TAX INDEMNIFICATION AND ALLOCATION AGREEMENT
THIS TAX INDEMNIFICATION AND ALLOCATION AGREEMENT
("Agreement") is executed this 30th day of August 1999 and effective as of
April 1, 1999 (the "Effective Date"), by and between HYPERFEED TECHNOLOGIES,
INC., a Delaware corporation ("HyperFeed"), and XXXXXXX.XXX, INC., a Delaware
corporation (the "Company").
RECITALS
A. HyperFeed is engaged in a business relating to the internet web site
known as XXXxxxx.xxx through one of its divisions (the "Division"), among other
businesses conducted by HyperFeed.
B. On or about March 19, 1999, HyperFeed caused XXXxxxx.xxx to be
organized as a Delaware corporation.
C. HyperFeed expects as part of an integrated transaction (i) to
contribute the assets of the Division to XXXxxxx.xxx (the "Common Stock") of
XXXxxxx.xxx (the "Contribution"); and (ii) to cause XXXxxxx.xxx to make an
initial public offering of its Common Stock.
D. HyperFeed expects the Contribution to qualify as a tax-free transfer
to a controlled corporation within the meaning of Section 351 of the Internal
Revenue Code of 1986, as amended (the "Code").
E. HyperFeed expects that during the period beginning on the date of
formation of the Company and ending upon the termination of the Effective Period
(as defined below), XXXxxxx.xxx will be part of an affiliated group consisting
of HyperFeed and its affiliates (the "HyperFeed Consolidated Group") and that
XXXxxxx.xxx will file a consolidated return with the HyperFeed Consolidated
Group.
F. Upon the termination of the Effective Period, the taxable year of
XXXxxxx.xxx shall close for U.S. federal income tax purposes and XXXxxxx.xxx
shall cease to be a member of the HyperFeed Consolidated Group.
G. The parties hereto wish to provide for the payment of Income Taxes
(as defined herein) and entitlement to refunds thereof, allocate responsibility
and provide for cooperation in connection with the filing of returns in respect
of Income Taxes, and provide for certain other matters relating to Income Taxes.
NOW, THEREFORE, in consideration of the agreements herein contained and
intending to be legally bound hereby, HyperFeed and XXXxxxx.xxx hereby agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Contribution and Separation
Agreement between the parties of even date herewith (the "Contribution
Agreement"). For purposes of this Agreement, the following terms shall have the
meanings set forth below (such meanings to be equally applicable to both the
singular and the plural forms of the terms defined).
"Action" shall mean any action, claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental,
regulatory or other administrative agency or commission or any arbitration
tribunal.
"Actual Tax Payment" shall have the meaning set forth in Section 3.3
hereof.
"Actually Realized" or "Actually Realizes" shall mean, for purposes of
determining the timing of the incurrence of any Income Tax Liability or the
realization of a Refund by a Person in respect of any payment, transaction,
occurrence or event, the time at which the amount of Income Taxes paid by such
Person is increased above or reduced below the amount of Income Taxes that such
Person would have been required to pay but for such payment, transaction,
occurrence or event.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions located in the State of Illinois are
authorized or obligated by law or executive order to close.
"Carryback" shall mean the carryback of a Tax Attribute (including,
without limitation, a net operating loss, a net capital loss or a tax credit) by
XXXxxxx.xxx from a Post-Consolidation Taxable Period to a HyperFeed Consolidated
Return Period.
"Code" shall have the meaning set forth in Recital D.
"Contribution" shall have the meaning set forth in Recital C.
"Contribution Agreement" shall have the meaning set forth in the first
paragraph of this Article 1.
"Contribution Date" shall mean the date on which the Contribution
occurs.
"Contribution Tax Liabilities," shall mean, with respect to any Taxing
Jurisdiction, as defined below, the sum of (i) the product of (x) the additional
corporate-level gain or income recognized with respect to the failure of the
Contribution to qualify for Tax-Free Status, as defined below, under the income
tax law of such Taxing Jurisdiction pursuant to any settlement, Final
Determination, judgment, assessment, proposed adjustment or otherwise and
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(y) the Taxing Jurisdiction's highest marginal tax rate applicable to the
taxable income of corporations on income of the character subject to tax,
(ii) interest on such amount calculated pursuant to such Taxing
Jurisdiction's laws regarding interest on tax liabilities at the highest
Underpayment Rate, as defined below, for corporations in such Taxing
Jurisdiction from the date such additional gain or income was recognized
until full payment with respect thereto is made pursuant to Article 3 hereof,
and (iii) any penalties actually paid to such Taxing Jurisdiction that would
not have been paid but for the failure of the Contribution to qualify for
Tax-Free Status in such Taxing Jurisdiction.
"Deemed Tax Payment" shall have the meaning set forth in Section 3.3
hereof.
"Effective Period" shall include all taxable periods that begin or end
on or after the date of the Contribution, provided that XXXxxxx.xxx is included
in the HyperFeed Consolidated Group for a portion of such taxable period.
"Final Determination" shall mean the final resolution of liability for
any Income Tax, which resolution may be for a specific issue or adjustment or
for a taxable period, (i) by Internal Revenue Service Form 870 or 870-AD (or any
successor forms thereto), on the date of acceptance by or on behalf of the
taxpayer, or by a comparable form under the laws of a state, local, or foreign
taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall
not constitute a Final Determination to the extent that it reserves (whether by
its terms or by operation of law) the right of the taxpayer to file a claim for
Refund or the right of the Taxing Jurisdiction to assert a further deficiency in
respect of such issue or adjustment or for such taxable period (as the case may
be); (ii) by a decision, judgment, decree, or other order by a court of
competent jurisdiction, which has become final and unappealable; (iii) by a
closing agreement or accepted offer in compromise under Sections 7121 or 7122 of
the Code, or a comparable agreement under the laws of a state, local, or foreign
taxing jurisdiction; (iv) by any allowance of a Refund or credit in respect of
an overpayment of Income Tax, but only after the expiration of all periods
during which such Refund may be recovered (including by way of offset) by the
jurisdiction imposing such Income Tax; or (v) by any other final disposition,
including by reason of the expiration of the applicable statute of limitations
or by mutual agreement of the parties.
"HyperFeed" means HyperFeed Technologies, Inc., a Delaware corporation.
