EXHIBIT 10.6
TAX INDEMNIFICATION AND ALLOCATION AGREEMENT
TAX INDEMNIFICATION AND ALLOCATION AGREEMENT ("Agreement") dated as of
__________, 1999, by and between HyperFeed Technologies, Inc., a Delaware
corporation ("HyperFeed") and PC Xxxxx.xxx, Inc., a Delaware corporation
("XXXxxxx.xxx").
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 (y) the Taxing Jurisdiction's highest marginal tax rate
applicable to the taxable income of
2
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.
"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)
3
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 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.
4
"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).
"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.
5
"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.
"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.
6
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 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
7
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.
(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
8
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 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.
(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.
9
(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.
(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 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.
(c) Estimated Tax Payments.
(i) XXXxxxx.xxx shall pay to HyperFeed quarterly installments of
estimated Tax. 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
10
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 of estimated Tax attributable to XXXxxxx.xxx. 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.
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 3 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
11
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 3 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 makes 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 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.
12
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 solely
XXXxxxx.xxx and relates solely to items for which XXXxxxx.xxx is responsible
hereunder.
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,
13
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
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
14
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 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) 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. 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")
15
)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 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
16
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 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
17
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 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
18
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.
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
19
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.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of
the day and year first written above.
HYPERFEED TECHNOLOGIES, INC.
By:
Name:
Title:
PC XXXXX.XXX, INC.
By:
Name:
Title:
20
