-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dg6guYdeWCSSq05Ca81aZhqmuTmxlw5O2lRxGwckEUp/8qCXU7j3NF9ArC/tAqK0 7U9WXFIMGNScmz1LGXoaGQ== 0000912057-00-016927.txt : 20000410 0000912057-00-016927.hdr.sgml : 20000410 ACCESSION NUMBER: 0000912057-00-016927 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000407 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MARKETWATCH COM INC CENTRAL INDEX KEY: 0001068969 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 943289801 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-58425 FILM NUMBER: 596505 BUSINESS ADDRESS: STREET 1: 825 BATTERY STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4157330500 MAIL ADDRESS: STREET 1: 825 BATTERY STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PEARSON INC CENTRAL INDEX KEY: 0000829700 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 510261654 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1330 AVENUE OF THE AMERICAS STREET 2: 7TH FL CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2126412400 MAIL ADDRESS: STREET 1: 1330 AVENUE OF THE AMERICAS STREET 2: 7TH FL CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D 1 SC 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) MARKETWATCH.COM, INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $ .01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 570619106 - -------------------------------------------------------------------------------- (CUSIP Number) Philip J. Hoffman c/o Pearson Inc. 1330 Avenue of the Americas, 7th Floor New York, New York 10019 (212) 641-2421 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) With Copies To: Anne E. Gold, Esq. Morgan, Lewis & Bockius LLP 101 Park Avenue New York, New York 10178 (212) 309-6000 March 28, 2000 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13D to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. SEE Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 23 Pages) (1)The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, SEE the Notes). CUSIP No. 570619106 13D Page 2 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON PLC EIN: - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION ENGLAND & WALES - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -2- CUSIP No. 570619106 13D Page 3 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON OVERSEAS HOLDINGS LTD. EIN: - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION ENGLAND & WALES - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -3- CUSIP No. 570619106 13D Page 4 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON NETHERLANDS BV EIN: - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NETHERLANDS - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -4- CUSIP No. 570619106 13D Page 5 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON AG EIN: - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION SWITZERLAND - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -5- CUSIP No. 570619106 13D Page 6 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON INC. EIN: 51-0261654 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -6- CUSIP No. 570619106 13D Page 7 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEARSON LONGMAN, INC. EIN: 13-2971110 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* NOT APPLICABLE - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH SEE ITEM 5 OF ATTACHED SCHEDULE REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) SEE ITEM 5 OF ATTACHED SCHEDULE - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -7- CUSIP No. 570619106 13D Page 8 of 23 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) DATA BROADCASTING CORPORATION EIN: 13-3668779 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC (SEE ITEM 3 OF ATTACHED SCHEDULE) - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 5,636,814 REPORTING ----------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,636,814 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,636,814 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -8- ITEM 1. SECURITY AND ISSUER This Statement on Schedule 13D (the "Statement") relates to the common stock, par value $.01 per share ("Common Stock"), of MarketWatch.com, Inc., a Delaware corporation (the "Company"). The principal executive office of the Company is 825 Battery Street, San Francisco, California 94111. Information given in response to each item shall be deemed incorporated by reference in all other items. ITEM 2. IDENTITY AND BACKGROUND (a) This Statement is being filed by each of the following persons pursuant to Rule 13d-1(a) promulgated by the Securities and Exchange Commission (the "Commission"): (i) Pearson plc, a corporation organized under the laws of England & Wales ("Pearson"); (ii) Pearson Overseas Holdings Ltd., a corporation organized under the laws of England & Wales ("Pearson Overseas"); (iii) Pearson Netherlands BV, a corporation organized under the laws of the Netherlands ("Pearson Netherlands"); (iv) Pearson AG, a corporation organized under the laws of Switzerland ("Pearson AG"); (v) Pearson Inc., a corporation organized under the laws of Delaware ("Pearson Inc."); (vi) Pearson Longman, Inc., a corporation organized under the laws of Delaware ("Pearson Longman"); and (vii) Data Broadcasting Corporation, a corporation organized under the laws of Delaware ("DBC" and, collectively with Pearson, Pearson Overseas, Pearson Netherlands, Pearson AG, Pearson Inc. and Pearson Longman, the "Reporting Persons"). Pearson is an international media company which is the majority stockholder of Pearson Overseas. Pearson Overseas is an investment holding company which owns 100% of Pearson Netherlands. Pearson Netherlands is a holding company which owns 100% of Pearson AG. Pearson AG is a holding company which is the majority stockholder of Pearson Inc. Pearson Inc. is a holding company which owns 100% of Pearson Longman. Pearson Longman is a holding company which is the majority stockholder of DBC. DBC is a distributor of financial and business information. (b) The addresses of the principal offices of each of the Reporting Persons are as set forth on Schedule A. Schedule A is incorporated into and made a part of this Statement. (c) Attached as Schedule B is the name, principal occupation (where applicable) and business address of each member, executive officer and/or director of each of the Reporting Persons. Schedule B is incorporated into and made a part of this Statement. (d) During the last five years, none of the Reporting Persons nor any person listed on Schedule B has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, none of the Reporting Persons nor any person listed on Schedule B has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION The total amount of funds required by DBC to acquire the Common Stock of the Company pursuant to the Stock Purchase Agreement (as described in the response to Item 4) is $43,000,000.00 (the "Purchase Price"). DBC is to obtain a portion of the Purchase Price from its working capital. The remainder of -9- such funds are to be borrowed from an affiliate or an independent third party, the terms of which will be finalized prior to the date upon which the Common Stock of the Company is acquired by DBC. The shares of Common Stock of the Company owned by DBC as of the date hereof were received in connection with the merger of Marketwatch.com, LLC with and into the Company. Pursuant to a Contribution Agreement, dated as of October 29, 1997, among CBS Inc., a New York corporation, DBC and Marketwatch.com, LLC, as consideration for all of DBC's right, title and interest in assets relating to its online/news business, as well as $2,000,000 in cash paid in two equal installments on each of October 29, 1997 and October 29, 1998, Marketwatch.com, LLC assumed certain liabilities of DBC and DBC received a 50% membership interest in Marketwatch.com, LLC. Thereafter, on January 13, 1999, Marketwatch.com, LLC merged with and into the Company (the "Merger"). In connection with the Merger, the membership interest of DBC in Marketwatch.com, LLC was exchanged for 4,500,000 shares of Common Stock of the Company. A copy of the Contribution Agreement has been filed as an exhibit hereto. ITEM 4. PURPOSES OF TRANSACTIONS On March 28, 2000, the Company, DBC and CBS Broadcasting Inc., a New York corporation ("CBS"), entered into a Stock Purchase Agreement (the "Stock Purchase Agreement"), a copy of which has been filed as an exhibit hereto. The Stock Purchase Agreement provides that, upon the satisfaction of certain conditions, DBC shall purchase 1,136,814 shares of Common Stock of the Company for the Purchase Price. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) DBC owns 4,500,000 shars of Common Stock of the Company and, pursuant to the Stock Purchase Agreement, DBC, for purposes of Rule 13d-3 promulgated under the Exchange Act, may be deemed to beneficially own an additional 1,136,814 shares of Common Stock of the Company (collectively, the "Shares"). DBC's aggregate holding of 5,636,814 shares of Common Stock of the Company represents approximately 34.4% of the issued and outstanding shares of Common Stock of the Company. Pearson, Pearson Overseas, Pearson Netherlands, Pearson AG, Pearson Inc., and Pearson Longman, which are affiliates of DBC, may be deemed to beneficially own the Shares indirectly as a result of their control relationship with DBC. Any such beneficial ownership would represent the same shared voting and dispositive power exercised by DBC over the Shares. Each of the Reporting Persons other than DBC disclaims beneficial ownership of the Shares. (b) The responses of the Reporting Persons to Items (7) through (11) of the portions of pages 2 through 8 hereto which relate to shares of Common Stock beneficially owned are incorporated herein by reference. (c) Except as described in the response to Item 4, there have been no transactions in the shares of Common Stock during the past sixty days by any Reporting Person or any other person listed on Schedule B. (d) No person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock beneficially owned by DBC. (e) Not applicable Except as described in this response to Item 5, none of the persons listed on Schedule B beneficially own any shares of Common Stock. -10- ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER In connection with the Merger, a Stockholders' Agreement, dated as of January 13, 1999 (the "Stockholders' Agreement"), was entered into among Marketwatch.com, LLC, the Company, CBS and DBC (DBC and CBS, each a "Stockholder" for purposes thereof). A summary of certain provisions contained in the Stockholders' Agreement is set forth below: (a) CHANGE OF CONTROL OF DBC. CBS shall have the right (but not the obligation) in its sole discretion to purchase the securities in the Company held by DBC or require that such securities be transferred to an independent trustee within 60 days after a competitor of CBS has directly or indirectly acquired beneficial ownership of more than thirty percent (30%) of the outstanding shares of the common stock, or securities representing, in the aggregate, more than thirty percent (30%) of the voting power, of DBC (or any person controlling DBC), or all or substantially all of DBC's assets, at a time when DBC and its affiliates shall then own in the aggregate a number of shares of Common Stock equal to at least ten percent (10%) of the outstanding shares of Common Stock on the IPO Closing Date (as defined in the Stockholders' Agreement) without the prior written consent of CBS. (b) DIRECTOR NOMINATION RIGHTS. For so long as DBC continues to own a number of Voting Securities (as defined in the Stockholders' Agreement) equal to at least one percent (1%) of the outstanding Voting Securities, the Company shall provide DBC written notice at least thirty (30) days prior to any stockholder solicitation or action relating to the election of directors. After such receipt by DBC, DBC may request that the Company nominate, and the Company shall nominate, to the board of directors of the Company (i) one director, if DBC holds a number of Voting Securities greater than or equal to one percent (1%) but less than twenty percent (20%) of the Company's outstanding Voting Securities, or (ii) two directors, if DBC holds a number of Voting Securities greater than or equal to twenty percent (20%) but less than thirty percent (30%) of the Company's outstanding Voting Securities, or (iii) three directors, if DBC holds a number of Voting Securities greater than or equal to thirty percent (30%) of the Company's outstanding Voting Securities, with each such candidate being reasonably acceptable to the Company. If such designation is not in connection with a stockholder solicitation or action relating to the election of directors, the Company shall appoint such designee as soon as practicable upon written notice from DBC. The number of designees shall be adjusted in the event that the size of the board of directors of the Company is increased to a number greater than nine (9) members. In accordance with an increase in the size of the board of directors, Messrs. Alan J. Hirschfield, Carl Spielvogel, Allan R. Tessler and Mark F. Imperiale currently are the DBC nominees serving as members of the board of directors pursuant to this provision. (c) RIGHT OF FIRST REFUSAL. In the event that any Stockholder or affiliate of any Stockholder intends to transfer any securities in the Company, such Stockholder or affiliate (the "Selling Stockholder") must give written notice to the Company and other Stockholder, subject to certain exceptions as stated in the Stockholders' Agreement, stating (a) the Selling Stockholder's bona fide intention to transfer such securities; (b) the number of offered securities proposed to be transferred to each proposed transferee; (c) the name, address and relationship, if any, to the Selling Stockholder of each proposed transferee and (d) the bona fide cash price or, in reasonable detail, other consideration, per share for which the Selling Stockholder proposes to transfer such offered securities to each proposed transferee and the proposed time of payment and other relevant terms of the proposed sale. Certain other information shall be included in the written notice if the proposed sale is to be effected on the open market pursuant to Rule 144. The non-Selling Stockholder shall have a right to purchase any portion of the offered securities covered by the written notice unless (i) the offered securities are to be sold in a private sale to one purchaser, in which case the non-Selling Stockholder will only be permitted to exercise this right of first refusal if it purchases -11- all of the offered securities, or (ii) the Selling Stockholder is selling the offered securities through a registered offering and the quantity of offered securities that the non-Selling Stockholder proposes to purchase would, in the good faith opinion of the managing underwriter, jeopardize the success of the offering. In such a circumstance, the non-Selling Stockholder will only be permitted to purchase either all of the offered securities or such offered securities, if any, that would not, in the good faith opinion of the managing underwriter, jeopardize the success of the offering. If the non-Selling Stockholder has not elected to purchase all or a portion, as applicable, of the offered securities pursuant to this right of first refusal, the Selling Stockholder may transfer the offered securities to the proposed transferee(s) under certain terms and conditions as stated in the Stockholders' Agreement. (d) PARTICIPATION RIGHTS. Subject to certain exceptions and conditions, if from time to time, the percentage of Total Voting Power (as defined in the Stockholders' Agreement) represented by the Voting Power (as defined in the Stockholders' Agreement) of all Voting Securities then owned, directly or indirectly, by a Stockholder (the "Applicable Percentage") would be reduced as a result of any issuance of Voting Securities by the Company or could be reduced as a result of any issuance of Convertible Securities (as defined in the Stockholders' Agreement), the Company shall notify the Stockholder in writing not less than ten (10) business days prior to the proposed date of any such issuance and shall offer to sell to the Stockholder (and if such offer is accepted pursuant to the terms contained in the Stockholders' Agreement, the Company shall sell to the Stockholder) that portion of the Voting Securities or Convertible Securities to be issued which would allow such Stockholder to maintain its then current Applicable Percentage. In connection with the Merger, a Registration Rights Agreement, dated as of January 13, 1999 (the "Registration Rights Agreement"), was entered into among CBS, DBC (DBC and CBS, each a "Stockholder" for purposes thereof) and the Company. A summary of certain provisions contained in the Registration Rights Agreement is set forth below: (a) DEMAND REGISTRATION. If the Company shall receive at any time after 180 days following the effective date of the registration statement for the Company's initial public offering, a written request from a Stockholder that the Company file a registration statement under the Securities Act of 1933 covering the registration of Registrable Securities (as defined in the Registration Rights Agreement) with a reasonably anticipated aggregate price to the public of at least three million dollars ($3,000,000), then the Company shall effect, as soon as practicable, and in any event use its best efforts to effect within sixty (60) days of such request, registration of all Registrable Securities which the initiating Stockholder requests to be registered and included in such registration, subject to limitations as stated in the Registration Rights Agreement. With the approval of the Company, which approval shall not be unreasonably withheld, the initiating Stockholder may distribute the Registrable Securities by means of an underwriting, but priority will be given to the initiating Stockholder if the underwriter determines that market factors require a limitation on the number of shares to be sold. The Company is obligated to effect only two (2) such registrations for each Stockholder; HOWEVER, the Company shall not be deemed to have effected such registration unless a registration statement in respect thereof shall have been declared effective by the Securities and Exchange Commission and remains effective for 120 days or such earlier time until all Registrable Securities registered under such registration statement have been sold (or withdrawn from such registration at the request of the initiating Stockholder). The initiating Stockholder may withdraw the request for registration at any time prior to the effective date of the registration statement related to such registration, subject to certain terms as stated in the Registration Rights Agreement. -12- (b) PIGGYBACK REGISTRATIONS. Subject to certain exceptions, if the Company proposes to register any of its securities in connection with the public offering of such securities, the Company must provide all holders of Registrable Securities with written notice thereof at least thirty (30) days prior to filing any registration statement. Upon the written request of any such holder given within twenty (20) days after the receipt of such notice, the Company shall afford such holder the opportunity to include in such registration statement all or any part of the Registrable Securities then held by such holder; PROVIDED, HOWEVER, that if the registration statement in connection with the public offering is to be underwritten, the shares which the Company proposes to sell will be given priority in the event that the underwriter determines that market factors require a limitation on the number of shares to be sold. c) FORM S-3 REGISTRATION. Subject to certain exceptions, at any time, if a Stockholder requests that the Company effect a registration on Form S-3, the Company must file and use its best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Stockholder's or its affiliates' Registrable Securities as are specified in such request. The requesting Stockholder may withdraw the request for registration at any time prior to the effective date of the registration statement related to such registration, subject to certain terms as stated in the Registration Rights Agreement. d) PAYMENT OF EXPENSES. All expenses incurred in connection with a registration pursuant to exercise of the foregoing rights, including without limitation all registration and qualification fees, printers' and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for the selling holders to be selected by the Selling Stockholder(s) (but excluding underwriters' discounts and commissions), shall be borne by the Company. Each holder participating in a registration pursuant to the Registration Rights Agreement shall bear such holder's proportionate share (based on the total number of shares sold in such registration other than for the account of the Company) of all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering. In connection with the formation of Marketwatch.com, LLC, DBC agreed to loan Marketwatch.com, LLC, until October 2000, up to $5,000,000 at an annual interest rate equal to The Chase Manhattan National Bank's prime rate plus two percent (2%). On January 13, 1999, a Revolving Credit Agreement (the "Credit Agreement"), was entered into between DBC and the Company in order to evidence DBC's prior loan obligation. Under the Credit Agreement, DBC agreed to loan the Company up to $5,000,000 through October 2000. The loan is unsecured and bears interest at a rate equal to The Chase Manhattan National Bank's prime rate plus two percent (2%) per annum and matures on October 29, 2000. The previous borrowings by the Company from DBC were included as indebtedness outstanding under the Credit Agreement. Pursuant to the Credit Agreement, a Revolving Promissory Note was issued by the Company to DBC. See the response to Item 4 regarding the Stock Purchase Agreement. Except for the agreements described in the responses to Items 3 and 4 and this Item 6, none of the Reporting Persons, nor, to the best of their knowledge, any persons listed on Schedule B hereto has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person, with respect to any securities of the Company. A copy of the each of the Contribution Agreement, the Stock Purchase Agreement, the Stockholders' Agreement, the Registration Rights Agreement, the Revolving Credit Agreement and the Revolving Promissory Note have been filed as exhibits hereto and are incorporated herein by reference. The foregoing descriptions of the Contribution Agreement in the response to Item 3, the Stock Purchase Agreement in the -13- response to Item 4 and the Stockholders' Agreement, the Registration Rights Agreement, the Revolving Credit Agreement and the Revolving Promissory Note in this response to Item 6 are qualified in their entirety by reference to such agreements. -14- ITEM 7. MATERIALS TO BE FILED AS EXHIBITS The following materials are filed as Exhibits to this Statement: Exhibit A: Contribution Agreement, dated as of October 29, 1997, among CBS Inc., Data Broadcasting Corporation and Marketwatch.com, LLC Exhibit B: Stock Purchase Agreement, dated as of March 28, 2000, among MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit C: Stockholders' Agreement, dated as of January 13, 1999, among Marketwatch.com, LLC, MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit D: Registration Rights Agreement, dated as of January 13, 1999, among MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit E: Revolving Credit Agreement, dated as of January 13, 1999, between Data Broadcasting Corporation and MarketWatch.com, Inc., together with Revolving Promissory Note, dated as of January 13, 1999, issued by MarketWatch.com, Inc. in favor of Data Broadcasting Corporation. SIGNATURE After reasonable inquiry and to the best of the knowledge and belief of each of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: April 7, 2000 Pearson plc By: /s/ Julia Casson -------------------------------------- Name: Julia Casson Title: Company Secretary Pearson Overseas Holdings Ltd. By: /s/ D.H. Colville -------------------------------------- Name: D.H. Colville Title: Director Pearson Netherlands BV By: /s/ D.H. Colville -------------------------------------- Name: D.H. Colville Title: Director Pearson AG By: /s/ Philip Hoffman -------------------------------------- Name: Philip Hoffman Title: Member Pearson Inc. By: /s/ Philip Hoffman -------------------------------------- Name: Philip Hoffman Title: Director and President -16- Pearson Longman, Inc. By: /s/ William H. Cowan -------------------------------------- Name: William H. Cowan Title: Assistant Secretary Data Broadcasting Corporation By: /s/ Steven G. Crane -------------------------------------- Name: Steven G. Crane Title: Executive Vice President and Chief Financial Officer -17-
SCHEDULE A Name of Reporting Person Address of the Principal Office - ------------------------ ------------------------------- Pearson 3 Burlington Gardens, London W1X 1LE, England Pearson Overseas 3 Burlington Gardens, London W1X 1LE, England Pearson Netherlands Media Centre, 4th Floor, Room 405, Sumatralaan 45, 1217 GP Hilversum, The Netherlands Pearson AG Chollerstrasse 37, CH-6301 Zug, Switzerland Pearson Inc. 1330 Avenue of the Americas, 7th Floor, New York, New York 10019 Pearson Longman c/o Headland Digital Media, Inc., 444 Spear Street, San Francisco, California 94105 DBC 22 Crosby Drive, Bedford, Massachusetts 01730
-18- SCHEDULE B
PEARSON PLC Name Position Principal Occupation/Business Address Lord Stevenson Chairman Director/Cloaca Maxima, 2nd Floor, 68 Pall Mall, London SW1Y SES Marjorie M. Scardino Chief Executive Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE David C. M. Bell Executive Director Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE John C. Makinson Finance Director Finance Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Lord Burns Non-Executive Director Member of House of Lords/13 North Avenue, London W13 8AP Gill M. Lewis Non-Executive Director Managing Partner/Heidrick & Struggles, 100 Picaddilly, London W1V 9FN Reuben Mark Non-Executive Director Chairman and Chief Executive Officer/Colgate-Palmolive Co, 300 Park Avenue, New York, NY 10022-7499 Vernon L. Sankey Non- Executive Director Director/67 Alma Road, Windsor, Berkshire SL4 3HD Julia M. Casson Secretary Secretary/Pearson plc, 3 Burlington Gardens, London W1X 1LE Rana Talwar Non-Executive Director Director/Standard Chartered Bank PLC, 1 Aldermanbury Square, London EC2V 7SB PEARSON OVERSEAS HOLDINGS LTD. Name Position Principal Occupation/Business Address David H. Colville Director Chartered Accountant/Pearson plc, 3 Burlington Gardens, London W1X 1LE John C. Makinson Director Finance Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Peter R. Gill Director Director, Financial Operations/Pearson plc, 3 Burlington Gardens, London W1X 1LE J.E. Gomm Secretary Secretary/Pearson plc, 3 Burlington Gardens, London W1X 1LE Marjorie M. Scardino Director Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Alan C. Miller Director Accountant/Pearson plc, 3 Burlington Gardens, London W1X 1LE
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PEARSON NETHERLANDS Name Position Principal Occupation/Business Address George F. Nicolai Director Director/MeesPierson Trust, Aert van Nesstraat 45, P.O. Box 548, 3000 AM Rotterdam Jan Francis van der Drift Director Businessman/Leeteinde 20-22, 1151 AK Broek in Waterland, Holland Matthieu van Sint Truiden Director Attorney/Nauta Dutilh, Postbus 7113, 1007 JC Amsterdam David H. Colville Director Group Tax Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE PEARSON AG Name Position Principal Occupation/Business Address Peter R. Gill Chairman Director, Financial Operations/Pearson plc, 3 Burlington Gardens, London W1X 1LE Josef Grand Vice - Chairman Certified Public Accountant, Bundtacherstrasse 35, 8127 Forch, Switzerland Martin Frey Member Attorney/Baker & McKenzie, Zollikerstrasse 225, Postfach 57, 8034 Zurich Philip J. Hoffman Member President/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019
