EXHIBIT 99.5
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this
"AGREEMENT")
is made as of this 18th day of November, 2005, (the "EFFECTIVE
DATE") by and
among Option Technologies Interactive, LLC (the "COMPANY"), a
Florida limited
liability company with its principal business office in the state
of Florida,
National Auto Credit, Inc. ("NAC"), a Delaware corporation and
parent of the
Company, and each party listed on EXHIBIT A hereto (each party so
listed, an
"EXISTING OTI AFFILIATE," and all parties so listed, collectively,
the "EXISTING
OTI AFFILIATES"). The Existing OTI Affiliates, the Company and NAC
are
hereinafter sometimes referred to collectively as the "PARTIES" and
each as a
"PARTY." Flexner Wheatley & Associates ("FWA") and MeetingNet
Interactive, Inc.
("MEETINGNET") are hereinafter sometimes referred to collectively
as the
"EXISTING OTI ENTITY AFFILIATES" and each as an "EXISTING OTI
ENTITY AFFILIATE,"
and Mark A. Fite ("FITE"), Kimbal L. Wheatley ("WHEATLEY"), William
A. Flexner
("FLEXNER") and Ray Franklin ("FRANKLIN") are hereinafter sometimes
referred to
collectively as the "EXISTING OTI INDIVIDUAL AFFILIATES" and each
as an
"EXISTING OTI INDIVIDUAL AFFILIATE."
RECITALS
WHEREAS, the Existing OTI Entity Affiliates and NAC have entered
into
a transaction pursuant to that certain Membership Interest Purchase
Agreement
(the "PURCHASE AGREEMENT"), dated as of even date herewith, by and
among NAC and
the Existing OTI Entity Affiliates, providing, inter alia, for the
acquisition
by NAC of all of the outstanding membership interests in the
Company;
WHEREAS, the Existing OTI Individual Affiliates, as shareholders
and/or principals in the Existing OTI Entity Affiliates, are
receiving
substantial benefits from the transactions contemplated by the
Purchase
Agreement;
WHEREAS, in conjunction with and as partial consideration for the
purchase by NAC of the membership interests in the Company pursuant
to the
Purchase Agreement, each of the Existing OTI Affiliates has agreed
to be subject
to the non-competition, non-solicitation and other restrictions
contained
herein;
WHEREAS, it is a condition of NAC's willingness to consummate the
acquisition of the membership interests in the Company pursuant to,
and to enter
into the other transactions contemplated by, the Purchase Agreement
that each of
the Existing OTI Affiliates enters into this Agreement; and
WHEREAS, for those of the Existing OTI Affiliates who shall remain
consultants or employees of the Company or its affiliates, it is a
condition of,
and in partial consideration for, their employment or retention by
the Company
or its affiliates that they agree to the terms hereof.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth and other good and valuable
consideration, the receipt and
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sufficiency of which are hereby acknowledged, the Parties,
intending to be
legally bound hereby, hereby agree as follows:
SECTION 1. NON-COMPETITION
(a) Definitions. Capitalized terms that are defined in the Purchase
Agreement and used herein are (unless otherwise defined herein or
the context
otherwise requires) used herein with the respective meanings
ascribed to such
terms in the Purchase Agreement.
(b) Restrictions Applicable to Existing OTI Individual Affiliates.
The
restrictions contained in this Section 1(b) shall apply only to
each of the
Existing OTI Individual Affiliates. In order to protect NAC's and
the Company's
legitimate business interests, each Existing OTI Individual
Affiliate agrees
that he shall not, during the period (the "NON-COMPETITION PERIOD")
that
commences on the Effective Date and ends on the latest to occur of
(i) the fifth
anniversary of the date hereof or (ii) the first anniversary of the
expiration
or earlier termination of such Existing OTI Individual Affiliate's
employment
with, or retention by, the Company pursuant to or under his
employment or
consulting agreement, dated of even date herewith, with the Company
or any
renewal, extension or substitution thereof (including, without
limitation, any
subsequent employment or consulting agreement with any NAC
Affiliate (as defined
below)), directly or indirectly,
(1) be employed or retained (as a consultant or otherwise) by (a)
any
Person (whether now existing or hereafter established) that
competes
with (or proposes or plans to compete with) any NAC Affiliate (any
such Person, a "COMPETITOR") in any line of business engaged in, or
under development, by any NAC Affiliate in any territory where any
NAC
Affiliate markets, sells, designs or distributes its products or
services or (b) any affiliate of any Competitor, or
(2) otherwise assist or encourage any Competitor or any affiliate
of
any Competitor.
