EXHIBIT 10.1
CONTRIBUTION AND SEPARATION AGREEMENT
CONTRIBUTION AND SEPARATION AGREEMENT (this "Agreement") dated as of
______________________, 1999, among HYPERFEED INC., a Delaware corporation
("HyperFeed"), and XXXXXXX.XXX, INC., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, prior to the execution and delivery of this Agreement, HyperFeed
formed the Company as a wholly-owned subsidiary of HyperFeed;
WHEREAS, simultaneously herewith, HyperFeed and the Company are entering
into the Maintenance Agreement, in the form attached as EXHIBIT A hereto (the
"Maintenance Agreement"), the DataFeed License Agreement, in the form
attached as EXHIBIT B hereto (the "DataFeed License Agreement"), the Services
Agreement in the form attached as EXHIBIT C hereto (the "Services
Agreement"), the Noncompetition Agreement in the form attached as EXHIBIT D
hereto (the "Noncompetition Agreement"), the Registration Rights Agreement,
in the form attached as EXHIBIT E hereto (the "Registration Rights
Agreement"), and the Tax Indemnification and Allocation Agreement, in the
form attached as Exhibit F hereto (the "Tax Indemnification and Allocation
Agreement"); and
WHEREAS, HyperFeed desires to contribute certain assets to the Company as
an additional capital contribution to the Company, and the Company desires to
assume certain of the liabilities of HyperFeed.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound by the terms hereof applicable to each of them, hereby agree as follows:
ARTICLE I
CONTRIBUTION TRANSACTION
SECTION 1.01. HYPERFEED CONTRIBUTION. On the terms and subject to the
conditions of this Agreement, HyperFeed hereby sells, assigns, transfers,
conveys and delivers to the Company as an additional capital contribution to the
Company, and the Company hereby acquires from HyperFeed, effective as of the
date hereof, all the right, title and interest of HyperFeed in, to and under the
HyperFeed Contributed Assets (as defined below); and HyperFeed hereby grants to
the Company as an additional capital contribution to the Company a perpetual,
worldwide, non-exclusive right and license to use, execute, reproduce,
distribute, perform, display, modify, enhance, create derivative works, and
market without payment to any other person all of the HyperFeed Licensed Assets
(as defined below) and related documentation. The contribution and acquisition
of the HyperFeed Assets (as defined below) and the assumption of the Assumed
HyperFeed Liabilities (as set forth in Section 1.02 below) is collectively
referred to in this Agreement as the "Contribution Transaction."
The term "Business" means the businesses conducted by HyperFeed and related
to (i) the Internet websites owned by HyperFeed and known as xxx.xxxxxxx.xxx and
xxxxxxxxxxx-xxxx.xxxxxxx.xxx, (ii) the internet enabled desktop applications
owned or licensed by HyperFeed, and (iii) third-party site development enabling
end-users to receive data via the internet. The term "HyperFeed Contributed
Assets" means the business, properties, assets, goodwill and rights of
HyperFeed, of whatever kind and nature, real or personal, tangible or
intangible, related to the Business that are owned, leased or licensed by
HyperFeed and are set forth on the attached Schedule 1.01(a). "The term
HyperFeed Licensed Assets" means business, properties, assets, goodwill and
rights of HyperFeed, of whatever kind and nature, real or personal, tangible or
intangible, related to the Business that are owned, leased or licensed by
HyperFeed and are set forth on the attached Schedules 1.01(b). The term
"HyperFeed Assets" means, collectively, the HyperFeed Contributed Assets and the
HyperFeed Licensed Assets".
SECTION 1.02. ASSUMPTION OF CERTAIN LIABILITIES.
(a) On the terms and subject to the conditions of this Agreement,
the Company hereby assumes, effective as of the date hereof, and from and after
the date hereof the Company agrees to pay, perform and discharge when due, any
liability, obligation or commitment of HyperFeed under the following
(collectively, the "Assumed HyperFeed Liabilities"), other than any Excluded
HyperFeed Liabilities:
(i) all of the Current Liabilities as set forth on the First
Quarter Balance Sheet (as defined below) as of March 31, 1999, including
without limitation, (A) all accounts payable, notes payable (and any
security therefor) and all other payables of any kind related to the
Business; and (B) all obligations arising under the contracts, leases,
licenses, indentures, agreements, commitments and other legally binding
arrangements, whether oral or written ("Contracts"), relating to the
Business and specifically listed on Exhibit B to Schedule 1.01(a) attached
hereto (the "HyperFeed Contracts");
(ii) any other liabilities of HyperFeed, not to exceed
$500,000.00, whether known or unknown, relating to the Business and not set
forth as Current Liabilities on the First Quarter Balance Sheet as of March
31, 1999;
(iii) $500,000 representing one-half of the $1,000,000 owed by
HyperFeed to Xxxxxxxx Analytics, Ltd. ("Xxxxxxxx") pursuant to Section 1 of
the Termination Agreement dated May 28, 1999 by and between HyperFeed and
Xxxxxxxx; and
(iv) an amount not to exceed $2,000,000, representing the
difference between (A) the $5,000,000 minimum aggregate license fee payment
HyperFeed anticipates it will be required to guarantee to Xxxxxxxx under
an anticipated new agreement by and between HyperFeed and Xxxxxxxx; and
(B) the amount of license fees actually paid by HyperFeed to Xxxxxxxx
during the period commencing April 1, 1999 and ending February 28, 2001.
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(b) Notwithstanding Section 1.02(a), or any other provision of
this Agreement or any of the other agreements and instruments executed and
delivered in connection herewith and the transactions contemplated hereby,
including, but not limited to, the Maintenance Agreement, the DataFeed
License Agreement, the Services Agreement, the Noncompetition Agreement, the
Registration Rights Agreement and the Tax Indemnification and Allocation
Agreement (the "Ancillary Agreements"), and regardless of any disclosure to
HyperFeed or the Company, the Company shall not assume any Excluded HyperFeed
Liability, each of which shall be retained and paid, performed and discharged
when due by HyperFeed. The term "Excluded HyperFeed Liability" means:
(i) any liability, obligation or commitment of any of
HyperFeed not specifically assumed pursuant to Section 1.02(a);
(ii) any liability, obligation or commitment of HyperFeed,
whether express or implied, liquidated, absolute, accrued, contingent or
otherwise, or known or unknown, arising out of the operation or conduct by
HyperFeed or any of its affiliates of any business other than the Business;
(iii) any liability, obligation or commitment of HyperFeed
arising out of (A) any suit, action or proceeding ("Proceeding") pending
or, to the knowledge of HyperFeed, threatened as of the date hereof or
(B) any actual or alleged violation by HyperFeed or any of its affiliates
of any Applicable Law (as defined in Section 3.03) prior to April 1, 1999;
(iv) any liability, obligation or commitment for Taxes (as
defined in Section 3.12), whether or not accrued, assessed or currently
due and payable);
(v) except as provided in Section 4.02(b), any liability,
obligation or commitment for transfer, documentary, sales, use,
registration, value-added and other similar Taxes and related amounts
(including any penalties, interest and additions to Tax) incurred in
connection with this Agreement, the Ancillary Agreements, the Contribution
Transaction and the other transactions contemplated hereby and thereby
("Transfer Taxes");
(vi) any liability, obligation or commitment of HyperFeed
arising under any HyperFeed Benefit Plan (as defined in Section 3.14(a))
except with respect to any liability arising with respect to any Company
employee to the extent any such Company employee participates in such
HyperFeed Benefit Plan after March 31, 1999;
(vii) Any liability, obligation or commitment of HyperFeed
that relates to, or that arises out of, products or services shipped or
sold by or on behalf of HyperFeed on or prior to the date hereof (including
claims of negligence, personal injury, product damage, product liability,
product warranties, promotional obligations, strict liability, product
recall or any other claims (including workers' compensation, employer's
liability or otherwise)), whether such liability, obligation or commitment
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relates to or arises out of accidents, injuries or losses occurring on or
prior to or after the date hereof;
(viii) any liability, obligation or commitment of HyperFeed
that relates to, or that arises out of, the employment or the termination
of the employment with HyperFeed of any employee or former employee of the
Business (including as a result of the transactions contemplated by this
Agreement); and
(ix) any liability, obligation or commitment of HyperFeed to
any of its respective affiliates.
