CONSULTING AGREEMENT
EXHIBIT (d)(5)
Execution Version April 26, 2007
THIS CONSULTING AGREEMENT for consulting services (this “Agreement”) is entered into as of
April 26, 2007, by and between DealerTrack Holdings, Inc., a Delaware corporation (together with
its subsidiaries, the “Company”), and Xxxx X. Xxxx (“Consultant”). This Agreement shall become
effective on the date (the “Effective Date”) that the merger of DA Acquisition Corp., a Delaware
corporation (“MergerSub”) with and into Arkona, Inc. (“Alias”) (the “Transaction”) becomes
effective pursuant to the terms of the Agreement and Plan of Merger by and among the Company,
MergerSub and Alias dated as of April 26, 2007 (including exhibits attached thereto, the “Merger
Agreement”) and shall be of no force or effect if the Merger Agreement is terminated in accordance
with its terms.
WHEREAS, in accordance with the Merger Agreement, MergerSub has agreed to make, and the Company has
agreed to cause the MergerSub to make, an offer to purchase the outstanding capital stock of Alias
on the terms and subject to the conditions contained in the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, the Company has
required that the Consultant enter into this Agreement;
WHEREAS, pursuant to the Merger Agreement, MergerSub will merge with and into Alias in accordance
with the Delaware General Corporation Law with the Alias surviving as a wholly owned subsidiary of
the Company; and
WHEREAS, for good and valuable consideration, Consultant agrees to provide certain services for the
Company on terms set forth more fully below.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy are hereby
acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used herein but not otherwise defined shall have
the meaning ascribed to such terms in the Merger Agreement.
2. Independent Contractor Relationship. In accordance with the mutual intentions of
the Company and Consultant, this Agreement establishes between them an independent contractor
relationship, and all of the terms and conditions of this Agreement shall be interpreted in light
of that relationship.
The Consultant understands and agrees that during the Consulting Period, he is not an employee
of the Company or any of its affiliates and shall not be treated as an employee for any purpose.
The Consultant understands that he will not be entitled by reason of providing the Consulting
Services to any compensation other than the consideration provided for herein. The Consultant
shall not be eligible for any employee benefits or perquisites under any employee benefit plan
sponsored by the Company or Alias or any of their affiliates and waives any right he may have or
hereinafter obtain to participate in any such plan. The Company shall promptly reimburse the
Consultant for all reasonable out-of-pocket costs incurred by him in connection with providing
Consulting Services, subject to prior approval and documentation in accordance with applicable
policies as may be in effect from time to time. Nothing in this Agreement or
Execution Version April 26, 2007
otherwise shall be construed as identifying the Consultant as an employee, agent or legal
representative of the Company or Alias or any of their affiliates during the Consulting Period for
any purpose whatsoever. The Consultant will not be authorized to transact business, incur
obligations, sell goods, receive payments, solicit orders or assign or create any obligation of any
kind, express or implied, on behalf of the Company or Alias or any of their affiliates, or to bind
in any way whatsoever, or to make any promise, warranty or representation on behalf of the Company
or Alias or any of their affiliates with respect to any matter, except as expressly authorized in
writing by the Company. The Consultant shall not use any of the Company’s or Alias’ trade names,
trademarks, service names or servicemarks without the prior written approval of the Company.
3. Consulting Period. The term of this Agreement (the “Consulting Period”) shall
commence on the Effective Date and continue for twelve (12) months thereafter (the “Initial Term”)
unless extended by the Consultant in accordance with this Section 3, or sooner terminated in
accordance with Section 15 or 16 hereof. The Consultant may extend the term of this Agreement for
twelve additional months (the “Additional Term”) by providing written notice of such extension to
the Company on or prior to April 15, 2008, provided, however, that Consultant shall be permitted to
terminate this Agreement during the Additional Term at any time upon 90 days advanced written
notice. During the Consulting Period, the Consultant shall remain reasonably available to perform
Consulting Services and Litigation and Regulatory Cooperation Services as requested from time to
time by the Company. The Consultant expressly acknowledges and agrees that during the Consulting
Period, the Company shall require him to be available upon reasonable notice to devote time and
efforts to performing the Consulting Services and Litigation and Regulatory Cooperation Services.
