-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RNshM+Sb5nn6ao2tiQK6kYPBJRmwO7iSz+rKI7AHnSun2ytm3hznxAcJ5yvXohik knltee/7eurlJKHPjG9PkQ== 0000950123-03-004113.txt : 20030411 0000950123-03-004113.hdr.sgml : 20030411 20030410210350 ACCESSION NUMBER: 0000950123-03-004113 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030411 GROUP MEMBERS: MITSUI & CO INC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MITSUI & CO LTD CENTRAL INDEX KEY: 0000067099 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-METALS, MINERALS (NO PETROLEUM) [5050] IRS NUMBER: 980110185 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2-1 OTEMACHI 1 CHOME STREET 2: CAPITAL FINANCE DEPT CITY: CHIYODA KU TOKYO JAP STATE: M0 ZIP: 00000 MAIL ADDRESS: STREET 1: 2-1 OTEMACHI 1 CHOME STREET 2: CHIYODA-KU TOKYO JAPAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: UNITED AUTO GROUP INC CENTRAL INDEX KEY: 0001019849 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO DEALERS & GASOLINE STATIONS [5500] IRS NUMBER: 223086739 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-49667 FILM NUMBER: 03646224 BUSINESS ADDRESS: STREET 1: 2555 TELEGRAPH RD CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48302-0954 BUSINESS PHONE: 248-648-2500 MAIL ADDRESS: STREET 1: 2555 TELEGRAPH RD CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48302-0954 SC 13D 1 y85334sc13d.txt UNITED AUTO GROUP, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 UNITED AUTO GROUP, INC. (Name of Issuer) COMMON SHARES (PAR VALUE $0.0001 PER SHARE) (Title of Class of Securities) 909440 10 9 (CUSIP Number) MR. MUNEMASA IZUMI, GENERAL MANAGER FIRST BUSINESS DEPARTMENT FIRST MOTOR VEHICLES DIVISION MOTOR VEHICLES, MARINE & AEROSPACE BUSINESS UNIT MITSUI & CO., LTD. 2-1 OHTEMACHI 1-CHOME, CHIYODA-KU TOKYO, JAPAN (PHONE) + 81-3-3285-4289 MR. SHIGEO ENOMOTO, GENERAL MANAGER DETROIT MACHINERY & AUTOMOTIVE DEPARTMENT SECOND MACHINERY DIVISION MITSUI & CO. (U.S.A.), INC. DETROIT OFFICE 1000 TOWN CENTER, SUITE 1900 SOUTHFIELD, MI 48075 (PHONE) 248-948-4171 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: WILLIAM D. REGNER, ESQ. DEBEVOISE & PLIMPTON 919 THIRD AVENUE NEW YORK, NY 10022 (212) 909-6000 APRIL 4, 2003 (Date of Event which Requires Filing Statement on Schedule 13D) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following pages) 2 SCHEDULE 13D CUSIP NO. 909440 10 9 - -------------------------------------------------------------------------------- (1) NAME OF REPORTING PERSON Mitsui & Co., Ltd. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 98-0110185 - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) |_| (B) |_| - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Japan - -------------------------------------------------------------------------------- NUMBER OF (7) SOLE VOTING POWER SHARES 0 BENEFICIALLY ----------------------------------------------------------- OWNED BY (8) SHARED VOTING POWER EACH 3,170,349 REPORTING ----------------------------------------------------------- PERSON (9) SOLE DISPOSITIVE POWER WITH 0 ----------------------------------------------------------- (10) SHARED DISPOSITIVE POWER 3,170,349 - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,170,349 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.2% - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 3 SCHEDULE 13D CUSIP NO. 909440 10 9 - -------------------------------------------------------------------------------- (1) NAME OF REPORTING PERSON Mitsui & Co.(U.S.A.), Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-2559853 - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) |_| (B) |_| - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- NUMBER OF (7) SOLE VOTING POWER SHARES 0 BENEFICIALLY ----------------------------------------------------------- OWNED BY (8) SHARED VOTING POWER EACH 3,170,349 REPORTING ----------------------------------------------------------- PERSON (9) SOLE DISPOSITIVE POWER WITH 0 ----------------------------------------------------------- (10) SHARED DISPOSITIVE POWER 3,170,349 - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,170,349 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.2% - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 4 ITEM 1. SECURITY AND ISSUER This statement on Schedule 13D (the "Statement") relates to the Common Stock, par value $0.0001 per share (the "Common Stock"), of United Auto Group, Inc., a Delaware corporation (the "Company"), whose principal executive offices are located at 2555 Telegraph Road, Bloomfield Hills, Michigan 48302-0954. ITEM 2. IDENTITY AND BACKGROUND (a) This Statement is being filed by Mitsui & Co., Ltd., a Japanese company ("Mitsui Japan"), and by Mitsui & Co. (U.S.A.), Inc., a New York corporation and a wholly owned subsidiary of Mitsui Japan ("Mitsui USA" and, together with Mitsui Japan, the "Reporting Persons" or "Mitsui"). The Reporting Persons are primarily engaged in the business of worldwide trading of various commodities. (b) The business address of Mitsui Japan is 2-1 Ohtemachi, 1-Chome, Chiyoda-Ku, Tokyo, Japan. The business address of Mitsui USA is 200 Park Avenue, New York, NY 10166-0130. (c) Not Applicable. (d) Neither of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Neither of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or a finding of any violation with respect to such laws. Information with respect to the directors and executive officers of the Reporting Persons is set forth in Annex A to this Statement and is incorporated herein by reference. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION The source of funds for the purchase of the Common Stock by the Reporting Persons is working capital. ITEM 4. PURPOSE OF TRANSACTION On April 4, 2003, the Reporting Persons and J.P. Morgan Partners (BHCA), L.P. ("JPMP") entered into a Stock Purchase Agreement (the "Purchase Agreement") pursuant to which the Reporting Persons, subject to the terms and conditions thereof, agreed to purchase from JPMP 1,614,708 shares of Common Stock for a purchase price of $19,376,496. The Purchase Agreement provides that Mitsui Japan will purchase 1,291,766 shares of Common Stock and Mitsui USA will purchase 322,942 shares of Common Stock. The obligations of the Reporting Persons to effect the transactions contemplated by the Purchase Agreement are conditioned on the receipt by the Reporting Persons of all requisite corporate approvals of 5 Mitsui Japan and Mitsui USA to consummate such transactions. Upon written notice of either party, the Purchase Agreement will terminate if the transactions contemplated by the Purchase Agreement are not completed on or prior to April 30, 2003. Corporate approval of such transactions is in the sole discretion of the relevant committees of the boards of directors of Mitsui Japan and Mitsui USA and the Reporting Persons shall not be subject to any liability in the event of any failure to gain such corporate approval. A copy of the Purchase Agreement is filed as Exhibit 1 to this Statement and is incorporated herein by reference. The shares of Common Stock reported by the Reporting Persons were acquired for investment purposes. Prior to entering into the Purchase Agreement, the Reporting Persons owned 1,555,641 shares of Common Stock, which they acquired, beginning on February 28, 2001, in negotiated transactions from the Company and from stockholders of the Company. See Item 6 of this Statement, which is incorporated herein by reference. Subject to the beneficial ownership limitation set forth in the Stockholders Agreement described in Item 6 of this Statement, the Reporting Persons may in the future seek to acquire, alone or in conjunction with others, additional shares of Common Stock, through open market purchases, negotiated transactions, tender offer, merger, reorganization or otherwise. Future purchases will depend on market, business and economic conditions, availability of capital, factors relating to the Company (including the market price of the Common Stock) and other factors that the Reporting Persons may consider relevant. In addition, the Reporting Persons may seek at any time to dispose of all or a portion of their shares of Common Stock, through open market transactions, negotiated transactions or otherwise. Future sales will depend on the factors set forth above. There can be no assurance that the Reporting Persons will purchase any additional shares of Common Stock or dispose of any shares of Common Stock. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) The Reporting Persons beneficially own, within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange Act"), an aggregate of 3,170,349 shares of Common Stock. The Common Stock owned by the Reporting Persons constitutes approximately 8.2% of the Common Stock issued and outstanding (computed on the basis of 38,839,026 shares of Common Stock issued and outstanding, as reported in the Company's Annual Report on Form 10-K, filed with the Securities and Exchange Commission on March 31, 2003). To the Reporting Persons' knowledge, other persons named in Item 2 do not beneficially own, within the meaning of Rule 13d-3 under the Exchange Act, any Common Stock. (b) Mitsui Japan and Mitsui USA have the shared power to vote and dispose of 3,170,349 shares of Common Stock. (c) Transactions in the Common Stock that were effected during the past sixty days by the persons named in response to paragraph (a) above are set forth below: On April 4, 2003, Mitsui Japan and Mitsui USA agreed to purchase from JPMP 1,291,766 and 322,942 shares of Common Stock, respectively, pursuant to the Purchase Agreement and subject to the terms and conditions thereof (including the condition as to 6 receipt of requisite corporate approvals of Mitsui Japan and Mitsui USA), at a cash price of $12.00 per share. (d) None. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER See Item 4 to this Statement, which is incorporated herein by reference. Second Amended and Restated Stockholders Agreement -------------------------------------------------- On February 22, 2002, International Motor Cars Group I, L.L.C. ("IMCG I"), International Motor Cars Group II, L.L.C. ("IMCG II"), Penske Corporation, Penske Automotive Holdings Corp. ("Penske Automotive"), Penske Capital Partners, L.L.C. ("PCP"), Aeneas Venture Corporation ("Aeneas"), Mitsui Japan and Mitsui USA (collectively, the "Restricted Stockholders") and JPMP and Virginia Surety Company, Inc. ("AON") entered into the Second Amended and Restated Stockholders Agreement (the "Stockholders Agreement"). The Stockholders Agreement is filed as Exhibit 2 to this Statement and is incorporated herein by reference. Pursuant to the Stockholders Agreement, the Restricted Stockholders agree to use their reasonable best efforts to cause the Board of Directors to consist of nine members, as follows: (i) Roger S. Penske, (ii) four individuals designated by IMCG I and IMCG II, (iii) one individual nominated by Mitsui, and (iv) three independent directors. In addition, the Restricted Stockholders agree to use their reasonable best efforts to cause the Compensation Committee of the Board of Directors to consist of Roger S. Penske, an individual designated by IMCG I and IMCG II and two independent directors. In the event that IMCG I and IMCG II, together with Penske Corporation, Penske Automotive, and PCP, cease to hold in the aggregate, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of at least 20% in the Company, the number of individuals IMCG I and IMCG II will be entitled to designate will be reduced from four individuals by one individual for each 2.5% reduction in the aggregate beneficial ownership of IMCG I and IMCG II, together with Penske Corporation, Penske Automotive, and PCP, below 20% and in the event that IMCG I and IMCG II, together with Penske Corporation, Penske Automotive, and PCP, cease to hold in the aggregate, beneficial ownership of at least 10% in the Company, IMCG I and IMCG II shall cease to be entitled to designate any individuals to be supported by the other Restricted Stockholders. In the event that Mitsui ceases to hold in the aggregate, beneficial ownership of at least 2.5%, Mitsui shall cease to be entitled to designate any individuals to be supported by the other Restricted Stockholders. The Stockholders Agreement contains certain restrictions on the acquisition of the Company's equity securities and certain other actions by the Restricted Stockholders. At any 7 time prior to December 14, 2003, no Restricted Stockholder will be permitted, directly or indirectly, to: (a) except as described below, acquire ownership of (i) any capital stock of the Company, or direct or indirect rights (including convertible securities) or options to acquire such capital stock or (ii) any of the assets or businesses of the Company, or direct or indirect rights or options to acquire such assets or businesses; (b) offer, seek, or propose to enter into any transaction of merger, consolidation, sale of substantial assets or any other business combination involving the Company; (c) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used under the prior Rule 14a-11 under the Exchange Act) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company or any of its affiliates; (d) initiate or propose any stockholder proposals for submission to a vote of stockholders, whether by action at a stockholder meeting or by written consent, with respect to the Company, or except as provided in the Stockholders Agreement propose any person for election to the Board of Directors of the Company; (e) disclose to any third party, or make any filing under the Exchange Act, including, without limitation, under Section 13(d) thereof, disclosing any intention, plan or arrangement inconsistent with the foregoing; (f) form, join or in any way participate in a group to take any actions otherwise prohibited by the terms of the Stockholders Agreement; (g) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing; or (h) make any public announcement with respect to any of the foregoing. In addition, IMCG I and IMCG II will be restricted from acquiring additional equity securities of the Company except as described below. Notwithstanding the provisions described in the prior paragraph, the Stockholders Agreement will not prohibit: (a) any transaction by a Restricted Stockholder approved by either (i) a majority of the members of the Board of Directors who are neither designated by or affiliated with such Restricted Stockholder, or (ii) the holders of a majority of the Common Stock of the Company excluding shares held by such Restricted Stockholder and its affiliates; (b) in the case of IMCG I and IMCG II, the acquisition of securities or of beneficial ownership of securities if, after giving effect to such acquisition, the beneficial ownership of IMCG I and IMCG II in the Company is less than or equal to 65%; (c) in the case of each of Aeneas and Mitsui, the acquisition of securities or of beneficial ownership of securities if, after giving effect to such acquisition, the beneficial ownership of each such Restricted Stockholder in the Company is less than or equal to 49% (d) the granting by the Board of Directors of stock options to affiliates of the Restricted Stockholders; (e) the exercise of stock options; or (f) any transaction contemplated by, or in furtherance of, a certain letter agreement between the Company, IMCG I, IMCG II and JPMP regarding regulatory matters, a certain registration rights agreement entered into by JPMP, AON and the Company providing JPMP and AON with various registration rights or the Stockholders Agreement. Pursuant to the Stockholders Agreement, (a) JPMP or IMCG I and/or IMCG II on behalf of JPMP, was obligated to hold shares of Series A Preferred Stock, Series B Preferred Stock or Common Stock representing at least 3,122,449 shares of Common Stock on an as converted basis (as may be adjusted from time to time) (the "JPMP Standstill Shares") until January 31, 2003 and must first offer the JPMP Standstill Shares, to Penske Corporation, prior to selling or transferring, at any time after February 1, 2003 but before February 1, 2005, any of such JPMP Standstill Shares to a third party (including transfers in an underwritten public offering but excluding transfers to certain affiliates and permitted 8 transferees). The Reporting Persons