(c) The Company shall acquire HyperFeed Assets free and clear of
all liabilities, obligations and commitments of HyperFeed, other than the
Assumed HyperFeed Liabilities, and free and clear of all Liens (as defined in
Section 3.05), other than Permitted Liens (as defined in Section 3.05).
SECTION 1.03. CONSENTS OF THIRD PARTIES.
(a) Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not constitute an agreement to assign any asset or any
claim or right or any benefit arising under or resulting from such asset if an
attempted assignment thereof, without the consent of a third party, would
constitute a breach or other contravention of the rights of such third party,
would be ineffective with respect to any party to an agreement concerning such
asset, or would in any way adversely affect the rights of HyperFeed or, upon
transfer, the Company under such asset. If any transfer or assignment by
HyperFeed to, or any assumption by the Company of, any interest in, or
liability, obligation or commitment under, any asset requires the consent of a
third party, then such assignment or assumption shall be made subject to such
consent being obtained. To the extent any HyperFeed Contract may not be
assigned to the Company by reason of the absence of any such consent, the
Company shall not be required to assume any Assumed HyperFeed Liabilities and if
not assigned shall not be entitled to receive benefits arising under such
HyperFeed Contract.
(b) In connection with those consents that have not been obtained
as of the date hereof, HyperFeed and the Company hereby agree that, until any
such required consent is obtained, HyperFeed, or one or more of its
subsidiaries, as appropriate, shall, with the reasonable and necessary
cooperation of the Company, and at the Company's direction, continue to fulfill
any and all obligations and commitments, and enforce any and all rights, of
HyperFeed in connection with any asset, claim or right that constitutes a
HyperFeed Asset but for which any required consent has not been obtained, and
that the Company shall be entitled to all of the economic claims, rights and
benefits under such asset, claim or right and HyperFeed shall pay or cause to be
paid to the Company all such economic benefits as promptly as practicable
following receipt by HyperFeed or any of its subsidiaries; provided that the
Company shall be responsible for the Assumed HyperFeed Liabilities, if any,
arising under such asset, claim or right, to the extent that the Company has
received the economic benefit of such asset, claim or right, and further
provided that the Company shall reimburse HyperFeed for its costs to fulfill any
such obligations, commitments or enforcement of rights.
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ARTICLE II
THE CLOSING
SECTION 2.01. THE CLOSING. The closing of the Contributions (the
"Closing") is taking place at the offices of Wildman, Harrold, Xxxxx & Xxxxx,
000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, on the date hereof.
SECTION 2.02. TRANSACTIONS TO BE EFFECTED AT THE CLOSING. At the Closing:
(a) HyperFeed is delivering (i) appropriately executed copies of
this Agreement and each Ancillary Agreement to which it is specified to be a
party, (ii) such appropriately executed bills of sale, assignments and other
instruments of transfer relating to HyperFeed Assets in form and substance
reasonably satisfactory to HyperFeed and the Company and (iii) such other
documents as the Company has reasonably requested to demonstrate compliance with
the terms and provisions of this Agreement;
(b) the Company is delivering (i) appropriately executed copies of
this Agreement and each Ancillary Agreement to which it is specified to be a
party, (ii) such appropriately executed assumption agreements and other
instruments of assumption providing for the assumption of the Assumed HyperFeed
Liabilities in form and substance reasonably satisfactory to HyperFeed and
(iii) such other documents as HyperFeed has reasonably requested to demonstrate
compliance with the terms and provisions of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HYPERFEED
HyperFeed hereby represents and warrants to the Company, as of the date of
this Agreement, as follows:
SECTION 3.01. ORGANIZATION, STANDING AND POWER. HyperFeed is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has full corporate power and authority
and possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct the Business and its other businesses as presently
conducted, other than such franchises, licenses, permits, authorizations and
approvals the lack of which, individually or in the aggregate, have not had and
could not reasonably be expected to have a material adverse effect (i) on the
business, assets, condition (financial or otherwise) or results of operations or
prospects of HyperFeed and its subsidiaries, taken as a whole, or of the
Business, (ii) on the ability of HyperFeed to perform its obligations under this
Agreement and the Ancillary Agreements or (iii) on the ability of HyperFeed to
consummate the Contribution Transaction and the other transactions contemplated
hereby and thereby (a "HyperFeed Material Adverse Effect"). HyperFeed is duly
qualified to do business as a foreign corporation in each jurisdiction where the
character of HyperFeed Assets held by it or the nature of the Business make such
qualification necessary for it to conduct the Business as
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currently conducted by it or the failure to so qualify has had or could
reasonably be expected to have a HyperFeed Material Adverse Effect. HyperFeed
has delivered to the Company true and complete copies of the certificate of
incorporation and by-laws of HyperFeed, as amended through the date of this
Agreement.
SECTION 3.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY.
HyperFeed has full power and authority to execute this Agreement and the
Ancillary Agreements to which it is a party. HyperFeed has full power and
authority to consummate the Contribution Transaction and the other transactions
contemplated hereby and thereby. The execution and delivery by HyperFeed of
this Agreement and the Ancillary Agreements to which it is a party and the
consummation by HyperFeed of the Contribution Transaction and the other
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action. HyperFeed has duly executed and delivered this
Agreement and each Ancillary Agreement to which it is a party, and this
Agreement, and each Ancillary Agreement to which it is a party, constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms except as enforcement may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally or equitable principles
relating to or limiting creditors' rights generally.
SECTION 3.03. NO CONFLICTS; CONSENTS. The execution and delivery by
HyperFeed of this Agreement and each Ancillary Agreement to which it is a party
and the consummation of the Contribution Transaction and the other transactions
contemplated hereby and thereby and compliance by HyperFeed with the terms
hereof and thereof do not conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien upon any
of the properties or assets of HyperFeed under, any provision of (i) the
certificate of incorporation or by-laws of HyperFeed, (ii) any Contract to which
HyperFeed or any of its subsidiaries is a party or by which any of their
respective properties or assets is bound or (iii) any judgment, order or decree
("Judgment") or statute, law, ordinance, rule or regulation ("Applicable Law")
applicable to HyperFeed or its properties or assets, other than, in the case of
clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and could not reasonably be expected to have a HyperFeed
Material Adverse Effect. No consent, approval, license, permit, order or
authorization ("Consent") of, or registration, declaration or filing with, any
Federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a "Governmental Entity"), is
required to be obtained or made by or with respect to HyperFeed in connection
with (A) the execution, delivery and performance of this Agreement or any
Ancillary Agreement or the consummation of the Contribution Transaction or the
other transactions contemplated hereby and thereby or (B) the conduct by the
Company of the Business following the Closing as conducted on the date hereof.
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SECTION 3.04. FINANCIAL STATEMENTS.