"HyperFeed Consolidated Group" shall mean HyperFeed and the other
members of the affiliated group of corporations (within the meaning of Section
1504(a) of the Code without regard to the exclusions in Section 1504(a)(1)
through (8)) of which HyperFeed is the common parent.
"HyperFeed Consolidated Federal Return" shall mean any consolidated
federal Income Tax Return or amendment thereof of the HyperFeed Consolidated
Group for any HyperFeed Consolidated Return Period.
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"HyperFeed Consolidated Return Period" shall mean a taxable period
that ends with or within the Effective Period for which a consolidated, combined
or unitary (as applicable) federal, state, local or foreign Income Tax Return is
filed or required to be filed by the HyperFeed Consolidated Group.
"HyperFeed Consolidated Tax Liability" means, with respect to any
HyperFeed Consolidated Return Period, the consolidated, combined or unitary
Income Tax Liability of the HyperFeed Consolidated Group.
"HyperFeed Group" shall mean, solely for purposes of this Agreement,
HyperFeed and each of the other members of the HyperFeed Consolidated Group
other than XXXxxxx.xxx.
"HyperFeed State, Local and Foreign Returns" shall mean any combined,
consolidated or unitary state, local or foreign Income Tax Returns or amendment
thereof which are required to be filed by HyperFeed or a member of the HyperFeed
Consolidated Group.
"Income Tax" (a) shall mean (i) any foreign or any United States
federal, state or local tax, charge, fee, impost, levy or other assessment that
is based upon, measured by, or calculated with respect to (1) net income or
profits (including, but not limited to, any capital gains, gross receipts, or
minimum tax, and any tax on items of tax preference, but not including sales,
use, value added, real property gains, real or personal property, transfer or
similar taxes), or (2) multiple bases (including, but not limited to, corporate
franchise, doing business or occupation taxes), if one or more of the bases upon
which such tax may be based, by which it may be measured, or with respect to
which it may be calculated is described in clause (a)(i)(1) of this definition,
together with (B) any interest and any penalties, fines, additions to tax or
additional amounts imposed by any Taxing Jurisdiction with respect thereto and
(b) shall include any transferee liability in respect of an amount described in
clause (a) of this definition.
"Income Tax Benefit" shall mean, in respect of a Person or group of
Persons for any taxable period, the excess of (A) the hypothetical Income Tax
Liability of such Person or group of Persons for such taxable period, calculated
as if carryover of a Tax Attribute had not occurred but with all other facts
unchanged, over (B) the actual Income Tax Liability of such Person or group of
Persons for such taxable period, calculated taking into account the carryover of
such Tax Attribute (and treating a Refund as a negative Income Tax Liability,
and taking into account credits (if any), for purposes of such calculation).
"Income Tax Detriment" shall mean, in respect of any Person or group of
Persons for any taxable period, the excess of (A) the actual Income Tax
Liability of such Person or group of Persons for such taxable period, calculated
taking into account the carryover of a Tax Attribute, as the case may be, over
(B) the hypothetical Income Tax Liability of such Person or group of Persons for
such taxable period, calculated as if the carryover of a Tax Attribute had not
occurred but with all other facts unchanged (and treating a Refund as a negative
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Income Tax Liability, and taking into account credits (if any), for purposes of
such calculation).
"Income Tax Liabilities" shall mean all liabilities for Income Taxes.
"Income Tax Return" shall mean any return, report, filing, statement,
questionnaire, declaration or other document required to be filed with a Taxing
Jurisdiction in respect of Income Taxes.
"Indemnified Party" shall mean any Person seeking indemnification
pursuant to the provisions of this Agreement.
"Indemnifying Party" shall mean any party hereto from which any
Indemnified Party is seeking indemnification pursuant to the provisions of this
Agreement.
"Losses" shall mean any and all losses, liabilities, claims, damages,
obligations, payments, costs and expenses, matured or unmatured, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown
(including, without limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements and compromises
relating thereto and attorneys' fees and any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any such
Actions or threatened Actions).
"Notice Date" with respect to Subsequent Tax Legislation or Treasury
Regulation (as defined below) shall mean the earliest of (i) the date such
legislation or materially identical legislation is introduced as a xxxx in the
United States House of Representatives or the United States Senate, (ii) the
date any amendment to any xxxx incorporating such legislation is approved by the
Congressional committee having jurisdiction or by the United States House of
Representatives or the United States Senate, (iii) the date any written proposal
incorporating such legislation is transmitted by the President of the United
States to Congress, (iv) the date any written proposal either by the Chairman of
the United States House of Representatives Ways and Means Committee or any
successor thereto or the Chairman of the United States Senate Finance Committee
incorporating such legislation is published in the Bureau of National Affairs'
"Daily Tax Report," or any successor publication or (v) the date such regulation
is published in the Federal Register as a proposed, temporary, or final Treasury
Regulation.
"Person" shall mean and include any individual, partnership, joint
venture, limited liability company, corporation, association, joint stock
company, trust, unincorporated organization or similar entity or a governmental
authority or any department or agency or other unit thereof.
"Post-Consolidation Taxable Period" shall mean a taxable period that,
to the extent it relates to XXXxxxx.xxx, begins after the termination of the
Effective Period.
"Preexisting Tax Benefit" shall have the meaning given in Section
2.5(a).
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"Proceeding" shall mean any audit or other examination, judicial or
administrative proceeding relating to liability for, or Refunds or adjustments
with respect to, Income Taxes.
"Refund" shall mean any refund of Income Taxes, including any reduction
in Income Tax Liabilities by means of a credit, offset or otherwise.
"Requesting Party" shall have the meaning given in Section 6.1.
"Subsequent Tax Legislation or Treasury Regulation" shall mean any xxxx
introduced in the United States House of Representatives or the United States
Senate that amends the Code, or any amendment to any such xxxx; any written
proposal to amend the Code that is officially recommended by the President of
the United States; any written proposal to amend the Code that is made available
to the general public either by the Chairman of the United States House of
Representatives Ways and Means Committee or any successor thereto, the Chairman
of the United States Senate Finance Committee or any successor thereto, or any
temporary or final Treasury Regulation; provided, however, that no such xxxx,
amendment, proposal, or regulation shall constitute Subsequent Tax Legislation
or Treasury Regulation unless the Notice Date of such xxxx, amendment, proposal
or regulation is subsequent to the date of this Agreement.
