Exhibit 3.2
RESTATED CERTIFICATE OF INCORPORATION
(COMPOSITE COPY AS OF 5/3/2006)
OF
UNITED AUTO GROUP, INC.
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ARTICLE I
NAME
The name of the corporation is: United Auto Group, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
the Corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSE
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware (the
"DGCL").
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ARTICLE IV
CAPITAL
1. Designation.
The total number of shares of capital stock which the Corporation shall have the
authority to issue is 267,225,000, consisting of: (i) 240,000,000 shares of
Voting Common Stock, par value $0.0001 per share (the "Voting Common Stock");
(ii) 7,125,000 shares of Non-Voting Common Stock, par value $0.0001 per share
(the "Non-Voting Common Stock"); (iii) 20,000,000 shares of Class C Common
Stock, par value $0.0001 per share (the "Class C Common Stock" and collectively
with the Voting Common Stock, and the Non-Voting Common Stock, the "Common
Stock"); and (iv) 100,000 shares of Preferred Stock, par value $0.0001 per
share.
All shares of Common Stock issued and outstanding shall be identical and shall
entitle the holders thereof to the same rights and privileges, except as
otherwise provided in this Article IV. Holders of shares of Common Stock shall
not have preemptive or other rights to subscribe for additional shares of Common
Stock or for any other securities of the Corporation.
The Preferred Stock may be issued from time to time in one or more series. The
Board of Directors of the Corporation (the "Board") is expressly authorized at
any time, and from time to time, to provide for the issuance of shares of
Preferred Stock in one or more series, for such consideration (not less than its
par value) and with such designations, powers, preferences and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions, as shall be determined by the Board and fixed by
resolution or resolutions adopted by the Board providing for the number of
shares in each such series.
2. Voting Power of Common Stock.
(a) Except as otherwise required by law, each holder of Voting Common Stock
shall be entitled to vote on all matters and shall be entitled to one vote for
each share of Voting Common Stock standing in such holder's name on the books of
the Corporation determined as of the record date for the determination of
stockholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken.
(b) Except as provided in this Section 2 or as otherwise required by law, no
holder of Non-Voting Common Stock shall be entitled to vote such stock on any
matter on which the stockholders of the Corporation shall be entitled to vote,
and shares of Non-Voting Common Stock shall not be included in determining the
number of shares voting or entitled to vote on any such matters; provided that
the holders of Non-Voting Common Stock shall have the right to vote as a
separate class on any merger or consolidation of the Corporation with or into
another entity or entities, or any recapitalization or reorganization, in which
shares of Non-Voting Common Stock would receive or be exchanged for
consideration different on a per share basis from consideration received with
respect to or in exchange for the shares of Voting Common Stock or would
otherwise be treated differently from shares of Voting Common Stock in
connection with such transaction, except that shares of Non-Voting Common Stock
may, without
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such a separate class vote, receive or be exchanged for non-voting securities
which are otherwise identical on a per share basis in amount and form to the
voting securities received with respect to or exchanged for the Voting Common
Stock so long as (i) such non-voting securities are convertible into such voting
securities on the same terms as the Non-Voting Common Stock is convertible into
Voting Common Stock and (ii) all other consideration is equal on a per share
basis. Notwithstanding the foregoing, holders of shares of the Non-Voting Common
Stock shall be entitled to vote as a separate class on any amendment to this
paragraph (b) of this Section 2.
(c) Except as provided in this Section 2 or as otherwise required by law, each
holder of Class C Common Stock shall be entitled to one-tenth of one vote for
each share of Class C Common Stock standing in such holder's name on the books
of the Corporation determined as of the record date for the determination of
stockholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken, and each share of Class C Common
Stock shall be counted as one-tenth of one share in determining the number of
shares voting or entitled to vote on any such matters.
(d) Except as otherwise provided in this Section 2 or as otherwise required by
law, the holders of shares of Voting Common Stock and Class C Common Stock and,
on any matter on which the holders of shares of Non-Voting Common Stock are
entitled to vote, the holders of shares of Non-Voting Common Stock, shall vote
together as a single class; provided, however, that the holders of shares of
Non-Voting Common Stock or Class C Common Stock shall be entitled to vote as a
separate class on any amendment, repeal or modification of any provision of this
Certificate of Incorporation that adversely affects the powers, preferences or
special rights of the holders of the Non-Voting Common Stock or Class C Common
Stock, respectively.