(a) Schedule 3.04 sets forth for the Business (i) a Statement of
Assets as of December 31, 1998 (the "Year End Balance Sheet"), (ii) a Statement
of Assets as of March 31, 1999 (the "First Quarter Balance Sheet"), (iii) an
Income Statement for the twelve months ended December 31, 1998 (the "Full Year
Income Statement"), and (iv) an Income Statement for the three months ended
March 31, 1999 (the "First Quarter Income Statement"). The Year End Balance
Sheet and the Full Year Income Statement were derived from the audited financial
statements of HyperFeed for the year ended December 31, 1998, as audited and
opined upon by KPMG LLP in their report dated March 12, 1999. The term
"Financial Statements" shall mean the Year End Balance Sheet, the First Quarter
Balance Sheet, the Full Year Income Statement and the First Quarter Income
Statement. The Financial Statements have been prepared from the books and
records of HyperFeed relating to the Business and fairly present the financial
condition and results of operations of the Business as of the respective dates
and for the respective periods indicated.
(b) The Business does not have any material liabilities or
obligations of any nature (whether accrued, absolute, contingent, unasserted or
otherwise), except for items set forth in Schedule 3.04.
SECTION 3.05. HYPERFEED ASSETS. HyperFeed has good and valid title to all
HyperFeed Assets free and clear of all mortgages, liens, security interests,
charges, easements, leases, subleases, covenants, rights of way, options,
claims, restrictions or encumbrances of any kind (collectively, "Liens"), except
(i) such as are set forth in Schedule 3.05 (all of which shall be discharged
prior to the Closing), (ii) mechanics', carriers', workmen's, repairmen's or
other like Liens arising or incurred in the ordinary course of business, Liens
arising under original purchase price conditional sales contracts and equipment
leases with third parties entered into in the ordinary course of business and
liens for Taxes that are not due and payable or that may thereafter be paid
without penalty, and (iii) other imperfections of title or encumbrances, if any,
that do not, individually or in the aggregate, materially impair the continued
use and operation of the assets to which they relate in the conduct of the
Business as presently conducted (the Liens described in clauses (ii) and (iii)
above are referred to collectively as "Permitted Liens").
SECTION 3.06. INTELLECTUAL PROPERTY.
(a) Schedule 3.06 sets forth a true and complete list of all
patents (including all reissues, divisions, continuations and extensions
thereof), patent applications, patent rights, trademarks, trademark
registrations, trademark applications, servicemarks, trade names, trade secrets,
business names, brand names, domain names, copyrights, copyright registrations
and renewals, designs, design registrations, software (together with all related
source code(s) and applicable documentation) and all owned, used, filed by or
licensed to HyperFeed and used, held for use or intended to be used in the
operation or conduct of the Business (collectively, the "Intellectual
Property"), other than unregistered designs and copyrights that, individually
and in the aggregate, are not material to the conduct of the Business as
presently conducted. With
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respect to all Intellectual Property constituting HyperFeed Assets (the
"Contributed Intellectual Property") that is registered or subject to an
application for registration, Schedule 3.06 sets forth a list of all
jurisdictions in which such Contributed Intellectual Property is registered or
registrations applied for and all registration and application numbers. Except
as set forth in Schedule 3.06 (i) all the Contributed Intellectual Property has
been duly registered in, filed in or issued by the appropriate Governmental
Entity where such registration, filing or issuance is necessary or appropriate
for the conduct of the business as presently conducted, (ii) HyperFeed is the
sole and exclusive owner of and has the right to use, execute, reproduce,
display, perform, modify, enhance, distribute, prepare derivative works of and
sublicense, without payment to any other person, all the Contributed
Intellectual Property and the consummation of the Contribution Transaction and
the other transactions contemplated hereby does not and will not conflict with,
alter or impair any such rights, and (iii) during the past three years,
HyperFeed has received any written or oral communication from any person
asserting any ownership interest in any Contributed Intellectual Property.
(b) HyperFeed has not granted any license of any kind relating to
any trade secrets, confidential information, inventions, know-how, formulae,
processes, procedures, research records, records of inventions, test
information, market surveys, subscriber lists and marketing know-how of
HyperFeed constituting HyperFeed Assets (the "Technology"), or to any
Contributed Intellectual Property or the marketing or distribution thereof,
except nonexclusive licenses to end-users in the ordinary course of business.
HyperFeed is not bound by or a party to any option, license or agreement of any
kind relating to the Intellectual Property of any other person for the use of
such Intellectual Property in the conduct of the Business, except as set forth
in Schedule 3.06 and except for so-called "shrink-wrap" license agreements
relating to computer software licensed in the ordinary course of the Business.
The conduct of the Business as presently conducted does not violate, conflict
with or infringe the Intellectual Property of any other person. Except as set
forth in Schedule 3.06, (i) no claims are pending or, to the knowledge of
HyperFeed, threatened, as of the date of this Agreement against HyperFeed by any
person with respect to the ownership, validity, enforceability, effectiveness or
use in the Business of any Intellectual Property and (ii) during the past three
years HyperFeed and its affiliates have not received any written or oral
communication alleging that HyperFeed or any of its affiliates has in the
conduct of the Business violated any rights relating to Intellectual Property of
any person.
(c) All material Technology has been maintained in confidence in
accordance with protection procedures customarily used in the industry to
protect rights of like importance. All former and current members of management
and key personnel of HyperFeed or any of its affiliates, including all former
and current employees, agents, consultants and independent contractors who have
contributed to or participated in the conception and development of material
Technology (collectively, "Personnel") either (i) have been party to a
"work-for-hire" arrangement or agreement with HyperFeed, in accordance with all
Applicable Laws, that has accorded HyperFeed full, effective, exclusive and
original ownership of all tangible and intangible property thereby arising or
(ii) have executed appropriate instruments of assignment in favor of HyperFeed
as assignee that have conveyed to HyperFeed full, effective and exclusive
ownership of all tangible and intangible property thereby arising. No
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former or current Personnel have any claim against HyperFeed in connection with
such person's involvement in the conception and development of any Technology
and no such claim has been asserted or is threatened. None of the current
officers and employees of HyperFeed has any patents issued or applications
pending for any device, process, design or invention of any kind now used or
needed by HyperFeed in the furtherance of the business, which patents or
applications have not been assigned to HyperFeed, with such assignment duly
recorded in the United States Patent and Trademark Office.
SECTION 3.07. CONTRACTS.