"XXXxxxx.xxx" means XXXxxxx.xxx, Inc., a Delaware corporation.
"Tax Attribute" shall mean a consolidated net operating loss, a
consolidated net capital loss, a consolidated unused investment credit, a
consolidated unused foreign tax credit, or a consolidated excess charitable
contribution (as such terms are used in Treasury Regulations sections 1.1502-79
and 1.1502-79A), or a U.S. federal minimum tax credit or U.S. federal general
business credit (but not tax basis or earnings and profits) that arises during
the Effective Period and can be carried to a Post-Consolidation Taxable Period.
"Tax-Free Status" shall mean the qualification of the Contribution as a
transaction described in Code Section 351(a)(1).
"Taxing Jurisdiction" shall mean the United States and every other
government or governmental unit having jurisdiction to tax HyperFeed,
XXXxxxx.xxx or any of their respective Affiliates.
"Tax-Related Losses" shall mean: (i) the aggregate Contribution Tax
Liabilities, (ii) all accounting, legal and other professional fees, and court
costs incurred in connection with any settlement, Final Determination, judgment
or other determination with respect to such aggregate Contribution Tax
Liabilities, and (iii) all costs, expenses and damages associated with
stockholder litigation or controversies and any amount paid by HyperFeed or
XXXxxxx.xxx in respect of the liability of stockholders, whether paid to
stockholders or to the Internal Revenue Service or any other Taxing Jurisdiction
payable by HyperFeed or XXXxxxx.xxx or their respective Affiliates, in each
case, resulting from the absence of Tax-Free Status for the Contribution.
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"Treasury Regulation" shall mean final, proposed or temporary
regulations promulgated under the Code.
"Underpayment Rate" shall mean the annual rate of interest described in
Section 6621(c) of the Code for large corporate underpayments of Income Tax (or
similar provision of state, local, or foreign Income Tax law, as applicable), as
determined from time to time.
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
2.1 HyperFeed Consolidated Federal Returns.
(a) General. For any HyperFeed Consolidated Return Period, HyperFeed
shall have sole and exclusive responsibility for the preparation and filing of
all HyperFeed Consolidated Federal Returns and amendments thereto with the
Internal Revenue Service. Such returns shall include all income, gains, losses,
deductions and credits of XXXxxxx.xxx.
(b) Cooperation. XXXxxxx.xxx shall furnish HyperFeed, at least sixty
(60) days before the due date (including extensions) of any such HyperFeed
Consolidated Federal Return, with its completed section of such HyperFeed
Consolidated Federal Return, prepared in accordance with this Agreement, in
accordance with instructions from HyperFeed and in a manner consistent with
prior returns, if any, provided that such actions are not inconsistent with this
Agreement. XXXxxxx.xxx will also furnish HyperFeed work papers and other such
information and documentation as is reasonably requested by HyperFeed with
respect to XXXxxxx.xxx.
2.2 HyperFeed State, Local and Foreign Returns.
(a) General. For any HyperFeed Consolidated Return Period, HyperFeed
shall have sole and exclusive responsibility for the preparation and filing of
all HyperFeed State, Local and Foreign Returns.
(b) Cooperation. HyperFeed will timely advise XXXxxxx.xxx of the
inclusion of XXXxxxx.xxx in any HyperFeed State, Local and Foreign Returns and
the jurisdictions in which such returns will be filed. XXXxxxx.xxx will evidence
its agreement to be included in such return on the appropriate form(s) and will
take such other actions as may be appropriate, in the opinion of HyperFeed, to
carry out the purposes and intent of this Section 2.2, provided that such
actions are not inconsistent with this Agreement. XXXxxxx.xxx shall furnish
HyperFeed, at least sixty (60) days before the due date (including extensions)
of any such HyperFeed State, Local and Foreign Returns, with its completed
section of such HyperFeed State, Local and Foreign Returns, prepared in
accordance with this Agreement, in accordance with instructions from HyperFeed
and in a manner consistent with prior returns, if any, provided that such
actions are not inconsistent with this Agreement. XXXxxxx.xxx will also
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furnish HyperFeed work papers and other such information and documentation as
is reasonable requested by HyperFeed with respect to XXXxxxx.xxx.
2.3 HyperFeed Tax Liability.
(a) HyperFeed Consolidated Federal Return Liability. Except to the
extent otherwise provided herein, for each HyperFeed Consolidated Return Period,
HyperFeed shall be liable for and indemnify XXXxxxx.xxx against all Taxes due in
respect of all HyperFeed Consolidated Federal Returns, subject to reimbursement
from XXXxxxx.xxx as contemplated by Section 2.6 of this Agreement.
(b) HyperFeed State, Local and Foreign Return Liability. Except to the
extent otherwise provided herein, for each HyperFeed Consolidated Return Period,
HyperFeed shall be liable for and indemnify XXXxxxx.xxx against all Taxes due in
respect of all HyperFeed State, Local and Foreign Returns, subject to
reimbursement from XXXxxxx.xxx as contemplated by Section 2.6 of this Agreement.
2.4 XXXxxxx.xxx Separate Tax Return Amount.
(a) General. For any taxable period ending with or within the Effective
Period of this Agreement, the term "XXXxxxx.xxx Separate Tax Return Amount"
shall mean the aggregate amount, whether a negative or positive, of (i) the
XXXxxxx.xxx Separate Federal Amount and (ii) the XXXxxxx.xxx Separate State,
Local and Foreign Amount, each as adjusted pursuant to the terms of this
Agreement.
