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 Xxxxxxxx & 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 Xxxx X. Xxxx ("XXXX"), Xxxxxx X. Xxxxxxxx ("XXXXXXXX"), Xxxxxxx X. Xxxxxxx
("FLEXNER") and Xxx Xxxxxxxx ("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 Xxxxxxxx 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, Xxxxxxxx shall
be entitled to provide consulting services to the existing clients of Xxxxxxxx
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 Xxxx 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 Xxxx Xxxxxxxxx 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 Xxxx Severance Period. As used herein, "EXTENDED XXXX XXXXXXXXX
PERIOD" means the period commencing upon the expiration or earlier termination
of Xxxx'x 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 Xxxx 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 Xxxx is paid severance by the
Company or any other NAC Affiliate) for or with respect to which Xxxx 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 if the Company or such affiliate elects to
pursue such Proposed Work.
SECTION 2. NON-SOLICITATION
(a) No Solicitation of Customers. Each Existing OTI Affiliate agrees
that during the entirety of the duration of the Non-Competition Period in effect
with respect to such Existing OTI Affiliate under Section 1(b) or 1(c) above, as
applicable, he or it will not in any way interfere, or attempt to interfere,
with any contract or other business relationship that any NAC Affiliate has with
any Person that is or has been a customer or client or prospective customer or
client of any NAC Affiliate or with any affiliate of any such customer or
client. Notwithstanding the foregoing, this Section 2(a) shall not preclude an
Existing OTI Affiliate from soliciting any such customer or client if such
Existing OTI Affiliate has theretofore obtained NAC's prior
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written consent (which consent may be withheld, delayed or conditioned in NAC
sole and absolute discretion).
(b) No Solicitation of Employees. Each Existing OTI Affiliate agrees
that during the entirety of the duration of the Non-Competition Period in effect
with respect to such Existing OTI Affiliate under Section 1(b) or 1(c) above, as
applicable, he or it will not, directly or indirectly, (1) solicit, entice or
lure for employment or other retention, or assist any other Person in
soliciting, enticing or luring for employment or other retention, any NAC
Employee (as defined below), (2) employ or otherwise retain or contract with for
services any NAC Employee or (3) encourage any other Person to employ or
otherwise retain or contract with for services any NAC Employee. As used herein,
"NAC EMPLOYEE" means any individual who is or has been employed or otherwise
retained (as a consultant or otherwise) by any NAC Affiliate or any
subcontractor of any NAC Affiliate; provided, however, that any such individual
shall not be considered to be a NAC Employee at such time as a period of at
least nine (9) months has lapsed since the most recent date such individual was
employed or otherwise retained by any NAC Affiliate or any subcontractor of any
NAC Affiliate.
SECTION 3. ACKNOWLEDGMENT WITH RESPECT TO PREEXISTING BUSINESS OF
STAGE AMERICA. Each of the Parties hereby acknowledges that, notwithstanding the
provisions of Sections 1 and 2 of this Agreement, Franklin and Stage America,
Inc. shall not be prohibited from continuing to engage in the "Event Staging
Business" in which they currently are engaged, which may overlap with, and may
result in indirect competition with, the business of certain NAC Affiliates;
provided, however, that neither Franklin nor Stage America, Inc. shall, directly
or indirectly, (A) engage in, or assist any other Person in engaging in, the
Key-Pad Protected Business or any aspect thereof or (B) solicit, or assist any
other Person in soliciting, any business or engagement from any Excluded
Customer. The general scope of work of the "Event Staging Business" of Stage
America, Inc. includes (i) venue selection, (ii) scenic development and (iii)
event direction and production. Notwithstanding the last sentence of this
Section 3, no other Existing OTI Affiliate (other than Franklin) may rely upon
the previous sentence as a basis for violating any of the restrictions described
in Sections 1 and 2 and no other Existing OTI Affiliate may refer business or
clients to, or in any way aid or abet, Franklin or Stage America, Inc. in any
business that comes into competition with or overlaps with the business of any
NAC Affiliate. Franklin hereby acknowledges that any customers or clients with
whom he (directly or through Stage America, Inc., MeetingNet or any other
affiliated entity) has or has had contact or develops or has developed a
business relationship as a direct or indirect consequence of his relationship or
other affiliation with any NAC Affiliate or a result of any of the transactions
contemplated by the Purchase Agreement are, and shall remain, proprietary to NAC
and the other NAC Affiliates and shall remain subject to the restrictions
contained in Sections 1 and 2.