(a) Except as set forth in Schedule 3.07, and except for Contracts
relating solely to assets that do not constitute HyperFeed Assets, HyperFeed is
not a party to or bound by any Contract that is used, held for use or intended
for use in, or that arises out of, the operation or conduct of the Business and
that is:
(i) an employment agreement or employment Contract;
(ii) a collective bargaining agreement or other Contract with
any labor organization, union nor association;
(iii) a covenant not to compete or other covenant of HyperFeed
restricting the development, manufacture, marketing or distribution of the
products and services of the Business;
(iv) a Contract with (A) any shareholder or affiliate of
HyperFeed or (B) any current or former officer, director or employee of
HyperFeed or any of its affiliates;
(v) a lease, sublease or similar Contract with any person
under which (A) HyperFeed is lessee of, or holds or uses, any machinery,
equipment, vehicle or other tangible personal property owned by any person
or (B) HyperFeed is a lessor or sublessor of, or makes available for use by
any person, any tangible personal property owned or leased by HyperFeed, in
any such case has an aggregate future liability or receivable, as the case
may be, in excess of $5,000;
(vi) (A) a continuing Contract for the future purchase of
materials, supplies or equipment, (B) a management, service, consulting or
other similar Contract or (C) an advertising agreement or arrangement, in
any such case that has an aggregate future liability to any person in
excess of $5,000;
(vii) a material license, option or other Contract relating in
whole or in part to the Contributed Intellectual Property (including any
license or other Contract under which HyperFeed is licensee or licensor of
any Contributed Intellectual Property) or to any Technology;
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(viii) (A) a Contract under which HyperFeed has borrowed any
money from, or issued any note, bond, debenture or other evidence of
indebtedness to, any person or (B) any other note, bond, debenture or other
evidence of indebtedness issued to any person;
(ix) a Contract (including any so-called take-or-pay or
keepwell agreement) under which (A) any person has directly or indirectly
guaranteed indebtedness, liabilities or obligations of HyperFeed or (B) or
HyperFeed has directly or indirectly guaranteed indebtedness, liabilities
or obligations of any other person (in each case other than endorsements
for the purpose of collection in the ordinary course of business);
(x) a Contract under which HyperFeed has, directly or
indirectly, made any advance, loan, extension of credit or capital
contribution to, or other investment in, any person (other than extensions
of trade credit in the ordinary course of the Business);
(xi) a Contract granting a Lien upon any HyperFeed Asset;
(xii) a Contract providing for indemnification of any person
with respect to material liabilities relating to any current or former
business of HyperFeed or any predecessor person;
(xiii) a Contract not made in the ordinary course of the
Business;
(xiv) a confidentiality agreement;
(xv) a Contract for the sale of any HyperFeed Asset or the
grant of any preferential rights to purchase any HyperFeed Asset or
requiring the consent of any party to the transfer thereof;
(xvi) a Contract for any joint venture, partnership or similar
arrangement;
(xvii) other Contract that has an aggregate future liability to
any person in excess of $5,000 and is not terminable by HyperFeed by notice
of not more than 60 days for a cost of less than $5,000; or
(xviii) a Contract other than as set forth above to which
HyperFeed is a party or by which it or any of its assets or businesses is
bound or subject that is material to the Business or the use or operation
of HyperFeed Assets.
(b) Except as set forth in Schedule 3.07, all HyperFeed Contracts
are valid, binding and in full force and effect and are enforceable by HyperFeed
in accordance with their terms except as enforcement may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
equitable principles relating to or limiting creditors'
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rights generally. Except as set forth in Schedule 3.07, HyperFeed has performed
all material obligations required to be performed by them to date under
HyperFeed Contracts, and they are not (with or without the lapse of time or the
giving of notice, or both) in breach or default in any material respect
thereunder and, to the knowledge of HyperFeed, no other party to any HyperFeed
Contract is (with or without the lapse of time or the giving of notice, or both)
in breach or default in any material respect thereunder. HyperFeed has not,
except as disclosed in the applicable Schedule, received any notice of the
intention of any party to terminate any HyperFeed Contract. Complete and
correct copies of all Contracts listed in the Schedules, together with all
modifications and amendments thereto, have been delivered to HyperFeed and the
Company.
(c) Schedule 3.07 sets forth each HyperFeed Contract with respect
to which the Consent of the other party or parties thereto is required by virtue
of the execution and delivery of this Agreement or the consummation of the
Contribution Transaction to avoid the invalidity of the transfer of such
Contract, the termination thereof, a breach, violation or default thereunder or
any other change or modification to the terms thereof, each of which has been or
will be obtained.
SECTION 3.08. PERSONAL PROPERTY. Each material item of tangible personal
property and interests therein, including all machinery, equipment, furniture
and vehicles, of HyperFeed that constitute HyperFeed Assets (the "Personal
Property") is in good working order (ordinary wear and tear excepted), is free
from any material defect and has been maintained in all material respects in
accordance with the past practice of the Business, and no repairs, replacements
or regularly scheduled maintenance relating to any such item has been deferred.
All leased personal property of the Business is in all respects in the condition
required of such property by the terms of the lease applicable thereto.
SECTION 3.09. PERMITS.
(a) Schedule 3.09 sets forth all material certificates, licenses,
permits, authorizations and approvals ("Permits") issued or granted to HyperFeed
by Governmental Entities that are necessary or desirable for the conduct of the
Business. Except as set forth in Schedule 3.09, (i) all such Permits are
validly held by HyperFeed, and HyperFeed has complied in all material respects
with all terms and conditions thereof, (ii) during the past three years,
HyperFeed has not received notice of any Proceedings relating to the revocation
or modification of any such Permits the loss of which, individually or in the
aggregate, has had or could reasonably be expected to have a HyperFeed Material
Adverse Effect, and (iii) none of such Permits will be subject to suspension,
modification, revocation or nonrenewal as a result of the execution and delivery
of this Agreement or the consummation of the Contribution Transaction.
(b) HyperFeed possesses all material Permits to own or hold under
lease and operate HyperFeed Assets and to conduct the Business as currently
conducted.
SECTION 3.10. INSURANCE. HyperFeed maintains policies of fire and
casualty, liability and other forms of insurance with respect to the Business in
such amounts, with such
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deductibles and against such risks and losses as are, in HyperFeed's judgment,
reasonable for the Business. The material insurance policies maintained by
HyperFeed with respect to the Business are listed in Schedule 3.10. All such
policies are in full force and effect, all premiums due and payable thereon have
been paid, and no notice of cancellation or termination has been received with
respect to any such policy which has not been replaced on substantially similar
terms prior to the date of such cancellation. To the knowledge of HyperFeed,
the Business has been conducted in a manner so as to conform in all material
respects to all applicable provisions of such insurance policies.
SECTION 3.11. SUFFICIENCY OF HYPERFEED ASSETS. The HyperFeed Assets,
together with the services and licenses to be provided by HyperFeed under the
Services Agreement, the Maintenance Agreement, and the DataFeed License
Agreement are sufficient for the conduct of the Business immediately following
the Closing in the same manner as currently conducted. There are not any assets
used, held for use or intended to be used in the operation or conduct of the
Business that do not constitute HyperFeed Assets or which are not to be made
available to the Company pursuant to the Services Agreement.
SECTION 3.12. TAXES.
(a) For purposes of this Agreement:
"Tax" means (i) any tax, governmental fee or other like
assessment or charge of any kind whatsoever (including any tax imposed
under Subtitle A of the Code and any net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem, value
added, transfer, franchise, profits, license, withholding tax on amounts
paid, payroll, employment, excise, severance, stamp, capital stock,
occupation, property, environmental or windfall profit tax, premium,
custom, duty or other tax), together with any interest, penalty, addition
to tax or additional amount due, imposed by any Governmental Entity
(domestic or foreign) responsible for the imposition of any such tax (a
"Taxing Authority"), (ii) any liability for the payment of any amount of
the type described in clause (i) above as a result of a party to this
Agreement being a member of an affiliated, consolidated or combined group
with any other corporation at any time on or prior to the date hereof and
(iii) any liability of any person with respect to the payment of any
amounts of the type described in clause (i) or (ii) above as a result of
any express or implied obligation of such person to indemnify any other
person.
"Code" means the Internal Revenue Code of 1986, as amended.
(b) Except as set forth in Schedule 3.12, (i) HyperFeed, and any
affiliated group, within the meaning of Section 1504 of the Code, of which
HyperFeed is or has been a member, has filed or caused to be filed in a timely
manner (within any applicable extension periods) all material Tax returns,
reports and forms required to be filed by the Code or by applicable state, local
or foreign Tax laws, (ii) all Taxes shown to be due on such returns, reports and
forms have been timely paid in full or will be timely paid in full by the due
date
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thereof, and (iii) no material Tax Liens have been filed and no material claims
are being asserted in writing with respect to any Taxes.