understand that by letter dated April 4, 2003, Penske Corporation waived compliance with the first offer right in connection with the transactions contemplated by the Purchase Agreement. In addition, in the event any of IMCG I, IMCG II, Penske Corporation, Penske Automotive or PCP sells or otherwise transfers equity securities in the Company to a third party prior to February 1, 2005 (other than (i) transfers to an affiliate or permitted transferee, (ii) transfers at the direction of JPMP of securities held by IMCG I or IMCG II for the account of JPMP, (iii) transfers to PCP's Carry Account (as defined in the Stockholders Agreement), (iv) transfers of securities held for PCP's account or in the PCP Carry Account to PCP, or (v) transfers by PCP to its members or by such members to their members ad infinitum), each must permit Aeneas, Mitsui and JPMP to participate in such sale or other transfer on a pro rata basis. Mitsui Side Letter ------------------ On February 28, 2001, the Company, Penske Corporation, Mitsui Japan and Mitsui USA entered into a letter agreement (the "Mitsui Side Letter"). The Mitsui Side Letter is attached as Exhibit 3 to this Statement and is incorporated herein by reference. Pursuant to the Mitsui Side Letter, Penske Corporation agreed that (a) prior to the second anniversary of the closing date of Mitsui's February 28, 2001 acquisition of Common Stock, Penske Corporation would not make any direct or indirect sale or transfer of any Common Stock in a private transaction unless, prior to making such private transaction, Penske Corporation gives Mitsui an opportunity to participate in the private transaction on a pro rata basis, (b) for so long as Mitsui owns at least 2.5% of the Common Stock, Penske Corporation will and will cause Penske Automotive and all its affiliates, except the Purchasers, to vote all of the Common Stock beneficially owned by them in favor of the person to be nominated as a director of the Company by Mitsui, (c) for so long as Mitsui owns at least 2.5% of the Common Stock, the Company will appoint to a senior executive position of the Company, the nominee selected by Mitsui, and (d) if Mitsui acquires additional Common Stock which in the aggregate constitutes holdings of Common Stock of 5% or more on a fully diluted basis, the Company will enter into an amendment of the Registration Rights Agreement (as defined below), pursuant to which Mitsui will have the right to register its Common Stock in connection with a registered offering under the Securities Act of 1933, as amended (the "Securities Act"), subject to reduction on a pro rata basis with Penske Corporation in the event of a limitation on the number of shares to be included in such offering. Registration Rights Agreement ----------------------------- On February 22, 2002, the Company and the Reporting Persons entered into an Amended and Restated Registration Rights Agreement (the "Registration Rights Agreement"). A copy of the Registration Rights Agreement is filed as Exhibit 4 to this Statement and is incorporated herein by reference. Pursuant to the Registration Rights Agreement, if PCP, Penske Corporation, IMCG I, IMCG II or Penske Automotive exercises its right to cause the Company to effect the registration under the Securities Act of its Registrable Securities (as such term is defined in each of the registration rights agreements between such party and the Company) (such registrations to exclude registrations by IMCG I or IMCG II on behalf of JPMP), and the Company proposes to register any such Registrable Securities on Form S-1, S-2 or S-3, 9 Mitsui shall have the right to participate in such registration pursuant to the procedures and restrictions set forth in the Amended and Restated Registration Rights Agreement. Under the Registration Rights Agreement, the Company is obligated to take all actions reasonably necessary to enable Mitsui to sell its Common Stock without registration under Rule 144 or similar exemption. Letter Agreement ---------------- On April 4, 2003, the Reporting Persons, Penske Corporation, PCP, Penske Automotive, IMCG I and IMCG II entered into a letter agreement (the "Letter Agreement") which granted the Reporting Persons pro-rata "tag-along" rights during the period beginning February 1, 2005 and ending on January 31, 2006 in the event of a transfer of Common Stock by IMCG I, IMCG II, Penske Corporation, Penske Automotive or PCP. These tag-along rights are substantially similar to the rights the Reporting Persons currently hold pursuant to the Stockholders Agreement which expires on February 1, 2005. In addition, pursuant to the Letter Agreement, prior to making any filings required by Section 13 of the Exchange Act, each of the Reporting Persons, on the one hand, and Penske Corporation, PCP, Penske Automotive, IMCG I and IMCG II, on the other hand, will provide the other parties with reasonable opportunity to review and comment on such filings. The Letter Agreement terminates upon the earlier of (i) the date on which the Purchase Agreement is terminated pursuant to its terms and (ii) the date on which the Reporting Persons cease to own any equity security of the Company. A copy of the Letter Agreement is filed as Exhibit 5 to this Statement and is incorporated herein by reference. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1 Purchase Agreement Exhibit 2 Stockholders Agreement Exhibit 3 Mitsui Side Letter Exhibit 4 Registration Rights Agreement Exhibit 5 Letter Agreement 10 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 11, 2003 MITSUI & CO., LTD. By: /s/ Munemasa Izumi ----------------------------------------------- Name: Munemasa Izumi Title: General Manager First Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Osamu Koyama ----------------------------------------------- Name: Osamu Koyama Title: Senior Vice President 11 ANNEX A Unless otherwise indicated, the business address of the directors and executive officers of Mitsui Japan is 2-1 Ohtemachi, 1-Chome, Chiyoda-Ku, Tokyo, Japan and the business address of the directors and executive officers of Mitsui USA is 200 Park Avenue, New York, NY 10166-0130. Each occupation set forth opposite such person's name refers to employment with the Reporting Persons. To the Reporting Persons' knowledge, none of the Reporting Persons' directors or executive officers has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was or is subject to a civil judgment of the type described in clauses (d) or (e) of Item 2 of the Statement. Unless otherwise indicated, each of the directors and officers of the Reporting Persons is a citizen of Japan. Directors and Executive Officers of Mitsui Japan - ------------------------------------------------ Number of Shares of Occupation and Common Stock Name Business Address Beneficially Owned - ---- ---------------- ------------------ Nobuo Ohashi Chairman and Executive Director -- Shoei Utsuda President and Chief Executive Officer -- Retsu Imaizumi Executive Director -- Hiroshi Nagata Executive Vice President -- Kazumi Nakagawa Executive Vice President -- Norio Shoji (1) Executive Vice President -- Tasuku Kondo Senior Executive Managing Officer -- Katsuto Momii (2) Senior Executive Managing Officer -- Tetsuya Matsuoka Senior Executive Managing Officer -- Yasuo Hayashi Senior Executive Managing Officer -- Masataka Suzuki Senior Executive Managing Officer -- Toshihiko Sarahira Executive Managing Officer -- Gempachiro Aihara (3) Executive Managing Officer -- Yushi Nagata Executive Managing Officer -- Jun Moriyama Executive Managing Officer -- Hiroshi Tada Executive Managing Officer -- Motokazu Yoshida Executive Managing Officer -- Yoshiyuki Kagawa Executive Managing Officer --
(1) Business address is 20 Old Bailey, London EC4M 7QQ, United Kingdom. (2) Business address is 200 Park Avenue, New York, NY 10166-0130. (3) Business address is Units 06-09, 33rd Floor, CWTC Tower 1, 1 Jianguomenwai Street Beijing 100004, China. 12 Directors and Executive Officers of Mitsui USA - ---------------------------------------------- Number of Shares of Occupation and Common Stock Name Business Address Beneficially Owned - ---- ---------------- ------------------ Katsuto Momii President & Chief Executive Officer (director) -- Shogo Suzuki Senior Vice President (director) -- Masatoshi Shimada Senior Vice President & Chief Financial Officer -- (director) Junsaku Kitamura Senior Vice President (director) -- Masahiko Tsumoto Senior Vice President -- Mitsuo Matsuura Senior Vice President -- Kimiharu Okura Senior Vice President -- Mitsuo Nagahara Senior Vice President -- Yoshinori Ishida Senior Vice President -- Shigeo Toyama Senior Vice President -- Osamu Koyama Senior Vice President (1) -- Yoshiyasu Maruoka Senior Vice President (2) -- Mamoru Mizushima Senior Vice President (3) -- Noriyuki Sato Senior Vice President (4) -- Kazutoshi Muramatsu Senior Vice President (5) -- Osamu Toriumi Corporate Secretary --
(1) Business address is 200 East Randolph Drive, Suite 5200, Chicago, Illinois 60601-7125. (2) Business address is 1000 Louisiana, Suite 5700, Houston, Texas 77002-5092. (3) Business address is 601 South Figueroa Street, Suite 1900, Los Angeles, CA 90017. (4) Business address is 1001 Fourth Avenue Plaza, Suite 3950, Seattle, Washington 98154-1196. (5) Business address is 750 17th Street Suite 400, N.W., Washington D.C. 20006. 13 EXHIBIT INDEX Exhibit 1 Stock Purchase Agreement, dated as of April 4, 2003, among Mitsui & Co., Ltd., Mitsui & Co. (U.S.A.), Inc. and J.P. Morgan Partners (BCHA), L.P. Exhibit 2 Second Amended and Restated Stockholders Agreement, dated as of February 22, 2002, among Aeneas Venture Corporation, Penske Corporation, Penske Automotive Holdings, Corp., Penske Capital Partners, L.L.C., International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Mitsui & Co., Ltd., Mitsui & Co. (U.S.A), Inc. and J.P. Morgan Capital Partners (BCHA), L.P. Exhibit 3 Letter Agreement, dated as of February 28, 2001, among United Auto Group, Inc., Penske Corporation, Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc.. Exhibit 4 Amended and Restated Registration Rights Agreement, dated as of February 22, 2002, among United Auto Group, Inc., Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc. Exhibit 5 Letter Agreement, dated as of April 4, 2003, among Mitsui & Co., Ltd., Mitsui & Co. (U.S.A.), Inc., Penske Corporation, Penske Automotive Holdings, Corp., Penske Capital Partners, L.L.C., International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. 14 EX-99.1 3 y85334exv99w1.txt PURCHASE AGREEMENT EXHIBIT 1 PURCHASE AGREEMENT between MITSUI & CO., LTD., MITSUI & CO. (U.S.A.), INC. and J.P. MORGAN PARTNERS (BHCA), L.P. dated as of April 4, 2003 PURCHASE AGREEMENT PURCHASE AGREEMENT dated as of April 4, 2003, between J.P. MORGAN 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, 1221 Avenue of the Americas, New York, NY 10020 on or before April 30, 2003 (the "Closing Date"). -2- 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. -3- 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 -4- 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 -5- 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. -6- 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: J.P. Morgan Partners (BHCA), L.P. 1221 Avenue of the Americas New York, NY 10020 Attn: Official Notices Clerk (ii) if to Mitsui Japan, to: Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi, 1-Chrome, Chiyoda-Ku Tokyo, Japan Attention: General Manager of First Motor Vehicles Division (ii) if to Mitsui USA, to: Mitsui & Co. (U.S.A.), Inc. 200 Park Avenue New York, NY 10166 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. -7- 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. -8- 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. -9- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. SELLER: J.P. MORGAN PARTNERS (BHCA), L.P. By: JPMP Master Fund Manager, L.P. its General Partner By: JPMP Capital Corp., Its General Partner By: /s/ Donald Hofmann ------------------------------------- Name: Donald Hofmann 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/ Osamu Koyama ------------------------------------- Name: Osamu Koyama Title: S.V.P. & General Manager Second Machinery Division EXHIBIT A FORM OF STOCK POWER EX-99.2 4 y85334exv99w2.txt STOCKHOLDERS AGREEMENT EXHIBIT 2 SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT BY AND AMONG AENEAS VENTURE CORPORATION, INTERNATIONAL MOTOR CARS GROUP I, L.L.C., INTERNATIONAL MOTOR CARS GROUP II, L.L.C., J.P. MORGAN PARTNERS (BHCA), L.P., MITSUI & CO., LTD., MITSUI & CO. (U.S.A.), INC., PENSKE CORPORATION, PENSKE CAPITAL PARTNERS, L.L.C., PENSKE AUTOMOTIVE HOLDINGS CORP., VIRGINIA SURETY COMPANY, INC. AND UNITED AUTO GROUP, INC. Dated as of February 22, 2002 TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS........................................................................ 2 1.1 Definitions........................................................................ 2 1.2 Rules of Construction.............................................................. 5 ARTICLE II BOARD COMPOSITION AND VOTING AGREEMENTS........................................... 5 2.1 Board Composition.................................................................. 5 2.2 Composition of Committees of the Board of Directors................................ 5 2.3 Voting Agreement................................................................... 6 2.4 Reduction in Right of PCP Entities to Designate Directors.......................... 6 2.5 Suspension of Right to Designate Directors......................................... 6 2.6 Replacement Directors.............................................................. 6 2.7 Termination of Article II.......................................................... 7 2.8 Quorum............................................................................. 7 ARTICLE III STANDSTILL PROVISIONS............................................................ 7 3.1 Standstill Provisions.............................................................. 7 3.2 Exceptions to the Standstill Provisions............................................ 8 3.3 Standstill Provisions applicable to JPMP and AON................................... 8 3.4 Exceptions to the Standstill Applicable to JPMP and AON............................ 9 3.5 Penske Standstill with respect to Company Offering................................. 9 3.6 Action by PCP Entities............................................................. 10 ARTICLE IV TRANSFER RESTRICTIONS............................................................. 10 4.1 Right of First Offer............................................................... 10 4.2 Tag-Along Rights................................................................... 12 4.3 Transferees; Noncomplying Transfers................................................ 12 ARTICLE V CERTAIN COVENANTS.................................................................. 13 5.1 Legend on Certificates............................................................. 13 5.2 Roger Penske to Serve as Chairman and Chief Executive Officer...................... 14 5.3 Registration Rights Agreement...................................................... 14 5.4 Regulatory Matters................................................................. 15 5.5 Confidentiality Obligation......................................................... 15 5.6 Further Assurances................................................................. 16 ARTICLE VI MUTUAL REPRESENTATIONS AND WARRANTIES............................................. 16 6.1 Organization....................................................................... 16 6.2 Authorization, Validity and Enforceability......................................... 16 6.3 No Violation or Breach............................................................. 16 ARTICLE VII TERM............................................................................. 17 7.1 Term............................................................................... 17 7.2 Effects of Termination............................................................. 17 ARTICLE VIII MISCELLANEOUS PROVISIONS........................................................ 17 8.1 Survival........................................................................... 17 8.2 Notices............................................................................ 17 8.3 Amendments......................................................................... 19 8.4 Assignment and Parties in Interest................................................. 19 8.5 Expenses........................................................................... 20 8.6 Entire Agreement................................................................... 20