Each Existing OTI Individual Affiliate understands that, as used in
this Section
1(b), the phrase "any line of business engaged in or under
development" shall be
applied as of the period commencing on the date such Existing OTI
Individual
Affiliate first became employed or retained by the Company or
either Existing
OTI Entity Affiliate and extending until the end of the
Non-Competition Period
for such Existing OTI Individual Affiliate (any such business is
hereinafter
referred to as the "PROTECTED BUSINESS;" provided, however, that,
as used herein
"Protected Business" shall not be deemed to include any new line of
business
that is created or proposed after the date hereof by the Company or
any other
NAC Affiliate unless either (a) the relevant Existing OTI Affiliate
has received
written notice that such new line of business has been created or
proposed or is
being proposed or (b) the Company can prove or establish that the
relevant
Existing OTI Affiliate knew that such new line of business had been
created or
proposed or was being proposed). Notwithstanding the foregoing,
none of Flexner
and Wheatley shall be prohibited by the foregoing from continuing
to engage in
consulting consistent with the consulting he has historically
performed;
provided, however, that
(A) unless otherwise agreed to in writing by NAC in its sole and
absolute discretion, no Existing OTI Individual Affiliate shall
provide consulting services directly or indirectly
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to, or otherwise assist, any Person, or the affiliate of any
Person,
that is engaged in supplying products or services (I) that are in
competition with the Key-Pad Protected Business (as defined below)
or
(II) to any client or customer of any NAC Affiliate that (a) is
listed
on SCHEDULE I attached hereto or (b) of which such Existing OTI
Individual Affiliate has been given written notice and that has
accounted for at least five percent (5%) of the consolidated
revenues
of NAC during the previous fiscal quarter or fiscal year (any such
customer or client, an "EXCLUDED CUSTOMER"); and
(B) no Existing OTI Individual Affiliate shall provide consulting
services directly or indirectly to, or otherwise assist, any
Person,
or the affiliate of any Person, that is providing Business Meeting
Services (as defined below), or consulting services relating to any
Business Meeting Services, unless such Existing OTI Individual
Affiliate shall have first provided the Company, in writing, with a
description (in reasonable) detail setting forth the nature and
scope
of such consulting services and the direct (and, if applicable,
indirect) client for whom such services are to be rendered and have
received the Company's consent to proceed with providing such
services
(with such consent not to be unreasonably withheld, but with it
being
agreed and understood that (without limiting what may also be
deemed
to be reasonable grounds for withholding its consent) the Company
shall be deemed to be reasonable in withholding its consent if the
Company (directly or through any NAC Affiliate) intends to make a
proposal for or otherwise pursue the business opportunity
represented
by such consulting services).
Notwithstanding the foregoing but subject to Section 1(d) below,
Wheatley shall
be entitled to provide consulting services to the existing clients
of Wheatley
listed in SCHEDULE II attached hereto and Flexner shall be entitled
to provide
consulting services to the existing clients of Flexner listed in
SCHEDULE III
attached hereto.