(c) Except as set forth in Schedule 3.12, (i) neither HyperFeed nor
any of its affiliates has made with respect to HyperFeed, or the assets of the
Business, any consent under Section 341 of the Code, (ii) HyperFeed Assets is
"tax exempt use property" within the meaning of Section 168(h) of the Code, and
(iii) HyperFeed Assets is a lease made pursuant to Section 168(f)(8) of the
Internal Revenue Code of 1954.
(d) HyperFeed is not a "foreign person" within the meaning of
Section 1445 of the Code.
SECTION 3.13. PROCEEDINGS. Schedule 3.13 sets forth a list of all pending
Proceedings or claims with respect to which HyperFeed has been contacted in
writing by counsel for the plaintiff or claimant, arising out of the conduct of
the Business or against or affecting any HyperFeed Asset and that (a) relate to
or involve more than $5,000, (b) seek any material injunctive relief or (c) may
give rise to any legal restraint on or prohibition against the transactions
contemplated by this Agreement. Except as set forth in Schedule 3.13, none of
the Proceedings or claims listed in Schedule 3.13 as to which there is at least
a reasonable possibility of adverse determination would have, if so determined,
individually or in the aggregate, a HyperFeed Material Adverse Effect. Except
as set forth in Schedule 3.13, to the knowledge of HyperFeed, there are no
unasserted claims of the type that would be required to be disclosed in
Schedule 3.13 if counsel for the claimant had contacted HyperFeed that if
asserted would have at least a reasonable possibility of an adverse
determination. Except as set forth in Schedule 3.13, HyperFeed is not a party
or subject to or in default under any material Judgment applicable to the
conduct of the Business or any HyperFeed Asset or Assumed HyperFeed Liability.
Except as set forth in Schedule 3.13, there is not any Proceeding or claim by
HyperFeed pending, or which HyperFeed intends to initiate, against any other
Person arising out of the conduct of the Business. Except as set forth in
Schedule 3.13, to the knowledge of HyperFeed, there is no pending or threatened
investigation of or affecting the conduct of the Business or any HyperFeed Asset
or Assumed HyperFeed Liability.
SECTION 3.14. BENEFIT PLANS.
(a) Schedule 3.14 contains a list and brief description of all
"employee pension benefit plans" (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or
contributed to by HyperFeed for the benefit of any officers or employees of the
Business ("HyperFeed Pension Plans") and all "employee welfare benefit plans"
(as defined in Section 3(1) of ERISA), bonus, stock option, stock purchase,
deferred compensation plans or arrangements and other employee fringe benefit
plans maintained, or contributed to, by HyperFeed for the benefit of any
officers or employees of the Business (all the foregoing, including HyperFeed
Pension Plans, being herein called "HyperFeed Benefit Plans"). HyperFeed has
made available to the Company true, complete and correct copies of (i) each
HyperFeed Benefit Plan (or, in the case of any unwritten HyperFeed Benefit
Plans, descriptions thereof), (ii) the two most recent annual
13
reports on Form 5500 (including all schedules and attachments thereto) filed
with the Internal Revenue Service with respect to each HyperFeed Benefit Plan
(if any such report was required), (iii) the most recent summary plan
description for each HyperFeed Benefit Plan for which such a summary plan
description is required and (iv) each trust agreement, group annuity contract or
other funding and financing arrangement relating to any HyperFeed Benefit Plan.
(b) Each HyperFeed Benefit Plan has been administered in all
material respects in accordance with its terms. HyperFeed and all HyperFeed
Benefit Plans are in compliance in all material respects with the applicable
provisions of ERISA, the Code, all other Applicable Laws and all applicable
collective bargaining agreements. Except as set forth in Schedule 3.14, all
material reports, returns and similar documents with respect to HyperFeed
Benefit Plans required to be filed with any Governmental Entity or distributed
to any HyperFeed Benefit Plan participant have been duly and timely filed or
distributed. Except as set forth in Schedule 3.14, there are no Proceedings
pending or, to the knowledge of HyperFeed, threatened against or involving any
HyperFeed Benefit Plan and there are no investigations by any Governmental
Entity or other claims (except routine claims for benefits payable in the normal
operation of HyperFeed Benefit Plans) pending or, to the knowledge of HyperFeed,
threatened against or involving any HyperFeed Benefit Plan or asserting any
rights to benefits under any HyperFeed Benefit Plan.
(c) Except as set forth in Schedule 3.14, no employee or former
employee of the Business will become entitled to any bonus, severance, job
security or similar benefit or any enhanced benefit solely as a result of the
transactions contemplated hereby.
SECTION 3.15. ABSENCE OF CHANGES OR EVENTS. Except as set forth in
Schedule 3.15, since the date of the First Quarter Balance Sheet, there has not
been any material adverse change in the business, assets, condition (financial
or otherwise), results of operations or prospects of the Business, taken as a
whole. Except as set forth in Schedule 3.15, since the date of the First
Quarter Balance Sheet, HyperFeed has caused the Business to be conducted in the
ordinary course and in substantially the same manner as previously conducted and
has made all reasonable efforts consistent with past practices to preserve the
relationships of the Business with customers, suppliers and others with whom the
Business deals.
SECTION 3.16. COMPLIANCE WITH APPLICABLE LAWS. Except as set forth in
Schedule 3.16, the Business is in compliance in all material respects with all
Applicable Laws, including those relating to occupational health and safety.
Except as set forth in Schedule 3.16, HyperFeed has not received any written or
oral communication during the past three years from a Governmental Entity that
alleges that the Business is not in compliance in any material respect with any
Applicable Laws. HyperFeed has not received any written notice that any
investigation or review by any Governmental Entity with respect to any HyperFeed
Asset or the Business is pending or that any such investigation or review is
contemplated. This Section 3.16 does not relate to matters with respect to
Taxes, which are the subject of Section 3.12.
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SECTION 3.17. TRANSACTIONS WITH AFFILIATES. Except as set forth in
Schedule 3.17, none of the Contracts set forth in Schedule 3.07 between the
Business, on the one hand, and HyperFeed or any of its affiliates, on the other
hand, will continue in effect subsequent to the Closing.
SECTION 3.18. EFFECT OF TRANSACTION. Except as set forth in
Schedule 3.18, no creditor, employee, client, customer or other person having a
material business relationship with the Business has informed HyperFeed that
such person intends to change such relationship because of the contribution of
the Business or the consummation of any other transaction contemplated hereby.
SECTION 3.19. YEAR 2000 COMPLIANCE. All computer systems and software
being contributed or licensed hereunder are and will be accurately able to:
(i) process any date rollover, (ii) process calculations or computations
regardless of the dates used in such calculations whether before, on or after
January 1, 2000, (iii) accept and respond to two digit year date input in a
manner that resolves any ambiguities as to the century to which such two
digit year date input relates in an appropriate manner and (iv) store and
display date data in a manner that is unambiguous as to the century to which
such two digit year date input relates. None of the above-referenced systems,
software or products will malfunction, cease to function, generate incorrect
data or provide incorrect results when providing and/or receiving data in
connection with any valid date, whether occurring before, on or after January
1, 2000.
SECTION 3.20. DISCLOSURE. No representation or warranty of HyperFeed
contained in this Agreement or in any Ancillary Agreement, and no statement
contained in any document, certificate or Schedule furnished or to be furnished
by or on behalf of HyperFeed to the Company or any of their representatives
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading or necessary in order to fully
and fairly provide the information required to be provided in any such document,
certificate or Schedule.
ARTICLE IV
COVENANTS
SECTION 4.01. REASONABLE BEST EFFORTS. Each party shall, and shall cause
its affiliates to, use its reasonable best efforts (at its own expense) to
obtain, and to cooperate in obtaining, all consents from third parties necessary
or appropriate to permit the Contributions to be completed.
