-----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, VwF3UcF2Hp7RU1hBbv2mkz+h+BvHmySZjJiicHJAuwvDAD+7QFi/SCPSsRxH3IL2 GTILRRbdh4X7X5OWCiAGrg== 0000950124-06-005259.txt : 20060914 0000950124-06-005259.hdr.sgml : 20060914 20060914163115 ACCESSION NUMBER: 0000950124-06-005259 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060914 DATE AS OF CHANGE: 20060914 GROUP MEMBERS: INTERNATIONAL MOTOR CARS GROUP I, L.L.C. GROUP MEMBERS: INTERNATIONAL MOTOR CARS GROUP II, L.L.C. GROUP MEMBERS: JAMES A. HISLOP GROUP MEMBERS: PENSKE CAPITAL PARTNERS, L.L.C. GROUP MEMBERS: PENSKE CORPORATION GROUP MEMBERS: ROGER S. PENSKE 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49667 FILM NUMBER: 061091019 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PENSKE CAPITAL PARTNERS LLC CENTRAL INDEX KEY: 0001084569 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2555 TELEGRAPH ROAD CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48302-0954 BUSINESS PHONE: 248-648-2500 MAIL ADDRESS: STREET 1: 399 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 k08445sc13dza.htm AMENDMENT NO. 22 TO SCHEDULE 13D sc13dza
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934 (Amendment No. 22 )*

United Auto Group, Inc.
(Name of Issuer)
Common Stock (Par Value $ 0.0001 Per Share)
(Title of Class of Securities)
909440 10 9
(CUSIP Number)
Lawrence N. Bluth
General Counsel
Penske Corporation
2555 Telegraph Rd.
Bloomfield Hills, MI 48302
248-648-2500
(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)
September 14, 2006
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

*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 purpose 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).

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Item 3. Source and Amount of Funds or Other Consideration
Item 5. Interest in Securities of the Issuer
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 7. Material to be filed as Exhibits
Form of Purchase and Sale Agreement, dated 9/14/2006
Purchase and Sale Agreement, dated 9/14/2006

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SCHEDULE 13D

                     
CUSIP No.
  
909440 10 9 

 

           
1   NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
  International Motor Cars Group I, L.L.C. 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  Not Applicable
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
   
  o

Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   0
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER
     
    0
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  0
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  0%
     
14   TYPE OF REPORTING PERSON
   
  OO

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SCHEDULE 13D

                     
CUSIP No.
  
909440 10 9 

 

           
1   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
   
  International Motor Cars Group II, L.L.C.
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  Not Applicable
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
   
  o

Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   64,550
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER
     
    64,550
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  37,846,041 (1)(2)
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  þ
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  40.1%
     
14   TYPE OF REPORTING PERSON
   
  OO
(1)   The aggregate amount beneficially owned by International Motor Cars Group II, L.L.C. (“IMCGII”) reported on line 11 and the percent of class reported on line 13 reflects the beneficial ownership of shares by all of the Reporting Persons under this Schedule 13D as a group. The amount of Voting Common Stock beneficially owned by International Motor Cars Group II, L.L.C. without regard to such group status is 64,550, representing less than 1% of the Voting Common Stock outstanding.
 
(2)   The parties to the Stockholders Agreement (as defined in Item 4 in amendment 19 to this Schedule 13D) may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act, and, as a party to the Stockholders Agreement, IMCGII may be deemed to share beneficial ownership of the shares of Voting Common Stock owned by the other stockholder parties to the Stockholders Agreement. IMCGII expressly disclaims beneficial ownership of any shares of Voting Common Stock held by such other parties. In amendment 5 to Schedule 13D filed on or about September 14, 2006 by Mitsui & Co., Ltd and Mitsui & Co. (U.S.A.), Inc. (“Mitsui”), parties to the Stockholders Agreement other than the Reporting Persons under this Schedule 13D reported beneficial ownership of 15,559,217 shares. Including the shares reported by Mitsui and the other Reporting Persons under this Schedule 13D, IMCGII would beneficially own 53,405,258 shares, representing 56.6% of the Voting Common Stock outstanding.

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SCHEDULE 13D

                     
CUSIP No.
  
909440 10 9 

 

           
1   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
   
  Penske Capital Partners, L.L.C.
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  Not Applicable
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
   
  o

Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   64,550
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER
     
    64,550
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  37,846,041 (1)(2)
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  þ
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  40.1%
     
14   TYPE OF REPORTING PERSON
   
  OO
(1)   The aggregate amount beneficially owned Penske Capital Partners, L.L.C. (“PCP”) reported on line 11 and the percent of class reported on line 13 reflects the beneficial ownership of shares by all of the Reporting Persons under this Schedule 13D as a group. The amount of Voting Common Stock beneficially owned by PCP without regard to such group status is 64,550, representing less than 1% of the Voting Common Stock outstanding.
 
(2)   The parties to the Stockholders Agreement (as defined in Item 4 in amendment 19 to this Schedule 13D) may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act, and, because IMCGII (of which PCP is the managing member) is a party to the Stockholders Agreement, PCP may be deemed to share beneficial ownership of the shares of Voting Common Stock owned by the other stockholder parties to the Stockholders Agreement. PCP expressly disclaims beneficial ownership of any shares of Voting Common Stock held by such other parties. In amendment 5 to Schedule 13D filed on or about September 14, 2006 by Mitsui, parties to the Stockholders Agreement other than the Reporting Persons under this Schedule 13D reported beneficial ownership of 15,559,217 shares. Including the shares reported by Mitsui and the other Reporting Persons under this Schedule 13D, IMCGII would beneficially own 53,405,258 shares, representing 56.6% of the Voting Common Stock outstanding.

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SCHEDULE 13D

                     
CUSIP No.
  
909440 10 9 

 

           
1   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
   
  James A. Hislop
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a)   o 
  (b)   þ 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  Not Applicable
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
   
  o

Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  United States
       
  7   SOLE VOTING POWER
     
NUMBER OF   4,000
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   314,874
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   318,874
       
WITH 10   SHARED DISPOSITIVE POWER
     
    0
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  318,874
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  Less than 1%
     
14   TYPE OF REPORTING PERSON
   
  IN

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SCHEDULE 13D

                     
CUSIP No.
  
909440 10 9 

 

           
1   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
   
  Roger S. Penske
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  Not Applicable
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
   
  o

Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  United States
       
  7   SOLE VOTING POWER
     
NUMBER OF   492,967
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   37,034,200
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   707,081
       
WITH 10   SHARED DISPOSITIVE POWER
     
    36,176,594
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  37,846,041 (1)(2)
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
  þ
  (2)
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  40.1%
     
14   TYPE OF REPORTING PERSON
   
  IN
(1)   The aggregate amount beneficially owned by Mr. Penske reported on line 11 and the percent of class reported on line 13 reflects the beneficial ownership of shares by all of the Reporting Persons under this Schedule 13D as a group. The amount of Voting Common Stock beneficially owned by Mr. Penske without regard to such group status is 37,527,167 shares, representing 39.7% of the Voting Common Stock outstanding.
 
(2)   The parties to the Stockholders Agreement (as defined in Item 4 in amendment 19 to this Schedule 13D) may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act, and, because IMCGII (of which PCP is the managing member and Mr. Penske is the managing member of PCP) and Penske Corporation (of which Mr. Penske is Chief Executive Officer and Chairman and a controlling stockholder) are parties to the Stockholders Agreement, Mr. Penske may be deemed to share beneficial ownership of the shares of Voting Common Stock owned by the other stockholder parties to the Stockholders Agreement. Mr. Penske expressly disclaims beneficial ownership of any shares of Voting Common Stock held by such other parties. In amendment 5 to Schedule 13D filed on or about September 14, 2006 by Mitsui, parties to the Stockholders Agreement other than the Reporting Persons under this Schedule 13D reported beneficial ownership of 15,559,217 shares. Including the shares reported by Mitsui and the other Reporting Persons under this Schedule 13D, Mr. Penske would beneficially own 53,405,258 shares, representing 56.6% of the Voting Common Stock outstanding.