The Consultant shall be permitted to engage in other business activities not prohibited under this
Agreement during the terms of this Agreement but shall not undertake any activity or make any
commitment that renders him unavailable to perform Consulting Services for the Company.
4. Conflict of Interest Prohibited. Consultant represents, warrants, and covenants
that there is and will be no conflict of interest in either (i) Consultant’s other contracts for
services or other employment or (ii) Consultant’s other interests, if any, with the Consulting
Services to be provided pursuant to this Agreement and that Consultant will ensure that no such
conflict arises during the term of this Agreement and the 2 year period following the termination
of this Agreement..
5. Type of Service. (a) The Company hereby retains Consultant to render consulting
services from time to time to it regarding the Company’s business affairs in connection with its
operation of Alias. The Consultant shall provide such consulting services reasonably related to
the foregoing as the Company shall request from time to time (collectively, the “Consulting
Services”). Consultant shall diligently and conscientiously perform the Consulting Services
required of Consultant under this Agreement, and shall utilize his reasonable best efforts to
perform such services in a timely and competent manner. Upon reasonable notice from the Company,
Consultant shall be available to the Company’s managers, auditors and other personnel for
consultation and advice, subject to the Consultant’s reasonable convenience and scheduling.
Consulting Services may be rendered at Consultant’s offices or at such other locations selected by
Consultant as the Company and Consultant shall from time to time agree upon.
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(b) During and, as set forth below in Section 5(d), after the Consulting Period, the
Consultant shall provide Litigation and Regulatory Cooperation Services. For these purposes,
“Litigation and Regulatory Cooperation Services” mean: (i) cooperating fully with the Company in
the defense or prosecution of any claims or actions against or on behalf of Alias, MergerSub, the
Company or any affiliate of MergerSub now in existence or which may be brought during the term of
this Agreement and (ii) cooperating fully with the Company in connection with any investigation or
review of any federal, state or local regulatory authority, in either case, insofar as any such
claim, action, investigation or review relates to events or occurrences that transpired while the
Consultant was employed by Alias or provided Consulting Services to the Company. The Consultant’s
full cooperation in connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to act as a witness on
behalf of the Company or Alias at mutually convenient times. The Company shall reimburse the
Consultant for any reasonable out-of-pocket expenses incurred in connection with the Consultant’s
performance of obligations pursuant to this Section 5(b).
(c) During the Consulting Period, Consultant shall (i) not be obligated to provide Consulting
Services for more than eighty (80) hours a month; (ii) not be expected to travel out of Salt Lake
County more than five (5) days a month; (iii) be permitted to work and reside in Salt Lake County,
in the State of Utah except as provided in (ii) above; and (iv) be granted access to Company
facilities and computer systems to perform Consulting Services, where applicable.
(d) Following the Consulting Period, should (i) any claims or actions rise against or on
behalf of Alias, MergerSub, the Company or any affiliate of MergerSub or (ii) any claims or actions
arising during the Consulting Period not be resolved prior to the end of the Consulting Period,
then Consultant and Company agree to work in good faith to reach a mutually satisfactory
arrangement under which Consultant will continue to provide Litigation and Regulatory Cooperation
Services.
6. Consideration. The Company will pay the Consultant a fee of $22,916.66 per month,
in arrears, for each month during the Initial Term of the Consulting Period and the Company will
pay the Consultant a fee of $20,833.33 per month, in arrears, for each month during the Additional
Term of the Consulting Period (collectively, the “Fee”) The consideration paid to Consultant
pursuant to this Section 6 is intended by the parties, inter alia, to fully compensate Consultant
for providing the Consulting Services. Consultant agrees to furnish personal services as provided
herein as an independent contractor using Consultant’s own means and methods. During the
Consulting Period, including any extension of the Consulting Period pursuant to Section 3, the
Company shall not pay Consultant any additional compensation for his services.
