EXHIBIT 4(au)
STOCK AND WARRANT PURCHASE AGREEMENT
BETWEEN
HYPERFEED TECHNOLOGIES, INC.
AND
XXXXX XXXXXXX
NOVEMBER 22, 1999
xv
STOCK AND WARRANT PURCHASE AGREEMENT
Agreement entered into as of November 22, 1999, by and between Xxxxx
Xxxxxxx (the "Buyer") and HyperFeed Technologies, Inc., a Delaware corporation
(the "Seller"). Buyer and Seller are referred to collectively herein as the
"Parties."
This Agreement contemplates a transaction in which Buyer will purchase
from Seller, and Seller will sell to Buyer, an aggregate of 20,000 shares of
Seller's common stock, par value $0.001 per share (the "Common Stock"), for an
aggregate purchase price of One Hundred Thousand Dollars ($100,000).
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties agree as follows:
1. DEFINITIONS.
"ACCREDITED INVESTOR" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses and fees, including court costs and reasonable attorneys' fees and
expenses.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"AFFILIATED GROUP" means any affiliated group within the meaning of
Code Section 1504.
"BUYER" has the meaning set forth in the preface above.
"CLOSING DATE" shall mean November 30, 1999 or such other time as the
parties may mutually agree.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of Seller that is not already generally available to the
public.
"EMPLOYEE BENEFIT PLAN" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan
(including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan or
material fringe benefit plan or program.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA
Section 3.
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA
Section 3.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4g below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
1
"INCOME TAX" means any federal, state, local, or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"INCOME TAX RETURN" means any return, declaration, report, claim for
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8 below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8 below.
"KNOWLEDGE" means actual knowledge without independent investigation.
"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37).
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a governmental entity (or any
department, agency, or political subdivision thereof) or any entity similar to
any of the foregoing.
"PURCHASE PRICE" has the meaning set forth in Section 2 below.
"REPORTABLE EVENT" has the meaning set forth in ERISA Section 4043.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"SELLER" has the meaning set forth in the preface above.
"SHARES" means Seller's shares of Common Stock.
"THIRD PARTY CLAIM" has the meaning set forth in ss.8 below.
2. PURCHASE AND SALE OF SHARES AND Warrant
2.1 PURCHASE AND SALE OF SHARES. On the Closing Date, in the manner set
forth in this Secion 2, upon the terms set forth in this Agreement, Seller will
sell, transfer and deliver to Buyer, and Buyer will purchase from Seller, 20,000
Shares for an aggregate purchase price of One Hundred Thousand Dollars
($100,000) (the "Purchase Price"), in all cases free and clear of all interests,
liens, charges, encumbrances, equities, claims, assessments and options of
whatever nature.
2
(a) On the Closing Date, as a condition precedent to such closing,
Seller shall deliver to Buyer stock certificates representing an aggregate of
20,000 Shares in such names and denominations as buyer shall instruct Seller.
(b) Buyer shall deliver to Seller a certified check or wire transfer in
the amount of $100,000.
2.2 Purchase and Sale of Warrant. Subject to the terms and conditions
of this Agreement, the Company shall issue to Buyer a warrant (the "Warrant") to
purchase 10,000 Shares at an exercise price of $7.50 per Share, which Warrant
shall be substantially in the form attached hereto as EXHIBIT A.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller that the statements contained in this Section 3 are true,
correct and complete as of the date of this Agreement and will be true,
correct and complete as of the Closing Date (as though made on and as of such
Closing Date as if such Closing Date were substituted for the date of this
Agreement throughout this Section 3).
(a) BUYER'S QUALIFICATIONS. Buyer (a) has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of its investment in Seller and (b) has
had the opportunity to ask questions of, and receive answers from,
Seller and its management concerning the terms and conditions of the
offering of the Shares hereunder and to obtain additional information;
and (c) is an Accredited Investor.
(b) AUTHORIZATION OF TRANSACTION. Buyer has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of Buyer, enforceable in accordance with its terms.
Buyer is not required to give any notice to, make any filing with, or
obtain any authorization, consent or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
(c) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
Buyer is subject or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Buyer is a party or by which
it is bound or to which any of its assets is subject.
(d) BROKERS' FEES. Buyer does not have any liability or
obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement
for which Seller could become liable or obligated.