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SCHEDULE 13D
                     
CUSIP No. 909440 10 9 

 

           
1   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
   
   
  Penske Corporation
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  
  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS
   
  OO
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e):
  o
  Not Applicable
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
NUMBER OF    
    0
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   36,969,650
       
EACH 9   SOLE DISPOSITIVE POWER
     
REPORTING   0
       
PERSON 10   SHARED DISPOSITIVE POWER
     
WITH   36,112,044
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  37,846,041 (1)(2)
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
  þ
  (2)
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  40.1% %
     
14   TYPE OF REPORTING PERSON
   
  CO
 
(1)   The aggregate amount beneficially owned by Penske Corporation reported on line 11 and the percent of class reported on line 13 reflects the beneficial ownership of shares by all of the Reporting Persons on this Schedule 13D as a group. The amount of Voting Common Stock beneficially owned by Penske Corporation without regard to such group status is 36,969,650 shares, representing 39.1% of the Voting Common Stock outstanding.
 
(2)   The parties to the Stockholders Agreement (as defined in Item 4 in amendment 19 to this Schedule 13D) may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act, and, as a party to the Stockholders Agreement, Penske Corporation may be deemed to share beneficial ownership of the shares of Voting Common Stock owned by the other stockholder parties to the Stockholders Agreement. Penske Corporation expressly disclaims beneficial ownership of any shares of Voting Common Stock held by such other parties. In amendment 5 to Schedule 13D filed on or about September 14, 2006 by Mitsui, parties to the Stockholders Agreement other than the Reporting Persons under this Schedule 13D reported beneficial ownership of 15,559,217 shares. Including the shares reported by Mitsui and the other Reporting Persons under this Schedule 13D, Penske Corporation would beneficially own 53,405,258 shares, representing 56.6% of the Voting Common Stock outstanding.

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          This Amendment No. 22 (the “Amendment”) amends and supplements the Schedule 13D filed on behalf of International Motor Cars Group I, L.L.C., a Delaware limited liability company (“IMCG I”), International Motor Cars Group II, L.L.C., a Delaware limited liability company (“IMCG II”), Penske Capital Partners, L.L.C., a Delaware limited liability company (“PCP”), Penske Corporation, a Delaware corporation (“Penske Corporation”), Roger S. Penske and James A. Hislop (all such persons, the “Reporting Persons”) with the Securities and Exchange Commission on April 22, 1999, as amended by Amendment No. 1 filed on May 3, 1999, Amendment No. 2 filed on August 5, 1999, Amendment No. 3 filed on February 9, 2000, Amendment No. 4 filed on September 14, 2000, Amendment No. 5 filed on October 26, 2000, Amendment No. 6 filed on December 18, 2000, Amendment No. 7 filed on December 26, 2000, Amendment No. 8 filed on February 14, 2001, Amendment No. 9 filed on March 6, 2001, Amendment No. 10 filed on August 7, 2001, Amendment No. 11 filed on March 1, 2002, Amendment No. 12 filed on March 27, 2002, Amendment No. 13 filed on May 14, 2002, Amendment No. 14 filed on June 26, 2002, Amendment No. 15 filed on August 21, 2002, Amendment No. 16 filed on April 9, 2003, Amendment No. 17 filed on April 29, 2003, Amendment No. 18 filed on August 5, 2003, Amendment No. 19 filed on February 16, 2004, Amendment No. 20 filed on January 31, 2006 and Amendment No. 21 filed on March 9, 2006 (the “Schedule 13D”), relating to the Voting Common Stock, par value $0.0001 per share (the “Voting Common Stock”), of United Auto Group, Inc., a Delaware corporation (the “Company”). Information reported in the Statement remains in effect except to the extent that is amended, restated or superseded by information contained in this Amendment No. 22 or a prior amendment. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13D.
          This Amendment reflects the following events:
  §   On June 1, 2006, the Company effected a two-for-one split of its Voting Common Stock. All information herein reflects the stock split.
 
  §   On September 8, 2006, James A. Hislop resigned as managing member of PCP.
 
  §   On September 11, 2006, IMCG II distributed 64,430 shares of Voting Common Stock to its managing member PCP in accordance with the terms of IMCGII’s limited liability company agreement, and IMCG I distributed 13,112,140 shares of Voting Common Stock to its member PCP Holdings, Inc., a wholly owned subsidiary of Penske Corporation, and 2,073,446 shares to its managing member PCP, in each case in accordance with the terms of IMCGI’s limited liability company agreement. On September 14, 2006, PCP in turn distributed the shares of Voting Common Stock it received from IMCGI and IMCGII to PCP’s members in accordance with the terms of the terms of PCP’s limited liability company agreement. In the distribution by PCP, James A. Hislop received 484,552 shares of Voting Common Stock and Roger S. Penske, the managing member of PCP, received 329,495 shares of Voting Common Stock. The shares of Voting Common Stock received by each PCP, James A. Hislop, Roger S. Penske and Penske Corporation pursuant to the above-described distributions were all previously reported as beneficially owned by PCP, James A. Hislop, Roger S. Penske and Penske Corporation, respectively.

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  §   On September 14, 2006, James A. Hislop entered into a purchase and sale agreement with Mitsui & Co. (U.S.A.), Inc. and Mitsui & Co., Ltd. (collectively, “Mitsui”) pursuant to which he sold 484,552 shares of Voting Common Stock to Mitsui at a cash price of $10,146,500 in the aggregate.
 
  §   On September 14, 2006, Penske Corporation entered into purchase and sale agreements with various persons pursuant to which Penske Corporation acquired from those persons, 492,185 shares of Voting Common Stock in exchange for newly-issued shares of common stock of Penske Corporation valued by Penske Corporation at $10,309,000, in the aggregate.
     Item 3. Source and Amount of Funds or Other Consideration.
          The 492,185 shares of Voting Common Stock of the Company acquired by Penske Corporation were acquired in exchange for newly-issued shares of Penske Corporation common stock valued by Penske Corporation at $10,309,000, in the aggregate.
     Item 5. Interest in Securities of the Issuer.
          Based on information provided by the Company, there were 94,433,455 shares of Voting Common Stock outstanding as of August 2, 2006. Based on this amount outstanding:
          (a) As of September 14, 2006:
  §   IMCG I beneficially owns no shares of Voting Common Stock;
 
  §   IMCGII beneficially owns 64,550 shares of Voting Common Stock, representing less than 1% of the Voting Common Stock outstanding.
 
  §   PCP beneficially owns 64,550 shares of Voting Common Stock, representing less than 1% of the Voting Common Stock outstanding.
 
  §   James A. Hislop beneficially owns 318,874 shares of Voting Common Stock, representing less than 1% of the Voting Common Stock outstanding.
 
  §   Penske Corporation beneficially owns 36,969,650 shares of Voting Common Stock, representing 39.1% of the Voting Common Stock outstanding;
 
  §   Roger S. Penske beneficially owns 37,527,167 shares of Voting Common Stock, representing 39.7% of the Voting Common Stock outstanding;
          (b) As of September 14, 2006:
  §   IMCGII and PCP each have shared power to direct the vote of 64,550 shares of Voting Common Stock.

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  §   James A. Hislop has the shared power to direct the vote of 314,874 shares of Voting Common Stock and the sole power to direct the vote of 4,000 shares of voting common stock.
 
  §   Penske Corporation has the shared power to direct the vote of 36,969,650 shares of Voting Common Stock;
 
  §   Roger S. Penske has the sole power to direct the vote of 492,967 shares of Voting Common Stock and shared power to direct the vote of 37,034,200 shares of Voting Common Stock; and
     As of September 14, 2006:
  §   IMCGII and PCP each have shared power to direct the disposition of 64,550 shares of Voting Common Stock
 
  §   James A. Hislop has the sole power to direct the disposition of 318,874 shares of Voting Common Stock.
 