SECTION 4.02. EXPENSES; TRANSFER TAXES.
(a) Except as set forth in Section 4.02(b) below and in
Section 4.03 and 6.03, all costs and expenses incurred in connection with this
Agreement and the Ancillary Agreements and the transactions contemplated hereby
and thereby shall be paid by the party incurring such expense.
15
(b) Each party shall be responsible for and shall pay, as and when
incurred, all Transfer Taxes, documentary Taxes and filing or recording fees and
applicable to the Contributions that such party incurs. Each party shall use
reasonable effort to avail itself of any available exemptions from any such
Taxes or fees, and to cooperate with the other parties in providing any
information and documentation that may be necessary to obtain such exemptions.
SECTION 4.03. POST-CLOSING COOPERATION.
(a) HyperFeed and the Company shall cooperate with each other, and
shall cause their respective officers, employees, agents, auditors and
representatives to cooperate with each other, after the Closing to ensure the
orderly transition of the Business from HyperFeed to the Company and to minimize
any disruption to the Business that might result from the transactions
contemplated hereby. After the Closing, upon reasonable written notice,
HyperFeed and the Company shall furnish or cause to be furnished to each other
and to their respective employees, counsel, auditors and representatives access,
during normal business hours, to such information and assistance relating to the
Business (to the extent within the control of such party) as is reasonably
necessary for financial reporting and accounting matters.
(b) After the Closing, upon reasonable written notice, HyperFeed
and the Company shall furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance relating to HyperFeed
Assets (including, access to books and records) and the Contributions, to the
extent within the control of such party, as is reasonably necessary for the
filing of all Tax returns, and making of any election related to Taxes, the
preparation for any audit by any Taxing Authority, and the prosecution or
defense of any claim, suit or proceeding related to any Tax return. HyperFeed
and the Company shall cooperate with each other party in the conduct of any
audit or other proceeding relating to Taxes involving the Business.
(c) Each party shall reimburse the others for reasonable
out-of-pocket costs and expenses incurred in assisting such party pursuant to
this Section 4.03. No party shall be required by this Section 4.03 to take any
action which would unreasonably interfere with the conduct of its business or
unreasonably disrupt its normal operations.
SECTION 4.04. FURTHER ASSURANCES. From time to time, as and when
requested by any party, each party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions (subject to Section 4.01),
as such other party may reasonably deem necessary or desirable to consummate the
transactions contemplated by this Agreement and the Ancillary Agreements,
including, in the case of HyperFeed, executing and delivering to the Company
such assignments, deeds, bills of sale, consents and other instruments as the
Company or its counsel may reasonably request as necessary or desirable for such
purpose.
SECTION 4.05. QUOTESOCKET COMPATIBILITY. The Company agrees and covenants
that until such time as the DataFeed License Agreement is terminated by the
Company
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pursuant to Section 8B thereof, the Company shall take reasonable steps to
insure that Orbit (as defined in Schedule 1.02 to this Agreement) shall remain
solely compatible with QuoteSockets (as defined in Schedule 1.02 to this
Agreement) such that at all times Orbit will only be able to receive Data Feed
(as defined below) from HyperFeed and from no other source. As used in this
Section 4.05 Data Feed shall mean any 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.
SECTION 4.06. NON-DISCLOSURE OF CUSTOMER LISTS. HyperFeed agrees and
covenants that it shall disclose, sell, lease, rent the other the customer lists
of HyperFeed relating to the Business which are being contributed to the Company
hereunder to any third party without the prior written consent of the Company.
ARTICLE V
INDEMNIFICATION
SECTION 5.01. INDEMNIFICATION BY HYPERFEED. HyperFeed shall indemnify the
Company and each of its affiliates and each of its officers, directors,
employees, stockholders, agents and representatives against, and hold them
harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses) ("Losses"), as incurred (payable promptly
upon written request), arising from, in connection with or otherwise with
respect to:
(i) any breach of any representation or warranty of HyperFeed that
survives the Closing and is contained in this Agreement, in any Ancillary
Agreement or in any document delivered in connection herewith;
(ii) any breach of any covenant of HyperFeed contained in this
Agreement or in any Ancillary Agreement;
(iii) any Excluded HyperFeed Liability;
(iv) the disclosure by any current or former personnel of HyperFeed
of any proprietary information of the Company and its affiliates; and
(v) any fees, expenses or other payments incurred or owed by
HyperFeed to any brokers, financial advisors or comparable other persons
retained or employed by it in connection with the transactions contemplated by
this Agreement.
SECTION 5.02. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
the HyperFeed and each of its respective affiliates and each of its officers,
directors, employees, stockholders, agents and representatives against, and hold
them harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses)
17
("Losses"), as incurred (payable promptly upon written request), arising from,
in connection with or otherwise with respect to:
(i) any breach of any representation or warranty of the Company
that survives the Closing and is contained in this Agreement, in any Ancillary
Agreement or in any document delivered in connection herewith;
(ii) any breach of any covenant of the Company contained in this
Agreement or in any Ancillary Agreement;
(iii) any Assumed HyperFeed Liability; and
(iv) the disclosure by any current or former personnel of the
Company of any proprietary information of HyperFeed and its affiliates.
SECTION 5.03. CALCULATION OF LOSSES. The amount of any Loss for which
indemnification is provided under this Article V shall be net of any amounts
actually recovered by the indemnified party under insurance policies with
respect to such Loss and shall be (i) increased to take account of any net Tax
cost incurred by the indemnified party arising from the receipt of indemnity
payments hereunder (grossed up for such increase) and (ii) reduced to take
account of any net Tax benefit realized by the indemnified party arising from
the incurrence or payment of any such Loss. In computing the amount of any such
Tax cost or Tax benefit, the indemnified party shall be deemed to recognize all
other items of income, gain, loss, deduction or credit before recognizing any
item arising from the receipt of any indemnity payment hereunder or the
incurrence or payment of any indemnified Loss.
SECTION 5.04. TERMINATION OF INDEMNIFICATION. The obligations to
indemnify and hold harmless any party, (i) pursuant to Section 5.01(i) or
5.02(i) shall terminate when the applicable representation or warranty
terminates pursuant to Section 5.06 and (ii) pursuant to the other clauses of
Section 5.01 or 5.02 shall not terminate; provided, however, that such
obligations to indemnify and hold harmless shall not terminate with respect to
any item as to which the person to be indemnified shall have, before the
expiration of the applicable period, previously made a claim by delivering a
notice of such claim (stating in reasonable detail the basis of such claim)
pursuant to Section 5.05 to the party to be providing the indemnification.
SECTION 5.05. PROCEDURES.
(a) In order for a party (the "indemnified party"), to be entitled
to any indemnification provided for under this Agreement in respect of, arising
out of or involving a claim made by any person against the indemnified party (a
"Third Party Claim"), such indemnified party must notify the indemnifying party
in writing of the Third Party Claim promptly following receipt by such
indemnified party of written notice of the Third Party Claim; provided, however,
that failure to give such notification shall not affect the indemnification
provided hereunder except to the extent the indemnifying party shall have been
actually and materially prejudiced as a result of such failure. Thereafter, the
indemnified party shall deliver to the indemnifying party, promptly following
the indemnified party's receipt
18
thereof, copies of all notices and documents (including court papers) received
by the indemnified party relating to the Third Party Claim and not also
addressed to the indemnifying party.