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PEARSON INC. Name Position Principal Occupation/Business Address Philip J. Hoffman Director, President President/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019 Randall Keller Director, Executive Vice President Head of Human Resource Dept./Pearson Inc., 1330 Avenue of the - Human Resources Americas, 7th Floor, New York, NY 10019 John C. Makinson Director Finance Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Thomas Wharton Director, Vice President of Vice President of Taxation/Pearson Inc., 1330 Avenue of the Taxation, Secretary Americas, 7th Floor, New York, NY 10019 Mike Fortini Vice President Vice President of Finance/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019 Shaheda Sayed Assistant Secretary Director of Taxation/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019 Ken Lockhart Vice President of Real Estate Vice President of Real Estate/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019 Dick Koplitz Vice President of Global Vice President of Global Purchasing/Pearson Inc., 1330 Avenue Purchasing of the Americas, 7th Floor, New York, NY 10019 Susan Costomiris Controller Controller/Pearson Inc., 1330 Avenue of the Americas, 7th Floor, New York, NY 10019 PEARSON LONGMAN, INC. Name Position Principal Occupation/Business Address William Lincoln President Vice President of Operations/Pearson Television North America, 2700 Colorado Ave., Suite 450, Santa Monica, CA 90404 Mark Nieker Treasurer President/Headland Digital Media, Inc., 444 Spear Street, San Francisco, CA 94105 William Cowan Assistant Secretary Attorney/Cowan & Minetz, 180 N. LaSalle St., Suite 1922, Chicago, IL 60601
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DATA BROADCASTING CORPORATION Name Position Principal Occupation/Business Address Stephen Hill Director Chief Executive Officer/The Financial Times Group, 1 Southwark Bridge, London SE1 9HL Robert Berkley Director Executive Vice President and Chief Information Officer/Pearson Technology Centre, 200 Old Tappan Road, Old Tappan, NJ 07675 Stuart J. Clark Director, President and President and Chief Executive Officer/Data Broadcasting Corporation, Chief Executive Officer 22 Crosby Drive, Bedford, MA 01730 John Fallon Director Communications Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Dr. Donald P. Greenberg Director Professor/Cornell University, 109 Highgate Place, Ithaca, NY 14850 Alan J. Hirschfield Director Vice Chairman/J NET Enterprises, Inc., 3490 Clubhouse Drive, I-2 Wilson, WY 83014 Philip J. Hoffman Director President/Pearson Inc., 1330 Avenue of the Americas, New York, NY 10019 John C. Makinson Director Group Finance Director/Pearson plc, 3 Burlington Gardens, London W1X 1LE Carl Spielvogel Director President/Carl Spielvogel Associates, Inc., 1330 Avenue of the Americas, New York, NY 10019 Allan R. Tessler Director Chief Executive Officer/J NET Enterprises, Inc., 3490 Clubhouse Drive, I-2 Wilson, WY 83014 Steven G. Crane Executive Vice President Executive Vice President and Chief Financial Officer/Data Broadcasting and Chief Financial Officer Corporation, 498 Seventh Avenue, 19th Floor, New York, NY 10018 Andrea H. Loew Vice President, General Vice President, General Counsel and Secretary/ Data Broadcasting Counsel and Secretary Corporation, 22 Crosby Drive, Bedford, MA 01730 John King Chief Operating Officer Interactive Data Corporation/ 22 Crosby Drive, Bedford, MA 01730
-22- EXHIBIT INDEX The following materials are filed as Exhibits to this Statement: Exhibit A: Contribution Agreement, dated as of October 29, 1997, among CBS Inc., Data Broadcasting Corporation and Marketwatch.com, LLC Exhibit B: Stock Purchase Agreement, dated as of March 28, 2000, among MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit C: Stockholders' Agreement, dated as of January 13, 1999, among Marketwatch.com, LLC, MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit D: Registration Rights Agreement, dated as of January 13, 1999, among MarketWatch.com, Inc., Data Broadcasting Corporation and CBS Broadcasting Inc. Exhibit E: Revolving Credit Agreement, dated as of January 13, 1999, between Data Broadcasting Corporation and MarketWatch.com, Inc., together with Revolving Promissory Note, dated as of January 13, 1999, issued by MarketWatch.com, Inc. in favor of Data Broadcasting Corporation. -23- EX-99.1 2 EXHIBIT 99.1 Exhibit 99.1 ================================================================================ CONTRIBUTION AGREEMENT among CBS INC., DATA BROADCASTING CORPORATION and MARKETWATCH.COM, LLC Dated as of October 29, 1997 ================================================================================ TABLE OF CONTENTS Page ---- ARTICLE I Contributions SECTION 1.01. DBC Contribution; DBC Assets ................................. 1 SECTION 1.02. Assumption of Certain Liabilities ............................ 2 SECTION 1.03. Consents of Third Parties .................................... 5 SECTION 1.04. CBS Contribution ............................................. 5 ARTICLE II The Closing SECTION 2.01. The Closing .................................................. 6 SECTION 2.02. Transactions To Be Effected at the Closing ................... 6 ARTICLE III Representations and Warranties of DBC SECTION 3.01. Organization, Standing and Power ............................. 7 SECTION 3.02. Authority; Execution and Delivery; Enforceability ............ 7 SECTION 3.03. No Conflicts; Consents ....................................... 8 SECTION 3.04. Financial Statements ......................................... 8 SECTION 3.05. DBC Assets ................................................... 9 SECTION 3.06. Intellectual Property ........................................ 9 SECTION 3.07. Contracts .................................................... 11 SECTION 3.08. Personal Property ............................................ 14 SECTION 3.09. Permits ...................................................... 14 SECTION 3.10. Insurance .................................................... 15 SECTION 3.11. Sufficiency of DBC Assets .................................... 15 SECTION 3.12. Taxes ........................................................ 15 SECTION 3.13. Proceedings .................................................. 16 SECTION 3.14. Benefit Plans ................................................ 16 SECTION 3.15. Absence of Changes or Events ................................. 18 SECTION 3.16. Compliance with Applicable Laws .............................. 18 SECTION 3.17. Transactions with Affiliates ................................. 19 SECTION 3.18. Effect of Transaction ........................................ 19 SECTION 3.19. Disclosure ................................................... 19 Contents, p. 2 ARTICLE IV Representations and Warranties of CBS SECTION 4.01. Organization, Standing and Power ............................. 19 SECTION 4.02. Authority; Execution and Delivery; Enforceability ............ 20 SECTION 4.03. No Conflicts; Consents ....................................... 20 ARTICLE V Covenants SECTION 5.01. Reasonable Best Efforts ...................................... 21 SECTION 5.02. Expenses; Transfer Taxes ..................................... 21 SECTION 5.03. Post-Closing Cooperation ..................................... 21 SECTION 5.04. Further Assurances ........................................... 22 SECTION 5.05. Year 2000 Compliance ......................................... 22 ARTICLE VI Indemnification SECTION 6.01. Indemnification by DBC ....................................... 23 SECTION 6.02. Indemnification by CBS ....................................... 23 SECTION 6.03. Calculation of Losses ........................................ 24 SECTION 6.04. Termination of Indemnification ............................... 24 SECTION 6.05. Procedures ................................................... 24 SECTION 6.06. Survival of Representations .................................. 27 ARTICLE VII General Provisions SECTION 7.01. Assignment ................................................... 27 SECTION 7.02. No Third-Party Beneficiaries ................................. 27 SECTION 7.03. Attorney Fees ................................................ 27 SECTION 7.04. Notices ...................................................... 27 SECTION 7.05. Interpretation; Exhibits and Schedules; Certain Definitions .. 29 SECTION 7.06. Counterparts ................................................. 29 SECTION 7.07. Entire Agreement ............................................. 30 SECTION 7.08. Severability ................................................. 30 SECTION 7.09. Amendments and Waivers ....................................... 30 SECTION 7.10. Consent to Jurisdiction ...................................... 30 SECTION 7.11. Governing Law ................................................ 31 CONTRIBUTION AGREEMENT (this "Agreement") dated as of October 29, 1997, among CBS INC., a New York corporation ("CBS"), DATA BROADCASTING CORPORATION, a Delaware corporation ("DBC"), and MARKETWATCH.COM, LLC, a Delaware limited liability company (the "Company"). WHEREAS, immediately prior to the execution and delivery of this Agreement, CBS and DBC entered into the Limited Liability Company Agreement of Marketwatch.Com, LLC dated as of the date hereof, in the form attached as Exhibit A hereto (the "LLC Agreement"); WHEREAS, simultaneously herewith, CBS and the Company are entering into the License Agreement, in the form attached as Exhibit B hereto (the "License Agreement") and DBC and the Company are entering into the Services Agreement, in the form attached as Exhibit C hereto (the "DBC Services Agreement"); and WHEREAS, in connection with the execution and delivery of the LLC Agreement, the License Agreement and the DBC Services Agreement and the formation of the Company, each of CBS and DBC desires to receive certain representations and warranties from the other and each of them desires to receive certain agreements from the other. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms hereof applicable to each of them, hereby agree as follows: ARTICLE I Contributions SECTION 1.01. DBC Contribution; DBC Assets. (a) On the terms and subject to the conditions of this Agreement, DBC hereby sells, assigns, transfers, conveys and delivers or is causing one or more of its subsidiaries to sell, assign, transfer, convey and deliver to the Company, and the Company hereby acquires from DBC, or such subsidiary, effective as of the date hereof, all the right, title and interest of the DBC Companies (as defined below) in, to and under the DBC Assets (as defined below), and 2 agrees to make the cash payments to the Company required pursuant to Section 1.01(b), in exchange for (i) a 50% membership interest in the Company (the "DBC Interest") and (ii) the assumption of the Assumed DBC Liabilities (as defined in Section 1.02). The contribution and acquisition of the DBC Assets, the making of the cash payments pursuant to Section 1.01(b) and the assumption of the Assumed DBC Liabilities is referred to in this Agreement as the "DBC Contribution". The term "Business" means the businesses conducted by DBC and its subsidiaries and known as DBC News and DBC On-Line, including, but not limited to, the "Financial Markets", "Mutual Fund Center", "Trading Center", "Stock Chat" and "MarketWatch" portions of the Internet website owned by DBC and known as dbc.com. The term "DBC Companies" means DBC and any of its subsidiaries that engage in the operation of the Business or own, lease or license any DBC Assets. The term "DBC Assets" means the business, properties, assets, goodwill and rights of any of the DBC Companies, of whatever kind and nature, real or personal, tangible or intangible, that are owned, leased or licensed by any of the DBC Companies and are set forth on Schedule 1.01. (b) On the terms and subject to the conditions of this Agreement, DBC hereby agrees to pay to the Company by wire transfer of immediately available funds, to an account specified by the Company in writing, $1,000,000 on each of the date hereof and the first anniversary of the date hereof. SECTION 1.02. Assumption of Certain Liabilities. (a) On the terms and subject to the conditions of this Agreement, the Company hereby assumes, effective as of the date hereof, and from and after the date hereof the Company agrees to pay, perform and discharge when due, any liability, obligation or commitment of the DBC Companies under the contracts, leases, licenses, indentures, agreements, Commitments and other legally binding arrangements, whether oral or written ("Contracts"), listed on Schedule 1.02 (the "DBC Contracts"), to the extent such liability, obligation or commitment relates to the period from and after the date hereof (the "Assumed DBC Liabilities"), other than any Excluded DBC Liabilities. (b) Notwithstanding Section 1.02(a), or any other provision of this Agreement or any of the other agreements and instruments executed and delivered in connection herewith and the transactions contemplated hereby, including, but not limited to, the License Agreement and the DBC Services Agreement (the "Ancillary Agreements"), and regardless of any disclosure to CBS or the Company, the 3 Company shall not assume any Excluded DBC Liability, each of which shall be retained and paid, performed and discharged when due by one of the DBC Companies. The term "Excluded DBC Liability" means: (i) any liability, obligation or commitment of any of the DBC Companies not specifically assumed pursuant to Section 1.02(a); (ii) any liability, obligation or commitment of any of the DBC Companies, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by any of the DBC Companies or any of their respective affiliates of any business other than the Business, and any liability, obligation or commitment of any subsidiary of DBC that is not a DBC Company, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown; (iii) any liability, obligation or commitment of any of the DBC Companies (A) arising out of any actual or alleged breach by any of the DBC Companies of, or nonperformance by any of the DBC Companies under, any Contract (including any DBC Contract) prior to the date hereof or (B) accruing under any DBC Contract with respect to any period prior to the date hereof; (iv) any liability, obligation or commitment of any of the DBC Companies arising out of (A) any suit, action or proceeding ("Proceeding") pending or, to the knowledge of any of the DBC Companies, threatened as of the date hereof or (B) any actual or alleged violation by any of the DBC Companies or any of their respective affiliates of any Applicable Law (as defined in Section 3.03) prior to the date hereof; (v) any account payable or accrued liability of any of the DBC Companies; (vi) any liability, obligation or commitment for Taxes (as defined in Section 3.12), whether or not accrued, assessed or currently due and payable, (A) of any of the DBC Companies or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the date hereof (for purposes of this clause (vii), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the DBC Assets for a Tax period that includes (but does not end on) the date hereof 4 shall be apportioned between DBC and the Company based upon the number of days of such period included in the Tax period prior to the date hereof and the number of days of such Tax period after the date hereof (which period shall include the date hereof)); (vii) except as provided in Section 5.02 (b), any liability, obligation or commitment for transfer, documentary, sales, use, registration, value-added and other similar Taxes and related amounts (including any penalties, interest and additions to Tax) incurred in connection with this Agreement, the Ancillary Agreements, the DBC Contribution and the other transactions contemplated hereby and thereby ("Transfer Taxes"); (viii) any liability, obligation or commitment of any of the DBC Companies arising under any DBC Benefit Plan (as defined in Section 3.14(a)); (ix) any liability, obligation or commitment of any of the DBC Companies that relates to, or that arises out of, products or services shipped or sold by or on behalf of any of the DBC Companies on or prior to the date hereof (including claims of negligence, personal injury, product damage, product liability, product warranties, promotional obligations, strict liability, product recall or any other claims (including workers compensation, employer's liability or otherwise)), whether such liability, obligation or commitment relates to or arises out of accidents, injuries or losses occurring on or prior to or after the date hereof; (x) any liability, obligation or commitment of any of the DBC Companies that relates to, or that arises out of, the employment or the termination of the employment with any of the DBC Companies of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement); and (xi) any liability, obligation or commitment of any of the DBC Companies to any of their respective affiliates. (c) The Company shall acquire the DBC Assets free and clear of all liabilities, obligations and commitments of any of the DBC Companies, other than the Assumed DBC Liabilities, and free and clear of all Liens (as defined in 5 Section 3.05), other than Permitted Liens (as defined in Section 3.05). SECTION 1.03. Consent of Third Parties. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any asset or any claim or right or any benefit arising under or resulting from such asset if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, or would in any way adversely affect the rights of any of the DBC Companies or, upon transfer, the Company under such asset. If any transfer or assignment by any of the DBC Companies to, or any assumption by the Company of, any interest in, or liability, obligation or commitment under, any asset requires the consent of a third party, then such assignment or assumption shall be made subject to such consent being obtained. To the extent any DBC Contract may not be assigned to the Company by reason of the absence of any such consent, the Company shall not be required to assume any Assumed DBC Liabilities arising under such DBC Contract. (b) In connection with those consents that have not been obtained as of the date hereof, DBC and the Company hereby agree that, until any such required consent is obtained, DBC, or one or more of its subsidiaries, as appropriate, shall, with the reasonable and necessary cooperation of the Company, and at the Company's direction, continue to fulfill any and all obligations and commitments, and enforce any and all rights, of the DBC Companies in connection with any asset, claim or right that constitutes a DBC Asset but for which any required consent has not been obtained, and that the Company shall be entitled to all of the economic claims, rights and benefits under such asset, claim or right and DBC shall pay or cause to be paid to the Company all such economic benefits as promptly as practicable following receipt by DBC or any of its subsidiaries. To the extent, and only to the extent, a required consent is received to the transfer of any asset, claim or right, the Company shall be responsible for the Assumed DBC Liabilities, if any, arising under such asset, claim or right. SECTION 1.04. CBS Contribution. On the terms and subject to the conditions of this Agreement, CBS will contribute to the Company, over a period of five years and on the terms set forth in Exhibit D, advertising time with an aggregate rate card value of $50 million calculated in 6 accordance with the terms set forth in Exhibit D (the "CBS Contribution" and, together with the DBC Contribution, the "Contributions"), which contribution is deemed to have a discounted present value equal to the discounted present value of the DBC Contribution, in exchange for a 50% membership interest in the Company (the "CBS Interest"). ARTICLE II The Closing SECTION 2.01. The Closing. The closing of the Contributions (the "Closing") is taking place at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York 10019, on the date hereof. SECTION 2.02. Transactions To Be Effected at the Closing. At the Closing: (a) DBC is delivering (i) appropriately executed copies of this Agreement and each Ancillary Agreement to which it is specified to be a party, (ii) such appropriately executed bills of sale, assignments and other instruments of transfer relating to the DBC Assets in form and substance reasonably satisfactory to CBS and the Company and (iii) such other documents as CBS or the Company have reasonably requested to demonstrate compliance with the terms and provisions of this Agreement; (b) CBS is delivering (i) appropriately executed copies of this Agreement and each Ancillary Agreement to which it is specified to be a party, and (ii) such other documents as DBC or the Company have reasonably requested to demonstrate compliance with the terms and provisions of this Agreement; and (c) the Company is delivering (i) appropriately executed copies of this Agreement and each Ancillary Agreement to which it is specified to be a party, (ii) such appropriately executed assumption agreements and other instruments of assumption providing for the assumption of the Assumed DBC Liabilities in form and substance reasonably satisfactory to CBS and DBC and (iii) such other documents as CBS or DBC have reasonably requested to demonstrate compliance with the terms and provisions of this Agreement. 7 ARTICLE III Representations and Warranties of DBC DBC hereby represents and warrants to CBS and the Company, as of the date of this Agreement, as follows: SECTION 3.01. Organization, Standing and Power. Each of the DBC Companies is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has full corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct the Business and its other businesses as presently conducted, other than such franchises, licenses, permits, authorizations and approvals the lack of which, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect (i) on the business, assets, condition (financial or otherwise) or results of operations or prospects of DBC and its subsidiaries, taken as a whole, or of the Business, (ii) on the ability of DBC to perform its obligations under this Agreement and the Ancillary Agreements or (iii) on the ability of the DBC Companies to consummate the DBC Contribution and the other transactions contemplated hereby and thereby (a "DBC Material Adverse Effect"). Each of the DBC Companies is duly qualified to do business as a foreign corporation in each jurisdiction where the character of the DBC Assets held by it or the nature of the Business make such qualification necessary for it to conduct the Business as currently conducted by it or the failure to so qualify has had or could reasonably be expected to have a DBC Material Adverse Effect. DBC has delivered to the Company true and complete copies of the certificate of incorporation and by-laws of each of the DBC Companies, in each case as amended through the date of this Agreement. SECTION 3.02. Authority; Execution and Delivery; Enforceability. DBC has full power and authority to execute this Agreement and the Ancillary Agreements to which it is a party. Each of the DBC Companies has full power and authority to consummate the DBC Contribution and the other transactions contemplated hereby and thereby. The execution and delivery by DBC of this Agreement and the Ancillary Agreements to which it is a party and the consummation by the DBC Companies of the DBC Contribution and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action. DBC has duly executed and delivered this Agreement and each Ancillary 8 Agreement to which it is a party, and this Agreement, and each Ancillary Agreement to which it is a party, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally or equitable principles relating to or limiting creditors' rights generally. SECTION 3.03. No Conflicts; Consents. The execution and delivery by DBC of this Agreement and each Ancillary Agreement to which it is a party and the consummation of the DBC Contribution and the other transactions contemplated hereby and thereby and compliance by DBC with the terms hereof and thereof do not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of DBC or any of its subsidiaries under, any provision of (i) the certificate of incorporation or by-laws of DBC or any of its subsidiaries, (ii) any Contract to which DBC or any of its subsidiaries is a party or by which any of their respective properties or assets is bound or (iii) any judgment, order or decree ("Judgment") or statute, law, ordinance, rule or regulation ("Applicable Law") applicable to DBC or any of its subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be expected to have a DBC Material Adverse Effect. No consent, approval, license, permit, order or authorization ("Consent") of, or registration, declaration or filing with, any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity"), is required to be obtained or made by or with respect to DBC or any of its subsidiaries in connection with (A) the execution, delivery and performance of this Agreement or any Ancillary Agreement or the consummation of the DBC Contribution or the other transactions contemplated hereby and thereby or (B) the conduct by the Company of the Business following the Closing as conducted on the date hereof. SECTION 3.04. Financial Statements. (a) Schedule 3.04 sets forth for the Business (i) a Statement of Assets as of June 30, 1997 (the "Year End Balance Sheet"), (ii) a Statement of Assets as of September 30, 1997 (the "First Quarter Balance Sheet"), (iii) an Income Statement 9 for the twelve months ended June 30, 1997 (the "Full Year Income Statement"), and (iv) an Income Statement for the three months ended September 30, 1997 (the "First Quarter Income Statement"). The Year End Balance Sheet and the Full Year Income Statement were derived from the audited consolidated financial statements of DBC and its subsidiaries for the year ended June 30, 1997, as audited and opined upon by Price Waterhouse LLP in their report dated August 8, 1997. The term "Financial Statements" shall mean the Year End Balance Sheet, the First Quarter Balance Sheet, the Full Year Income Statement and the First Quarter Income Statement. The Financial Statements have been prepared from the books and records of DBC and its subsidiaries relating to the Business and fairly present the financial condition and results of operations of the Business as of the respective dates and for the respective periods indicated. (b) The Business does not have any material liabilities or obligations of any nature (whether accrued, absolute, contingent, unasserted or otherwise), except for items set forth in Schedule 3.04(b). SECTION 3.05. DBC Assets. One of the DBC Companies has good and valid title to all the DBC Assets, in each case free and clear of all mortgages, liens, security interests, charges, easements, leases, subleases, covenants, rights of way, options, claims, restrictions or encumbrances of any kind (collectively, "Liens"), except (i) such as are set forth in Schedule 3.05 (all of which shall be discharged prior to the Closing), (ii) mechanics', carriers', workmen's, repairmen's or other like Liens arising or incurred in the ordinary course of business, Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business and liens for Taxes that are not due and payable or that may thereafter be paid without penalty, and (iii) other imperfections of title or encumbrances, if any, that do not, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the conduct of the Business as presently conducted (the Liens described in clauses (ii) and (iii) above are referred to collectively as "Permitted Liens"). SECTION 3.06. Intellectual Property. (a) Schedule 3.06 sets forth a true and complete list of all patents (including all reissues, divisions, continuations and extensions thereof), patent applications, patent rights, trademarks, trademark registrations, trademark applications, servicemarks, trade names, business 10 names, brand names, domain names, copyrights, copyright registrations and renewals, designs, design registrations, software (together with all related source code(s)) and all rights to any of the foregoing ("Intellectual Property") owned, used, filed by or licensed to any of the DBC Companies and used, held for use or intended to