Exhibit 4.3
February 25, 2000
Sonic Automotive, Inc.
5401 East Independence Blvd.
Charlotte, NC 28212
Attn: Theodore M. Wright
RE: SONIC AUTOMOTIVE / MANHATTAN AUTO GROUP
Dear Mr. Wright:
The parties hereto hereby agree as follows:
1. Reference is hereby made to (a) the Agreement and Plan of Merger
dated April 6, 1999, as amended (the "MERGER AGREEMENT"), among Sonic
Automotive, Inc. ("SONIC"), Manhattan Auto, Inc., ("MANHATTAN") and Joseph
Herson, Mollye Mills, John Jaffe and Richard Mills (collectively, the "SELLERS")
and (b) that certain side letter agreement dated August 3, 1999 (the "SIDE
LETTER AGREEMENT"), among Sonic, Manhattan and the Sellers, which side letter is
referred to as the Registration Rights Amendment. Each capitalized term used
herein and not defined herein shall have the meaning ascribed to such term in
the Merger Agreement.
2. DELIVERY OF SHARES. Sonic shall issue to the Sellers 750,745 shares
of Class A Common Stock of Sonic ("COMMON STOCK") in full satisfaction of
Sonic's obligations under Section 1.2(f) of the Merger Agreement and Section
2(a) of the Side Letter Agreement. Each Seller will receive the number of shares
set forth on Schedule A which is attached hereto and incorporated herein by
reference.
3. DEFINITIONS.
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(a) BASE PRICE. The "BASE PRICE" means $8.9563 per share of
Common Stock.
(b) SALES PRICE. The "SALES PRICE" means: (i) with respect to
a Sonic repurchase of Shares, the closing price on the New York Stock Exchange
for one share of Common Stock on the last trading day prior to the Sale Date (as
defined in Section 6(b) hereof); and (ii) with respect to a sale of Shares in a
trade, the actual sales price for one share of Common Stock.
(c) SHARES. The "SHARES" means 2,009,757 shares of Common
Stock owned by the Sellers, as reflected on Schedule B which is attached hereto
and incorporated herein by reference.
(d) TERM. The "TERM" shall mean, with respect to each Seller,
the period
beginning on the date hereof and ending on the earlier to occur of the
following: (i) the date upon which all of the Seller's Shares have been
repurchased or sold hereunder; or (ii) the Termination Date (as defined in
Section 7(a) hereof).
(d) TERMINATION PRICE. The "TERMINATION PRICE" means the
average of the daily closing prices on the New York Stock Exchange for one share
of Common Stock for the twenty (20) consecutive trading days prior to the
Termination Date.
4. LOCK-UP. During the Term, each of the Sellers separately covenants
and agrees that none of them shall, except pursuant to a repurchase by Sonic or
a trade facilitated by Sonic hereunder, directly or indirectly, (a) offer, sell,
sell short, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant for the sale
of, or otherwise dispose of or transfer any of the Shares or any securities
convertible into or exchangeable or exercisable for the Common Stock, whether
now owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act, with respect to any of the
foregoing, or (b) enter into any swap or any other agreement or hedging
arrangement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Shares, whether any
such swap or transaction is to be settled by delivery of securities, in cash or
otherwise. The Sellers' respective obligations under this Section 4 are referred
to herein as the "LOCK-UP OBLIGATIONS." Notwithstanding the foregoing, each
Seller shall be entitled to pledge his or her shares as security for an
obligation and to arrange for payments of proceeds from the sale of their shares
to be paid to a third party provided that Glenn Bonard ("BONARD") shall be the
trustee with respect to any such pledge and that Bonard shall hold the
certificates evidencing such shares. The parties acknowledge that the Lock-up
Obligations do not apply to the Nonmarket Protected Shares as that term is
defined in the Merger Agreement.
5. AGREEMENT TO REPURCHASE SHARES OR FACILITATE TRADES. (a) Upon the
terms and subject to the conditions hereof, during the one hundred eighty (180)
day period after January 30, 2000, Sonic shall either repurchase, and/or
facilitate trades of, and the Sellers agree to sell, all of the Shares, provided
that Sonic shall repurchase and/or facilitate trades of 1,116,533 (which
represents approximately $10,000,000 of the Shares using the Base Price) of the
Shares during the first one hundred twenty (120) days of such one hundred eighty
(180) day period. Upon each repurchase or sale, the number of Shares repurchased
from or sold by each Seller hereunder will be in proportion to the relative
number of Shares owned by all of the Sellers that have not terminated their
Lock-up Obligations, provided that no fractional shares will be repurchased or
sold. Upon the repurchase or trade of a Share, a Seller shall be entitled to
receive an amount, in cash or immediately available funds, equal to the greater
of:
(i) the Base Price, plus interest on the Base Price
at 10%, on a per annum basis, from January 31, 2000 until the Sale Date; and
(ii) the lesser of: (A) the Sales Price or (B)
$10.7476.