(e) INVESTMENT. Buyer is acquiring the Shares for investment
purposes and not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer that the statements contained in this Section 4 are true,
correct and complete as of the date of this Agreement and will be true,
correct and complete as of the Closing Date (as though made on and as of such
Closing Date as if such Closing Date were substituted for the date of this
Agreement throughout this Section 4).
(a) AUTHORIZATION OF TRANSACTION. Seller has full corporate power and
authority to execute and deliver this Agreement and the other documents and
instruments to be executed and delivered by Seller pursuant to this Agreement
and the transactions contemplated hereby and to perform its obligations
hereunder and thereunder. This Agreement and the other documents and instruments
to be executed and delivered by Seller
3
pursuant to this Agreement and the transactions contemplated hereby
constitute the valid and legally binding obligations of Seller enforceable in
accordance with their respective terms.
(b) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. Seller is duly authorized to conduct business and
is in good standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not have a
material adverse effect on the condition (financial or otherwise) of Seller.
Seller has full corporate power and authority to carry on the businesses in
which it is engaged and to own and use the properties and assets owned and used
by it. Seller has no subsidiaries.
(c) CAPITALIZATION. The entire authorized capital stock of Seller
consists of 50,000,000 Shares, of which 15,195,031 Shares are issued and
outstanding and no Shares are held in treasury; and 5,000,000 Shares of
undesignated Preferred Stock, of which 19,075 and 28,791 shares designated as
Series A and Series B, respectively, Convertible Preferred Stock are
outstanding. All of the issued and outstanding Shares and Preferred Stock have
been duly authorized, are validly issued, fully paid, and nonassessable. Except
as set forth in Schedule 4(c) hereto, there are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require Seller to
issue, sell, or otherwise cause to become outstanding any of its capital stock.
All such options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights or other contracts or commitments and the Shares
issuable upon exercise thereof have been duly authorized, and when issued in
accordance with their terms will be validly issued, fully paid and
non-assessable. There are no preemptive or first refusal or similar rights
binding on Seller to subscribe for or purchase from Seller any Shares pursuant
to any provisions of law, the Certificate of Incorporation or By-laws of Seller
or by agreement or otherwise. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar rights with
respect to the Shares.
(d) NONCONTRAVENTION. Except as set forth in Schedule 4(d) hereto, to
the Knowledge of Seller, neither the execution and delivery of this Agreement,
nor consummation of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which Seller is subject or any provision of the Certificate of
Incorporation or By-laws of Seller or (ii) conflict with, result in breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Seller is a party or by which Seller is bound or to which Seller or its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets), except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would not have a material adverse effect on the condition
(financial or otherwise) of Seller or on the ability of the Parties to
consummate the transactions contemplated by this Agreement. Except as set forth
in Schedule 4(d) hereto, Seller does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement, except where the failure to give notice, to
file, or to obtain any authorization, consent, or approval would not have a
material adverse effect on the condition (financial or otherwise) of Seller or
on the ability of the Parties to consummate the transactions contemplated by
this Agreement.
(e) BROKERS' FEES. Seller does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
(f) TITLE TO TANGIBLE ASSETS. Seller has good title to, or a valid
leasehold interest in, the tangible assets it uses regularly in the conduct of
its businesses.
(g) FINANCIAL STATEMENTS. Attached hereto are copies of Seller's annual
report on Form 10-K for the year ended December 31, 1998 and its Quarterly
Report on Form 10-Q for each of the quarters ended March 31, 1999, June 30, 1999
and September 30, 1999. Included in such reports are the following financial
statements (collectively the "Financial Statements"): (i) audited consolidated
balance sheets for the years ending December 31, 1998 and 1997 and statements of
income, changes in stockholders' equity, and cash flow as of and
4
for the years ended December 31, 1998, 1997 and 1996 for the Company; and (ii)
unaudited balance sheets and statements of income, changes in stockholders'
equity, and cash flow as of and for the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999 (the "QUARTERLY FINANCIAL STATEMENTS"). The
Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly the financial condition of Seller as of such
dates and the results of operations of Seller for such periods; PROVIDED,
HOWEVER, that the Quarterly Financial Statements are subject to normal year-end
adjustments and lack footnotes and other presentation items.
(h) TAX MATTERS.