be used in the operation or conduct of the Business, other than unregistered designs and copyrights that, individually and in the aggregate, are not material to the conduct of the Business as presently conducted. With respect to all Intellectual Property constituting DBC Assets ("Contributed Intellectual Property") that is registered or subject to an application for registration, Schedule 3.06 sets forth a list of all jurisdictions in which such Contributed Intellectual Property is registered or registrations applied for and all registration and application numbers. Except as set forth in Schedule 3.06 (i) all the Contributed Intellectual Property has been duly registered in, filed in or issued by the appropriate Governmental Entity where such registration, filing or issuance is necessary or appropriate for the conduct of the Business as presently conducted, (ii) one or more of the DBC Companies is the sole and exclusive owner of, and DBC has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without payment to any other person, all the Contributed Intellectual Property and the consummation of the DBC Contribution and the other transactions contemplated hereby does not and will not conflict with, alter or impair any such rights, and (iii) during the past three years, none of the DBC Companies has received any written or oral communication from any person asserting any ownership interest in any Contributed Intellectual Property. (b) None of the DBC Companies has granted any license of any kind relating to any trade secrets, confidential information, inventions, know-how, formulae, processes, procedures, research records, records of inventions, test information, market surveys, subscriber lists and marketing know-how of DBC constituting DBC Assets (the "Technology"), or to any Contributed Intellectual Property or the marketing or distribution thereof, except nonexclusive licenses to end-users in the ordinary course of business. None of the DBC Companies is bound by or a party to any option, license or agreement of any kind relating to the Intellectual Property of any other person for the use of such Intellectual Property in the conduct of the Business, except as set forth in Schedule 3.06 and except for so-called "shrink-wrap" license agreements relating to computer software licensed in the ordinary course of the Business. The conduct of the Business as presently conducted does not 11 violate, conflict with or infringe the Intellectual Property of any other person. Except as set forth in Schedule 3.06, (i) no claims are pending or, to the knowledge of DBC, threatened, as of the date of this Agreement against any of the DBC Companies by any person with respect to the ownership, validity, enforceability, effectiveness or use in the Business of any Intellectual Property and (ii) during the past three years DBC and its affiliates have not received any written or oral communication alleging that DBC or any of its affiliates has in the conduct of the Business violated any rights relating to Intellectual Property of any person. (c) All material Technology has been maintained in confidence in accordance with protection procedures customarily used in the industry to protect rights of like importance. All former and current members of management and key personnel of DBC or any of its affiliates, including all former and current employees, agents, consultants and independent contractors who have contributed to or participated in the conception and development of material Technology (collectively, "Personnel") either (i) have been party to a "work-for-hire" arrangement or agreement with any of the DBC Companies, in accordance with all Applicable Laws, that has accorded any of the DBC Companies full, effective, exclusive and original ownership of all tangible and intangible property thereby arising or (ii) have executed appropriate instruments of assignment in favor of one of the DBC Companies as assignee that have conveyed to one of the DBC Companies full, effective and exclusive ownership of all tangible and intangible property thereby arising. No former or current Personnel have any claim against any of the DBC Companies in connection with such person's involvement In the conception and development of any Technology and no such claim has been asserted or is threatened. None of the current officers and employees of any of the DBC Companies has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by any of the DBC Companies in the furtherance of the Business, which patents or applications have not been assigned to one of the DBC Companies, with such assignment duly recorded in the United States Patent and Trademark Office. (d) All Contributed Intellectual Property, as applicable, is free of any "bugs" or "viruses" that could materially interfere with the Company's use of such Intellectual Property. SECTION 3.07. Contracts. (a) Except as set forth in Schedule 3.07, and except for Contracts relating 12 solely to assets that do not constitute DBC Assets, no DBC Company is a party to or bound by any Contract that is used, held for use or intended for use in, or that arises out of, the operation or conduct of the Business and that is: (i) an employment agreement or employment Contract; (ii) a collective bargaining agreement or other Contract with any labor organization, union or association; (iii) a covenant not to compete or other covenant of any of the DBC Companies restricting the development, manufacture, marketing or distribution of the products and services of the Business; (iv) a Contract with (A) any shareholder or affiliate of DBC or (B) any current or former officer, director or employee of DBC or any of its affiliates; (v) a lease, sublease or similar Contract with any person under which (A) any of the DBC Companies is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person or (B) any of the DBC Companies is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by any of the DBC Companies, in any such case has an aggregate future liability or receivable, as the case may be, in excess of $5,000; (vi) (A) a continuing Contract for the future purchase of materials, supplies or equipment, (B) a management, service, consulting or other similar Contract or (C) an advertising agreement or arrangement, in any such case that has an aggregate future liability to any person in excess of $5,000; (vii) a material license, option or other Contract relating in whole or in part to the Contributed Intellectual Property (including any license or other Contract under which any of the DBC Companies is licensee or licensor of any Contributed Intellectual Property) or to any Technology; (viii) (A) a Contract under which any of the DBC Companies has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any person or (B) any other note, bond, debenture or other evidence of indebtedness issued to any person; 13 (ix) a Contract (including any so-called take-or-pay or keepwell agreement) under which (A) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of any of the DBC Companies or (B) or any of the DBC Companies has directly or indirectly guaranteed indebtedness, liabilities or obligations of any other person (in each case other than endorsements for the purpose of collection in the ordinary course of business); (x) a Contract under which any of the DBC companies has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than extensions of trade credit in the ordinary course of the Business); (xi) a Contract granting a Lien upon any DBC Asset; (xii) a Contract providing for indemnification of any person with respect to material liabilities relating to any current or former business of DBC or any predecessor person; (xiii) a Contract not made in the ordinary course of the Business; (xiv) a confidentiality agreement; (xv) a Contract for the sale of any DBC Asset or the grant of any preferential rights to purchase any DBC Asset or requiring the consent of any party to the transfer thereof; (xvi) a Contract for any joint venture, partnership or similar arrangement; (xvii) other Contract that has an aggregate future liability to any person in excess of $5,000 and is not terminable by one of the DBC Companies by notice of riot more than 60 days for a cost of less than $5,000; or (xviii) a Contract other than as set forth above to which any of the DBC Companies is a party or by which it or any of its assets or businesses is bound or subject that is material to the Business or the use or operation of the DBC Assets. (b) Except as set forth in Schedule 3.07, all DBC Contracts are valid, binding and in full force and effect and are enforceable by the applicable DBC Companies in 14 accordance with their terms except as enforcement may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally or equitable principles relating to or limiting creditors' rights generally. Except as set forth in Schedule 3.07, the applicable DBC Companies have performed all material obligations required to be performed by them to date under the DBC Contracts, and they are not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the knowledge of DBC, no other party to any DBC Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. No DBC Company has, except as disclosed in the applicable Schedule, received any notice of the intention of any party to terminate any DBC Contract. Complete and correct copies of all Contracts listed in the Schedules, together with all modifications and amendments thereto, have been delivered to CBS and the Company. (c) Schedule 3.07 sets forth each DBC Contract with respect to which the Consent of the other party or parties thereto is required by virtue of the execution and delivery of this Agreement or the consummation of the DBC Contribution to avoid the invalidity of the transfer of such Contract, the termination thereof, a breach, violation or default thereunder or any other change or modification to the terms thereof, each of which has been or will be obtained. SECTION 3.08. Personal Property. Each material item of tangible personal property and interests therein, including all machinery, equipment, furniture and vehicles, of any of the DBC Companies that constitute DBC Assets (the "Personal Property") is in good working order (ordinary wear and tear excepted), is free from any material defect and has been maintained in all material respects in accordance with the past practice of the Business and generally accepted industry practice, and no repairs, replacements or regularly scheduled maintenance relating to any such item has been deferred. All leased personal property of the Business is in all respects in the condition required of such property by the terms of the lease applicable thereto. SECTION 3.09. Permits. (a) Schedule 3.09 sets forth all material certificates, licenses, permits, authorizations and approvals ("Permits") issued or granted to any of the DBC Companies by Governmental Entities that are necessary or desirable for the conduct of the Business. Except as set forth in Schedule 3.09, (i) all such Permits are validly held by one of the DBC Companies, and the applicable DBC Companies have complied in all material 15 respects with all terms and conditions thereof, (ii) during the past three years, no DBC Company has received notice of any Proceedings relating to the revocation or modification of any such Permits the loss of which, individually or in the aggregate, has had or could reasonably be expected to have a DBC Material Adverse Effect, and (iii) none of such Permits will be subject to suspension, modification, revocation or nonrenewal as a result of the execution and delivery of this Agreement or the consummation of the DBC Contribution. (b) The applicable DBC Companies possess all material Permits to own or hold under lease and operate the DBC Assets and to conduct the Business as currently conducted. SECTION 3.10. Insurance. The DBC Companies maintain policies of fire and casualty, liability and other forms of insurance with respect to the Business in such amounts, with such deductibles and against such risks and losses as are, in DBC's judgment, reasonable for the Business. The material insurance policies maintained by the DBC Companies with respect to the Business are listed in Schedule 3.10. All such policies are in full force and effect, all premiums due and payable thereon have been paid, and no notice of cancelation or termination has been received with respect to any such policy which has not been replaced on substantially similar terms prior to the date of such cancelation. To the knowledge of DBC, the Business has been conducted in a manner so as to conform in all material respects to all applicable provisions of such insurance policies. SECTION 3.11. Sufficiency of DBC Assets. The DBC Assets, together with the services to be provided by DBC under the DBC Services Agreement, are sufficient for the conduct of the Business immediately following the Closing in the same manner as currently conducted. There are not ally assets used, held for use or intended to be used in the operation or conduct of the Business that do not constitute DBC Assets or which are not to be made available to the Company pursuant to the DBC Services Agreement. SECTION 3.12. Taxes. (a) For purposes of this Agreement: "Tax" means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including any tax imposed under Subtitle A of the Code and any net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, value added, 16 transfer, franchise, profits, license, withholding tax on amounts paid, payroll, employment, excise, severance, stamp, capital stock, occupation, property, environmental or windfall profit tax, premium, custom, duty or other tax), together with any interest, penalty, addition to tax or additional amount due, imposed by any Governmental Entity (domestic or foreign) responsible for the imposition of any such tax (a "Taxing Authority"), (ii) any liability for the payment of any amount of the type described in clause (i) above as a result of a party to this Agreement being a member of an affiliated, consolidated or combined group with any other corporation at any time on or prior to the date hereof and (iii) any liability of any person with respect to the payment of any amounts of the type described in clause (i) or (ii) above as a result of any express or implied obligation of such person to indemnify any other person. "Code" means the Internal Revenue Code of 1986, as amended. (b) Except as set forth in Schedule 3.12, (i) DBC, and any affiliated group, within the meaning of Section 1504 of the Code, of which any of the DBC Companies is or has been a member, has filed or caused to be filed in a timely manner (within any applicable extension periods) all material Tax returns, reports and forms required to be filed by the Code or by applicable state, local or foreign Tax laws, (ii) all Taxes shown to be due on such returns, reports and forms have been timely paid in full, or will be timely paid in full, by the due date thereof, and (iii) no material Tax Liens have been filed and no material claims are being asserted in writing with respect to any Taxes. (c) Except as set forth in Schedule 3.12, (i) neither DBC nor any of its affiliates has made with respect to DBC, or any assets of the Business, any consent under Section 341 of the Code, (ii) none of the DBC Assets is "tax exempt use property" within the meaning of Section 168(h) of the Code, and (iii) none of the DBC Assets is a lease made pursuant to Section 168(f) (8) of the Internal Revenue Code of 1954. (d) None of the DBC Companies is a "foreign person" within the meaning of Section 1445 of the Code. SECTION 3.13. Proceedings. Schedule 3.13 sets forth a list of all pending Proceedings or claims with respect to which any of the DBC Companies has been contacted in writing by counsel for the plaintiff or claimant, arising out of the conduct of the Business or against or affecting 17 any DBC Asset and that (a) relate to or involve more than $5,000, (b) seek any material injunctive relief or (c) may give rise to any legal restraint on or prohibition against the transactions contemplated by this Agreement. Except as set forth in Schedule 3.13, none of the Proceedings or claims listed in Schedule 3.13 as to which there is at least a reasonable possibility of adverse determination would have, if so determined, individually or in the aggregate, a DBC Material Adverse Effect. Except as set forth in Schedule 3.13, to the knowledge of DBC, there are no unasserted claims of the type that would be required to be disclosed in Schedule 3.13 if counsel for the claimant had contacted DBC that if asserted would have at least a reasonable possibility of an adverse determination. Except as set forth in Schedule 3.13, no DBC Company is a party or subject to or in default under any material Judgment applicable to the conduct of the Business or any DBC Asset or Assumed DBC Liability. Except as set forth in Schedule 3.13, there is not any Proceeding or claim by any of the DBC Companies pending, or which any of the DBC Companies intends to initiate, against any other Person arising out of the conduct of the Business. Except as set forth in Schedule 3.13, to the knowledge of DBC, there is no pending or threatened investigation of or affecting the conduct of the Business or any DBC Asset or Assumed DBC Liability. SECTION 3.14. Benefit Plans. (a) Schedule 3.14 contains a list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or contributed to by any of the DBC Companies for the benefit of any officers or employees of the Business ("DBC Pension Plans") and all "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), bonus, stock option, stock purchase, deterred compensation plans or arrangements and other employee fringe benefit plans maintained, or contributed to, by any of the DBC Companies for the benefit of any officers or employees of the Business (all the foregoing, including DBC Pension Plans, being herein called "DBC Benefit Plans"). DBC has made available to the Company true, complete and correct copies of (i) each DBC Benefit Plan (or, in the case of any unwritten DBC Benefit Plans, descriptions thereof), (ii) the two most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the Internal Revenue Service with respect to each DBC Benefit Plan (if any such report was required), (iii) the most recent summary plan description for each DBC Benefit Plan for which such a summary plan description is required and (iv) each trust 18 agreement, group annuity contract or other funding and financing arrangement relating to any DBC Benefit Plan. (b) Each DBC Benefit Plan has been administered in all material respects in accordance with its terms. The applicable DBC Companies and all the DBC Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code, all other Applicable Laws and all applicable collective bargaining agreements. Except as set forth in Schedule 3.14, all material reports, returns and similar documents with respect to the DBC Benefit Plans required to be filed with any Governmental Entity or distributed to any DBC Benefit Plan participant have been duly and timely filed or distributed. Except as set forth in Schedule 3.14, there are no Proceedings pending or, to the knowledge of DBC, threatened against or involving any DBC Benefit Plan and there are no investigations by any Governmental Entity or other claims (except routine claims for benefits payable in the normal operation of the DBC Benefit Plans) pending or, to the knowledge of DBC, threatened against or involving any DBC Benefit Plan or asserting any rights to benefits under any DBC Benefit Plan. (c) Except as set forth in Schedule 3.14, no employee or former employee of the Business will become entitled to any bonus, retirement, severance, job security or similar benefit or any enhanced benefit solely as a result of the transactions contemplated hereby. SECTION 3.15. Absence of Changes or Events. Except as set forth in Schedule 3.15, since the date of the First Quarter Balance Sheet, there has not been any material adverse change in the business, assets, condition (financial or otherwise), results of operations or prospects of the Business, taken as a whole. Except as set forth in Schedule 3.15, since the date of the First Quarter Balance Sheet, DBC has caused the Business to be conducted in the ordinary course and in substantially the same manner as previously conducted and has made all reasonable efforts consistent with past practices to preserve the relationships of the Business with customers, suppliers and others with whom the Business deals. SECTION 3.16. Compliance with Applicable Laws. Except as set forth in Schedule 3.16, the Business is in compliance in all material respects with all Applicable Laws, including those relating to occupational health and safety. Except as set forth in Schedule 3.16, no DBC Company has received any written or oral communication during the past three years from a Governmental Entity that alleges that the Business is not in compliance in any 19 material respect with any Applicable Laws. No DBC Company has received any written notice that any investigation or review by any Governmental Entity with respect to any DBC Asset or the Business is pending or that any such investigation or review is contemplated. This Section 3.16 does not relate to matters with respect to Taxes, which are the subject of Section 3.12. SECTION 3.17. Transactions with Affiliates. Except as set forth in Schedule 3.17, none of the Contracts set forth in Schedule 3.07 between the Business, on the one hand, and DBC or any of its affiliates, on the other hand, will continue in effect subsequent to the Closing. SECTION 3.18. Effect of Transaction. Except as set forth in Schedule 3.18, no creditor, employee, client, customer or other person having a material business relationship with the Business has informed any of the DBC Companies that such person intends to change such relationship because of the contribution of the Business or the consummation of any other transaction contemplated hereby. SECTION 3.19. Disclosure. No representation or warranty of DBC contained in this Agreement or in any Ancillary Agreement, and no statement contained in any document, certificate or Schedule furnished or to be furnished by or on behalf of DBC to CBS or the Company or any of their representatives pursuant to this Agreement, contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading or necessary in order to fully and fairly provide the information required to be provided in any such document, certificate or Schedule. ARTICLE IV Representations and Warranties of CBS CBS hereby represents and warrants to DBC and the Company, as of the date of this Agreement, as follows: SECTION 4.01. Organization, Standing and Power. CBS is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has full corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, lease or 20 otherwise hold its properties and assets and to conduct its businesses as presently conducted, other than such franchises, licenses, permits, authorizations and approvals, the lack of which, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on the ability of CBS to perform its obligations under this Agreement and the Ancillary Agreements to which it is a party or to consummate the CBS Contribution and the other transactions contemplated hereby and thereby (a "CBS Material Adverse Effect"). SECTION 4.02. Authority; Execution and Delivery; Enforceability. CBS has full power and authority to execute this Agreement and the Ancillary Agreements to which it is a party and to consummate the CBS Contribution and the other transactions contemplated hereby and thereby. The execution and delivery by CBS of this Agreement and the Ancillary Agreements to which it is a party and the consummation by it of the CBS Contribution and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action. CBS has duly executed and delivered this Agreement and each Ancillary Agreement to which it is a party, and this Agreement and each Ancillary Agreement to which it is a party constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally or equitable principles relating to or limiting creditors' rights generally. SECTION 4.03. No Conflicts; Consents. The execution and delivery by CBS of this Agreement and each Ancillary Agreement to which it is a party and the consummation of the CBS Contribution and the other transactions contemplated hereby and thereby and compliance by CBS with the terms hereof and thereof do not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to loss of a material benefit under or result in the creation of any Lien upon any of the properties or assets of CBS or any of its subsidiaries under, any provision of (i) the certificate of incorporation or by-laws of CBS or any of its subsidiaries, (ii) any Contract to which CBS or any of its subsidiaries is a party or by which any of their respective properties or assets is bound or (iii) any Judgment or Applicable Law applicable to CBS or any of its subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be 21 expected to have a CBS Material Adverse Effect. No Consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to CBS or any of its subsidiaries in connection with (A) the execution, delivery and performance of this Agreement or any Ancillary Agreement or the consummation of the CBS Contribution or the other transactions contemplated hereby and thereby or (B) the conduct by the Company of the Business following the Closing as conducted on the date hereof. ARTICLE V Covenants SECTION 5.01. Reasonable Best Efforts. (a) Each party shall, and shall cause its affiliates to, use its reasonable best efforts (at its own expense) to obtain, and to cooperate in obtaining, all consents from third parties necessary or appropriate to permit the Contributions to be completed. SECTION 5.02. Expenses; Transfer Taxes. (a) Except as set forth in Section 5.02(b) below and in Sections 5.03 and 7.03, all costs and expenses incurred in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such expense, including all costs and expenses incurred pursuant to Sections 1.04 and 5.01. (b) The Company shall be responsible for and shall pay, as and when incurred, all Transfer Taxes, documentary Taxes and filing or recording fees applicable to the Contributions up to a maximum aggregate amount of $50,000; to the extent that the aggregate amount of such Taxes and fees exceeds $50,000, the party incurring such Tax or fee shall be responsible for its payment. Each party shall use reasonable efforts to avail itself of any available exemptions from any such Taxes or fees, and to cooperate with the other parties in providing any information and documentation that may be necessary to obtain such exemptions. SECTION 5.03. Post-Closing Cooperation. (a) CBS, DBC and the Company shall cooperate with each other, and shall cause their respective officers, employees, agents, auditors and representatives to cooperate with each other, after the Closing to ensure the orderly transition of the Business from DBC to the Company and to minimize any 22 disruption to the Business that might result from the transactions contemplated hereby. After the Closing, upon reasonable written notice, CBS, DBC and the Company shall furnish or cause to be furnished to each other and to their respective employees, counsel, auditors and representatives access, during normal business hours, to such information and assistance relating to the Business (to the extent within the control of such party) as is reasonably necessary for financial reporting and accounting matters. (b) After the Closing, upon reasonable written notice, CBS, DBC and the Company shall furnish or cause to be furnished to each other, as promptly as practicable, such information and assistance relating to the DBC Assets (including, access to books and records) and the Contributions, to the extent within the control of such party, as is reasonably necessary for the filing of all Tax returns, and making of any election related to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any claim, suit or proceeding related to any Tax return. CBS, DBC and the Company shall cooperate with each other party in the conduct of any audit or other proceeding relating to Taxes involving the Business. (c) Each party shall reimburse the others for reasonable out-of-pocket costs