(b) Computation of XXXxxxx.xxx Separate Federal Amount. For each
HyperFeed Consolidated Return Period that ends with or within the Effective
Period of this Agreement, XXXxxxx.xxx shall compute the XXXxxxx.xxx Separate
Federal Amount for the portion of such periods in which XXXxxxx.xxx is a Member
of the HyperFeed Consolidated Group. "XXXxxxx.xxx Separate Federal Amount"
means, with respect to each HyperFeed Consolidated Return Period, the federal
Tax liability that would be payable by XXXxxxx.xxx to the Internal Revenue
Service (in which case such amount will be positive), or the federal Tax refund
that would be payable by the Internal Revenue Service to XXXxxxx.xxx (in which
case such amount will be negative) if XXXxxxx.xxx had filed a separate federal
income tax return for the HyperFeed Consolidated Return Period. In the event
that XXXxxxx.xxx has a net operating loss, tax credit or other favorable Tax
attribute (a "Tax Attribute") for federal Tax purposes for a particular
HyperFeed Consolidated Return Period that would eliminate the federal Tax
liability of XXXxxxx.xxx for such taxable period but would not yield a federal
Tax refund for XXXxxxx.xxx on a separate federal income tax return basis, the
XXXxxxx.xxx Separate Federal Amount shall be zero for such taxable period, and
such federal Tax Attribute shall be recoverable, if at all, by XXXxxxx.xxx in a
subsequent HyperFeed Consolidated Return Period on such separate return basis,
as herein provided. In computing the XXXxxxx.xxx Separate Federal Amount,
XXXxxxx.xxx shall follow the Tax elections and other Tax positions adopted or
prescribed by HyperFeed and shall take into account the adjustments and
modifications set forth in Section 2.5 of this Agreement.
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(c) Computation of XXXxxxx.xxx Separate State, Local and Foreign
Amount. For each HyperFeed Consolidated Return Period that ends on or after the
first day of the Effective Period of this Agreement, XXXxxxx.xxx shall compute
the XXXxxxx.xxx Separate State, Local and Foreign Amount for the portion of such
periods in which XXXxxxx.xxx is a Member of the HyperFeed Affiliated Group.
"XXXxxxx.xxx Separate State, Local and Foreign Amount" means, with respect to
each HyperFeed Consolidated Return Period, the state, local and foreign Tax
liability that would be payable by XXXxxxx.xxx to the applicable taxing
authorities (in which case such amount will be positive), or the state, local
and foreign Tax refund that would be payable by the applicable taxing
authorities to XXXxxxx.xxx (in which case such amount will be negative) if
XXXxxxx.xxx had filed a separate state, local and foreign income or franchise
tax return for the HyperFeed Consolidated Return Period. In the event that
XXXxxxx.xxx would have a net operating loss, tax credit or other favorable Tax
attribute (a "Tax Attribute") for state, local or foreign Tax purposes for a
particular HyperFeed Consolidated Return Period that would eliminate the state,
local or foreign Tax liability of XXXxxxx.xxx for such taxable period but would
not yield a state, local or foreign Tax refund for XXXxxxx.xxx on a separate
federal income tax return basis, the XXXxxxx.xxx Separate State, Local and
Foreign Amount shall be zero for such taxable period, and such state, local or
foreign Tax Attribute shall be recoverable, if at all, by XXXxxxx.xxx in a
subsequent HyperFeed Consolidated Return Period on such separate return basis,
as herein provided. In computing the XXXxxxx.xxx Separate State, Local and
Foreign Amount, XXXxxxx.xxx shall follow the Tax elections and other Tax
positions adopted or prescribed by HyperFeed and shall take into account the
adjustments and modifications set forth in Section 2.5 of this Agreement.
2.5 Adjustments. In computing the XXXxxxx.xxx Separate Federal Amount
(and to the extent appropriate, the XXXxxxx.xxx Separate State, Local and
Foreign Amount), XXXxxxx.xxx shall take into account the following adjustments
and modifications:
(a) The XXXxxxx.xxx Separate Federal Amount shall be computed as if
XXXxxxx.xxx came into existence in a Code section 351 transaction on the date of
the Contribution, and unless otherwise provided, XXXxxxx.xxx shall be deemed not
to have existed prior to such date. XXXxxxx.xxx shall not be entitled to any
Income Tax Benefits of either the HyperFeed Affiliated Group or XXXxxxx.xxx that
existed prior to the date of the Contribution (a "Preexisting Tax Benefit").
(b) Dividends from any Member of the HyperFeed Affiliated Group shall
be eliminated.
(c) Items of income, gain, loss or deduction arising from a transaction
described in Treasury Regulation section 1.1552-1(a)(2)(ii) shall be taken into
account by XXXxxxx.xxx in the same manner and in the same taxable years as such
items are actually taken into account on the HyperFeed Consolidated Federal
Return.
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(d) Carryforwards and carrybacks of any Tax Benefits shall be
calculated as though HyperFeed were the Internal Revenue Service and XXXxxxx.xxx
filed a separate return.
(e) Characterization of items of income, expense, gain or loss that are
determined on a consolidated or combined basis in the calculation of HyperFeed
Consolidated Federal Return Liability and HyperFeed State, Local and Foreign
Liability, such as characterizations under Code section 1231, shall retain their
characterization for purposes of determining the XXXxxxx.xxx Separate Federal
Amount and the XXXxxxx.xxx Separate State, Local and Foreign Amount.
(f) All ordinary income and capital gains shall be deemed to be subject
to Tax at the highest applicable Tax rate applicable to taxable ordinary income
of corporations.
(g) Estimated Tax payments made pursuant to Section 2.6(c) of this
Agreement shall not be included in the computation of the XXXxxxx.xxx Separate
Tax Return Amount.
(h) Other adjustments reasonably specified by HyperFeed shall be made.
2.6 Payment of XXXxxxx.xxx Separate Tax Return Amount.
(a) Payment from XXXxxxx.xxx to HyperFeed. For any HyperFeed
Consolidated Return Period covered by this Agreement, if the XXXxxxx.xxx
Separate Tax Return Amount is a positive amount, XXXxxxx.xxx shall pay such
amount to HyperFeed on or before the due date (without extensions) of the
HyperFeed Consolidated Federal Returns for the appropriate HyperFeed
Consolidated Return Period. Such payment shall be reduced by the estimated Tax
payments made by XXXxxxx.xxx for such taxable period pursuant to Section 2.6(c)
of this Agreement. For administrative or other reasons, HyperFeed may direct or
allow the above payment to be made after the prescribed date. If all relevant
information necessary to determine the amount of the payment is not available by
the due date, the payment shall be based on estimates, and adjustments shall be
made when sufficient information is available or as soon as practicable after
the HyperFeed Consolidated Federal Return for the appropriate HyperFeed
Consolidated Return Period is filed. Hyperfeed shall provide XXXxxxx.xxx with
schedules showing the calculation of the XXXxxxx.xxx Separate Tax Return Amount
at least fifteen (15) days before the due date (without extensions) of the
HyperFeed Consolidated Federal Returns.