3. Certain Provisions relating to Common Stock.
(a) Subject to and upon compliance with the provisions of this Section 3, any
Regulated Stockholder (as hereinafter defined) shall be entitled to convert, at
any time and from time to time, any or all of the shares of Voting Common Stock
held by such stockholder into an equal number of shares of Non-Voting Common
Stock.
(b) Subject to and upon compliance with the provisions of this Section 3, each
holder of Non-Voting Common Stock shall be entitled to convert, at any time and
from time to time, any or all of the shares of Non-Voting Common Stock held by
such stockholder into an equal number of shares of Voting Common Stock;
provided, however, that no holder of shares of Non-Voting Common Stock shall be
entitled to convert any such shares to the extent that, as a result of such
conversion, such holder and its Affiliates (as hereinafter defined), directly or
indirectly, would own, control or have the power to vote (i) a greater number of
shares of Voting Common Stock or other securities of any kind issued by the
Corporation than such holder and its Affiliates shall be permitted to own,
control or have power to vote under any law, regulation, rule or other
requirement of any governmental authority at the time applicable to such holder
or its Affiliates or (ii) with respect to a holder or Affiliate that is subject
to regulation under the insurance laws of any jurisdiction, 5% or more of the
outstanding voting capital stock of the Corporation and, provided, further, that
each holder of Non-Voting Common Stock may convert such shares into Voting
Common Stock if such holder reasonably believes that such converted shares will
be
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transferred within fifteen (15) days pursuant to a Conversion Event (as
hereinafter defined) and such holder agrees not to vote any such shares of
Voting Common Stock prior to such Conversion Event and undertakes to promptly
convert such shares back into Non-Voting Common Stock if such shares are not
transferred pursuant to a Conversion Event. Each Regulated Stockholder may
provide for further restrictions upon the conversion of any shares of Non-Voting
Common Stock by providing the Corporation with signed, written instructions
specifying such additional restrictions and legending such shares as to the
existence of such restrictions.
(c) To exercise its conversion privilege pursuant to this Section 3, a holder of
Common Stock shall surrender the certificate or certificates representing the
shares of Common Stock being converted (the "Converting Shares") to the
Corporation's transfer agent and shall give written notice to the Corporation
and its transfer agent that such holder elects to convert the Converting Shares
into an equal number of shares of the class into which such shares may be
converted (the "Converted Shares"). Such notice shall also state the name or
names (with address or addresses) and denominations in which the certificate or
certificates for Converted Shares are to be issued. The Corporation shall
promptly notify each Regulated Stockholder (that has previously informed the
Corporation in writing of its status as a Regulated Stockholder) of its receipt
of such notice. The certificate or certificates for Converting Shares shall be
accompanied by proper assignment thereof to the Corporation or in blank. The
date when such written notice is received by the Corporation's transfer agent,
together with the certificate or certificates representing the Converting
Shares, shall be the "Conversion Date." As promptly as possible after the
Conversion Date, the Corporation shall issue and deliver to the holder of the
Converting Shares, or on its written order, such certificate or certificates as
it may request for the Converted Shares issuable upon such conversion, and the
Corporation shall deliver to the converting holder a certificate (which shall
contain such legends as were set forth on the surrendered certificate or
certificates) representing any shares which were represented by the certificate
or certificates that were delivered to the Corporation in connection with such
conversion but which were not converted, provided, however, that if such
conversion is subject to part (d) of this Section 3, the Corporation shall not
issue such certificate or certificates until the expiration of the Deferral
Period (as hereinafter defined) referred to therein. Such conversion, to the
extent permitted by the close of business on the Conversion Date, and at such
time the rights of the holder of the Converting Shares as such holder shall
cease (except that, in the case of a conversion subject to part (d) of this
Section 3, the conversion shall be deemed effective upon the expiration of the
Deferral Period referred to therein), and the person or persons in whose name or
names the certificate or certificates for the Converted Shares shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the Converted Shares. Upon the issuance of shares in accordance with