and expenses incurred in assisting such party pursuant to this Section 5.03. No party shall be required by this Section 5.03 to take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations. SECTION 5.04. Further Assurances. From time to time, as and when requested by any party, each party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions (subject to Section 5.01), as such other party may reasonably deem necessary or desirable to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, including, in the case of CBS and DBC, executing and delivering to the Company such assignments, deeds, bills of sale, consents and other instruments as the Company or its counsel may reasonably request as necessary or desirable for such purpose. SECTION 5.05. Year 2000 Compliance. Notwithstanding anything herein to the contrary, DBC agrees to use its best efforts (at its own expense) to ensure that all Contributed Intellectual Property, as applicable, is free of any "Year 2000 Problem" such that such Intellectual 23 Property will not experience any malfunctions or other usage problems in connection with the year 2000 (and later years) as distinct from the years 1900 through 1999, and earlier years. ARTICLE VI Indemnification SECTION 6.01. Indemnification by DBC. DBC shall indemnify each of CBS and the Company and each of their respective affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) ("Losses"), as incurred (payable promptly upon written request), arising from, in connection with or otherwise with respect to: (i) any breach of any representation or warranty of DBC that survives the Closing and is contained in this Agreement, in any Ancillary Agreement or in any document delivered in connection herewith; (ii) any breach of any covenant of DBC contained in this Agreement or in any Ancillary Agreement; (iii) any Excluded DBC Liability; (iv) the disclosure by any current or former Personnel of any proprietary information of DBC and its affiliates; (v) the failure to comply with statutory provisions relating to bulk sales and transfers, if applicable; and (vi) any fees, expenses or other payments incurred or owed by DBC to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement. SECTION 6.02. Indemnification by CBS. CBS shall indemnify each of DBC and the Company and each of their respective affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives against, and hold them harmless from, any Losses, as incurred (payable promptly upon written request), 24 arising from, in connection with or otherwise with respect to: (i) any breach of any representation or warranty of CBS that survives the Closing and is contained in this Agreement, in any Ancillary Agreement or in any document delivered in connection herewith; (ii) any breach of any covenant of CBS contained in this Agreement or in any Ancillary Agreement; (iii) any fees, expenses or other payments incurred or owed by CBS to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement. SECTION 6.03. Calculation of Losses. The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually recovered by the indemnified party under insurance policies with respect to such Loss and shall be (i) increased to take account of any net Tax cost incurred by the indemnified party arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit realized by the indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such Tax cost or Tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. SECTION 6.04. Termination of Indemnification. The obligations to indemnify and hold harmless any party, (i) pursuant to Section 6.01(i) or 6.02(i), shall terminate when the applicable representation or warranty terminates pursuant to Section 6.06 and (ii) pursuant to the other clauses of Section 6.01 or 6.02 shall not terminate; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim) pursuant to Section 6.05 to the party to be providing the indemnification. SECTION 6.05. Procedures. (a) In order for a party (the "indemnified party"), to be entitled to any 25 indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing of the Third Party Claim promptly following receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly following the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim and not also addressed to the indemnifying party. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably 26 withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnified party completely in connection with such Third Party Claim and that would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages. (c) Other Claims. In the event any indemnified party should have a claim against any indemnifying party under Section 6.01 or 6.02 that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. The failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under Section 6.01 or 6.02, except to the extent that the indemnifying party demonstrates that it has been materially prejudiced by such failure. If the indemnifying party does not notify the indemnified party within 10 calendar days following its receipt of such notice that the indemnifying party disputes its liability to the indemnified party under Section 6.01 or 6.02, such claim specified by the indemnified party in such notice shall be conclusively deemed a liability of the indemnifying party under Section 6.01 or 6.02 and the indemnifying party shall pay the amount of such liability to the indemnified party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the indemnifying party has timely disputed its liability with respect to such claim, as provided above, the indemnifying party and the indemnified party shall proceed in good faith to negotiate a 27 resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction. SECTION 6.06. Survival of Representations. The representations and warranties contained in this Agreement, in any Ancillary Agreement or in any document delivered in connection herewith shall survive the Closing solely for purposes of Article VI and shall terminate at the close of business five years following the date hereof. ARTICLE VII General Provisions SECTION 7.01. Assignment. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by CBS, DBC or the Company without the prior written Consent of the other parties hereto; provided, however, that CBS may assign this Agreement and its rights and obligations hereunder to any entity controlling, controlled by or under common control with, CBS, or to any entity that acquires CBS by purchase of stock or by merger or otherwise, or by acquiring all or substantially all of CBS's assets, provided that any such assignee succeeds to all of the rights and is subject to all of the obligations of CBS under this Agreement. Any attempted assignment in violation of this Section 7.01 shall be null and void ab initio. SECTION 7.02. No Third-Party Beneficiaries. Except as provided in Article VI, this Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such assigns, any legal or equitable rights hereunder. SECTION 7.03. Attorney Fees. A party in breach of this Agreement shall, on demand, indemnify and hold harmless each other party for and against all reasonable out-of-pocket expenses, including legal tees, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled. SECTION 7.04. Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, 28 postage prepaid, by registered, certified or express mail or reputable overnight courier service and shall be deemed given when so delivered by hand, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service), as follows: (i) if to the Company, c/o Data Broadcasting Corporation 1900 South Norfolk Street San Mateo, CA 94403 Attention of Larry Kramer with a copy to CBS and DBC as set forth below; (ii) if to CBS, CBS Inc. 51 West 52nd Street New York, NY 10019 Attention of Derek Reisfield with copies to: CBS Inc. 51 West 52nd Street New York, NY 10019 Attention of Sanford Kryle, and Cravath, Swaine & Moore 825 Eighth Avenue New York, NY 10019 Attention of Peter S. Wilson, Esq.; and (iii) if to DBC, Data Broadcasting Corporation 1900 South Norfolk Street San Mateo, CA 94403 Attention of Mark Imperiale 29 with a copy to: Camhy Karlinsky & Stein LLP 1740 Broadway Sixteenth Floor New York, NY 10019 Attention of Alan I. Annex, Esq. SECTION 7.05. Interpretation; Exhibits and Schedules; Certain Definitions. (a) The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein, shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. (b) For all purposes hereof: "affiliate" of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person. "including" means including, without limitation. "person" means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity. "subsidiary" of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first person. SECTION 7.06. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been 30 signed by each of the parties and delivered to each of the other parties. SECTION 7.07. Entire Agreement. This Agreement and the Ancillary Agreements, along with the Schedules and Exhibits thereto, contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. Neither party shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein or in the Ancillary Agreements. SECTION 7.08. Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances. SECTION 7.09. Amendments and Wavers. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, any two parties hereto may waive compliance by the third party with any term or provision of this Agreement that such third party was or is obligated to comply with or perform. SECTION 7.10. Consent to Jurisdiction. Each of CBS, DBC and the Company irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of New York, New York County, and (b) the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, any Ancillary Agreement or any transaction contemplated hereby or thereby. Each of CBS, DBC and the Company agrees to commence any such action, suit or proceeding either in the United States District Court for the Southern District of New York or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court of the State of New York, New York County. Each of CBS, DBC and the Company further agrees that service of any process, summons, notice or document by U.S. registered mail to such party's respective address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted 31 to jurisdiction in this Section 7.10. Each of CBS, DBC and the Company irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, any Ancillary Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of New York, New York County, or (ii) the United States District Court for the Southern District of New York, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. SECTION 7.11. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. IN WITNESS WHEREOF, CBS, DBC and the Company have duly executed this Agreement as of the date first written above. CBS INC. by /s/ Fredric A. Reynolds ------------------------------------- Name: Fredric A. Reynolds Title: Chief Financial Officer DATA BROADCASTING CORPORATION by /s/ Mark F. Imperiale ------------------------------------- Name: Mark F. Imperiale Title: President MARKETWATCH.COM, LLC by /s/ Derek R. Reisfield ------------------------------------- Name: Derek R. Reisfield Title: Chairman EX-99.2 3 EXHIBIT 99.2 STOCK PURCHASE AGREEMENT This Stock Purchase Agreement (this "AGREEMENT") is made and entered into as of March 28, 2000 (the "EFFECTIVE DATE") by and among MarketWatch.com, Inc., a Delaware corporation (the "COMPANY"), and the parties listed on the Schedule of Investors attached to this Agreement as EXHIBIT A (each hereinafter individually referred to as an "INVESTOR" and collectively referred to as the "INVESTORS"). WHEREAS, the Company desires to sell to the Investors, and the Investors desire to purchase from the Company, shares of the Company's Common Stock on the terms and conditions set forth in this Agreement; NOW, THEREFORE, the parties hereby agree as follows: 1. AGREEMENT TO PURCHASE AND SELL STOCK. 1.1 AUTHORIZATION. As of the Closing (as defined below) the Company will have authorized the issuance, pursuant to the terms and conditions of this Agreement, of up to 2,273,628 shares of the Company's Common Stock, par value $0.01 per share. 1.2 AGREEMENT TO PURCHASE AND SELL. The Company agrees to sell to each Investor at the Closing, and each Investor agrees, severally and not jointly, to purchase from the Company at the Closing, the number of shares of Common Stock at the price per share and type of consideration set forth beside such Investor's name on EXHIBIT A. Cash consideration paid by an Investor shall be allocated among all shares purchased by such Investor so that all of such shares will be "fully paid" under applicable law. The shares of Common Stock purchased and sold pursuant to this Agreement will be collectively hereinafter referred to as the "PURCHASED SHARES." 2. CLOSING. The purchase and sale of the Purchased Shares will take place at the offices of Fenwick & West LLP, Two Palo Alto Square, Palo Alto, California, at 10:00 a.m. Pacific Time, on that certain date on which all applicable waiting periods (and all extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR ACT") shall have expired or otherwise been terminated (or such later date following the satisfaction or waiver of all of the conditions set forth in Sections 5 and 6 hereof) or at such other time and place as the Company and the Investors mutually agree upon (which time and place are referred to in this Agreement as the "CLOSING"). At the Closing, the Company will deliver to each Investor a certificate representing the number of Purchased Shares that such Investor has agreed to purchase hereunder as shown on EXHIBIT A against delivery to the Company by such Investor of the full purchase price of such Purchased Shares set forth beside such Investor's name on EXHIBIT A. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to each Investor as follows: 3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company has been duly incorporated and organized, and is validly existing in good standing, under the laws of the State of Delaware. The Company has the corporate power and authority to enter into and perform this Agreement, to own and operate its properties and assets and to carry on its business as currently conducted and as presently proposed to be conducted. The Company is duly qualified to do business as a foreign corporation in good standing in each jurisdiction where failure to be so qualified would have a material adverse effect on the business, assets or financial condition of the Company taken as a whole. 3.2 CAPITALIZATION. The capitalization of the Company immediately prior to the Closing consists of the following: (a) PREFERRED STOCK. A total of 5,000,000 authorized shares of preferred stock, par value $0.01 per share, of which none are issued and outstanding. (b) COMMON STOCK. A total of 30,000,000 authorized shares of common stock, par value $0.01 per share (the "COMMON STOCK"), of which approximately 14,108,696 shares were issued and outstanding as of March 20, 2000 (subject to increase only by employee stock option exercises subsequent to March 20, 2000). (c) OPTIONS, WARRANTS, RESERVED SHARES. Except for (i) the rights of first refusal granted to certain stockholders under Section 9 of that certain Stockholders' Agreement dated as of January 13, 1999, as amended (the "STOCKHOLDERS' AGREEMENT"), by and among the Company and such stockholders (the "EXISTING REFUSAL RIGHTS"), (ii) the 3,685,824 shares of Common Stock reserved for issuance under the Company's stock option plans under which options to purchase 2,001,575 shares are outstanding as of March 20, 2000 (subject to increase prior to the Closing due to option grants in the ordinary course), and (iii) options to purchase 150,000 shares of the Company's Common Stock issued outside of the Company's stock option plans, there is no outstanding option, warrant, right (including conversion or preemptive rights) or agreement for the purchase or acquisition from the Company of any shares of its capital stock or any securities convertible into or ultimately exchangeable or exercisable for any shares of the Company's capital stock. Apart from the exceptions noted in this Section 3.2(c), and except for any rights of first refusal held by the Company to purchase shares of its stock issued under the Company's stock option plans, no shares of the Company's outstanding capital stock, or stock issuable upon exercise or exchange of any outstanding options, warrants or rights, or other stock issuable by the Company, are subject to any preemptive rights, rights of first refusal or other rights to purchase such stock (whether in favor of the Company or any other person), pursuant to any agreement or commitment of the Company. (d) The outstanding shares of the capital stock of the Company are duly authorized and validly issued, fully paid and nonassessable. 3.3 DUE AUTHORIZATION. All corporate action on the part of the Company's directors and stockholders necessary for the authorization, execution, delivery of, and the performance of all obligations of the Company under, this Agreement, the authorization, issuance, reservation for issuance and delivery of all of the Purchased Shares being sold under this Agreement has been taken or will be taken prior to the Closing, and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or others laws of general application relating to or affecting the enforcement of creditors' rights generally and (ii) the effect of rules of law governing the availability of equitable remedies. 2 3.4 VALID ISSUANCE OF STOCK. (a) The Purchased Shares, when issued and paid for as provided in this Agreement will be duly authorized and validly issued, fully paid and nonassessable. (b) Based in part on the representations made by the Investors in Section 4 hereof, the offer and sale of the Purchased Shares solely to the Investors in accordance with this Agreement are exempt from the registration and prospectus delivery requirements of the U.S. Securities Act of 1933, as amended (the "1933 ACT") and the securities registration and qualification requirements of the currently effective provisions of the securities laws of the States in which the Investors are resident based upon their addresses set forth on the Schedule of Investors attached hereto as EXHIBIT A. 3.5 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in order to enable the Company to execute, deliver and perform its obligations under this Agreement EXCEPT FOR such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Agreement. All such qualifications and filings will, in the case of qualifications, be effective on the Closing and will, in the case of filings, be made within the time prescribed by law. 3.6 COMMISSION FILINGS AND FINANCIAL STATEMENTS. The Company has filed all forms, reports and documents (the "SEC DOCUMENTS") required to be filed by it with the U.S. Securities and Exchange Commission (the "COMMISSION") pursuant to the 1933 Act or the U.S. Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as the case may be, and the rules and regulations of the Commission thereunder since January 13, 1999 through the date of this Agreement. As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1933 Act or the Exchange Act, as the case may be, and the rules and regulations of the Commission thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with the applicable accounting requirements and the rules and regulations of the Commission thereunder and were prepared in accordance with generally accepted accounting principles consistently applied (except as may be indicated in the notes thereto) and fairly presented, in all material respects, the financial position of the Company as at the dates thereof and the results of operations and cash flows of the Company for the periods then ended (subject, in the case of unaudited statements, to normal, recurring audit adjustments not material in scope or amount). 3.7 ABSENCE OF CHANGES. Since December 31, 1999 through the date of this Agreement, there has not been (i) any material adverse change in the business, assets or financial condition of the Company, (ii) any transaction that is material to the Company, except transactions entered into in the ordinary course of business, (iii) any obligation, direct or contingent, that is material to the Company incurred by the Company, except obligations 3 incurred in the ordinary course of business, (iv) any change in the capital stock or outstanding indebtedness of the Company that is material to the Company, other than the authorization by the Board of Directors (the "BOARD") of the Company of an increase in the number of shares of the Company's Common Stock subject to the Company's 1998 Equity Incentive Plan (the "PLAN") by additional 1,500,000 shares, (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, or (vi) any loss or damage (whether or not insured) to the property of the Company which has been sustained or will have been sustained which has a material adverse effect on the business, assets or financial condition of the Company. 3.8 SUBSIDIARIES. The Company does not presently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, association, or other entity, other than (i) BigCharts Inc., a wholly-owned subsidiary of the Company, and (ii) a joint venture established pursuant to that certain Joint Venture Agreement made on January 6, 2000 between the Company and Financial Times Group Limited. 3.9 LITIGATION. There is no action, suit, proceeding, claim, arbitration or investigation pending ("LITIGATION") (or, to the Company's knowledge, currently threatened) against the Company, its activities, properties or assets or, to the Company's knowledge, against any officer, director or employee of the Company in connection with such officer's, director's or employee's relationship with, or actions taken on behalf of, the Company, except for any such Litigation that individually or in the aggregate would have no material adverse impact on the Company's business. 3.10 STATUS OF PROPRIETARY ASSETS. The Company has full title and ownership of, or is duly licensed under or otherwise authorized to use, all patents, patent applications, trademarks, domain names, service marks, trade names, copyrights, mask works, trade secrets, confidential and proprietary information, designs and proprietary rights, necessary to enable it to carry on its business as now conducted without any conflict with or infringement of the rights of others. Notwithstanding the foregoing, no representation or warranty is made with respect to (i) trademarks, service marks and other proprietary rights licensed to the Company by CBS Broadcasting Inc. and/or its affiliates, and/or (ii) the enforceability of any rights of the Company in, or the ability of the Company to use, any trademarks or service marks containing the words "MarketWatch" or "MarketWatch.com." The Company has not received any written communication from any party or agent thereof alleging that the Company's use of the marks "MarketWatch" or "MarketWatch.com" may infringe such party's trademark rights. 3.11 COMPLIANCE WITH LAW AND DOCUMENTS. The Company is not in violation or default of any provisions of its Certificate of Incorporation or Bylaws, both as amended, and to the Company's knowledge, except for any violations that individually or in the aggregate would have no material adverse impact on the Company's business, the Company is in compliance with all applicable statutes, laws, regulations and executive orders of the United States of America and all states or other governmental bodies and agencies having jurisdiction over the Company's business or properties. The Company has not received any notice of any violation of any such statute, law, regulation or order which has not been remedied prior to the date hereof. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby or thereby will not result in any such violation or default, or be in conflict with or result in a violation or breach of, with or without the passage of time or 4 the giving of notice or both, the Company's Certificate of Incorporation or Bylaws, any judgment, order or decree of any court or arbitrator to which the Company is a party or is subject, any agreement or contract of the Company that is material to the Company's business (taken as a whole), or, to the Company's knowledge, a violation of any statute, law, regulation or order, or an event which results in the creation of any lien, charge or encumbrance upon any asset of the Company, except for defaults and violations that individually or in the aggregate would have no material adverse impact on the Company's business. 3.12 TITLE TO PROPERTY AND ASSETS. The properties and assets the Company owns are owned by the Company free and clear of all mortgages, deeds of trust, liens, encumbrances and security interests except for statutory liens for the payment of current taxes that are not yet delinquent and liens, encumbrances and security interests which arise in the ordinary course of business and which do not affect material properties and assets of the Company. With respect to the property and assets it leases, the Company is in material compliance with such leases. 3.13 TAX RETURNS AND PAYMENTS. The Company has timely filed all tax returns and reports required by law. All tax returns and reports of the Company are true and correct in all material respects. The Company has paid all taxes and other assessments due, except those, if any, currently being contested by it in good faith. 4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each Investor hereby represents and warrants to, and agrees with, the Company, severally and not jointly, that: 4.1 AUTHORIZATION. All corporate action on the part of such Investor and its officers, directors and stockholders necessary for the authorization, execution and delivery of, and the performance of all obligations of such Investor under, this Agreement has been taken or will be taken prior to the Closing, and this Agreement constitutes such Investor's valid and legally binding obligation, enforceable in accordance with its terms except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors' rights generally and (ii) the effect of rules of law governing the availability of equitable remedies. Each Investor represents that such Investor has full power and authority to enter into this Agreement. 4.2 PURCHASE FOR OWN ACCOUNT. The Purchased Shares to be purchased by such Investor hereunder will be acquired for investment for such Investor's own account, not as a nominee or agent, and not with a view to the public resale or distribution thereof within the meaning of the 1933 Act, and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. If not an individual, such Investor also represents that such Investor has not been formed for the specific purpose of acquiring Purchased Shares. 4.3 DISCLOSURE OF INFORMATION. Such Investor has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the Purchased Shares to be purchased by such Investor under this Agreement. Such Investor further has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Purchased 5 Shares and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to such Investor or to which such Investor had access. The foregoing, however, does not in any way limit or modify the representations and warranties made by the Company in Section 3. 4.4 INVESTMENT EXPERIENCE. Such Investor understands that the purchase of the Purchased Shares involves substantial risk. Such Investor: (i) has experience as an investor in securities of companies in the development stage and acknowledges that such Investor is able to fend for itself, can bear the economic risk of such Investor's investment in the Purchased Shares and has such knowledge and experience in financial or business matters that such Investor is capable of evaluating the merits and risks of this investment in the Purchased Shares and protecting its own interests in connection with this investment and/or (ii) has a preexisting personal or business relationship with the Company and certain of its officers, directors or controlling persons of a nature and duration that enables such Investor to be aware of the character, business acumen and financial circumstances of such persons. 