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As filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
HYPERFEED TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3131704
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
300 SOUTH WACKER DRIVE, SUITE 300
CHICAGO, ILLINOIS 60606
(312) 913-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
1999 COMBINED INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
(Full title of the plan)
JIM R. PORTER, CHIEF EXECUTIVE OFFICER
HYPERFEED TECHNOLOGIES, INC.
300 South Wacker Drive, Suite 300
Chicago, Illinois 60606
(Name and address of agent for service)
(312) 913-2800
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share(1) price(1) registration fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($.001 par
value) 4,000,000 $8.71875 $34,875,000 $9,695.25
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low
prices reported on the American Stock Exchange for HyperFeed
Technologies, Inc. Common Stock on September 17, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employment benefit plan described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement omits the
information specified in Part I of Form S-8. The documents containing the
information specified in Part I will be delivered to the participants in the
1999 Combined Incentive and Non-Statutory Stock Option Plan (the "Plan")
covered by this Registration Statement as required by Rule 428(b). Such
document(s) are not being filed with the Securities and Exchange Commission
(the "Commission") as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 of the Securities Act.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by HyperFeed Technologies,
Inc. (the "Company") with the Commission are incorporated by reference in
this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 (File No. 0-13093);
(b) all other reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered by
the Company's Annual Report described in (a) above;
(c) the description of the Company's Common Stock contained in the
Company's registration statement on Form S-2/A filed with the
Commission on November 20, 1997, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained herein, or in a document all or part
of which is incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein, or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable. (Class of securities to be offered is registered
under Section 12 of the Exchange Act.)
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock registered hereby is being passed upon
by Wildman, Harrold, Allen & Dixon, Chicago, Illinois. Wildman, Harrold,
Allen & Dixon owns 83,900 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers and directors in terms sufficiently broad to
indemnify officers and directors under certain circumstances from liabilities
(including reimbursement for expenses incurred) arising under the Securities
Act. The Certificate of Incorporation and By-laws of the Company provide for
indemnification to the fullest extent allowed under Delaware law.
The directors and officers of the Company are covered by insurance
policies indemnifying them against liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Articles of Incorporation of the Company (incorporated by
reference to Appendix B of the Company's Proxy Statement
dated July 2, 1987).
4.2 Certificate of Amendment, dated as of October 22, 1997, to
the Company's Certificate of Incorporation (incorporated by
reference to Exhibit 4.12 of the Company's Report on Form
10-Q for the quarter ended September 30, 1997).
4.3 Certificate of Amendment, dated as of December 18, 1998, to
the Company's Certificate of Incorporation (incorporated by
reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1998).
4.4 Certificate of Amendment, dated as of June 18, 1999, to the
Company's Certificate of Incorporation (incorporated by
reference to the Company's Form 8-A filed with the
Commission on September 17, 1999).
4.5 Bylaws of the Company, as amended and restated
(incorporated by reference to Exhibit 3(b) of the Company's
Annual Report on Form 10-K for the year ended December
31, 1987).
4
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4.6 1999 Combined Incentive and Non-Statutory Stock Option Plan
5 Opinion of Wildman, Harrold, Allen & Dixon
23.1 Consent of KPMG LLP
23.2 Consent of McGladrey & Pullen, LLP
23.3 Consent of Wildman, Harrold, Allen & Dixon (included in
Exhibit 5)
24 Power of Attorney (included in the signature page of the
Registration Statement)
ITEM 9. UNDERTAKINGS
a. The Company hereby undertakes to file, during any period in which
offers or sales are being made, a post-effective amendment to this
registration statement to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement.
b. The Company hereby undertakes that, for the purpose of determining
any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
c. The Company hereby undertakes to remove from registration by means
of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
d. The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
e. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the Delaware
Corporation Law, the Certificate of Incorporation of the Company and
the By-Laws of the Company, the Company has been advised that in the
opinion of the Commission such indemnification is against public
policy as
5
<PAGE>
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of
such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on
September 23, 1999.
