UNFAIR COMPETITION AND
NONSOLICITATION AGREEMENT
UNFAIR COMPETITION
AND NONSOLICITATION AGREEMENT (hereafter, the
“Agreement”) entered into as of this 25
th day of May, 2005 (the “Effective
Date”), by and between Santa Acquisition Corporation, Inc.
(the “Company”) and John Blair, a resident of
California.
WHEREAS,
Mr. Blair owns a membership interest in Automotive Lease Guide
(alg), LLC, a California limited liability corporation with its
principle place of business in Santa Barbara, California
(“ALG, LLC”), and is a shareholder in Automotive Lease
Guide (alg) Canada, Inc. (“ALG, Inc.”) (ALG, LLC
and ALG, Inc. hereinafter collectively referred to as
“ALG”). ALG is the leading provider of residual values,
analytical data products and consultation with respect to residual
values to the automotive industry throughout the United States
(including each county in the State of California) and Canada (the
“Territory’) through, inter alia , the provision
of residual guides, portfolio risk analysis, portfolio
securitization valuations, consulting and special studies regarding
residual values, development and provision of automotive data
analysis and reporting products, and providing data analysis for
residual value insurance (the “Business”);
WHEREAS, on even
date herewith, the Company and ALG executed an Asset Purchase
Agreement (“Purchase Agreement”) pursuant to which the
Company will purchase substantially all of the assets of
ALG;
WHEREAS, the
Company intends to carry on the Business of ALG and to employ
Mr. Blair as its Chief Executive Officer after consummation of
the transactions contemplated by the Purchase Agreement;
WHEREAS, it is a
condition precedent to the obligation of the Company to consummate
the transactions contemplated by the Purchase Agreement that
Mr. Blair enter into and on the Effective Date be bound by
this Agreement;
WHEREAS, the
Company recognizes the importance of Mr. Blair to the Business
and to the ability of the Company to retain its client, employee
and vendor relationships in respect of the Business;
WHEREAS, the
parties agree that Mr. Blair will be subject to certain
restrictive covenants necessary to protect the value of the assets
and good will of ALG purchased by the Company, including, without
limitation, confidential, proprietary and trade secret information,
and goodwill among customers, employees and vendors;
NOW THEREFORE, in
consideration of good valuable consideration, including, without
limitation, the Company’s agreement to consummate the
transactions contemplated by the
Purchase
Agreement and the consideration provided by the Company therewith,
the receipt and adequacy whereof are hereby acknowledged,
Mr. Blair covenants and agrees as follows:
Section 1.
Nonsolicitation/Non-Compete .
(a) In
view of the fact that any activity of Mr. Blair in violation
of the terms hereof would deprive the Company of the benefits of
their bargain under the Purchase Agreement and under the other
agreements relating to that transaction, and to preserve the
goodwill associated with the Business, Mr. Blair hereby agrees
during the Restricted Period he will not, without the express
written consent of DealerTrack Holdings, Inc. (the
“Parent”), directly or indirectly, anywhere in the
Territory, (i) engage in any activity which is competitive
with any portion of the Business or is like or similar to the
Business, (ii) participate or invest in, or provide or
facilitate the provision of financing to, or assist (whether as
owner, part-owner, shareholder, partner, director, officer,
trustee, employee, agent or consultant, or in any other capacity),
any business, organization or person other than the Company (or any
affiliate of or Successor to the Company) whose business,
activities, products or services are competitive with any portion
of the Business or are like or similar to the Business (a
“Competitor”), (iii) solicit for or on behalf of
himself or any Competitor any client of the Business or any of its
direct or indirect subsidiaries or affiliates or divert to any
person any client or business opportunity of the Company or any of
its direct or indirect subsidiaries or affiliates in respect of the
Business, (iv) solicit or attempt to hire or engage for or on
behalf of himself or any Competitor any officer or employee of the
Company or any of its direct and/or indirect subsidiaries or
affiliates, or (v) encourage for or on behalf of himself or
any Competitor, any such officer or employee to terminate his or
her relationship or employment with the Company or any of its
direct or indirect subsidiaries or affiliates.
Ownership, for
personal investment purposes only, of not to exceed
(i) individually, two
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