Exhibit 10.2.27
FORM OF
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT made as of this ____ day of ________, 1996, by and among
United Auto Group, Inc., a Delaware corporation ("UAG") and __________________
[Buyer] a Delaware corporation and a wholly-owned subsidiary of UAG ("Buyer"),
and _________________ [Target] ("Target"), a __________________ corporation and
________________ [Target Shareholders], each a shareholder of the Target
(collectively, the "Target's Shareholders"). UAG, the Buyer, the Target and the
Target Shareholders are referred to collectively herein as "Parties".
W I T N E S S E T H:
RECITALS:
A. This Agreement contemplates a tax-free merger of the Target with and
into the Buyer in a reorganization pursuant to Section 368(a)(2)(D) of the
Internal Revenue Code of 1986, as amended. The current shareholders of the
Target (collectively, the "Target Shareholders") will receive common stock in
UAG ("UAG Common Stock") and options for UAG Common Stock ("UAG Options") in
exchange for their rights, title and interests in and to their ownership
interests in the Target.
B. Pursuant to the terms of a certain Master Agreement made as of March
11, 1992 as amended by Amendment No. 1 to the Master Agreement dated October 1,
1992 and by Amendment No. 2 to the Master Agreement dated July 21, 1993 (as so
amended, the "Master Agreement") the Buyer and the Target became general
partners in _______________, a __________ general partnership (the
"Partnership").
C. This Agreement is entered into pursuant to a Settlement Agreement by
and among the Parties and/or certain affiliates of the Parties dated October 3,
1996 which by its terms supersedes the Master Agreement in its entirety.
D. At present Target is the owner of a 30% interest in the Partnership
("Partnership Interest").
E. The Partnership is in the business of operating an automobile
dealership in the State of _____________________, as the franchisee under a
franchise agreement with one or more automobile manufacturers.
F. Prior to the Effective Time (as hereinafter defined), the boards of
directors and stockholders of each of the Buyer and the Target shall have
approved and adopted resolutions declaring advisable the merger of Target with
and into the Buyer on the terms and conditions hereinafter set forth and shall
have also approved and adopted this Agreement and Plan of Merger.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations and warranties and
covenants herein contained, the Parties agree as follows:
1. THE MERGER
1.1 THE MERGER. On and subject to the terms and conditions of this
Agreement, the Target will merge with and into the Buyer (such transaction being
hereinafter referred to as the "Merger") at the Effective Time (as hereinafter
defined). The Buyer shall be the corporation surviving the Merger (the
"Surviving Corporation"). The Merger shall become effective at the time (the
"Effective Time") the Buyer and Target file the Certificate of Merger with the
Secretary of State of their respective States of incorporation. The Surviving
Corporation may, at any time after the Effective Time, take any action
(including executing and delivering any document) in the name and on behalf of
either of its constituent corporations in order to carry out and effectuate the
transactions contemplated by this Agreement.
1.2 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and the Bylaws of the Buyer in effect at and as of the Effective
Time will remain the Certificate of Incorporation and the Bylaws of the
Surviving Corporation in the Merger, without any modification or amendment.
1.3 DIRECTORS AND OFFICERS. The directors and officers of the Buyer
in office at and as of the
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Effective Time will remain the directors and officers of the Surviving
Corporation. Each of such directors and officers shall retain his or her
respective position and term of office.
1.4 DELIVERY OF CONSIDERATION. At the Closing (as hereinafter
defined), in satisfaction of its obligations hereunder, the Buyer shall deliver
to the Target Shareholders, PRO RATA in accordance with their shareholdings of
the Target, ___________ shares of UAG Common Stock and UAG Options to acquire
___________ shares of UAG Common Stock. The UAG Options shall be in the form
attached to the Settlement Agreement as Exhibit 6.1(A)
2. CLOSING
2.1 CLOSING DATE. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of Arnold & Porter,
399 Park Avenue, New York, New York 10022, at 10:00 a.m. on _____________,
1996 provided that all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions with
respect to actions the Parties will take at the Closing itself) have been
satisfied or waived or such other time and date as the Parties may agree to
in writing (the "Closing Date").