HYPERFEED TECHNOLOGIES, INC.
By /s/ JIM R. PORTER
--------------------------
Jim R. Porter
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Jim R. Porter and John E.
Juska, or either of them, as his attorney-in-fact and agents, with full power
of substitution for him and in his name, place and stead, in any and all
capacities (including without limitation, as Director and/or principal
Executive Officer, principal Financial Officer, principal Accounting Officer
or any other officer of the Company), to sign and execute this Registration
Statement on Form S-8 and any amendment or amendments, including
post-effective amendments thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents full power and authority to do and perform any
and all acts and things requisite and necessary to be done, and hereby
ratifying and confirming all that said attorney-in-fact and agent may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
By: /s/ JIM R. PORTER Chairman of the Board September 23, 1999
----------------------- and Chief Executive
Jim R. Porter Officer
By: /s/ JOHN E. JUSKA Chief Financial Officer September 23, 1999
----------------------- and Principal Accounting
John E. Juska Officer
7
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By: /s/ RONALD LANGLEY Director September 23, 1999
------------------------
Ronald Langley
By: /s/ JOHN R. HART Director September 23, 1999
------------------------
John R. Hart
By: /s/ LOUIS J. MORGAN Director September 23, 1999
------------------------
Louis J. Morgan
By: /s/ KENNETH J. SLEPICKA Director September 23, 1999
------------------------
Kenneth J. Slepicka
8
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Articles of Incorporation of the Company (incorporated by
reference to Appendix B of the Company's Proxy Statement
dated July 2, 1987).
4.2 Certificate of Amendment, dated as of October 22, 1997, to
the Company's Certificate of Incorporation (incorporated by
reference to Exhibit 4.12 of the Company's Report on Form
10-Q for the quarter ended September 30, 1997).
4.3 Certificate of Amendment, dated as of December 18, 1998, to
the Company's Certificate of Incorporation (incorporated by
reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1998).
4.4 Certificate of Amendment, dated as of June 18, 1999, to the
Company's Certificate of Incorporation (incorporated by
reference to the Company's Form 8-A filed with the
Commission on September 17, 1999).
4.5 Bylaws of the Company, as amended and restated
(incorporated by reference to Exhibit 3(b) of the Company's
Annual Report on Form 10-K for the year ended December 31,
1987).
4.6 1999 Combined Incentive and Non-Statutory Stock Option Plan
5 Opinion of Wildman, Harrold, Allen & Dixon
23.1 Consent of KPMG LLP
23.2 Consent of McGladrey & Pullen, LLP
23.3 Consent of Wildman, Harrold, Allen & Dixon (included in
Exhibit 5)
24 Power of Attorney (included in the signature page of the
Registration Statement)
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EXHIBIT 4.6
HYPERFEED TECHNOLOGIES, INC.
1999 COMBINED INCENTIVE AND NON-STATUTORY
STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees, Directors and
Consultants and to promote the success of HyperFeed Technologies, Inc.'s
business. Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. Stock Purchase Rights may also be granted under the Plan.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees
as shall be administering the Plan In accordance with Section 4 hereof.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws
of any other country or jurisdiction where Options or Stock Purchase Rights
are granted under the Plan.
(c) "BOARD" means the Board of Directors of HyperFeed
Technologies, Inc.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" means a committee of Directors appointed by
the Board in accordance with Section 4 hereof.
(f) "COMMON STOCK" means the Common Stock of HyperFeed
Technologies, Inc.
(g) "COMPANY" means HyperFeed Technologies, Inc., a Delaware
corporation.
(h) "CONSULTANT" means any person who is engaged by HyperFeed
Technologies, Inc. or any Parent or Subsidiary to render consulting or
advisory services to such entity.
(i) "DIRECTOR" means a member of the Board of Directors of
HyperFeed Technologies, Inc.