  §   Penske Corporation has the shared power to direct the disposition of 36,112,044 shares of Voting Common Stock;
 
  §   Roger S. Penske has the sole power to direct the disposition of 707,081 shares of Voting Common Stock and shared power to direct the disposition of 36,176,594 shares of Voting Common Stock.
     (c)
  §   On September 11, 2006, IMCG II distributed 64,430 shares of Voting Common Stock to its managing member PCP in accordance with the terms of IMCGII’s limited liability company agreement, and IMCG I distributed 13,112,140 shares of Voting Common Stock to its member PCP Holdings, Inc., a wholly owned subsidiary of Penske Corporation, and 2,073,446 shares to its managing member PCP, in each case in accordance with the terms of IMCGI’s limited liability company agreement. On September 14, 2006, PCP in turn distributed the shares of Voting Common Stock it received from IMCGI and IMCGII to PCP’s members in accordance with the terms of the terms of PCP’s limited liability company agreement. In the distribution by PCP, James A. Hislop received 484,552 shares of Voting Common Stock and Roger S. Penske, the managing member of PCP, received 329,495 shares of Voting Common Stock. The shares of Voting Common Stock received by each PCP, James A. Hislop, Roger S. Penske and Penske Corporation pursuant to the above-described distributions were all previously reported as beneficially owned by PCP, James A. Hislop, Roger S. Penske and Penske Corporation, respectively.
 
  §   On September 14, 2006, James A. Hislop sold 484,552 shares of Voting Common Stock to Mitsui at a cash price of $10,146,500, in the aggregate.

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  §   On September 14, 2006, Penske Corporation acquired 492,185 shares of Voting Common Stock in exchange for newly-issued shares of common stock of Penske Corporation valued by Penske Corporation at $10,309,000, in the aggregate.
(e) As of September 8, 2006, upon his resignation as a managing member of PCP, James A. Hislop ceased to be the beneficial owner of more than 5% of the shares of the Company’s Voting Common Stock. As of September 11, 2006, IMCGI, ceased to be the beneficial owner of more than 5% of the shares of the Company’s Voting Common Stock.
  §   The Sale Agreements filed as exhibits 43 and 44 to this form are incorporated by reference into this item.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
  §   On September 14, 2006, Penske Corporation entered into purchase and sale agreements with various persons pursuant to which Penske Corporation acquired from those persons, 492,185 shares of Voting Common Stock in exchange for newly-issued shares of common stock of Penske Corporation valued by Penske Corporation at $10,309,000, in the aggregate. These purchase and sale agreements are substantially identical to the purchase and sale agreement filed as Exhibit 43 hereto.
 
  §   On September 14, 2006, James A. Hislop entered into a purchase and sale agreement with Mitsui pursuant to which he sold 484,552 shares of Voting Common Stock to Mitsui at a cash price of $10,146,500, in the aggregate. This purchase and sale agreement is filed as Exhibit 44 hereto and incorporated herein by reference.
Item 7. Material to be filed as Exhibits.
     
Exhibit 43
  Form of Purchase and Sale Agreement, dated September 14, 2006, between Penske Corporation and the Seller thereunder
 
    
Exhibit 44
  Purchase and Sale Agreement, dated September 14, 2006, among Mitsui & Co. (U.S.A.), Inc., Mitsui & Co., Ltd., Penske Corporation and James A. Hislop

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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.
September 14, 2006
                     
    INTERNATIONAL MOTOR CARS GROUP I, L.L.C.    
 
                    
        By:   PENSKE CAPITAL PARTNERS, L.L.C.
Its Managing Member		    
 
                    
 
          By:   /s/ Roger S. Penske    
 
                   
 
              Roger S. Penske
Managing Member		    

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          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.
September 14, 2006
                     
    INTERNATIONAL MOTOR CARS GROUP II, L.L.C.    
 
                    
        By:   PENSKE CAPITAL PARTNERS, L.L.C. Its Managing Member    
 
                    
 
          By:   /s/ Roger S. Penske    
 
                   
 
              Roger S. Penske
Managing Member		    

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          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.
September 14, 2006
             
    PENSKE CAPITAL PARTNERS, L.L.C.
 
            
 
      By:   /s/ Roger S. Penske
 
           
 
          Roger S. Penske
Managing Member

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          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.
September 14, 2006
         
     
  /s/ James A. Hislop    
  James A. Hislop   
     

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          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.
September 14, 2006
         
     
  /s/ Roger S. Penske    
  Roger S. Penske   
     

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          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.
September 14, 2006
                 
    PENSKE CORPORATION    
 
                
 
      By:   /s/ Robert H. Kurnick, Jr.    
 
               
 
          Name: Robert H. Kurnick, Jr.    
 
          Title: President    

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EX-99.43 2 k08445exv99w43.htm FORM OF PURCHASE AND SALE AGREEMENT, DATED 9/14/2006 exv99w43
 

Exhibit 43
PURCHASE AGREEMENT
by and between
PENSKE CORPORATION
and
[Seller]
dated as of
September 14, 2006

 

 

             
ARTICLE I
 
            
SALE AND PURCHASE OF SECURITIES
 
            
Section 1.1
  The Purchase     1  
Section 1.2
  Purchase Price     1  
Section 1.3
  The Closing     1  
Section 1.4
  Payment and Payment Instructions     2  
Section 1.5
  Actions at the Closing     2  
Section 1.6
  Legend     2  
 
            
ARTICLE II
 
            
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
 
            
Section 2.1
  Power and Authority     3  
Section 2.2
  Enforceability of the Agreement     3  
Section 2.3
  No Conflict     3  
Section 2.4
  Consents     3  
Section 2.5
  Title to Shares     4  
Section 2.6
  Stock     4  
 
            
ARTICLE III
 
            
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASER
 
            
Section 3.1
  Representations and Warranties of the Purchaser     5  
 
            
ARTICLE IV
 
            
CONDITIONS
 
            
Section 4.1
  Conditions to Obligations of the Purchaser     6  
Section 4.2
  Conditions to Obligations of the Seller     7  
 
            
ARTICLE V
 
            
TERMINATION
Section 5.1
  Termination prior to Closing     7  
Section 5.2
  Effects of Termination     8  
Section 5.3
  Survival of Representations     8  

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ARTICLE VI
 
            
MISCELLANEOUS
 
            
Section 6.1
  Notices     8  
Section 6.2
  Amendments and Waivers     9  
Section 6.3
  Successors and Assigns     9  
Section 6.4
  Entire Agreement     9  
Section 6.5
  Governing Law     9  
Section 6.6
  Submission to Jurisdiction     9  
Section 6.7
  Counterparts     10  
Section 6.8
  Severability     10  
Section 6.9
  Specific Performance     10  
Section 6.10
  Further Assurances     10  
Section 6.11
  Expenses     10  
 
            
ARTICLE VII
 
            
DEFINITIONS
 
            
Section 7.1
  Definitions     10  

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PURCHASE AGREEMENT
     This PURCHASE AGREEMENT (the “Agreement”) dated as of September 14, 2006 is by and between PENSKE CORPORATION, a Delaware corporation (the “Purchaser” or “Penske”), and [Seller], having an address on the signature page (the “Seller”).
RECITALS
     WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller, one-half of the shares of Common Stock, par value $0.0001 per share, of United Auto Group, Inc., a Delaware corporation (the “Company”) (the “Shares) that are to be distributed to Seller in Seller’s capacity as a member of Penske Associates, LLC, a Delaware limited liability company (“Associates”) in September, 2006 (the “Distribution”), for a purchase price determined in accordance with this Agreement;
     NOW, THEREFORE, in consideration of the mutual promises and of the mutual covenants, representations and warranties 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
     Section 1.1 The Purchase. At the Closing, subject to the terms and conditions hereof, the Purchaser shall purchase from the Seller, and the Seller shall sell to Purchaser one-half of the shares of Common Stock of the Company received by the Seller in the Distribution (the “Securities”) at a purchase price per share and an aggregate purchase price determined in accordance with Section 1.2 (the “Purchase Price”) payable at the Closing (the “Purchase”).
     Section 1.2 Purchase Price. The purchase price of each Share shall be the average of the daily closing sales prices of the Common Stock of the Company for the twenty (20) consecutive trading days as reported on the New York Stock Exchange immediately preceding September 12, 2006 (the “Current Market Value”). The aggregate purchase price shall be the amount determined by multiplying the number of shares of Common Stock of the Company being sold to the Purchaser by the Current Market Value (the “Aggregate Purchase Price”).