(b) Payment from HyperFeed to XXXxxxx.xxx. For any HyperFeed
Consolidated Return Period covered by this Agreement, if the XXXxxxx.xxx
Separate Tax Return Amount is a negative amount HyperFeed shall pay to
XXXxxxx.xxx the amount that would have been allowed as a net Tax refund to
XXXxxxx.xxx on or before the due date (without extensions) of the HyperFeed
Consolidated Federal Returns for the appropriate HyperFeed Consolidated Return
Period. Such payment shall be increased by the estimated Tax payments made by
XXXxxxx.xxx Subgroup for such taxable period pursuant to Section 2.6(c) of this
Agreement. For administrative or other reasons, HyperFeed may decide to make the
above payment after the prescribed date. If all relevant information necessary
to determine the amount of the
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payment is not available by the due date, the payment shall be based on
estimates, and adjustments shall be made when sufficient information is
available or as soon as practicable after the HyperFeed Consolidated Federal
Return for the appropriate HyperFeed Consolidated Return Period is filed.
Hyperfeed shall provide XXXxxxx.xxx with schedules showing the calculation of
the XXXxxxx.xxx Separate Tax Return Amount at least fifteen (15) days before
the due date (without extensions) of the HyperFeed Consolidated Federal
Returns.
(c) Estimated Tax Payments.
(i) XXXxxxx.xxx shall pay to HyperFeed quarterly installments of
estimated Tax with respect to the period or periods beginning on or after the
date of the Contribution and ending on or before the termination of the
Effective Period. The amount of such payments for the first, second, third and
fourth installments shall cumulatively equal 25 percent, 50 percent, 75 percent
and 100 percent, respectively, of the estimated full-year XXXxxxx.xxx Separate
Tax Return Amount (including the minimum tax and environmental tax). Settlement
for such payment shall be made on or before, or as soon as practicable after,
the due date of the applicable estimated Tax payment to be paid by HyperFeed.
(ii) XXXxxxx.xxx shall pay to HyperFeed any and all interest and
penalties imposed on the HyperFeed Consolidated Group as a result of the
underpayment by XXXxxxx.xxx of estimated Tax pursuant to Section 2.6(c)(i). For
purposes of this Section 2.6(c)(ii), the Chief Financial Officer of HyperFeed
shall determine to which Member or Members of the HyperFeed Consolidated Group
the underpayment is attributable. Such determination of the Chief Financial
Officer shall be final. A payment of such interest and penalties shall not be
considered a payment of estimated Tax.
2.7 Adjustments to HyperFeed Consolidated Tax Liability.
(a) General. If any adjustment in the HyperFeed Consolidated Tax
Liability is made as a result of an audit by a Taxing Jurisdiction, the granting
of a claim for refund, a final decision by a court, the carryback or
carryforward of a loss, deduction or credit or any other similar circumstance,
the Tax refund or Tax liability resulting therefrom, including any interest and
penalties (an "Adjustment"), shall be allocated between the HyperFeed Affiliated
Group and XXXxxxx.xxx in accordance with the principles of this Agreement as if
such adjustments had been taken into account in the year to which they relate.
(b) Adjustment Resulting in Basis Increase to XXXxxxx.xxx. If any
Adjustment results in an increase in the adjusted basis of any asset transferred
by HyperFeed to XXXxxxx.xxx, XXXxxxx.xxx shall pay to HyperFeed the amount of
any Tax benefit resulting to it by virtue of such basis increase to HyperFeed as
and when such Tax benefit is realized. The preceding sentence shall survive the
expiration of the Effective Period of this Agreement.
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ARTICLE III
INDEMNIFICATION FOR INCOME TAXES
3.1 Indemnification by HyperFeed. Except as otherwise provided in this
Article 3, HyperFeed shall indemnify and hold XXXxxxx.xxx, its Representatives
and Affiliates harmless from and against (i) all Contribution Tax Liabilities
incurred by XXXxxxx.xxx; (ii) without duplication, all Income Tax Liabilities
incurred by any member of the HyperFeed Group that any member of the HyperFeed
Group is liable for, or required to reimburse XXXxxxx.xxx for, pursuant to
Article 2 hereof; (iii) all Income Tax Liabilities incurred by XXXxxxx.xxx by
reason of the breach of any of HyperFeed's covenants hereunder; and (iv) in each
of the cases described in (i) through (iii), any related costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses).
3.2 Indemnification by XXXxxxx.xxx. From and after the Contribution
Date, XXXxxxx.xxx shall indemnify and hold HyperFeed, its Representatives and
Affiliates harmless from and against (i) all Income Tax Liabilities of HyperFeed
incurred by reason of the breach by XXXxxxx.xxx of any of its convenants
hereunder, and in each case, any related costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses); (ii) all Income Tax
Liabilities that XXXxxxx.xxx is required to pay, or reimburse HyperFeed, its
Representatives and Affiliates for, under Article 2 hereof; and (iii) in each of
the cases described in (i) through (ii), any related costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses).
3.3 Time of Payment. The Indemnifying Party shall make payment pursuant
to an indemnification obligation no later than (i) five Business Days prior to
the date the Indemnified Party is required to make a payment of taxes, interest,
or penalties with respect to a proposed adjustment of taxes or an assessment of
tax deficiency asserted or made by any Taxing Jurisdiction that is premised in
whole or part on Contribution Tax Liabilities, including a payment made in
settlement of an asserted tax deficiency (each, an "Actual Tax Payment"), or
(ii) five Business Days after the date the Indemnified Party gives written
notice to the Indemnifying Party that the Indemnified Party has notified any
Taxing Jurisdiction, or gives the Indemnifying Party written notice or an
acknowledgment by any Taxing Jurisdiction, that such proposed adjustment of
taxes or tax deficiency would not result in a net payment by the Indemnified
Party because of the carryover, carryback or carryforward of net operating
losses or credits, the crediting of previously paid taxes, the utilization of
deductions or credits not claimed on the Indemnified Party's tax returns as
originally filed, the exclusion of income reported on such returns, or the
utilization of any other tax attributes that offset the asserted taxes (each, a
"Deemed Tax Payment"). The amount payable pursuant to the preceding sentence
shall be the Tax-Related Loss implied by such Actual Tax Payments and Deemed Tax
Payments.