i 8.7 Descriptive Headings............................................................... 20 8.8 Counterparts....................................................................... 20 8.9 Governing Law; Jurisdiction........................................................ 20 8.10 Severability....................................................................... 21 8.11 Specific Performance............................................................... 21 8.12 Transfers to Affiliates............................................................ 21 8.13 Public Filings..................................................................... 22
Exhibits Exhibit A - Form of Registration Rights Agreement Exhibit B - Form of Regulatory Sideletter Schedules Schedule 5.3 - Agreements granting registration rights ii THIS SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement") dated as of February 22, 2002 by and among AENEAS VENTURE CORPORATION, a Delaware corporation ("Harvard"), INTERNATIONAL MOTOR CARS GROUP I, L.L.C., a Delaware limited liability company ("PCP I"), INTERNATIONAL MOTOR CARS GROUP II, L.L.C., a Delaware limited liability company ("PCP II" and, together with PCP I, the "PCP Entities"), MITSUI & CO., LTD., a Japanese company ("Mitsui Japan"), MITSUI & CO. (U.S.A.), INC., a New York corporation ("Mitsui USA" and together with Mitsui Japan, "Mitsui"), PENKSE CORPORATION, a Delaware corporation ("Penske Corporation"), PENSKE AUTOMOTIVE HOLDINGS CORP., a Delaware corporation ("Penske Holdings"), PENSKE CAPITAL PARTNERS, L.L.C., a Delaware limited liability company ("Penske Capital," and together with Penske Corporation and Penske Holdings, "Penske"), and UNITED AUTO GROUP, INC., a Delaware corporation (the "Company"). WHEREAS, Harvard, the PCP Entities, Penske Capital, Penske Corporation, Mitsui and the Company are parties to a certain Amended and Restated Stockholders Agreement dated as of February 28, 2001 (the "Existing Agreement"); WHEREAS, the parties to the Existing Agreement wish to amend and restate in its entirety the Existing Agreement to continue to provide for certain matters relating to the ownership and transfer of the Common Stock, and to bind new parties to such Existing Agreement, on the terms and conditions provided in this Agreement. NOW, THEREFORE, in consideration of the promises, the 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 1.1 DEFINITIONS. Unless otherwise defined herein, capitalized terms used herein shall have the meanings specified below: "Adjusted Beneficial Ownership" has the meaning set forth in Section 2.4. "Affiliate" means "affiliate" as defined in Rule 405 promulgated under the Securities Act. "AON" means Virginia Surety Company, Inc., an Illinois corporation. "AON Standstill Shares" has the meaning set forth in Section 3.3. "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 and Tokyo, Japan. "Common Stock" means the voting Common Stock, par value $.0001 per share, and non-voting 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. "Company" has the meaning set forth in the recitals hereto. "Direction Letters" means the each of (i) the direction letter dated as of the date hereof among PCP I, JPMP, AON, Penske Capital and Penske Corporation and (ii) the direction letter dated as of the date hereof among PCP II, JPMP and Penske Capital. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Harvard" has the meaning set forth in the preamble. "Independent Directors" means persons nominated by the immediately preceding directors who (i) were initially nominated by the audit committee of the Company and (ii) are not Affiliates of either the PCP Entities or their respective Affiliates (other than the Company). "Indication of Intent" has the meaning set forth in Section 4.1. 2 "JPMP" means J.P. Morgan Partners (BHCA), L.P., a Delaware limited partnership, and successor to Chase Equity Associates, L.P., a California limited partnership. "JPMP Standstill Shares" has the meaning set forth in Section 3.3. "Limited Transfer Period" has the meaning set forth in Section 4.1. "Mitsui" has the meaning set forth in the preamble. "Operating Agreements" means each of (i) the Amended and Restated Limited Liability Company Agreement for PCP I and (ii) the Amended and Restated Limited Liability Company Agreement for PCP II, each dated as of the date hereof, and each as amended from time to time. "PCP Directors" has the meaning set forth in Section 2.1. "PCP Entities" has the meaning set forth in the preamble. "PCP I" has the meaning set forth in the preamble. "PCP II" has the meaning set forth in the preamble. "Penske" has the meaning set forth in the recitals hereto. "Penske Capital" has the meaning set forth in the preamble. "Penske Corporation" has the meaning set forth in the preamble. "Penske Holdings" has the meaning set forth in the preamble. "Penske Offer" has the meaning set forth in Section 4.1. "Penske Purchase Amount" has the meaning set forth in Section 4.1. "Penske Rejection" has the meaning set forth in Section 4.1. "Permitted Transferee" of a person means (a) a corporation, partnership or other entity wholly owned by such person; provided, that such corporation, partnership or other entity shall agree in writing that it shall transfer to such person any Restricted Securities which it holds prior to such time as it ceases to be wholly owned by such person, and (b) the equity owners of such person to the extent such equity owners receive a pro rata distribution of Restricted Securities. "Registration Rights Agreement" means the Registration Rights Agreement dated as of the date hereof, as amended, among JPMP, AON, the Company and the other parties thereto. "Regulatory Sideletter" has the meaning set forth in Section 5.4. 3 "Rejected Shares" has the meaning set forth in Section 4.1. "Rejected Share Transfer Period" has the meaning set forth in Section 4.1. "Restricted Securities" means any Common Stock or other equity security of the Company Beneficially Owned by a Restricted Stockholder and any securities convertible, exercisable or exchangeable for Common Stock or such other equity securities, including, without limitation, the Series A Preferred Stock, the Series B Preferred Stock and the Warrants. "Restricted Stockholder" means each of Harvard, Penske, the PCP Entities and Mitsui. "Section 3.3 Standstill Period" has the meaning set forth in Section 3.3. "Securities Act" means the Securities Act of 1933, as amended. "Series A Preferred Stock" means the Series A Convertible Preferred Stock, par value $.000l per share, of the Company. "Series B Preferred Stock" means the Series B Convertible Preferred Stock, par value $.000l per share, of the Company. "Standstill Shares" has the meaning set forth in Section 3.3. "Tag-Along Notice" has the meaning set forth in Section 4.2. "Tag-Along Stockholders" has the meaning set forth in Section 4.2. "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. "Transfer Amount" has the meaning set forth in Section 4.1. "Transfer Notice" has the meaning set forth in Section 4.1. "Transferring Party" has the meaning set forth in Section 4.1. "Underwritten Offering" has the meaning set forth in Section 4.1. "Underwritten Offer Period" has the meaning set forth in Section 4.1. "Underwritten Share Price" has the meaning set forth in Section 4.1. "Unlimited Share Transfer Period" has the meaning set forth in Section 4.1. "Warrants" means warrants exercisable for Common Stock. 4 When reference is made herein to securities held by the PCP Entities for the account of JPMP or AON (or similar references) such references shall be to shares of capital stock of the Company contained in the JPMP Share Account or the AON Share Account (as each such term is defined in the applicable Operating Agreement(s)) held by the PCP Entities for the account of such Persons. 1.2 RULES OF CONSTRUCTION. Unless the context otherwise requires: (a) a term has the meaning assigned to it by this Agreement; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in effect in the United States of America; (c) "or" is not exclusive; and (d) words in the singular include the plural, and in the plural include the singular. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. Any references to any statute or law shall also refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. ARTICLE II BOARD COMPOSITION AND VOTING AGREEMENTS 2.1 BOARD COMPOSITION. The Restricted Stockholders will vote their shares of Common Stock to elect the following directors: (i) Roger Penske, and four (4) additional directors designated by the PCP Entities (the "PCP Directors"). (ii) One (1) director nominated by Mitsui. (iii) Three (3) Independent Directors. If Mitsui elects not to designate a person for the position of director of the Company, Mitsui shall have the right to nominate a non-voting observer to the Board of Directors of the Company (the "Observer"). The Restricted Stockholders shall cause their nominees on the Board of Directors of the Company to permit the Observer to participate in all meetings of the Board of Directors of the Company. The Observer shall be entitled to receive all materials and information distributed to directors of the Company and shall have access to the Company's management and records as if such Observer were a director. 2.2 COMPOSITION OF COMMITTEES OF THE BOARD OF DIRECTORS. The Restricted Stockholders shall use their reasonable best efforts to have the Compensation and Stock Option Committee of the Board of Directors of the Company consist of four persons as follows: (i) Roger Penske and one (1) additional PCP Director. 5 (ii) Two (2) Independent Directors. 2.3 VOTING AGREEMENT. Each of the Restricted Stockholders agrees to vote all of the voting securities of the Company Beneficially Owned by it in favor of the persons to be nominated as directors pursuant to Section 2.1 and to take all other reasonable action to cause such Persons to be elected as the only directors of the Company. 2.4 REDUCTION IN RIGHT OF PCP ENTITIES TO DESIGNATE DIRECTORS. Notwithstanding anything to the contrary contained in this Agreement, at such time as the percentage Beneficial Ownership in the Company of the PCP Entities together with the Beneficial Ownership in the Company of Penske, taken together ("Adjusted Beneficial Ownership"), is reduced below 20% then the number of PCP Directors shall be reduced to the applicable number in the chart below:
If such Adjusted Beneficial No. of PCP Directors to be Ownership is equal to or greater than: But less than: designated thereafter -------------------------------------- -------------- -------------------------- 17.5% 20.0% 4 15.0% 17.5% 3 12.5% 15.0% 2 10.0% 12.5% 1
Any reduction resulting from application of this Section 2.4 shall take place on the earlier to occur of (x) the first meeting of stockholders of the Company following the determination of such reduction, and (y) the first vacancy on the Board of Directors following the determination of such reduction. 2.5 SUSPENSION OF RIGHT TO DESIGNATE DIRECTORS. Notwithstanding anything to the contrary contained in this Agreement, the right of the PCP Entities or Mitsui, as the case may be, to designate directors of the Company shall be suspended as follows: (a) with respect to the PCP Entities, their Adjusted Beneficial Ownership combined with the Beneficial Ownership in the Company of Penske is reduced below 10%; or (b) with respect to Mitsui together with any of its Affiliates, its Beneficial Ownership is reduced below 2.5%. 2.6 REPLACEMENT DIRECTORS. During such time as the right of either the PCP Entities or Mitsui to nominate directors is reduced or suspended pursuant to Section 2.4 or 2.5, the Restricted Stockholders shall use their reasonable best efforts to have the successors to such directors both: (a) be selected by a majority 6 of the remaining Board of Directors, excluding the director whose position is no longer entitled to be designated by Mitsui or the PCP Entities, and (b) not be Affiliates of the PCP Entities and their Affiliates (other than the Company and its subsidiaries). 2.7 TERMINATION OF ARTICLE II. The provisions contained in this Article II shall terminate and be of no further effect from and after the third anniversary of this Agreement. 2.8 QUORUM. The presence of at least six Directors shall constitute a quorum for the purpose of meetings of the Board of Directors of the Company. ARTICLE III STANDSTILL PROVISIONS 3.1 STANDSTILL PROVISIONS. Subject to Section 3.2, at any time prior to December 14, 2003, each Restricted Stockholder shall not, and shall cause its Affiliates not to, either alone or as part of a "group" (as such term is used in Rule 13d-5 (as such rule is currently in effect) of the Exchange Act), directly or indirectly: (a) acquire or seek to acquire, by purchase or otherwise, ownership (including, but not limited to, Beneficial Ownership) of (i) any capital stock of the Company, or direct or indirect rights (including convertible securities) or options to acquire such capital stock or (ii) any of the assets or businesses of the Company, or direct or indirect rights or options to acquire such assets or businesses; (b) offer, seek or propose to enter into any transaction of merger, consolidation, sale of substantial assets or any other business combination involving the Company or any of its Affiliates, whether or not any parties other than such Restricted Stockholder and its Affiliates are involved; (c) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company of any of its Affiliates, except as set forth in Article II of this Agreement; (d) initiate or propose any stockholder proposals for submission to a vote of stockholders, whether by action at a stockholder meeting or by written consent, with respect to the Company or any of its Affiliates, or except as provided in this Agreement propose any person for election to the Board of Directors of the Company; 7 (e) disclose to any third party, or make any filing under the Exchange Act, including, without limitation, under Section 13(d) thereof, disclosing, any intention, plan or arrangement inconsistent with the foregoing; (f) form, join or in any way participate in a group to take any actions otherwise prohibited by the terms of this Agreement; (g) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing; or (h) make any public announcement with respect to any of the foregoing. 3.2 EXCEPTIONS TO THE STANDSTILL PROVISIONS. Notwithstanding the foregoing, the provisions of Section 3.1 shall not prohibit: (a) any transaction by a Restricted Stockholder approved by either (i) a majority of the members of the Board of Directors who are neither designated by such Restricted Stockholder nor otherwise affiliated with such Restricted Stockholder, or (ii) a majority of the stockholders of the Company other than such Restricted Stockholder and its Affiliates; (b) (i) in the case of the PCP Entities, the acquisition of securities or of Beneficial Ownership of securities if, after giving effect to such acquisition, the Beneficial Ownership of the PCP Entities in the Company is less than or equal to 65% and (ii) in the case of each of Harvard and Mitsui, the acquisition of securities of the Company or of Beneficial Ownership of securities of the Company if, after giving effect to such acquisition, the Beneficial Ownership of each such Restricted Stockholder in the Company is less than or equal to 49%; (c) the granting by the Board of Directors of options to Affiliates of Restricted Stockholders; (d) the exercise of stock options; or (e) any transaction contemplated by, or in furtherance of, the Regulatory Sideletter, the Registration Rights Agreement or this Agreement. 