this Section 3, such Converted Shares shall be deemed to be duly authorized,
validly issued, fully paid and non-assessable. Notwithstanding any provision of
this Section 3 to the contrary, each holder of Non-Voting Common Stock shall be
entitled to convert shares of Non-Voting Common Stock in connection with any
Conversion Event if such holder reasonably believes that such Conversion Event
will be consummated, and a written request for conversion from any holder of
Non-Voting Common Stock to the Corporation stating such holder's reasonable
belief that a Conversion Event shall occur shall be conclusive and shall
obligate the Corporation to effect such conversion in a timely manner so as to
enable each such holder to participate in such Conversion Event. The Corporation
will not cancel the shares of
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Non-Voting Common Stock so converted before the 15th day following such
Conversion Event and will reserve such shares until such 15th day for reissuance
in compliance with the next sentence. If any shares of Non-Voting Common Stock
are converted into shares of Voting Common Stock in connection with a Conversion
Event and such shares of Voting Common Stock are not actually distributed,
disposed of or sold pursuant to such Conversion Event, such shares of Voting
Common Stock shall be promptly converted back into the same number of shares of
Non-Voting Common Stock.
(d) The Corporation shall not convert or directly or indirectly redeem, purchase
or otherwise acquire any shares of Voting Common Stock or any other class of
capital stock of the Corporation or take any other action affecting the voting
rights of such shares if such action will increase the percentage of any class
of outstanding voting securities owned or controlled by any Regulated
Stockholder (other than any such stockholder which requested that the
Corporation take such action or which otherwise waives in writing its rights
under part (d) of this Section 3) unless the Corporation gives written notice
(the "Deferral Notice") of such action to each Regulated Stockholder (that has
previously informed the Corporation in writing of its status as a Regulated
Stockholder). The Corporation shall defer making any such conversion,
redemption, purchase or other acquisition, or taking any such other action, for
a period of 30 days (the "Deferral Period") after giving the Deferral Notice in
order to allow each Regulated Stockholder to determine whether it wishes to
convert or take any other action with respect to the Common Stock it owns,
controls or has the power to vote, and if any such Regulated Stockholder then
elects to convert any shares of Voting Common Stock it shall notify the
Corporation in writing within 20 days of the issuance of the Deferral Notice, in
which case the Corporation shall (i) defer taking the pending action until the
end of the Deferral Period, (ii) promptly notify from time to time each other
Regulated Stockholder of each proposed conversion and the proposed transactions
and (iii) effect the conversions requested by all Regulated Stockholders in
response to the notices issued pursuant to part (d) of this Section 3 at the end
of the Deferral Period.
(e) If the Corporation shall in any manner subdivide (by stock split, stock
dividend or otherwise) or combine (by reverse stock split or otherwise) the
outstanding shares of the Voting Common Stock, the Non-Voting Common Stock or
the Class C Common Stock, the outstanding shares of each other class of Common
Stock shall be subdivided or combined, as the case may be, to the same extent,
share and share alike, and effective provision shall be made for the protection
of the conversion rights hereunder.
If, at any time and from time to time, there shall be a capital reorganization
of the Voting Common Stock (other than a change in par value or from par value
to no par value or from no par value to par value as a result of any stock
dividend or subdivision, split-up or combination of shares) or a merger or
consolidation of the Corporation with or into another corporation, or sale of
all or substantially all of the Corporation's properties and assets, then, as
part of such reorganization, merger, consolidation or sale, provision shall be
made so that each holder of any shares of Non-Voting Common Stock shall
thereafter be entitled to receive upon conversion of any such shares, so long as
the conversion right hereunder with respect to such shares would exist had such
event not occurred, the number of shares of stock or other securities or
property of the Corporation, or of the successor corporation resulting from such
merger, consolidation or sale, to which such holder would have been entitled if
such holder had converted such shares
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immediately prior to such capital reorganization, merger, consolidation or sale.