3.4 Effect of Ruling, Determination or Opinion. The ability of either
HyperFeed or XXXxxxx.xxx to claim the benefit of indemnification pursuant to
this Article 3 shall not be
12
affected by the fact that (i) HyperFeed or XXXxxxx.xxx may have received a
ruling from the Internal Revenue Service; or (ii) HyperFeed or XXXxxxx.xxx
may have obtained a opinion of counsel relating to the Tax Liabilities for
which indemnification is sought.
ARTICLE IV
INCOME TAX CONTESTS
4.1 Notification by XXXxxxx.xxx. XXXxxxx.xxx shall promptly
upon receipt of notice thereof, notify HyperFeed in writing of any communication
with respect to any pending or threatened Proceeding in connection with an
Income Tax Liability (or an issue related thereto) for which HyperFeed may be
responsible pursuant to this Agreement. XXXxxxx.xxx shall include with such
notification a true, correct and complete copy of any written communication, and
an accurate and complete written summary of any oral communication, so received
by XXXxxxx.xxx. The failure of XXXxxxx.xxx timely to forward such notification
in accordance with the immediately preceding sentence shall not relieve
HyperFeed of its obligation to pay such Income Tax Liability or indemnify
XXXxxxx.xxx therefor, except and to the extent that the failure timely to
forward such notification actually prejudices the ability of HyperFeed to
contest such Income Tax Liability or increases the amount of such Income Tax
Liability.
4.2 Notification by HyperFeed. HyperFeed shall promptly upon receipt of
notice thereof, notify XXXxxxx.xxx in writing of any communication with respect
to any pending or threatened Proceeding in connection with an Income Tax
Liability (or an issue related thereto) for which XXXxxxx.xxx may be responsible
pursuant to this Agreement. HyperFeed shall include with such notification a
true, correct and complete copy of any written communication, and an accurate
and complete written summary of any oral communication, so received by
HyperFeed. The failure of HyperFeed timely to forward such notification in
accordance with the immediately preceding sentence shall not relieve XXXxxxx.xxx
of its obligation to pay such Income Tax Liability or indemnify HyperFeed
therefor, except and to the extent that the failure timely to forward such
notification actually prejudices the ability of XXXxxxx.xxx to contest such
Income Tax Liability or increases the amount of such Income Tax Liability.
4.3 HyperFeed Consolidated Return Periods. HyperFeed (or such member of
the Consolidated Group as HyperFeed shall designate) shall have the sole right
to represent the interests of XXXxxxx.xxx in any Proceeding relating to
HyperFeed Consolidated Return Periods and to employ counsel of its choice at its
expense; provided, however, that any expenses relating to items for which
XXXxxxx.xxx is responsible pursuant to Section 3 in connection with such a
Proceeding shall be borne by XXXxxxx.xxx; provided, further, however, that
XXXxxxx.xxx shall be entitled to designate counsel with respect to any such
Proceeding with respect to an Income Tax Return that includes XXXxxxx.xxx to the
extent that such Proceeding relates to items for which XXXxxxx.xxx is
responsible hereunder and the consent of XXXxxxx.xxx shall be required with
respect to the settlement of any item for which XXXxxxx.xxx would be responsible
hereunder.
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4.4 Power of Attorney. XXXxxxx.xxx shall execute and deliver to
HyperFeed (or such member of the HyperFeed Group as HyperFeed shall designate)
any power of attorney or other document requested by HyperFeed (or such
designee) in connection with any Proceeding described in Section 4.3 hereof.
ARTICLE V
APPORTIONMENT OF TAX ATTRIBUTES; REFUNDS
5.1 Apportionment of Tax Attributes.
(a) If the HyperFeed Consolidated Group has a Tax Attribute, the
portion, if any, of such Tax Attribute that shall be apportioned to XXXxxxx.xxx
and treated as a carryover to the first Post-Consolidation Taxable Period of
XXXxxxx.xxx shall be determined in accordance with Treasury Regulation sections
1.1502-79 and 1.1502- 79A; provided, however, that the portion, if any, of any
consolidated unused foreign tax credit which shall be apportioned to XXXxxxx.xxx
or such member shall be determined separately with respect to each of the items
of income listed in Section 904(d) of the Code.
(b) No consolidated U.S. federal income Tax Attribute of the HyperFeed
Consolidated Group, other than those described in Section 5.1(a) hereof, and no
consolidated, combined or unitary state, local, or foreign income Tax Attribute
arising in respect of a HyperFeed State, Local and Foreign Return, shall be
apportioned to XXXxxxx.xxx, except as HyperFeed (or such member of the HyperFeed
Consolidated Group as HyperFeed shall designate) determines is otherwise
required under the provisions of applicable law.
(c) HyperFeed (or its designee) shall determine the portion, if any, of
any Tax Attribute which must (absent a Final Determination to the contrary) be
apportioned to XXXxxxx.xxx in accordance with this Section 5.1 and applicable
law, and the amount of tax basis and earnings and profits to be apportioned to
XXXxxxx.xxx in accordance with applicable law, and shall provide written notice
of the calculation thereof to XXXxxxx.xxx as soon as practicable after the
information necessary to make such calculation becomes available to HyperFeed.
(d) XXXxxxx.xxx shall prepare, or cause to be prepared, and file, or
cause to be filed, all Income Tax Returns for which it is responsible under this
Agreement, so as to take into account, to the extent permitted by applicable
law, any Tax Attribute (and the amount of tax basis and earnings and profits)
apportioned to XXXxxxx.xxx as calculated pursuant to Section 5.1(c) hereof.
Until such time as any such Tax Attribute has been utilized by XXXxxxx.xxx (or
would have been so utilized had XXXxxxx.xxx complied with the requirements of
the previous sentence), XXXxxxx.xxx shall, in connection with each Income Tax
Return filed by it, provide HyperFeed with a statement, signed by XXXxxxx.xxx's
chief financial officer and certified by XXXxxxx.xxx's independent accounting
firm, setting forth in reasonable detail a calculation of the extent to which
any such Tax Attribute was utilized on
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such Income Tax Return (or would have been so utilized had XXXxxxx.xxx
complied with the requirements of the previous sentence).