(j) "DISABILITY" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
<PAGE>
(k) "EMPLOYEE" means any person, including Officers
and Directors, employed by HyperFeed Technologies, Inc. or any Parent or
Subsidiary of HyperFeed Technologies, Inc. A Service Provider shall not cease
to be an Employee in the case of (i) any leave of absence approved by
HyperFeed Technologies, Inc. or (ii) transfers between locations of HyperFeed
Technologies, Inc. or between HyperFeed Technologies, Inc., its Parent, any
Subsidiary, or any successor. For purposes of Incentive Stock Options, no
such leave may exceed ninety days, unless reemployment upon expiration of
such leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by HyperFeed Technologies, Inc. is
not so guaranteed, on the 181st day of such leave any Incentive Stock Option
held by the Optionee shall cease to be treated as an Incentive Stock Option
and shall be treated for tax purposes as a Nonstatutory Stock Option. Neither
service as a Director nor payment of a director's fee by HyperFeed
Technologies, Inc. shall be sufficient to constitute "employment" by
HyperFeed Technologies, Inc..
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(m) "FAIR MARKET VALUE" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for such stock
(or the closing bid, if no sales were reported) as quoted on such exchange or
system for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for
the Common Stock on the last market trading day prior to the day of
determination; or
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith
by the Administrator.
(n) "INCENTIVE STOCK OPTION" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(o) "NONSTATUTORY STOCK OPTION" means an Option not intended
to qualify as an Incentive Stock Option.
(p) "OFFICER" means a person who is an officer of HyperFeed
Technologies, Inc. within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder.
(q) "OPTION" means a stock option granted pursuant to the Plan.
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(r) "OPTION AGREEMENT" means a written or electronic
agreement between HyperFeed Technologies, Inc. and an Optionee evidencing the
terms and conditions of an individual Option grant. The Option Agreement is
subject to the terms and conditions of the Plan.
(s) "OPTION EXCHANGE PROGRAM" means a program whereby
outstanding Options are exchanged for Options with a lower exercise price.
(t) "OPTIONED STOCK" means the Common Stock subject to an
Option or a Stock Purchase Right.
(u) "OPTIONEE" means the holder of an outstanding Option or
Stock Purchase Right granted under the Plan.
(v) "PARENT" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(w) "PLAN" means this 1999 Stock Plan.
(x) "RESTRICTED STOCK" means shares of Common Stock acquired
pursuant to a grant of a Stock Purchase Right under Section 11 below.
(y) "SECTION 16(b)" means Section 16(b) of the Securities
Exchange Act of 1934, as amended.
(z) "SERVICE PROVIDER" means an Employee, Director or
Consultant.
(aa) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 12 below.
(bb) "STOCK PURCHASE RIGHT" means a right to purchase Common
Stock pursuant to Section 11 below.
(cc) "SUBSIDIARY" means a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which may be
subject to option and sold under the Plan is four million Shares. The Shares
may be authorized but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes
unexercisable without having been exercised in full, or is surrendered
pursuant to an Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale under the
Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan, upon exercise of either an Option or Stock
Purchase Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan,
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except that if Shares of Restricted Stock are repurchased by HyperFeed
Technologies, Inc. at their original purchase price, such Shares shall become
available for future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) ADMINISTRATOR. The Plan shall be administered by the
Board or a Committee appointed by the Board, which Committee shall be
constituted to comply with Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of
the Plan and, in the case of a Committee, the specific duties delegated by
the Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options and
Stock Purchase Rights may from time to time be granted hereunder;
(iii) to determine the number of Shares to be covered by
each such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions of any Option
or Stock Purchase Right granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time or times when Options or
Stock Purchase Rights may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or Stock Purchase Right or
the Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vi) to determine whether and under what circumstances
an Option may be settled in cash under subsection 9(e) instead of Common
Stock,
(vii) to reduce the exercise price of any Option to the
then current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option has declined since the date the Option was granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations relating to
sub-plans established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
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(x) to allow Optionees to satisfy withholding tax
obligations by electing to have HyperFeed Technologies, Inc. withhold from
the Shares to be issued upon exercise of an Option or Stock Purchase Right
that number of Shares having a Fair Market Value equal to the amount required
to be withheld. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined. All elections by Optionees to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; and
(xi) to construe and interpret the terms of the Plan
and awards granted pursuant to the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees.
