DealerTrack, Inc. Letterhead] January 10, 2007
EXHIBIT
(d)(2)
[DealerTrack,
Inc. Letterhead]
January 10,
2007
PRIVATE
AND CONFIDENTIAL
Arkona, Inc.
00000 Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
South Jordan, Utah 84095
Attention: Xxxx Xxxx
Ladies and
Gentlemen:
In connection with our mutual consideration of a potential
negotiated transaction (the “Proposed Transaction”)
between DealerTrack, Inc., a Delaware corporation
(“DealerTrack”), on the one hand, and Arkona, Inc., a
Delaware corporation (“Arkona”), on the other hand,
each of the parties to this letter agreement is prepared to make
available certain information. This information is confidential
and proprietary to the respective parties and not otherwise
available. Each party agrees that, in consideration of, and as a
condition to, furnishing such information, it will abide by the
following:
1. Confidentiality Agreement. Each
of DealerTrack and Arkona, as applicable (each, a
“Receiving Party”), hereby agrees to treat all
information, whether written or oral, concerning Arkona or
DealerTrack, as applicable (each, a “Disclosing
Party”), or any of their respective affiliates,
subsidiaries or divisions, which the Disclosing Party or any
directors, officers, employees, partners, agents or
representatives (collectively, the “Representatives”)
of the Disclosing Party furnishes, whether before or after the
date of this agreement, to the Receiving Party or its
Representatives (collectively, the “Evaluation
Material”), confidential and in accordance with the
provisions of this agreement. Notwithstanding the foregoing, the
term “Evaluation Material” shall not for the purposes
of this agreement include any information which (a) at the
time of disclosure or thereafter is generally available to and
known by the public other than as a result of a disclosure by
the Receiving Party or its Representatives, (b) was or
becomes available to the Receiving Party on a nonconfidential
basis from a source other than the Disclosing Party or any of
its Representatives; provided that such source is not bound by a
confidentiality agreement with, or other contractual, legal or
fiduciary obligation to, the Disclosing Party, or (c) has
been independently acquired by the Receiving Party without
violating any of the obligations of the Receiving Party or its
Representatives under this agreement or any other
confidentiality agreement, or under any other contractual, legal
or fiduciary obligations of the Receiving Party or its
Representatives.
2. Use of Evaluation Material and
Confidentiality.
(a) Subject to Paragraph 2(b) below, the Evaluation
Material will be kept confidential by the Receiving Party and
its Representatives and will not, without the prior written
consent of the Disclosing Party, be disclosed, in whole or in
part, to any third party by the Receiving Party or any of its
Representatives in any manner whatsoever, and will not be used
by the Receiving Party or any of its Representatives, directly
or indirectly, for any purpose other than in connection with the
Receiving Party’s evaluation of the Proposed Transaction.
In addition, the Receiving Party hereby agrees to transmit
Evaluation Material to only those of its Representatives who
need to know the information for the purpose of evaluating the
Proposed Transaction and are informed by the Receiving Party of
the confidential nature of the information. The Receiving Party
agrees not to make any such disclosure or transmission unless
the Receiving Party is satisfied that its Representatives will
act in accordance herewith. The Receiving Party agrees that it
will be responsible for any breach of any of the provisions of
this agreement by any of its Representatives and the Receiving
Party agrees to take, at its sole expense, all necessary
measures to restrain its Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material
(including, without limitation, the initiation of court
proceedings).
(b) In the event that the Receiving Party or any of its
Representatives is requested or required (by oral questions,
interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to
disclose (i) any Evaluation Material, or (ii) any
information relating to the opinion, judgment or recommendation
of any such person concerning the Disclosing Party, its
affiliates or subsidiaries, the Receiving Party will promptly
notify the Disclosing Party of such request or requirement so
that the Disclosing Party may seek an appropriate protective
order or waive compliance with the
provisions of this agreement, and/or take any other mutually
agreed action. If, in the absence of a protective order or the
receipt of a waiver hereunder, the Receiving Party or any of its
Representatives is, in the reasonable opinion of such
person’s counsel, compelled to disclose information or else
stand liable for contempt or suffer other censure or penalty,
the Receiving Party or such Representative may disclose the
requested information. In any event, the Receiving Party and its
Representatives will exercise its best efforts to obtain
reliable assurance that confidential treatment will be accorded
the information. In addition, neither the Receiving Party nor
any of its Representatives will oppose action by the Disclosing
Party to obtain an appropriate protective order or other
reliable assurance that such confidential treatment will be so
accorded and the Receiving Party and its Representatives shall
cooperate with the Disclosing Party to obtain such order or
other assurance.
3. Nondisclosure of
Negotiations. Except as otherwise expressly
permitted hereby, without the prior written consent of the other
party, each party hereby agrees that it will not, and will
direct its Representatives not to, disclose to any person the
fact that any discussions (or any other discussions between or
involving the parties) with respect to the matters contemplated
hereby are taking, have taken or are proposed to take place or
other facts with respect to such discussions, including the
status thereof, or the fact (if such becomes the case) that any
Evaluation Material has been made available to either party, nor
otherwise make any public disclosure, whether written or oral,
with respect to this agreement or the actions or transactions
contemplated hereby; provided, however, that a party may,
without the prior consent of the other party, issue such press
release or make such public statement as may be required by law
or the applicable rules of any stock exchange or Nasdaq if it
has used its reasonable best efforts to consult with the other
party prior to issuing such release or making such public
statement and to obtain such party’s prior consent, but has
been unable to do so in a timely manner. No request or proposal
to amend, modify or waive any provision of this agreement shall
be made or solicited except in a non-public and confidential
manner which does not give rise to any disclosure obligation on
the part of either party. The term “person” as used in
this agreement shall be broadly interpreted to include, without
limitation, any corporation, company, partnership or individual.