In the event of such a merger, consolidation or sale, effective provision shall
be made in the certificate of incorporation of the successor corporation or
otherwise for the protection of the conversion rights of the shares of
Non-Voting Common Stock that shall be applicable, as nearly as reasonably may
be, to any such other shares of stock and other securities and property
deliverable upon conversion of shares of Voting Common Stock into which such
Non-Voting Common Stock could have been converted immediately prior to such
event. The Corporation shall not be a party to any reorganization, merger or
consolidation pursuant to which any Regulated Stockholder would be required to
take (i) any voting securities which would cause such holder to violate any law,
regulation or other requirement of any governmental body applicable to such
holder or (ii) any securities convertible into voting securities which if such
conversion took place would cause such holder to violate any law, regulation or
other requirement of any governmental body applicable to such holder, other than
securities which are specifically provided to be convertible only in the event
that such conversion may occur without any such violation.
(f) The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Voting Common Stock, Non-Voting Common Stock
or its treasury shares, solely for the purpose of effecting the conversion of
shares of Voting Common Stock and Non-Voting Common Stock, such number of shares
of such class as shall from time to time be sufficient to effect the conversion
of all then outstanding shares of Voting Common Stock that are entitled to so
convert and all then outstanding shares of Non-Voting Common Stock.
(g) The issuance of certificates for shares of any class of Common Stock upon
conversion of shares of any other class of Common Stock pursuant to this Section
3 shall be made without charge to the holders of such shares for any issuance
tax in respect thereof or other cost incurred by the Corporation in connection
with such conversion and the related issuance of shares of Common Stock;
provided, however, that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
Common Stock converted.
(h) "Conversion Event" shall mean (a) any public offering or public sale of
securities of the Corporation (including a public offering registered under the
Securities Act of 1933 and a public sale pursuant to Rule 144 of the Securities
and Exchange Commission or any similar rule then in force), (b) any sale of
securities of the Corporation to a person or group of persons (within the
meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")) if,
after such sale, such person or group of persons in the aggregate would own or
control securities which possess in the aggregate the ordinary voting power to
elect a majority of the Corporation's directors (provided that such sale has
been approved by the Corporation's Board of Directors or a committee thereof),
(c) any sale of securities of the Corporation to a person or group of persons
(within the meaning of the 1934 Act) if, after such sale, such person or group
of persons in the aggregate would own or control securities of the Corporation
(excluding any Non-Voting Common Stock being converted and disposed of in
connection with such Conversion Event) which possess in the aggregate the
ordinary voting power to elect a majority of the Corporation's directors, (d)
any sale of securities of the Corporation to a person or group of persons
(within the meaning of the 1934 Act) if, after such sale, such person or group
of persons would not, in the
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aggregate, own, control or have the right to acquire more than two percent (2%)
of the outstanding securities of any class of voting securities of the
Corporation, and (e) a merger, consolidation or similar transaction involving
the Corporation if, after such transaction, a person or group of persons (within
the meaning of the 1934 Act) in the aggregate would own or control securities
which possess in the aggregate the ordinary voting power to elect a majority of
the surviving corporation's directors (provided that the transaction has been
approved by the Corporation's Board of Directors or committee thereof).
"Affiliate" shall mean with respect to any person, any other person, directly or
indirectly controlling, controlled by or under common control with such person.
For the purpose of the above definition, the term "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
"Regulated Stockholder" shall mean (i) any stockholder that is subject to the
provisions of Regulation Y of the Board of Governors of the Federal Reserve
System (12 C.F.R. Part 225) or any successor to such regulation ("Regulation Y")
and to which shares of Common Stock of the Corporation were issued pursuant to
the warrants issued to J.P. Morgan Capital Corporation, so long as such
stockholder shall hold such shares of Common Stock or shares issued upon
conversion(s) of such shares, (ii) any stockholder that is subject to regulation
under the New York Insurance Law and to which shares of Common Stock of the
Corporation were issued pursuant to the warrants issued to The Equitable Life
Assurance Society of the United States, so long as such stockholder shall hold
such shares of Common Stock or shares issued upon conversion(s) of such shares,
(iii) any Affiliate of any such Regulated Stockholder that is a transferee of
any such shares of Common Stock of the Corporation, so long as such Affiliate
shall hold, and only with respect to, such shares of Common Stock or shares
issued upon conversion of such shares (iv) any person to which such Regulated
Stockholder or any of its Affiliates has transferred such shares, so long as
such transferee shall hold, and only with respect to, any shares transferred by
such stockholder or Affiliates or any shares issued upon conversion of such
shares but only if such person (or any Affiliate of such person) is (A) subject
to the provisions of Regulation Y or (B) subject to regulation under the
insurance laws of any jurisdiction, and (v) International Motor Cars Group II,
LLC, Chase Equity Associates, L.P. or any other stockholder (x) that is subject
to the provisions of Regulation Y and (y) that holds shares of Common Stock or
Preferred Stock of the Corporation.