4.5 ACCREDITED INVESTOR STATUS. Such Investor is an "accredited investor" within the meaning of Regulation D promulgated under the 1933 Act. 4.6 RESTRICTED SECURITIES. Such Investor understands that the Purchased Shares are characterized as "restricted securities" under the 1933 Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under the 1933 Act and applicable regulations thereunder such securities may be resold without registration under the 1933 Act only in certain limited circumstances. In this connection, such Investor represents that such Investor is familiar with Rule 144 of the Commission, as presently in effect, and understands the resale limitations imposed thereby and by the 1933 Act. Such Investor understands that the Company is under no obligation to register any of the securities sold hereunder except as provided in that certain Registration Rights Agreement dated as of January 13, 1999, as amended, by and among the Company and certain stockholders. 4.7 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the representations set forth above, such Investor further agrees not to make any disposition of all or any portion of the Purchased Shares unless and until: (a) there is then in effect a registration statement under the 1933 Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or (b) such Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition, and, at the expense of such Investor or its transferee, with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such securities under the 1933 Act. Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be required for any transfer of any Purchased Shares in compliance with Commission Rule 144; PROVIDED that in each of the foregoing cases (other than any transfer of 6 any Purchased Shares pursuant to such a registration statement or in compliance with Commission Rule 144) the transferee agrees in writing to be subject to the terms of this Section 4 (other than Section 4.5) to the same extent as if the transferee were an original Investor hereunder. 4.8 LEGENDS. It is understood that the certificates evidencing the Purchased Shares will bear the legend set forth below: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. The legend set forth above shall be removed by the Company from any certificate evidencing Purchased Shares if a registration statement under the 1933 Act is at that time in effect with respect to the legended security or if such security can be freely transferred in a public sale without such a registration statement being in effect and if such transfer will not jeopardize the exemption or exemptions from registration pursuant to which the Company issued the Purchased Shares. In addition, it is understood that the certificates evidencing the Purchased Shares will bear the legends set forth below, or legends substantially equivalent thereto: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS OF FIRST REFUSAL AS SET FORTH IN A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 13, 1999 ENTERED INTO BY THE HOLDER OF THESE SHARES, THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RIGHT OF FIRST REFUSAL IS BINDING ON CERTAIN TRANSFEREES OF THESE SHARES. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN AGREEMENTS AND RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH SHARES, AS PROVIDED IN A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 13, 1999 ENTERED INTO BY THE ORIGINAL HOLDER OF THESE SHARES, THE CORPORATION AND CERTAIN STOCKHOLDERS OF THE CORPORATION. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION. The legends set forth above shall be removed by the Company from any certificate evidencing Purchased Shares upon the termination of such Stockholders' Agreement. 7 5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of each Investor under Section 2 of this Agreement are subject to the fulfillment or waiver, on or before the Closing, of each of the following conditions, the waiver of which shall not be effective against any Investor who does not consent to such waiver, which consent may be given by written, oral or telephone communication to the Company, its counsel or to special counsel to the Investors: 5.1 REPRESENTATIONS AND WARRANTIES TRUE. Each of the representations and warranties of the Company contained in Section 3 shall be true and complete on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. 5.2 PERFORMANCE. The Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing and shall have obtained all approvals, consents and qualifications necessary to complete the purchase and sale described herein. The other Investor shall simultaneously be completing the purchase of the Purchased Shares to be purchased by such other Investor. 5.3 COMPLIANCE CERTIFICATE. The Company shall have delivered to each Investor at the Closing a certificate signed on its behalf by its President, Chief Executive Officer, or Chief Financial Officer certifying that the conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating that there shall have been no material adverse change in the business, financial condition, or assets of the Company since December 31, 1999. 5.4 SECURITIES EXEMPTIONS. The offer and sale of the Purchased Shares to the Investors pursuant to this Agreement shall be exempt from the registration requirements of the 1933 Act and the registration and/or qualification requirements of all other applicable state securities laws. 5.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to each Investor and to the Investors' special counsel, and they shall each have received all such counterpart originals and certified or other copies of such documents as they may reasonably request. Such documents shall include (but not be limited to) the following: (a) CERTIFIED CHARTER DOCUMENTS. A copy of the Amended and Restated Certificate of Incorporation and the Bylaws of the Company (as amended through the date of the Closing), certified by the Secretary of the Company as true and correct copies thereof as of the Closing. (b) CORPORATE ACTIONS. A copy of the resolutions of the Board of Directors and, if required, the stockholders of the Company evidencing the approval of this Agreement, the issuance of the Purchased Shares and the other matters contemplated hereby. 8 5.6 HART-SCOTT-RODINO ACT. All applicable waiting periods (and all extensions thereof) under the HSR Act shall have expired or otherwise been terminated. 6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of the Company to each Investor under this Agreement are subject to the fulfillment or waiver on or before the Closing of each of the following conditions by such Investor: 6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of such Investor contained in Section 4 shall be true and complete on the date of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing. 6.2 PAYMENT OF PURCHASE PRICE. Each Investor shall have delivered to the Company the purchase price specified for such Investor on EXHIBIT A in accordance with the provisions of Section 2. 6.3 SECURITIES EXEMPTIONS. The offer and sale of the Purchased Shares to the Investors pursuant to this Agreement shall be exempt from the registration requirements of the 1933 Act, the qualifications requirements of the Law and the registration and/or qualification requirements of all other applicable state securities laws. 6.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Company and to the Company's legal counsel, and the Company shall have received all such counterpart originals and certified or other copies of such documents as it may reasonably request. 6.5 HART-SCOTT-RODINO ACT. All applicable waiting periods (and all extensions thereof) under the HSR Act shall have expired or otherwise been terminated. 7. GENERAL PROVISIONS. 7.1 SURVIVAL OF WARRANTIES. The representations, warranties and covenants of the Company and the Investors contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of any of the Investors, their counsel or the Company, as the case may be. 7.2 EXISTING REFUSAL RIGHTS. Each of the Investors hereby waives (i) its right to notice with respect to the Existing Refusal Rights (as defined in Section 3.2) as they apply to the issuance and sale of the Purchased Shares and (ii) agrees that such issuance and sale pursuant to this Agreement satisfies its Existing Refusal Rights with respect to the issuance and sale of the Purchased Shares. 7.3 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. 9 7.4 GOVERNING LAW. This Agreement shall be governed by and construed under the internal laws of the State of Delaware, without reference to principles of conflict of laws or choice of laws. 7.5 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 7.6 HEADINGS. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to sections, paragraphs, exhibits and schedules shall, unless otherwise provided, refer to sections and paragraphs hereof and exhibits and schedules attached hereto, all of which exhibits and schedules are incorporated herein by this reference. 7.7 NOTICES. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or upon deposit with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified at the address indicated for such party on EXHIBIT A or, in the case of the Company, at MarketWatch.com, Inc., 825 Battery Street, San Francisco, California 94111, Attention: Joan P. Platt Facsimile: (415) 392-1914 with a copy to Fenwick & West LLP Two Palo Alto Square Palo Alto, California 94306 Attention: Jeffrey R. Vetter, Esq. Facsimile: (650) 494-1417 or at such other address as any party or the Company may designate by giving ten (10) days advance written notice to all other parties. 7.8 NO FINDER'S FEES. Each party represents that it neither is nor will be obligated for any finder's or broker's fee or commission in connection with this transaction. Each Investor agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finders' or broker's fee (and any asserted liability) for which the Investor or any of its officers, partners, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless each Investor from any liability for any commission or compensation in the nature of a finder's or broker's fee (and any asserted liability) for which the Company or any of its officers, employees or representatives is responsible. 10 7.9 COSTS, EXPENSES. Each party to this Agreement shall bear its own fees and expenses (including, without limitation, the fees and expenses of its legal counsel) in connection with the preparation, execution and delivery of this Agreement and the issuance of the Purchased Shares. 7.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the holders of Purchased Shares representing at least a majority of the aggregate number of shares of the Purchased Shares (excluding any of such shares that have been sold to the public or pursuant to Commission Rule 144). Any amendment or waiver effected in accordance with this Section shall be binding upon each holder of any Purchased Shares at the time outstanding, each future holder of such securities, and the Company; PROVIDED, HOWEVER, that no condition set forth in Section 5 may be waived with respect to any Investor who does not consent thereto. 7.11 SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms. 7.12 ENTIRE AGREEMENT. This Agreement, together with all exhibits and schedules hereto, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings duties or obligations between the parties with respect to the subject matter hereof. 7.13 FURTHER ASSURANCES. From and after the date of this Agreement, upon the request of any Investor or the Company, the Company and the Investors shall execute and deliver such instruments, documents or other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement. [Remainder of this page intentionally left blank] 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. MARKETWATCH.COM, INC. CBS BROADCASTING INC. By:/s/ Joan P. Platt By: /s/ Fredric G. Reynolds ------------------------- ----------------------------- Name: Joan P. Platt Name: Fredric G. Reynolds --------------------- --------------------------- Title: CEO Title: Executive President, Chief ---------------------- Financial Officer -------------------------- DATA BROADCASTING CORPORATION By: /s/ Stuart J. Clark ----------------------------- Name: Stuart J. Clark ---------------------------- Title: President and CEO --------------------------- EX-99.3 4 EXHIBIT 99.3 Exhibit 99.3 STOCKHOLDERS' AGREEMENT This Stockholders' Agreement (the "Agreement") is made and entered into as of January 13, 1999, by and among CBS Broadcasting Inc., a New York corporation ("CBS"), and Data Broadcasting Corporation, a Delaware corporation ("DBC") (hereinafter referred to collectively as the "Stockholders" and each singly as "Stockholder"), MarketWatch.com. Inc., a Delaware corporation (the "Company"), and Marketwatch.Com LLC, a Delaware limited liability company (the "LLC"). RECITALS WHEREAS, the parties hereto are parties to a Merger Agreement, dated as of the date hereof, pursuant to which the LLC will be merged with and into the Company for the purpose of operating the business of the LLC in a corporate form (the "Merger"); WHEREAS, as a result of the Merger, the LLC will cease to exist, however, the parties hereto desire to enter into this Stockholders' Agreement; WHEREAS. the parties hereto also desire to amend certain provisions of the Contribution Agreement (the "Contribution Agreement") dated as of October 29, 1997, between the Stockholders and the LLC; NOW THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby, intending to be legally bound by the terms hereof, agree as follows: 1. CERTAIN DEFINITIONS. 1.1 Business. The term "Business" means, collectively the Internet-based business and financial news and information service offered by the Company, which includes, without limitation, the businesses conducted with the assets contributed to the Company by DBC pursuant to the Contribution Agreement as such businesses may be expanded or otherwise changed from time to time by the Company. 1.2 Business Day The term "Business Day" means a day that is not a Saturday, Sunday or other day on which banking institutions in the State of New York are authorized or required by law, regulation or executive order to be closed. 1.3 Common Stock. The term "Common Stock" means the Common Stock, $0.01 par value per share of the Company. 1.4 Convertible Securities. The term "Convertible Securities" mean any securities convertible into or exchangeable for Voting Securities or any options, warrants or other rights exercisable to acquire Voting Securities. 1.5 Initial Percentage. The term "Initial Percentage" means the percentage of then Total Voting Power of the Company represented by the Voting Securities held by a Stockholder at the time of the consummation of the Company's initial public offering. 1.6 Offered Securities. The term "Offered Securities" means all Securities proposed to be Transferred by a Stockholder or, if applicable, an affiliate of a Stockholder. 1.7 Person. The term "Person" means any natural person, legal entity, or other organized group of persons or entities. (All pronouns, whether personal or impersonal, which refer to Person include natural persons and other Persons). 1.8 Securities. The term "Securities" shall mean Voting Securities and Convertible Securities. 1.9 Total Voting Power. The term "Total Voting Power" means, at any time, the total number of votes that may be cast in the election of directors of the Company at any meeting of the holders of Voting Securities held at such time for such purpose. 1.10 Transfer and Transferred. The terms "Transfer" and "Transferred" mean and include any sale, assignment. encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignments for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, except for: (a) any transfer of Securities by CBS or DBC to any entity controlling, controlled by or under common control with CBS or DBC, or to any entity that acquires CBS of DBC by purchase of stock or by merger or otherwise; (b) any transfer of Securities by a Stockholder made: (i) pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations; or (ii) pursuant to the winding up and dissolution of the Company; or (c) any transfer of Securities by a Stockholder pursuant to a Stockholder's exercise of such Stockholder's right of first refusal hereunder. 1.11 Voting Power. The term "Voting Power" means, as to any Voting Security at any time, the number of votes such Voting Security is entitled to cast for directors of the Company at any meeting of the holders of Voting Securities held at such time for such purpose. 1.12 Voting Securities. The term "Voting Securities" means the Common Stock and any other securities issued by the Company having the power to vote in the election of directors of the Company, including without limitation any securities having such power only upon the occurrence of a default or any other extraordinary contingency. 2 2. MANDATORY TRANSFERS. 2.1 DBC Change of Control. Notwithstanding anything herein to the contrary, and absent agreement of the Stockholders to do otherwise, CBS shall have the right (but not the obligation) in its sole discretion to purchase DBC's Securities or require that such Securities be transferred to an independent trustee, as provided in Section 2.2 within 60 days after a competitor of CBS has directly or indirectly acquired beneficial ownership of more than 30% of the outstanding shares of the common stock, or securities representing, in the aggregate, more than 30% of the voting power, of DBC (or any person controlling DBC), or all or substantially all of DBC's assets (a "DBC Change of Control"), at a time when DBC and is affiliates shall then own in the aggregate number of shares of Common Stock equal to at least ten percent (10%) of the outstanding shares of Common Stock on the IPO Closing Date (defined below) (appropriately adjusted to reflect any stock splits, reverse stock splits, stock dividends, recapitalizations and other similar transactions occurring subsequent to the IPO Closing Date), without the prior written consent of CBS (a "Triggering Event"). The parties hereby agree that DBC may give CBS confidential written notice of its intent to enter into an agreement which would cause a DBC Change of Control, together with a description of the party with whom DBC intends to effect such a transaction. CBS shall have twenty (20) days from receipt of such notice to respond to DBC in writing as to whether it would elect to trigger the provisions of this Section 2 with respect to such potential DBC Change of Control. If, and only if, CBS notifies DBC in writing that it would not make such election, CBS shall be deemed to have waived its right to trigger such mandatory transfer provisions with respect to such potential DBC Change of Control. 2.2 Transfer of Shares. Upon the occurrence of a DBC Change of Control, CBS may elect one of the following within 45 days after written notice from DBC that a DBC Change of Control has occurred: (a) (i) CBS may offer to purchase the Securities then held by DBC and its affiliates, and DBC and its affiliates shall be required to sell to CBS, such sale to occur no later than 10 days after DBC's receipt of CBS' written offer to purchase such Securities, at a purchase price for the Securities held by DBC and its affiliates equal to the Fair Market Value of the Securities on the date of the Triggering Event. (ii) Notwithstanding the foregoing provisions of Section 2.2(a)(i), if (y) any legal or regulatory requirements, including, without limitation, those imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended must be first satisfied prior to making such sale or (z) the Fair Market Value must be determined according to the terms of subsection (b) of the definition of Fair Market Value, then such sale shall be made within two days of the satisfaction of such legal requirements or of the determination of the Fair Market Value of the Securities, as applicable. (iii) Upon the date that payment is made for the Securities, DBC and its affiliates will have no further rights as a holder of such Securities and DBC and its affiliates will forthwith cause all certificate(s) evidencing such Securities to be surrendered to the Company or 3 its transfer agent for cancellation and new certificates evidencing such Securities will be promptly delivered to CBS. (b) CBS may require DBC to transfer all Securities then held by DBC and its affiliates to an independent trustee reasonably satisfactory to CBS, which trustee shall then dispose of such Securities formerly held by DBC and its affiliates to purchaser(s) that is/are not competitor(s) of CBS, subject to the foregoing, in such a manner as such trustee shall determine with a view to maximizing the sale price of the shares formerly held by DBC and its affiliates, while disposing of such shares as promptly as reasonably practicable. Upon such transfer, such trustee shall have sole voting and dispositive control over such Securities, DBC shall no longer be entitled to appoint any DBC Designees and all current DBC Designees shall resign from their positions as members of the Company's Board of Directors. Unless otherwise agreed in writing by CBS, any trustee appointed pursuant to this Section 2.2(b) shall be a bank or trust company incorporated or otherwise organized under the laws of the United States or a state thereof and having a combined capital and surplus of at least $100,000,000. The provisions of Article 8 of this Agreement shall not be applicable to such trustee. Any such trustee shall perform its duties upon customary terms pursuant to documentation reasonably satisfactory to CBS. it being understood and agreed that, without the prior written consent of CBS, no such trustee shall vote any Securities held by it at any meeting of the stockholders of the Company or otherwise. "Fair Market Value" of the Securities shall mean (a), for any Security that is listed on a national securities exchange or authorized for trading on the National Association of Securities Dealers Nasdaq Stock Market or other automated quotation system, the average of the closing prices for the five day period ending on the date of the Triggering Event; and (b), for any other Security, such price as is determined by an appraiser chosen by the members of the Company's Board of Directors who are neither employees of the Company, CBS Designees (defined below) or DBC Designees (defined below) or otherwise affiliated with or employed by either of CBS, DBC or one of their respective affiliates (other than as serving as an independent member of the Company's Board of Directors) (the "Independent Directors"). If there are no Independent Directors, then Fair Market Value for purposes of this Subsection (b) only, shall be determined by a panel of appraisers, one (1) chosen by CBS, one (1) chosen by DBC and the third to be chosen by the first two (2) appraisers. If the appraisers cannot reach agreement within thirty (30) days of the date of the Triggering Event, then each appraiser shall deliver its appraisal within 40 days of the Triggering Event and the appraisal which is neither the highest nor the lowest shall constitute the Fair Market Value. In the event either Stockholder fails to choose an appraiser within thirty (30) days of the date of the Triggering Event, then the appraisal of the sole appraiser shall constitute the Fair Market Value. Each party shall bear the cost of the appraiser selected by such Stockholder and the cost of the third appraiser shall be borne one-half by each Stockholder. In the event either party fails to choose an appraiser, the cost of the sole appraiser shall be borne one-half by each Stockholder. 2.3 Termination Payment. Upon the termination of the Amended and Restated License dated as of the date hereof between CBS and the Company (the "Amended and Restated License") in accordance with its terms, CBS may elect to terminate its advertising obligation under Section 1.04 of the Contribution Agreement. In the event CBS elects to exercise this 4 termination right, CBS shall pay to the Company a cash payment in the amount of $500,000 times the number of full calendar months from the date of such termination remaining until October 2002. 3. AGREEMENT NOT TO COMPETE. 3.1 Agreement of DBC Not To Compete. DBC understands that the Company shall be entitled to protect and preserve the going concern value of the Business to the extent permitted by law and, therefore, until October 29, 2005, DBC shall not, and DBC shall not authorize or permit another Person to, without the prior written consent of the Company: (a) (i) sell advertising on an Internet Web site that has as its primary function and as its principal theme and format the delivering of comprehensive real-time or delayed stock quotations and financial news in the English language to consumers or (ii) use the Internet to sell real-time snap-quotes to individual subscribers or customers who pay a fee for such information ("Competitive Activities"); (b) solicit, recruit or hire any employees of the Business or person who has worked for the Business; (c) solicit or encourage any employee of the Business to leave the employment of the Business; and (d) disclose or furnish to anyone any confidential information relating to the Business or otherwise using such confidential information for its own benefit or the benefit of any other person. The Company acknowledges that the maintenance and continued operation of the dbc.com Web site by DBC shall not be considered to be a violation of this Section 3.1 provided that dbc.com does not engage in any Competitive Activities. In addition, this Section 3.1 shall not be deemed breached as a result of the maintenance, operation, sale or transmission over the Internet of DBC's existing products, including, but not limited to, Bond Vu, BondEdge, InSite, Signal Online, and StockEdge Online. 3.2 Non-Competing Activities. The Company acknowledges and agrees that the following are either not within the express terms of the prohibitions contained in Section 3.1 or, if so, shall nevertheless be excluded from said prohibitions: (a) the ownership by DBC of less than an aggregate of 5% of any class of stock of a Person engaged, directly or indirectly, in Competitive Activities; (b) the ownership by DBC of less than 10% in value of any instrument of indebtedness of a Person engaged, directly or indirectly, in Competitive Activities; (c) an Internet service or Web site that delivers general news or sports or entertainment content with a financial news segment or portion included, will not be considered 5 to have as its primary function or as its principal theme and format the delivering of comprehensive real-time or delayed stock market quotations and financial news in the English language to consumers; (d) an Internet service or Web site will not be considered to have as its primary function or as its principal theme and format the delivering of comprehensive real-time or delayed stock market quotations and financial news in the English language to consumers solely on the basis of its providing a stock price ticker crawl line; (e) any activity conducted by DBC and/or its Affiliates as of January 13, 1999, the execution date of this Agreement; or (f) any Internet services in which DBC has an interest as of January 13, 1999, the execution date of this Agreement. 3.3 Agreement of the Company not to Compete. The Company agrees that subsequent to the date hereof through October 29, 2005 or, at such earlier time (i) as the Amended and Restated Services Agreement has terminated, (ii) upon the occurrence of a DBC Change of Control, or (iii) at such time as DBC shall hold less than 10% of the then-outstanding Voting Securities, it will not, except through DBC, sell any product or service that offers streaming real-time stock price quotes. 3.4 Enforcement. Notwithstanding any other provision of this Agreement, it is understood and agreed that the remedies at law would be inadequate in the case of any breach of the covenant contained in Sections 3.1 or 3.3. Therefore, the Company or DBC, as the case may be, shall be entitled to equitable relief, including the remedy of specific performance, with respect to any breach or attempted breach of such covenant. 3.5 Termination. The Stockholders and the Company acknowledge that the provisions of this Section 3 shall terminate and cease to apply in the event that the Company is dissolved or liquidated. 