(e) If any Tax Attribute is carried forward to an Income Tax Return of
XXXxxxx.xxx for any Post-Consolidation Taxable Period, XXXxxxx.xxx shall pay to
HyperFeed (or its designee) the amount of any Income Tax Benefit Actually
Realized by XXXxxxx.xxx as a result of the carryover of such Tax Attribute,
including interest (computed at the Overpayment Rate) from the original due date
(without extensions) of the Income Tax Return for the taxable period in which
such Income Tax Benefit is Actually Realized through the date of payment under
this Section 5.1(e) (but without duplication of the amount of interest, if any,
included in the Income Tax Benefit Actually Realized); provided, however, that
the failure of XXXxxxx.xxx to comply with the requirements of the first sentence
of Section 5.1(d) hereof shall not relieve XXXxxxx.xxx of the obligation to make
the payment that it would be required to make pursuant to this Section 5.1(e)
were XXXxxxx.xxx to have complied with such requirements.
(f) If there is a Final Determination that results in any change to or
adjustment of the portion of any Tax Attribute which shall have been apportioned
to XXXxxxx.xxx pursuant to this Section 5.1, then HyperFeed (or its designee)
shall make a payment to XXXxxxx.xxx, or XXXxxxx.xxx shall make a payment to
HyperFeed (or its designee), as may be necessary to adjust the payments between
XXXxxxx.xxx and HyperFeed(or its designee) to reflect the payments that would
have been made under Section 5.1(e) had the adjusted amount of the Tax Attribute
been taken into account in computing the payments due under Section 5.1(e)
hereof.
(g) Except to the extent otherwise consented to by HyperFeed or
prohibited by applicable law, XXXxxxx.xxx shall elect to relinquish, waive or
otherwise forego all Carrybacks. In the event that XXXxxxx.xxx is prohibited by
applicable law to relinquish, waive or otherwise forego a Carryback (or
HyperFeed consents thereto), (i) HyperFeed shall cooperate with XXXxxxx.xxx, at
XXXxxxx.xxx's expense, in seeking from the appropriate Taxing Jurisdiction such
Refund as reasonably would result from such Carryback, and (ii) XXXxxxx.xxx
shall be entitled to any Income Tax Benefit Actually Realized by a member of the
HyperFeed Consolidated Group (including any interest thereon received from such
Taxing Jurisdiction), to the extent that such Refund is directly attributable to
such Carryback, within 10 days after such Refund is Actually Realized; provided,
however, that XXXxxxx.xxx shall indemnify and hold the members of the HyperFeed
Consolidated Group harmless from and against any and all collateral tax
consequences resulting from or caused by any such Carryback, including (but not
limited to) the loss or postponement of benefit from the use of tax attributes
generated by a member of the HyperFeed Consolidated Group or an Affiliate
thereof and (x) that expire unutilized, but would have been utilized but for
such Carryback, or (y) the use of which is postponed to a later taxable period
than the taxable period in which such tax attributes otherwise would have been
utilized but for such Carryback. If there is a Final Determination that results
in any change to or adjustment of an Income Tax Benefit Actually Realized by a
member of the HyperFeed Consolidated Group that is directly attributable to a
Carryback, then HyperFeed (or its designee) shall make a payment to XXXxxxx.xxx,
or XXXxxxx.xxx shall make a payment to HyperFeed (or its designee), as may
15
be necessary to adjust the payments between XXXxxxx.xxx and HyperFeed (or its
designee) to reflect the payments that would have been made under this
Section 5.1(g) had the adjusted amount of such Income Tax Benefit been taken
into account in computing the payments due under this Section 5.1(g).
5.2 Refunds. Except to the extent provided in Section 5.1(g) and this
Section 5.2 hereof, HyperFeed shall be entitled to all Refunds (and any interest
thereon received from the applicable Taxing Jurisdiction) in respect of Income
Taxes for all HyperFeed Consolidated Return Periods other than Refunds (and any
interest thereon received from the applicable Taxing Jurisdiction) attributable
to the XXXxxxx.xxx Separate Tax Return Amount. Except to the extent provided in
Section 5.1(g), XXXxxxx.xxx shall be entitled to all Refunds (and any interest
thereon received from the applicable Taxing Jurisdiction) in respect of Income
Taxes paid by XXXxxxx.xxx for all Post-Consolidation Taxable Periods. A party
receiving a Refund to which another party is entitled pursuant to this Section
5.2 shall pay the amount to which such other party is entitled within ten days
after such Refund is Actually Realized. HyperFeed shall be permitted to file,
and XXXxxxx.xxx shall fully cooperate with HyperFeed in connection with, any
claim for Refund in respect of an Income Tax for which any member of the
HyperFeed Consolidated Group is responsible pursuant to Section 3 hereof.
ARTICLE VI
COOPERATION AND EXCHANGE OF INFORMATION
6.1 Cooperation. Each of the parties to this Agreement, on behalf of
itself and each of its Affiliates, agrees to provide the other party or its
designee (the "Requesting Party") )with such cooperation or information as the
Requesting Party reasonably shall request in connection with the determination
of any other calculations described in this Agreement, the preparation or filing
of any Income Tax Return or claim for Refund, or the conduct of any Proceeding.
Such cooperation and information shall include, without limitation, upon
reasonable notice (i) promptly forwarding copies of appropriate notices and
forms or other communications (including, without limitation, information
document requests, revenue agent's reports and similar reports, notices of
proposed adjustments and notices of deficiency) received from or sent to any
Taxing Jurisdiction or any other administrative, judicial or governmental
authority, (ii) providing copies of all relevant Income Tax Returns, together
with accompanying schedules and related workpapers, documents relating to
rulings or other determinations by taxing authorities, and such other records
concerning the ownership and tax basis of property, or other relevant
information that XXXxxxx.xxx or its Affiliates may possess, (iii) the provision
of such additional information and explanations of documents and information
provided under this Agreement (including statements, certificates and schedules
delivered by either party) as shall be reasonably requested by the Requesting
Party, (iv) the execution of any document that may be necessary or reasonably
helpful in connection with the filing of an Income Tax Return, a claim for a
Refund, or in connection with any Proceeding, including such waivers, consents
or powers of attorney as may be necessary for HyperFeed to exercise its rights
under this Agreement, and (v) the use of reasonable efforts to obtain any
documentation from a governmental authority or a third party that may be
necessary or reasonably helpful in connection with any of the foregoing. Upon
reasonable notice, each of
16
the parties hereto shall make its, or shall cause its Affiliates to make
their, employees and facilities available on a mutually convenient basis to
provide explanation of any documents or information provided hereunder. Any
information obtained under this Section 6.1 shall be kept confidential,
except as otherwise reasonably may be necessary in connection with the filing
of Income Tax Returns or claims for Refund or in conducting any Proceeding.