5. ELIGIBILITY.
(a) Nonstatutory Stock Options and Stock Purchase Rights may
be granted to Service Providers. Incentive Stock Options may be granted only
to Employees.
(b) Each Option shall be designated in the Option Agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair
Market Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year
(under all plans of HyperFeed Technologies, Inc. and any Parent or
Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory
Stock Options. For purposes of this Section 5(b), Incentive Stock Options
shall be taken into account in the order in which they were granted. The Fair
Market Value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.
(c) Neither the Plan nor any Option or Stock Purchase Right
shall confer upon any Optionee any right with respect to continuing the
Optionee's relationship as a Service Provider with HyperFeed Technologies,
Inc., nor shall it interfere in any way with his or her right or HyperFeed
Technologies, Inc.'s right to terminate such relationship at any time, with
or without cause.
6. TERM OF PLAN. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 14 of the Plan.
7. TERM OF OPTION. The term of each Option shall be stated in the
Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. In the case of an Incentive Stock
Option granted to in Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of HyperFeed Technologies, Inc. or any Parent or
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Subsidiary, the term of the Options shall be five (5) years from the date of
grant or such shorter term as may be provided in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) The per share exercise price for the Shares to be issued
upon exercise of an Option shall be the price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of grant
of such Option, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of HyperFeed Technologies, Inc. or any
Parent or Subsidiary, the exercise price shall be no leas than 110% of the
Fair Market Value per Share on the date of grant.
(B) granted to any other Employee, the per Share
exercise Price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a Service Provider who, at the time
of grant of such Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of HyperFeed Technologies, Inc.
or any Parent or Subsidiary, the exercise price shall be no less than 110% of
the Fair Market Value per Share on the date of grant.
(B) granted any other Service Provider, the per
Share exercise price shall be no less than 85% of the Fair Market Value per
Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be
granted with a per Share exercise price other than as required above pursuant
to a merger or other corporate transaction.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant). Such consideration may
consist of (1) cash, (2) check, (3) promissory note, (4) other Shares which
(x) in the case of Shares acquired upon exercise of an Option, have been
owned by the Optionee for more than six months on the date of surrender, and
(y) have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which such Option shall be exercised, (5)
consideration received by HyperFeed Technologies, Inc. under a cashless
exercise program implemented by HyperFeed Technologies, Inc. in connection
with the Plan, or (6) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit HyperFeed Technologies, Inc..