4. DBC CONTRIBUTION. DBC acknowledges that as of each of October 29, 1997 and October 29, 1998, it had contributed $1,000,000 to the LLC. 5. ASSIGNMENT OF CONTRIBUTION AGREEMENT. 5.1 Assignment and Assumption. Effective immediately upon the dare of this Agreement, the LLC hereby assigns, transfers, and sets over to the Company all of LLC's right, title, and interest in and to the Contribution Agreement and its rights and obligations thereunder and the Company does hereby agree to assume and does hereby assume all of the obligations and liabilities of LLC related to the Contribution Agreement. 5.2 Consent of CBS and DBC. Each of CBS and DBC consent to the assignment and assumption provided for in Section 5.1 hereof. 6 6. AMENDMENTS TO CONTRIBUTION ARRANGEMENT. 6.1 Amendments (a) Section 1.04 of the Contribution Agreement is hereby amended to delete the reference to "$50 million" in the fifth line thereof and insert "$30 million" therefor and by adding the CBS termination rights described in Section 2.3 hereof. (b) Exhibit B to the Contribution Agreement is deleted and replaced in its entirety with the Amended and Restated License Agreement attached hereto as Exhibit 5.1(b). (c) Exhibit C to the Contribution Agreement is deleted and replaced in its entirety with the Amended and Restated Services Agreement attached hereto as Exhibit 5.1(c). (d) Exhibit D to the Contribution Agreement is amended by deleting the last sentence of paragraph 2 thereto. 6.2 Full Force. Except as expressly amended hereby, the Contribution Agreement shall remain in full force and effect, except to reflect the change of the LLC's organization from a limited liability company to a corporation as a result of the Merger. 7. DIRECTOR NOMINATION RIGHTS. 7.1 Board Size. The Company shall maintain a Board of Directors of at least seven (7) members and shall use its best efforts to maintain a Board of Directors of nine (9) members immediately after the IPO Closing Date (defined below). 7.2 Designee. For so long as CBS continues to own a number of Voting Securities equal to at least one percent (1%) of the Company's outstanding Voting Securities, the Company shall provide CBS, and for so long as DBC continues to own a number of Voting Securities equal to at least one percent (1%) of the outstanding Voting Securities, the Company shall provide DBC, thirty (30) days prior written notice of any Stockholder solicitation or action relating to the election of directors. After receipt of such notice by DBC, DBC may, and after receipt of such notice by CBS, CBS may, by written notice sent to the Company within ten (10) days of receipt of such notice, request that the Company nominate, and the Company shall nominate, for election to the Company's Board of Directors (the "Board of Directors"), in connection with such Stockholder solicitation or action: (a) one, if CBS holds a number of Voting Securities greater than or equal to one percent (1%) but less than twenty percent (20%) of the Company's outstanding Voting Securities, two, if CBS holds a number of Voting Securities greater than or equal to twenty percent (20%) but less than thirty percent (30%) of the Company's outstanding Voting Securities, and three, if CBS holds a number of Voting Securities greater than or equal to thirty percent (30%) of the outstanding Voting Securities, candidates designated in the CBS notice, who shall be reasonably acceptable to the Company (collectively, the "CBS Designees"); and 7 (b) one, if DBC holds a number of Voting Securities greater than or equal to one percent (1%) but less than twenty percent (20%) of thc Company's outstanding Voting Securities, two, if DBC holds a number of Voting Securities greater than or equal to twenty percent (20%) but less than thirty percent (30%) of the outstanding Voting Securities, and three, if DBC holds a number of Company's outstanding Voting Securities greater than or equal to thirty percent (30%) of the Company's outstanding Voting Securities, candidates designated in the DBC notice, who shall be reasonably acceptable to the Company (collectively, the "DBC Designees"). In the event that CBS or DBC shall desire to appoint CBS Designees or DBC Designees, as applicable, otherwise than in connection with a Stockholder solicitation or action relating to the election of directors, then as soon as practicable upon written notice from CBS or DBC, as applicable, the Company shall appoint the CBS Designees or DBC Designees, as applicable, to the Board of Directors. In the event that the size of the Company's Board of Directors is increased to a number greater than nine (9), the number of CBS and DBC Designees shall be a number equal to the product of (A) the percentage of outstanding Voting Securities held by such Stockholder times (B) the number of authorized members of the Company's Board of Directors, rounded up to the nearest whole number. Notwithstanding the foregoing, for so long as the Amended and Restated License remains in effect, CBS shall be entitled to select at least one CBS Designee, regardless of the number of Voting Securities held by it. 7.3 Affiliates. For purposes of this Agreement, all shares held by an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended (the "Securities Act")) (each, an "Affiliate") of CBS or DBC, will be deemed to be owned by CBS or DBC, as applicable. 7.4 Voting of Shares. (a) The Company shall use its best efforts (i) to cause to be voted the shares of Voting Securities for which the Company's management or the Board of Directors holds proxies or is otherwise entitled to vote in favor of the election of the CBS Designees and DBC Designees nominated pursuant to Section 7.2 to this Agreement; and (ii) to cause the Board of Directors to unanimously recommend to its stockholders to vote in favor of the CBS Designees and the DBC Designees. (b) Each of CBS and DBC shall vote the shares of Voting Securities held by it for the CBS Designees and the DBC Designees. 7.5 Vacancies. In the event that any CBS or DBC Designee shall cease to serve as a director of the Company for any reason, the vacancy resulting therefrom shall be filled by another CBS Designee or DBC Designee, as applicable. 8 7.6 Equal Treatment. The Company shall offer the same compensation and shall provide rights and benefits of indemnity to each CBS Designee or DBC Designee as are provided to other non-employee directors, provided however, that none of the CBS Designees or DBC Designees shall be entitled to participate in the Company's proposed 1998 Directors Stock Option Plan or any other equity based plan. 8. RIGHT OF FIRST REFUSAL. 8.1 Notice. Before any Stockholder or affiliate of any Stockholder may effect any Transfer of any Securities, such Stockholder or affiliate (the "Selling Stockholder") must give at the same time to the Company and the other Stockholder a written notice signed by the Selling Stockholder (the "Selling Stockholder's Notice") stating (a) the Selling Stockholder's bona fide intention to transfer such Offered Securities; (b) the number of Offered Securities proposed to be transferred to each proposed purchaser or other transferee ("Proposed Transferee"); (c) the name, address and relationship, if any, to the Selling Stockholder of each Proposed Transferee; and (d) the bona fide cash price or, in reasonable detail, other consideration, per share for which the Selling Stockholder proposes to transfer such Offered Securities to each Proposed Transferee (the "Offered Price") and the proposed time of payment and other relevant terms of the proposed sale. If such Selling Stockholder desires to effect sales into the open market pursuant to Rule 144 promulgated under the Securities Act ("Open Market Sale"), the Selling Stockholder's Notice shall also contain the closing price of the Securities on the date prior to the date of such notice which price shall constitute the Offered Price. Upon the request of the Company or the other Stockholder, the Selling Stockholder will promptly furnish to the Company and to the other Stockholder such other information as may be reasonably requested to establish that the offer and Proposed Transferee(s) are bona fide. In the event that the notice provisions of this Section 8 make it impractical or impossible to comply with the notice provisions of Section 1 of the Registration Rights Agreement, the parties hereto agree that the notice provisions of the Registration Rights Agreement shall be modified or waived to the extent necessary so as to permit the operation of this Section 8 in conjunction with the provisions of Section 1 of the Registration Rights Agreement. 8.2 Stockholders' Right of First Refusal. The non-Selling Stockholder will have a right of first refusal (the "Right of First Refusal") to purchase any portion of the Offered Securities made available for purchase in the manner provided in this Section 8.2 unless (a) the Offered Securities are to be sold in a private sale to one purchaser, in which case the non-Selling Stockholder will only be permitted to exercise its Right of First Refusal if it purchases all of the Offered Securities, or (b) the Selling Stockholder is selling the Offered Securities through a registered offering and the quantity of Offered Securities that the non-Selling Stockholder proposes to purchase would, in the good faith opinion of the managing underwriter, jeopardize the success of the offering. In such a circumstance, the non-Selling Stockholder will only be permitted to purchase either all of the Offered Securities or such Offered Securities, if any, that would not, in the good faith opinion of the managing underwriter, jeopardize the success of such offering. If the non-Selling Stockholder desires to purchase any or all, as applicable, of the Offered Securities made available for purchase such Stockholder must give written notice within the fifteen (15) day period commencing on the date of the Selling Stockholder's Notice (the 9 "Refusal Period"), to the Selling Stockholder (the "Purchase Notice") and to the Company of such Stockholder's election to purchase the Offered Securities, and the number of shares and type of Offered Securities that such Stockholder desires to purchase, provided however, that in the case of a proposed Open Market Sale, the non-Selling Stockholder must give the Purchase Notice prior to 5:00 p.m. Pacific time on the second Business Day after the non-Selling Stockholder receives the Purchase Notice. 8.3 Purchase Price. The purchase price for the Offered Securities to be purchased by the non-Selling Stockholder exercising its Right of First Refusal under this Agreement will be the Offered Price, and will be payable as set forth in Section 8.4 hereof. If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration will be the Fair Market Value of such noncash consideration. 8.4 Payment. Payment of the purchase price for Offered Securities purchased by a Stockholder exercising its Right of First Refusal will be made in cash within ten (10) days after the date of the Purchase Notice, or if any legal or regulatory requirements, including, without limitation, those imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, must be first satisfied prior to making such payment, within two (2) days after the satisfaction of such legal requirements. 8.5 Rights of Stockholder. Upon the date that payment is made for the Offered Securities purchased by the non-Selling Stockholder pursuant to the Right of First Refusal hereunder, the Selling Stockholder will have no further rights as a holder of such Offered Securities and the Selling Stockholder will forthwith cause all certificate(s) evidencing such Offered Securities to be surrendered to the Company or its transfer agent for cancellation and new certificates evidencing such Offered Securities will be promptly delivered to the purchasing Stockholder. 8.6 Selling Stockholder's Right to Transfer. If the non-Selling Stockholder has not elected pursuant to its Right of First Refusal to purchase all or a portion, as applicable, of the Offered Securities, the Selling Stockholder may Transfer the Offered Securities to any person named as a Proposed Transferee in the Selling Stockholder's Notice, at the Offered Price or at a higher price, provided that such transfer (a) is consummated within one hundred twenty (120) days after the date of the Selling Stockholder's Notice and (b) is in accordance with the terms and conditions of this Agreement; provided however, that in the case of a proposed Open Market Sale, such transfers must take place within the six (6) week period following the date of the Selling Stockholder's Notice. If the Offered Stock is transferred in accordance with the terms and conditions of this Agreement to a non-affiliate, then the transferee(s) of the Offered Stock will thereafter hold such Offered Securities free of the Right of First Refusal and all other restrictions imposed by this Agreement. If the Offered Securities are not so transferred during such one hundred twenty (120) day period or such six (6) week period, as the case may be, then the Selling Stockholder will not transfer any of such Offered Stock without complying again in full with the provisions of this Agreement. 10 8.7 Certain Transfers. Notwithstanding the foregoing: (i) If the Offered Securities will be sold by means of a registered underwritten offering, then the Selling Stockholder's Notice need not name any Proposed Transferee if such notice (x) states that the Offered Securities will be sold by means of a broadly distributed offering and (y) contains the proposed underwriter's good faith estimate of the public offering price (the "Proposed Public Offering Price") based on then-current market conditions. If the non-Selling Stockholder does not elect, pursuant to its Right of First Refusal, to purchase all or a portion, as applicable, of the Offered Securities at the proposed Public Offering Price, the Selling Stockholder may transfer such Offered Securities as the non-Selling Stockholder has not elected to so purchase at prices that are based on the prevailing market price for the Offered Securities at the time of the sale of such Offered Securities even if such market price is lower than the Proposed Public Offering Price. (ii) If the Offered Securities will be sold pursuant to block trades or other brokerage transactions, then the Selling Stockholder's Notice need not name any Proposed Transferee nor any Offered Price. If the non-Selling Stockholder does not elect, pursuant to its Right of First Refusal, to purchase all of the Offered Securities on the date of the Selling Stockholder's Notice at the closing market price for the Offered Securities on the date of the Selling Stockholder's Notice, the Selling Stockholder may transfer such Offered Securities at prices that are based on the prevailing market price in effect for the Offered Securities at the time of the sale of such Offered Securities through block trades or other brokerage transaction, even if such market price is lower than the closing market price for such Offered Securities on the date of the Selling Stockholder's Notice. 8.8 Legend. Each Stockholder understands and agrees that the Company will cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents or instruments evidencing ownership of Securities by the Stockholder: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS OF FIRST REFUSAL AS SET FORTH IN A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 13, 1999 ENTERED INTO BY THE HOLDER OF THESE SHARES, THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RIGHT OF FIRST REFUSAL IS BINDING ON CERTAIN TRANSFEREES OF THESE SHARES. The Company will cause such legend to be removed upon the termination of this Agreement. 11 8.9 Stock Transfer Instructions. Each Stockholder agrees, to ensure compliance with the restrictions referred to herein, that the Company may issue appropriate "stop transfer" certificates or instructions and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its records. 9. PARTICIPATION RIGHTS. 9.1 New Securities. If from time to time the percentage of the Total Voting Power represented by the Voting Power of all Voting Securities then owned, directly or indirectly, by a Stockholder (the "Applicable Percentage") would be reduced as a result of any issuance of Voting Securities by the Company or could be reduced as a result of any issuance of Convertible Securities by the Company (in either case, whether for cash, property otherwise and, such securities are referred to herein as "New Securities"), the Company shall so notify the Stockholder in writing not less than ten (10) Business Days prior to the proposed date of any such issuance and shall offer to sell to the Stockholder, and, if such offer is accepted in writing by (x) if such issuance is made pursuant to an underwriting or private placement purchase agreement, the second Business Day prior to the date of execution of any such agreement (it being understood that the Company will give the Stockholder at least four (4) Business Day's prior notice of such date of execution) or (y) if such issuance is not made pursuant to such an agreement, the fifth (5th) Business Day prior to the proposed date of such issuance, the Company shall sell to the Stockholder that portion of the Voting Securities or Convertible Securities to be issued which would result in such Stockholder's Applicable Percentage immediately prior to such issuance equaling the Stockholder's Applicable Percentage in effect immediately prior to such issuance (assuming, in the case of Convertible Securities, the conversion, exchange or exercise at such time of all Convertible Securities), or any lesser portion of the Voting Securities or Convertible Securities to be issued in such issuance as may be designated by the Stockholder, in either case at a price per share or other trading unit of such Voting Securities or Convertible Securities, as the case may he, equal to the price per share or other trading unit of such Voting Securities or Convertible Securities, as the case may be, to be received by the Company in such issuance, less any underwriting discounts and commissions (the "Purchase Price"), and otherwise on the same terms as may be applicable to such issuance; provided, however, that a Stockholder shall not be entitled to purchase such Voting Securities or Convertible Securities from the Company pursuant to this Section 9.1 to the extent that such purchase would cause such Stockholder to own, directly or indirectly, Voting Securities representing an aggregate Voting Power in excess of a percentage of the Total Voting Power of the Company equal to the Initial Percentage after giving effect to the proposed issuance; provided, further, however, that the preceding provisions shall not apply to issuances of: (a) up to an aggregate of 1,500,000 shares of the Company's Common Stock (and/or options or warrants therefor) issued to employees, officers, directors, contractors, advisors or consultants of the Company pursuant to incentive agreements or plans approved by the Board of Directors of the Company, such number of shares being subject to proportional adjustment to reflect subdivisions, combinations and stock dividends affecting the number of outstanding shares of such stock; or 12 (b) securities offered by the Company in its initial public offering pursuant to a registration statement filed under the Securities Act; or (c) up to an aggregate of 500,000 shares of the Company's Common Stock (and/or options or warrants therefor) issued or issuable to parties as approved by the Board of Directors for any corporate purpose, including, without limitation, for providing the Company with equipment leases, real property leases, loans, credit lines, guaranties of indebtedness, cash price reductions or similar financing, such number of shares being subject to proportional adjustment to reflect subdivisions, combinations and stock dividends affecting the number of outstanding shares of such stock. Notwithstanding the foregoing provisions, in the event the Company proposes to issue Voting Securities or Convertible Securities for consideration other than cash, then, in lieu of purchasing a portion of the Voting Securities of Convertible Securities to be issued, the Stockholder shall be entitled to require the Company to issue to such Stockholder at a per share price equal to the Fair Market Value of the additional Voting Securities or Convertible Securities such that immediately after such issuance, Stockholder's Applicable Percentage equals such Stockholder's Applicable Percentage in effect immediately prior to such issuance (assuming, in the case of Convertible Securities, the conversion, exchange or exercise at such time of all Convertible Securities to be issued in such issuance). For purposes of calculating the Fair Market Value of such additional Voting Securities or Convertible Securities, the term "Triggering Event" shall mean the date of the issuance of such Voting Securities or Convertible Securities for consideration other than cash. 9.2 Additional Limitations on Participation Rights. (a) Notwithstanding the provisions of Section 9.1, (i) if the Company proposes to issue Voting Securities or Convertible Securities pursuant to the first underwritten public offering of the Company subsequent to its initial public offering (the "First Follow-On Offering") and a Stockholder would otherwise be entitled to purchase a portion of such Voting Securities pursuant to the provisions of Section 9.1, and (ii) if, in the opinion of the underwriters of such First Follow-On Offering, the public trading market for the Company's Common Stock would be significantly adversely affected if the Stockholders exercised their participation rights contained in Section 9.1 with respect to an amount of Voting Securities or Convertible Securities such that after exercise of such participation right, the Applicable Percentage of such Stockholder would be in excess of 25% (assuming, in the case of Convertible Securities, the conversion, exchange or exercise at such time of all Convertible Securities), then the Stockholders shall be permitted to exercise their participation rights specified in Section 9.1 in connection with the First Follow-On Offering only to the extent that such Stockholder's Applicable Percentage would not exceed 25% after giving effect to the First Follow-On Offering, or such higher percentage that would not, in the opinion of the underwriters of such First Follow-On Offering, significantly adversely affect such offering. (b) In the event that a Stockholder was unable to exercise the participation rights set forth in Section 9.1 to the extent it would have otherwise been able to exercise as a 13 result of the provisions of Section 9.2(a), then in the event the Company proposes to issue Voting Securities or Convertible Securities subsequent to the First Follow-On Offering, such Stockholder shall be entitled to purchase up to that portion of the Voting Securities or Convertible Securities to be issued or to purchase from the Company up to a number of additional Voting Securities or Convertible Securities pursuant to Section 9.1 such that the Applicable Percentage of such Stockholder immediately after such purchase equals no more than such Stockholder's Applicable Percentage (not to exceed such Stockholder's Initial Percentage) immediately prior to the First Follow-On Offering (assuming, in the case of Convertible Securities, the conversion, exchange or exercise at such time of all Convertible Securities). 9.3 Failure to Exercise. In the event that a Stockholder fails to exercise the participation right within such ten (10) day period, then the Company shall have 120 days thereafter to sell the New Securities with respect to which the Stockholder's participation rights hereunder were not exercised, at a price and upon general terms not materially more favorable to the purchasers thereof than specified in the Company's notice to the Stockholders. In the event that the Company has not issued and sold the New Securities within such 120 day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Stockholders pursuant to this Section 9. 10. SECTION 5.08 OF THE LLC AGREEMENT. Section 5.08 of the LLC's limited liability company agreement, dated as of October 29, 1997 (the "LLC Agreement"), establishes the manner in which the Stockholders, as members of the LLC, will treat contributions to the LLC for U.S. Federal income tax purposes. In order to induce the Stockholders to enter into this Agreement and to consummate the transactions identified herein, the Company agrees that it will not take any action that contradicts or is inconsistent with such agreed treatment of contributions to the LLC for U.S. Federal income tax purposes unless a final determination (which shall include the execution of a Form 870-AD or successor form) requires a different treatment. 11. TERM. This Agreement shall terminate on October 29, 2005. 12. GENERAL PROVISIONS. 12.1 Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or if deposited in the U.S. mail by registered or certified mail, return receipt requested, postage prepaid, as follows: (a) if to the Company, at: MarketWatch.com, Inc. 825 Battery Street San Francisco, CA 94111 Attention: J. Peter Bardwick Facsimile: 415/392-1972 with a copy to: 14 Fenwick & West LLP Two Palo Alto Square Palo Alto, CA 94306 Attention: Mark C. Stevens Facsimile: 650/494-1417 (b) If to CBS: 51 West 52nd Street New York, NY 10019 Attention: Fredric G. Reynolds Louis J. Briskman Facsimile: 212/975-9191 212/597-4031 (c) If to DBC: Data Broadcasting Corporation 3955 Point Eden Way Hayward, CA 94545 Attention: Mark F. Imperiale Facsimile: 510/266-6018 Any party hereto (and such party's permitted assigns) may by notice so given provide and change its address for future notices hereunder. Notice shall conclusively be deemed to have been given when personally delivered or five (5) days after being deposited in the mail in the manner set forth above. 12.2 Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof. 12.3 Amendment of Rights. Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the parties hereto (and/or any of their permitted successors or assigns). 12.4 Governing Law. This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of Delaware, excluding that body of law relating to conflict of laws. 12.5 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded form this Agreement and the balance of this Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms. 15 12.6 Third Parties. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement. 12.7 Successor and Assigns. The provisions of this Agreement shall inure to the benefit of, and shall be binding upon, the successors and permitted assigns of the parties hereto. 12.8 Captions. The captions to sections of this Agreement have been inserted for identification and reference purposes only and shall not be used to constitute or interpret this Agreement. 12.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 12.10 No Assignment. No party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto and any attempt to do so will be void. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. DATA BROADCASTING CORPORATION CBS BROADCASTING INC. By: /s/ Mark F. Imperiale By: /s/ Louis J. Briskman ---------------------------- ---------------------------- Name: Mark F. Imperiale Name: Louis J. Briskman -------------------------- -------------------------- Title: President Title: Executive Vice President ------------------------- and General Counsel ------------------------- MARKETWATCH.COM, INC. MARKETWATCH.COM, LLC By: /s/ J. Peter Bardwick By: /s/ J. Peter Bardwick ---------------------------- ---------------------------- Name: J. Peter Bardwick Name: J. Peter Bardwick -------------------------- -------------------------- Title: Chief Financial Officer Title: Chief Financial Officer ------------------------- ------------------------- [SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT] 17 EX-99.4 5 EXHIBIT 99.4 Exhibit 99.4 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of January 13, 1999 (the "Effective Date") by and between MarketWatch.com. Inc., a Delaware corporation (the "Company"), and the entities listed on Exhibit A hereto (collectively, the "Stockholders" and each individually a "Stockholder"). RECITALS WHEREAS, the Company and the Stockholders have entered into that certain Merger Agreement (the "Merger Agreement") dated as of the date hereof, which provides, among other things, that Marketwatch.Com, LLC (the "LLC") shall merge with and into the Company (the "Merger") with the Company being the entity surviving the Merger; WHEREAS, immediately prior to the Merger, the Stockholders were the sole members of the LLC; WHEREAS, the Stockholders each received 4,500,000 shares of the Common Stock of the Company, par value $0.01 per share (the "Merger Shares"), in exchange for their membership interests in the LLC; WHEREAS, as a condition to the Stockholders agreeing to enter into the Merger Agreement, the Company has agreed to grant the Stockholders certain registration rights with respect to the Merger Shares and other securities of the Company which they may hold in the future; NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Stockholders hereby, intending to be legally bound by the terms hereof, agree as follows: 1. REGISTRATION RIGHTS. 