EXHIBIT 10.5
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is entered into as 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
Non-Competition 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
DEFINITIONS
SECTION 1.1 DEFINITIONS.
"Company Business" shall mean a business, or component of a business, that
is engaged in the maintenance of one or more Internet Server Farms for the
delivery of financial market data and market analytics with financial news
services via the Internet.
"Company Non-Compete Termination Date" shall mean that date that is the
later of (i) the date that is three (3) years from the date hereof or (ii)
the date on which that certain DataFeed License Agreement dated as of the
date hereof by and between the Company and HyperFeed (the "DataFeed License
Agreement") is rightfully terminated by the Company under Section 8B thereof
or such agreement expires and is not renewed.
"Data Feed" shall mean any digital market datafeed provided via the
Internet, satellite or land line containing market data information obtained,
selected and consolidated under the authority of various agencies and other
information providers.
"HyperFeed Non-Compete Termination Date" shall mean that date that is
the earlier of (i) the date that is three (3) years from the date hereof or
(ii) the date on which the DataFeed License Agreement expires and is not
renewed or is rightfully terminated by HyperFeed under Section 8B thereof.
"Intellectual Property" shall mean (i) the intellectual property listed on
the attached Exhibit A which was licensed to the Company pursuant to the
Separation Agreement, and (ii) that certain software package licensed to both
the Company and HyperFeed by Xxxxxxxx Analytics, Ltd., together with any
modifications to or derivations of such software package and source code.
"Internet" shall mean the global network of interconnected computer
networks, each using the Transmission Control Protocol/Internet Protocol and/or
such other standard network interconnection protocols as may be adopted from
time to time, which is used to transmit content that is directly or indirectly
delivered to a computer or other digital electronic device for display to an
end-user, whether such content is delivered through on-line browsers, off-line
browsers, or through "internet push" technology.
"Internet Server Farm" shall mean a computer system designed to receive
Data Feed from a Data Feed provider and repackage the information delivered in
the Data Feed into various formats for redistribution via the Internet to other
users.
"Person" shall mean any natural person, legal entity, or other organized
group of persons or entities. (All pronouns whether personal or impersonal,
which refer to Person include natural persons and other Persons.)
ARTICLE II
NON-COMPETITION RESTRAINTS
SECTION 2.1 HYPERFEED NON-COMPETITION RESTRAINTS. HyperFeed shall not
either by itself or through any controlled affiliate or subsidiary:
(a) during the period commencing with the date hereof and
terminating on the HyperFeed Non-Compete Termination Date (i) engage in the
Company Business, or (ii) own more than five percent (5%) of the outstanding
equity interest of any entity (other than the Company) that engages in the
Company Business; provided that HyperFeed shall not be deemed to be engaged in
the Company Business merely by providing Data Feed to a Person who is engaged in
the Company Business.
(b) during the period commencing with the date hereof and
terminating on the HyperFeed Non-Compete Termination Date license,
sublicense, assign or otherwise transfer all or any part of the Intellectual
Property to any entity that directly or indirectly engages in the
redistribution of such Intellectual Property via the Internet (unless such
redistribution or use of the Intellectual Property via the Internet occurs
solely pursuant to a separate arrangement that such entity has with the
Company); or
(c) during the period commencing with the date hereof and
terminating on the HyperFeed Non-Compete Termination Date directly or
indirectly for its own account or for or with any other person or entity of
any kind whatsoever without the consent and cooperation of the Company (i)
hire, solicit or endeavor to entice away
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from the Company, any person who at the time of such solicitation or attempted
solicitation was employed by the Company, in order for such person to accept
employment or association with another person, or entity of any kind whatsoever,
or (ii) approach any such person for any such purpose or authorize or knowingly
cooperate with the taking of any such action by any other individual, person or
entity.
Notwithstanding anything in this Section 2.1 to the contrary, HyperFeed shall at
all times remain free, either by itself or through any controlled affiliate or
subsidiary, to (A) license or sublicense, all or part of the Intellectual
Property (i) to any licensed Broker or Dealer (as those terms are defined under
Section 202(a) of the Investment Advisers Act of 1940) for redistribution to
Persons having an account with such Broker or Dealer, (ii) to employees,
correspondents, or agents of such Broker or Dealer, or (iii) in relation to such
Broker or Dealer's promotional efforts not to exceed thirty (30) days; and (B)
own more than five percent (5%) of the outstanding equity interest of such
Broker or Dealer.