(i) Seller has filed all Income Tax Returns that it was
required to file, and has paid all Income Taxes shown thereon as owing,
except where the failure to file Income Tax Returns or to pay Income
Taxes would not have a material adverse effect on the condition
(financial or otherwise) of Seller.
(ii) Seller has not waived any statute of limitations in
respect of Income Taxes or agreed to any extension of time with respect
to an Income Tax assessment or deficiency.
(iii) Except as set forth in Schedule 4(h), Seller is not a
party to any Income Tax allocation or sharing agreement.
(i) REAL PROPERTY
Seller does not own any real property.
(j) INTELLECTUAL PROPERTY. Except as set forth in Schedule 4(j), the
Company owns or possesses sufficient legal rights to all patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information and
proprietary rights necessary for its business as now conducted without any
conflict with, or infringement of, the rights of others. The Company has not
received any communication alleging that the Company has violated or, by
conducting its business, would violate any of the patents, trademarks, service
marks, trade names, copyrights, trade secrets or other proprietary rights of any
other person or entity. The Company is not aware that any of its employees are
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of such
employee's best efforts to promote the interest of the Company or that would
conflict with the Company's business. Neither the execution or delivery of this
Agreement, nor the carrying on of the Company's business as now conducted by the
employees of the Company, will, to the Company's knowledge, conflict with or
result in a breach of the terms, conditions, or provisions of, or constitute a
default under, any contract, covenant or instrument under which any such
employee is now obligated. The Company does not believe it is or will be
necessary to use any inventions of any of its employees (or persons it currently
intends to hire) made prior to their employment by the Company. To the Company's
knowledge, its officers and employees are not making improper use of any
confidential information or trade secrets of others, including those of any
former employer.
(k) POWERS OF ATTORNEY. Except as set forth in Schedule 4(k), there
are no outstanding powers of attorney executed on behalf of Seller.
(l) LITIGATION. Schedule 4(l) hereto sets forth each instance in
which Seller (i) is subject to any outstanding injunction, judgment, order,
decree, ruling, or charge or (ii) is a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction,
except where the injunction, judgment, order, decree, ruling, action, suit,
proceeding, hearing, or investigation would not have a material adverse
effect on the condition (financial or otherwise), assets, liabilities,
earnings or business of Seller.
5
(m) Employee Benefits.
(i) Schedule 4(m) hereto lists each Employee Benefit Plan that
is sponsored, maintained or contributed to or required to be
contributed to by the Seller or by any trade or business, whether or
not incorporated (an "ERISA Affiliate"), that together with the Seller
would be deemed a "single employer" within the meaning of Section
4001(b) of ERISA.
(A) Each such Employee Benefit Plan (and each related
trust, insurance contract, or fund) complies in form and in
operation in all respects with the applicable requirements of
ERISA and the Code, except where the failure to comply would
not have a material adverse effect on the condition (financial
or otherwise) of Seller.
(B) All contributions (including all employer
contributions and employee salary reduction contributions)
which are due have been paid to each such Employee Benefit
Plan which is an Employee Pension Benefit Plan.
(C) Each such Employee Benefit Plan which is an
Employee Pension Benefit Plan has received a determination
letter from the Internal Revenue Service to the effect that it
meets the requirements of Code Section 401(a).
(D) Seller has made available to Buyer correct and
complete copies of the plan documents and summary plan
descriptions, the most recent determination letter received
from the Internal Revenue Service, the most recent Form 5500
Annual Report, and all related trust agreements, insurance
contracts, and other funding agreements which implement each
such Employee Benefit Plan.
(E) No such Employee Benefit Plan which is an
Employee Pension Benefit Plan (other than any Multiemployer
Plan) has been completely or partially terminated or been the
subject of a Reportable Event as to which notices would be
required to be filed with the PBGC. No proceeding by the PBGC
to terminate any such Employee Pension Benefit Plan (other
than any Multiemployer Plan) has been instituted.
(F) No action, suit, proceeding, hearing, or
investigation with respect to the administration or the
investment of the assets of any such Employee Benefit Plan
(other than routine claims for benefits) is pending, except
where the action, suit, proceeding, hearing, or investigation
would not have a material adverse effect on the condition
(financial or otherwise) of Seller.
(G) Neither Seller nor any ERISA Affiliate has
incurred any liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any
withdrawal liability) with respect to any such Employee
Benefit Plan which is an Employee Pension Benefit Plan.