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9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any
Option granted hereunder shall be exercisable according to the terms hereof
at such times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. Except in the case of Options granted
to Officers, Directors and Consultants, Options shall become exercisable at a
rate of no less than 25% per year over four years from the date the Options
are granted. Unless the Administrator provides otherwise, vesting of Options
granted hereunder shall be tolled during any unpaid leave of absence. An
Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when HyperFeed
Technologies, Inc. receives: (1) written or electronic notice of exercise (in
accordance with the Option Agreement) from the person entitled to exercise
the Option, and (ii) full payment for the Shares with respect to which the
Option is exercised. Full payment may consist of any consideration and method
of payment authorized by the Administrator and permitted by the Option
Agreement and the Plan. Shares issued upon exercise of an Option shall be
issued in the name of the Optionee or, if requested by the Optionee, in the
name of the Optionee and his or her spouse. Until the Shares an issued (as
evidenced by the appropriate entry on the books of HyperFeed Technologies,
Inc. or of a duly authorized transfer agent of HyperFeed Technologies, Inc.),
no right to vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Shares, notwithstanding the exercise of the
Option. HyperFeed Technologies, Inc. shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be made for
a dividend or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares thereafter available, both for purposes of the Plan
and for sale under the Option, by the number of Shares as to which the Option
is exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If an
Optionee ceases to be a Service Provider, such Optionee may exercise his or
her Option within such period of time as is specified in the Option Agreement
(of at least thirty (30) days) to the extent that the Option is vested on the
date of termination (but in no event later than the expiration of the term of
the Option as set forth in the Option Agreement). In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable
for three (3) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his or her Option
within the time specified by the Administrator, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. If an Optionee ceases to be a
Service Provider as a result of the Optionee's Disability, the Optionee may
exercise his or her Option within such period of time as is specified in the
Option Agreement (of at least six (6) months) to the extent
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the Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months following the
Optionee`s termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the uninvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
(d) DEATH OF OPTIONEE. If an Optionee dies while a Service
Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement (of at least six (6) months) to the extent
that the Option is vested on the date of death (but in no event later than
the expiration of the term of such Option as set forth in the Option
Agreement) by the Optionee's estate or by a person who acquires the right to
exercise the Option by bequest or inheritance. In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Optionee's termination. If, at the time of death,
the Optionee is not vested as to the entire Option, the Shares covered by the
unvested portion of the Option shall immediately revert to the Plan. If the
Option is not so exercised within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time
offer to buy out for a payment in cash or Shares, an Option previously
granted, based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such offer is made.
10. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. The
Options and Stock Purchase Rights may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or
by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. Stock Purchase Rights may be issued
either alone, in addition to, or in tandem with other awards granted under
the Plan and/or cash awards made outside of the Plan. After the Administrator
determines that it will offer Stock Purchase Rights under the Plan, it shall
advise the offeree in writing or electronically of the terms, conditions and
restrictions related to the offer, including the number of Shares that such
person shall be entitled to purchase, the price to be paid, and the time
within which such person must accept such offer. The offer shall be accepted
by execution of a Restricted Stock purchase agreement in the form determined
by the Administrator.
(b) REPURCHASE OPTION. Unless the Administrator determines
otherwise, the Restricted Stock purchase agreement shall grant HyperFeed
Technologies, Inc. a repurchase option exercisable upon the voluntary or
involuntary termination of the purchaser's service with HyperFeed
Technologies, Inc. for any reason (including death or disability). The
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purchase price for Shares repurchased pursuant to the Restricted Stock
purchase agreement shall be the original price paid by the purchaser and may
be paid by cancellation of any indebtedness of the purchaser to HyperFeed
Technologies, Inc.. The repurchase option shall lapse at such rate as the
Administrator may determine. Except with respect to Shares purchased by
Officers. Directors and Consultants, the repurchase option shall in no case
lapse at a rate of less than 25% per year over four years from the date of
purchase.
(c) OTHER PROVISIONS. The Restricted Stock purchase agreement
shall contain such other terms, provisions and conditions not inconsistent
with the Plan as may be determined by the Administrator in its sole
discretion.