(b) If a Third Party Claim is made against an indemnified party,
the indemnified party shall be entitled to participate in the defense thereof
and, if it so chooses, to assume the defense thereof with counsel selected by
the indemnifying party; provided, however, that such counsel is not reasonably
objected to by the indemnified party. Should the indemnifying party so elect to
assume the defense of a Third Party Claim, the indemnifying party shall not be
liable to the indemnified party for any legal expenses subsequently incurred by
the indemnified party in connection with the defense thereof. If the
indemnifying party assumes such defense, the indemnified party shall have the
right to participate in the defense thereof and to employ counsel, at its own
expense, separate from the counsel employed by the indemnifying party, it being
understood that the indemnifying party shall control such defense. The
indemnifying party shall be liable for the fees and expenses of counsel employed
by the indemnified party for any period during which the indemnifying party has
not assumed the defense thereof. If the indemnifying party chooses to defend or
prosecute a Third Party Claim, all the indemnified parties shall cooperate in
the defense or prosecution thereof. Such cooperation shall include the
retention and (upon the indemnifying party's request) the provision to the
indemnifying party of records and information that are reasonably relevant to
such Third Party Claim, and making employees available on a mutually convenient
basis to provide additional information and explanation of any employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Whether or not the indemnifying
party assumes the defense of a Third Party Claim, the indemnified party shall
not admit any liability with respect to, or settle, compromise or discharge,
such Third Party Claim without the indemnifying party's prior written consent
(which consent shall not be unreasonably withheld). If the indemnifying party
assumes the defense of a Third Party Claim, the indemnified party shall agree to
any settlement, compromise or discharge of a Third Party Claim that the
indemnifying party may recommend and that by its terms obligates the
indemnifying party to pay the full amount of the liability in connection with
such Third Party Claim, which releases the indemnified party completely in
connection with such Third Party Claim and that would not otherwise adversely
affect the indemnified party. Notwithstanding the foregoing, the indemnifying
party shall not be entitled to assume the defense of any Third Party Claim (and
shall be liable for the fees and expenses of counsel incurred by the indemnified
party in defending such Third Party Claim) if the Third Party Claim seeks an
order, injunction or other equitable relief or relief for other than money
damages against the indemnified party that the indemnified party reasonably
determines, after conferring with its outside counsel, cannot be separated from
any related claim for money damages. If such equitable relief or other relief
portion of the Third Party Claim can be so separated from that for money
damages, the indemnifying party shall be entitled to assume the defense of the
portion relating to money damages.
(c) OTHER CLAIMS. In the event any indemnified party should have
a claim against any indemnifying party under Section 5.01 or 5.02 that does not
involve a Third Party Claim being asserted against or sought to be collected
from such indemnified party, the
19
indemnified party shall deliver notice of such claim with reasonable promptness
to the indemnifying party. The failure by any indemnified party so to notify
the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to such indemnified party under Section 5.01 or 5.02,
except to the extent that the indemnifying party demonstrates that it has been
materially prejudiced by such failure. If the indemnifying party does not
notify the indemnified party within 15 calendar days following its receipt of
such notice that the indemnifying party disputes its liability to the
indemnified party under Section 5.01 or 5.02, such claim specified by the
indemnified party in such notice shall be conclusively deemed a liability of the
indemnifying party under Section 5.01 or 5.02 and the indemnifying party shall
pay the amount of such liability to the indemnified party on demand or, in the
case of any notice in which the amount of the claim (or any portion thereof) is
estimated, on such later date when the amount of such claim (or such portion
thereof) becomes finally determined. If the indemnifying party has timely
disputed its liability with respect to such claim, as provided above, the
indemnifying party and the indemnified party shall proceed in good faith to
negotiate a resolution of such dispute and, if not resolved through
negotiations, such dispute shall be resolved by litigation in an appropriate
court of competent jurisdiction.
SECTION 5.06. SURVIVAL OF REPRESENTATIONS AND COVENANTS. The
representations and warranties contained in this Agreement, in any Ancillary
Agreement or in any document delivered in connection herewith shall survive
the Closing solely for purposes of Article V and shall terminate at the close
of business five years following the date hereof. The covenants of the
Company and of HyperFeed contained in Sections 4.05 and 4.06 of this
Agreement shall be perpetual in nature and shall indefinitely survive the
Closing, subject to the earlier termination of Section 4.05 in accordance
with its terms.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.01. 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
HyperFeed may assign this Agreement and its rights and obligations hereunder to
any entity controlling, controlled by or under common control with, HyperFeed,
or to any entity that acquires HyperFeed by purchase of stock or by merger or
otherwise, or by acquiring all or substantially all of HyperFeed's assets,
provided that any such assignee succeeds to all of the rights and is subject to
all of the obligations of HyperFeed under this Agreement. Any attempted
assignment in violation of this Section 6.01 shall be null and void ab initio.
SECTION 6.02. NO THIRD-PARTY BENEFICIARIES. Except as provided in
Article V, 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 6.03. 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-
20
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.
SECTION 6.04. 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:
(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
SECTION 6.05. INTERPRETATION; EXHIBITS AND SCHEDULES; CERTAIN DEFINITIONS.
(a) The headings contained in this Agreement, in any Exhibit or
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. All Exhibits and Schedules annexed hereto or referred to herein
are hereby incorporated in and made a part of this Agreement as if set forth in
full herein. Any capitalized terms used in any Schedule or Exhibit but not
otherwise defined therein, shall have the meaning as defined in 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.
(b) For all purposes hereof:
"affiliate" of any person means another person that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first person.
"including" means including, without limitation.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Entity or
other entity.
21
"subsidiary" of any person means another person, in which an
amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a majority
of its Board of Directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first person.
SECTION 6.06. 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 6.07. ENTIRE AGREEMENT. This Agreement and the Ancillary
Agreements, along with the Schedules and Exhibits thereto, contain the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersede 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 or in
the Ancillary Agreements.
SECTION 6.08. 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.
SECTION 6.09. AMENDMENTS AND WAIVERS. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
SECTION 6.10. CONSENT TO JURISDICTION. Each of HyperFeed and the Company
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, any Ancillary 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, 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 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 7.10. 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, 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
00
Xxxxxx Xxxxxx Xxxxxxxx Xxxxx 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 6.11. 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.
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:
--------------------------------------
Xxxx X. Xxxxx
Senior Vice President
XXXXXXX.XXX, INC. ,
a Delaware corporation
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
President
23
SCHEDULE 1.01(a)
HYPERFEED CONTRIBUTED ASSETS
The HyperFeed Contributed Assets shall mean all of the Assets as set forth on
the First Quarter Balance Sheet as of March 31, 1999, including without
limitation the following:
(A) EQUIPMENT. All of the furniture, office equipment, computer
equipment, machinery, equipment, and other items of personal property owned and
used by HyperFeed in connection with the Business;
(B) RECORDS. Copies of all books, documents and records of, or relating
to any material necessary to the operation of the Business (including all
financial and business records, customer lists and files, supplier records,
insurance policies and any claims or credits thereunder and copies of all
personnel records and payroll records for the current and last two calendar
years for all employees who will become employees of the Company as of the
Closing);
(C) ACCOUNTS RECEIVABLE. All accounts receivable, notes receivable (and
any security therefor) and all other receivables of any kind related to the
Business;
(D) GOODWILL. All goodwill of the Business;
(E) CUSTOMER LISTS. All customer lists of HyperFeed relating to the
Business;
(F) INTELLECTUAL PROPERTY. All Intellectual Property (including,
without limitation, the copyrights and rights of copyright) and technology
relating to the Business and listed on Exhibit A attached hereto; and
(G) CONTRACTS. All rights and privileges arising from the contracts and
agreements relating to the Business and specifically listed on Exhibit B
attached hereto.