(H) The aggregate withdrawal liability of Seller and
any and all ERISA Affiliates, computed as if a complete
withdrawal by Seller and such ERISA Affiliates had occurred
under each Multiemployer Plan on the date hereof, would not
exceed $10,000.
(n) ABSENCE OF CERTAIN CHANGES. With respect to the business of Seller,
except as and to the extent set forth in the Company's reports on Form 10-Q for
the quarters ended March 31, 1999, June 30, 1999 and September 30, 1999, since
December 31, 1998, Seller has not:
(i) suffered any material adverse change in its condition
(financial or otherwise), assets, liabilities (absolute, accrued,
contingent or otherwise), business, prospects or operations, or
experienced any labor difficulty, or suffered any casualty loss
(whether or not insured);
6
(ii) paid, discharged or satisfied any claim, lien,
encumbrance or liability (whether absolute, accrued, contingent or
otherwise and whether due or to become due), other than claims, liens,
encumbrances or liabilities (i) which are reflected or reserved against
in the Financial Statements, and which were paid, discharged or
satisfied since the date of the most recent Financial Statements in the
ordinary course of business and consistent with past practice, or (ii)
which were incurred and paid, discharged or satisfied since the date of
the most recent Financial Statements in the ordinary course of business
and consistent with past practice;
(iii) permitted or allowed any of the properties or assets,
real, principal or mixed, tangible or intangible, of or used by Seller,
to be mortgaged, pledged or subjected to any lien or encumbrance;
(iv) written down or written up the value of any inventory, or
written off as uncollectible any notes or accounts receivable or any
portion thereof, except for write-downs, write-ups and write-offs in
the ordinary course of business consistent with past practice;
(v) cancelled any other debts or claims, or waived any rights
of substantial value, or sold, transferred or otherwise disposed of any
of the properties or assets, real, personal or mixed, tangible or
intangible, except in the ordinary course of business and consistent
with past practice;
(vi) disposed of or permitted to lapse any patent, trademark,
assumed name, service xxxx, trade name or copyright application or
license or under which Seller has any right or license, or disposed of
or disclosed to any person any trade secret, formula, process or
know-how of Seller or under which Seller has any right or license;
(vii) granted any general uniform increase in the compensation
of employees (including, without limitation, any increase or change
pursuant to any bonus, pension, profit-sharing, retirement or other
plan or commitment);
(viii) made any change in any method of accounting or
accounting practice or policy; made any loan or advance (other than
advances to employees in the ordinary course of business or travel and
expenses disbursement in accordance with the past practice, but not in
excess of $10,000 at any one time outstanding) to any person who is an
officer, director or employee of Seller;
(ix) declared or paid any dividend or purchased any of its
outstanding shares of capital stock;
(x) agreed, whether in writing or otherwise, to take any of
the actions set forth in this Section 4(n);
(o) INSURANCE. The Company holds and maintains valid policies covering
such casualties and contingencies and of such types and amounts as is customary
for companies similarly situated. The Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a material
adverse effect.
(q) ENVIRONMENTAL PROTECTION.
In connection with its business operations, Seller has
obtained all permits, licenses and other authorizations which are required under
federal, state and local laws relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, or hazardous or toxic materials
or wastes into ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants or hazardous or
toxic materials or wastes; to the best of its knowledge after
7
due investigation, Seller is in compliance in all material respects with all
terms and conditions of the required permits, licenses and authorizations, and
is also in compliance in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in those laws or contained in any
regulation, code, plan, order, decree, judgment, notice or demand latter
issued, entered, promulgated or approved thereunder. Seller is not aware of,
and has not received notice of, past, present or future events, conditions,
circumstances, activities, practices, incidents, actions or plans which may
interfere with or prevent continued compliance, or which may give rise to any
common law or legal liability, or otherwise form the basis of any claim,
action, suit, proceeding, hearing or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the omission, discharge, release or threatened
release into the environment, of any pollutant, contaminant, or hazardous or
toxic material or waste.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing Date or (ii)
termination of this Agreement.
(a) GENERAL. Each of the Parties will use his or its reasonable best
efforts to take any action and to do all things reasonably necessary in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the conditions precedent to closing.