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     Section 1.3 The Closing. The closing of the sale and purchase of the Securities (the “Closing”) shall take place at the offices of Penske Corporation, 2555 Telegraph Road, Bloomfield Hills, Michigan, at 9:00 a.m., New York time, as soon as practicable, but in any event not earlier than September 12, 2006 nor later than five Business Days thereafter, and, in any event, only upon the satisfaction or waiver of the conditions contained in Article IV, unless the parties otherwise agree in writing (the “Closing Date”).
     Section 1.4 Payment and Payment Instructions. The Seller shall receive the Purchase Price from the Purchaser at the Closing in the form of that number of shares of Penske Corporation Class C Non-voting common stock ($.01 par value) (the “Stock”) resulting from the following fraction:
Aggregate Purchase Price
Fair Market Price of a share of the Stock
     No fractional shares of the Stock shall be issued. The Seller shall receive in cash the value of the fractional share of the Stock based upon the Fair Market Price of a single share of the Stock.
     Section 1.5 Actions at the Closing. At the Closing, the following actions shall occur (the “Closing Actions”):
     (a) The Seller shall deliver to the Purchaser the Securities, free and clear of liens and encumbrances thereon.
     (b) The Purchaser shall pay the Aggregate Purchase Price to the Seller by good check and the shares of the Stock determined in accordance with Section 1.4 within three (3) Business Days of the Closing.
     Section 1.6 Legend.
     (a) The parties hereby acknowledge and agree that each of the certificates representing the Securities and the Stock shall include the following legend and any other legend required by law:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
     (b) The requirement that the above securities legend be placed upon certificates evidencing shares of the Stock shall cease and terminate upon the earliest of the following events: (i) when such shares are transferred in an underwritten public offering, (ii) when such shares are transferred pursuant to

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Rule 144 in compliance with the Securities Act or (iii) when such shares are transferred in any other transaction if the seller delivers to Penske, if applicable, an opinion of its counsel, which counsel and opinion shall be reasonably satisfactory to the Company, or a “no-action” letter from the staff of the Securities and Exchange Commission, in either case to the effect that such legend is no longer necessary in order to protect Penske, if applicable, against a violation by it of the Securities Act upon any sale or other disposition of such shares without registration thereunder. Upon the consummation of any event requiring the removal of a legend hereunder, Penske, if applicable, upon the surrender of certificates containing such legend, shall, at its own expense, deliver to the holder of any such shares as to which the requirement for such legend shall have terminated, one or more new certificates evidencing such shares not bearing such legend.
ARTICLE II
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
     The Seller hereby represents and warrants to the Purchaser as follows as of the date hereof and as of the Closing Date:
     Section 2.1 Power and Authority. The Seller has the power and authority to enter and deliver this Agreement, to perform his/her obligations hereunder and carry out the transactions contemplated by the Agreement.
     Section 2.2 Enforceability of the Agreement. The Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller, in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally.
     Section 2.3 No Conflict. The execution, delivery and performance by the Seller of the Agreement and the consummation by the Seller of the transactions contemplated hereby and thereby, and the sale and delivery by the Seller of the Securities will not (a) violate any provision of law, statute, rule or regulation (including stock exchange rules), or any ruling, writ, injunction, order, judgment or decree of any court, administrative agency or other governmental body applicable to the Seller or any of its properties or assets, or (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 the Seller, or result in the creation of any mortgage, lien, security interest, loan, charge or encumbrance, upon any of the properties or assets of the Seller.
     Section 2.4 Consents. No permit, authorization, consent or approval of or by, or any notification of or filing of the Seller with any person (governmental or private) is required in connection with the execution and delivery by the Seller of the Agreement or any documentation relating thereto, the consummation by the Seller of the transactions contemplated hereby or thereby, or the sale or delivery of the Securities.

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     Section 2.5 Title to Shares. Upon delivery of the Securities as provided in Section 1.4, the Securities will be duly authorized and validly issued, and the Purchaser will acquire good and valid title to the Securities, free and clear of any encumbrances and liens. The Securities shall be fully paid and non-assessable.
     Section 2.6 Stock. The Seller is acquiring the Stock for his/her own account, for investment and not with a view to the distribution thereof within the meaning of the Securities Act and the Seller has no contract, understanding, agreement or arrangement with any person to transfer to such person or any other person any of the Stock, and the Seller has no present intention to enter into any such contract, understanding, agreement or arrangement. The Seller understands that (i) the Stock has not been registered under the Securities Act or any state securities laws, (ii) the Stock may not be sold unless such disposition is registered under the Securities Act and applicable state securities law or is exempt from registration and/or regulation thereunder as the case may be and (iii) that the availability of the exemptions relied upon by Penske in issuing the Stock is dependent, in part, upon the truth of the representations and warranties made by the Seller in this Agreement. The Seller is an “Accredited Investor” (as defined in Rule 501(a) under the Securities Act).
     The Seller (1) is thoroughly familiar with the business of Penske, (2) is knowledgeable and experienced with respect to the financial, tax and business aspects relating to the ownership of the Stock, (3) is familiar with the risks associated with the business and operations of Penske, (4) has made all investigations that the Seller deems necessary or desirable in connection with its investment, (5) has had an opportunity to discuss Penske’s business, management, and financial projections with representatives of Penske and to ask questions of and receive answers regarding the terms and conditions of the transactions contemplated hereby, (6) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in Penske, and (7) has the ability to bear the economic risks of its investment in Penske for an indefinite period of time, including the risk of a complete loss of its investment.
     The Seller understands that that the shares of Stock are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Seller must hold the shares of Stock indefinitely unless they are registered with the Securities and Exchange Commission and qualified by the state authorities (unless an exemption from such registration and qualification requirements is available) and Penske is under no obligation (and has no intention) to register the Stock under any circumstances or to attempt to make available any exemption from registration under the Act or any applicable state securities law, at the Seller’s expense or otherwise.

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     The Seller acknowledges that (1) if an exemption from registration or qualification is available, it may be conditioned on various requirements, including but not limited to the availability of current public information about Penske, the time and manner of the sale, and on requirements relating to Penske that are outside of the Seller’s control; and (2) Penske is not presently subject, and may never be subject, to the reporting requirements of the Securities Exchange Act of 1934, as amended, to the extent required to enable the Seller to sell its shares of Stock pursuant to Rule 144 under the Act.
     The Seller understands that no public market now exists for any of the securities issued by Penske, and that Penske has made no assurances that a public market will ever exist for the Stock.
     The Seller is relying solely on its own conclusions or the advice of its own counsel or advisors with respect to the tax aspects of its investment in Penske.
ARTICLE III
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASER
     Section 3.1 Representations and Warranties of the Purchaser. Purchaser represents and warrants to the Seller as of the date hereof and as of the Closing Date as follows:
     (a) Such Purchaser is acquiring Securities for its own account, for investment and not with a view to the distribution thereof within the meaning of the Securities Act.
     (b) Such Purchaser understands that (i) the Securities have not been registered under the Securities Act or any state securities laws, and (ii) the Securities may not be sold unless such disposition is registered under the Securities Act and applicable state securities laws or is exempt from registration and/or regulation thereunder as the case may be.
     (c) Such Purchaser is an “Accredited Investor” (as defined in Rule 501(a) under the Securities Act).
     (d) Such Purchaser is duly organized and validly existing under the laws of the jurisdiction of its organization and has all power and authority to enter into this Agreement.

