by such Holder.
ARTICLE V
TERM
5.1 TERM.
This Agreement shall terminate with respect to a Holder at such time as such
entity ceases to Beneficially Own any Shares in compliance with the terms
hereof.
5.2 EFFECTS OF TERMINATION.
Upon termination of this Agreement, this Agreement (other than Section 6.7)
shall thereafter become void and have no effect, and no party hereto shall have
any liability or obligation to any other party hereto in respect of this
Agreement, except for any liability resulting from such party's breach of this
Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 SURVIVAL.
All of the representations, warranties, covenants, and agreements of the parties
contained in this Agreement shall survive until this Agreement is terminated.
6.2 NOTICES.
All notices, demands or other communications to be given or delivered under or
by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered personally to the recipient, (b)
two Business Days
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after the date when sent to the recipient by reputable express courier service
(charges prepaid), or (c) seven Business Days after the date when mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent to the
parties at the addresses indicated on the signature page attached hereto or, if
to Penske: 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention:
President, Telecopy: 000-000-0000.
6.3 PARTIES IN INTEREST.
Other than as set forth below, this Agreement shall not confer any rights or
remedies upon any person or entity other than the parties hereto and their
respective permitted successors and assigns.
6.4 ENTIRE AGREEMENT.
This Agreement and the other documents executed on the date hereof constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede and are in full substitution for any and all prior
agreements and understandings among them relating to such subject matter, and no
party shall be liable or bound to the other party hereto in any manner with
respect to such subject matter by any warranties, representations, indemnities,
covenants, or agreements except as specifically set forth herein or in the other
documents executed on the date hereof.
6.5 DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
6.6 COUNTERPARTS.
For the convenience of the parties, any number of counterparts of this Agreement
may be executed by any one or more parties hereto, and each such executed
counterpart shall be, and shall be deemed to be, an original, but all of which
shall constitute, and shall be deemed to constitute, in the aggregate but one
and the same instrument.
6.7 GOVERNING LAW; JURISDICTION.
(a) ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO (i) THE TERMS OF THIS
AGREEMENT; (ii) THE TRANSACTIONS OR OBLIGATIONS CONTEMPLATED HEREBY; OR (iii)
ALL OTHER ASPECTS OF A PARTY'S STOCK OWNERSHIP AND RIGHTS ATTENDANT THERETO,
MUST BE SETTLED BY ARBITRATION ADMINISTERED BY AAA UNDER ITS COMMERCIAL
ARBITRATION RULES (UNLESS SUCH RULES ARE INCONSISTENT WITH ANY TERM OF THIS
AGREEMENT), AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATION(S) MAY BE
ENTERED IN THE STATE COURTS LOCATED WITHIN THE STATE OF MICHIGAN, COUNTY OF
OAKLAND OR THE FEDERAL COURTS LOCATED WITHIN THE STATE OF MICHIGAN, COUNTY OF
XXXXX. ANY DEMAND FOR
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ARBITRATION MADE PURSUANT TO THIS AGREEMENT, MUST BE COMMENCED WITHIN ONE YEAR
FROM SUCH ACTION ACCRUAL, OR SUCH CLAIM WILL BE FOREVER BARRED.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MICHIGAN WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF WHICH MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
(c) EXCLUSIVE JURISDICTION FOR ANY ARBITRATION PROCEEDING INITIATED PURSUANT TO
THIS AGREEMENT SHALL BE IN THE STATE OF MICHIGAN, COUNTY OF OAKLAND. EACH OF THE
PARTIES FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT
TO ITS RESPECTIVE ADDRESS SET FORTH IN SECTION 6.2 SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY ARBITRATION ACTION OR PROCEEDING BROUGHT AGAINST IT. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO
THE LAYING OF VENUE FOR ANY ARBITRATION PROCEEDING IN THE STATE OF MICHIGAN OR
THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF OAKLAND, AND HEREBY
FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
AT ANY ARBITRATION PROCEEDING THAT SUCH ACTION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
6.8 SEVERABILITY.
In the event that any one or more of the provisions contained in this Agreement
or in any other instrument referred to herein, shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement or any other such instrument.
Furthermore, in lieu of any such invalid or unenforceable term or provision, the
parties hereto intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
6.9 SPECIFIC PERFORMANCE.
(a) The parties hereto acknowledge and agree that irreparable damage would occur
in the event that any provision of this Agreement was not performed in
accordance with its specific terms or was otherwise breached, and further
acknowledge and agree that money damages are an inadequate remedy for the breach
of this Agreement because of the difficulty of ascertaining the amount of damage
that would be suffered in the event of such breach. The parties hereto
accordingly agree that they each shall be entitled to obtain specific
performance of any provision of this Agreement, including without limitation
Section 2.1 hereof, and injunctive or other equitable relief to prevent or cure
breaches of any provision of this Agreement, this being in addition to any other
remedy to which they may be entitled by law or equity.
(b) The parties hereto further agree that they shall not be permitted or have
the right to terminate or suspend performance of any provision of this
Agreement, it being agreed that all provisions of this Agreement shall continue
and be specifically enforceable in all events and under all circumstances until
terminated pursuant to the terms of this
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Agreement, regardless of any events, occurrences, actions or omissions before or
after the date hereof. In furtherance of the foregoing, the parties hereto agree
that they shall not be permitted to, and shall not, bring any claim seeking to
terminate or suspend performance of any provision of this Agreement or seeking
any determination that any provision of this Agreement (including, without
limitation, this Section 6.9) is invalid, inapplicable or unenforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
PENSKE CORPORATION
By:
---------------------------------
Name:
Title:
---------------------------------
Name: Holder
Address:
Share Amount:
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