(b) NOTICES AND CONSENTS. Each party will give any notices to third
parties, and will use its reasonable best efforts to obtain any third party
consents, that Buyer reasonably may request in connection with the matters
referred to in Sections 3 and 4 above.
(c) OPERATION OF BUSINESS. Except for transactions contemplated hereby,
Seller will not engage in, take any action, or enter into any transaction
outside the Ordinary Course of Business.
(d) FULL ACCESS. Seller will permit representatives of Buyer to have
full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of Seller, to all premises, properties,
personnel, books, records (including tax records), contracts, and documents
of or pertaining to Seller. Buyer will treat and hold as such any
Confidential Information received from Seller in the course of the reviews
contemplated by this Section 5(d), will not use any of the Confidential
Information except in connection with this Agreement, and, if this Agreement
is terminated for any reason whatsoever, will return to Seller all tangible
embodiments (and all copies) of the Confidential Information which are in its
possession.
(e) NOTICE OF DEVELOPMENTS. Seller shall notify Buyer of any
development causing a breach of any of the representations and warranties in
Section 4 above. Unless Buyer have the right to terminate this Agreement
pursuant to Section 9(a)(ii) below by reason of the development and exercise
that right within the period referred to in Section 9(a)(ii) below, the
written notice pursuant to this Section 5(e)(i) will be deemed to have
amended the relevant Schedule, if any, to have qualified the representations
and warranties contained in Section 4 above, and to have cured any
misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of the development.
6. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) GENERAL. In case at any time after any Closing Date any further
action is necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting party (unless the
requesting Party is entitled to indemnification therefor under Section 8
below).
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status,
8
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to any Closing Date involving
Seller, each of the other Parties shall cooperate with him or it and his or
its counsel in the defense or contest, make available their personnel, and
provide such testimony and access to their books and records as shall be
necessary in connection with the defense or contest (unless the contesting or
defending Party is entitled to indemnification therefor under Section 8
below).
(c) REGISTRATION RIGHTS. Buyer shall be afforded such registration
rights as are set forth in the Registration Rights Agreement, substantially in
the form attached hereto as EXHIBIT B.
(d) NEGATIVE COVENANTS. Seller covenants and agrees that, until the
Closing Date, Seller will not do any of the following without the prior written
consent of Buyer, which shall not be unreasonably withheld:
(i) DISPOSITIONS. Convey, sell, lease, transfer or otherwise
dispose of (each of the foregoing, a "Transfer"), all or any part of
its business or property, other than: (i) Transfers of non-exclusive
licenses and similar arrangements for the use of Seller's services; or
(ii) Transfers of worn-out or obsolete equipment; or (iii) sales of
shares of its subsidiary, PC Xxxxx.xxx, Inc.
(ii) MERGERS OR ACQUISITIONS. Merge or consolidate with or
into any other business organization, or acquire all or substantially
all of the capital stock or property of another Person.
(iii) DISTRIBUTIONS. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or
purchase of any capital stock except with respect to any obligations in
existence as of the date hereof and set forth on Schedule 6(h) hereto.
(iv) TRANSACTIONS WITH AFFILIATES. Directly or indirectly
enter into or permit to exist any material transaction with any
Affiliate of Seller except for transactions involving agreements that
are in place at the date hereof or that are in the ordinary course of
Seller's business, upon fair and reasonable terms that are no less
favorable to Seller than would be obtained in an arm's length
transaction with a nonaffiliated Person.
7. ADDITIONAL CONDITIONS PRECEDENT.
(a) CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transactions contemplated by this Agreement is subject to
satisfaction of the following conditions:
(i) the representations and warranties of Seller set forth in
Section 4 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date ;
(iii) there shall not be any injunction, judgment, order, or
decree enjoining the transactions contemplated by this Agreement;
(iv) all actions to be taken by Seller in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be satisfactory in
form and substance to Buyer.
Buyer may waive any condition specified in this Section 7(a) upon execution
of a writing so stating at or prior to the Closing Date.
(b) CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to
satisfaction of the following conditions:
9
(i) the representations and warranties of Buyer set forth in
Section 3 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing Date;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) all actions to be taken by Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Seller.
Seller may waive any condition specified in this Section 7(b) if it executes a
writing so stating at or prior to the Closing Date.
