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Exhibits 10.35
Execution Original
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 (the "Company") and Raj Sundaram, a
resident of California.
W I T N E S S E T H
WHEREAS, Mr. Sundaram 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. Sundaram as its
President 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. Sundaram enter into and on the Effective Date be bound by
this Agreement;
WHEREAS, the Company recognizes
the importance of Mr. Sundaram 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. Sundaram 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. Sundaram covenants and agrees as
follows:
Section 1.
Nonsolicitation/Non-Compete .
(a) In
view of the fact that any activity of Mr. Sundaram 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. Sundaram 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 (2%) percent of the outstanding
capital stock of any privately held entity, or (ii) two (2%)
percent of the outstanding voting stock of any publicly held
corporation shall not constitute a violation hereof.
(b)
"Restricted Period" means the earlier of five (5) years
following the termination of M
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