SECTION 4. CONFIDENTIALITY.
(a) Maintenance of Confidential Information. Each Existing OTI
Affiliate shall (a) at all times treat all Confidential Information (as
hereinafter defined) in the strictest confidence, (b) not at any time disclose,
publish, reproduce, utilize or make accessible in any manner or in any form any
Confidential Information other than in connection with performing the services
required of such Existing OTI Affiliate pursuant to his or its employment,
consulting or other contract with any NAC Affiliate, (c) not at any time
reproduce, retain, copy, publish, plagiarize,
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appropriate or otherwise utilize (as a model, precedent, form, template or
otherwise) or refer to in way any marketing materials, forms of letters or
agreements or other business documents of any NAC Affiliate or any part of
portion of any of the foregoing, (d) not at any time use or utilize any
Confidential Information other than for the exclusive benefit of the Company or
another NAC Affiliate and (e) not at any time disclose to any third party the
fact that any Existing OTI Affiliate or any NAC Affiliate has received any
Confidential Information or the nature or content of any Confidential
Information or that discussions or negotiations with respect to a particular
party or any transaction or prospective transaction are occurring, have
occurred, are scheduled or may be anticipated to occur. As used herein,
"Confidential Information" means any and all proprietary, confidential and/or
other non-public information of, relating to or regarding the business or
interests of the Company or of any other NAC Affiliate, including, without
limitation, trade secrets, databases, company policies, procedures and
techniques, correspondence, fee agreements, confidentiality agreements, proposal
packages, business descriptions and profiles, business plans, financial
information, product literature and technical projects of, regarding or relating
to any NAC Affiliate or any client or customer (or any prospective client or
customer) of any NAC Affiliate (any such client or customer (or prospective
client or customer) is hereinafter referred to as a "NAC Customer"), any
research datum or result, report, analysis, study or invention, any list of, or
other information with respect to, any NAC Customer, any process or other work
product developed by or for any NAC Affiliate (including, without limitation,
that developed by any Existing OTI Affiliate, whether on the premises of the
Company or elsewhere). Notwithstanding the foregoing, "Confidential Information"
shall not be deemed to include any information to the extent, but only to the
extent, that such information is, or has become, publicly known under
circumstances involving no breach of this Agreement or has been disclosed
pursuant to the order or requirement of a court, administrative agency or other
governmental body of competent authority, provided that the Company, has been
given appropriate and reasonable notice of such proceeding and a reasonable
opportunity to contest such disclosure.
(b) Treatment of Business Records. All business, financial, product
and technical records, information and literature relating to the business of
the Company and/or any other NAC Affiliate, inclusive of any of the foregoing
that relate to any NAC Customer, (all such business, financial, product and
technical records, information and literature being hereinafter referred to
collectively as "Business Records"), including, without limitation, Confidential
Information, fee agreements, confidentiality agreements, papers, databases,
contact records documents and correspondence and studies containing information
relating to the Company or any other NAC Affiliate, shall be and remain the sole
and exclusive property of the Company and/or another NAC Affiliate, in all cases
irrespective of the manner in which such information was or is obtained. Any and
all copies of any Business Records, regardless of how the same may be made, kept
or stored, and regardless of whether the same may be in the possession, custody
or control of any Existing OTI Affiliate or any agent or other representative of
any Existing OTI Affiliate, shall be and remain the sole and exclusive property
of the Company and/or another NAC Affiliate, and upon the request of the Company
at any time, any and all copies of any Business Records that are in the
possession, custody or control of any Existing OTI Affiliate or any agent or
other representative of any Existing OTI Affiliate shall be surrendered and
returned by such Existing OTI Affiliate to the Company. No Existing OTI
Affiliate shall, or shall cause or permit his or its agents, representatives and
affiliates to, retain, publish or disclose, or otherwise use,
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without the prior written consent of the Company, any Business Records of the
Company or of any other NAC Affiliate.