3.3 STANDSTILL PROVISIONS APPLICABLE TO JPMP AND AON. (a) From the date hereof through January 31, 2003 (the "Section 3.3 Standstill Period"): (i) JPMP, or the PCP Entities for the account of JPMP, shall hold shares of Series A Preferred Stock, Series B Preferred Stock or Common Stock representing at least 3,122,449 shares of Common Stock on an as-converted basis, in the aggregate (as adjusted for stock splits, reverse stock splits, combinations, reclassifications or similar events) (the "JPMP Standstill Shares"), and shall not Transfer such shares, except to a Permitted Transferee or Affiliate of JPMP; 8 (ii) AON, or the PCP Entities for the account of AON, shall hold shares of Series A Preferred Stock or Common Stock representing at least 1,377,551 shares of Common Stock on an as-converted basis, in the aggregate (as adjusted for stock splits and the like ) (the "AON Standstill Shares," and together with the JPMP Standstill Shares, the "Standstill Shares"), and shall not Transfer such shares, except to a Permitted Transferee or Affiliate of AON; and (iii) in the event that Penske so requests, JPMP shall use all reasonable efforts to convert any of its Standstill Shares, whether held by JPMP or a PCP Entity for the account of JPMP, which represent non-voting capital stock of the Company into voting capital stock of the Company; provided, however, that JPMP shall have no obligation to effect such conversion if such conversion would cause or could reasonably be expected to cause (A) a Regulatory Problem (as defined in the Regulatory Sideletter), (B) a filing requirement pursuant to the Hart-Scott-Rodino Act of 1976, as amended, or (C) a violation of the applicable securities laws or any rule or regulation of any exchange on which any shares of capital stock of the Company are listed. (b) From the date hereof through and including May 1, 2002, other than as contemplated by Section 2.2 (c) of the Registration Rights Agreement, neither JPMP nor AON shall direct the PCP Entities to Transfer any shares of capital stock of the Company, except to the respective Permitted Transferees or Affiliates of JPMP and AON; provided, however, that the foregoing restrictions shall not prohibit JPMP or AON from directing the PCP Entities to Transfer shares of capital stock of the Company in a private sale. 3.4 EXCEPTIONS TO THE STANDSTILL APPLICABLE TO JPMP AND AON. Notwithstanding the foregoing, in the event that during the Section 3.3 Standstill Period, Penske or any of its Affiliates Transfers Restricted Securities (other than (i) with respect to Restricted Securities (A) to any Affiliate of Penske or (B) a Transfer by a PCP Entity of securities held by such PCP Entity for the account of either JPMP or AON at the direction of JPMP or AON, or (ii) with respect only to those securities Transferred from Penske Corporation's, JPMP's or AON's respective "Share Account" (as defined in the Operating Agreement(s)) to the "Carry Account" (as defined in the Operating Agreement(s)), a Transfer to Penske Capital or by Penske Capital to its members or by such members to their members ad infinitum) in one transaction or a series of related transactions that represent an amount in excess of five hundred thousand (500,000) shares of Common Stock (determined on an as-converted basis) in the aggregate, the provisions of Sections 3.3(a) and (b) shall terminate immediately prior to such Transfer and be of no further force or effect. 3.5 PENSKE STANDSTILL WITH RESPECT TO COMPANY OFFERING. Penske and each of its Affiliates (other than the Company) shall not Transfer (other than a Transfer by a PCP Entity of securities held by such PCP Entity for the account of either JPMP or AON at the direction of JPMP or AON) or dispose of any Restricted Securities (i) as part of, or in connection with the first primary public offering of securities of the Company which includes a secondary sale component to occur following the date hereof, provided such offering 9 occurs on or before August 1, 2003, or (ii) pursuant to Rule 144 promulgated under the Securities Act from the date hereof through and including May 1, 2002. 3.6 ACTION BY PCP ENTITIES. Notwithstanding anything contained herein to the contrary but subject to the terms and provisions of the Direction Letters, the PCP Entities shall not take any action for, or exercise any right on behalf of, JPMP or AON without the prior direction or approval of JPMP or AON, as applicable, and the PCP Entities agree to take all necessary actions to effectuate the terms of this Agreement on behalf of JPMP and AON or otherwise. ARTICLE IV TRANSFER RESTRICTIONS 4.1 RIGHT OF FIRST OFFER. (a) At any time after February 1, 2003 but before February 1, 2005, if JPMP or AON, as the case may be (the "Transferring Party"), desires to Transfer any Standstill Shares held by the PCP Entities for their respective accounts (other than to a Permitted Transferee or an Affiliate), and directs the PCP Entities to so Transfer any Standstill Shares, such Transferring Party shall, before such Transfer, take the following actions: (i) Inform Penske Corporation in writing (which shall include by facsimile) of its intent to Transfer such Standstill Shares (the "Transfer Notice") and shall include in such Transfer Notice, the number of Standstill Shares such Transferring Party intends to Transfer (the "Transfer Amount"). (ii) Upon receipt of a Transfer Notice, Penske Corporation shall have twenty-four (24) hours from the time of delivery of the Transfer Notice to inform the Transferring Party whether it desires to purchase any such Standstill Shares. (iii) In the event that Penske Corporation informs the Transferring Party in writing that it does not intend to purchase any such Standstill Shares or provides no response prior to the expiration of such twenty-four (24) hour period (the "Penske Rejection"), such Transferring Party shall be entitled to Transfer such Standstill Shares, free and clear of the restrictions set forth in this Section 4.1 to any party for any consideration for ten (10) Business Days from the effective time of such Penske Rejection (the "Unlimited Transfer Period"). To the extent that the Transferring Party has not Transferred such Standstill Shares within the Unlimited Transfer Period, such Transferring Party shall again comply with the provisions of this Section 4.1 prior to Transferring such Standstill Shares which were not so Transferred. (iv) In the event that Penske Corporation informs the Transferring Party in writing that it intends to purchase any such Standstill Shares (the "Penske Offer"), Penske Corporation shall indicate to the Transferring Party the per share price, in cash, it is willing to pay for such Standstill Shares to be purchased by it and the number of such 10 Standstill Shares which Penske Corporation intends to purchase (the "Penske Purchase Amount") and such Penske Offer shall be irrevocable for twenty-four (24) hours. (v) If the Transferring Party accepts the Penske Offer, the parties shall complete the Transfer of such Standstill Shares within five (5) Business Days from the date of delivery of such acceptance by the Transferring Party to Penske Corporation. In the event that the Penske Purchase Amount is less than the Transfer Amount, the Transferring Party shall be entitled to Transfer such remaining Standstill Shares (the "Rejected Shares"), free and clear of the restrictions set forth in this Section 4.1, for ten (10) Business Days from the time of the receipt by the Transferring Party of the Penske Offer to any party for any consideration (the "Rejected Share Transfer Period"). To the extent that the Transferring Party has not Transferred all of such Rejected Shares within the Rejected Share Transfer Period, such Transferring Party shall again comply with the provisions of this Section 4.1 prior to Transferring such Standstill Shares which were not so Transferred. (vi) If the Transferring Party rejects the Penske Offer, for a period of five (5) Business Days from the date of delivery of such rejection by the Transferring Party to Penske Corporation (the "Limited Transfer Period"), such Transferring Party shall be able to Transfer such Standstill Shares, free and clear of the restrictions set forth in this Section 4.1, to any other party for a per share price, in cash, not less than the per share price set forth in the Penske Offer. To the extent that the Transferring Party has not Transferred all of such Standstill Shares within the Limited Transfer Period, such Transferring Party shall again comply with the provisions of this Section 4.1 prior to Transferring such Standstill Shares which were not so Transferred. (b) In the event that a Transferring Party intends to Transfer shares in an underwritten offering (the "Underwritten Offering") pursuant to Section 2.1 of the Registration Rights Agreement, the Transferring Party shall provide Penske Corporation with the Transfer Notice and the Transfer Amount proposed to be sold in such Underwritten Offering. Penske Corporation, or its Affiliates, shall have the right to purchase all or any portion of the underwritten shares for a period of 30 days (the "Underwritten Offer Period") following receipt of the Transfer Notice at a purchase price equal to the 20-day trailing average 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 (the "Underwritten Share Price") and shall deliver a non-binding indication of intention to purchase (an "Indication of Intent") such shares within 15 days following receipt of the Transfer Notice. If Penske Corporation or its Affiliates do not elect to purchase all of the underwritten shares within such 30 day period or have not delivered an Indication of Intent within the aforementioned 15 days, then the Transferring Party shall be free to sell the portion of the underwritten shares not purchased by Penske Corporation or its Affiliates in the Underwritten Offering pursuant to the Registration Rights Agreement; provided, that if such Underwritten Offering is not completed within 120 days from the date of the Transfer Notice, then the underwritten shares will again be offered to Penske Corporation pursuant to the terms of this Section 4.1(b). Any purchase of underwritten shares by Penske Corporation or its Affiliates shall be completed within 15 days following the expiration of the Underwritten Offer Period. 11 4.2 TAG-ALONG RIGHTS. (a) In the event any of the PCP Entities or Penske desires to Transfer any Restricted Securities to a third party (other than (i) with respect to any Restricted Securities (A) to their respective Permitted Transferees or Affiliates or (B) pursuant to the direction of JPMP or AON, as the case may be, with respect to those securities of the Company held by the PCP Entities for their respective accounts, or (ii) with respect only to those securities Transferred from Penske Corporation's, JPMP's or AON's respective "Share Account" (as defined in the Operating Agreement(s)) to the "Carry Account" (as defined in the Operating Agreement(s)) and those securities held in Penske Capital's "Share Account" (as defined in the Operating Agreement(s)) to Penske Capital or by Penske Capital to its members or by such members to their members ad infinitum (it being understood that in no event will this clause (ii) apply to any Transfer by Penske Corporation)) at any time prior to February 1, 2005, such PCP Entity or Penske, as the case may be, shall notify JPMP, AON, Mitsui and Harvard (the "Tag-Along Stockholders") in writing, of such proposed Transfer and its terms and conditions (the "Tag-Along Notice"); and (b) Within ten (10) Business Days of the date of the Tag-Along Notice, each Tag-Along Stockholder shall notify the PCP Entities or Penske, as the case may be, if it elects to participate in such Transfer. Any such Tag-Along Stockholder that fails to notify such PCP Entity or Penske, as the case may be, within such ten (10) Business Day period shall be deemed to have waived its rights to participate in such Transfer. Each such Tag-Along Stockholder that so notifies the PCP Entities or Penske, as the case may be, shall have the right to Transfer, at the same price per share of Common Stock and on the same terms and conditions as the applicable PCP Entity or Penske, as the case may be, an amount of shares of Common Stock or Common Stock equivalents equal to the shares of Common Stock or Common Stock equivalents the Transferee actually proposes to purchase multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock and Common Stock equivalents issued and owned by such Tag-Along Stockholder (or held by a PCP Entity for such Tag-Along Stockholder's account) and the denominator of which shall be the aggregate number of shares of Common Stock and Common Stock equivalents issued and owned by such PCP Entity (or both PCP Entities, if both are selling pursuant to such transaction) (but excluding any such shares held by such PCP Entity for the account of a Tag-Along Stockholder) and/or Penske (if Penske is selling pursuant to such transaction) and each other Tag-Along Stockholder exercising its rights under this Section (assuming for purposes of calculating such fraction the conversion of all convertible securities and the exercise of all options and warrants held by the PCP Entities, Penske and each Tag-Along Stockholder exercising its rights under this Section). 4.3 TRANSFEREES; NONCOMPLYING TRANSFERS. In the event of any purported Transfer of any Restricted Securities in violation of Article IV 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 paid by the Company to the purported transferee in respect of such Restricted Securities (all such dividends and distributions being deemed waived), and the voting rights of such Restricted Securities, 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 Restricted Securities. In the 12 event of such a non-complying Transfer, the Company shall not Transfer any such Restricted Securities on its books or recognize the purported Transferee as a stockholder, for any purpose, until all applicable provisions of this Agreement have been complied with. ARTICLE V CERTAIN COVENANTS 5.1 LEGEND ON CERTIFICATES. (a) Each certificate for capital stock of the Company held by the Restricted Stockholders, JPMP or AON (or a PCP Entity for the account of JPMP or AON), as the case may be, shall be stamped or otherwise imprinted with the legends in substantially the following forms, until such time as any Restricted Securities (i) are registered pursuant to the Securities Act or (ii) are freely Transferable, in the opinion of counsel (such opinion to be reasonably acceptable to the Company) to such Restricted Stockholder, JPMP or AON, as the case may be, with respect to such Restricted Securities held by, or attributable to, such counsel's client, pursuant to Rule 144(k) promulgated under the Securities Act, at which time the Company shall cooperate with such holder to ensure that such legends are removed as promptly as practicable: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THAT CERTAIN SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, BY AND AMONG, AENEAS VENTURE CORPORATION, INTERNATIONAL MOTOR CARS GROUP I, L.L.C., INTERNATIONAL MOTOR CARS GROUP II, L.L.C., J.P. MORGAN PARTNERS (BHCA), L.P., MITSUI & CO., LTD., MITSUI & CO. (USA), INC., PENSKE CORPORATION, PENSKE AUTOMOTIVE HOLDINGS CORP., PENSKE CAPITAL PARTNERS, L.L.C., VIRGINIA SURETY COMPANY, INC., AND UNITED AUTO GROUP, INC., A COUNTERPART OF WHICH SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT HAS BEEN PLACED ON FILE BY THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS AND ITS REGISTERED OFFICE. A COPY OF SUCH SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE RECORD 13 HOLDER HEREOF UPON WRITTEN REQUEST TO THE COMPANY AT THE PRINCIPAL PLACE OF BUSINESS OF THE COMPANY." 5.2 ROGER PENSKE TO SERVE AS CHAIRMAN AND CHIEF EXECUTIVE OFFICER. (a) From and after the date hereof, the PCP Entities shall cause Roger Penske: (i) to serve as the Chairman of the Company until August 3, 2002 and as Chief Executive Officer of the Company until August 3, 2002; provided, however, such obligation shall cease if pursuant to Sections 2.4 or 2.5, PCP Directors shall no longer constitute a majority of the Company's Board of Directors. 