7. Nature of Consultant’s Services. The parties recognize that the Consultant’s
knowledge and understanding of the Business is unique and personal. Accordingly, the parties agree
that the Consultant shall provide the Consulting Services and the Litigation and Regulatory
Cooperation Services personally.
8. Consultant Responsible for Taxes. In conformity with Consultant’s independent
contractor status and without limiting any of the foregoing, Consultant understands
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that no deduction or withholding for taxes or contributions of any kind shall be made by the
Company with respect to the Fee. Consultant agrees to accept exclusive liability for the payment
of all taxes or contributions for unemployment insurance, pensions or annuities, social security
payments or otherwise, which are measured by the Fee paid to Consultant, and to reimburse and
indemnify the Company for any such taxes or contributions or penalties which the Company may be
compelled to pay. Consultant also agrees to take all action and comply with all applicable
administrative regulations necessary for the payment by Consultant of such taxes and contributions.
9. Proprietary Information.
(a) The Consultant acknowledges that (i) because of his relationship with the Company and his
prior employment with Alias, he may help develop and create, and/or has been or will be exposed to,
the Company’s and Alias’ business strategies, information on customers, clients and web site
design and other valuable confidential, proprietary and trade secret information of the Company and
Alias (as more fully defined below, “Proprietary Information”), (ii) in such capacity he has been
or will become familiar with procedures and methods by which the Company or Alias develops and
conducts its business, (iii) he has had or will have access to the Company’s and Alias’ clients,
channels for developing clients, and other Proprietary Information, (iv) it would be unfair to the
Company if he were to appropriate to himself or others the benefits of the Company’s and Alias’
resources expended to develop such business relationships, (v) it would be unfair to the Company if
he were to appropriate to himself or others the benefits of the business, personnel and other
Proprietary Information which the Company or Alias has developed in the conduct of its business,
and (vi) it is therefore fair that reasonable restrictions should be placed on certain of his
activities. Consultant agrees to hold in strict confidence and in trust for the sole benefit of
the Company all Proprietary Information that he may have or have had access to, learn, observe or
obtain during the course of his employment with Xxxxx or his providing consulting services to the
Company and, except as required in his authorized duties on behalf of the Company, will not
disclose any Proprietary Information directly or indirectly to anyone outside of the Company, or
use, copy, publish, summarize, or remove from Company premises such information (or remove from the
premises any other property of the Company) unless he is expressly authorized in writing by the
President of the Company. Consultant further agrees that he will promptly advise the Company of
any unauthorized use, removal, copy or disclosure of the Proprietary Information by anyone,
including himself. Consultant understands that if he discloses, copies, removes or misuses any
Proprietary Information in violation of this Agreement or threatens or causes damage to the
Company, he will be responsible to and will indemnify the Company. Consultant also agrees not to
use any material obtained or prepared in connection with his providing consulting services to the
Company for any purpose not related to the Company’s business(es).
(b) “Proprietary Information” means all information and any idea in whatever form, tangible or
intangible, recorded or otherwise, and without regard to the form of recordation or the state of
completion, whether disclosed to or learned or developed by the Consultant, pertaining in any
manner to the business of the Company, any parent(s) or stockholders, and any present or future
direct or indirect affiliates (as such term is defined by the United States Securities and Exchange
Commission)_or subsidiaries of such entities including without limitation: (i) client lists, client
prospects, business development information, client data
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proprietary, financial standing, investment holdings and other personal financial data; (ii)
company lists, profiles and reports; (iii) training and research materials and methodologies; (iv)
structure, operations, pricing, financial and personnel information; (v) information systems design
and procedures; (vi) computer technology designs, hardware configuration systems, and software
designs and implementations; (vii) information databases, devices, data processing programs,
interactive procedures, navigation, functionality, web site design, tests, analysis and studies
developed by or for the benefit of the Company; (viii) plans, designs, inventions, formulas,
research and technology developed by or for the benefit of the Company; (ix) business information
and business secrets of the Company and its clients; (x) trade secrets of the Company; (xi) plans,
prospects, policies, practices, and procedures of the Company which are not generally known in the
industry; (xii) licenses and agreements of any nature; and (xiii) all other proprietary and
confidential information of every nature and source. Proprietary Information does not include
information which: (A) is or becomes generally available to the public through no breach of this
Agreement or any other agreement to which Consultant knows the Company is a party; (B) was
received from a third party free to disclose such information without restriction; (C) is approved
for release in writing by the President of the Company, subject to whatever conditions are imposed
by such person; or (D) is required by law or regulation to be disclosed, but only to the extent
necessary and only for the purpose required.