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     (e) The execution and delivery of this Agreement has been duly authorized by all requisite corporate action on the part of such Purchaser, and the Agreement constitutes a legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser, in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally.
     (f) The execution, delivery and performance by such Purchaser of the Agreement and the consummation by such Purchaser of the transactions contemplated thereby 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, or (b) violate the certificate of incorporation or the bylaws of such Purchaser.
     (g) Upon delivery of the Stock as provided in Section 1.4, the Stock will be duly authorized and validly issued, and the Seller will acquire good and valid title to the Stock, free and clear of any encumbrances and liens. The Stock shall be fully paid and non-assessable.
ARTICLE IV
CONDITIONS
     Section 4.1 Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions:
     (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing;
     (b) Each of the representations and warranties of the Seller contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date);
     (c) Associates shall have authorized and approved the distribution, and have distributed, the Securities to the Seller and Associates shall have delivered to the Purchaser a certificate, dated the Closing Date and signed by Associates to the effect set forth in this Section 4.1(c); and

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     (d) Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc. (the “Mitsui Parties”) have closed the transaction with the Seller, and all other sellers who have contracted with the Mitsui Parties to do so, contemplated by that Purchase Agreement with the Seller dated as of the date of this Agreement (the “Mitsui Purchase Agreement”).
     Section 4.2 Conditions to Obligations of the Seller. The obligation of the Seller to consummate the Purchase shall be subject to the satisfaction or waiver at or prior to the Closing of each of the following conditions:
     (a) Each of the representations and warranties of the Purchaser contained in this Agreement shall be true and correct as of Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date);
     (b) The Purchaser in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; and
     (c) The Purchaser shall have delivered to the Seller a certificate dated the Closing Date and signed by such Purchaser to the effect that the execution, delivery and performance of the Agreement has been duly authorized by all requisite corporate action on the part of such Purchaser and the Agreement constitutes a legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser, in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally;
ARTICLE V
TERMINATION
     Section 5.1 Termination prior to Closing. This Agreement may be terminated at any time prior to the Closing upon written notice of such termination by the terminating party to the other party setting forth the basis for such termination:
     (a) by mutual written consent of the Seller and the Purchaser; or
     (b) by either the Purchaser or the Seller if any of the applicable conditions set forth in Article IV have not been satisfied or waived on or before September 15, 2006;

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     (c) by either the Purchaser or the Seller if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued a nonappealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; or
     (d) by the Purchaser or the Seller, (i) if any representation or warranty of the other set forth in this Agreement shall be untrue in any material respect when made to the extent that such first party did not have actual knowledge of such breach as of the date of this Agreement, or (ii) upon a breach in any material respect of any covenant or agreement on the part of the other set forth in this Agreement, in each case which would constitute a failure of the condition to Closing of the first party.
     Section 5.2 Effects of Termination. In the event of termination of this Agreement pursuant to Section 5.1, this Agreement shall become void and have no effect, without any liability to any person in respect hereof, except for any liability resulting from such party’s breach of this Agreement.
     Section 5.3 Survival of Representations. The representations and warranties made in this Agreement shall survive for a period ending eighteen months after Closing, provided that the representation and warranties of the Seller set forth in Section 2.5 and the representation and warranties of the Purchaser set forth in Section 3.1(g) shall survive without limitation.

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ARTICLE VI
MISCELLANEOUS
     Section 6.1 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 the Seller, to the address for Seller listed on the signature page.
with a copy to:
Penske Corporation
2555 Telegraph Road
Bloomfield Hills, Michigan 48302-0954
Attention: General Counsel
     (ii) if to the Purchaser, to:
Penske Corporation
2555 Telegraph Road
Bloomfield Hills, MI 48302
Attention: Executive Vice President and General Counsel
All such notices, requests, consents and other communications shall be deemed to have been given when received.
     Section 6.2 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.
     Section 6.3 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 the personal representatives and assigns of the parties hereto, whether so expressed or not.
     Section 6.4 Entire Agreement. This Agreement (with the documents referred to herein or delivered pursuant hereto and together with the Agreement) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.
     Section 6.5 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 conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction.
     Section 6.6 Submission to Jurisdiction. Each of the Seller and the Purchaser hereby (i) irrevocably submit 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, and (ii) agrees that service of any process, summons or notice by international courier to the address set forth in Section 6.1 shall be effective service of process for any action or proceeding brought against it in any such court.

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     Section 6.7 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.
     Section 6.8 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.
     Section 6.9 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.
     Section 6.10 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 (including, without limitation, the agreements, certificates, instruments and documents contemplated by Article IV) 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.
     Section 6.11 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.
ARTICLE VII
DEFINITIONS
     Section 7.1 Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings specified below:
     “Aggregate Purchase Price” has the meaning set forth in Section 1.2.
     “Associates” has the meaning set forth in Section 4.1(c).

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     “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 or Tokyo, Japan.
     “Closing” has the meaning set forth in Section 1.3.
     “Closing Actions” has the meaning set forth in Section 1.5.
     “Closing Date” has the meaning set forth in Section 1.3.
     “Common Stock” means the 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 preamble.
     “Current Market Value” has the meaning set forth in Section 1.2.
     “Exchange Act” means the Securities Exchange Act of 1934, as amended.
     “Fair Market Price” means the price that Penske Corporation has most recently advised the Penske Corporation Deferred Profit Sharing Plan corporate trustee in writing that Penske Corporation shall be willing to purchase the Stock from that Plan.
     “Mitsui Parties” has the meaning set forth in Section 4.1(d).
     “Mitsui Purchase Agreement” has the meaning set forth in Section 4.1(d).
     “Penske” shall mean Penske Corporation, a Delaware corporation.
     “Purchase” has the meaning set forth in Section 1.1.
     “Purchase Price” shall have the meaning set forth in Section 1.1.
     “Securities” has the meaning set forth in Section 1.1.
     “Securities Act” means the Securities Act of 1933, as amended.
     “Stock” has the meaning set forth in Section 1.4.

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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
             
    SELLER:    
 
            
    /s/ Seller    
         
 
       Name    
 
            
 
  By:        
 
           
 
            
 
  Title:  
 
           
 
            
 
            
    PURCHASER:    
 
            
    PENSKE CORPORATION    
 
            
 
  By:   /s/ Robert H. Kurnick, Jr.    
 
           
 
      Robert H. Kurnick, Jr.    
 
      President    
 
            
 
            
 
      SELLER’s address:    
 
            
 
      2555 Telegraph Road
Bloomfield Hills, MI 48302		    

12

EX-99.44 3 k08445exv99w44.htm PURCHASE AND SALE AGREEMENT, DATED 9/14/2006 exv99w44
 

Exhibit 44
PURCHASE AGREEMENT
by and among
MITSUI & CO., LTD.,
MITSUI & CO. (U.S.A.), INC.,
JAMES HISLOP
and
PENSKE CORPORATION
dated as of
September 14, 2006

 

 

TABLE OF CONTENTS
             
        Page
ARTICLE I
 
            
SALE AND PURCHASE OF SECURITIES
 
            
Section 1.1
  The Purchase     1  
Section 1.2
  Purchase Price     2  
Section 1.3
  The Closing     2  
Section 1.4
  Payment Instructions     2  
Section 1.5
  Actions at the Closing     2  
Section 1.6
  Legend     3  
 
            
ARTICLE II
 
            
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
 
            
Section 2.1
  Status     3  
Section 2.2
  Power and Authority     4  
Section 2.3
  Enforceability of this Agreement     4  
Section 2.4
  No Conflict     4  
Section 2.5
  Consents     5  
Section 2.6
  Title to Shares; “Big Boy” Representation     5  
Section 2.7
  Taxes     5  
ARTICLE III
 
            
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASERS
 
            
Section 3.1
  Representations and Warranties of the Purchasers     6  
 
            
ARTICLE IV
 
            
REPRESENTATIONS AND WARRANTIES
 
            
Section 4.1
  Intentionally deleted     7  
 
            
ARTICLE V
 
            
CONDITIONS
Section 5.1
  Conditions to Obligations of the Purchasers     7  
Section 5.2
  Conditions to Obligations of the Seller     9  

 

 

             
        Page
ARTICLE VI
 
            
TERMINATION
 
            
Section 6.1
  Termination prior to Closing     9  
Section 6.2
  Effects of Termination     10  
Section 6.3
  Survival of Representations     10  
 
            
ARTICLE VII
 
            
MISCELLANEOUS
 
            
Section 7.1
  Notices     10  
Section 7.2
  Amendments and Waivers     11  
Section 7.3
  Successors and Assigns     12  
Section 7.4
  Entire Agreement     12  
Section 7.5
  Governing Law     12  
Section 7.6
  Submission to Jurisdiction     12  
Section 7.7
  Counterparts     12  
Section 7.8
  Severability     12  
Section 7.9
  Specific Performance     13  
Section 7.10
  Further Assurances     13  
Section 7.11
  Expenses     13  
 