(d) RIGHTS AS A STOCKHOLDER. Once the Stock Purchase Right is
exercised, the purchaser shall have rights equivalent to those of a
stockholder and shall be a stockholder when his or her purchase is entered
upon the records of the duly authorized transfer agent of HyperFeed
Technologies, Inc.. No adjustment shall be made for a dividend or other right
for which the record date is prior to the date the Stock Purchase Right is
exercised, except as provided in Section 12 of the Plan.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required
action by the stockholders of HyperFeed Technologies, Inc., the number of
shares of Common Stock covered by each outstanding Option or Stock Purchase
Right, and the number of shares of Common Stock which have been authorized
for issuance under the Plan but as to which no Options or Stock Purchase
Rights have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option or Stock Purchase Right, as well as
the price per share of Common Stock covered by each such outstanding Option
or Stock Purchase Right, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by HyperFeed Technologies, Inc.. The conversion of any
convertible securities of HyperFeed Technologies, Inc. shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by
HyperFeed Technologies, Inc. of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an Option or Stock Purchase Right.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of HyperFeed Technologies, Inc., the Administrator
shall notify each Optionee as soon as practicable prior to the effective date
of such proposed transaction. The Administrator in its discretion may
provide for an Optionee to have the right to exercise his or her Option or
Stock Purchase Right until fifteen (15) days prior to such transaction as to
all of the Optioned Stock covered thereby, including Shares as to which the
Option or Stock Purchase Right would
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not otherwise be exercisable. In addition, the Administrator may provide
that any HyperFeed Technologies, Inc. repurchase option applicable to any
Shares purchased upon exercise of an Option or Stock Purchase Right shall
lapse as to all such Shares, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated. To the extent it has
not been previously exercised, an Option or Stock Purchase Right will
terminate immediately prior to the consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of
HyperFeed Technologies, Inc. with or into another corporation, or the sale of
substantially all of the assets of HyperFeed Technologies, Inc., each
outstanding Option and Stock Purchase Right shall be assumed or an equivalent
option or right substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Option or Stock Purchase
Right, the Optionee shall fully vest in and have the right to exercise the
Option or Stock Purchase Right as to all of the Optioned Stock, including
Shares as to which it would not otherwise be vested or exercisable. If an
Option or Stock Purchase Right becomes fully vested and exercisable in lieu
of assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option or Stock Purchase Right shall be fully exercisable for a period of
fifteen (15) days from the date of such notice, and the Option or Stock
Purchase Right shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option or Stock Purchase Right shall be
considered assumed if, following the merger or sale of assets, the option or
right confers the right to purchase or receive, for each Share of Optioned
Stock subject to the Option or Stock Purchase Right immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders
of Common Stock for each Share held on the effective date of the transaction
(and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale
of assets is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor
corporation, provide for the consideration to be received upon the exercise
of the Option or Stock Purchase Right, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right, to be solely common stock of
the successor corporation or its Parent equal in fair market value to the per
share consideration received by holders of Common Stock in the merger or sale
of assets.
13. TIME OF GRANTING OPTIONS AND STOCK PURCHASE RIGHTS. The date
of grant of an Option or Stock Purchase Right shall, for all purposes, be the
date on which the Administrator makes the determination granting such Option
or Stock Purchase Right, or such other date as is determined by the
Administrator. Notice of the determination shall be given to each Service
Provider to whom an Option or Stock Purchase Right is so granted within a
reasonable time after the date of such grant.
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14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time
amend, alter, suspend or terminate the Plan.
(b) STOCKHOLDER APPROVAL. The Board shall obtain stockholder
approval of any Plan amendment to the extent necessary and desirable to
comply with Applicable Laws.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of
any Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee
and HyperFeed Technologies, Inc.. Termination of the Plan shall not affect
the Administrator's ability to exercise the powers granted to it hereunder
with respect to Options granted under the Plan prior to the date of such
termination.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for HyperFeed Technologies, Inc.
with respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the
exercise of an Option, the Administrator may require the person exercising
such Option to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
HyperFeed Technologies, Inc., such a representation is required.
16. INABILITY TO OBTAIN AUTHORITY. The inability of HyperFeed
Technologies, Inc. to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by HyperFeed Technologies, Inc.'s
counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve HyperFeed Technologies, Inc. of any liability in
respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. RESERVATION OF SHARES. HyperFeed Technologies, Inc., during
the term of this Plan, shall at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the requirements of the
Plan.
18. STOCKHOLDER APPROVAL. The Plan shall be subject to approval by
the stockholders of HyperFeed Technologies, Inc. within twelve (12) months
after the date the Plan is adopted. Such stockholder approval shall be
obtained in the degree and manner required under Applicable Laws.