SECTION 2.2 COMPANY NON-COMPETITION RESTRAINTS. The Company shall not
either by itself or through any affiliate or subsidiary:
(a) during the period commencing with the date hereof and
terminating on the Company Non-Compete Termination Date (i) engage in the
business of redistributing Data Feed (other than to XX Xxxxxx, an existing
customer of the Company) in any way other than through Internet Server Farms
owned and hosted by the Company or by Xxxxxxxx Analytics Ltd., (ii) own more
than five percent (5%) of the outstanding equity interest of any entity that
engages in the business of redistributing a Data Feed in any way, other than
an entity that redistributes Data Feed via the Internet through Internet
Server Farms owned and hosted by the Company; or
(b) during the period with the date hereof and terminating on
the Company Non-Compete Termination Date, directly or indirectly for its own
account or for or with any other person or entity of any kind whatsoever
without the consent and cooperation of HypeFeed (i) hire, solicit or endeavor
to entice away from HyperFeed, any person who at the time of such
solicitation or attempted solicitation was employed by HyperFeed in order for
such person to accept employment or association with another person, or
entity of any kind whatsoever, or (ii) approach any such person for any such
purpose or authorize or knowingly cooperate with the taking of any such
action by any other individual, person or entity.
ARTICLE III
TERM
SECTION 3.1 TERM OF AGREEMENT. The term of this Agreement shall be the
period commencing on the date hereof and terminating on the later of the Company
Non-Compete Termination Date and the HyperFeed Non-Compete Termination
Date.
ARTICLE IV
MISCELLANEOUS
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SECTION 4.1 JUDICIAL MODIFICATION OF TERMS. In the event any of the
terms of this Agreement are deemed to be unreasonable by a court of competent
jurisdiction, the parties expressly authorize such court to modify any such
terms as necessary to make the restrictions in this Agreement reasonable.
SECTION 4.2 REMEDIES. The parties agree that this Agreement is intended
to protect and preserve legitimate business interests of each respective party.
It is further agreed that any breach of this Agreement may render irreparable
harm to the non-breaching party. In the event of a breach of this Agreement,
the non-breaching party, in addition to the indemnity and other remedy
provisions of the Separation Agreement, shall have available to it all remedies
provided by law and equity, including, but not limited to, temporary and
permanent injunctive relief to restrain the breaching party from violating this
Agreement.
SECTION 4.3 NOTICES. Any notice to be given hereunder shall be in
writing and delivered personally or sent by certified mail, postage prepaid,
return receipt requested, telefax or overnight mail, addressed 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 4.4 AMENDMENT; MODIFICATION; WAIVER. No provision in this
Agreement may be modified, amended or waived unless such modification, amendment
or waiver is agreed to in writing, signed by both parties, or a person
authorized thereby. Except as otherwise specifically provided in this
Agreement, no waiver by any party hereto or any breach by another party hereto
of any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar provision or condition
at the same or any prior or subsequent time.
SECTION 4.5 SEVERABILITY. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
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SECTION 4.6 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement shall not
be assigned to any third party without the prior written consent of the other
party. This Agreement shall inure to the benefit of and shall be binding upon
the parties' respective successors and assigns.
SECTION 4.7 GOVERNING LAW. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of Illinois without reference to the principles of conflict of
laws.
SECTION 4.8 ENTIRE AGREEMENT. This Agreement contains all of the
understandings and representations between the parties hereto pertaining to the
subject matter hereof and supersedes all undertakings, terms and agreements,
whether oral or in writing, if any, previously entered into by them with respect
thereto.
SECTION 4.9 COUNTERPARTS. This instrument may be executed in one or more
counterparts, each of which shall be an original and together shall constitute
one and the same instrument.
SECTION 4.10 CONFIDENTIALITY. Each party agrees not to disclose to any
third party other than its legal counsel and financial advisers any information
delivered pursuant to this Agreement without the prior written consent of the
other party.
* * * * *
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* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
HYPERFEED TECHNOLOGIES, INC.,
a Delaware corporation
By:
---------------------------------------------
Xxxx X. Xxxxx, Senior Vice President
XXXXXXX.XXX, INC.,
a Delaware corporation
By:
---------------------------------------------
Xxxxxxx X. Xxxxxxxxx, President
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Exhibit A
to Non-Competition Agreement
ORBIT:
Orbit, including object code, source code, application documentation and
source code documentation as described in the documentation. Orbit is a
software product comprised of a set of modular, front-end, financial market
software applications, created by HyperFeed used as a real-time market tool
for the online investor. These applications are tailored specifically for use
with HyperFeed, and utilize the Quote Socket application programming
interface ("API"). Orbit is written in C++ utilizing Microsoft Foundation
classes, each application is self contained, and loosely coupled to the other
applications through propriety API's.
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