EXHIBIT 10.1
AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDED AND RESTATED RIGHTS AGREEMENT (the “Agreement”) dated as of June 4, 2012 is by and between Penske Automotive Group, Inc., a Delaware corporation (“PAG”) and Penske Truck Leasing Corporation, a Delaware corporation (“PTLC”). Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Partnership Agreement.
RECITALS
WHEREAS, PTLC, PTLC’s former wholly-owned subsidiaries, PTLC Holdings Co., LLC, a Delaware limited liability company (“PTLC-LLC”) and PTLC2 Holdings Co., LLC, a Delaware limited liability Company (“PTLC2-LLC”), and PAG are parties to the Rights Agreement dated as of June 26, 2008 (the “Rights Agreement”);
WHEREAS, PTLC-LLC and PTLC2-LLC were merged into PTLC with PTLC as the surviving entity;
WHEREAS, PAG and PTLC are partners under the Fourth Amended and Restated Agreement of Limited Partnership of Penske Truck Leasing Co., L.P. dated April 30, 2012 (the “New Partnership Agreement”) which amended and restated in its entirety the Third Amended and Restated Agreement of Limited Partnership of Penske Truck Leasing Co., L.P. dated March 26, 2009 which, in turn, amended and restated in its entirety that Amended and Restated Agreement of Limited Partnership of Penske Truck Leasing Co., L.P. dated July 18, 1988, as amended by a series of amendments and restatements.
WHEREAS, PAG and PTLC are members under the Amended and Restated Limited Liability Agreement of LJ VP Holdings LLC dated April 30, 2012 (the “LLC Agreement”).
WHEREAS, PTLC and PAG desire to amend and restate the Rights Agreement to reflect the existence of the New Partnership Agreement and the LLC Agreement and to conform paragraph cross-references to the text of the New Partnership Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations hereinafter set forth and in the other agreements executed between the parties on April 30, 2012, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I RIGHTS
Section 1.1Notice Right. PAG, on the one hand, and PTLC, on the other hand, hereby agree that in the event either of them receives any Offers or written notices under Article 9 of the New Partnership Agreement or under Article 9 of the LLC Agreement that each will promptly forward a copy of the related correspondence to the other.
Section 1.2Additional Rights. Neither PAG nor PTLC shall exercise any of its rights in Sections 9.3 and 9.4 of the New Partnership Agreement or the corresponding sections of the LLC Agreement without providing the other with a reasonable period of time under the circumstances to consider the necessary action and respond accordingly. Specifically, (1) PTLC shall not commence any Offer under Sections 9.3(c)(I) or 9.3(c)(II) or the corresponding sections of the LLC Agreement or accept an offer from a third party to acquire such party’s Partnership Interest without first notifying PAG of the proposed Transfer opportunity and providing PAG with a pro rata opportunity to join in such Transfer under the terms offered, (2) PAG shall not commence any Offer under Sections 9.3(c)(I), 9.3(c)(II), 9.3(d) or 9.3(e) or the corresponding section of the LLC Agreement or accept an offer from a third party to acquire PAG’s Partnership Interest or Member Interest without first notifying PTLC of the proposed Transfer opportunity and providing PTLC with a right of first refusal of all or a portion of the proposed Transfer under the terms proposed, (3) neither party shall accept or decline any Offer under Sections 9.3 (c)(I), 9.3(c)(II), 9.3(d) or 9.3(e) of the New Partnership Agreement or the corresponding section of the LLC Agreement without first consulting with the other party and assuring in any response, such other party’s response is conveyed in accordance with their instruction on a pro rata basis, and (4) neither party shall exercise any right under Section 9.4(b) of the New Partnership Agreement or Section 9.4(b) of the LLC Agreement without first consulting with the other party and assuring in any response, such other party’s response is conveyed in accordance with their instruction.
ARTICLE II TERMINATION
Section 2.1Termination. This Agreement may be terminated at any time by mutual written consent of the parties and shall terminate at such time as either PAG or PTLC have no further limited or general partnership ownership interest under the Partnership Agreement and further member interest under the LLC Agreement.
ARTICLE III MISCELLANEOUS
Section 3.1Amendments and Waivers. This Agreement may be amended, modified, supplemented or waived only upon the written agreement of the parties to the Agreement at that time.
Section 3.2Successors and Assign. 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 3.3Entire Agreement. This Agreement (with the documents referred to herein or delivered pursuant hereto and together with the Agreement) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.
Section 3.4Governing Law. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Michigan without giving effect to the conflicts of law principles thereof which might result in the application of the laws or any other jurisdiction.
Section 3.5Counterparts. 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 3.6Severability. 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 3.7Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if any party fails to perform any of its obligations hereunder, and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to injunctive relief, including specific performance, to enforce such obligations without the posting of any bond, and, if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law.
Section 3.8Further Assurances. Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| PENSKE TRUCK LEASING CORPORATION | PENSKE AUTOMOTIVE GROUP, INC. | |||||||
| By: | /s/ Walter P. Czarnecki | By: | /s/ David K. Jones | |||||
| Name: | Walter P. Czarnecki | Name: | David K. Jones | |||||
| Title: | Exec. V.P. | Title: | EVP & CFO | |||||