(c) Consultant acknowledges and agrees that the pursuit of the activities forbidden by this
Agreement would necessarily involve the use or disclosure of Proprietary Information in breach of
the preceding subsections, but that proof of such a breach would be extremely difficult to
establish. To forestall any such disclosure, use, and breach, and in consideration of the
agreements contained herein, Consultant agrees that during the Consulting Period, including any
extension of the Consulting Period pursuant to Section 3, and, except as set forth below, for a
period of two (2) years after the termination or expiration of the Consulting Period, (i) he will
not, without the prior consent of the Company, hire or solicit for employment, consulting or any
other arrangement any employee of the Company or any of its present or future affiliates (while an
affiliate) and (ii) he will not influence or attempt to influence customers of Company or any of
its present or future affiliates, either directly or indirectly, to divert their business to any
Competitive Company. Notwithstanding this Section 9 or other provision to the contrary contained
in this Agreement, Consultant may solicit and hire DealerTrack employees who are immediate family
members of Consultant, namely: Xxxx Xxxx (Son), Xxxx Xxxx Xxxxxxxx (Daughter), Xxxxxxxx Xxxx (Son)
and Xxxxx Xxxxxxxx (Son-in law).
(d) During the Consulting Period, including any extension of the Consulting Period pursuant to
Section 3, and for a period of two (2) years after the termination or expiration of the Consulting
Period, Consultant will not, directly or indirectly, either as an employee, employer, agent,
principal, partner, member, stockholder (except as set forth below), corporate officer or director,
or in any other individual or representative capacity, engage in or participate in any Competitive
Company. “Competitive Company” shall mean any individual or entity, present or future, then
providing any of the following product or services: (1) a multi-finance source auto finance portal,
(2) electronic contracting for auto finance or lease transactions, other than at a financing source
entity that purchases electronic contracts or leases from auto dealers, (3) auto lease, retail
and/or balloon payment comparison or desking tools, or (4) any other sales, inventory or finance
and insurance-related products or services for auto dealerships similar to
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any products or services offered by the Company or any of its affiliates. Consultant also agrees
that until the seventh anniversary of the Effective Date he will not, directly or indirectly,
either as an employee, employer, agent, principal, partner, member, stockholder (except as set
forth below), corporate officer or director, or in any other individual or representative capacity,
engage in or participate in providing any dealership management systems for auto dealerships
similar to any products or services offered by the Company or any of its affiliates. Individual
ownership, for personal investment purposes only, not to exceed one percent (1%), of the voting
stock of any publicly held corporation shall not constitute a violation hereof.
(e) Consultant acknowledges that the Company has received and in the future will receive from
third parties their confidential information subject to a duty on the Company’s part to maintain
the confidentiality of this information and to use it only for certain limited purposes. Consultant
agrees that he owes the Company and these third parties, during and after the Consulting Period, a
duty to hold all such confidential information in the strictest confidence and not to disclose or
use it, except as necessary to perform his obligations hereunder and as is consistent with the
Company’s agreement with third parties.
10. Invention Ideas.
(a) The term “Invention Ideas” means, to the extent related to the business activities set
forth in Paragraph 9(d), any and all ideas, processes, trademarks, service marks, inventions,
technology, computer programs, original works of authorship, writings, designs, formulas,
discoveries, patents, copyrights, navigation, functionality, web site design, and all improvements,
rights, business concepts, and claims related to the foregoing that are conceived, developed, or
reduced to practice, relating to any activities of the Company that have been or will be conceived
or developed by the Consultant alone or with others (a) during either his employment with Alias or
the Consulting Period, including any extension of the Consulting Period pursuant to Section 3,
whether or not conceived or developed during regular business hours, and whether or not conceived
before, on or after the date hereof or (b) if based on Proprietary Information, after termination
of the Consulting Period.