As used herein, "KEY-PAD PROTECTED BUSINESS" means any business
based upon or
using computerized systems by which audience participants enter
responses to
questions on hand-held computer terminals or "keypads" that
transmit individual
participant's responses back to a computer that tabulates the
collected response
data for current and/or future analysis, "BUSINESS MEETING
SERVICES" includes
the design, development, editorial content and production of media,
website,
collateral content, event staging, a/v support and data collection
and market
research services for gatherings, events, meetings and/or
symposiums held at
single sites or multi-sites, which may also include simulcasting,
via satellite,
or the internet transmission components, and "NAC AFFILIATE" means
any of NAC,
the Company and NAC's other affiliates (provided, however, that,
for the
purposes of determining whether any Existing OTI Affiliate is in
breach of its
or his obligations under this Section 1 with respect to any entity
(other than
the Company and NAC) as a NAC Affiliate, such entity shall be
deemed a NAC
Affiliate only to the extent either (a) such Existing OTI Affiliate
has received
written notice (i) that such entity is a NAC Affiliate or (ii) of
facts that
would enable such Existing OTI Affiliate to determine that such
entity is a NAC
Affiliate or (b) the Company can prove or establish that such
Existing OTI
Affiliate knew that such entity was a NAC Affiliate or knew facts
that would
enable such Existing OTI Affiliate to determine that such entity is
a NAC
Affiliate). Notwithstanding anything contained herein to the
contrary, (A) the
Non-Competition Period for Fite shall, for the purposes of this
Section 1(b)
only), be (I) as regards the portion of the business of the Company
and the
other NAC Affiliates consisting of the Key-Pad Protected Business,
the period
commencing on the date hereof and
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expiring on the later of occur of (a) the fifth anniversary of the
date hereof
or (b) the end of the Extended Fite Severance Period (as defined
below) and (II)
as regards any other portion of the business of the Company and the
other NAC
Affiliates, the period commencing on the date hereof and expiring
on the end of
the Extended Fite Severance Period. As used herein, "EXTENDED FITE
SEVERANCE
PERIOD" means the period commencing upon the expiration or earlier
termination
of Fite's employment with the Company pursuant to or under his
employment
agreement, dated of even date herewith, with the Company or any
renewal,
extension or substitution thereof (including, without limitation,
any subsequent
employment or consulting agreement with any NAC Affiliate extending
thereafter
for the greater of (a) eighteen (18) months and (b) a period equal
to (i) the
length of the period (if any) for which Fite is paid severance by
the Company or
any other NAC Affiliate PLUS (ii) the length of such period (if any
and whether
or not coterminous with the period for which Fite is paid severance
by the
Company or any other NAC Affiliate) for or with respect to which
Fite is paid
any severance (or its equivalent or any amount in lieu thereof) by
or on behalf
of any Existing OTI Affiliate (or any person or entity affiliated
or associated
with any Existing OTI Affiliate).
(c) Restrictions Applicable to all Existing OTI Entity Affiliates.
The
restrictions contained in this Section 1(c) shall apply only to
each of the
Existing OTI Entity Affiliates. In order to protect NAC's and the
Company's
legitimate business interests, each Existing OTI Entity Affiliate
agrees that it
shall not, during the longest Non-Competition Period determined in
accordance
with Section 1(b) above, directly or indirectly, (I) be employed or
retained (as
a consultant or otherwise) by any Competitor (or any affiliate of
any
Competitor) or (II) otherwise assist or encourage any other Person
to provide
any such services to any Competitor (or any affiliate of any
Competitor). Each
Existing OTI Entity Affiliate understands that, as used in this
Section 1(c),
the term "any line of business engaged in or under development"
shall be applied
during the period commencing on the date such Existing OTI Entity
acquired any
interest in the Company and extending until the end of the longest
Non-Competition Period.
(d) From time to time an Existing OTI Affiliate may (on his or its
own
behalf or on behalf of some other Person) desire to propose work to
a client or
a prospective client (any such work, "PROPOSED WORK") that may
compete with work
or proposals from the Company or one of more of its affiliates. In
all cases
where a conflict is possible between any Proposed Work and any work
or proposed
work of the Company or any of its affiliates, such Existing OTI
Affiliate shall
coordinate the Proposed Work with the Company or such affiliate (as
applicable)
and shall not proceed (on his or its own behalf or on behalf of any
other
Person) with such Proposed Work i