2.2 ACTIONS AT THE CLOSING. At the Closing, in addition to the
delivery of the consideration provided for in Section 1.4 above, (i) the Target
will deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 2.3 below, (ii) the Buyer will deliver to the Target the
various certificates, instruments, and documents referred to in Section 2.4
below, (iii) each of the Buyer and Target will file with the Secretary of State
of its incorporation a Certificate of Merger, and (iv) the Buyer will deliver to
the Target* a qualification form to do business in the State of the Target's
incorporation, duly executed by an officer of the Buyer, unless already so
qualified in such State, in order that the Target can file such qualification
form
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* Such action is applicable only if the Target is incorporated in New
Jersey.
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with the Secretary of State of its incorporation along with the Certificate of
Merger.
2.3 DELIVERIES OF THE TARGET. At the Closing, the Target and
Target's Shareholders shall deliver the following documents to the Buyer and
UAG:
2.3.1 A certificate of good standing regarding the Target dated
as of a recent date and issued by the Secretary of State of the State of the
Target's incorporation.
2.3.2 A closing certificate in the form attached hereto as
EXHIBIT 2.3.2, duly executed by an officer of the Target and dated as of the
Closing Date, to the effect that each of the conditions specified in Section 6.1
are satisfied in all material respects.
2.3.3 A legal opinion of counsel to the Target, in a form
reasonably acceptable to the Target and the Target's Shareholders.
2.3.4 A copy of the Target's Certificate of Incorporation
certified by the Secretary of State of the State of its incorporation, and a
copy of its Bylaws certified by the President or Secretary of the Target.
2.3.5 A duly executed Registration Rights Agreement,
substantially in the form attached to the Settlement Agreement as Exhibit
6.1(A).
2.3.6 Share certificates of the capital stock of the Target held
by the Target's Stockholders, duly endorsed to the Buyer, together with all
minute books and records of the Target.
2.3.7 Such other documents, certificates and instruments as may
reasonably be requested.
2.4 DELIVERIES OF THE BUYER AND UAG. At the Closing, the Buyer and
UAG shall deliver the following documents to the Target:
2.4.1 A closing certificate in the form attached hereto as
EXHIBIT 2.4.1 by the Buyer and UAG dated as of the Closing Date to the effect
that
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each of the conditions specified in Section 6.2 are satisfied in all material
respects.
2.4.2 A legal opinion of counsel to UAG and the Buyer, in a form
reasonably acceptable to the Buyer and UAG.
2.4.3 A certificate of good standing regarding the Buyer and UAG
dated as of a recent date and issued by the Secretary of State of the State of
[Delaware].
2.4.4 A duly executed Registration Rights Agreement,
substantially in the form attached to the Settlement Agreement hereto as Exhibit
6.1(A).
2.4.5 Such other documents, certificates and instruments as may
reasonably be requested.
3. TARGET'S AND TARGET'S SHAREHOLDERS' REPRESENTATIONS AND WARRANTIES
The Target and Target's Shareholders, jointly and severally, represent and
warrant to the Buyer, as of the date of this Agreement and as of the Closing
Date, as follows:
3.1 TITLE TO TARGET'S PARTNERSHIP INTEREST. Except for certain
pledge agreements executed in connection with the Master Agreement which pledge
agreements are being terminated simultaneously herewith pursuant to the
Settlement Agreement, there are no liens or rights of others in the Partnership
Interest, except for any such liens or rights that may have been created or
suffered to be created by the Partnership or UAG.
3.2 CORPORATE STATUS. The Target is a corporation which is duly
incorporated, validly existing and in good standing under the laws of the State
in which it is incorporated.