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(b) In the event that the Sales Price of any Shares in
connection with a trade exceeds $10.7476 per share, Sonic shall be entitled to
all sales proceeds over $10.7476 per share.
FOR EXAMPLE:
(1) ASSUME THAT THE SALES PRICE IS $12 AND THAT SONIC FACILITATES A
TRADE OF 100 SHARES AT THE END OF 90 DAYS (ASSUMING THIS IS THE EQUIVALENT OF
1/4 YEAR). THE SELLERS RECEIVE THE GREATER OF:
(A) BASE PRICE X NUMBER OF SHARES + INTEREST =
$8.9563 X 100 SHARES + 10% OF ($8.9563 X 100) =
----------------------------
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$895.63 + $22.39 = $918.02
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(B) THE LESSER OF (I) SALES PRICE X NUMBER OF SHARES, OR
(II) $10.7476 X NUMBER OF SHARES =
$10.7476 X 100 SHARES = $1,074.76
---------
THERE ARE $1200 OF PROCEEDS FROM THE TRADE. UNDER (A) THE SELLERS WOULD RECEIVE
$918.02 OF THE PROCEEDS, AND SONIC WOULD RECEIVE THE REMAINING $281.98 OF THE
PROCEEDS. UNDER (B), THE SELLERS WOULD RECEIVE $1,074.76 OF THE PROCEEDS, AND
SONIC WOULD RECEIVE THE REMAINING $125.24 OF THE PROCEEDS. SINCE (B) RESULTS IN
MORE PROCEEDS TO THE SELLERS, THE SELLERS WOULD BE ENTITLED TO RECEIVE $1,074.76
OF THE TRADE PROCEEDS, AND SONIC WOULD RECEIVE THE REMAINING $125.24 OF THE
PROCEEDS.
(2) ASSUME THAT THE SALES PRICE IS $9 AND THAT SONIC FACILITATES A
TRADE OF 100 SHARES AT THE END OF 90 DAYS (ASSUMING THIS IS THE EQUIVALENT OF
1/4 YEAR). THE SELLERS RECEIVE THE GREATER OF:
(A) BASE PRICE X NUMBER OF SHARES + INTEREST =
$8.9563 X 100 SHARES + 10% OF ($8.9563 X 100) =
------------------------
4
$895.63 + $22.39 = $918.02
-------
(B) THE LESSER OF (I) SALES PRICE X NUMBER OF SHARES, OR
(II) $10.7476 X NUMBER OF SHARES =
$9.00 X 100 SHARES = $900
----
IN THIS CASE, THERE ARE $900 OF PROCEEDS FROM THE TRADE. UNDER (A), THE SELLERS
WOULD RECEIVE ALL $900 OF THE TRADE PROCEEDS, AND SONIC WOULD PAY THE SELLERS AN
ADDITIONAL $18.02 IN INTEREST. UNDER (B), THE SELLERS WOULD RECEIVE ALL $900 OF
THE TRADE PROCEEDS AND NOTHING MORE. SINCE (A)
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RESULTS IN MORE PROCEEDS TO THE SELLERS, THE SELLERS WOULD BE ENTITLED TO
RECEIVE ALL $900 OF THE TRADE PROCEEDS, AND SONIC WOULD PAY THE SELLERS AN
ADDITIONAL $18.02 IN INTEREST.
(3) ASSUME THAT THE SALES PRICE IS $8 AND THAT SONIC FACILITATES A
TRADE OF 100 SHARES AT THE END OF 90 DAYS (ASSUMING THIS IS THE EQUIVALENT OF
1/4 YEAR). THE SELLERS RECEIVE THE GREATER OF:
(A) BASE PRICE X NUMBER OF SHARES + INTEREST =
$8.9563 X 100 SHARES + 10% OF ($8.9563 X 100) =
------------------------
4
$895.63 + $22.39 = $918.02
-------
(B) THE LESSER OF (I) SALES PRICE X NUMBER OF SHARES, OR
(II) $10.7476 X NUMBER OF SHARES =
$8.00 X 100 SHARES = $800
----
IN THIS CASE, THERE ARE $800 OF PROCEEDS FROM THE TRADE. UNDER (A), THE SELLERS
WOULD RECEIVE ALL $800 OF THE TRADE PROCEEDS, AND SONIC WOULD PAY THE SELLERS AN
ADDITIONAL $118.02 IN INTEREST. UNDER (B), THE SELLERS WOULD RECEIVE ALL $800 OF
THE TRADE PROCEEDS AND NOTHING MORE. SINCE (A) RESULTS IN MORE PROCEEDS TO THE
SELLERS, THE SELLERS WOULD RECEIVE ALL $800 OF THE TRADE PROCEEDS, AND SONIC
WOULD PAY THE SELLERS AN ADDITIONAL $118.02 IN INTEREST.