Notwithstanding any other provision of this Agreement, neither XXXxxxx.xxx,
nor any of its Affiliates nor any other Person shall have any right to
receive or obtain any information relating to Income Taxes of HyperFeed or
any of its Affiliates other than information relating solely to the Division.
6.2 Retention of Records. Except as otherwise provided in the
Contribution Agreeement, each of the parties to this Agreement hereby agrees to
retain all Income Tax Returns, related schedules and workpapers, and all
material records and other documents as required under Section 6001 of the Code
and the regulations promulgated thereunder (and any similar provision of state,
local, or foreign Income Tax law) existing on the date hereof or created in
respect of (i) the Effective Period or (ii) any taxable period that may be
subject to a claim hereunder, until the later of (x) the expiration of the
statute of limitations (including extensions) for the taxable periods to which
such Income Tax Returns and other documents relate and (y) the Final
Determination of any payments that may be required in respect of such taxable
periods under this Agreement. From and after the end of the period described in
the preceding sentence of this Section 6.2, if either of the parties to this
Agreement wishes to dispose of any such records and documents, then such party
shall provide written notice thereof to the other party and shall provide the
other party the opportunity to take possession of any such records and documents
within 90 days after such notice is delivered; provided, however, that if the
other party does not, within such 90-day period, confirm its intention to take
possession of such records and documents, such records and documents may be
destroyed or otherwise disposed of.
6.3 Inadequate Remedy. Each of the parties hereto hereby acknowledges
and agrees that (a) its failure to comply with the provisions of this Article 6
may result in substantial harm to the other party, including the inability to
determine or appropriately substantiate an Income Tax Liability (or a position
in respect thereof) for which the other party would be responsible under this
Agreement or appropriately defend against an adjustment thereto by a taxing
authority, and (b) the remedies available to the other party for the breach of
the obligations hereunder shall include (without limitation) the indemnification
of the other party by the breaching party for any Income Tax Liabilities
incurred or any Income Tax benefit lost or postponed by reason of such breach
and the forfeiture by the breaching party of any related rights to
indemnification by the other party. In addition, if either party fails to
provide any cooperation or information requested pursuant to this Agreement (x)
within the specified time or (y) in the absence of such specified time, within a
reasonable period (as determined in good faith by the party requesting such
information), then, without limiting any other remedy available to the other
party, the other party shall have the right to engage a nationally recognized
accounting firm of its choice to gather such information. The breaching party
agrees to permit any such nationally recognized accounting firm full access to
all appropriate records or other information in the possession of the breaching
party during
17
normal business hours, and promptly to reimburse or pay directly all costs
and expenses in connection with the engagement of such accountants.
ARTICLE VII
PAYMENTS
7.1 Method of Payment. All payments required by this Agreement shall be
made by (a) wire transfer to the appropriate bank account as may from time to
time be designated by the parties for such purpose; provided that, on the date
of such wire transfer, notice of the transfer is given to the recipient thereof
in accordance with Section 8.4 hereof, or (b) any other method agreed to by the
parties. All payments due under this Agreement shall be deemed to be paid when
available funds are actually received by the payee.
7.2 Interest. Any payment required by this Agreement that is not made
on or before the date required hereunder shall bear interest, from and after
such date through the date of payment, at the Underpayment Rate.
7.3 Characterization of Payments. For all tax purposes, the parties
hereto agree to treat, and to cause their respective Affiliates to treat, (i)
any payment required by this Agreement, as either a contribution by HyperFeed to
XXXxxxx.xxx or a distribution by XXXxxxx.xxx to HyperFeed, as the case may be,
occurring immediately prior to the Contribution and (ii) any payment of interest
or non-federal Income Taxes by or to a Taxing Jurisdiction, as taxable or
deductible, as the case may be, to the party entitled under this Agreement to
retain such payment or required under this Agreement to make such payment, in
either case except as otherwise mandated by applicable law; provided that in the
event it is determined as a result of a Final Determination that any such
treatment is not permissible, the payment in question shall be adjusted to place
the parties in the same after-tax position they would have enjoyed absent such
Final Determination.
ARTICLE VIII
MISCELLANEOUS
8.1. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by either party without the
prior written consent of the other party hereto; provided, however, that either
of the parties to this Agreement may assign this Agreement and its rights and
obligations hereunder to any entity controlling, controlled by or under common
control with such party, or to any entity that acquires by purchase of stock or
by merger or otherwise, or by acquiring all or substantially all of such party's
assets, provided that any such assignee succeeds to all of the rights and is
subject to all of the obligations of under this Agreement. Any attempted
assignment in violation of this Section 8.1 shall be null and void ab initio.
8.2 No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or
18
be construed to give to any person, other than the parties hereto and such
assigns, any legal or equitable rights hereunder.
8.3 Attorney Fees. A party in breach of this Agreement shall, on
demand, indemnify and hold harmless each other party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such other
party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to any other relief to
which such other party may be entitled.
8.4 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:
(i) if to the Company,
XXXxxxx.xxx, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
(ii) if to HyperFeed,
HyperFeed Technologies, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
8.5 Interpretation. The headings contained in this Agreement hereto 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, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated.
8.6 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.
8.7 Entire Agreement. This Agreement 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 party in any
manner by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein.
19
8.8 Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person 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) or the application of such provision to any other persons or
circumstances.
8.9 Amendments and Waivers. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
8.10 Consent to Jurisdiction. Each of HyperFeed and XXXxxxx.xxx
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 XXXxxxx.xxx 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, in the Superior Court
of the State of Illinois, Xxxx County. Each of HyperFeed and XXXxxxx.xxx further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above 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
8.10. Each of HyperFeed and XXXxxxx.xxx irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement, any Ancillary 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.
8.11 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Illinois applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
20
IN WITNESS WHEREOF, HyperFeed and the Company have duly executed this
Agreement as of the date first written above.
HYPERFEED TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
Senior Vice President
XXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxxx
President
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