3.3 POWER AND AUTHORITY. The Target has the corporate power and
authority to execute, deliver and perform this Agreement. This Agreement and
all transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of the Target and Target's
Shareholders.
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3.4 BINDING AGREEMENT. When executed and delivered by the Target,
this Agreement shall be the valid and binding obligation of the Target
enforceable in accordance with its terms.
3.5 ABSENCE OF CONFLICT OR BREACH. The execution, delivery and
performance of this Agreement do not and shall not conflict with or result in a
breach of any of the terms, conditions or provisions of any judgment, order,
injunction, decree or ruling of any court or arbitration tribunal or
governmental authority to which the Target is subject, or of any provision of
any agreement or understanding or arrangement to which the Target is a party or
by which the Target is bound, which would interfere with the Target's ability to
execute, deliver and perform under this Agreement.
3.6 BROKERS' FEES. The Target does not have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
3.7 LITIGATION. There is no outstanding order, writ, judgment,
stipulation, injunction, decree or determination before or by any court or
arbitration tribunal or governmental authority against the Target, and there are
no claims, actions, suits, investigations or proceedings of any kind pending,
or, to the knowledge of the Target, threatened, before any court or arbitration
tribunal or governmental authority that seek to restrain, enjoin or otherwise
prevent the consummation of the transactions contemplated by this Agreement.
3.8 TAX MATTERS. The target has timely filed all material federal,
state and local tax returns and all material information returns and reports
required to be filed by or with respect to it under the laws of the United
States or any State or other jurisdiction, for all periods ending prior to the
date hereof and will timely file all such returns and reports required to be
filed from the date hereof to the Effective Time. The Target has paid all taxes
shown on such returns and will pay prior to the Effective Time all taxes which
shall be shown on returns to be filed from the date hereof to the Effective
Time.
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3.9 CONDUCT OF BUSINESS AND UNDISCLOSED LIABILITIES. The Target is
not and has not been engaged in any business other than holding, and owns no
other material asset than, the Partnership Interest and the Target has no debts,
liabilities or obligations of any nature (whether known or unknown and whether
absolute, accrued, contingent, or otherwise) that have not been disclosed to the
Buyer and UAG in writing, except to such extent that such undisclosed
liabilities, individually or in the aggregate, would not have a material adverse
effect on the Target. The Target has not entered into any material agreement
other than the partnership agreement and any other agreements it may have with
the Partnership. The Target has no employees and no employee benefit plans
within the meaning of the Employee Retirement Income Security Act of 1974, as
amended and is not a party to any collective bargaining agreement.
3.10 IDENTITY OF TARGET SHAREHOLDERS. All of the Target's
Shareholders and their ownership percentages are set forth on Schedule 3.10.
3.11 INSURANCE. Set forth on Schedule 3.11 is a list of all
insurance policies (including policy number, insurance company issuing the
policy and amount of coverage) under which the Target is currently covered and
under which it has been covered since the date it became a party to the Master
Agreement.
3.12 CONSENTS. Except as disclosed on Schedule 4.4, there are no (i)
consents, approvals, authorizations or other actions of, or filings with, any
court, governmental authority or regulatory body and (ii) approvals,
authorizations or orders of any person under any material permits, licenses,
contracts, decrees or other restrictions to which the Partnership is a party,
known to the Target or the Target's Shareholders that are required to be
obtained, taken or filed in order for this Agreement to be executed and
delivered and the transactions contemplated hereby to be consummated.
3.13 DISCLOSURE. No representation or warranty of the Target or
Target's Shareholders omits to state a material fact necessary to make the
statements herein, in light of the circumstances in which they were made and
with respect to the subject matter thereof, not misleading.
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3.14 INVESTMENT REPRESENTATIONS.
(a) The UAG Common Stock will be acquired for the Target
Shareholders' own accounts not as a nominee or agent, and not with a view to, or
for resale in connection with, any "distribution" thereof for purposes of the
Securities Act of 1933, as amended (the "Securities Act"), except in compliance
with the Securities Act.
