EXHIBIT 10.2
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") made this _____ day of
____________, 1999, by and between HYPERFEED TECHNOLOGIES, INC., a Delaware
corporation ("HyperFeed") and XXXXXXX.XXX, INC., a Delaware corporation (the
"Company").
R E C I T A L S
WHEREAS, the Company and HyperFeed have entered into that certain
Contribution and Separation Agreement (the "Separation Agreement") dated as
of the date hereof, which provides, among other things, that HyperFeed shall
contribute certain assets to the Company as an additional capital
contribution to the Company, and the Company shall assume certain liabilities
of HyperFeed;
WHEREAS, as a condition to agreeing to enter into the Separation
Agreement, the Company has required that the parties execute and deliver this
Services Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and HyperFeed hereby,
intending to be legally bound by the terms hereof, agree as follows:
ARTICLE I
SERVICES PROVIDED
SECTION 1.1 SERVICES. During the term of this Agreement, subject to
the terms and conditions stated herein and unless such services are
terminated pursuant to Section 3.2 hereof, HyperFeed will assist in
performing the following services (the "Services") for the Company:
(a) administrative services, including telephones, secretarial
assistance, facilities management, use of office administrative equipment,
internal computer operations and systems, and related services;
(b) provision of customer information and services, including
customer billing, collections, financial accounting, and related services;
(c) technical and operational support, including assistance with
the operation and marketing of the on-line services (including advertising
services) offered by the Company;
(d) internal legal, human resources, risk management and
accounting services, including assistance with legal, employee benefits,
accounting and other related issues,
with such assistance to be provided by HyperFeed personnel but not to include
any company retained outside advisors;
(e) network services, operations and management support;
(f) access to all records of HyperFeed relevant to the ongoing
operations of the Company for use solely by the Company, its agents and
advisors;
(g) provision of office space in HyperFeed's main offices at 000
Xxxxx Xxxxxx Xxxxx, Xxxxxx 000 and 1130, Chicago, Illinois in an amount
reasonably sufficient to allow the Company to conduct its administrative
functions, subject to the terms and conditions of HyperFeed's current lease for
such offices; provided that HyperFeed shall at all times remain responsible for
all charges and expenses under such lease.
HyperFeed will provide all Services in a professional manner, consistent with
industry standards.
SECTION 1.2 PERSONNEL. HyperFeed shall engage or employ personnel to
service the Company (the "Provided Employees") on a full-time or part-time basis
as needed in sufficient amounts to provide the Services. HyperFeed shall
provide all compensation, benefits and/or related payments or
deductions/withholdings related to the Provided Employees. The Provided
Employees shall at all times be considered the employees of HyperFeed.
ARTICLE II
COMPENSATION
SECTION 2.1 COMPENSATION. During the term of this Agreement, subject
to the terms and conditions stated herein the Company shall pay HyperFeed
monthly in advance on the first business day of each month the amount
specified on the attached EXHIBIT A for such month as the monthly charge for
the Services.
ARTICLE III
TERM
SECTION 3.1 TERM. The term of this Agreement shall begin and be
effective as of April 1, 1999 and shall continue in full force and effect for a
period of fifteen months, unless it is terminated earlier in accordance with the
terms and conditions contained herein; provided, however, the Company may extend
this Agreement for additional one month terms by delivery of written notice to
HyperFeed no less than thirty (30) days prior to the end of the term of this
Agreement or any one month extension as the case may be.
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ARTICLE IV
WARRANTIES; REPRESENTATIONS
SECTION 4.1 HYPERFEED REPRESENTATIONS AND WARRANTIES. HyperFeed
represents and warrants that:
(a) it has full power and authority to enter into and fully
perform this Agreement.
(b) all materials and services furnished to the Company or the use
thereof will not violate any applicable law, or violate or infringe upon the
rights of any third party.
(c) at all times, HyperFeed will comply with all applicable
federal, state and local laws.
SECTION 4.2 COMPANY REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants that:
(a) it has full power and authority to enter into and fully
perform this Agreement.
(b) all materials and services furnished to the Company or the use
thereof will not violate any applicable law, or violate or infringe upon the
rights of any third party.
(c) at all times, the Company will comply with all applicable
federal, state and local laws.
ARTICLE V
INDEMNITIES
SECTION 5.1 INDEMNITIES. Each party shall at all times indemnify,
hold harmless and defend the other party in accordance with the
indemnification provisions (applicable to such party) set forth in Article 5
of the Contribution and Separation Agreement
SECTION 5.2 LIMITATION ON LIABILITY. Neither the Company nor
HyperFeed shall be liable for any loss resulting from a cause over which such
entities do not have direct control, including but not limited to the failure
of electronic or mechanical equipment or communication lines, telephone or
other interconnect problems, unauthorized access or theft.
ARTICLE VI
REMEDIES
SECTION 6.1 TERMINATION. Either party shall have the right to
terminate this Agreement if:
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(a) the other party breaches any material term or condition of
this Agreement and has failed to cure such breach within ten (10) days after
delivery of written notice of default.
(b) the other party makes an assignment for the benefit of its
creditors; (ii) is the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if such petition or proceeding is
not dismissed within sixty (60) days of filing; (iii) becomes the subject of
any involuntary petition in bankruptcy or any involuntary proceeding relating
to insolvency, receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within sixty (60)
days of filing; or (iv) is liquidated or dissolved; or
(c) the other party is dissolved.