(b) The Consultant agrees to maintain adequate and current written records on the development
of all Invention Ideas and to disclose promptly to the Company all Invention Ideas and relevant
records, which records will remain the sole property of the Company. The Consultant further agrees
that all information and records pertaining to any idea, process, trademark, service xxxx,
invention, technology, computer program, original work of authorship, design, formula, discovery,
patent, or copyright that the Consultant does not believe to be an Invention Idea, but is
conceived, developed, or reduced to practice by the Consultant (alone or with others) during the
Consulting Period, shall be promptly disclosed to the Company (such disclosure to be received in
confidence). Notwithstanding the preceding sentence, the Company shall have the right to examine
such information to determine if it believes the idea, process, or invention, etc., is an Invention
Idea subject to this Agreement.
(c) Subject to (d) below, the Consultant assigns and agrees to assign to the Company, without
further consideration, his entire right, title, and interest (throughout the United States and in
all foreign countries), free and clear of all liens and encumbrances, in and to each Invention
Idea, which shall be the sole property of the Company, and, to the maximum extent
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permitted by applicable law, shall be deemed works made for hire. In the event any Invention Idea
shall be deemed by the Company to be patentable or otherwise registrable, the Consultant will
assist the Company (at its expense) in obtaining letters patent or other applicable registrations
thereon and the Consultant will execute all documents and do all other things (including testifying
at the Company’s expense) necessary or proper to obtain letters patent or other applicable
registrations thereon and to vest the Company with full title thereto.
(d) To avoid future confusion, the Consultant has listed on Schedule A hereto a description of
all Invention Ideas, if any, developed or conceived by the Consultant prior to the date hereof in
which the Consultant claims any ownership or other right. The Consultant understands that, by not
listing an Invention Idea, he is acknowledging that the Invention Idea was not developed or
conceived before commencement of his providing consulting services to the Company.
(e) If, in the course of providing consulting services to the Company, the Consultant
incorporates into Company property an Invention Idea owned by the Consultant or in which the
Consultant has an interest, the Company is granted a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license to make, modify, use and sell the Consultant’s Invention Idea as part
of and in connection with the Company property.
11. Former or Conflicting Agreements. The Consultant recognizes that the Company
desires not to improperly obtain or use any unpublished document, proprietary information or trade
secrets of any person or entity. During his providing consulting services to the Company, the
Consultant will not bring onto the premises of the Company, disclose to the Company, or use or
induce the Company to use, any proprietary information, unpublished document or trade secret in any
form of such other person or entity. The Consultant represents that the Consultant’s performance
of this Agreement will not breach any agreement to keep in confidence proprietary information
acquired by the Consultant in confidence or in trust prior to his engagement by the Company. The
Consultant certifies that he has no outstanding agreement or obligation that is in conflict with
any of the provisions of this Agreement, or that would preclude him from complying with the
provisions hereof, and he agrees not to enter into any written or oral agreement in conflict
herewith.
12. Equitable Relief. The Consultant recognizes that any violation of this Agreement
could cause the Company irreparable harm and significant injury, the amount of which may be
extremely difficult to estimate, thus, making any remedy at law or in damages inadequate.
Therefore, the Consultant agrees that the Company shall have the right to obtain from any court of
competent jurisdiction a temporary or permanent order or injunction, without the posting of a bond,
restraining any breach or threatened breach of this Agreement and for any other relief the Company
deems appropriate. This right shall be in addition to any other remedy available to the Company in
law or equity.