(b) The Target Shareholders understand that the UAG Common Stock will
not be registered under the Securities Act for purposes of the sale contemplated
herein.
(c) Each of the Target Shareholders is an "accredited investor" as
that term is defined in Regulation D promulgated under the Securities Act.
4. BUYER'S AND UAG'S REPRESENTATIONS AND WARRANTIES
The Buyer and UAG, jointly and severally, represent and warrant to the
Target and the Target's Shareholders, as of the date of this Agreement and as of
the Closing Date, as follows:
4.1 CORPORATE STATUS. Each of the Buyer and UAG is a corporation
which is duly incorporated, validly existing and in good standing under the laws
of the State of [Delaware].
4.2 POWER AND AUTHORITY. Each of the Buyer and UAG has the corporate
power and authority to execute, deliver and perform this Agreement. This
Agreement and all transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the Buyer and UAG
and by all necessary partnership action on the part of the Partnership.
4.3 BINDING AGREEMENT. When executed and delivered by the Buyer and
UAG, this Agreement shall be the valid and binding obligation of each of the
Buyer and UAG, enforceable in accordance with its terms.
4.4 CONSENTS. Except as disclosed on Schedule 4.4, there are no (i)
consents, approvals, authorizations or other actions of, or filings with,
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any court, governmental authority or regulatory body and (ii) approvals,
authorizations or orders of any person under any material permits, licenses,
contracts, decrees or other restrictions benefitting or affecting UAG, the Buyer
or the Partnership that are required to be obtained, taken or filed in order for
this Agreement to be executed and delivered and the transactions contemplated
hereby to be consummated. All of the consents, approvals, authorizations,
orders or other actions identified on Schedule 4.4 have been, or prior to the
Effective Time shall be, obtained, taken or filed.
4.5 ABSENCE OF CONFLICT OR BREACH. The execution, delivery and
performance of this Agreement do not and shall not conflict with or result in a
breach of any of the terms, conditions or provisions of any judgment, order,
injunction, decree or ruling of any court or arbitration tribunal or
governmental authority to which the Buyer or UAG is subject, or of any provision
of any agreement or understanding or arrangement to which the Buyer or UAG is a
party or by which the Buyer or UAG is bound, which would interfere with the
Target's ability to execute, deliver and perform under this Agreement.
4.6 UAG COMMON STOCK AND OPTIONS. All of the shares of UAG Common
Stock to be issued in the Merger have been duly authorized and, upon
consummation of the Merger, will be validly issued, fully paid, and
nonassessable. All of the UAG Options to be issued in the Merger have been duly
authorized and, upon consummation of the Merger, will grant valid rights to the
holder to acquire UAG Common Stock, in accordance with the terms of the UAG
Options. The shares issuable upon exercise of the UAG Options have been duly
reserved for issuance by UAG and, when issued in accordance with the terms of
the UAG Options, such shares will be validly issued, fully paid and
nonassessable.
4.7 BROKERS' FEES. Neither UAG nor the Buyer has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Target
or Target Shareholders could become liable or obligated.
4.8 LITIGATION. There is no outstanding order, writ, judgment,
stipulation, injunction, decree
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or determination before or by any court or arbitration tribunal or governmental
authority against the Buyer or UAG, and there are no claims, actions, suits,
investigations or proceedings of any kind pending, or, to the knowledge of the
Buyer or UAG, threatened, before any court or arbitration tribunal or
governmental authority that seek to restrain, enjoin or otherwise prevent the
consummation of the transactions contemplated by this Agreement.
4.9 DISCLOSURE. The final prospectus used by UAG in connection with
its initial public offering and any supplement or amendment thereto when filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, in light of the circumstances in which
they were made.
5. COVENANTS OF THE PARTIES
The Parties agree as follows with respect to the period from and after the
execution of this Agreement:
5.1 GENERAL. Each of the Parties will use its best efforts to take
all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by the Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section 6
below).
