EXHIBIT 10.20.4
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated April 12, 1999 (this "Agreement"),
among AIF II, L.P. ("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.
(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, 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, 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.
3. Representations and Warranties of Stockholder. Stockholder represents
and warrants to Purchaser that:
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(a) Capacity; No Violations. Stockholder has the legal capacity to 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 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 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.
5. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement.
6. Specific Performance. Stockholder acknowledges and agrees that if it
fails to perform any of its obligations under this Agreement, immediate and
irreparable
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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 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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
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Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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if to Stockholder:
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c/o Apollo Advisors, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
8. Parties in Interest. This Agreement shall inure to the benefit of 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
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 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 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
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
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.
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13. Governing Law. This Agreement shall be governed by and construed 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 (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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
INTERNATIONAL MOTOR CARS GROUP II, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name:
Title:
AIF II, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
Number of Shares Subject to this Agreement:
1,843,656
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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
_____________________, and each of them, attorneys, agents and proxies, with
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:__________________
AIF II, L.P.
By:__________________________________________
Name:
Title:
