-----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, RvOOnJTBfjKwcG3cOrB4cQBUKozBetz+qTeHiXxytm08bmzgcEPEEQddMWPifq1Y ShRV/YGUtYofoFfVsLmREw== 0000950124-06-005340.txt : 20060918 0000950124-06-005340.hdr.sgml : 20060918 20060918164818 ACCESSION NUMBER: 0000950124-06-005340 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20060918 DATE AS OF CHANGE: 20060918 GROUP MEMBERS: MITSUI AND CO. (USA) INC. 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: 061096133 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: MITSUI & CO LTD CENTRAL INDEX KEY: 0000067099 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-METALS, MINERALS (NO PETROLEUM) [5050] IRS NUMBER: 980110185 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2-1 OTEMACHI 1 CHOME STREET 2: CAPITAL FINANCE DEPT CITY: CHIYODA KU TOKYO JAP STATE: M0 ZIP: 00000 MAIL ADDRESS: STREET 1: 2-1 OTEMACHI 1 CHOME STREET 2: CHIYODA-KU TOKYO JAPAN SC 13D/A 1 y08493a5sc13dza.txt AMENDMENT NO. 5 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 AMENDMENT NO. 5 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) MR. FUMIAKI MIYAMOTO, GENERAL MANAGER THE AMERICAS DEPARTMENT FIRST MOTOR VEHICLES DIVISION MACHINERY BUSINESS UNIT MITSUI & CO., LTD. 2-1 OHTEMACHI 1-CHOME, CHIYODA-KU TOKYO, JAPAN (PHONE) + 81-3-3285-4394 MR. SHIGEO ENOMOTO, GENERAL MANAGER DETROIT MACHINERY DEPARTMENT MACHINERY DIVISION MITSUI & CO. (U.S.A.), INC. DETROIT OFFICE 1000 TOWN CENTER, SUITE 1900 SOUTHFIELD, MI 48075 (PHONE) 248-948-4171 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: EZRA BORUT DEBEVOISE & PLIMPTON LLP 919 THIRD AVENUE NEW YORK, NY 10022 (212) 909-6000 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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). (Continued on following pages) SCHEDULE 13D CUSIP NO. 909440 10 9 - -------------------------------------------------------------------------------- (1) NAME OF REPORTING PERSON Mitsui & Co., Ltd. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 98-0110185 - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [X] (B) [ ] - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Japan - -------------------------------------------------------------------------------- (7) SOLE VOTING POWER 0 NUMBER OF ----------------------------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY 15,559,217 (1) OWNED BY ----------------------------------------------------------------- EACH (9) SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ----------------------------------------------------------------- (10) SHARED DISPOSITIVE POWER 15,559,217 (1) - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,559,217 (2) - -------------------------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] (2) - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.5% - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- (1) On June 1, 2006, United Auto Group, Inc. (the "Company") effected a two-for-one split of its voting common stock, par value $0.0001 per share (the "Common Stock"), in the form of a stock dividend. Shareholders of the Company of record as of May 11, 2006 received one additional share for each share then owned. All share and per share information in this Amendment No. 5 to Schedule 13D ("Amendment No. 5") reflects the stock split. (2) To the extent that the parties to the Stockholders Agreement, dated March 26, 2004, by and among the Reporting Persons, International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Penske Corporation and Penske Automotive Holdings Corp. (the "Stockholders Agreement") may be deemed to constitute a "group" within the meaning of Section 13(d) of the Exchange Act, and the Reporting Persons may be deemed to share beneficial ownership of the shares of Common Stock owned by the other stockholder parties to the Stockholders Agreement, the Reporting Persons expressly disclaim beneficial ownership of any shares of Common Stock held by such other parties. CUSIP NO. 909440 10 9 - -------------------------------------------------------------------------------- (1) NAME OF REPORTING PERSON Mitsui & Co. (U.S.A.), Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-2559853 - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [X] (B) [ ] - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- (7) SOLE VOTING POWER 0 NUMBER OF ----------------------------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY 15,559,217 (1) OWNED BY ----------------------------------------------------------------- EACH (9) SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ----------------------------------------------------------------- (10) SHARED DISPOSITIVE POWER 15,559,217 (1) - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,559,217 (2) - -------------------------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] (2) - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.5% - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- (1) On June 1, 2006, the "Company effected a two-for-one split of its Common Stock in the form of a stock dividend. Shareholders of the Company of record as of May 11, 2006 received one additional share for each share then owned. All share and per share information in this Amendment No. 5 reflects the stock split. (2) To the extent that the parties to the Stockholders Agreement may be deemed to constitute a "group" within the meaning of Section 13(d) of the Exchange Act, and the Reporting Persons may be deemed to share beneficial ownership of the shares of Common Stock owned by the other stockholder parties to the Stockholders Agreement, the Reporting Persons expressly disclaim beneficial ownership of any shares of Common Stock held by such other parties. This Amendment No. 5 amends and supplements the statement on Schedule 13D initially filed by the Reporting Persons on April 11, 2003, as amended by Amendment No. 1 filed on April 25, 2003, by Amendment No. 2 filed on February 17, 2004, by Amendment No. 3 filed on March 26, 2004, and by Amendment No. 4 filed on January 27, 2006 (the "Statement"). Information reported in the Statement remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment No. 5. Capitalized terms used and not defined in this Amendment No. 5 shall have the meanings set forth in the Statement. ITEM 2. IDENTITY AND BACKGROUND Item 2 of the Statement is hereby amended and supplemented as follows: Information with respect to the directors and executive officers of the Reporting Persons set forth in Annex A to the Statement is hereby amended and restated in its entirety as set forth in Annex A to this Amendment No. 5, and is incorporated herein by reference. A joint filing agreement has been filed as Exhibit 11 to this Statement pursuant to Rule 13d-1(k) promulgated under the Exchange Act. ITEM 4. PURPOSE OF TRANSACTION Item 4 of the Statement is hereby amended and supplemented as follows: On September 14, 2006, the Reporting Persons completed the acquisition of a total of 1,116,519 shares of Common Stock of the Company for an aggregate purchase price of US$23,379,907.86, or US$20.94 per share. The acquisition of the shares was made pursuant to, and in accordance with the terms and conditions of, the Purchase Agreements (the "Purchase Agreements," and each separately, a "Purchase Agreement"), dated September 14, 2006, by and among the Reporting Persons, the selling shareholder specific to each Purchase Agreement (together, the "Sellers," and each, a "Seller") and Penske Corporation, a Delaware corporation. See also Item 6 to this Amendment No. 5, which is incorporated herein by reference. The shares of Common Stock reported by the Reporting Persons were acquired for the purpose of investment. Prior to entering into the Purchase Agreements, the Reporting Persons owned in the aggregate 14,442,698 shares of Common Stock, which they acquired in negotiated transactions from the Company and from stockholders of the Company. This share number reflects the two-for-one split effected by the Company of its Common Stock on June 1, 2006. Shareholders of the Company of record as of May 11, 2006 received one additional share for each share then owned. All share and per share information in this Amendment No. 5 reflects the stock split. The Reporting Persons may in the future seek to acquire, alone or in conjunction with others, additional shares of Common Stock, through open market purchases, negotiated transactions, tender offer, merger or otherwise. Future purchases will depend on market, business and economic conditions, availability of capital, factors relating to the Company (including the market price of the Common Stock) and other factors that the Reporting Persons may consider relevant. The Reporting Persons may seek at any time to dispose of all or a portion of their shares of Common Stock, through open market transactions, negotiated transactions or otherwise. Future sales will depend on the factors set forth above. There can be no assurance that the Reporting Persons will purchase any additional shares of Common Stock or dispose of any shares of Common Stock. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) The Reporting Persons beneficially own, within the meaning of Rule 13d-3 under the Exchange Act, an aggregate of 15,559,217 shares of Common Stock, after giving effect to the acquisition reported in this Amendment No. 5. The Common Stock owned by the Reporting Persons constitutes approximately 16.5% of the Common Stock issued and outstanding after giving effect to the acquisition reported in this Amendment No. 5, computed on the basis of 94,433,455 shares of Common Stock issued and outstanding as of August 2, 2006 (as set forth in the Company's quarterly report on Form 10-Q for the quarterly period ended June 30, 2006). To the Reporting Persons' knowledge, other persons named in Item 2 do not beneficially own, within the meaning of Rule 13d-3 under the Exchange Act, any Common Stock. To the extent that the parties to the Stockholders Agreement may be deemed to constitute a "group" within the meaning of Section 13(d) of the Exchange Act, and the Reporting Persons may be deemed to share beneficial ownership of the shares of Common Stock owned by the other stockholder parties to the Stockholders Agreement, the Reporting Persons expressly disclaim beneficial ownership of any shares of Common Stock held by such other parties. (b) Mitsui Japan and Mitsui USA have the shared power to vote (or to direct the vote) and to dispose (or direct the disposition) of 15,559,217 shares of Common Stock, after giving effect to the acquisition reported in this Amendment No. 5. (c) No transactions in the Common Stock were effected during the past sixty days by the Reporting Persons. (d) None. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 of the Statement is hereby supplemented as follows: Purchase Agreements On September 14, 2006, the Reporting Persons, the applicable Seller under each Purchase Agreement and Penske Corporation entered into twenty-six separate Purchase Agreements pursuant to which the Reporting Persons, subject to the terms and conditions of the respective Purchase Agreement, agreed to purchase from the respective Seller shares of Common Stock issued to such Seller by Penske Associates, LLC, a Delaware limited liability company (or, in the case of James Hislop, issued to such Seller by Penske Capital Partners LLC, a Delaware limited liability company ("Penske Capital LLC")), for a total purchase by the Reporting Persons of 1,116,519 shares of Common Stock, or approximately 1.2% of the Company, for an aggregate purchase price of US$23,379,907.86, or US$20.94 per share. With respect to these transactions, Mitsui Japan purchased 893,215 of the subject shares, representing approximately 0.9% of the Company, and Mitsui USA purchased 223,304 of the subject shares, representing approximately 0.2% of the Company. Mitsui USA is a wholly-owned subsidiary of Mitsui-Japan. In certain cases, not all shares of Common Stock distributed by Penske Associates, LLC to a Seller pursuant to the respective Purchase Agreement were purchased exclusively by the Reporting Persons, and in such cases, the balance of such shares were purchased by Penske Corporation. A form of the Purchase Agreement substantially identical to the Purchase Agreements executed by the above-referenced parties (other than James Hislop) is attached as Exhibit 12 hereto and is incorporated herein by reference. The Purchase Agreement executed by James Hislop is attached as Exhibit 13 hereto and is incorporated herein by reference. Penske Letter Agreement On September 14, 2006, the Reporting Persons and Penske Corporation entered into a letter agreement (the "Penske Letter Agreement"). The Penske Letter Agreement is attached as Exhibit 14 hereto and is incorporated herein by reference. Pursuant to the Penske Letter Agreement, Penske Corporation makes certain representations and warrants to the Reporting Persons with respect to itself, Penske Associates, LLC and Penske Capital LLC, including that to the best knowledge of Penske Corporation after all necessary diligence (including, without limitation, all necessary inquiries of Penske Associates, LLC and Penske Capital LLC), each Seller's membership interest in Penske Associates, LLC and Penske Capital LLC are free and clear of any and all Liens (as defined in the Purchase Agreements), encumbrances, options and claims, and upon delivery of and payment for the Common Stock at the closing of the transactions, the Reporting Persons will acquire good and valid title to all of the Common Stock purchased thereunder, free and clear of any and all Liens, encumbrances, options and claims. Paying Agent Letter Agreement On September 14, 2006, the Reporting Persons and Penske Corporation, as paying agent (the "Paying Agent"), entered into a letter agreement (the "Paying Agent Letter Agreement"). The Paying Agent Letter Agreement is attached as Exhibit 15 hereto and is incorporated herein by reference. Pursuant to the Paying Agent Letter Agreement, the Paying Agent acknowledges and confirms the obligations of the Reporting Persons to pay the purchase prices pursuant to the Purchase Agreements to the Paying Agent at the closing of the transactions. PA Letter Agreement On September 14, 2006, the Reporting Persons, Penske Corporation, International Motor Cars Group I, L.L.C., International Motor Cars Groups II, L.L.C. and Penske Automotive Holdings Corp. entered into a letter agreement (the "PA Letter Agreement"). The PA Letter Agreement is attached as Exhibit 16 hereto and is incorporated herein by reference. Pursuant to the PA Letter Agreement, the parties thereto agree that upon execution of the Purchase Agreements and the closing of the respective transactions thereunder, the Reporting Persons shall have Beneficial Ownership (as defined in the purchase agreement, dated February 16, 2004, between the Reporting Persons, International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Penske Corporation, Penske Automotive Holdings Corp. and the Company (the "2004 Purchase Agreement," previously filed with the Securities and Exchange Commission (the "Commission") on February 17, 2004 as Exhibit 6 to Amendment No. 2 on Schedule 13D/A)) of the Common Stock purchased thereby and will exercise the rights associated with such Beneficial Ownership under the 2004 Purchase Agreement, and specifically Article VI ("Covenants") thereof. Stockholders Letter Agreement On September 14, 2006, the Reporting Persons, Penske Corporation, International Motor Cars Group I, L.L.C., International Motor Cars Groups II, L.L.C. and Penske Automotive Holdings Corp. entered into a letter agreement (the "Stockholders Letter Agreement"). The Stockholders Letter Agreement is attached as Exhibit 17 hereto and is incorporated herein by reference. Pursuant to the Stockholders Letter Agreement, the parties thereto agree that upon execution of the Purchase Agreements and the closing of the respective transactions thereunder, the Reporting Persons shall have Beneficial Ownership (as defined in the stockholders agreement, dated March 26, 2004, among International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., the Reporting Persons, Penske Corporation and Penske Automotive Holdings Corp. (the "2004 Stockholders Agreement," filed herein as Exhibit 18 and a form of which was previously filed with the Commission on February 17, 2004 as Exhibit 8 to Amendment No. 2 on Schedule 13D/A)) of the Common Stock purchased thereby and the Reporting Persons shall by virtue of their Beneficial Ownership of the Common Stock be subject to the 2004 Stockholders Agreement, and specifically Articles II ("Voting Agreements") and III ("Transfer Restrictions") thereof. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 11 Joint Filing Agreement, dated September 14, 2006, between the Reporting Persons. Exhibit 12 Form of Purchase Agreement among the Reporting Persons, the selling shareholder specified therein and Penske Corporation. Exhibit 13 Purchase Agreement among the Reporting Persons, James Hislop and Penske Corporation. Exhibit 14 Letter Agreement, dated September 14, 2006, between the Reporting Persons and Penske Corporation. Exhibit 15 Letter Agreement, dated September 14, 2006, between the Reporting Persons and Penske Corporation, as paying agent. Exhibit 16 Letter Agreement, dated September 14, 2006, among the Reporting Persons, Penske Corporation, International Motor Cars Group I, L.L.C., International Motor Cars Groups II, L.L.C. and Penske Automotive Holdings Corp. Exhibit 17 Letter Agreement, dated September 14, 2006, among the Reporting Persons, Penske Corporation, International Motor Cars Group I, L.L.C., International Motor Cars Groups II, L.L.C. and Penske Automotive Holdings Corp. Exhibit 18 Stockholders Agreement, dated March 26, 2004, by and among the Reporting Persons, International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Penske Corporation and Penske Automotive Holdings Corp. (form of this Stockholders Agreement was filed with the Commission on February 17, 2004 as Exhibit 8 to Amendment No. 2 on Schedule 13D/A). SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: September 14, 2006 MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager First Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager ANNEX A Unless otherwise indicated below, the business address of the directors and executive officers of Mitsui Japan is 2-1 Ohtemachi, 1-Chome, Chiyoda-Ku, Tokyo, Japan and the business address of the directors and executive officers of Mitsui USA is 200 Park Avenue, New York, New York 10166-0130, USA. Each occupation set forth opposite such person's name refers to employment with the Reporting Persons. To the Reporting Persons' knowledge, none of the directors or executive officers of Mitsui Japan nor the directors or executive officers of Mitsui USA has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or a finding of any violation with respect to such laws. Unless otherwise indicated, each of the directors and executive officers of Mitsui Japan and Mitsui USA is a citizen of Japan. There are no controlling persons or executive officers or directors of other corporations or other persons ultimately in control of Mitsui Japan or Mitsui USA. Directors and Executive Officers of Mitsui Japan
Number of Shares of Occupation and Common Stock Name Business Address Beneficially Owned - ---- ---------------- ------------------- Nobuo Ohashi -- Chairman and Director Shoei Utsuda President and Chief Executive Officer -- Tetsuya Matsuoka Executive Director -- Executive Vice President Masataka Suzuki Executive Director -- Executive Vice President Hiroshi Tada Executive Director -- Executive Vice President Yasunori Yokote Executive Director -- Senior Executive Managing Officer Kazuya Imai Executive Director -- Senior Executive Managing Officer Hiroshi Ito Executive Director -- Senior Executive Managing Officer Akishige Okada Director -- Akira Chihaya Director --
Nobuko Matsubara Director -- Gempachiro Aihara (1) Executive Vice President -- Toshihiro Soejima (2) Senior Executive Managing Officer -- Motokazu Yoshida (3) Senior Executive Managing Officer -- Ken Abe (4) Senior Executive Managing Officer -- Yoshiyuki Izawa (5) Executive Managing Officer -- Osamu Mori Executive Managing Officer -- Satoru Miura (6) Executive Managing Officer -- Takao Sunami Executive Managing Officer -- Junichi Matsumoto Executive Managing Officer -- Shunichi Miyazaki Executive Managing Officer -- Shinjiro Ogawa Executive Managing Officer -- Toshimasa Furukawa Executive Managing Officer -- Jitsuro Terashima Executive Managing Officer -- Motonori Murakami Executive Managing Officer -- Koji Nakamura Executive Managing Officer -- Kenichi Yamamoto Executive Managing Officer --
(1) Business address is 16 Raffles Quay #29-00, Hong Leong Building, Singapore 048581, The Republic of Singapore. (2) Business address is 34th Floor, CWTC Tower 1, No.1 Jianguomenwai Avenue, Beijing, 100004 China. (3) Business address is 200 Park Avenue, New York, New York 10166-0130, USA. (4) Business address is 24 King William Street, London EC4R 9AJ, United Kingdom. (5) Business address is 3-33 Nakanoshima 2-Chome, Kita-ku, Osaka-shi, Osaka-fu, Japan. (6) Business address is 16-21 Meieki Minami 1-Chome, Nakamura-ku, Nagoya-shi, Aichi-ken, Japan. Directors and Executive Officers of Mitsui USA
Number of Shares of Occupation and Common Stock Name Business Address (1) Beneficially Owned - ---- ---------------- ------------------- Kazuya Imai (2) Director -- Motokazu Yoshida President, Chief Executive Officer -- and Director Osamu Koyama Executive Vice President and Director -- Michael H. Voss (3) (4) Executive Vice President -- Yuichi Aoki Senior Vice President, Chief Administrative -- Officer and Director Keigo Matsubara Senior Vice President, Chief Financial -- Officer and Director Yoneji Ishikawa Senior Vice President and Chief Compliance -- Officer Ichizo Kutsukake Senior Vice President -- Yasushi Takahashi Senior Vice President -- Toshiaki Muramatsu Senior Vice President -- Kazuki Okamura Senior Vice President -- Masaaki Miura Senior Vice President -- Shinji Tsuchiya Senior Vice President -- Taku Morimoto Senior Vice President -- Noriaki Sakamoto Senior Vice President -- Yasunari Yamamoto Senior Vice President -- Kazuhiko Fukuchi Senior Vice President -- Bunji Shinoda Senior Vice President -- Isao Ueda Senior Vice President -- Kenichi Hori Senior Vice President -- Alan Getz (4) Vice President -- Osamu Toriumi (5) Corporate Secretary --
(1) The business address for all persons listed is 200 Park Avenue, New York, New York 10166-0130, USA, except for Mr. Imai and Mr. Voss, whose business addresses are listed in footnotes (2) and (3), respectively, below. (2) Business address is 2-1 Ohtemachi, 1-Chome, Chiyoda-Ku, Tokyo, Japan. (3) Business address is 601 South Figueroa Street, Suite 1900, Los Angeles, California 90017-5723, USA. (4) Citizen of USA. (5) Effective September 15, 2006, Mr. Haruo Hirano replaced Mr. Osamu Toriumi as Corporate Secretary. EX-99.11 2 y08493a5exv99w11.txt EX-99.11: JOINT FILING AGREEMENT EXHIBIT 11 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, par value $0.0001 per share, of United Auto Group, Inc. and further agree to the filing of this Joint Filing Agreement as an exhibit thereto. Dated: September 14, 2006 MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager First Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager EX-99.12 3 y08493a5exv99w12.txt EX-99.12: FORM OF PURCHASE AGREEMENT EXHIBIT 12 [FORM OF] PURCHASE AGREEMENT BY AND AMONG MITSUI & CO., LTD., MITSUI & CO. (U.S.A.), INC., [____________________________], 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
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"), [__________________] [, a _____________ limited liability company] (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, [one-half] [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 Associates, LLC, a Delaware limited liability company ("Associates") 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 [one-half] [all] of the Common Stock received by Seller in the Distribution, of which (a) 80% shall be sold to Mitsui Japan (the "Mitsui 1 Japan Securities") 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 1.2 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 Purchase Price shall be the amount determined by multiplying the number of Securities by the Current Market Value. 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., 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 1.4 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 1.5 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 2 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 1.6 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. 5 (b) The Securities have not been purchased, held or sold in connection with any transaction required to be reported under section 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. 6 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 Associates. Associates shall have authorized and approved the distribution of, and have distributed, the Securities to the Seller. Associates 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 8 Registration Rights Agreement, dated March 26, 2004, among the Company, Mitsui Japan and Mitsui USA. (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; (c) by either the Purchasers or the Seller, if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission 9 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 10 (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. 11 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. 12 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. 13 "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 "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. 14 "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] 15 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. SELLER: ---------------------------------------- Name Wire Transfer Information: ---------------------------------------- ---------------------------------------- ---------------------------------------- ---------------------------------------- Address: ---------------------------------------- ---------------------------------------- ---------------------------------------- ---------------------------------------- 16 MITSUI & CO., LTD. By: ------------------------------------ Name: Tatsuo Nakayama Title: General Manager First Motor Vehicles Division 17 MITSUI & CO. (U.S.A.), INC. By: ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division 18 PENSKE CORPORATION By: ------------------------------------ Name: Robert H. Kurnick, Jr. Title: President 19 EX-99.13 4 y08493a5exv99w13.txt EX-99.13: PURCHASE AGREEMENT EXHIBIT 13 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
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 1 Distribution, of which (a) 80% shall be sold to Mitsui Japan (the "Mitsui Japan Securities") 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 1.2 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 Purchase Price shall be the amount determined by multiplying the number of Securities by the Current Market Value. 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., 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 1.4 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 1.5 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 2 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 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 1.6 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 3 or jurisdiction in which it is licensed to do business and has all requisite corporate power 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 4 of any mortgage, Lien, security interest, loan, charge or encumbrance, upon any of the 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. 5 (b) The Securities have not been purchased, held or sold in connection with any transaction required to be reported under section 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. 6 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 8 Registration Rights Agreement, dated March 26, 2004, among the Company, Mitsui Japan and Mitsui USA. (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; (c) by either the Purchasers or the Seller, if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission 9 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 10 (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. 11 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. 12 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. 13 "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. 14 "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. "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] 15 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. SELLER: /s/ James Hislop ---------------------------------------- Name James Hislop Wire Transfer Information: [redacted] ---------------------------------------- ---------------------------------------- ---------------------------------------- Address: 1 Harmon Plaza, 9th floor Secaucus, NJ 07094 16 MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager First Motor Vehicles Division 17 MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division 18 PENSKE CORPORATION By: /s/ Robert H. Kurnick, Jr. ------------------------------------ Name: Robert H. Kurnick, Jr. Title: President 19 EX-99.14 5 y08493a5exv99w14.txt EX-99.14: LETTER AGREEMENT EXHIBIT 14 [Penske Corporation Letterhead] September 14, 2006 Mitsui & Co., Ltd. Mitsui & Co. (U.S.A.), Inc. First Motor Vehicles Div. Detroit Office 2-1, Ohtemachi 1-chome, Chiyoda-ku 1000 Town Center, Suite 1900 Tokyo, Japan Southfield, MI 48075 Attn: General Manager of First Motor Attn: Detroit Machinery Vehicles Div. Department Gentlemen: Reference is made to the Purchase Agreements dated as of today among Mitsui & Co., Ltd., Mitsui & Co. (U.S.A.), Inc., Penske Corporation ("Penske") and the individuals and limited liability companies set forth on Exhibit 1 of this letter (each, an "Agreement", collectively, the "Agreements"). This letter is to confirm to each of you that it is in the best interests of Penske Corporation to close the transactions contemplated by the Other Purchase Agreements simultaneously with the closing of the transactions contemplated by the Agreements. Penske is familiar with Penske Associates, LLC, a Delaware limited liability company ("Associates"). In consideration of the foregoing and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Penske hereby represents and warrants to the Purchasers as of the date hereof and as of the Closing Date as follows: (A) Associates is a limited liability company, and Penske is a corporation, each duly organized, validly existing and in good standing under the Laws of the state of Delaware and in any other state or jurisdiction in which it is licensed to do business and each has all requisite power and authority to carry on its business as now conducted and has all power and authority to enter into this Agreement. (B) The execution and delivery of this letter agreement has been duly authorized by all requisite corporate action on the part of Penske, and this letter agreement constitutes a legal, valid and binding obligation of Penske, enforceable against Penske, in accordance with its terms. (C) The execution, delivery and performance by Penske of this letter agreement and the consummation by Penske of the transactions contemplated thereby will not (a) violate any provision of applicable Laws or any ruling, writ, injunction, order, judgment or decree of any court, administrative agency or other governmental body applicable to Penske, or any of its properties or assets, or (b) violate the organizational documents or the bylaws of Penske. (D) The Securities and, to the best knowledge of Penske after all necessary diligence (including, without limitation, all necessary inquiries of Associates and of Penske Capital Partners, L.L.C.), each Seller's membership interest in Associates (and, in the case of James Hislop, his membership interest in Penske Capital Partners, L.L.C.), are free and clear of any and all Liens, encumbrances, options and claims, and 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, options and claims. The representations and warranties made by Penske in this letter agreement shall survive without limitation. All capitalized terms set forth in this letter agreement shall have the meanings set forth in the Agreements. Very truly yours, Penske Corporation By: /s/ Robert H. Kurnick, Jr. --------------------------------- Title: President Accepted: Mitsui & Co., Ltd. By: /s/ Tatsuo Nakayama --------------------------------- Tatsuo Nakayama Title: General Manager of 1st Motor Vehicles Division Mitsui & Co. (U.S.A.), Inc. By: /s/ Kazuki Okamura --------------------------------- Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division Exhibit 1 James Hislop Alex Fuster Chrislyn Penske Sheeler Steve Pozatek John Davies Cheryl Aydelott R. J. Peters & Company, LLC EEW Legacy LLC JCW Legacy LLC BCW Legacy LLC Gregory W. Penske Roger S. Penske, Jr. David R. Mitchell Robert H. Kurnick, Jr. J. Patrick Conroy Steven Carrel Walter P. Czarnecki Lawrence N. Bluth Paul F. Walters Edward A. Tracz, Jr. Ludvik F. Koci Gregory Morrow Mary Lou Pernicano Brian Hard Vincent Hartnett Gregory Houfley EX-99.15 6 y08493a5exv99w15.txt EX-99.15: LETTER AGREEMENT EXHIBIT 15 [MITSUI LETTERHEAD] September 14, 2006 Penske Corporation 2555 Telegraph Road Bloomfield Hills Michigan 48302-0954 Attention: General Counsel RE: Acknowledgement with regard to the proposed Purchase Agreements, dated as of September 14, 2006, among Mitsui & Co., Ltd. ("Mitsui Japan"), Mitsui & Co. (U.S.A.), Inc. ("Mitsui USA"), the sellers identified on Exhibit A, Penske Corporation (the "Paying Agent") (each, a "Purchase Agreement", and together, the "Purchase Agreements"); capitalized terms used without definition have the meanings specified in each of the applicable Purchase Agreements. Ladies and Gentlemen: Reference is made to the Purchase Agreements referenced above. Please be notified that Mitsui Japan has appointed Mitsui USA as its agent, and Mitsui USA has accepted such appointment, to pay the Mitsui Japan Purchase Price to the Paying Agent pursuant to Sections 1.4 and 1.5(c) of each of the Purchase Agreements. In that connection, we ask you in your capacity as the Paying Agent to acknowledge and confirm that the obligations of the Purchasers to pay the Purchase Price under Sections 1.4, 1.5(c) and 1.5(d) of each Purchase Agreement will be satisfied by delivery at the Closing by Mitsui USA to the Paying Agent (i) of the Mitsui USA Purchase Price under such Purchase Agreement (on its own behalf and for its own account) and (ii) of the Mitsui Japan Purchase Price under such Purchase Agreement (on behalf of, and for the account of, Mitsui Japan). Please provide us with your acknowledgement and confirmation of the foregoing by countersigning this letter and faxing it to our counsel, Debevoise & Plimpton LLP, attention: Oliver Olah, at 212-521-7731, at your earliest convenience. Thank you for your prompt attention to this matter. Very truly yours, MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager 1st Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division We hereby confirm our agreement with the foregoing as described above. Signed this 14th day of September, 2006. PENSKE CORPORATION, as Paying Agent By: /s/ J. Patrick Conroy ------------------------------------ Name: J. Patrick Conroy Title: Executive Vice President and CFO 2 EXHIBIT A James Hislop Alex Fuster Chrislyn Penske Sheeler Steve Pozatek John Davies Cheryl Aydelott R. J. Peters & Company, LLC EEW Legacy LLC JCW Legacy LLC BCW Legacy LLC Gregory W. Penske Roger S. Penske, Jr. David R. Mitchell Robert H. Kurnick, Jr. J. Patrick Conroy Steven Carrel Walter P. Czarnecki Lawrence N. Bluth Paul F. Walters Edward A. Tracz, Jr. Ludvik F. Koci Gregory Morrow Mary Lou Pernicano Brian Hard Vincent Hartnett Gregory Houfley 3 EX-99.16 7 y08493a5exv99w16.txt EX-99.16: LETTER AGREEMENT EXHIBIT 16 [MITSUI LETTERHEAD] September 14, 2006 Penske Corporation 2555 Telegraph Road Bloomfield Hills Michigan 48302-0954 Attention: General Counsel RE: Purchase Agreement, dated February 16, 2004, among Mitsui & Co., Ltd. ("Mitsui Japan"), Mitsui & Co. (U.S.A.), Inc. ("Mitsui USA"), International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Penske Corporation ("Penske"), Penske Automotive Holdings Corp. and United Auto Group, Inc. (the "Company") (the "Agreement"); capitalized terms used without definition have the meanings specified in the Agreement. Ladies and Gentlemen: Mitsui Japan and Mitsui USA (together, the "Purchasers") are considering the purchase of shares of common stock of the Company from a number of individual sellers, all of which are members of Penske Associates, LLC, pursuant to a number of purchase agreements and the execution, delivery and performance of such purchase agreements and all required actions contemplated thereby (the "Proposed Transaction"). In that connection, as a courtesy, we advise you that after the delivery of the purchase agreements referenced above and the closings thereunder the Purchasers will have Beneficial Ownership of the Common Stock to be acquired in the Proposed Transaction and will exercise the rights associated with such Beneficial Ownership of Common Stock under the Agreement, and specifically Article VI thereof. We are appreciative of the important relationship between the Purchasers and Penske. Please confirm your agreement with the foregoing by causing this letter to be signed by an authorized officer and faxed to our counsel, Debevoise & Plimpton LLP, attention: Oliver Olah, at 212-521-7731, at your earliest convenience. Thank you for your prompt attention to this matter. Very truly yours, MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager 1st Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division We hereby confirm our agreement with the foregoing as described above. Signed this 14th day of September, 2006. PENSKE CORPORATION By: /s/ Robert H. Kurnick, Jr. --------------------------------- Name: Robert H. Kurnick, Jr. Title: President 2 We hereby also confirm our agreement with the foregoing as described above. INTERNATIONAL MOTOR CARS GROUP I, L.L.C. By: /s/ James A. Hislop ------------------------------------- Name: James A. Hislop Title: Managing Member, Penske Capital Partners, L.L.C. INTERNATIONAL MOTOR CARS GROUP II, L.L.C. By: /s/ James A. Hislop ------------------------------------- Name: James A. Hislop Title: Managing Member, Penske Capital Partners, L.L.C. PENSKE AUTOMOTIVE HOLDINGS CORP. By: /s/ Roger S. Penske ------------------------------------- Name: Roger S. Penske Title: Vice President 3 EX-99.17 8 y08493a5exv99w17.txt EX-99.17: LETTER AGREEMENT EXHIBIT 17 [MITSUI LETTERHEAD] September 14, 2006 Penske Corporation 2555 Telegraph Road Bloomfield Hills Michigan 48302-0954 Attention: General Counsel RE: Stockholders Agreement, dated March 26, 2004, among International Motor Cars Group I, L.L.C., International Motor Cars Group II, L.L.C., Mitsui & Co., Ltd. ("Mitsui Japan"), Mitsui & Co. (U.S.A.), Inc. ("Mitsui USA"), Penske Corporation ("Penske") and Penske Automotive Holdings Corp. (the "Agreement"); capitalized terms used without definition have the meanings specified in the Agreement. Ladies and Gentlemen: Mitsui Japan and Mitsui USA (together, "Mitsui") are considering the purchase of shares of common stock of United Auto Group, Inc. (the "Company") from a number of individual sellers, all of which are members of Penske Associates, LLC, pursuant to a number of purchase agreements and the execution, delivery and performance of such purchase agreements and all required actions contemplated thereby (the "Proposed Transaction"). In that connection, as a courtesy, we advise you that the securities to be purchased by Mitsui in the Proposed Transaction will be Common Stock Beneficially Owned by them for purposes of the Agreement, including without limitation under Article II and Article III thereof. We are appreciative of the important relationship between Mitsui and Penske. Please confirm your agreement with the foregoing by causing this letter to be signed by an authorized officer and faxed to our counsel, Debevoise & Plimpton LLP, attention: Oliver Olah, at 212-521-7731, at your earliest convenience. Thank you for your prompt attention to this matter. Very truly yours, MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager 1st Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Kazuki Okamura ------------------------------------ Name: Kazuki Okamura Title: Senior Vice President and General Manager Machinery Division We hereby confirm our agreement with the foregoing as described above. Signed this 14th day of September, 2006. PENSKE CORPORATION By: /s/ Robert H. Kurnick, Jr. ------------------------------------ Name: Robert H. Kurnick, Jr. Title: President 2 We hereby also confirm our agreement with the foregoing as described above. INTERNATIONAL MOTOR CARS GROUP I, L.L.C. By: /s/ James A. Hislop ------------------------------------ Name: James A. Hislop Title: Managing Member, Penske Capital Partners, L.L.C. INTERNATIONAL MOTOR CARS GROUP II, L.L.C. By: /s/ James A. Hislop ------------------------------------ Name: James A. Hislop Title: Managing Member, Penske Capital Partners, L.L.C. PENSKE AUTOMOTIVE HOLDINGS CORP. By: /s/ Roger S. Penske ------------------------------------ Name: Roger S. Penske Title: Vice President 3 EX-99.18 9 y08493a5exv99w18.txt EX-99.18: STOCKHOLDERS AGREEMENT EXHIBIT 18 STOCKHOLDERS AGREEMENT BY AND AMONG INTERNATIONAL MOTOR CARS GROUP I, L.L.C., INTERNATIONAL MOTOR CARS GROUP II, L.L.C., MITSUI & CO., LTD., MITSUI & CO. (U.S.A.), INC., PENSKE CORPORATION, AND PENSKE AUTOMOTIVE HOLDINGS CORP. DATED AS OF MARCH 26, 2004 TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS Section 1.1 Definitions................................................. 3 Section 1.2 Rules of Construction....................................... 5 ARTICLE II VOTING AGREEMENTS Section 2.1 Voting Agreement of the PCP Entities and Penske............. 5 Section 2.2 Voting Agreement of Mitsui.................................. 5 Section 2.3 Support of the PCP Entities and Penske...................... 5 ARTICLE III TRANSFER RESTRICTIONS Section 3.1 Tag-Along Rights............................................ 6 ARTICLE IV MUTUAL REPRESENTATIONS AND WARRANTIES Section 4.1 Organization................................................ 7 Section 4.2 Authorization, Validity and Enforceability.................. 7 Section 4.3 No Violation or Breach...................................... 7 ARTICLE V TERM Section 5.1 Term........................................................ 8 Section 5.2 Effects of Termination...................................... 8 ARTICLE VI MISCELLANEOUS PROVISIONS Section 6.1 Assurances.................................................. 8 Section 6.2 Survival.................................................... 8 Section 6.3 Notices..................................................... 8 Section 6.4 Amendments.................................................. 9
i Section 6.5 Assignment and Parties in Interest.......................... 9 Section 6.6 Entire Agreement............................................ 10 Section 6.7 Descriptive Headings........................................ 10 Section 6.8 Counterparts................................................ 10 Section 6.9 Governing Law; Jurisdiction................................. 10 Section 6.10 Severability................................................ 11 Section 6.11 Specific Performance........................................ 11 Section 6.12 Transfers to Affiliates..................................... 11 Section 6.13 Public Filings.............................................. 12
ii THIS STOCKHOLDERS AGREEMENT (the "Agreement") dated as of March 26, 2004 is by and among INTERNATIONAL MOTOR CARS GROUP I, L.L.C., a Delaware limited liability company ("PCP I"), INTERNATIONAL MOTOR CARS GROUP II, L.L.C., a Delaware limited liability company ("PCP II" and, together with PCP I, the "PCP Entities"), MITSUI & CO., LTD., a Japanese company ("Mitsui Japan"), MITSUI & CO. (U.S.A.), INC., a New York corporation ("Mitsui USA" and together with Mitsui Japan, "Mitsui"), PENSKE CORPORATION, a Delaware corporation ("Penske Corporation"), and PENSKE AUTOMOTIVE HOLDINGS CORP., a Delaware corporation ("Penske Holdings", and together with Penske Corporation, "Penske"). WHEREAS, the parties hereto wish to provide for certain matters relating to the ownership and transfer of the Common Stock of United Auto Group, Inc.; NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings specified below: "Affiliate" means "affiliate" as defined in Rule 405 promulgated under the Securities Act. "Beneficial Ownership" means "beneficial ownership" as defined in Rule 13d-3 promulgated under the Exchange Act. The term "Beneficial Owner" shall have the correlative meaning. "Business Day" means a calendar day, other than (a) a Saturday or Sunday, and (b) a day on which commercial banks are required or permitted by law or other governmental action to close in New York, New York, United States of America or Tokyo, Japan. "Common Stock" means the voting Common Stock, par value $.0001 per share, of the Company, and includes any securities issued with respect to such shares by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, amalgamation, merger, consolidation or other reorganization or otherwise. 3 "Company" means United Auto Group, Inc. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exempt Sale" has the meaning set forth in Section 3.1. "Mitsui" has the meaning set forth in the preamble. "Operating Agreements" means each of (i) the Amended and Restated Limited Liability Company Agreement for PCP I and (ii) the Amended and Restated Limited Liability Company Agreement for PCP II, each dated as of the date hereof, and each as amended from time to time. "PCP Entities" has the meaning set forth in the preamble. "PCP I" has the meaning set forth in the preamble. "PCP II" has the meaning set forth in the preamble. "Penske" has the meaning set forth in the recitals hereto. "Penske Capital" means Penske Capital Partners, L.L.C. "Penske Corporation" has the meaning set forth in the preamble. "Penske Holdings" has the meaning set forth in the preamble. "Permitted Transferee" of a person means (a) a corporation, partnership or other entity wholly owned by such person; provided, that such corporation, partnership or other entity shall agree in writing that it shall transfer to such person any Restricted Securities which it holds prior to such time as it ceases to be wholly owned by such person, and (b) the equity owners of such person to the extent such equity owners receive a pro rata distribution of Restricted Securities. "Purchase Agreement" has the meaning set forth in Section 2.3. "Restricted Securities" means any Common Stock or other equity security of the Company Beneficially Owned by a Restricted Stockholder and any securities convertible, exercisable or exchangeable for Common Stock or such other equity securities. "Restricted Stockholder" means each of Penske, the PCP Entities and Mitsui. "Securities Act" means the Securities Act of 1933, as amended. "Tag-Along Notice" has the meaning set forth in Section 3.1. 4 "Transfer" means any direct or indirect transfer, sale, assignment, gift, pledge, mortgage, hypothecation or other disposition of any interest, including, without limitation, a transfer or sale of securities through a registered offering. The terms "Transferee," "Transferor," "Transferred," and "Transferable" shall each have a correlative meaning. Section 1.2 Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it by this Agreement; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in effect in the United States of America; (c) "or" is not exclusive; and (d) words in the singular include the plural, and in the plural include the singular. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. Any references to any statute or law shall also refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. ARTICLE II VOTING AGREEMENTS Section 2.1 Voting Agreement of the PCP Entities and Penske. In connection with any shareholder election of directors of the Company, unless Mitsui has declined to put forward such a representative, the PCP Entities and Penske shall vote all of the voting securities of the Company Beneficially Owned by them in favor of one (1) representative of Mitsui, and shall use their best efforts to cause one (1) representative of Mitsui to be elected as a director of the Company. Section 2.2 Voting Agreement of Mitsui. Provided that the PCP Entities and Penske are in compliance with the agreements set forth in Section 2.1 hereof, Mitsui shall, in connection with any such shareholder election of directors, vote all of the voting securities of the Company Beneficially Owned by it in favor of up to 14 persons (not including the Mitsui representative referred to in Section 2.1) voted for by the PCP Entities and Penske for election as directors of the Company. Section 2.3 Support of the PCP Entities and Penske. The PCP Entities and Penske shall (a) not take any action (including by failing to vote against any amendment to the Company's certificate of incorporation or by-laws) that would in any way circumvent the agreements set forth in Section 2.1 hereof or the Company's agreements set forth in Section 6.5 of the Purchase Agreement, dated as of February 16, 2004, among Mitsui, the PCP Entities, Penske and the Company (the "Purchase Agreement"); and (b) not take any action inconsistent with, and shall use their best efforts to cause the Company to comply with (in each case including by way of exercise of voting rights), the Company's obligations set forth in Sections 6.3, 6.4, 6.5 and 6.6 of the Purchase Agreement. 5 ARTICLE III TRANSFER RESTRICTIONS Section 3.1 Tag-Along Rights. (a) Other than one or more Transfers of Restricted Securities not exceeding, in the aggregate, 996,204 shares (as such number may be equitably adjusted to reflect stock splits, reverse stock splits, reclassifications and other similar changes to the Company's capital structure) of Common Stock (each, an "Exempt Sale"), in the event that any of the PCP Entities or Penske desires to Transfer any Restricted Securities to a third party (other than (i) with respect to any Restricted Securities, to their respective Permitted Transferees or Affiliates or (ii) with respect only to those securities Transferred from Penske Corporation's "Share Account" (as defined in the Operating Agreement(s)) to the "Carry Account" (as defined in the Operating Agreement(s)) and those securities held in Penske Capital's "Share Account" (as defined in the Operating Agreement(s)) to Penske Capital or by Penske Capital to its members or by such members to their members ad infinitum (it being understood that in no event will this clause (ii) apply to any Transfer by Penske Corporation)) at any time prior to the termination of this Agreement in accordance with its terms, such PCP Entity or Penske, as the case may be, shall notify Mitsui in writing, of such proposed Transfer and its terms and conditions (the "Tag Along Notice"); and (b) Within twenty (20) Business Days of the date of the Tag-Along Notice, Mitsui shall notify the PCP Entities or Penske, as the case may be, if it elects to participate in such Transfer. If Mitsui fails to notify such PCP Entity or Penske, as the case may be, within such twenty (20) Business Day period, Mitsui shall be deemed to have waived its rights to participate in such Transfer. If Mitsui so notifies the PCP Entities or Penske, as the case may be, Mitsui shall have the right to Transfer, at the same price per share of Common Stock and on the same terms and conditions as the applicable PCP Entity or Penske, as the case may be, an amount of shares of Common Stock or Common Stock equivalents equal to the shares of Common Stock or Common Stock equivalents the Transferee actually proposes to purchase multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock and Common Stock equivalents issued and owned by Mitsui and the denominator of which shall be the aggregate number of shares of Common Stock and Common Stock equivalents issued and owned by Mitsui, the PCP Entities and Penske (assuming for purposes of calculating such fraction the conversion of all convertible securities and the exercise of all options held by Mitsui, the PCP Entities and Penske). 6 ARTICLE IV MUTUAL REPRESENTATIONS AND WARRANTIES Each of the parties hereto represents and warrants to the others as follows: Section 4.1 Organization. It is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation. Section 4.2 Authorization, Validity and Enforceability. It has full power and authority to execute, deliver and perform its obligations under this Agreement. The execution, delivery and performance by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action, its board of directors or other governing body, as applicable, and no other proceedings on its part are necessary to authorize this Agreement or the transactions contemplated hereby. This Agreement has been duly executed and delivered by it, and constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting rights of creditors generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Section 4.3 No Violation or Breach. The execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby, do not and will not conflict with, result in a violation or breach of, constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) or give rise to any right of termination or acceleration of any right or obligation of it under, or result in the creation or imposition of any lien, mortgage, pledge, security interest, claim, right of first refusal or other limitation on transfer or other encumbrance upon any of its Restricted Securities or shares of Common Stock of the Company, as the case may be, by reason of the terms of, (a) its memorandum of association, certificate of incorporation, by-laws or other charter or organizational document, (b) any contract, agreement, lease, license, mortgage, note, bond, debenture, indenture or other instrument or obligation to which it is a party or by or to which it or its assets or properties may be bound or subject, (c) any order, writ, judgment, injunction, award, decree, law, statute, rule or regulation applicable to it or (d) any license, permit, order, consent, approval, registration, authorization or qualification with or under any governmental agency, other than in the case of clauses (b), (c) or (d) above any conflict, violation, breach or default which would not, individually or in the aggregate together with all other such conflicts, violations, breaches or defaults, have a material adverse effect on it or have a material adverse effect on its ability to perform its obligations, or consummate the transactions contemplated, hereunder. 7 ARTICLE V TERM Section 5.1 Term. This Agreement shall commence on the date hereof, and shall terminate on the tenth anniversary of the date of this Agreement. This Agreement shall terminate with respect to a Restricted Stockholder at such time as such entity ceases to Beneficially Own any Restricted Securities or any shares of Common Stock of the Company, as the case may be. Section 5.2 Effects of Termination. Upon termination of this Agreement, this Agreement (other than Section 6.9) shall thereafter become void and have no effect, and no party hereto shall have any liability or obligation to any other party hereto in respect of this Agreement, except for any liability resulting from such party's breach of this Agreement. ARTICLE VI MISCELLANEOUS PROVISIONS Section 6.1 Assurances. Each of the parties hereto shall use commercially reasonable efforts to do such additional things and execute such documents as are reasonably necessary or proper to carry out and effectuate the intent of this Agreement or any part hereof. Section 6.2 Survival. All of the representations, warranties, covenants, and agreements of the parties contained in this Agreement shall survive until this Agreement is terminated. Section 6.3 Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when delivered personally to the recipient, (b) two Business Days after the date when sent to the recipient by reputable express courier service (charges prepaid), or (c) seven Business Days after the date when mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to the parties at the addresses indicated below: 8 If to Penske or the PCP Entities: c/o Penske Corporation 2555 Telegraph Road Bloomfield Hills, Michigan 48302 Attention: General Counsel Telecopy: (248) 648-2511 If to Mitsui Japan: Mitsui & Co., Ltd. First Motor Vehicles Div. 2-1, Ohtemachi, I-Chome, Chiyoda-Ku Tokyo, Japan Attention: General Manager of First Motor Vehicles Division If to Mitsui USA: Mitsui & Co. (U.S.A.), Inc. Detroit Office 1000 Town Center, Suite 1900 Southfield, Michigan 48075 Attention: Detroit Machinery & Automotive Department With a copy to: (which shall not constitute notice) Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Attention: William D. Regner, Esq. Telecopy: (212) 909-6836 or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section 6.3. Section 6.4 Amendments. The terms, provisions and conditions of this Agreement may not be changed, modified or amended in any manner except by an instrument in writing duly executed by all of the parties hereto. Section 6.5 Assignment and Parties in Interest. (a) Neither this Agreement nor any of the rights, duties, or obligations of any party hereunder may be assigned or delegated (by operation of law or otherwise) by any party hereto, other than to an Affiliate of such party, without the prior written consent of the other parties hereto. 9 (b) This Agreement shall not confer any rights or remedies upon any person or entity other than the parties hereto and their respective permitted successors and assigns; provided, however, that (i) the rights set forth in Article II hereof shall inure to the benefit of a Permitted Transferee; and (ii) the provisions of this Agreement shall be binding on any Permitted Transferee. Section 6.6 Entire Agreement. This Agreement and the other documents executed on the date hereof constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede and are in full substitution for any and all prior agreements and understandings among them relating to such subject matter, including without limitation, the Letter Agreement dated as of April 4, 2003 among the Restricted Stockholders, and no party shall be liable or bound to the other party hereto in any manner with respect to such subject matter by any warranties, representations, indemnities, covenants, or agreements, except as specifically set forth herein or in the other documents executed on the date hereof. Section 6.7 Descriptive Headings. The descriptive headings of the several sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 6.8 Counterparts. For the convenience of the parties, any number of counterparts of this Agreement may be executed by any one or more parties hereto, and each such executed counterpart shall be, and shall be deemed to be, an original, but all of which shall constitute, and shall be deemed to constitute, in the aggregate but one and the same instrument. Section 6.9 Governing Law; Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof which might result in the application of the laws of any other jurisdiction. (b) Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the jurisdiction of the courts of the State of New York and the United States of America located in the County of New York solely in respect of the interpretation and enforcement of the provisions of this Agreement, and in respect of the transactions contemplated hereby, and further agrees that service of any process, summons, notice or document to its respective address set forth in Section 6.3 shall be effective service of process for any action or proceeding brought against it in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action or proceeding arising out of this Agreement or the transactions contemplated hereby in the courts of the State of New York or the United States of America located in 10 the County of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Section 6.10 Severability. In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. Section 6.11 Specific Performance. (a) The parties hereto acknowledge and agree that irreparable damage would occur in the event that any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached, and further acknowledge and agree that money damages are an inadequate remedy for the breach of this Agreement because of the difficulty of ascertaining the amount of damage that would be suffered in the event of such breach. The parties hereto accordingly agree that they each shall be entitled to obtain specific performance of any provision of this Agreement and injunctive or other equitable relief to prevent or cure breaches of any provision of this Agreement, this being in addition to any other remedy to which they may be entitled by law or equity. (b) The parties hereto further agree that they shall not be permitted or have the right to terminate or suspend performance of any provision of this Agreement, it being agreed that all provisions of this Agreement shall continue and be specifically enforceable in all events and under all circumstances until terminated pursuant to the terms of this Agreement, regardless of any events, occurrences, actions or omissions before or after the date hereof. In furtherance of the foregoing, the parties hereto agree that they shall not be permitted to, and shall not, bring any claim seeking to terminate or suspend performance of any provision of this Agreement or seeking any determination that any provision of this Agreement (including, without limitation, this Section 6.11) is invalid, inapplicable or unenforceable. Section 6.12 Transfers to Affiliates. In the event of any Transfer of capital stock of the Company by any party hereto to an Affiliate of such party (other than with respect only to those securities Transferred from Penske Corporation's "Share Account" (as defined in the Operating Agreement(s)) to the Carry Account (as defined in the Operating Agreement(s)) and those securities held in Penske Capital's "Share Account" (as defined in the Operating Agreements(s)) to Penske Capital or by Penske Capital to its 11 members or by such member to their members ad infinitum (it being understood that in no event will this exception apply to any Transfer by Penske Corporation)), prior to the effectiveness of such Transfer, such Transferee shall execute a joinder to this Agreement and shall otherwise agree to be bound by the provisions of this Agreement in the same manner as the Transferor. The Transferor and the Transferee shall be jointly and severally responsible for the obligations of the Transferor under this Agreement. Section 6.13 Public Filings. Prior to making any filings required by Sections 13 of the Securities Exchange Act of 1934, as amended, each of the PCP Entities and Penske, on the one hand, and Mitsui, on the other hand, shall provide the other parties with a reasonable opportunity to review such filings and comment thereon. 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. INTERNATIONAL MOTOR CARS GROUP I, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By: /s/ James A. Hislop ------------------------------------ Name: James A. Hislop Title: President INTERNATIONAL MOTOR CARS GROUP II, L.L.C. By: Penske Capital Partners, L.L.C., as Managing Member By: /s/ James A. Hislop ------------------------------------ Name: James A. Hislop Title: President MITSUI & CO., LTD. By: /s/ Tatsuo Nakayama ------------------------------------ Name: Tatsuo Nakayama Title: General Manager First Motor Vehicles Division MITSUI & CO. (U.S.A.), INC. By: /s/ Osamu Koyama ------------------------------------ Name: Osamu Koyama Title: Senior Vice President 13 PENSKE CORPORATION By: /s/ Roger S. Penske ------------------------------------ Name: Roger S. Penske Title: Chairman & Chief Executive Officer PENSKE AUTOMOTIVE HOLDINGS CORP. By: /s/ Roger S. Penske ------------------------------------ Name: Roger S. Penske Title: Chairman 14 -----END PRIVACY-ENHANCED MESSAGE-----