13. Property/Ownership. All materials, documents, Confidential Information and
Proprietary Information, descriptions and suggestions of every kind supplied to Consultant by the
Company in connection with and/or pursuant to this Agreement or the relationship established
between Consultant and the Company (including, without limitation, any such materials, documents,
Confidential Information and Proprietary Information, descriptions and
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Execution Version April 26, 2007
suggestions supplied to Consultant by the Company prior to the execution of this Agreement)
shall be the sole and exclusive property of the Company, and the Company shall have the right to
make whatever use it or they deem desirable of any such materials, documents, Confidential
Information and Proprietary Information, descriptions and suggestions. Upon termination of the
Consulting Period, Consultant shall return such items to the Company or dispose of such items as
directed by the Company.
14. Assignment. This Agreement and the services contemplated hereunder are personal
to Consultant and Consultant shall not have the right or ability to assign, transfer, or
subcontract its interest and/or any obligations under this Agreement to any person, firm,
partnership, corporation or other entity (including by operation of law, judicial process, or
otherwise), in whole or in part, without the prior written consent of the Company, which consent
may be withheld in the Company’s sole discretion. Any attempt to do so shall be void. The Company
may, however, assign or transfer this Agreement and all of its rights and obligations hereunder at
any time without Consultant’s consent, to any affiliate or subsidiary of Company.
15. Termination by Death. This Agreement and the Consulting Period shall
automatically terminate upon Consultant’s death. In such event, the Company shall be obligated to
pay Consultant’s estate or beneficiaries only the remaining installments, if any, of the Fee and
any accrued but unpaid expenses due as of the date of death.
16. Termination by Notice. This Agreement is terminable by the Company upon prior
notice to Consultant following the Cure Period (as defined below) for any violation by the
Consultant of any provision of this Agreement, provided, that Consultant has not cured the breach
as set forth hereafter; and provided further, that if such violation is incurable the Company shall
be entitled to terminate this Agreement immediately. If the Company exercises its right to
terminate this Agreement pursuant to the preceding sentence, any obligation it may otherwise have
under this Agreement shall cease immediately, provided that the Company shall only be obligated to
pay Consultant the accrued but unpaid expenses due at the time of termination, if any.
Notwithstanding the foregoing, paragraphs 2, 4, 5, 7, 8, 9, 10, 12, 14, 24 and 25 of this Agreement
shall survive the termination of this Agreement. For greater clarity, the survival of Sections 2,
5 and 7 shall not be deemed in any way to obligate Consultant to perform any services under such
sections, but rather to preserve any claims that may arise during the Consulting Term. Further,
notwithstanding the foregoing or any provision in this Agreement to the contrary, in the event of
an alleged violation by Consultant, Company shall provide written notice to Consultant stating the
alleged violation. If such violation is curable Consultant shall then have ten (10) days to cure
the violation (“Cure Period”) and this Agreement shall not be subject to termination by Company
following the Cure Period if Consultant remedies the violation.
17. Governing Law and Jurisdiction. It is understood and agreed that no provision of
this Agreement shall be construed so as to be in conflict with the laws of the State of New York
It is further agreed that this Agreement is deemed to be consummated in the State of New York, and
that the terms and provisions of this Agreement shall be construed and interpreted pursuant to the
laws of the State of New York, without regard to the conflict of laws rules or principles thereof.
The state or federal courts located in Nassau County, State of New York are the agreed-upon forum
for the resolution of all disputes arising hereunder, and the parties hereto,
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Execution Version April 26, 2007
their officers, and employees hereby consent to (i) the jurisdiction and venue of the
aforesaid courts for the purpose of resolving all such disputes and (ii) service of process by
registered mail, return receipt requested, or any other manner consistent with federal or New York
laws.
18. Severability. In the event any portion of this Agreement shall be held illegal,
void or ineffective, the remaining portions hereof shall remain in full force and effect. If any
of the terms or provisions of this Agreement are in conflict with any applicable statute or rule of
law, then such term(s) or provision(s) shall be deemed inoperative to the extent that they may
conflict therewith and shall be deemed to be modified to conform with such statute or rule of law.
19. Non-Waiver of Rights. No failure or delay on the part of either party hereunder
in either exercising or enforcing any right hereunder will operate as a waiver of, or impair, any
such right. No single or partial exercise or enforcement of any such right will preclude any other
or further exercise or enforcement thereof or the exercise or enforcement of any other right. No
waiver of any such right will have effect unless given in a signed writing. No waiver of any such
right will be deemed a waiver of any other right hereunder.