ARTICLE V
BOARD OF DIRECTORS
Except as otherwise provided by law, the number of directors which shall
constitute the Board shall be as set forth in the Bylaws of the Corporation.
Elections of directors need not be by written ballot. At each annual meeting of
stockholders of the Corporation, the directors elected at such meeting shall
serve for a one-year term expiring at the next annual meeting of stockholders or
until their earlier death, resignation or removal.
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ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the
Board is expressly authorized to make, alter or repeal Bylaws of the Corporation
(except insofar as Bylaws adopted by the stockholders shall otherwise provide).
ARTICLE VII
AGREEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the DGCL, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE VIII
NO STOCKHOLDER ACTION WITHOUT MEETING
Any action required or permitted to be taken at an annual or special meeting of
the Corporation's stockholders may be taken only at such duly called annual or
special meeting.
ARTICLE IX
INDEMNIFICATION
The Corporation shall indemnify to the fullest extent permitted under and in
accordance with the laws of the State of Delaware any person who was or is a
party or is threatened to be made a
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party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was a director, officer, trustee, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of or in any other capacity with
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Expenses incurred in defending a civil or criminal action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director of the
Corporation) or may (in the case of any action, suit or proceeding against an
officer, trustee, employee or agent) be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board upon receipt of an undertaking by or on behalf of the indemnified person
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article IX.
The indemnification and other rights set forth in this Article IX shall not be
exclusive of any provisions with respect thereto in the Bylaws or any other
contract or agreement between the Corporation and any director, officer,
trustee, employee or agent of the Corporation.
Neither the amendment nor repeal of this Article IX, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
IX, shall eliminate or reduce the effect of this Article IX in respect of any
matter occurring before such amendment, repeal or adoption of an inconsistent
provision or in respect of any cause of action, suit or claim relating to any
such matter which would have given rise to a right of indemnification or right
to receive expenses pursuant to this Article IX, if such provision had not been
so amended or repealed or if a provision inconsistent therewith had not been so
adopted.
ARTICLE X
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
To the fullest extent permitted by the DGCL, as the same presently exists or may
hereafter be amended, no director shall be personally liable to the Corporation
or to any stockholder for monetary damages for breach of fiduciary duty as a
director, except for any matter in respect of which such director (a) shall be
liable under Section 174 of the DGCL or any amendment thereto or successor
provision thereto, or (b) shall be liable by reason that, in addition to any and
all other requirements for liability, he (A) shall have breached his duty of
loyalty to the Corporation or its stockholders, (B) shall not have acted in good
faith or, in failing to act, shall not have acted in good faith, (C) shall have
acted in a manner involving intentional misconduct or a knowing violation of law
or, in failing to act, shall have acted in a manner involving intentional
misconduct or a knowing violation of law or (d) shall have derived an improper
personal benefit.
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Any repeal or modification of this Article X shall no adversely affect any right
or protection of a director with respect to any act or omission occurring prior
to such repeal or modification. If the DGCL is amended after the date of
incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
ARTICLE XI
SEVERABILITY
If any provisions contained in this Certificate of Incorporation shall for any
reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not invalidate this entire
Certificate of Incorporation or any other provisions hereof. Such provision
shall be deemed to be modified to the extent necessary to render it valid and
enforceable and if no such modification shall render it valid and enforceable,
then this Certificate of Incorporation shall be construed as if not containing
such provision.
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