SECTION 5. REASONABLENESS OF RESTRICTIONS. The Parties each agree that
Sections 1 and 2 impose reasonable restraints on each Existing OTI Affiliate in
light of the activities and business of the Company and the other NAC Affiliates
and that such restraints are intended only to protect the goodwill and other
legitimate business interests of the Company and the other NAC Affiliates. Each
Existing OTI Affiliate agrees that this Agreement is reasonable and enforceable
in accordance with its terms. Each Existing OTI Affiliate acknowledges that it
will receive significant value and advantage as a result of his or its access to
proprietary information of the Company and other NAC Affiliates, including,
without limitation, knowledge of and contact with their customers, suppliers and
employees, which, if used improperly, would cause irreparable harm to the
Company and other NAC Affiliates and negatively impact their good will. Each
Existing OTI Affiliate acknowledges and agrees that the consideration provided
directly or indirectly to such Existing OTI Affiliate by NAC under the Purchase
Agreement gives rise to NAC's interest in restraining and prohibiting such
Existing OTI Affiliate from engaging in the prohibited activities described in
Sections 1 and 2. Each Existing OTI Affiliate further agrees that the
limitations imposed upon him or it under this Agreement are reasonable as to
time, geographic area and scope of activity prohibited and do not impose a
greater restraint than is necessary to protect the goodwill and other legitimate
business interests of the Company and the other NAC Affiliates. Flexner and
Xxxxxxxx, jointly and severally, hereby guaranty the full and timely performance
and compliance by FWA of and with all of its duties, obligations and covenants
under this Agreement, and Xxxx and Franklin, jointly and severally, hereby
guaranty the full and timely performance and compliance by MeetingNet of and
with all of its duties, obligations and covenants under this Agreement.
SECTION 6. INJUNCTIVE AND OTHER EQUITABLE RELIEF. Each Existing OTI
Affiliate acknowledges and confirms that any breach by it or him of its or his
obligations under Section 1, 2 or 4 would likely result in the Company and/or
NAC suffering damages that could not be fully compensated in monetary damages.
Accordingly, each Existing OTI Affiliate agrees that upon any breach or
threatened breach by such Existing OTI Affiliate of any of such obligations, the
Company and NAC shall be entitled to injunctive and other appropriate equitable
relief. Each Existing OTI Affiliate further agrees that neither the Company nor
NAC shall be required, as a condition to seeking or obtaining any such relief,
to post or otherwise provide any bond or other surety, which bond or other
surety such Existing OTI Affiliate hereby expressly waives.
SECTION 7. INDEMNITY. Each Party (the "INDEMNIFYING PARTY") shall
indemnify and hold harmless each other Party for any and all Losses suffered or
incurred on account of any breach or violation by the Indemnifying Party of any
of his or its representations, warranties, covenants and other agreements
contained herein.
SECTION 8. ENTIRE AGREEMENT. This Agreement is intended by the Parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the Parties, in
respect of the subject matter contained herein, constitutes the entire agreement
of the Parties with respect to the subject matter hereof and supersedes, and
merges herein, all prior and contemporaneous negotiations, discussions,
representations, understandings and agreements between or among the Parties,
whether oral or
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written, with respect such subject matter. No representation, warranty,
restriction, promise, undertaking or other agreement with respect to such
subject matter has been made or given by any Party other than those set forth in
this Agreement.
SECTION 9. AMENDMENT AND WAIVER. This Agreement may be amended,
modified or supplemented only to the extent expressly set forth in writing that
is signed by the Party to be charged therewith. No waiver of any term, condition
or provision of this Agreement or of any breach or violation of this Agreement
or any provision hereof shall be effective except to the extent expressly set
forth in writing that is signed by the Party to be charged therewith. Without
limiting the generality of the foregoing, no failure to object or otherwise act,
and no conduct (including, without limitation, any failure or delay in enforcing
this Agreement or any provision hereof or any acceptance or retention of
payment) or course of conduct or dealing, by any Party shall be deemed (a) to
constitute a waiver by such Party of the breach or violation of this Agreement
or of any provision hereof by any other Party or (b) to have caused or reflected
any amendment or other modification of this Agreement or of any term or
provision hereof. Any waiver may be made in advance or after the right waived
has arisen or the breach or default waived has occurred, and any waiver may be
conditional. No waiver of any breach or violation of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
or violation thereof nor of any other agreement or provision herein contained.