8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of Buyer and Seller contained in Section 3 and
Section 4, respectively above, shall survive this Agreement and continue in
full force and effect for a period of one year thereafter.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYER. In the event
Seller breaches any of its representations, warranties, or covenants contained
herein, it shall so notify Buyer and provided that Buyer makes a written claim
for indemnification against Seller pursuant to Section 10 below within such
survival period, then Seller agrees to indemnify Buyer from and against the
entirety of any Adverse Consequences Buyer shall suffer through and after the
date of the claim for indemnification caused by the breach.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF SELLER. In the event
Buyer breaches any of its representations, warranties, or covenants contained
herein, it shall so notify Seller and provided that Seller makes a written
claim for indemnification against Buyer pursuant to Section 10 below within
such survival period, then buyer agrees to indemnify Seller from and against
the entirety of any Adverse Consequences Seller shall suffer through and after
the date of the claim for indemnification caused by the breach.
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the
"INDEMNIFIED PARTY") with respect to any matter (a "THIRD PARTY CLAIM")
which may give rise to a claim for indemnification against any other
Party (the "INDEMNIFYING PARTY") under this Section 8, then the
Indemnified Party shall promptly (and in any event within five
business days after receiving notice of the Third Party Claim) notify
each Indemnifying Party thereof in writing.
(ii) Any Indemnifying Party will have the right to assume and
thereafter conduct the defense of the Third Party Claim with counsel of
his or its choice reasonably satisfactory to the Indemnified Party;
provided, HOWEVER, that the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably) unless the judgment or proposed
settlement involves only the payment of money damages and does not
impose an injunction or other equitable relief upon the Indemnified
Party.
(iii) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 8(c)(ii) above,
however, the Indemnified Party may defend against the Third Party Claim
in any manner he or it reasonably may deem appropriate.
10
(iv) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of each of the
Indemnifying Parties, not to be unreasonably withheld.
(e) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage in determining
Adverse Consequences for purposes of this Section 8. All indemnification
payments under this Section 8 shall be deemed adjustments to the Purchase Price.
9. TERMINATION.
(a) TERMINATION OF AGREEMENT. The Parties may terminate this Agreement
as provided below
(i) Buyer and Seller may terminate this Agreement by mutual written
consent at any time prior to the Closing Date;
(ii) Buyer may terminate this Agreement by giving written notice to
Seller at any time prior to the Closing Date in the event (A) Seller
has given Buyer any notice pursuant to ss.5(e) above and (B) the
development that is the subject of the notice has had, or reasonably
believes will have, a material adverse effect upon the condition
(financial or otherwise) of Seller;
(iii) Buyer may terminate this Agreement by giving written notice
to Seller at any time prior to the Closing Date (A) in the event
Seller has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Buyer have
notified Seller of the breach, and the breach has continued without
cure for a period of 10 days after the notice of breach or (B) if the
Closing shall not have occurred on or before November 30, 1999, by
reason of the failure of any condition precedent ss.7 hereof (unless
the failure results primarily from any breach by Buyer of any material
representation, warranty, or covenant contained in this Agreement); and
(iv) Seller may terminate this Agreement by giving written notice
to Buyer at any time prior to the Closing Date (A) in the event either
Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Seller has
notified each Buyer of the breach, and the breach has continued without
cure for a period of 10 days after the notice of breach or (B) if the
Closing shall not have occurred on or before November 30, 1999, by
reason of the failure of any condition precedent ss.7 hereof (unless
the failure results primarily from Seller breaching any material
representation, warranty, or covenant contained in this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 9(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); PROVIDED, HOWEVER, that
the confidentiality provisions contained in Section 5(d) above shall survive
termination.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing Date, without the prior written approval of
Buyer and Seller; PROVIDED, HOWEVER, that any Party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
11
(c) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they have related in any way to the subject
matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the other.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Seller:
HyperFeed Technologies, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
If to Buyer:
Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(j) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
12
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(k) EXPENSES. Each Party bears its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
(l) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(n) THE CLOSING. The closing of the transactions contemplated by this
Agreement shall take place at the offices of the Company in Chicago, Illinois,
on the Closing Date or on such other time, date and location mutually agreed by
the Parties.
* * * * *
13
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
HYPERFEED TECHNOLOGIES, INC.,
A Delaware corporation
By:__________________________ By:_______________________________
Name: Xxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Senior Vice President & Chief
Financial Officer
Seller Buyer
14