            
ARTICLE VIII
 
            
DEFINITIONS
 
            
Section 8.1
  Definitions     13  

ii

 

PURCHASE AGREEMENT
     This PURCHASE AGREEMENT (the “Agreement”) dated as of September 14, 2006 is by and among 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, each individually, a “Purchaser”, and together, the “Purchasers”), JAMES HISLOP (the “Seller”), and PENSKE CORPORATION, a Delaware corporation, as paying agent (the “Paying Agent”). Capitalized terms used in this Agreement are defined in Section 8.1.
RECITALS
     WHEREAS, the Seller desires to sell to the Purchasers, and the Purchasers desire to purchase from the Seller, all of the Common Stock, par value $0.0001 per share, of United Auto Group, Inc., a Delaware corporation (the “Company”), that is to be distributed to Seller in Seller’s capacity as a member of Penske Capital Partners, L.L.C., a Delaware limited liability company (“PCP”), of which Penske Associates, L.L.C., a Delaware limited liability company (“Associates”) is a member, in September 2006 (the “Distribution”), for a purchase price determined in accordance with this Agreement;
     WHEREAS, a number of other sellers desire to sell to the Purchasers, and the Purchasers desire to purchase from such sellers, shares of Common Stock of the Company pursuant to certain separate purchase agreements (the “Other Purchase Agreements”).
     WHEREAS, Penske Corporation (“Penske”) and the Seller desire to enter, simultaneously to this Agreement, into a certain purchase agreement, dated as of the date of this Agreement (the “Penske Purchase Agreement”), pursuant to which the Seller will sell to Penske and Penske will purchase from the Seller a certain number of Securities at a purchase price equal to the Purchase Price, and to close, simultaneously to the transaction contemplated by this Agreement, the transaction contemplated by the Penske Purchase Agreement.
     NOW, THEREFORE, in consideration of the mutual promises and of the mutual covenants, representations and warranties 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
     Section 1.1 The Purchase. At the Closing, subject to the terms and conditions hereof, the Seller shall sell to Purchasers all of the Common Stock received by Seller in the Distribution, of which (a) 80% shall be sold to Mitsui Japan (the “Mitsui Japan Securities”)

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     Section 1.2 at a purchase price per share determined in accordance with Section 1.2 (the “Mitsui Japan Purchase Price”) payable to the Paying Agent at the Closing (the “Mitsui Japan Purchase”), and (b) 20% shall be sold to Mitsui USA (the “Mitsui USA Securities” and, together with the Mitsui Japan Securities, the “Securities”) at a purchase price per share determined in accordance with Section 1.2 (the “Mitsui USA Purchase Price” and, together with the Mitsui Japan Purchase Price, the “Purchase Price”) payable to the Paying Agent at the Closing (the “Mitsui USA Purchase” and, together with the Mitsui Japan Purchase, the “Purchase”).
     Section 1.3 Purchase Price. The purchase price of each share shall be the average of the daily closing sales prices of the Common Stock of the Company for the twenty (20) consecutive trading days as reported on the New York Stock Exchange immediately preceding September 12, 2006 (the “Current Market Value”). The Purchase Price shall be the amount determined by multiplying the number of Securities by the Current Market Value.
     Section 1.4 The Closing. The closing of the sale and purchase of the Securities (the “Closing”) shall take place at the offices of Penske Corporation, 2555 Telegraph Road, Bloomfield Hills, Michigan, at 9:00 a.m., Michigan time, as soon as practicable, but in any event not earlier than September 12, 2006 nor later than five Business Days thereafter and, in any event, only upon the satisfaction or waiver of the conditions contained in Article V, unless the parties otherwise agree in writing (the “Closing Date”).
     Section 1.5 Payment Instructions. At the Closing, the Purchasers shall deliver funds in the amount equal to the Purchase Price to the Paying Agent pursuant to Sections 1.5(c) and 1.5(d) by wire transfer to the Paying Agent Account. For the avoidance of doubt, the Purchasers shall have fully satisfied their obligations hereunder to pay the Purchase Price upon delivery of the Purchase Price to the Paying Agent.
     Section 1.6 Actions at the Closing. At the Closing, the following actions shall occur (the “Closing Actions”):
     (a) The Seller shall deliver, or cause to be delivered, to Mitsui Japan the Mitsui Japan Securities sold hereunder by the Seller, evidenced by a stock certificate in the name of Mitsui Japan, duly endorsed for transfer or accompanied by duly executed stock powers or other instruments of transfer duly executed, or in an electronic format acceptable to the Purchasers, and bearing or accompanied by all requisite stock transfer stamps. The Mitsui Japan Securities are delivered free and clear of all Liens, encumbrances, options and claims thereon.
     (b) The Seller shall deliver, or cause to be delivered, to Mitsui USA the Mitsui USA Securities sold hereunder by the Seller, evidenced by a stock certificate in the name of Mitsui USA, duly endorsed for transfer or accompanied by duly executed stock powers or other instruments of transfer duly executed or in

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an electronic format acceptable to the Purchasers, and bearing or accompanied by all requisite stock transfer stamps. The Mitsui USA Securities are delivered free and clear of all Liens, encumbrances, options and claims thereon.
     (c) Mitsui Japan shall pay the Mitsui Japan Purchase Price to the Paying Agent. The Mitsui Japan Purchase Price is to be held by the Paying Agent in the name of Mitsui Japan and shall be released to the account of the Seller, who delivered, or caused to be delivered, Mitsui Japan Securities in accordance with Section 1.5(a), if, and only if, the stock certificate representing the Mitsui Japan Securities has been duly and validly delivered to Mitsui Japan in accordance with Section 1.5(a).
     (d) Mitsui USA shall pay the Mitsui USA Purchase Price to the Paying Agent. The Mitsui USA Purchase Price is to be held by the Paying Agent in the name of Mitsui USA and shall be released to the account of the Seller, who delivered, or caused to be delivered, Mitsui USA Securities in accordance with Section 1.5(b), if, and only if, the stock certificate representing the Mitsui USA Securities has been duly and validly delivered to Mitsui USA in accordance with Section 1.5(b).
     Section 1.7 Legend. The parties hereby acknowledge and agree that each of the certificates representing the Securities shall include the following legend and any other legend required by applicable Laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
ARTICLE II
REPRESENTATIONS & WARRANTIES CONCERNING THE SELLER
     The Seller hereby represents and warrants to each Purchaser as follows as of the date hereof and as of the Closing Date:
     Section 2.1 Status.
     (a) If, and to the extent that, the Seller is a limited liability company (or a corporation), such Seller is a limited liability company (or a corporation) duly organized, validly existing and in good standing under the Laws of Delaware and in any other state or jurisdiction in which it is licensed to do business and has all requisite corporate power

3

 

and authority to carry on its business as now conducted. Such Seller has delivered to Purchasers complete copies of such Seller’s organizational documents as currently in effect, and such Seller is not in violation of any provision of such organizational documents.
     (b) If, and to the extent that, the Seller is a natural person, such Seller is a resident of the state specified in the address set forth on the signature page as of signing, has the legal age, the competence and any other prerequisite required by applicable Laws to enter into, execute, perform and consummate this Agreement and any action required in connection with the execution and delivery by such Seller of this Agreement or any documentation relating thereto, the consummation by such Seller of the transactions contemplated hereby or thereby, or the sale or delivery of the Securities, provided that if Seller moves from such state of residence to another state between the signing and Closing of this Agreement, such Seller shall promptly inform the Purchasers of such change in state of residence.
     (c) If, and to the extent that, the Seller is a married natural person and resides in a so-called “community property” state, the Seller’s spouse has consented to the transactions contemplated by this Agreement.
     Section 2.2 Power and Authority. The Seller has full power and authority to execute and deliver this Agreement, to perform the Seller’s obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by the Seller of this Agreement, the performance of the Seller’s obligations hereunder, and the consummation by the Seller of the transactions contemplated hereby have been duly and validly authorized by all requisite action of the Seller. The Seller has duly executed and delivered this Agreement.
     Section 2.3 Enforceability of this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms.
     Section 2.4 No Conflict. The execution, delivery and performance by the Seller of this Agreement and the consummation by the Seller of the transactions contemplated hereby and thereby, and the sale and delivery by the Seller of the Securities will not (a) violate any provision of any applicable Laws (including stock exchange rules), or any ruling, writ, injunction, order, judgment or decree of any court, administrative agency or other governmental body applicable to the Seller or any of the Seller’s properties or assets, (b) give any governmental body or other Person the right to challenge any of the transactions contemplated by this Agreement, (c) contravene, conflict with, or result in any violation or breach of any 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 to which the Seller is a party, (d) result in the creation of any mortgage, Lien, security interest, loan, charge or encumbrance, upon any of the