5.2 FILINGS. Each of the Parties shall cooperate with one another in
filing, supplying, or causing to be filed or supplied, as promptly as
practicable, all applications, notifications and information required to be
filed or supplied by it or by the Partnerships pursuant to (i) applicable law
and (ii) all then applicable agreements to which the other Parties are a party,
in connection with the Merger pursuant to this Agreement.
5.3 THIRD PARTY CONSENTS. The Parties shall cooperate with one
another in obtaining consents and approvals from third parties with respect to
the transactions contemplated by this Agreement.
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5.4 NOTICE OF DEVELOPMENTS. Each Party will give prompt written
notice to the other of any material adverse development causing a breach of any
of its own representations and warranties in Section 3 and Section 4 above.
6. CONDITIONS TO CLOSING
6.1 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligations of the
Buyer to consummate the transactions contemplated hereunder shall be subject to
the fulfillment (or waiver by the Buyer) on or prior to the Closing Date of the
following additional conditions, which the Target agrees to use its best efforts
to cause to be fulfilled:
6.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Target and the Target's Shareholders contained in Section 3
hereof shall be true and correct in all material respects on and as of the date
hereof and shall be true and correct in all material respects on and as of the
Closing Date with the same effect as though made on and as of the Closing Date.
6.1.2 COVENANTS. The Target shall have performed and complied
with all of its covenants contained in Section 5 hereof in all material respects
through the Closing.
6.1.3 INSTRUMENT EVIDENCING ASSUMPTION OF LIABILITY. The Buyer
will deliver to the Target an instrument in the form attached hereto as EXHIBIT
6.1.3, duly executed by an officer of the Buyer, to the effect that the Buyer
assumes the tax liabilities of the Target, in order that the Target can expedite
the tax clearance procedure which is required to be satisfied prior to the
filing of a Certificate of
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Merger.** If any such instrument is delivered it shall have no impact upon, and
shall not modify the rights of, the Parties as more fully set forth in Section
7.
6.1.4 DELIVERY OF ALL DOCUMENTS. At the Closing, the Target
shall have delivered all the documents, certificates and other deliveries set
forth in Section 2.3 hereof.
6.2 CONDITIONS TO OBLIGATIONS OF THE TARGET. The obligations of the
Target to consummate the transactions contemplated hereunder shall be subject to
the fulfillment (or waiver by the Target), on or prior to the Closing Date, of
the following additional conditions, which the Buyer and UAG agree to use their
best efforts to cause to be fulfilled:
6.2.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Buyer and UAG contained in Section 4 hereof shall be true and
correct in all material respects on and as of the date hereof and shall be true
and correct in all material respects on and as of the Closing Date with the same
effect as though made on and as of the Closing Date.
6.2.2 COVENANTS. The Buyer and UAG shall have performed and
complied with all of its covenants contained in Section 5 hereof in all material
respects through the Closing.
6.2.3 CONSENTS. The Buyer and UAG shall have obtained and
delivered to the Target any governmental or third party consents, authorizations
or approvals, including any manufacturer consent, to the transactions
contemplated by this Agreement required to be obtained by the Buyer, UAG or the
Partnership.
6.2.4 DELIVERY OF ALL DOCUMENTS. At the Closing, the Buyer and
UAG shall have delivered all the documents, certificates and other deliveries
set forth in Section 2.4 hereof.
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** Such instrument is required only if the Target is incorporated in the
State of New York and the Buyer is not incorporated in the State of New York.
Alternatively, the Buyer may reincorporate in the State of New York, which will
eliminate the Target's need to obtain tax clearance altogether.