1.1 Definitions. For purposes of this Agreement: (a) Form S-3. The term "Form S-3" means such form under the Securities Act as is in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC. (b) Holder. The term "Holder" means any person owning of record Registrable Securities that have not been sold to the public or pursuant to Rule 144 ("Rule 144") promulgated under the Securities Act of 1933, as amended (the "1933 Act") or any assignee of record of such Registrable Securities to whom rights under this Agreement have been duly assigned in accordance with this Agreement. (c) Prospectus. The term "Prospectus" shall mean the prospectus included in any registration statement filed pursuant to the provisions hereof (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the 1933 Act), as amended or supplemented by any prospectus supplement (including, without limitation, any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such registration statement), and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. (d) Registrable Securities. The term "Registrable Securities" means: (1) all of the Merger Shares, (2) any securities of the Company subsequently acquired by a Stockholder or any entity which controls, is controlled by, or is under common control with a Stockholder, and (3) any securities of the Company issued as a dividend or other distribution with respect to, or in exchange for or in replacement thereof excluding in all cases, however, (i) any Registrable Securities sold by a person in a transaction in which rights under this Section 1 are not assigned in accordance with this Agreement, or (ii) any Registrable Securities sold in a public offering pursuant to a registration statement filed with the SEC or sold pursuant to Rule 144 except to the extent reacquired by a Stockholder or an entity which controls, is controlled by or is under common control with a Stockholder as provided in clause (2) above. (e) Registrable Securities Then Outstanding. The number of shares of "Registrable Securities then outstanding" shall mean the number of Registrable Securities that are common stock of the Company and are issued and outstanding at such time plus with respect to any Registrable Securities issued and outstanding at such time that are not common stock of the Company, the number of shares of common stock of the Company into which such Registrable Securities are then or will be convertible or otherwise exchangeable or exerciseable. (f) Registration. The terms "register," "registered," and "registration " refer to a registration effected by preparing and filing a registration statement in compliance with the 1933 Act, and the declaration or ordering of effectiveness of such registration statement. (g) SEC. The term "SEC" or "Commission " means the U.S. Securities and Exchange Commission. 1.2 Demand Registration. (a) Request by Stockholder. If the Company shall receive at any time after 180 days following the effective date of the registration statement for the Company's initial public offering, a written request from either Stockholder (the "Initiating Holder") that the Company file a registration statement under the 1933 Act covering the registration of Registrable -2- Securities with a reasonably anticipated aggregate price to the public of at least three million dollars ($3,000,000) pursuant to this Section 1.2, then the Company shall effect, as soon as practicable, and in any event use its best efforts to effect within 60 days of such request, the registration under the 1933 Act of all Registrable Securities which the Initiating Holder requests to be registered and included in such registration, subject only to the limitations of this Section 1.2. (b) Underwriting. If the Initiating Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, then it shall so advise the Company as a part of its request made pursuant to this Section 1.2. The Initiating Holder shall (a) select the managing underwriter to administer such offering after consultation with the Company and subject to the approval of the Company, which approval shall not be unreasonably withheld, and (b) enter into an underwriting agreement in customary form with such managing underwriter. Notwithstanding any other provision of this Section 1.2, if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of Registrable Securities which would otherwise be registered and underwritten pursuant hereto the Company will so advise the Initiating Holder, and the number of securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated first, to the Initiating Holder, second, to the Company, third, among all other holders of Registrable Securities and fourth, among all other holders of securities of the Company. (c) Maximum Number of Demand Registrations. The Company is obligated to effect only two (2) such registrations for each Stockholder pursuant to this Section 1.2. Only registrations in which a Stockholder is the Initiating Holder shall count against such limit with respect to such Stockholder. The Company shall not be deemed to have effected a registration pursuant to this Section 1.2 unless a registration statement in respect thereof shall have been declared effective by the SEC and remains effective for 120 days or such earlier time until all Registrable Securities registered under such Registration Statement have been sold (or withdrawn from such registration at the request of the Initiating Holder). (d) Deferral; Jurisdictional Requirements. Notwithstanding the foregoing, if the Company shall furnish to the Initiating Holder a certificate signed by the President or Chief Executive Officer of the Company stating that it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for a period of not more than 120 days after receipt of the request of the Initiating Holder or such earlier time as such a certificate could no longer be given in good faith; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period. (e) Withdrawn Request. The Initiating Holder may withdraw a request for registration under this Section 1.2 at any time prior to the effective date of the Registration Statement related to such registration, provided that if such Stockholder elects to remain liable for all expenses incurred in conjunction therewith then such withdrawn registration statement shall not count toward the maximum number of registrations provided for in section -3- 1.2(c). Notwithstanding the foregoing provisions of this Section 1.2(e), if such withdrawal is the result of a material adverse change in the business, assets, properties, condition (financial or otherwise), results of operations or prospects of the Company that was unknown to such Stockholder at the time the request for registration was made and the withdrawal of such request is made with reasonable promptness upon learning of such material adverse change, then such request for registration that is so withdrawn shall not count toward the maximum number of registrations provided for in Section 1.2(c) and such Holder shall not be liable for the expenses incurred in connection with such withdrawn registration statement. 1.3 Piggyback Registrations. (a) The Company shall notify all Holders of Registrable Securities in writing at least thirty (30) days prior to filing any registration statement under the 1933 Act for purposes of effecting a public offering of securities of the Company (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding registration statements on Form S-8 or S-4 or relating solely to any employee benefit plan or an acquisition of any entity or business) and will afford Holders, subject to the terms and conditions set forth herein, an opportunity to include in such registration statement all or any part of the Registrable Securities then held by Holders. Holders shall, within twenty (20) days after receipt of the above-described notice from the Company, so notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Securities a Holder wishes to include in such registration statement. If a Holder decides not to include all of its Registrable Securities in any registration statement filed by the Company, the Holder shall nevertheless continue to have the right to include any Registrable Securities not included in such registration statement in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein. (b) Underwriting. If a registration statement with respect to which the Company gives notice under this Section 1.3 pertains to an underwritten offering, then the Company shall so advise Holders. In such event, the right of Holders to have the Registrable Securities included in a registration pursuant to this Section 1.3 shall be conditioned upon Holders' participation in such underwriting and the inclusion of the Registrable Securities in the underwriting to the extent provided herein. Each Holder proposing to sell Registrable Securities in such offering shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriter or underwriters determine(s) in good faith that marketing factors require a limitation of the number of securities to be underwritten, then the managing underwriter(s) may exclude securities (including Registrable Securities) from the registration and the underwriting, and the number of securities that may be included in the registration and the underwriting shall be allocated, first, to the Company, second, between the Holders, on a pro-rata basis based on the number of Registrable Securities held by each such Holder and third to any other holders of the Company's securities, provided that if the registration is a registration pursuant to Section 1.2, the "cut-back" provisions described in the last sentence of Section 1.2(b) shall apply. If a Holder disapproves of the terms of any such -4- underwriting, a Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter(s), delivered at least ten (10) business days prior to the effective date of the registration statement or if notified of the terms thereafter, promptly after such notification. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. 1.4 Form S-3 Registration. In case the Company shall receive from either Stockholder a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Stockholder or its affiliates, then the Company will: (a) Registration. As soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Stockholder's or its affiliates' Registrable Securities as are specified in such request, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 1.4: (1) if Form S-3 is not available for such offering by the Stockholder; (2) if the Stockholder, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than one million dollars ($1,000,000); or (3) if the Company shall furnish to the Stockholder a certificate signed by the President or Chief Executive Officer of the Company stating that it would be seriously detrimental to the Company and its stockholders for such Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement no more than once during any twelve month period for a period of not more than one hundred twenty (120) days after receipt of the request of the Stockholder under this Section 1.4 or such earlier time as such a certificate could no longer be given in good faith. (b) Not Demand Registration. Form S-3 registrations shall not be deemed to be demand registrations as described in Section 1.2 above. (c) Notwithstanding anything to the contrary herein, the Company is obligated to effect only two (2) registrations on Form S-3 per year and each Stockholder may request only one (1) such registration per year pursuant to this Section 1.4. (d) Withdrawn Request. The Stockholder requesting a registration pursuant to this Section 1.4 may withdraw a request for registration under this Section 1.4 at any time prior to the effective date of the Registration Statement related to such registration, provided that if such Holder elects to remain liable for all expenses incurred in conjunction therewith then such withdrawn registration statement shall not count toward the maximum number of -5- registrations provided for in Section 1.4(c). Notwithstanding the foregoing provisions of this Section 1.4(d), if such withdrawal is the result of a material adverse change in the business, assets, properties, condition (financial or otherwise), results of operations or prospects of the Company that was unknown to such Holder at the time the request for registration was made and the withdrawal of such request is made with reasonable promptness upon learning of such material adverse change, then such a request for registration that is so withdrawn shall not count toward the maximum number of registrations provided for in Section 1.4(c) and such Holder shall not be liable for the expenses incurred in connection with such withdrawn registration statement. 1.5 Obligations of the Company. Whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities, use its best efforts to cause such registration statement to become effective as soon as practicable and with respect to registrations effected pursuant to Sections 1.2, 1.3 and 1.4 keep such registrations effective for up to one hundred twenty (120) days, excluding any lock-up period, or such shorter period of time as is agreed to in writing by the Company and each applicable Holder. (b) For such period of time as shall be required in connection with the transactions contemplated thereby and permitted by applicable rules, regulations and administrative practice of the SEC (but not for more than 120 days from the effective date thereof), file such post-effective amendments and supplements to such registration statement as shall be necessary so that neither such registration statement nor any related prospectus shall contain any material misstatement or omission relative to the Company or any of its assets or liabilities or its businesses of affairs and will otherwise comply with all applicable federal, state and foreign securities laws. (c) Furnish to the Holder such number of copies of a Prospectus, including a preliminary Prospectus, in conformity with the requirements of the 1933 Act, and such other documents as it may reasonably request in order to facilitate the disposition, of the Registrable Securities owned by it that are included in such registration. (d) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless already subject thereto. (e) If requested by the underwriters for any underwritten offering by a Holder pursuant to any registration requested under Section 1.2 or 1.4, the Company shall enter into an underwriting agreement with such underwriters for such offering, such agreement to be satisfactory in form and substance to such Stockholder and to contain such representations and warranties by the Company and such other terms and provisions (including, without limitation, -6- provisions for indemnification of such underwriters by the Company) as are customarily contained in such underwriting agreements. The Stockholder shall be a party to such underwriting agreement and may, at its option, require that any or all of the representations and warranties by, and the agreements on the part of, the Company to and for the benefit of such underwriters be made to and for the benefit of such Stockholder and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such Stockholder. (f) Notify the Holders promptly, (i) of the time such registration statement becomes effective or when any amendment or supplement or prospectus forming a part of such registration statement has been filed or becomes effective, (ii) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of a registration statement for amendments or supplements to such registration statement or related prospectus or for additional information, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a registration statement or the initiation or threatening of any proceedings for that purpose (and the Company will use its best efforts to prevent the issuance of any such stop order or to obtain its withdrawal promptly if such stop order should be issued), (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any event which makes any statement made in a registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in the registration statement or prospectus so that, in the case of a registration statement, it will not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and, at the reasonable request of a Holder, the Company shall also promptly prepare and file with the Securities and Exchange Commission and make available to such Holder any supplement or amendment reasonably necessary so that neither such registration statement nor any related prospectus shall contain any material misstatement or omission as a result of such event (provided that the 120 day period referred to in Section 1.2, 1.3 or 1.4 shall be extended by the period from which the Company gives the notice specified in this clause until such supplement or amendment is made available to such Holder), and (vi) of the Company's reasonable determination that a post-effective amendment to a registration statement would be appropriate; except that notice of an event or determination referred to in (v) or (vi) above need be made only if a registration statement relating to Registrable Securities is then in effect. (g) Furnish, at the request of any Holder requesting registration of Registrable Securities, on the effective date of the Registration Statement, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and -7- reasonably satisfactory to the Holder requesting registration, and (ii) a "comfort" letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to the Holder requesting registration. (h) Provide for the listing of the Registrable Securities on the stock exchange or authorization for trading on automated quotation system on which the Registrable Securities' class of securities are then listed or quoted; provided however, nothing contained herein shall obligate the Company to have listed any Registrable Securities which are of a class of securities of the Company not then listed on a stock exchange or authorized for trading on automated quotation system. (i) Make available for inspection by the Holder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other professional retained by the Holder or such underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement. 1.6 Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Sections 1.2. 1.3 or 1.4 with respect to any particular Holder that such Holder shall furnish to the Company such information regarding such Holder, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to timely effect the registration of its Registrable Securities. 1.7 Expenses. All expenses incurred in connection with a registration pursuant to Sections 1.2, 1.3 and 1.4, including without limitation all registration and qualification fees, printers' and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for the selling Holders to be selected by the selling Stockholder(s) (but excluding underwriters' discounts and commissions), shall be borne by the Company. Each Holder participating in a registration pursuant to Section 1 shall bear such Holder's proportionate share (based on the total number of shares sold in such registration other than for the account of the Company) of all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering. 1.8 Indemnification. In the event any registration statement is filed by the Company: (a) By the Company. To the extent permitted by law, the Company will indemnify and hold harmless each Holder, each officer and director of a Holder, any agent or underwriter (as defined in the 1933 Act) for the Holders and each person (as defined in Section 2(2) of the 1933 Act), if any, who controls such Holder or such underwriter within the meaning of Section 15 of the 1933 Act or the Section 20 of the Securities Exchange Act of 1934, -8- as amended (the "1934 Act") or any similar federal statute then in effect, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or in any amendments or supplements thereto; (ii) the omission or alleged omission to state in such registration statement, including any preliminary prospectus or final prospectus contained therein or in any amendments or supplements thereto, a material fact required to be stated therein, or necessary to make the statements therein not misleading (in the case of any preliminary prospectus or final prospectus, in the light of the circumstances under which they are made); or (iii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any federal or state securities law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or any federal or state securities law in connection with the offering covered by such registration statement; and the Company will reimburse each Holder, each officer or director of a Holder, and each such agent, underwriter or controlling person for any legal or other expenses reasonably incurred by them, as incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this subsection 1.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage or liability to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder; or by such officer, director, agent, underwriter or controlling person of such Holder; provided, further, however, the indemnification rights provided for in this Section 1.8(a) with respect to a registration statement shall not apply to any Holder who is not a Stockholder, unless such Holder has included any of its Registrable Securities in such registration statement. (b) By Selling Holders. To the extent permitted by law, each selling Holder, if any, will severally and not jointly indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act, as applicable, and any agent or underwriter, against any losses, claims, damages or liabilities (joint or several) -9- to which the Company or any such director, officer, controlling person, agent or underwriter may become subject under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such violation occurs in reliance upon and in conformity with written information concerning such Holder furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter in connection with investigating or defending any such loss, claim, damage, liability or action to the extent that (and only to the extent that) such Violation occurs in reliance upon and in conformity with written information concerning such Holder furnished by such Holder for use in connection therewith; provided, however, that the indemnity agreement contained in this subsection 1.8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Stockholders, which consent shall not be unreasonably withheld; and provided further, that the total amounts payable in indemnity by a Holder under this Section 1.8(b) in respect of any Violation shall not exceed the net proceeds received by such Holder in the registered offering out of which such Violation arises. (c) Notice. Promptly after receipt by an indemnified party under this Section 1.8 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim for indemnification in respect thereof is to be made against any indemnifying party under this Section 1.8, deliver to the indemnifying party a written notice of the commencement of such an action and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified patty by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 1.8 except to the extent that the indemnifying party is actually prejudiced by the failure to give such notice. In addition, the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 1.8. The indemnification provided in this Section 1.8 shall remain in full force and effect, regardless of any investigation made by or on behalf of any indemnified party, and shall survive the transfer of any Registrable Securities being registered pursuant to Section 1.2, 1.3 or 1.4. (d) Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of the Company and Holders are subject to the limitation that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes -10- effective or in the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreements shall not inure to the benefit of a selling Holder (or any officer or director of a selling Holder or any such agent, underwriter or controlling Person of a Holder) if a copy of the Final Prospectus was timely furnished to the indemnified party, and was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the 1933 Act; provided, however, that this subparagraph (d) shall not apply with respect to any underwritten offering. (e) Contribution. In order to provide for just and equitable contribution to joint liability under the 1933 Act in any case in which either (i) any Holder exercising rights under this Agreement (and/or any officer, director, agent, underwriter or controlling person who may be indemnified under Section 1.8(a)) makes a claim for indemnification pursuant to this Section 1.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 1.8 provides for indemnification in such case, or (ii) contribution under the 1933 Act may be required on the part of any such selling Holder (and/or any officer, director, underwriter or controlling person who may be indemnified under Section 1.8(b)) in circumstances for which indemnification is provided under this Section 1.8; then, and in each such case, the Company and such Holder (and/or such other person) will contribute to the aggregate losses, claims, damages and expenses or liabilities to which they may be subject (after contribution from others) in proportion to their relative fault. The relative fault of the Company and a Holder shall be determined by reference to, among other things, whether the untrue or alleged omission of a material fact relates to information supplied by the Company or by such Holder and the parties' relative intent, knowledge, access to information and opportunity to correct or present such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 1.8(e) were determined by pro rata allocation or by any other method of allocation which does not cake account of the equitable considerations referred to in the two immediately preceding sentences, provided, however, that in no event, except in instances of fraud by a Holder in which there is no limitation, (i) shall such Holder be responsible for more than the portion represented by the percentage that the public offering price of the Registrable Securities of such Holder offered by and sold under the registration statement bears to the public offering price of all securities offered by and sold under such registration statement and (ii) shall such Holder be required to contribute any amount in excess of the public offering price of all such securities offered and sold by such Holder pursuant to such registration statement; and in any event, no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation. (f) Survival. The obligations of the Company and Holders under this Section 1.8 shall survive the completion of any offering of Registrable Securities in a registration statement or otherwise. -11- 1.9 Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of the Registrable Securities to the public without registration, for so long as Holders own any Registrable Securities, the Company agrees to: (a) Make and keep adequate, current public information available, as required by and defined in Rule 144, at all times; (b) Use its best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the 1934 Act; (c) So long as a Holder owns any Registrable Security, furnish to the Holder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of said Rule 144, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as a Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a stockholder of the Company to sell any such securities without registration; and (d) Take such further action as a Holder may reasonably request. 