No waiver or extension of time for performance of any obligation or act shall be
deemed a waiver or extension of the time for performance of any other obligation
or act.
SECTION 10. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
and the rights, duties and obligations hereunder may not be assigned or
delegated by any Party without the prior written consent of the other Parties.
Any purported assignment or delegation of rights, duties or obligations
hereunder made by any Party without the prior written consent of the other
Parties shall be null and void and of no effect. This Agreement and the
provisions hereof shall be binding upon and enforceable against each of the
Parties and its or his heirs, executors, legal representatives, successors and
assigns and shall inure to the benefit of and be enforceable by each of the
Parties and its or his heirs, executors, legal representatives, successors and
permitted assigns. Except as expressly provided for in this Agreement, this
Agreement is not intended to confer any rights or benefits on any Persons other
than the Parties and their respective successors and permitted assigns.
SECTION 11. SEVERABILITY. This Agreement and the terms and provisions
hereof shall be deemed severable, and the invalidity or unenforceability of any
term or provision hereof shall not affect the validity or enforceability of this
Agreement or of any other term or provision hereof. In the event any term or
provision hereof shall be determined to be invalid or unenforceable as applied
to any situation or circumstance or in any jurisdiction, such invalidity or
unenforceability shall not apply or extend to any other situation or
circumstance or in any other jurisdiction or affect the validity or
enforceability of any other term or provision. It is the Parties' intent that
this Agreement and each term and provision hereof be enforceable in accordance
with its terms and to the fullest extent permitted by law. Accordingly, to the
extent any term or provision of this Agreement shall be determined or deemed to
be valid or unenforceable, such provision shall be deemed amended or modified to
the minimum extent necessary to make such provision, as so amended or modified,
valid and enforceable. Without limiting the scope or generality of the
foregoing, to the extent the duration, scope or geographic
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limitation of any non-compete or similar provision of this Agreement is
determined or deemed to be in excess of that permitted by law, it is the
Parties' intent, desire and understanding that such provision shall be deemed
amended so that such duration, scope or geographic limitation is established at
the maximum amount or level permitted by law.
SECTION 12. TITLES AND HEADINGS; RULES OF INTERPRETATION. Titles,
captions and headings of the sections and other subdivisions of this Agreement
are for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement. References to Sections and
subsections (or other parts or subdivisions) refer to such Sections and
subsections (or other parts or subdivisions) of this Agreement unless otherwise
stated. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby" and
"hereunder," and words of like import, unless the context requires otherwise,
refer to this Agreement taken as a whole and not to any particular Section or
other provision hereof. As used in this Agreement, the masculine, feminine and
neuter genders shall be deemed to include the others if the context requires,
and if the context requires, the use of the singular shall include the plural
and visa versa. This Agreement is the product of mutual negotiations between and
among the Parties and their respective counsels, and no Party shall be deemed
the draftsperson hereof or of any portion or provision hereof. Accordingly, in
the event of any ambiguity or inconsistency in any provision of this Agreement,
the same shall not be interpreted against any Party as the party responsible for
drafting or providing such provision.
SECTION 13. MISCELLANEOUS PROVISIONS. This Agreement is subject to
certain provisions, as to governing law and other matters, as set forth in
Article 11 of the Purchase Agreement.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two 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 OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this
Non-Competition And Non-Solicitation Agreement as of the date first above
written.
NATIONAL AUTO CREDIT, INC., OPTION TECHNOLOGIES INTERACTIVE, LLC,
a Delaware corporation a Florida limited liability company
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx. Name:
Title: Chief Financial Officer Title:
FLEXNER XXXXXXXX & ASSOCIATES, MEETINGNET INTERACTIVE, INC.,
a Nevada corporation a Florida corporation
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxx Xxxxxxxx
Title: President Title: President
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx Xxxx
Title: Chief Financial Officer Title: Chief Financial Officer
---------------------------- -------------------------------
XXXXXXX X. XXXXXXX XXXXXX X. XXXXXXXX
---------------------------- -------------------------------
XXX XXXXXXXX XXXX XXXX
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