20. Notice. All notices shall be in writing and given personally or by prepaid
certified mail, return receipt requested, or expedited delivery service, signature required,
addressed to the parties hereunder at their respective addresses as follows.
If to the Company:
Chief Executive Officer
0000 Xxxxxx Xxxxxx
Xxxxx X00
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx X’Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxx Xxxxxx
Xxxxx X00
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx X’Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
General Counsel
0000 Xxxxxx Xxxxxx
Xxxxx X00
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxx Xxxxxx
Xxxxx X00
Xxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Consultant:
Xxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
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or other address either party may provide to the other party upon written notice.
21. Written Reports. Consultant, when directed, shall provide written reports to the
Company with respect to the Consulting Services rendered hereunder. Such written reports shall be
in form and substance satisfactory to the Company.
22. Compliance with Law. Consultant shall comply with any and all applicable laws and
regulations including but not limited to health, safety and security rules and regulations.
23. Advice of Counsel. If any claim is made by Consultant relating to any conflict,
omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion will be
implied because this Agreement was prepared by or at the request of the Company or its counsel.
Consultant acknowledges that Consultant has had the opportunity to consult with Consultant’s own
counsel prior to the execution hereof.
24. Waiver of Jury Trial. THE PARTIES HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE
RELATIONSHIP ESTABLISHED BETWEEN CONSULTANT AND THE COMPANY. THE SCOPE OF THIS WAIVER IS
ALL-ENCOMPASSING AND INCLUDES ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE
TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING BUT NOT LIMITED TO, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
THE OTHER PARTY HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT THE
OTHER PARTY WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO SPECIFICALLY WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, AND MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING. THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, REPLACEMENTS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
25. Attorney Fees and Costs. If any legal action, arbitration or other proceeding is
brought to enforce or interpret this Agreement or matters relating to it, the substantially
prevailing party will be entitled to recover reasonable attorneys’ fees and other costs incurred in
such action, arbitration or proceeding from the other party up to $100,000, in addition to any
other relief to which such prevailing party is entitled.
26. Entire Agreement. This Agreement (together with Schedule A, and the Merger Agreement)
is the complete and exclusive statement of agreement and understanding of the parties with respect
to matters in this Agreement and is a complete and exclusive statement of the
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Execution Version April 26, 2007
terms and conditions thereof. This Agreement replaces and supersedes all prior written or oral
agreements, statements, correspondence, negotiations and understandings by and among the parties
with respect to the matters covered by it. No representation, statement, condition or warranty not
contained in this Agreement is binding on the parties. If any portion or provision of this
Agreement shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such portion or provision
in circumstances other than those as to which it is so declared illegal or unenforceable, shall not
be affected thereby, and each portion and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. In the event that any portion or provision of
this Agreement (including, without limitation, any portion or provision of the covenants set forth
in Section 9) is determined by a court of competent jurisdiction to be unenforceable or
unreasonable by reason of excessive or unreasonable geographic scope, duration or functional scope
of the activities precluded, such provision will be deemed to extend only over the maximum
geographic scope, duration and functional scope, as to which it may be reasonable and enforceable
and shall be so enforced.
27. Amendments. Any amendments to this Agreement must be in writing and designated as
an amendment, and signed by both parties hereto.
28. Headings. The headings contained in this Agreement are for convenience of
reference only and shall not affect or alter the meaning or effect of any provision hereof.
29. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
[REMAINDER INTENTIONALLY BLANK]
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Execution Version April 26, 2007
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Agreement to be executed as of the date first above written.
| DEALERTRACK HOLDINGS, INC. | ||||
| By: | /s/ Xxxx X’Xxxx | |||
| Name: | Xxxx X’Xxxx | |||
| Title: | CEO | |||
| ACCEPTED AND AGREED TO: | ||||
| CONSULTANT | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
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Execution Version April 26, 2007
Schedule A
none
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