5.3 REGISTRATION RIGHTS AGREEMENT. (a) Registrations. The Company shall effect a total of two (2) shelf registrations pursuant to Rule 415 of the Securities Act (or other applicable rule) of the capital stock of the Company held by the PCP Entities for the respective account of each of JPMP and AON, in accordance with the provisions of the Registration Rights Agreement, a form of which is attached hereto as Exhibit A. (b) No conflicts. The Company shall not enter into any agreement with respect to its securities which is inconsistent with the rights granted to the PCP Entities, JPMP and AON in the Registration Rights Agreement, or otherwise conflicts with the provisions thereof. In the event that the Company enters into any such agreement that grants rights to any party that are senior to or otherwise superior to those granted to each of IMCG (with respect to securities held for the accounts of JPMP and AON), JPMP or AON thereunder, with regard to priority or "cut-backs" in any registration under the Securities Act, the Company shall also grant such senior or superior rights to each of IMCG (with respect to securities held for the accounts of JPMP and AON), JPMP and AON. In the event that the Company enters into any agreement with respect to its securities that grants rights to any party that are senior to or otherwise superior to those granted to Mitsui in the registration rights agreement between Mitsui and the Company referred to in Schedule 5.3 hereto, with regard to priority or "cut-backs" in any registration under the Securities Act, the Company shall also grant such senior or superior rights to Mitsui. In the event that the Company enters into any agreement with respect to its securities that grants rights to any party that are senior to or otherwise superior to those granted to Harvard in the registration rights agreement between Harvard and the Company referred to in Schedule 5.3 hereto, with regard to priority or "cut-backs" in any registration under the Securities Act, the Company shall also grant such senior or superior rights to Harvard. Each of the parties hereto represents and warrants to each of IMCG (with respect to securities held for the accounts of JPMP and AON), Mitsui, JPMP and AON that it has not previously entered into any agreement with respect to its securities granting any registration rights to any party except as set forth on Schedule 5.3 hereto. The parties hereto acknowledge that in the event of a conflict or inconsistency between the Registration Rights Agreement and any other agreement regarding the registration rights of capital stock of the Company (including, but not limited to, those agreements set forth on Schedule 5.3 hereto), the provisions of the Registration Rights Agreement shall control, and each party hereto acknowledges the rights of JPMP and AON under Section 2.2 thereof. 14 5.4 REGULATORY MATTERS. (a) Cooperation of Other Stockholders. Each Restricted Stockholder and AON agrees to cooperate with the Company in all reasonable respects in complying with the terms and provisions of the letter agreement between the Company, the PCP Entities and JPMP, a copy of which is attached hereto as Exhibit B, regarding regulatory matters (the "Regulatory Sideletter"), including without limitation, voting to approve amending the Company's certificate of incorporation, the Company's by-laws or this Agreement in a manner reasonably acceptable to the Restricted Stockholders, AON and JPMP or any Affiliate of JPMP entitled to make such request pursuant to the Regulatory Sideletter in order to remedy a Regulatory Problem (as defined in the Regulatory Sideletter). Anything contained in this Section 5.4 to the contrary notwithstanding, no Restricted Stockholder or AON shall be required under this Section 5.4 to take any action that would adversely affect in any material respect its rights under this Agreement or as a stockholder of the Company. (b) Covenant Not to Amend. The Company, each Restricted Stockholder and AON agree not to take any action to amend or waive the voting or other provisions of the Company's certificate of incorporation, the Company's by-laws or this Agreement if such amendment or waiver would cause JPMP or any its Affiliates to have a Regulatory Problem (as defined in the Regulatory Sideletter). JPMP agrees to notify the Company as to whether or not it would have a Regulatory Problem (as defined in the Regulatory Sideletter) promptly after JPMP has notice of such amendment or waiver. 5.5 CONFIDENTIALITY OBLIGATION. (a) Mitsui shall treat as secret and confidential any and all confidential information communicated by the Company to the member of the Board of Directors designated by Mitsui or the Observer and shall therefore not disclose or communicate such confidential information to any person or entity, except to those employees and persons within Mitsui and/or its affiliates who need to have access to such information for the purpose of monitoring Mitsui's investment in the Company. Any such employee or person shall be bound by this confidentiality obligation and shall be informed of the confidential nature of the information. (b) The obligations imposed above shall not apply to information. (i) which becomes publicly available; (ii) which Mitsui can establish was already in its possession at the time such information was communicated to it; (iii) which is received from a third party without restriction and without breach of this Agreement; (iv) which Mitsui can establish has been independently developed by it; or (v) which is required to be disclosed by applicable law, legal process or, in connection with any judicial process, arbitration or other proceeding. 15 5.6 FURTHER ASSURANCES. Each of the parties hereto shall use commercially reasonable efforts to do such additional things and execute such documents as are reasonably necessary or proper to carry out and effectuate the intent of this Agreement or any part hereof. ARTICLE VI MUTUAL REPRESENTATIONS AND WARRANTIES Each of the parties hereto represents and warrants to the others as follows: 6.1 ORGANIZATION. It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation. 6.2 AUTHORIZATION, VALIDITY AND ENFORCEABILITY. It has full power and authority to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action, its board of directors or other governing body, as applicable, and no other proceedings on its part are necessary to authorize this Agreement or the transactions contemplated hereby. This Agreement has been duly executed and delivered by it, and constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting rights of creditors generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). 6.3 NO VIOLATION OR BREACH. The execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby, do not and will not conflict with, result in a violation or breach of, constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) or give rise to any right of termination or acceleration of any right or obligation of it under, or result in the creation or imposition of any lien, mortgage, pledge, security interest, claim, right of first refusal or other limitation on transfer or other encumbrance upon any of its Restricted Securities or shares of Common Stock of the Company, as the case may be, by reason of the terms of, (a) its memorandum of association, certificate of incorporation, by-laws or other charter or organizational document, (b) any contract, agreement, lease, license, mortgage, note, bond, debenture, indenture or other instrument or obligation to which it is a party or by or to which it or its assets or properties may be bound or subject, (c) any order, writ, judgment, injunction, award, decree, law, statute, rule or regulation applicable to it or (d) any license, permit, order, consent, approval, registration, authorization or qualification with or under any governmental agency, other than in the case of clauses (b), (c) or (d) above any conflict, violation, breach or default which would not, individually or in the aggregate together 16 with all other such conflicts, violations, breaches or defaults, have a material adverse effect on it or have a material adverse effect on its ability to perform its obligations, or consummate the transactions contemplated, hereunder. ARTICLE VII TERM 7.1 TERM. This Agreement shall commence on the date hereof, and shall terminate on December 31, 2009. This Agreement shall terminate with respect to a Restricted Stockholder, JPMP or AON at such time as such entity ceases to Beneficially Own any Restricted Securities or any shares of Common Stock of the Company, as the case may be. 7.2 EFFECTS OF TERMINATION. Upon termination of this Agreement, this Agreement (other than Section 8.9) 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 VIII MISCELLANEOUS PROVISIONS 8.1 SURVIVAL. All of the representations, warranties, covenants, and agreements of the parties contained in this Agreement shall survive until this Agreement is terminated. 8.2 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 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 below: If to Harvard Aeneas Venture Corporation c/o Charlesbank Capital Partners, LLC 600 Atlantic Avenue, 26th Floor Boston, MA 02210 Attention: Tami Nason With a copy to: (which Ropes & Gray 17 shall not One International Place constitute notice) Boston, MA 02110 Attention: Larry Jordan Rowe Telecopy: (617) 951-7050 If to Penske: c/o Penske Corporation 13400 Outer Drive West Detroit, Michigan 48239 Attention: General Counsel Telecopy: 313-592-7124 If to either c/o Penske Corporation PCP Entity: 13400 Outer Drive West Detroit, Michigan 48239 Attention: General Counsel Telecopy: 313-592-7124 If to JPMP: c/o J.P. Morgan Partners, L.L.C. 1221 Avenue of the Americas New York, New York 10020 Attention: Mr. Donald J. Hofmann Telecopy: (212) 899-3401 With a copy to: (which O'Sullivan LLP shall not constitute 30 Rockefeller Plaza notice) New York, New York 10112 Attention: Christopher P. Giordano, Esq. Telecopy: (212) 408-2420 If to Mitsui Japan: Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi, 1-Chome, Chiyoda-Ku Tokyo, Japan Attention: General Manager of First Motor Vehicles Division If to Mitsui USA: Mitsui & Co. (U.S.A.), Inc. 200 Park Avenue New York, New York 10166 Attention: General Manager, Detroit Machinery and Automotive Department, Second Machinery Division With a copy to: (which Debevoise & Plimpton shall not constitute 919 Third Avenue notice) New York, NY 10022 Attention: Christopher Smeall, Esq. 18 Telecopy: (212) 909-6836 If to AON: Virginia Surety Company, Inc. c/o Aon Advisers, Inc. 200 East Randolph Drive Chicago, Illinois 60606 Attention: Andrew Ward Telecopy: (312) 701-3900 With a copy to: (which Sidley Austin Brown & Wood LLP shall not constitute Bank One Plaza notice) 10 South Dearborn Street Chicago, Illinois 60603 Attention: Andrew Shaw, Esq. Telecopy: (312) 853-7036 If to the Company: United Auto Group, Inc. c/o Penske Corporation 13400 Outer Drive West, Suite B36 Detroit, Michigan 48239 Attn: General Counsel Telecopy: (313) 592-7124 or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section 8.2. 8.3 AMENDMENTS. The terms, provisions and conditions of this Agreement may not be changed, modified or amended in any manner except by an instrument in writing duly executed by all of the parties hereto; provided, however, that the terms, provisions and conditions of Sections 3.3, 3.4, 3.5, 4.1, and 5.3 may be amended by an instrument in writing duly executed by each of Penske, JPMP and AON, provided that any such amendment shall not adversely affect any Restricted Stockholder. 8.4 ASSIGNMENT AND PARTIES IN INTEREST. (a) Neither this Agreement nor any of the rights, duties, or obligations of any party hereunder may be assigned or delegated (by operation of law or otherwise) by any party hereto, other than to an Affiliate of such party, without the prior written consent of the other parties hereto. (b) 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; provided, however, that (i) the rights set forth in Article II hereof shall not inure to the benefit of any Transferee (other than a Permitted Transferee) without the prior written consent of each Restricted Stockholder (other than the Transferor), (ii) the provisions of 19 this Agreement shall not be binding on any Transferee other than a Permitted Transferee of Restricted Securities or shares of Common Stock of the Company, as the case may be, and (iii) JPMP and AON are intended third party beneficiaries of Sections 3.2, 3.5 and Article VI. 8.5 EXPENSES. On the date hereof or as promptly as practicable thereafter, the Company shall reimburse JPMP and AON for all legal, accounting, investment banking, and other expenses incurred by them in connection with the transactions contemplated by this Agreement, the Registration Rights Agreement, the Operating Agreements, and any and all documents related thereto (including the reasonable fees and reasonable expenses of O'Sullivan LLP, counsel to JPMP and Sidley Austin Brown & Wood LLP, counsel to AON). 8.6 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. 8.7 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. 8.8 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. 8.9 GOVERNING LAW; JURISDICTION. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction. (b) Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the jurisdiction of the courts of the State of New York and the United States of America located in the County of New York solely in respect of the interpretation and enforcement of the provisions of this Agreement, and in respect of the transactions contemplated hereby, and further agrees that service of any process, summons, notice or document to its respective address set forth in Section 8.2 shall be effective service of process for any action or 20 proceeding brought against it in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action or proceeding arising out of this Agreement or the transactions contemplated hereby in the courts of the State of New York or the United States of America located in the County of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. 8.10 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. 8.11 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 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 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 8.11) is invalid, inapplicable or unenforceable. 8.12 TRANSFERS TO AFFILIATES. In the event of any Transfer of capital stock of the Company by any party hereto to an Affiliate of such party (other than with respect only to those securities Transferred from Penske Corporation's, JPMP's or AON's respective "Share Accounts" (as defined in the Operating 21 Agreement(s)) to the Carry Account (as defined in the Operating Agreement(s)) and those securities held in Penske Capital's "Share Account" (as defined in the Operating Agreement(s)) to Penske Capital or by Penske Capital to its members of by such member to their members ad infinitum (it being understood that in no event with this exception apply to any Transfer by Penske Corporation)), prior to the effectiveness of such Transfer, such Transferee shall execute a joinder to this Agreement and shall otherwise agree to be bound by the provisions of this Agreement in the same manner as the Transferor. 8.13 PUBLIC FILINGS. Prior to making any filings required by Sections 13 or 16 of the Securities Exchange Act of 1934, as amended, each of the PCP Entities, JPMP and AON shall provide such other parties with a reasonable opportunity to review such filings and comment thereon. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. AENEAS VENTURE CORPORATION By: /S/ Michael R. Eisenson ------------------------------- Name: Michael R. Eisenson Title: Authorized Signatory INTERNATIONAL MOTOR CARS GROUP I, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By: /S/ James A. Hislop ------------------------------- Name: James A. Hislop Title: President and Chief Executive Officer INTERNATIONAL MOTOR CARS GROUP II, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By: /S/ James A. Hislop ------------------------------- Name: James A. Hislop Title: President and Chief Executive Officer MITSUI & CO., LTD. By: /S/ Motokazu Yoshida ------------------------------- Name: Motokazu Yoshida Title: Director and Chief Operation Officer Motor Vehicles, Marine & Aerospace Group MITSUI & CO. (U.S.A.), INC. By: /S/ Shozaburo Maruyama ------------------------------- Name: Shozaburo Maruyama Title: Senior Vice President and General Manager Second Machinery Division PENSKE CAPITAL PARTNERS, L.L.C. By: /S/ James A. Hislop ------------------------------- Name: James A. Hislop Title: President and Chief Executive Officer PCP Holdings, Inc. as Assignee of PENSKE CORPORATION By: /S/ Walter A. Czarnecki ------------------------------- Name: Walter A. Czarnecki Title: Executive Vice President PENSKE AUTOMOTIVE HOLDINGS CORP. By: /S/ Walter A. Czarnecki ------------------------------- Name: Walter A. Czarnecki Title: Vice Chairman UNITED AUTO GROUP, INC. By: /S/ Robert H. Kurnick, Jr. ------------------------------- Name: Robert H. Kurnick, Jr. Title: Executive Vice President FOR PURPOSES OF SECTIONS 3.3, 3.4, 4.1, 4.2, 5.1, 5.3, 5.4, 7.1, AND ARTICLE VIII ONLY: J.P. MORGAN PARTNERS (BHCA), L.P. By: JPMP Master Fund Manager, L.P., its General Partner By: JPMP Capital Corp., its General Partner By: /S/ Donald J. Hofmann, Jr. ------------------------------- Name: Donald J. Hofmann, Jr. Title: Managing Partner VIRGINIA SURETY COMPANY, INC. By: /S/ Michael A. Conway ------------------------------- Name: Michael A. Conway Title: Senior Vice President EXHIBIT A Form of Registration Rights Agreement EXHIBIT B Form of Regulatory Sideletter Schedule 5.3 Registration Rights Agreement among EMCO Motor Holdings, Inc., Aeneas Venture Corporation, and the other parties thereto dated as of October 15, 1993, as amended on July 31, 1996. Registration Rights Agreement among United Auto Group, Inc., International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. dated as of April 12, 1999. Registration Rights Agreement among United Auto Group, Inc. and Penske Automotive Holding Corp. dated as of December 22, 2000. Registration Rights Agreement among United Auto Group, Inc., Mitsui & Co., Ltd., and Mitsui & Co. (USA), Inc., dated as of February 28, 2001, as amended. EX-99.3 5 y85334exv99w3.txt MITSUI SIDE LETTER EXHIBIT 3 February 28, 2001 Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi 1-Chome, Chiyoda-ku Tokyo, Japan 100-0004 Mitsui & Co. (U.S.A.), Inc. 200 Park Avenue New York, New York 10166 Dear Ladies and Gentlemen: Reference is made to the Purchase Agreement, dated as of January 31, 2001 (the "Purchase Agreement"), by and between Mitsui & Co., Ltd. ("Mitsui Japan") and United Auto Group, Inc. ("UAG") pursuant to which, among other things, Mitsui and Mitsui & Co., (U.S.A.), Inc. (together "Mitsui") will acquire 1,302,326 shares of Voting Common Stock of UAG (the "Shares") on the Closing Date. Capitalized terms used in this letter (the "Letter Agreement") but not defined herein have the meanings ascribed to them in the Purchase Agreement. In order to induce Mitsui to purchase the Shares, Penske Corporation ("Penske") hereby agrees as follows: 1. By this Letter Agreement, Mitsui and UAG agree to amend the third line of the preamble to the Purchase Agreement to read as follows: "and Mitsui & Co., Ltd., a Japanese Company, and Mitsui & Co., (U.S.A.), Inc., a New York corporation (the "Purchaser")," 2. Prior to the second anniversary of the Closing Date, Penske shall not make any direct or indirect sale or transfer of any Voting Common Stock of UAG owned by it or Penske Automotive Holdings Corp. in a private transaction (a "Private Sale") unless, prior to making such Private Sale, Penske gives to Mitsui a written notice (the "Penske Tag-Along Notice") of the proposed Private Sale and its terms and conditions and offers to Mitsui the opportunity to participate in such sale in accordance with this Section 2. Within ten Business Days (as defined in the Amended and Restated Stockholders Agreement, dated as of February 28, 2001, by and among AIF II, L.P., Aeneas Venture Corporation, International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Mitsui & Co., Ltd. and UAG ) of the date of Penske's Tag-Along Notice, Mitsui shall notify Penske if it elects to participate in such Private Sale. If Mitsui fails to notify Penske within such ten Business Day period, it shall be deemed to have waived its right to participate in such Private Sale. If Mitsui notifies Penske that Mitsui wishes to participate in such Private Sale, Mitsui shall have the right to sell in such Private Sale, a number of Shares equal to the Voting Common Stock of UAG that the purchaser in such Private Sale actually proposes to purchase multiplied by a fraction, the numerator of which shall be the number of Shares held by Mitsui at such time and the denominator of which shall be the aggregate number of shares of Common Stock held by Mitsui, Penske and/or, Penske Automotive Holdings Corp., as the case may be at such time, at the same price per share and on the same terms and conditions as Penske. 3. For so long as Mitsui holds at least 2.5% of the Common Stock of UAG, (i) Penske will, and will cause Penske Automotive Holdings Corp., and all its other Affiliates (as defined in Rule 405 under the Securities Act of 1933, as amended) except International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. (collectively, the "Penske Affiliates") to vote, all of the voting securities of UAG beneficially owned (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) by it in favor of the person to be nominated as a director of UAG by Mitsui and take all other reasonable action to cause such person to be elected as one of the directors of UAG, and (ii) Mitsui will, and will cause its Affiliates (as defined in Rule 405 under the Securities Act of 1933, as amended) to vote, all of the voting securities of UAG beneficially owned (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) by it in favor of the persons to be nominated as directors of UAG by the Penske Affiliates and take all other reasonable action to cause such persons to be elected as directors of UAG. If Mitsui elects not to designate a person for the position of director of UAG, UAG will permit the observer designated by Mitsui to participate in all meetings of the board of directors of UAG. In addition, for so long as Mitsui holds at least 2.5% of the Common Stock of UAG, UAG will appoint to a senior executive position of UAG the nominee selected by Mitsui and any replacement of such person designated by Mitsui from time to time, provided that, after the date hereof, the parties shall negotiate in good faith appropriate compensation arrangements for such person. 4. If, after the date hereof, Mitsui acquires additional Voting Common Stock of UAG such that following such purchase Mitsui will hold, in the aggregate 5% or more, on a fully diluted basis, of the common equity of UAG, UAG will enter into an amendment of the Registration Rights Agreement, dated as of February 28, 2001, by and between UAG and Mitsui, pursuant to which Mitsui's incidental registration rights to include Voting Common Stock of UAG in a registered offering of Common Stock of UAG under the Securities Act of 1933, as amended, will be subject to reduction on a pro rata basis with Penske and Penske Automotive Holdings Corp. in the event of a limitation on the number of shares to be included in such offering. 5. This Letter 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 conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction. Each party to this Letter Agreement, (i) irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State of New York solely in respect of the interpretation and enforcement of the provisions of this Letter Agreement, and in respect of the 2 transaction contemplated hereby, and (ii) agrees that service of any process, summons or notice by international courier shall be effective service of process for any action or proceeding brought against it in any such court. 6. This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. All signatures need not appear on any one counterpart. 7. This Letter Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. [The remainder of this page was left intentionally blank] 3 Please acknowledge the foregoing agreement by signing the enclosed original of this Letter Agreement and returning the original to the undersigned. Very truly yours, PENSKE CORPORATION By /S/ Robert H. Kurnick, Jr. ------------------------------ Name: Robert H. Kurnick, Jr. Title: Executive Vice President UNITED AUTO GROUP, INC. By /S/ Randall E. Seymore ----------------------------- Name: Randall E. Seymore Title: Vice President Agreed to by: MITSUI & CO., LTD. By /S/ Motokazu Yoshida --------------------------- Name: Motokazu Yoshida Title: Operating Officer Motor Vehicles, Marine & Aerospace MITSUI & CO. (U.S.A.), INC. By /S/ Shozaburo Maruyama --------------------------- Name: Shozaburo Maruyama Title: Senior Vice President and General Manager Second Machinery Division 4 EX-99.4 6 y85334exv99w4.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 4 Execution Copy AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT among UNITED AUTO GROUP, INC. MITSUI & CO., LTD. and MITSUI & CO. (U.S.A.), INC. dated as of February 22, 2002 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of February 22, 2002, among United Auto Group, Inc., a Delaware corporation (the "Company"), Mitsui & Co., Ltd., a Japanese company ("Mitsui Japan"), Mitsui & Co. (U.S.A.), Inc., a New York corporation ("Mitsui USA" and together with Mitsui Japan, "Mitsui"). On January 31, 2001, the Company and Mitsui entered into a Purchase Agreement (the "Purchase Agreement") pursuant to which, Mitsui agreed to purchase at Closing (as described therein) 1,302,326 shares of voting common stock par value 0.0001 per share of the Company subject to the terms and conditions set forth therein. If Mitsui desires to sell the shares of Common Stock, it may be desirable to register such shares under the Securities Act (as defined below). As part of, and as consideration for, the acquisition of shares of the Common Stock from the Company, the Company granted to Mitsui certain registration and other rights with respect to its shares of Common Stock pursuant to a Registration Rights Agreement among the Company, Mitsui Japan and Mitsui USA dated as of February 28, 2001 ("Existing Agreement"). The parties wish to amend and restate in its entirety the Existing Agreement to continue to provide for certain matters relating to the registration and other rights with respect to Mitsui's shares of Common Stock, on the terms and conditions provided in this Agreement. Accordingly, the parties hereto agree as follows: 1. Definitions. As used herein, unless the context otherwise requires, the following terms have the following respective meanings: "Affiliate" means "affiliate" as defined in Rule 405 promulgated under the Securities Act. "AON" means Virginia Surety Company, Inc., a corporation organized under the laws of the State of Illinois. "Certificate of Incorporation" means the Certificate of Incorporation of the Company, as it may be amended or restated from time to time. 2 "Commission" means the Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. "Common Stock" means any shares of voting common stock, par value $0.0001 per share, of the Company, now or hereafter authorized to be issued, and, any and all securities of any kind whatsoever of the Company which may be issued on or after the date hereof in respect of, in exchange for, or upon conversion of shares of voting common stock pursuant to a merger, consolidation, stock split, stock dividend, recapitalization of the Company or otherwise. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any similar Federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Exchange Act shall include a reference to the comparable section, if any, of any such similar Federal statute. "Harvard" means Aeneas Venture Corporation, a Delaware corporation." "IMCG" means International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. "JPMP" means J.P. Morgan Partners (BHCA), L.P., a limited partnership organized under the laws of the State of Delaware, and successor to Chase Equity Associates, L.P., a limited partnership organized under the laws of the State of California. "JPMP/AON Registration Rights Agreement" means the Registration Rights Agreement among the Company, JPMP and AON, dated as of February 22, 2002. "Penske" means (i) Penske Capital Partners, L.L.C., a limited liability company organized under the laws of the State of Delaware, (ii) Penske Corporation, a corporation organized under the laws of the State of Delaware, (iii) except in the case of a registration of securities held by IMCG for the account of JPMP and AON pursuant to the JPMP/AON Registration Rights Agreement, IMCG and (iv) Penske Automotive Holdings Corp., a Corporation organized under the laws of the State of Delaware. "Penske Registrable Securities" refers collectively to the "Registrable Securities" as defined in each of the Penske Registration Rights Agreement. 3 "Penske Registration Rights Agreements" means the Registration Rights Agreement, dated May 3, 1999, by and among the Company, International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C., as amended from time to time, and the Registration Rights Agreement, dated December 22, 2000, by and between the Company and Penske Automotive Holdings Corp., as amended from time to time, and any subsequent agreement between the Company and Penske or Penske Corporation granting to Penske or Penske Corporation registration rights with respect to Common Stock. "Person" means a corporation, an association, a partnership, an organization, a business, a trust, an individual, or any other entity or organization, including a government or political subdivision or an instrumentality or agency thereof. "Registrable Securities" means (i) any shares of Common Stock owned by Mitsui, (ii) any shares of Common Stock that Mitsui may acquire after the date hereof, and (iii) any shares of Common Stock issued with respect to the Common Stock referred to in clause (i) by way of a stock dividend, stock split or reverse stock split or in connection with a combination of shares, recapitalization, merger, consolidation or otherwise. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities (a) when a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (b) when such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration of them under the Securities Act, or (c) when such securities shall have been sold in compliance with Rule 144 of the Securities Act. Any certificate evidencing the Registrable Securities shall bear a legend stating that the securities have not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sale of the securities. "Registration Expenses" means all expenses incident to the registration and disposition of the Registrable Securities pursuant to Section 2 hereof, including, without limitation, all registration, filing and applicable national securities exchange fees, all fees and expenses of complying with state securities or blue sky laws (including fees and disbursements of counsel to the underwriters or Mitsui in connection with "blue sky" qualification of the Registrable Securities and determination of their eligibility for investment under the laws of the various 4 jurisdictions), all word processing, duplicating and printing expenses, all messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of "cold comfort" letters or any special audits required by, or incident to, such registration, all fees and disbursements of underwriters (other than underwriting discounts and commissions), all transfer taxes and all fees and expenses of counsel to Mitsui of up to a maximum of $50,000 per registration; provided, however, that Registration Expenses shall exclude, and Mitsui shall pay, underwriting discounts and commissions in respect of the Registrable Securities being registered. "Securities Act" means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. References to a particular section of the Securities Act shall include a reference to the comparable section, if any, of any such similar Federal statute. 