6. PROCEDURES FOR STOCK REPURCHASES OR TRADES
------------------------------------------
(a) Each of the Sellers will deliver to Bonard (i) all of his
or her stock certificates evidencing the Shares, (ii) twenty (20) stock powers,
each executed in blank by the Seller and medallion guaranteed by a New York
Stock Exchange member institution or a national banking institution, and (iii)
wire transfer instructions for payment to his or her account.
(b) Sonic will, from time to time, notify Bonard in writing
via facsimile of each repurchase or trade hereunder, and the notice shall
indicate whether the transaction will be a repurchase or trade and shall set
forth (i) the number of Shares to be repurchased or sold, and (ii) the amount
due to each Seller pursuant to this Agreement. The effective date of such
notice, as determined under Section 9 hereof, shall be referred to herein as a
"SALE DATE."
(c) In the event of a repurchase, on the Sale Date (or as
promptly thereafter as possible), the Sellers will cause Bonard, as agent for
the Sellers, to complete a stock power for each Seller, in accordance with the
terms hereof, and to forward to Sonic (i) the stock powers, (ii) certificates
evidencing no less than the number of Shares to be repurchased, and (iii)
appropriate wire transfer instructions. Immediately upon receipt of such stock
powers, certificates and wire transfer instructions, Sonic shall wire transfer,
in accordance with such wire transfer instructions, the amount due to each
Seller hereunder.
(d) In the event of a trade, on the Sale Date (or as promptly
thereafter as
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possible), the Sellers will cause Bonard, as agent for the Sellers, to complete
a stock power for each Seller, in accordance with the terms hereof, and to
forward to Sonic's broker by overnight delivery (i) the stock powers, (ii)
certificates evidencing no less than the number of Shares to be sold, and (iii)
appropriate wire transfer instructions. In addition, the Sellers shall cause
Bonard to forward to Sonic by facsimile a copy of such items. In the event that
the Sales Price of any trade of Shares exceeds $10.7476 per share, the Sellers
shall also notify Sonic's broker that Sonic is entitled to all sales proceeds
over $10.7476 per share. On the third (3rd) business day following the Sale Date
of a trade, Sonic shall wire transfer any additional amount due to the Sellers
under this Agreement in accordance with such wire transfer instructions.
(e) In the event that some but not all of the Shares evidenced
by a tendered certificate are sold or repurchased hereunder, Sonic and the
Sellers will cooperate with each other and with Sonic's transfer agent in
obtaining new certificates representing the number of Shares which were not
repurchased or sold and delivering such new certificates to Bonard, as agent for
the Sellers.
(f) Sonic shall bear, or reimburse the Sellers for, all
brokers commissions incurred in connection with any repurchases or trades
conducted hereunder.
7. TERMINATION.
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(a) At any time after the initial sixty (60) days of the Term,
each Seller may, by giving written notice to Sonic, terminate his or her Lock-up
Obligations with respect to all, but not less than all, of the Shares owned by
such Seller. Any termination of the Lock-up Obligations of a Seller shall
automatically, without any further action by any party hereto, terminate Sonic's
obligations hereunder to repurchase, or facilitate the sale of, all Shares owned
by such Seller. The effective date of a notice of termination shall be referred
to herein as the "TERMINATION DATE."
(b) Upon termination of the Lock-up Obligations with respect
to a Seller:
(i) If the sum of the Base Price plus interest on the
Base Price at 10%, on a per annum basis, from January 31 until the Termination
Date, exceeds the Termination Price, then Sonic shall pay to the Seller the
product of (A) the amount of such excess multiplied by (B) the number of Shares
owned by such Seller.
(ii) If the Termination Price exceeds $10.7476, then
the Seller shall return to Sonic an aggregate amount of whole shares of Common
Stock with an aggregate Termination Price equal to the product of (A) the amount
of such excess multiplied by (B) the number of Shares owned by such Seller. On
the Termination Date (or as promptly thereafter as possible), such Seller will
cause Bonard, as agent for the Sellers, to complete a stock power for such
Seller, in accordance with the terms hereof, and to forward to Sonic (i) the
stock power and (ii) certificates evidencing no less than the number of shares
of Common Stock to be returned to Sonic.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the rights herein granted and obligations herein
assumed. Any oral representations or modifications concerning this Agreement
shall be of no force or effect except
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by a subsequent modification in writing signed by the parties to be charged.