24
EXHIBIT A TO SCHEDULE 1.01(a)
HYPERTOOLS:
HyperTools, including including object code, source code, application
documentation and source code documentation, as described in the documentation.
HyperTools includes any one of a variety of programming interfaces which "talks"
or interfaces with a a HyperFeed 2000 Quote Server. HyperTools assist
developers in writing programs that "pull" out only the unique data desired from
the entire HyperFeed 2000 data stream. HyperTools include the following:
HYPERSCRIPT LIMITED:
A Do-it-Yourself toolkit, which provides developers with everything needed
to quickly and easily integrate the HyperFeed 2000 datafeed into web sites,
Intranets and Internet-based financial applications. HyperScript Limited
allows a user to cap the number of symbols a web site visitors or
application users can access. HyperScript Limited allows a user to
pre-select up to 30 ticker symbols.
HYPERSCRIPT UNLIMITED:
A Do-it-Yourself toolkit, HyperScript Unlimited which provides developers
with everything needed to quickly and easily integrate the HyperFeed 2000
datafeed into web sites, Intranets and Internet-based financial
applications. HyperScript Unlimited allows developers to provide their web
site visitors or application users with unlimited access to all of
HyperFeed 2000's price and fundamental data. HyperScript Unlimited
provides application portability and, end-users can submit queries as many
times as they wish.
MARKETSMART:
MarketSmart service including all applicable object code, source code,
application documentation and source code documentation, as described in the
documentation. MarketSmart Real-Time is HyperFeed's PC Quote branded real-time
Web Presence. Located within xxx.xxxxxxx.xxx, the site functions as a real-time
quote source for Web based clients. The site also includes partnerships with
various content providers who supply research and analysis to PC Quote's end
user. MarketSmart delivers real-time HyperFeed quote data to the end user.
MarketSmart allows users to organize this data in a variety of fashions that
suit their investment needs. The user can conduct research on their investments
through a variety of third party applications and content.
WEB TEMPLATES:
Web site developments products known as Web Templates, including all applicable
object code, source code, application documentation and source code
documentation, as described in the documentation. Web Templates are used to
enhance the content of customer web sites, and are co-branded. Web Templates
allow customers to quickly add financially-enriched web pages that are formatted
to compliment the customer's web site, without having to buy expensive servers
and development resources.
PAY PER QUOTE:
25
The Pay Per Quote server based application product including all applicable
object code, source code, application documentation and source code
documentation, as described in the documentation.
DOMAIN NAME AND WEBSITE:
The Internet Universal Resource Locator and domain name, including all
sub-domain names, known and identified as:
xxxx://xxx.xxxxxxx.xxx
Including all html, java, scripts and other languages used to create the
xxxxxxx.xxx web site, including all applicable object code, source code,
application documentation and source code documentation, as described in the
documentation.
HYPERFEED SOFTWARE DEVELOPMENT KIT FOR QUOTESOCKETS:
QuoteSockets Software Development Kit ("SDK"), including documentation, as
described in the documentation. QuoteSockets SDK is a software tool which
enables a programmer to develop applications for a specific platform and
integrate HyperFeed 2000's market data. The SDK includes one or more programming
interfaces and programming tools (including API and Active X Controls),
documentation, sample code, access to technical support, and a 3-month
subscription to the delayed HyperFeed 2000 datafeed over the Internet.
26
EXHIBIT B TO SCHEDULE 1.01(a)
DoubleClick Network Affiliate Agreement by and between PC Quote, Inc. and
DoubleClick, Inc. dated April 19, 1999
D.A.R.T. Service Agreement by and between PC Quote, Inc. and DoubleClick, Inc.
dated September 30, 1998
Internet Information Access Agreement by and between PC Quote, Inc. and @Plan,
Inc. dated April 30, 1998
Representative Agreement by and between PC Quote, Inc. and Xxxxxxxxxx &
Associates dated August 20, 1998
Mutual License Agreement for Limited Redistribution by and between PC Quote,
Inc. and VectorVest, Inc. dated June 1, 1998
Web Site Content Agreement by and between PC Quote, Inc. and IQC Corporation
dated February 1, 1999, as amended by Amendment 1 dated March 2, 1999
Web Site Content Agreement by and between PC Quote, Inc. and and IQ Net dated
April 23, 1997
Agreement by and between PC Quote, Inc. and Comtex Scientific Corporation dated
September 21, 1988, as amended by Amendment 1 to Agreement dated June 8, 1994,
as further amended by Amendment II to Agreement dated August 1, 1995, as further
amended by Amendment to Advertising and Promotions dated August 15, 1995, as
further amended by Amendment III dated July 10, 1997
DataFeed License Agreement by and between PC Quote, Inc. and Zacks Investment
Research dated September 3, 1998
Internet Distribution License by and between PC Quote, Inc. and Market Guide,
Inc dated February 4, 1998
The Market Guide Database Distribution Agreement by and between PC Quote, Inc.
and Market Guide, Inc. dated June 1, 1994
Internet Co-Branding Agreement by and between PC Quote, Inc. and XXX.XXX Inc.
dated December 29, 1998
Master Agreement for InterNetworking Service by and between PC Quote, Inc. and
GTE Internetworking Incorporated dated August 31, 1998, as amended by letter
agreement
27
Data Acquisition and Distribution Agreement by and between PC Quote, Inc. and
Strategic Weather Services dated September 16, 1998
Data Acquisition and Distribution Agreement by and between PC Quote, Inc. and
Xxxxxxxxx Management, Inc. dated October 7, 1998
Dow Xxxxx Financial News Services Composite Feed Master Distribution Agreement
by and between PC Quote, Inc. and Dow Xxxxx & Company dated August 23, 1994, as
amended by letter agreement dated August 8, 1996, as further amended by letter
agreement dated July 15, 1998
Content Distribution Agreement by and between PC Quote, Inc. and Dow Xxxxx &
Company dated January 9, 1998
Multex Investor Network Affiliate Operating agreement by and between PC Quote,
Inc. and Xxxxxx.xxx, Inc. dated December 22, 1999
Web Site Data License Agreement by and between PC Quote, Inc. and Pfizer, Inc.
dated November 20, 1997
Internet Trading Access Agreement by and between PC Quote, Inc. and XX Xxxxxx,
Inc. dated December 21, 1998
All of the existing Web Template and HyperScript customer contracts to which
HyperFeed is a party
All of the existing advertising contracts to which HyperFeed is a party
All of the existing Omega SDK contracts to which HyperFeed is a party
28
SCHEDULE 1.01(b)
HYPERFEED LICENSED ASSETS
The HyperFeed Licensed Assets shall mean all of the Intellectual Property
related to the following:
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.
QUOTESOCKETS:
QuoteSockets object code and documentation, as described in the documentation.
QuoteSockets is the marketing name given to the propriety middle-xxxx layer that
provides connectivity from the user applications to HyperFeed data stored on a
quote server. Connectivity between client and server is achieved using the
TCP/IP protocol. Each Client workstation communicates to the server what data it
requires by subscribing to the Quote Server. The server maintains a per client
interest list and publishes data to the client as required. Quote Sockets was
written in C++ utilizing Microsoft Foundation Classes (MFC).
HYPERSERVER:
Configuration specifications and documentation for HyperServer, as described in
the documentation. HyperServer is a server specially configured according to
HyperFeed specifications to receive HyperFeed 2000 market data directly from the
HyperFeed 2000 ticker plant via satellite or landline. HyperServer configured
servers can be integrated into a LAN, Ethernet, or Internet Service Provider to
disseminate data onto multiple desktops. End-users are able to view and
manipulate robust market data through any program or web application written
specifically to read and display the HyperFeed 2000 data.
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