2. Registration Under the Securities Act, etc. 2.1 Incidental Registration. (a) Right to Include Registrable Securities. If Penske exercises its right to cause the Company to effect the registration under the Securities Act of all or part of the Penske Registrable Securities, pursuant to any of the Penske Registration Rights Agreements, and if as a result of exercising such right the Company proposes to register any of the Penske Registrable Securities under the Securities Act by registration on Form S-1, S-2 or S-3 or any successor or similar form(s), the Company will each such time give prompt written notice to Mitsui of its intention to register the Penske Registrable Securities and of Mitsui's rights under this Section 2.1. Upon the written request of Mitsui (which request shall specify the maximum number of Registrable Securities intended to be disposed of by Mitsui), made as promptly as practicable and in any event within 30 days after the receipt of any such notice (15 days if the Company states in such written notice or gives telephonic notice to Mitsui, with written confirmation to follow promptly thereafter, stating that (i) such registration will be on Form S-3 and (ii) such shorter period of time is required because of a planned filing date), the Company shall include in such registration under the Securities Act all Registrable Securities which the Company has been so requested to register by Mitsui subject only to the terms and conditions set forth herein. Notwithstanding anything to the contrary contained in this Agreement, but subject in each case to the terms of each Penske Registration Rights Agreement, the Company may in its 5 discretion withdraw any registration commenced pursuant to this Section 2.1 without liability to the holders of Registrable Securities. The Company will pay all Registration Expenses in connection with any registration of Registrable Securities requested pursuant to this Section 2.1. (b) Right to Withdraw. Mitsui shall have the right to withdraw its request for inclusion of any of its Registrable Securities in any registration statement pursuant to this Section 2.1 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of its request to withdraw. (c) Priority in Incidental Registrations. (i) Subject to clause (ii) below, if the managing underwriter of any underwritten offering shall inform the Company by letter of its belief that the number of Registrable Securities requested to be included in such registration, when added to the number of other securities to be offered in such registration, would materially adversely affect such offering, then the Company shall include in such registration, (the "Section 2.1 Sale Amount"), (A) all of the securities proposed by the Company to be sold for its own account; (B) thereafter, to the extent the Section 2.1 Sale Amount is not exceeded, any other securities of the Company requested to be included in such registration by JPMP, AON, Mitsui, Penske and its Affiliates, and Harvard on a pro rata basis, with the amount of securities of JPMP, AON, Mitsui, Penske and its Affiliates, with respect to securities not held for the account of JPMP and AON, and Harvard to be included based on the pro rata amount of shares of Common Stock held, or obtainable by exercise or conversion of other securities of the Company, by JPMP, AON, Mitsui, Penske and its Affiliates, with respect to securities not held for the account of JPMP and AON, and Harvard, it being understood that for purposes of this Section 2.1(c) JPMP and AON shall be deemed to "hold" that aggregate number of Registrable Securities held by IMCG for the account of each of JPMP and AON; and (D) thereafter, to the extent the Section 2.1 Sale Amount is not exceeded, any other holder of Company securities entitled to register such securities. (ii) Notwithstanding anything contained herein to the contrary, with respect to the first primary offering of securities of the Company following the date of this Amendment Agreement, the Company shall have no obligation to register any Registrable Securities so long as none of Penske or any of its Affiliates shall have exercised their rights to cause the Company to effect the registration under the Securities Act of all or part of the Penske Registrable Securities, pursuant to any of the Penske Registration Rights Agreements. 6 (d) The Company represents and warrants that, as of the date hereof, no Person has rights to require the Company to effect the registration under the Securities Act of Common Stock, except as disclosed prior to the date hereof in the Company's filings with the U.S. Securities and Exchange Commission. (e) After the date hereof, the Company shall not grant to any Person, rights to require the Company to effect a registration under the Securities Act of Common Stock unless the Company simultaneously enters into an amendment of this Agreement pursuant to which Mitsui will be granted rights to require the Company to effect a registration under the Securities Act of Common Stock that are equal to the rights granted to such Person. (f) After the date hereof, the Company shall not grant to any Person rights to include Common Stock in a registration under the Securities Act of Common Stock that are more favorable to such Person than the rights granted to Mitsui hereunder unless the Company simultaneously enters into an amendment of this Agreement pursuant to which Mitsui will be granted rights to include Common Stock in a registration under the Securities Act that are equal to the rights provided to such Person. 2.2 Registration Procedures. If and whenever the Company is required to use its reasonable best efforts to effect the registration of any registrable securities under the Securities Act as provided in the Penske Registration Rights Agreements and if, in such event, Mitsui is entitled to register Registrable Securities pursuant to this Agreement, the Company shall, unless and until either Mitsui has withdrawn its request or is no longer entitled to include in such registration, all or any portion of the Registrable Securities, as expeditiously as possible: (a) prepare and file with the Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable best efforts to cause such registration statement to become effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall as promptly as practicable furnish such documents to Mitsui and each underwriter, if any, participating 7 in the offering of the Registrable Securities and their respective counsel, which documents will be subject to the reasonable review and comments of Mitsui, each underwriter and their respective counsel; and provided, further, however, that the Company may discontinue any registration of its securities pursuant to Section 2.1 or which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; (b) notify Mitsui of the Commission's requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the intended method of distribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 180 days; (c) furnish, without charge, to Mitsui and each underwriter such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as Mitsui and such underwriters may reasonably request; (d) use its reasonable best efforts (i) to register or qualify all Registrable Securities and other securities covered by such registration statement under such securities or blue sky laws of such States of the United States of America where an exemption is not available and as Mitsui or any managing underwriter shall reasonably request, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect, and (iii) to take any other action which may be reasonably necessary 8 or advisable to enable Mitsui to consummate the disposition in such jurisdictions of the securities to be sold by Mitsui, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subsection (d) be obligated to be so qualified or to consent to general service of process in any such jurisdiction; (e) furnish to Mitsui and each underwriter, if any, participating in the offering of the securities covered by such registration statement, a signed counterpart of (i) an opinion of counsel for the Company, and (ii) a "comfort" letter signed by the independent public accountants who have certified the Company's or any other entity's financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters, and, in the case of the accountants' comfort letter, such other financial matters, as the underwriters, may reasonably request; (f) promptly notify Mitsui and each managing underwriter, if any, participating in the offering of the securities covered by such registration statement (i) when such registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to such registration statement has been filed, and, with respect to such registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission for amendments or supplements to such registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of 9 any of the Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and in the case of this clause (v), at the request of Mitsui promptly prepare and furnish to Mitsui and each managing underwriter, if any, participating in the offering of the Registrable Securities, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (g) otherwise comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder, and promptly furnish to Mitsui a copy of any amendment or supplement to such registration statement or prospectus; (h) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration; (i) (i) use its reasonable best efforts to cause all Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such 10 exchange, or (ii) if no similar securities are then so listed, use its reasonable best efforts to (x) cause all such Registrable Securities to be listed on a national securities exchange or (y) failing that, secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such shares with the National Association of Securities Dealers, Inc.; (j) deliver promptly to counsel to Mitsui and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors; (k) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement; (l) provide a CUSIP number for all Registrable Securities, no later than the effective date of the registration statement; and (m) make available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's business) in their marketing of Registrable Securities. The Company may require Mitsui to furnish the Company such information regarding Mitsui and the distribution of the Registrable Securities as the Company may need for the purpose of effecting a registration of Common Stock, including Registrable Securities, under the Securities Act. The Company shall be excused from any obligation to Mitsui hereunder to the extent that Mitsui's failure to deliver such information has impaired the Company's ability to perform its obligations hereunder and comply with applicable laws and regulations under the Securities Act, and for so long as Mitsui has not delivered such information to the extent required by applicable law. Mitsui agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (f) (iii), (iv) or 11 (v) of this Section 2.2, Mitsui will, to the extent appropriate, discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until, in the case of paragraph (f)(v) of this Section 2.2, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (f)(v) of this Section 2.2 and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in its possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. 2.3 Incidental Underwritten Offerings. In the case of a registration pursuant to Section 2.1 hereof, if the Company shall have determined to enter into any underwriting agreements in connection therewith, all of the Registrable Securities to be included in such registration shall be subject to such underwriting agreements, and Mitsui shall be party to such underwriting agreements in form and substance reasonably acceptable to it. 2.4 Indemnification. (a) Indemnification by the Company. The Company agrees that in the event of any registration of any securities of the Company under the Securities Act, the Company shall indemnify and hold harmless Mitsui, its respective directors, officers, members, partners, agents and affiliates and each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls Mitsui or any such underwriter within the meaning of the Securities Act, against any losses, claims, damages, or liabilities, joint or several, to which Mitsui or any such director, officer, member, partner, agent or affiliate or underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof), arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading, and the Company shall reimburse Mitsui and each such director, officer, member, partner, agent or affiliate, underwriter and controlling Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, 12 action or proceeding; provided that the Company shall not be liable in any such case to Mitsui or any such director, officer, member, partner, agent, affiliate, or controlling person to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of Mitsui, specifically stating that it is for use in the preparation thereof; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any person from whom the person asserting any such losses, claims, damages or liabilities (the "Claimant") purchased securities, or any person controlling such person, if a copy of the prospectus (as then amended or supplemented if the Company shall have furnished any amendment or supplement thereto) was not sent or given by or on behalf of such person to such Claimant, if required by law to have been so delivered, at or prior to the written confirmation of the sale of the securities sold to such Claimant, and if the prospectus (as so amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. Such indemnity shall remain in full force regardless of any investigation made by or on behalf of Mitsui or any such director, officer, member, partner, agent, affiliate, underwriter or controlling Person and shall survive the transfer of such securities by Mitsui. (b) Indemnification by Mitsui. As a condition to including any Registrable Securities in any registration statement, Mitsui shall indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.4) the Company, and each director of the Company, each officer of the Company and each other Person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, but only to the extent such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Mitsui specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided, however, that the liability of such indemnifying party under this Section 2.4(b) shall be limited to the amount of proceeds (net of expenses and underwriting discounts and 13 commissions) received by such indemnifying party in the offering giving rise to such liability. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling Person and shall survive the transfer of such securities by Mitsui. (c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding subsections of this Section 2.4, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action or proceeding; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subsections of this Section 2.4, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice, and shall not relieve the indemnifying party from any liability which it may have to the indemnified party otherwise than under this Section 2.4. In case any such action or proceeding is brought against an indemnified party, the indemnifying party shall be entitled to participate therein and, unless in the opinion of outside counsel to the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, to assume the defense thereof, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action or proceeding include both the indemnified party and the indemnifying party and if in the opinion of outside counsel to the indemnified party there may be legal defenses available to such indemnified party and/or other indemnified parties which are in conflict with or in addition to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to defend such action or proceeding on behalf of such indemnified party or parties, provided, however, that the indemnifying party shall be obligated to pay for only one counsel and one local counsel for all indemnified parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by the latter in connection with the defense thereof (unless the first proviso in the preceding sentence shall be applicable). No indemnifying party shall be liable for any settlement of any action or proceeding effected without its written consent. No indemnifying party shall, without the 14 consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. (d) Contribution. If the indemnification provided for in this Section 2.4 shall for any reason be held by a court to be unavailable to an indemnified party under subsection (a) or (b) hereof in respect of any loss, claim, damage or liability, or any action in respect thereof, then, in lieu of the amount paid or payable under subsection (a) or (b) hereof, the indemnified party and the indemnifying party under subsection (a) or (b) hereof shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating the same), (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand, and the indemnified party on the other, which resulted in such loss, claim, damage or liability, or action in respect thereof, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as shall be appropriate to reflect not only the relative fault but also the relative benefits received by the indemnifying party and the indemnified party from the offering of the securities covered by such registration statement as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 2.4(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentence of this Section 2.4(d). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or claim effected without such Person's consent, which consent shall not be unreasonably withheld. Notwithstanding anything in this subsection (d) to the contrary, no indemnifying party (other than the Company) shall be required to contribute any amount in excess of the proceeds (net of expenses and underwriting discounts and commissions) received by such party from the sale of the Registrable Securities in the offering to which the losses, claims, damages or liabilities of the indemnified parties relate. 15 (e) Other Indemnification. Indemnification and contribution similar to that specified in the preceding subsections of this Section 2.4 (with appropriate modifications) shall be given by the Company and Mitsui with respect to any required registration or other qualification of securities under any federal, state or blue sky law or regulation of any governmental authority other than the Securities Act. The indemnification agreements contained in this Section 2.4 shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the transfer of any of the Registrable Securities by Mitsui. (f) Indemnification Payments. The indemnification and contribution required by this Section 2.4 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. 2.5 Unlegended Certificates. In connection with the offering of any Registrable Securities registered pursuant to this Section 2, the Company shall promptly after the sale of such Registrable Securities (i) facilitate the timely preparation and delivery to Mitsui and the underwriters, if any, participating in such offering, of unlegended certificates representing ownership of such Registrable Securities being sold in such denominations and registered in such names as requested by Mitsui or such underwriters, and (ii) instruct any transfer agent and registrar of such Registrable Securities to release any stop transfer orders with respect to any such Registrable Securities. 2.6 No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of Mitsui to sell any Registrable Securities pursuant to any effective registration statement. 3. Rule 144. The Company shall take all actions reasonably necessary to enable Mitsui to sell its Common Stock without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, or (ii) any similar rule or regulation hereafter adopted by the Commission including, without limiting the generality of the foregoing, filing on a timely basis all reports required to be filed by the Exchange Act. Upon the request of Mitsui, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. 16 4. Amendments and Waivers. This Agreement may be amended, modified or supplemented only by written agreement of the parties. 5. Adjustments. In the event of any change in the capitalization of the Company as a result of any stock split, stock dividend, reverse split, combination, recapitalization, merger, consolidation, or otherwise, the provisions of this Agreement shall be appropriately adjusted. 6. 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: (a) If to Mitsui to: Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi 1-chome, Chiyoda-ku Tokyo, Japan Attention: General Manager of First Motor Vehicles Div. If to Mitsui USA: Mitsui & Co. (U.S.A.), Inc. 200 Park Avenue New York, New York 10166 Attention: General Manager, Detroit Machinery & Automotive Department, Second Machinery Division with a copy to: Debevoise & Plimpton 919 Third Avenue New York, N.Y. 10022 Attention: Christopher Smeall, Esq. 17 (b) If to the Company, to it at: United Auto Group 13400 Outer Drive West Suite B36 Detroit, Michigan 48239-4001 Attention: General Counsel 7. Assignment; Third Party Beneficiaries; Majority Controls. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Company, without the prior written consent of Mitsui. Mitsui may, at its election, at any time or from time to time, assign its rights or delegate its obligations under this Agreement, in whole or in part, to any purchaser or other transferee of Registrable Securities held by it; provided, however, that any rights to withdraw shares from inclusion in a registration statement pursuant to Section 2 shall be made only by Mitsui for itself and all such purchasers and transferees; and provided, further, that any decision hereunder made by the holders of the majority of the Registrable Securities shall be binding on all other holders of Registrable Securities. 8. Remedies. The parties hereto agree that money damages or other remedy at law would not be sufficient or adequate remedy for any breach or violation of, or a default under, this Agreement by them and that, in addition to all other remedies available to them, each of them shall be entitled to an injunction restraining such breach, violation or default or threatened breach, violation or default and to any other equitable relief, including without limitation specific performance, without bond or other security being required. In any action or proceeding brought to enforce any provision of this Agreement (including the indemnification provisions thereof), the successful party shall be entitled to recover reasonable attorneys' fees in addition to its costs and expenses and any other available remedy. 9. Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for reference only and shall not control or otherwise affect the meaning hereof. 18 10. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights and obligations of the parties hereto shall be governed by, the laws of the State of New York, without giving effect to the conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction. Each of the parties hereto hereby irrevocably consents to submit to the jurisdiction of the courts of the State of New York and the United States of America located in the County of New York solely in respect of the interpretation and enforcement of the provisions of this Agreement, and in respect of the transactions contemplated hereby (and agrees not to commence any action or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in Section 6 hereof shall be effective service of process for any action or proceeding brought against it in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action or proceeding arising out of this Agreement or the transactions contemplated hereby in the courts of the State of New York or the United States of America located in the County of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. 11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. 12. Invalidity of Provision. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. If any restriction or provision of this Agreement is held unreasonable, unlawful or unenforceable in any respect, such restriction or provision shall be interpreted, revised or applied in a manner that renders it lawful and enforceable to the fullest extent possible under law. 13. Further Assurances. Each party hereto shall do and perform or cause to be done and performed all further acts and things and shall execute and deliver all 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. 19 14. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. [Remainder of page left blank] 20 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized. UNITED AUTO GROUP, INC. By: /s/ Robert H. Kurnick, Jr. ---------------------------- Name: Robert H. Kurnick, Jr. Title: Executive Vice President MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ---------------------------- Name: Tatsuo Nakayama Title: MITSUI & CO. (U.S.A.), INC. By: /s/ Shozaburo Maruyama ---------------------------- Name: Shozaburo Maruyama Title: 21 EX-99.5 7 y85334exv99w5.txt LETTER AGREEMENT EXHIBIT 5 April 4, 2003 Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi 1-Chome, Chiyoda-ku Tokyo, Japan 100-0004 Mitsui & Co. (U.S.A.), Inc. 200 Park Avenue New York, New York 10166 Dear Ladies and Gentlemen: The parties to this letter agreement (this "Agreement") wish to provide for certain rights relating to transfers of the equity securities of United Auto Group, Inc. (the "Company") in accordance with the terms of this Agreement. Certain capitalized terms used herein are defined in Section 1(c) below. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: 1. Tag-Along Rights. (a) In the event that any of the PCP Entities or Penske desires to Transfer any Restricted Securities to a third party (other than (i) with respect to any Restricted Securities, to their respective Permitted Transferees or Affiliates or (ii) with respect only to those securities Transferred from Penske Corporation's "Share Account" (as defined in the Operating Agreement(s)) to the "Carry Account" (as defined in the Operating Agreement(s)) and those securities held in the "Share Account" (as defined in the Operating Agreement(s)) of Penske Capital Partners, L.L.C. to Penske Capital Partners, L.L.C. or by Penske Capital Partners, L.L.C. to its members or by such members to their members ad infinitum (it being understood that in no event will this clause (ii) apply to any Transfer by Penske Corporation)) at any time on or after February 1, 2005 and before February 1, 2006, such PCP Entity or Penske, as the case may be, shall notify you in writing, of such proposed Transfer and its terms and conditions (the "Tag Along Notice"); and (b) Within ten (10) Business Days of the date of the Tag-Along Notice, you shall notify the PCP Entities or Penske, as the case may be, if you elect to participate in such Transfer. If you fail to notify such PCP Entity or Penske, as the case may be, within such ten (10) Business Day period, you shall be deemed to have waived your right to participate in such Transfer. If you notify such PCP Entity or Penske, as the case may be, in accordance with this section, you shall have the right to Transfer, at the same price per share of Common Stock and on the same terms and conditions as the applicable PCP Entity or Penske, as the case may be, an amount of shares of Common Stock or Common stock equivalents equal to the shares of Common Stock or Common Stock equivalents the Transferee actually proposed to purchase multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock and Common Stock equivalents issued and owned by you and the denominator of which shall be the aggregate number of shares of Common Stock and Common Stock equivalents issued and owned by you and such PCP Entity (or both PCP Entities, if both are selling pursuant to such transaction) and/or Penske (if Penske is selling pursuant to such transaction) and Harvard (to the extent that Harvard is selling in this transaction by virtue of a similar tag-along agreement with the PCP Entities and Penske) (assuming for purposes of calculating such fraction the conversion of all convertible securities and the exercise of all options and warrants held by the PCP Entities, Penske, Harvard and you). (c) Capitalized terms used in this Section 1 of this Agreement shall have the meanings specified below: "Affiliate" means "affiliate" as defined in Rule 405 promulgated under the Securities Act. "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 and Tokyo, Japan. "Common Stock" means the voting Common Stock, par value $.0001 per share, and non-voting Common Stock, par value $.001 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. "Harvard" means Aeneas Venture Corporation. "Operating Agreements" means each of (i) the Amended and Restated Limited Liability Company Agreement for International Motor Cars Group I, L.L.C. and (ii) the Amended and Restated Limited Liability Agreement for International Motor Cars Group II, L.L.C., as amended. "PCP Entities" means each of International Motor Cars Group I, L.L.C. and International Motor Cars Group II, L.L.C. "Penske" means each of Penske Corporation, Penske Automotive Holdings Corp. and Penske Capital Partners, L.L.C. "Permitted Transferee" of a person means (a) a corporation, partnership or other entity wholly owned by such person; provided, that such corporation, partnership or other entity shall agree in writing that it shall transfer to such person any Restricted Securities which it holds prior to such time as it ceases to be wholly owned by such person, and (b) the equity owners of such person to the extent such equity owners receive a pro rata distribution of Restricted Securities. "Restricted Securities" means any Common Stock or other equity security of the Company owned, directly or indirectly, by a PCP Entity, Penske or an Affiliate of a PCP Entity or Penske or by any other person who holds such securities on behalf of a PCP Entity, Penske or an Affiliate, and any securities convertible, exercisable or exchangeable for Common Stock or such other equity securities. "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. 2. Public Filings. Prior to the making of any filings required by Sections 13 of the Securities Exchange Act of 1934, as amended, each of the PCP Entities and Penske, on the one hand, and you, on the other hand, shall provide the other party or parties with a reasonable opportunity to review such filings and comment thereon. 3. Governing Law; Jurisdiction. 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 conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction. Each party to this Agreement irrevocably submits to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State of New York solely in respect of the interpretation and enforcement of the provisions of this Agreement, and in respect of the transactions contemplated hereby. 4. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. All signatures need not appear on any one counterpart. 5. 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. 6. 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 may 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 action 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. 7. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. 8. Termination. This Agreement shall terminate (i) if the Purchase Agreement entered into on the date hereof between you and J.P. Morgan Partners (BHCA), LP terminates without the transactions contemplated thereby having been consummated, or (ii) at such time at which you cease to own any Common Stock or other equity security of the Company. [The remainder of this page was left intentionally blank] Please acknowledge the foregoing agreement by signing the enclosed original of this Agreement and returning the original to the undersigned. Very truly yours, PENSKE CORPORATION By /s/ Robert H. Kurnick, Jr. -------------------------- Name: Robert H. Kurnick, Jr. Title: President PENSKE CAPITAL PARTNERS, L.L.C. By /s/ James A. Hislop ------------------- Name: James A. Hislop Title: President PENSKE AUTOMOTIVE HOLDINGS CORP. By /s/ Robert H. Kurnick, Jr. -------------------------- Name: Robert H. Kurnick, Jr. Title: Vice President INTERNATIONAL MOTOR CARS GROUP I, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By /s/ James A. Hislop ------------------- Name: James A. Hislop Title: President INTERNATIONAL MOTOR CARS GROUP II, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By /s/ James A. Hislop ------------------- Name: James A. Hislop Title: President Agreed to by: 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/ Osamu Koyama ------------------ Name: Osamu Koyama Title: S.V.P & General Manager Second Machinery Division -----END PRIVACY-ENHANCED MESSAGE-----