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7. INDEMNIFICATION
7.1 GENERAL INDEMNIFICATION OF THE TARGET SHAREHOLDERS. Except as
provided in Section 7.3, the Surviving Corporation and UAG, jointly and
severally, shall defend, indemnify and hold the Target Shareholders harmless
from and against any and all claims, liabilities, obligations, whether absolute,
accrued, contingent or otherwise and whether a contractual or any other type of
liability, obligation or claim (other than income tax liabilities of the Target
Shareholders arising from the transactions contemplated by this Agreement)
including, without limitation, all damages, losses and expenses, reasonable fees
of experts and attorneys and all costs of suit, suffered or incurred or to be
suffered or incurred by the Target and the Target Shareholders (i) arising out
of the breach of any or all representations and warranties made by or on behalf
of the Buyer or UAG in this Agreement or in any document delivered hereunder,
and (ii) arising from or out of the operations of the Target or the Surviving
Corporation. The Surviving Corporation and UAG shall indemnify and hold
harmless the present and former officers and directors and employee benefit plan
fiduciaries of the Target in respect of acts or omissions occurring at or prior
to the Effective Time to the same extent now provided under the Target's
Articles of Incorporation and By-Laws in effect on the date hereof.
7.2 INDEMNIFICATION OF UAG AND THE SURVIVING CORPORATION. Except as
provided in Section 7.3, the Target Shareholders jointly and severally shall
defend, indemnify and hold UAG, and the Surviving Corporation harmless from and
against any and all claims, liabilities, obligations, whether absolute, accrued,
contingent or otherwise and whether a contractual or any other type of
liability, obligation or claim including, without limitation, all damages,
losses and expenses, reasonable fees of experts and attorneys and all costs of
suit, suffered or incurred or to be suffered or incurred by UAG and the
Surviving Corporation arising out of the breach of any or all representations
and warranties and covenants made by the Target and the Target's Shareholders in
this Agreement or in any document delivered hereunder.
7.3 SPECIAL TAX INDEMNITY. Notwithstanding any other provision of this
Section 7, except for the Tax Liabilities referred to in the following sentence,
the
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Target Shareholders shall be liable for, and shall indemnify and hold UAG and
the Surviving Corporation harmless from and against, any and all claims,
liabilities and obligations in respect of income or franchise taxes, whether
absolute, accrued, contingent or otherwise (herein, "Tax Liabilities"), asserted
against the Target for any period prior to the Effective Time. Each of the
Buyer, Surviving Corporation and UAG shall be liable for, and shall indemnify
and hold the Target Shareholders harmless from and against, any Tax Liabilities
(in excess of those shown on returns filed by the Target for periods prior to
the Effective Time) asserted against the Target as a result of adjustments by
any tax authority or the Partnership to any items of income, gain, deduction,
loss or credit allocable to the Target in respect of Target's interest in the
Partnership for any period after the formation of the Partnership and prior to
the Effective Time.
7.4 INDEMNIFICATION PROCEDURE. A party seeking indemnification
pursuant to this Section 7 (an "indemnified party") shall give prompt notice to
the party from whom such indemnification is sought (the "indemnifying party") of
the assertion of any claim, or the commencement of any action or proceeding, in
respect of which indemnity may be sought hereunder. The indemnifying party
shall have the right to assume the defense (in consultation and cooperation with
the indemnified party, in good faith and to the extent appropriate under the
circumstances) of any such suit, action or proceeding at its own expense. If an
indemnifying party shall elect not to assume the defense of any such suit,
action or proceeding, the indemnified party may assume such defense at the
expense of the indemnifying party. An indemnifying party shall not be liable
under this Section 7 for any settlement effected without its consent of any
claim, litigation or proceeding in respect of which indemnity may be sought
hereunder. No investigation by an indemnified party at or prior to the Closing
shall relieve an indemnifying party of any liability hereunder.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The Buyer, UAG, the Target and the Target's Shareholders agree that the
representations and warranties of each party in Section 3 and Section 4, the
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indemnification provisions in Section 7 and the registration rights granted to
the Target Shareholders in Section 9 shall survive the Closing.
9. REGISTRATION RIGHTS
UAG shall grant the Target Shareholders registration rights upon the terms
and conditions set forth in the form of a Registration Rights Agreement attached
to the Settlement Agreement as Exhibit 6.1(A) (the "Registration Rights
Agreement").
10. CERTAIN TAX MATTERS
After the Closing, the Target Shareholders shall cooperate with respect to
any audit or other administrative or court proceedings with respect to taxes and
tax returns of the Target for periods ending on or before the Closing Date, in
each case including maintaining and making available to the Surviving
Corporation and UAG all records necessary in connection with taxes payable with
respect to such tax returns and in resolving all disputes and audits and refunds
with respect to such tax returns and taxes and any earlier tax returns and taxes
of the Target. Any refunds of or credits for taxes of the Target with respect
to any taxable period ending on or before the Closing Date shall be for the
account of the Target Shareholders and if received or utilized by the Surviving
Corporation or UAG shall be paid to Target Shareholders within five business
days after the Surviving Corporation or UAG receives such refund or utilizes
such credit. The Surviving Corporation and UAG shall cooperate, and shall cause
their respective officers, employees, agents, auditors and representatives to
cooperate, with respect to any audit or other administrative or court
proceedings with respect to taxes and returns of the Target for periods ending
on or before the Closing Date, in each case including maintaining and making
available to the Target Shareholders all available records necessary in
connection with taxes payable with respect to such tax returns and in resolving
all disputes, audits and refunds with respect to such returns and taxes and any
earlier returns and taxes of Target.
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11. MISCELLANEOUS
11.1 NO WAIVER. No waiver of any term, condition, default, or breach
of this Agreement, or of any document executed pursuant hereto, shall be
effective unless in writing and executed by the party making such waiver; no
such waiver shall operate as a waiver of either (i) such term, condition,
default, or breach on any other occasion, or (ii) any other term, condition,
default, or breach of this Agreement. No delay or failure to enforce any
provision of this Agreement or of any document executed pursuant hereto shall
operate as a waiver of such provision or any other provision herein or therein.
The enforcement by any party of any right it may have under this Agreement or
under applicable laws shall not be deemed an election of remedies or otherwise
prevent such party from enforcement of one or more other remedies at any time.
11.2 CONSTRUCTION; PRONOUNS. The rule of construction construing
ambiguities in documents against their drafters shall not be applicable to the
construction of this Agreement. All words used herein shall be construed
according to their proper gender and number, as the context shall require.
11.3 PARTIES BOUND. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of, and be enforceable by and
against, the Parties hereto and their respective heirs, representatives,
successors and permitted assigns.
11.4 NOTICES. Any and all notices, requests, communications, or
demands required or permitted to be given hereunder shall be in writing, and
shall be delivered either (i) in person or by electronic facsimile, (ii) by an
established overnight delivery service, or (iii) by certified mail, return
receipt requested, addressed as follows:
If to Target: Joseph C. DiFeo
and
Samuel X. DiFeo
121 Lorraine Avenue
Spring Lake, New Jersey 07762
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copy to: Arnold & Porter
399 Park Avenue
New York, New York 10022
Fax: (212) 715-1399
Phone: (212) 715-1000
Attention: Michael J. Canning, Esq.
If to UAG or
Buyer: United Auto Group, Inc.
375 Park Avenue - 11th Floor
New York, New York 10152
Fax: (212) 593-1363
Phone: (212) 230-0493
Attention: Philip N. Smith, Jr., Esq.
copy to:
If by Hand: Bressler, Amery & Ross, P.C.
325 Columbia Turnpike
Florham Park, New Jersey 07932
Fax: (201) 514-1660
Phone: (201) 514-1200
Attention: Edward P. McKenzie, Esq.