4

 

properties or assets of the Seller, (e) require any consent or other action by any Person under any provision of any material agreement or other instrument to which the Seller is a party, or (f) if the Seller is a limited liability company (or a corporation), conflict with or result in any violation or breach of any provision of any of the organizational documents of such Seller or any of its subsidiaries.
     Section 2.5 Consents. No permit, authorization, consent or approval of or by, or any notification of or filing of the Seller with any Person is required in connection with the execution and delivery by the Seller of this Agreement or any documentation relating thereto, the consummation by the Seller of the transactions contemplated hereby or thereby, or the sale or delivery of the Securities that has not been made and obtained as of the date hereof.
     Section 2.6 Title to Shares; “Big Boy” Representation. The Securities have been duly authorized and validly issued and are fully paid and non-assessable. The Seller owns the Securities, legally and beneficially and of record, free and clear of any and all Liens, encumbrances, options and claims. The Seller has the right and authority to sell the Securities. Except as disclosed to the Purchasers in writing prior to the date hereof, the Seller is not an “Affiliate” (as such term is defined under the Securities Act ; and referred to herein as “Affiliate”) of the Company and has not been an Affiliate of the Company during the three months prior to the date hereof. The Seller acknowledges that the Purchasers may possess material information not known to the Seller, including without limitation, information received on a confidential basis or information received on privileged basis from the attorneys and financial advisors representing the Company and/or from the attorneys and financial advisors representing the senior creditors of the Company. The Seller agrees that Purchasers shall have no liability to the Seller with respect to the non-disclosure of any information in Purchasers’ possession relating either directly or indirectly to the financial condition or prospects of the Company or the value of the Securities. Upon delivery of and payment for the Securities at the Closing, the Purchasers will acquire good and valid title to all of the Securities, free and clear of any and all Liens, encumbrances and claims.
     Section 2.7 Taxes.
          (a) All transfer, documentary, sales, use, stamp, registration, value added and other such taxes and fees (including any penalties and interest) incurred in connection with transactions contemplated by this Agreement (including any real property transfer tax and any similar tax) shall be paid by the Seller when due, and the Seller will, at its own expense, file all necessary tax returns and other documentation with respect to all such taxes and fees, and, if required by applicable Laws, each Purchaser will, and will cause its affiliates to, join in the execution of any such tax returns and other documentation.

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          (b) The Securities have not been purchased, held or sold in connection with any transaction required to be reported under section § 1.6011-4 of the Treasury Regulations. The Seller will not be reporting a loss for U.S. federal income tax purposes in connection with the Purchase in excess of fifty (50) % of the Purchase Price.
ARTICLE III
REPRESENTATIONS & WARRANTIES CONCERNING THE PURCHASERS
     Section 3.1 Representations and Warranties of the Purchasers. Each Purchaser represents and warrants to the Seller as of the date hereof and as of the Closing Date as follows:
     (a) Such Purchaser is acquiring Securities for its own account, for investment and not with a view to the distribution thereof within the meaning of the Securities Act.
     (b) Such Purchaser understands that (i) the Securities have not been registered under the Securities Act or any state securities Laws, and (ii) the Securities may not be sold unless such disposition is registered under the Securities Act and applicable state securities Laws or is exempt from registration and/or regulation thereunder as the case may be.
     (c) Such Purchaser is an “Accredited Investor” (as defined in Rule 501(a) under the Securities Act).
     (d) Such Purchaser is duly organized and validly existing under the Laws of the jurisdiction of its organization and has all power and authority to enter into this Agreement.
     (e) The execution and delivery of this Agreement has been duly authorized by all requisite corporate action on the part of such Purchaser, and this Agreement constitutes a legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser, in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar Laws affecting creditors’ rights generally.
     (f) The execution, delivery and performance by such Purchaser of this Agreement and the consummation by such Purchaser of the transactions contemplated thereby will not (a) violate any provision of applicable Laws related to either Purchaser, or any of its properties or assets, or (b) violate the certificate of incorporation or the bylaws of either Purchaser.

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
     Section 4.1 Intentionally deleted
ARTICLE V
CONDITIONS
     Section 5.1 Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions:
     (a) No Injunction, etc. Consummation of the transactions contemplated hereby shall not have been restrained, enjoined or otherwise prohibited or made illegal by any applicable Laws.
     (b) Representations, Performance. The representations and warranties of the Seller and of Penske contained in this Agreement and in any certificate or other writing delivered pursuant hereto or contemporaneously herewith referring to this Agreement shall be true and correct in all respects at and as of the date hereof and at and as of the Closing Date with the same effect as though made at and as of the Closing Date. The Seller shall have in all material respects duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing.
     (c) Consents, Amendments and Approvals. The Purchasers shall have received duly executed and delivered copies of any waivers, consents, terminations and approvals contemplated by this Agreement, all in form and substance reasonably satisfactory to the Purchasers.
     (d) No Litigation, etc. No litigation shall have been filed and be pending, no governmental authority shall have notified the Purchasers or any Seller of its intention to commence, or recommend the commencement of, litigation and no Laws shall have been enacted, entered, enforced, promulgated or issued with respect to or deemed applicable, which in any case seeks or purports to challenge, prohibit, interfere with, limit, delay, restrain, impose damages or other material obligations in connection with or increase the cost of the consummation of the transactions contemplated by this Agreement, including without limitation the acquisition, ownership, voting or disposition by the Purchasers of any Securities.

7

 

     (e) Actions of PCP. PCP shall have authorized and approved the distribution of, and have distributed, the Securities to the Seller. PCP shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by a duly authorized officer to the effect set forth in this Section 5.1(e).
     (f) Officers’ Certificates by Seller. If, and to the extent that, the Seller is a limited liability company (or a corporation), such Seller shall have delivered to the Purchasers a certificate in form and substance reasonably satisfactory to Mitsui, dated the Closing Date and signed by a duly authorized officer to the effect set forth in Section 5.1(b).
     (g) Penske Purchase Agreement. Penske shall have closed the transaction with the Seller and certain other sellers pursuant to which Penske will purchase from the Seller and certain other sellers in the aggregate a certain number of Securities to be purchased by Purchasers under this Agreement and the Other Purchase Agreements at the same price per share as determined in accordance with Section 1.2 and as contemplated by the Penske Purchase Agreement.
     (h) Simultaneous Closing with Other Purchase Agreements. The Purchasers, the Paying Agent and a number of other sellers shall have entered into certain Other Purchase Agreements on the same terms and conditions as contemplated by this Agreement, pursuant to which, in each case, such seller will sell to Purchasers and Purchasers will acquire from such seller a number of Securities, to be determined in accordance with each such Other Purchase Agreement. The Purchasers have closed any and all transactions contemplated by any and all Other Purchase Agreements simultaneously with the Closing of this Agreement, provided that the aggregate consideration to be paid by Purchasers under this Agreement and all Other Purchase Agreements shall not exceed US$33,000,000.
     (i) Certificates and Letters. The Purchasers shall have received from the Company, the Paying Agent and certain other shareholders of the Company such certificates, letters and other information in support of this transaction as the Purchasers may reasonably request, including without limitation duly executed copies of certain side letters, substantially in the form provided by Purchasers, in connection with (i) the Purchase Agreement, dated February 16, 2004, among Mitsui Japan, Mitsui USA, International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Paying Agent, Penske Automotive Holdings Corp. and the Company, (ii) the Stockholders Agreement, dated March 26, 2004, among International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Mitsui Japan, Mitsui USA, Paying Agent and Penske Automotive Holdings Corp., and (iii) the Second Amended and Restated Registration Rights Agreement, dated March 26, 2004, among the Company, Mitsui Japan and Mitsui USA.