4. Federal Securities Laws. Each
party acknowledges that it and its Representatives are
(a) aware that the United States securities laws prohibit
any person who has material, non-public information concerning a
company from purchasing or selling securities of such company or
from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities, and
(b) familiar with the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), and that it and
its Representatives will neither use, nor cause any third party
to use, any Evaluation Material in contravention of such
Exchange Act, including, without limitation,
Rule 10b-5
thereunder.
5. Return of Evaluation
Material. Upon the request of either party, the
other party (a) will promptly return all Evaluation
Material furnished to the other party or (b) will destroy
any Evaluation Material; provided, however, DealerTrack’s
accountants retained to review and evaluate the Evaluation
Material will retain, in confidence, a file copy of its work
papers and any reports in accordance with its professional
obligation. Any destruction of Evaluation Material will be
confirmed by each party upon written request of the other party.
Notwithstanding the return or destruction of the Evaluation
Material, each party and its Representatives will continue to be
bound by its obligations of confidentiality hereunder.
6. No Definitive Agreement. Each
party agrees that unless and until a definitive agreement
between the parties with respect to the Proposed Transaction has
been executed and delivered, neither party will be under any
legal obligation of any kind whatsoever with respect to any such
transaction by virtue of this or any written or oral expression
with respect to such transaction by either of the parties or
their respective Representatives except, in the case of this
agreement, for the matters specifically agreed to herein. Each
party further acknowledges and agrees that it reserves the
right, in its sole discretion, to reject any and all proposals
made by the other party or any of its Representatives with
regard to any Proposed Transaction, and to terminate discussions
and negotiations concerning a Proposed Transaction with the
other party at any time.
7. Accuracy of Evaluation
Material. Each party acknowledges and agrees
that it has endeavored, and shall continue to endeavor, to
include in the Evaluation Material information known to it and
that it believes is relevant to the other party’s
evaluation of the Proposed Transaction. Notwithstanding the
foregoing, each party acknowledges and agrees that the other
party is making no representation or warranty as to the accuracy
or completeness of the Evaluation Material. The Receiving Party
agrees that it shall assume full responsibility for all
conclusions it derives from the Evaluation Material and that
neither the Disclosing Party nor any of its Representatives
shall have any liability with respect to the Evaluation Material
or the use or content thereof.
8. Remedies. Each party agrees
that monetary damages would not be a sufficient remedy for any
breach of this agreement and that in addition to all other
remedies, each party shall be entitled to specific performance
and injunctive or other
2
equitable relief as a remedy for any such breach, and each party
further agrees to waive and to use its best efforts to cause its
Representatives to waive, any requirement for the securing or
posting of any bond in connection with any such remedy. In the
event of litigation relating to this agreement, if a court of
competent jurisdiction determines that a party or any of its
Representatives has breached this agreement, it shall be liable
for and pay to the other party on demand the legal fees and
expenses incurred by such party in connection with such
litigation, including any appeal therefrom.
9. Waiver and Amendment. Each
party understands and agrees that no failure or delay by the
other party or any of its Representatives in exercising any
right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder. The agreements set
forth herein may only be waived or modified by an agreement in
writing signed on behalf of the parties.
10. Successors and Assigns. This
agreement shall inure to the benefit of and be enforceable by
each of the parties and their successors and permitted assigns.
11. Severability. In case
provisions of this agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this agreement shall not in any way be
affected or impaired thereby. This Agreement contains the entire
agreement between the parties regarding its subject matter and
supersedes all prior agreements, understandings, arrangements
and discussions between the parties regarding such subject
matter.
12. Governing Law; Venue. The
validity, interpretation, performance and enforcement of this
agreement shall be governed by the laws of the State of New
York. The parties hereby irrevocably and unconditionally consent
to the exclusive jurisdiction of the courts of the State of New
York located in the City of New York and the courts of the
United States of America located in the City of New York for any
action, suit or proceeding arising out of or relating to this
agreement or the Proposed Transaction, and agree not to commence
any action, suit or proceeding related thereto except in such
courts. The parties further hereby irrevocably and
unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of or relating to
this agreement in the courts of the State of New York located in
the City of New York or the courts of the United States of
America located in the City of New York and hereby further
irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum. Each of the parties further agrees that service of any
process, summons, notice or document by U.S. registered mail to
its address set forth above shall be effective service of
process for any action, suit or proceeding brought against it in
any such court.
13. Counterparts. This agreement
may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which shall constitute the
same agreement.
[signature page to follow]
3
Please acknowledge your agreement to the foregoing by
countersigning this agreement in the place provided below and
returning it to the undersigned.
Very truly yours,
DEALERTRACK, INC.
| By: |
/s/ Xxxx
X’Xxxx
|
Name: Xxxx X’Xxxx
Title: Chairman, President and Chief Executive Officer
Accepted and Agreed to,
this
10th day
of January, 2007
ARKONA, INC.
| By: |
/s/ Xxxx
Xxxx
|
Name: Xxxx Xxxx
Title: CEO
4