9. NOTICES. All notices, claims, certificates, requests, demands and
other communications hereunder shall be given in writing and shall be delivered
personally, sent by telecopier or sent by a nationally recognized overnight
courier, postage prepaid, and shall be deemed effective (a) when so delivered
personally, (b) if sent by telecopier at any time after 9:00 a.m. and before
5:00 p.m., recipient's time, when the telecopier receipt is acknowledged, or if
not, then on the next Business Day, and (c) one (1) Business Day after the date
of deposit with such nationally recognized overnight courier. All such notices,
claims, certificates, requests, demands and other communications shall be
addressed to the respective parties at the addresses set forth below or to such
other address as the person to whom notice is to be given may have furnished to
the others in writing in accordance herewith.
If to the Buyer, to:
Sonic Automotive, Inc.
5401 E. Independence Boulevard
Charlotte, North Carolina 28212
Attention: Steve Coss, Vice President and General Counsel
Telecopier No.: (704) 536-5116
With a copy to:
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza
Charlotte, North Carolina 28244
Attention: John R. Hairr III
Telecopier No.: (704) 334-4706
If to the Sellers or Bonard, to:
Whiteford, Taylor & Preston, L.L.P.
1025 Connecticut Avenue, N.W. #400
Washington, D.C. 20036-5405
Attn: Glenn R. Bonard
Telecopier No.: (202) 331-0573
10. INDEMNIFICATION. Sonic hereby agrees to indemnify and save the
Sellers, individually and collectively and their heirs and permitted assigns
harmless from and against, for and in respect of, any and all damages, losses,
obligations, liabilities, demands, injuries, costs or expenses (including
without limitation, reasonable attorneys' fees and expert witness fees)
suffered, sustained, incurred or required to be paid by any of the Sellers
arising out of, based upon or in connection with or as a result of Sonic's
breach or nonfulfillment of any obligation or agreement of Sonic under this
Agreement. Each of the Sellers agrees, separately but not jointly,
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to indemnify and save Sonic, its affiliates, their respective successors and
permitted assigns, and the officers, directors, employees, agents and
representatives of each of the foregoing (collectively, the "SONIC INDEMNITEES")
harmless from and against, for and in respect of, any and all damages, losses,
obligations, liabilities, demands, injuries, costs or expenses (including
without limitation, reasonable attorneys' fees and expert witness fees)
suffered, sustained, incurred or required to be paid by any of the of Sonic
Indemnitees arising out of, based upon or in connection with or as a result of
such Seller's breach or nonfulfillment of any his or her obligation or agreement
under this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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Please indicate your mutual agreement by signing a copy of this letter
in the space provided below and returning it to the undersigned.
Very truly yours,
/s/ Joseph Herson
------------------------------
Joseph Herson
/s/ Mollye Mills
------------------------------
Mollye Mills
/s/ Richard Mills
------------------------------
Richard Mills
/s/ John Jaffe
------------------------------
John Jaffe
Accepted and Agreed as of the date first set forth above:
SONIC AUTOMOTIVE, INC.
By: /s/Stephen K. Coss
----------------------
Its: Vice President & General Counsel
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SCHEDULE A
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- ---------------------- ------------------- ------------------ ----------------- ------------------
PERCENTAGE MERGER PERCENTAGE OPTION TOTAL
OWNERSHIP OF MAI SHARES OWNERSHIP SHARES SHARES
OF MIC ISSUED
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
Joseph Herson .3342 223,021 .4098 34,184 257,205
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
John Jaffe .2595 173,172 .0902 7,524 180,696
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
Molly Mills .3342 223,021 .4098 34,184 257,205
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
Richard Mills .0721 48,115 .0902 7,524 55,639
----- ------ ----- ----- ------
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
Totals 1.0 667,329 1.0 83,416 750,745
- ---------------------- ------------------- ------------------ ----------------- ------------------ ------------------
SCHEDULE B
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- ------------------------------ ---------------------------- --------------------------- ----------------------------
ORIGINAL NEW TOTAL
ISSUANCE ISSUANCE SHARES
SHARES SHARES
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Joseph Herson 431,338 257,205 688,543
- ------------------------------ ---------------------------- --------------------------- ----------------------------
John Jaffe 303,030 180,696 483,726
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Mollye Mills 431,338 257,205 688,543
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Richard Mills 93,306 55,639 148,945
------ ------ -------
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Totals 1,259,012 750,745 2,009,757
- ------------------------------ ---------------------------- --------------------------- ----------------------------