8

 

     (j) Legal Opinion. The Seller shall have delivered, or caused to be delivered, to the Purchasers a legal opinion, dated the Closing Date, from counsel reasonably acceptable to Purchasers and in form and substance reasonably satisfactory to Purchasers that the transactions contemplated by this Agreement and the Other Purchase Agreements comply with applicable law, that the Securities may be sold without registration as contemplated herein and such other matters as Purchasers may reasonably request.
     Section 5.2 Conditions to Obligations of the Seller. The obligation of the Seller to consummate the Purchase shall be subject to the satisfaction or waiver at or prior to the Closing of the following condition:
     (a) Representations, Performance. The representations and warranties of the Purchasers contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall be true and correct in all respects at and as of the date hereof and at and as of the Closing Date with the same effect as though made at and as of the Closing Date. The Purchasers shall have in all material respects duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Purchasers at or prior to the Closing.
ARTICLE VI
TERMINATION
     Section 6.1 Termination prior to Closing. This Agreement may be terminated at any time prior to the Closing upon written notice of such termination by the terminating party to the other party setting forth the basis for such termination:
     (a) by mutual written consent of the Seller and the Purchasers;
     (b) (i) by the Purchasers, if any of the applicable conditions set forth in Section 5.1 have not been satisfied or waived on or before September 15, 2006, or (ii) by the Seller, if any of the applicable conditions set forth in Section 5.2 have not been satisfied or waived on or before September 15, 2006; provided, however, that the right to terminate this Agreement pursuant to this Section 6.1(b) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Closing to be consummated by such time;

9

 

     (c) by either the Purchasers or the Seller, if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; or
     (d) by the Purchasers or the Seller, (i) if any representation or warranty of the other set forth in this Agreement shall be untrue in any material respect when made to the extent that such first party did not have actual knowledge of such breach as of the date of this Agreement, or (ii) upon a breach in any material respect of any covenant or agreement on the part of the other set forth in this Agreement, in each case which would constitute a failure of the condition to Closing of the first party.
     Section 6.2 Effects of Termination. In the event of termination of this Agreement pursuant to Section 6.1, this Agreement shall become void and have no effect, without any liability to any Person in respect hereof, except for any liability resulting from such party’s breach of this Agreement.
     Section 6.3 Survival of Representations. The representations and warranties made in this Agreement shall survive for a period ending eighteen months after Closing, provided that the representations and warranties of the Seller set forth in Section 2.6 shall survive without limitation.
ARTICLE VII
MISCELLANEOUS
     Section 7.1 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 the Seller, to the address specified for the Seller on the signature page.
with a copy to:
Penske Corporation
2555 Telegraph Road
Bloomfield Hills, Michigan 48302-0954
Attention: General Counsel

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     (ii) if to the Purchasers, 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.
and
Mitsui & Co. (U.S.A.), Inc.
Detroit Office
1000 Town Center, Suite 1900
Southfield, Michigan 48075
Attention: Detroit Machinery Department
with a copy to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Christopher Smeall and Sarah A. W. Fitts
     (iii) if to Penske or the Paying Agent, to:
Penske Corporation
2555 Telegraph Road
Bloomfield Hills, Michigan 48302-0954
Attention: President
with a copy to:
Penske Corporation
2555 Telegraph Road
Bloomfield Hills, Michigan 48302-0954
Attention: General Counsel
All such notices, requests, consents and other communications shall be deemed to have been given when received.
     Section 7.2 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.

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     Section 7.3 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 the personal representatives and assigns of the parties hereto, whether so expressed or not.
     Section 7.4 Entire Agreement. This Agreement (with the documents referred to herein or delivered pursuant hereto and together with this Agreement and with any documents delivered contemporaneously herewith referring to 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.
     Section 7.5 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 CONFLICTS OF LAW PRINCIPLES THEREOF WHICH MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
     Section 7.6 Submission to Jurisdiction. Each of the Seller and the Purchasers hereby (i) irrevocably submit 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, and (ii) agree that service of any process, summons or notice by international courier to the address set forth in Section 7.1 shall be effective service of process for any action or proceeding brought against it in any such court.
     Section 7.7 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.
     Section 7.8 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.
     Section 7.9 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.

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     Section 7.10 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 (including, without limitation, this Agreement, certificates, instruments and documents contemplated by Article V) 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.
     Section 7.11 Expenses. Each party to this Agreement shall bear its own cost and expenses, including fees of consultant(s), accountant(s), counsel, and any other Person acting on behalf of or for such party.
ARTICLE VIII
DEFINITIONS
     Section 8.1 Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings specified below:
     “Affiliate” has the meaning set forth in Section 2.6.
     “Agreement” has the meaning set forth in the first paragraph.
     “Associates” has the meaning set forth in the first paragraph.
     “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 Laws or other governmental action to close in New York, New York, United States of America or Tokyo, Japan.
     “Closing” has the meaning set forth in Section 1.3.
     “Closing Actions” has the meaning set forth in Section 1.5.
     “Closing Date” has the meaning set forth in Section 1.3.
     “Common Stock” means the 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.
     “Current Market Value” has the meaning set forth in Section 1.2.

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     “Distribution” has the meaning set forth in the Recitals.
     “Laws” means all applicable laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders and decrees, directives or treaties.
     “Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or capital lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).
     “Mitsui Japan” has the meaning set forth in the first paragraph.
     “Mitsui Japan Purchase” has the meaning set forth in Section 1.1.
     “Mitsui Japan Purchase Price” has the meaning set forth in Section 1.1.
     “Mitsui Japan Securities” has the meaning set forth in Section 1.1.
     “Mitsui USA” has the meaning set forth in the first paragraph.
     “Mitsui USA Purchase” has the meaning set forth in Section 1.1.
     “Mitsui USA Purchase Price” has the meaning set forth in Section 1.1.
     “Mitsui USA Securities” has the meaning set forth in Section 1.1.
     “Other Purchase Agreements” has the meaning set forth in the Recitals.
     “Paying Agent” has the meaning set forth in the first paragraph.
     “Paying Agent Account” means the account of the Paying Agent specified below:
         
 
   Bank:   LaSalle Bank, Troy, Michigan
 
   ABA Number:   072000805
 
   Account Name:   Penske Corporation
 
   Account Number:   6871237308
     “PCP” has the meaning set forth in the Recitals.
     “Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

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     “Penske” has the meaning set forth in the Recitals.
     “Penske Purchase Agreement” has the meaning set forth in the Recitals.
     “Purchase” has the meaning set forth in Section 1.1.
     “Purchase Price” has the meaning set forth in Section 1.1.
     “Purchasers” has the meaning set forth in the first paragraph.
     “Securities” has the meaning set forth in Section 1.1.
     “Securities Act” means the Securities Act of 1933, as amended.
     “Seller” has the meaning set forth in the first paragraph.
     “Treasury Regulations” means the regulations prescribed under the Internal Revenue Code of 1986, as amended.
[This Section Intentionally Left Blank]

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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
         
 
  SELLER:    
 
        
 
  /s/ James A. Hislop    
 
       
 
  Name    
 
        
 
        
 
  Wire Transfer Information:    
 
        
 
       
 
        
 
       
 
        
 
       
 
        
 
       
 
        
 
  Address:    
 
        
 
       
 
        
 
       
 
        
 
       
 
        
 
       

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  MITSUI & CO., LTD.
 		  
  By:   /s/ Tatsuo Nakayama    
    Name:   Tatsuo Nakayama   
    Title:   General Manager
First Motor Vehicles Division 		  

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  MITSUI & CO. (U.S.A.), INC.
 		  
  By:   /s/ Kazuki Okamura    
    Name:   Kazuki Okamura   
    Title:   Senior Vice President and
General Manager
Machinery Division 		  

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  PENSKE CORPORATION
 		  
  By:   /s/ Robert H. Kurnick, Jr.    
    Name:   Robert H. Kurnick, Jr.   
    Title:   President   
 

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