19. INFORMATION TO OPTIONEES AND PURCHASERS. HyperFeed
Technologies, Inc. shall provide to each Optionee and to each individual who
acquires Shares pursuant to the Plan, not
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less frequently than annually during the period such Optionee or purchaser
has one or more Options or Stock Purchase Rights outstanding, and, in the
case of an individual who acquires Shares pursuant to the Plan, during the
period such individual owns such Shares, copies of annual financial
statements. HyperFeed Technologies, Inc. shall not be required to provide
such statements to key employees whose duties in connection with HyperFeed
Technologies, Inc. assure their access to equivalent information.
20. NOTICE. Any notice to HyperFeed Technologies, Inc. required
under this Plan shall be in writing and shall either be delivered in person
or sent by registered or certified mail, return receipt requested, postage
prepaid, to HyperFeed Technologies, Inc. at its principal executive offices,
Attention: Benefits Plan Administrator.
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EXHIBIT 5
[Wildman, Harrold, Allen & Dixon Letterhead]
September 24, 1999
HyperFeed Technologies, Inc.
300 South Wacker Drive, Suite 300
Chicago, Illinois 60606
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to HyperFeed Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the filing with the
Securities and Exchange Commission of a registration statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act") relating to 4,000,000 shares (the "Shares") of the Company's
common stock, par value $.001 per share, which may be issued and sold
pursuant to the Company's 1999 Combined Incentive and Non-Statutory Stock
Option Plan (the "Plan").
In connection with this opinion, we have examined and are familiar
with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Plan; (ii) the Registration Statement; (iii) the
Certificate of Incorporation, as amended, of the Company; (iv) the By-laws of
the Company; and (v) such other documents as we have deemed necessary and
appropriate as a basis for the opinion set forth below. In rendering our
opinion set forth below, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures and the
<PAGE>
September 24, 1999
Page 2
conformity to authentic originals of all documents submitted to us as copies.
We have also assumed the legal capacity for all purposes relevant hereto of
all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver
and perform such agreements or instruments, that such agreements or
instruments have been duly authorized by all requisite action (corporate or
otherwise), executed and delivered by such parties and that such agreements
or instruments are the valid, binding and enforceable obligations of such
parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and, assuming full payment is made for
the Shares, when issued pursuant to the terms of the Plan, the Shares will be
validly issued, fully paid and non-assessable.
Our opinions expressed above are limited to the laws of the State of
Delaware.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Dated: September 24, 1998 Very truly yours,
/s/ Wildman, Harrold, Allen & Dixon
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EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors and Stockholders
HyperFeed Technologies, Inc.:
We consent to the use of our reports dated March 12, 1999, included in the
HyperFeed Technologies, Inc. (formerly PC Quote, Inc.)(the "Company") 1998
Annual Report on Form 10-K, incorporated by reference herein.
Our report on the financial statements contains an explanatory paragraph that
states that the Company has experienced significant operating losses which
has adversely affected the Company's current results of operations and
liquidity. These conditions raise substantial doubt about the Company's
ability to continue as a going concern. These financial statements and
financial statement schedule do not include any adjustments that might result
from the outcome of that uncertainty.
/s/ KPMG LLP
Chicago, Illinois
September 21, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in the Registration Statement on
Form S-8 of HyperFeed Technologies, Inc. (previously known as PC Quote, Inc.)
of our report dated March 7, 1997, which includes an emphasis paragraph
relating to an uncertainty as to the Company's ability to continue as a going
concern, relating to the statements of operations, stockholders' equity, and
cash flows of PC Quote, Inc. for the year ended December 31, 1996, which
report appears in the December 31, 1998 Annual Report on Form 10-K of PC
Quote, Inc.
/s/ McGladrey & Pullen, LLP
Schaumburg, Illinois
September 21, 1999