SECTION 6.2 PROCEDURE. The non-terminating party may exercise its
rights pursuant to Section 6.1 by sending the defaulting party the
appropriate notice. No exercise of rights under Section 6.1 will limit the
non-defaulting party's right to exercise any other remedy at law or equity.
ARTICLE VII
GENERAL
SECTION 7.1 ASSIGNMENT. Neither party may assign this Agreement, or
their respective rights and obligations hereunder, in whole or in part
without the other party's prior written consent which consent shall not be
unreasonably withheld. Any attempt to assign this Agreement without such
consent shall be void and of no effect whatsoever. Notwithstanding the
foregoing, the either party assign this Agreement or any of its rights and
obligations hereunder without the other party's consent to any entity
controlling, controlled by or under common control with such assigning party,
or to any entity that acquires the assigning party by purchase of stock or by
merger or otherwise, or by obtaining substantially all of the assigning
party's assets (a "the Company Assignee"), provided that any such Company
Assignee, or any division thereof, thereafter succeeds to all of the rights
and is subject to all of the obligations of the assigning party under this
Agreement.
SECTION 7.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware;
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 7.3 JURISDICTION. Each party hereto irrevocably submits to
the exclusive jurisdiction of (a) the Superior Court of the State of
Illinois, Xxxx County, and (b) the United States District Court for the
Northern District of Illinois, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated
hereby or thereby. Each of HyperFeed and the Company agrees to commence any
such action, suit or proceeding either in the United States District Court
for the Northern District of Illinois or if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons,
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in the Superior Court of the State of Illinois, Xxxx County. Each of
HyperFeed and the Company further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's
respective address set forth below shall be effective service of process for
any action, suit or proceeding in Illinois, with respect to any matters to
which it has submitted to jurisdiction in this Section 7.3. Each of
HyperFeed and the Company irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby and thereby in
(i) the Superior Court of the State of Illinois, Xxxx County, or (ii) the
United States District Court for the Northern District of Illinois, and
hereby and thereby further irrevocably and unconditionally waives and agrees
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.
SECTION 7.4 COMPLIANCE WITH LAW. Each party shall comply in all
material respects with all laws and regulations applicable to its activities
under this Agreement.
SECTION 7.5 PARTIAL INVALIDITY. If any provision of this Agreement
(or any portion thereof) or the application of any such provision (or any
portion thereof) to either party or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof).
SECTION 7.6 NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when so
delivered by hand, or if mailed, three days after mailing (one business day
in the case of express mail or overnight courier service), as follows:
(a) if to the Company:
XXXxxxx.xxx, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
(b) if to HyperFeed,
HyperFeed Technologies, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
SECTION 7.7 INDEPENDENT CONTRACTORS. The parties to this Agreement
are independent contractors. There is no relationship of partnership, joint
venture, employment, franchise, or agency between the parties. Neither party
shall have the power to bind the other or incur obligations on the other's
behalf without the other's prior written consent.
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SECTION 7.8 NO WAIVER. No failure of either party to exercise or
enforce any of its rights under this Agreement shall act as a waiver of such
right.
SECTION 7.9 ENTIRE AGREEMENT. This Agreement, along with the
Exhibits thereto, contains the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter. Neither
party shall be liable or bound to any other part, in any manner by any
representations, warranties or covenants relating to such subject matter
except as specifically set forth herein.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to each of the other parties.
SECTION 7.11 EFFECTIVENESS. This Agreement shall not become effective
until executed by all proposed Parties hereto.
SECTION 7.12 AMENDMENT. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. By
an instrument in writing, any two parties hereto may waive compliance by the
third partly with any term or provision of this Agreement that such third
party was or is obligated to comply with or perform.
SECTION 7.13 NO THIRD PARTY BENEFIT. Except as provided in the
Contribution and Separation Agreement, this Agreement is for the sole benefit
of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the parties hereto and such assigns, any legal or equitable rights
hereunder.
SECTION 7.14 HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement
to a Section such reference shall be to a Section of this Agreement unless
otherwise indicated.
* * * * *
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* * * * *
IN WITNESS WHEREOF, the parties have caused this Services Agreement to be
executed by their duly authorized representatives as of the date first above
written.
HYPERFEED TECHNOLOGIES, INC., XXXXXXX.XXX, INC.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
By: By:
------------------------------------ ------------------------------------
Xxxx X. Xxxxx, Senior Vice President Xxxxxxx X. Xxxxxxxxx, President
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EXHIBIT A
TO THE SERVICES AGREEMENT
Period Payment
------ -------
April 1999 $ 213,500
May 1999 $ 213,500
June 1999 $ 213,500
July 1999 $ 213,500
August 1999 $ 213,500
September 1999 $ 213,500
October 1999 $ 163,500
November 1999 $ 163,500
December 1999 $ 163,500
January 2000 $ 138,500
February 2000 $ 138,500
March 2000 $ 138,500
April 2000 $ 113,500
May 2000 $ 113,500
June 2000 $ 113,500
Any month beyond June 2000 an amount reasonably
agreeable to the parties