If by Mail: P.O. Box 1980
Morristown, New Jersey 07962
or to such other address or addresses as any party may designate to the others
by notice given as provided above. Notices delivered in person or by electronic
facsimile shall be deemed to have been given on the date of delivery; notices
delivered by overnight delivery service shall be deemed to have been given on
the business day following the date of deposit with such overnight delivery
service; and notices given by mail shall be deemed to have been given three (3)
days after the date of mailing.
11.5 GOVERNING LAW. The rights and duties of the parties and the
validity, construction, enforcement, and interpretation of this Agreement shall
be determined according to the laws of the State of New York.
11.6 SUBMISSION TO JURISDICTION. The Parties hereby agree that the
Federal courts of the United States sitting in the Southern District of New York
and the courts of the State of New York sitting in the City of New York shall
have the exclusive
-17-
jurisdiction in respect of any legal action or proceeding arising out of or
relating to this Agreement or to the transactions contemplated hereunder.
11.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
UNITED AUTO GROUP, INC.
By:
-------------------------
Name:
Title:
[BUYER]
By:
-------------------------
Name:
Title:
[TARGET]
By:
-------------------------
Name:
Title:
[TARGET'S SHAREHOLDERS]
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
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EXHIBIT 2.3.2
CERTIFICATE OF THE TARGET
Pursuant to Section 2.3.2 of the Agreement and Plan of Merger dated as of
, 1996 (the "Agreement") among the undersigned and ________________ (the
"Buyer") and United Auto Group Inc., the undersigned, by executing this
Certificate and delivering it to the Buyer and UAG certifies to the Buyer and
UAG knowing and intending that the Buyer and UAG are relying hereon that:
1. The representations and warranties of the Target contained in Section 3
of the Agreement are true and correct in all material respects on and as of the
date hereof.
2. The undersigned has performed and complied in all material respects
with all covenants contained in Section 5 required by the Agreement to be
performed or complied with by it on or prior to the date hereof.
3. All conditions to the undersigned's obligations under the Agreement
have been satisfied in all material respects.
[TARGET]
By:
-------------------------
Name:
[TARGET'S SHAREHOLDERS]
By:
-------------------------
Name:
By:
-------------------------
Name
EXHIBIT 2.4.1
CERTIFICATE OF THE BUYER AND UAG
Pursuant to Section 2.4.1 of the Agreement and Plan of Merger (the
"Agreement") dated as of , 1996 among the undersigned and United Auto
Group, Inc., and _____________________________________ (the "Target") and
__________________________________ (the "Target's Shareholders"), the
undersigned, by executing this Certificate and delivering it to the Target,
certifies to the Target, knowing and intending that the Target is relying hereon
that:
1. The representations and warranties of the undersigned contained in
Section 4 of the Agreement are true and correct in all material respects on as
of the date hereof.
2. Each of the undersigned has performed and complied in all material
respects with all covenants contained in Section 5 required by the Agreement to
be performed or complied with by it on or prior to the date hereof.
3. All conditions to the undersigneds' obligations under the Agreement
have been satisfied in all material respects.
[BUYER]
By:
-------------------------
Name:
Title:
UNITED AUTO GROUP, INC.
By:
-------------------------
Name:
Title:
-2-
EXHIBIT 6.1.3
ASSUMPTION OF LIABILITY
_____________________, a corporation organized under the laws of the State
of __________, does hereby guarantee that it will file, or cause to be filed,
all returns required of _____________________________, a corporation organized
under the laws of the State of __________, and does assume the liability for and
guarantee the payment of all taxes accrued and owing by said
__________________________, the ________________ corporation.
-----------------------
By
---------------------
(Vice) President
ATTEST:
- --------------------------------
(Assistant) Secretary
STATE OF ___________)
) SS.:
COUNTY OF __________)
I, _______________, a Notary Public, do hereby certify that on the ______
day of ________, 1996, personally appeared before me ____________________, and,
being first duly sworn by me, acknowledged that he signed the foregoing document
in the capacity therein set forth and declared that the statements therein
contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
-------------------------
Notary Public