1.10 Termination of the Company's Obligations. The Company shall have no obligations to register Registrable Securities (i) if all Registrable Securities have been registered and sold pursuant to registrations effected pursuant to this Agreement, or (ii) at such time as all outstanding Registrable Securities may be sold within a three month period under Rule 144, as it may be amended from time to time, including but not limited to amendments that reduce that period of time that securities must be held before such securities may be sold pursuant to such rule. 1.11 "Market Stand-Off" Agreement. Each Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, sell or otherwise transfer or dispose of any Registrable Securities then owned by such Holder (other than to donees or affiliates of the Holder who agree to be similarly bound) for up to (1) one hundred eighty (180) days following the effective date of a registration statement of the Company filed under the Securities Act with respect to the initial public offering of securities of the Company (the "IPO"), and (2) ninety (90) days following the first underwritten public offering of securities of the Company following the IPO; provided, however, that all executive officers and directors of the Company then holding securities of the Company enter into similar agreements. In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section and to impose stop transfer instructions with respect to the Registrable Securities and such other shares of stock of cash Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. 1.12. Review. Each Stockholder shall have the right to require the insertion in any registration statement filed by the Company of language, in form and substance satisfactory -12- to the Stockholder, to the effect that the holding by the Stockholder of any Registrable Securities is not to be construed as a recommendation by the Stockholder of the investment quality of the securities of the Company and that such holding does not imply that the Stockholder will assist in meeting any future financial requirements of the Company. The Company covenants that it will not file any registration statement under the Securities Act unless it shall first have given notice thereof to the Stockholders. The Company further covenants that the Stockholders shall have the right prior to filing with the SEC, to receive copies of such registration statement and any amendment thereof or supplement thereto and any prospectus forming a part thereof in a timely fashion to enable them to participate in the preparation of such registration statement, amendment, supplement or prospectus and to request the insertion therein of material furnished in timely fashion (not to exceed ten business days from the date of receipt of such material) in writing to the Company, which in a Stockholder's judgment should be included therein. Notwithstanding the foregoing provisions of this Section 1.12, the rights of a Stockholder under this Section 1.12 shall not apply if the Registrable Securities held by such Stockholder and its affiliates are equal to or less than five percent (5%) of the total Common Stock of the Company then outstanding. 2. ASSIGNMENT. 2.1 Assignment. Notwithstanding anything herein to the contrary, the registration rights of a Holder under Section 1 hereof may be assigned only to (a) an affiliate of a Holder, (b) a party who acquires from a Holder at least fifteen percent (15%) of the shares of Common Stock that constituted the original number of Registrable Securities (as such number may be adjusted to reflect subdivisions, combinations and stock dividends of the Company's Common Stock and similar events) or (c) any party who acquires ownership or control of a Holder through a merger, consolidation, sale of assets or similar business combination (such party is referred to as a "Assignee"); provided, however, that (w) no party may be assigned any of the foregoing rights (other than pursuant to clause (c)) until the Company is given written notice by the assigning party at the time of such assignment stating the name and address of the assignee and identifying the securities of the Company as to which the rights in question are being assigned; (x) any such Assignee shall receive such assigned rights subject to all the terms and conditions of this Agreement, including without limitation the provisions of this Section 2, and (y) upon an assignment or assignments pursuant to clause (b) hereof, the rights held by each Holder under this Agreement other than the Stockholders or their permitted assignees under clauses (a) or (c) above, may only be exercised by persons or entities holding a majority of the Registrable Securities not held by the Stockholders or their permitted assignees under clauses (a) or (c) above. 3. GENERAL PROVISIONS. 3.1 Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or if deposited in the U.S. mail by registered or certified mail, return receipt requested, postage prepaid, as follows: -13- (a) if to the Company, at: MarketWatch.com, Inc. 825 Battery Street San Francisco, CA 94111 Attention: J. Peter Bardwick Facsimile: 415/392-1972 with a copy to: Fenwick & West LLP Two Palo Alto Square Palo Alto, CA 94306 Attention: Mark C. Stevens Facsimile: 650/494-1417 (b) If to a Stockholder, at such Stockholder's respective address as set forth on Exhibit A hereto. (c) If to any other Holder, at such Holder's respective address as set forth in the Company's share register. Any party hereto (and such party's permitted assigns) may by notice so given provide and change its address for future notices hereunder. Notice shall conclusively be deemed to have been given when personally delivered or five days after when deposited in the mail in the manner set forth above. 3.2 Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof. 3.3 Amendments of Rights. Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company, and any Stockholder (and /or any of their permitted successors or assigns pursuant to clauses (a) or (c) of Section 2.1) affected by such amendment or waiver. In the event the rights of a Holder who becomes a Holder pursuant to the provisions of clause (b) under Section 2.1 hereunder are sought to be waived, then the Holders of a majority of the Registrable Securities owned by such Holders may waive such rights on behalf of all of such other Holders. 3.4 Governing Law. This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of Delaware, excluding that body of law relating to conflict of laws. 3.5 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this -14- Agreement and the balance of this Agreement shall be interpreted as if such, provision(s) were so excluded and shall be enforceable in accordance with its terms. 3.6 Third Parties. Except as expressly provided in Section 1.8, nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 3.7 Successors And Assigns. Subject to the provisions of Section 2.1, the provisions of this Agreement shall inure to the benefit of, and shall be binding upon, the successors and permitted assigns of the parties hereto. 3.8 Captions. The captions to sections of this Agreement have been inserted for identification and reference purposes only and shall not be used to construe or interpret this Agreement. 3.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [The rest of this page intentionally left blank] -15- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. MARKETWATCH.COM, INC. HOLDERS CBS BROADCASTING INC. By: /s/ J. Peter Bardwick By: /s/ Louis J. Briskman ----------------------------- ----------------------------- Name: J. Peter Bardwick Name: Louis J. Briskman --------------------------- --------------------------- Title: Chief Financial Officer Title: Executive Vice President and -------------------------- General Counsel ---------------------------- DATA BROADCASTING CORPORATION By: /s/ Mark F. Imperiale ----------------------------- Name: Mark F. Imperiale --------------------------- Title: President -------------------------- [Signature Page to Registration Rights Agreement] -16- EX-99.5 6 EXHIBIT 99.5 Exhibit 99.5 REVOLVING CREDIT AGREEMENT This Revolving Credit Agreement (this "Agreement") is made and entered into effective as of January 13, 1999 (the "Effective Date") by and between Data Broadcasting Corporation, a Delaware corporation ("Lender"), and MarketWatch.com, Inc., a Delaware corporation ("Borrower"). RECITALS WHEREAS, Lender is a party to that certain Limited Liability Company Agreement dated as of October 29, 1997, between CBS Inc., a New York corporation ("CBS") and Lender, with respect to Marketwatch.Com, LLC, a Delaware limited liability company (the "LLC"), which provides, among other things, that Lender shall provide to the LLC, on an unsecured, revolving basis, loans in amounts up to $5,000,000 (the "Revolving Loan"); WHEREAS, pursuant to the terms of that certain Agreement and Plan of Reorganization dated as of the date hereof, LLC will merge with and into the Borrower (the "Merger"), with Borrower to be the entity surviving the Merger; WHEREAS, Borrower and Lender desire that Lender's obligation to provide the Revolving Loan shall survive the Merger; WHEREAS, Lender desires to loan certain sums to Borrower from time to time, and Borrower wishes to borrow certain sums from Lender, on and subject to the terms and conditions contained in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Lender and Borrower hereby, intending to be legally bound by the terms hereof, agree as follows: 1. CERTAIN DEFINITIONS. As used herein: 1.1 Business Day. The term "Business Day" means any day other than a Saturday, Sunday, or other day on which commercial banks in San Francisco, California are authorized or required by law to close. 1.2 Credit Period. The term "Credit Period" means that period of time beginning on the Effective Date and ending on October 29, 2000. 1.3 Loan Documents. The term "Loan Documents" means, collectively, this Agreement, the Note (as defined below) executed and delivered pursuant hereto, and any other documents executed or delivered by Borrower pursuant to this Agreement or in connection with any Loan. 1.4 Maturity Date. The term "Maturity Date" means that date which is the earlier to occur of (a) October 29, 2000; or (b) the date on which Lender declares the entire unpaid principal amount and all accrued interest on each outstanding Note immediately due and payable in full under Section 8.2(b). 2. AMOUNT AND TERMS OF CREDIT. 2.1 Commitment to Lend. Subject to all the terms and conditions of this Agreement, and in reliance on the representations, warranties and covenants of Borrower set forth in this Agreement, Lender agrees to make loans of funds to Borrower during the Credit Period on a revolving basis (such loans being collectively hereinafter referred to as "Loans" and each individually as a "Loan"), in an aggregate cumulative total principal amount not to exceed five million Dollars (US $5,000,000). Lender's obligation to make Loans to Borrower under this Agreement is hereinafter referred to as the "Commitment." Notwithstanding the foregoing, Lender will not be obligated to make a Loan to Borrower unless and until Borrower executes and delivers to Lender a Note (as defined in Section 2.2) for the principal amount of such Loan. In addition, Lender will not be obligated to advance any Loan to Borrower on or after the Maturity Date, and Lender's obligation to advance any Loan to Borrower is subject to satisfaction of all relevant terms and conditions of this Agreement, including but not limited to the conditions precedent and other provisions of Sections 5 (with respect to the initial Loan) and 6 (with respect to each Loan). Notwithstanding the foregoing, Lender will not be obligated to make a Loan to Borrower unless and until a Borrower first gives Lender written notice of Borrower's request for a Loan hereunder that sets forth the principal amount to the borrowed by Borrower under such requested Loan (a "Loan Notice") and the date on which such Loan is requested to be advanced, which date shall not be sooner than five (5) Business Days following Lender's receipt of such Loan Notice. It is also agreed that amounts previously advanced by Lender pursuant to Section 12.01 of the Limited Liability Company Agreement dated as of October 29, 1997 shall be included as part of the Initial Loan. 2.2 Note. Borrower's indebtedness to Lender under each Loan advanced by Lender under this Agreement will be evidenced by a separate Promissory Note of Borrower in the form attached hereto as Exhibit "A" (the "Note"). The Note will provide that interest on unpaid principal will accrue at a rate equal to the prime rate as announced by The Chase Manhattan Bank as its prime rate in effect at its principal office in New York City plus two percent (2%) per annum (calculated on the basis of a 360-day year) compounded annually (but in no event higher than the highest lawful rates). 2.3 Maturity. Unless payment thereof is accelerated or otherwise becomes due earlier under the terms of this Agreement (including but not limited to the provisions of Section 8.2) or the terms of a Note the unpaid principal amount of all Loans and all unpaid interest accrued thereon, together with any other fees, expenses or costs incurred in connection therewith, will be immediately due and payable to Lender in full on the Maturity Date. 2 2.4 Prepayment. Borrower may at any time and from time to time on any Business Day prepay any Loan in whole or in part in increments of U.S. $1,000 on at least one (1) Business Day's prior written notice, or telephonic notice promptly confirmed in writing, received by Lender no later than 10:00 a.m., Pacific Time. Each prepayment will be applied as follows: (a) first, to the payment of interest accrued on all Loans outstanding, and (b) second, to the extent that the amount of such prepayment exceeds the amount of all such accrued interest, to the payment of principal on such Loan or Loans as Borrower may designate. 3. CLOSING DATE; DELIVERY. 3.1 Closing Date. The closing of the initial Loan (the "Closing ") will be held by mail and/or telecopy on the Effective Date (the "Closing Date"), or at such other time and place as Borrower and Lender may mutually agree. 3.2 Delivery. At the Closing, Borrower will execute and deliver to Lender the Note, duly executed by Borrower. 4. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and warrants to Lender that: 4.1 Organization and Standing; Charter Documents. Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as such is presently conducted and as proposed to be conducted. Borrower is duly qualified to do business as a foreign corporation in good standing in any state or jurisdiction in the United States in which it is required to be qualified to do intrastate business as the Company's business is currently conducted, except for jurisdictions in which failure to so qualify could not reasonably be expected to have a material adverse effect on the business and operations of the Company taken as a whole. True and accurate copies of the Certificate of Incorporation (the "Charter") and Bylaws of Borrower, each as amended and currently in effect, have been delivered to Lender and Lender's counsel. 4.2 Authorization. All corporate action on the part of Borrower and its officers, directors and stockholders that is necessary for the authorization, execution, delivery and performance of each of the Loan Documents by Borrower has been taken; and each of the Loan Documents, when executed and delivered by Borrower, will constitute valid and legally binding obligations of Borrower, enforceable in accordance with their terms. 5. CONDITIONS INITIAL LOAN. The obligation of Lender to make the initial Loan under the Commitment is subject to the satisfaction (or written waiver by Lender) of all the following conditions precedent: 5.1 Representations True. All representations and warranties of Borrower contained in this Agreement and all other Loan Documents will be true, correct and complete in all respects with the same effect as though such representations and warranties had been made on 3 and as of the Closing; and Lender will have received a certificate executed by the President or Chief Executive Officer of Borrower certifying the foregoing. 5.2 Note. Lender will have received the Note representing the initial Loan, executed by a duly authorized officer of Borrower. 5.3 Corporate Documents. Lender will have received, in form and substance satisfactory to Lender and its counsel, a copy of the records of all actions taken by Borrower, including all corporate resolutions of Borrower authorizing or relating to the execution, delivery and performance of the Loan Documents and the consummation of the transactions contemplated thereby, and a certified copy of the Charter of Borrower. 5.4 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents incident to such transactions will be in form and substance satisfactory to Lender and Lender's counsel, and Lender will have received all counterpart originals or certified or other copies of such documents as it may reasonably request. 6. CONDITIONS PRECEDENT TO LOANS. The obligation of Lender to make each Loan, including but not limited to the initial Loan, will be subject to the satisfaction of all the following additional conditions precedent: 6.1 No Event of Default. No event will have occurred and be continuing, and no event would result from the making of such Loan, that would constitute an Event of Default as defined herein. 6.2 Note. Lender will have received the Note representing such additional Loan, executed by a duly authorized officer of Borrower. 6.3 Representations True. All representations and warranties of Borrower contained in this Agreement or in any other Loan Documents will be true, correct and complete in all respects with the same effect as though such representations and warranties had been made on and as of the date such Loan is actually advanced (except to the extent such representations and warranties specifically relate to an earlier date, in which case they will be true, accurate and complete in all material respects as of such earlier date). 6.4 All Agreements Performed. All agreements, obligations, conditions and covenants set forth in this Agreement and all other Loan Documents to be performed by Borrower through the date such Loan is advanced will have been duly performed and complied with in all respects. 4 7. OTHER COVENANTS OF BORROWER. Borrower hereby covenants and agrees with Lender as follows: 7.1 Financial and Other Information and Inspection. Except as provided in Section 7.3, until the Termination Date, Borrower will provide to Lender all the reports and rights described below in this Section 7.1: (a) Annual Financial Information. As soon as practicable after the end of each fiscal year of Borrower, but no later than one hundred twenty (120) days thereafter, an audited consolidated balance sheet of Borrower and its subsidiaries as at the end of such fiscal year, and consolidated statements of income and cash flows of Borrower and its subsidiaries for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the financial statements for the previous fiscal year, all in reasonable detail and audited and certified by independent public accountants acceptable to Lender. (b) Quarterly Financial Information. As soon as practicable after the end of each fiscal quarter of Borrower, and in any event within forty-five (45) days thereafter, an unaudited consolidated balance sheet of Borrower and its subsidiaries as at the end of such quarter and consolidated statements of income and cash flows of Borrower and its subsidiaries for each such quarter and for the fiscal year to date, prepared in accordance with generally accepted accounting principles, all in reasonable detail. (c) Inspection Rights. The right to visit and inspect any of the properties of Borrower or any of its subsidiaries, and to discuss its and their affairs and finances with its and their officers, all at such reasonable times and as often as may reasonably be requested by Lender. (d) Other Information. With reasonable promptness, such other information and data, including, without limitation, lists of property and accounts, budgets, agreements with insurers, forecasts, tax returns and reports, with respect to Borrower and its subsidiaries as may from time to time may be reasonably requested by Lender, and all such other information and communications (including, without limitation, notices of meetings of Borrower's shareholders) as Borrower will have supplied to its holders of any shares of its capital stock. 7.2 Termination of Covenants. The covenants set forth in Sections 7.1 and 7.2 will terminate on the earlier or: (a) the date upon which a registration statement filed by Borrower under the Securities Act of 1933, as amended, in connection with a firm commitment underwritten public offering of its securities first becomes effective and the securities registered thereunder are sold; (b) the date Borrower first becomes subject to filing reports under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended; or (c) the repayment in full of all indebtedness under all Notes, provided that Lender is under no further obligation to make any additional Loans hereunder. 5 7.3 Further Assurances. In addition to the obligations and documents which this Agreement expressly requires Borrower to execute, deliver and perform, Borrower will execute, deliver and perform, and will cause its subsidiaries to execute, deliver and perform, any and all further acts or documents which Lender may reasonably require in order to carry out the purposes of this Agreement or any of the other Loan Documents. 8. EVENTS OF DEFAULT OF BORROWER. 8.1 Events of Default. The occurrence of any of the following events will constitute an "Event of Default": (a) Borrower fails to pay any principal or any accrued interest under any Note or any Loan when the same is due and payable, or fails to pay any amount of principal or accrued interest due under any Note or any Loan on the Maturity Date therefor, and such failure to pay is not cured by Borrower within five (5) calendar days after Lender gives written notice of such failure to pay to Borrower; (b) any material representation or warranty made by or on behalf of Borrower in this Agreement or in any other Loan Document, or any statement or certificate that Borrower may at any time give in writing pursuant thereto or in connection therewith is false, misleading or incomplete in any material respect when made (or deemed to have been made); (c) Borrower fails or neglects to perform, keep or observe any covenant set forth in this Agreement or in any of the other Loan Documents, and the same has not been cured within ten (10) calendar days after Borrower becomes aware thereof; (d) Borrower or any of its subsidiaries becomes insolvent, or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a receiver, liquidator, custodian or trustee for it or for a substantial part of its property or business, or such a receiver, liquidator, custodian or trustee otherwise is appointed and is not discharged within thirty (30) calendar days after such appointment; or (e) bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors are instituted by or against Borrower or any of its subsidiaries, or any order, judgment or decree is entered against Borrower or any such subsidiary decreeing its dissolution or liquidation; provided, however, with respect to an involuntary petition in bankruptcy, such petition is not have been dismissed within thirty (30) days after the filing of such petition. 8.2 Remedies of Lender. Upon and after the occurrence of any Event of Default, Lender will have no further obligation to make any Loan or Loans to Borrower, and in addition, at Lender's sole option by written notice to Borrower, Lender take any one or more of the following actions: 6 (a) Lender may immediately terminate the Commitment and all liabilities and obligations of Lender under this Agreement, without affecting Lender's rights under this Agreement and the Note(s); (b) Lender may declare the entire principal amount of and all accrued interest on the Note(s) and all Loans to immediately be due and payable in full, whereupon such amounts will immediately become due and payable in full, provided that in the case of an Event of Default listed in paragraph (d) or (e) of Section 8.1, the principal and interest will immediately become due and payable without the requirement of any notice or other action by Lender; and (c) Exercise all rights and remedies granted under the Loan Documents or otherwise available to Lender at law or in equity. 9. MISCELLANEOUS. 9.1 Survival. The representations and warranties of Borrower contained in or made pursuant to this Agreement and all the other Loan Documents will survive the execution and delivery of the Loan Documents. 9.2 Entire Agreement. This Agreement, the Note, and the exhibits and schedules attached hereto constitute the entire agreement and understanding among the parties with respect to the subject matter thereof and supersede any prior understandings or agreements of the parties with respect to such subject matter. 9.3 Successors and Assigns. The terms and conditions of this Agreement will inure to the benefit of and be binding upon the respective successors and assigns of the parties; provided, however, that neither party may assign or delegate any of its rights or obligations hereunder or under any other Loan Document or any interest herein or therein without the other party's prior written consent. 9.4 No Third Party Beneficiaries; Construction. Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. This Agreement and its exhibits are the result of negotiations between the parties and has been reviewed by each party hereto; accordingly, this Agreement will be deemed to be the product of the parties hereto, and no ambiguity will be construed in favor of or against any party. 9.5 Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of California as applied to agreements entered into solely between residents of, and to be performed entirely in, such State, without reference to that body of law relating to conflicts of law or choice of law. 9.6 Counterparts. This Agreement may be executed in two or mare counterparts, each of which will be deemed in original, but all of which together will constitute one and the same instrument. 7 9.7 Notices. Any notice required or permitted under this Agreement will be given in writing and will be deemed effectively given upon personal delivery; upon confirmed transmission by telecopy or telex; or three (3) days following deposit with the United States Post Office, by certified or registered mail, postage prepaid, addressed: To Borrower: MarketWatch.Com, Inc. 825 Battery Street San Francisco, CA 94111 Telephone: (415) 733-0500 Telecopier: (415) 392-1972 Attention: J. Peter Bardwick To Lender: Data Broadcasting Corporation 3955 Point Eden Way Hayward, CA 94545 Telephone: (510) 266-6000 Telecopier: (510) 266-6018 Attention: Mark Imperiale or at such other address as such party may specify by written notice given in accordance with this Section. 9.8 Modification; Waiver. This Agreement may be modified or amended only by a writing signed by both parties hereto. No waiver or consent with respect to this Agreement will be binding unless it is set forth in writing and signed by the party against whom such waiver is asserted. No course of dealing between Borrower and Lender will operate as a waiver or modification of any party's rights under this Agreement or any other Loan Document. No delay or failure on the part of either party in exercising any right or remedy under this Agreement or any other Loan Document will operate as a waiver of such right or any other right. A waiver given on one occasion will not be construed as a bar to, or as a waiver of, any right or remedy on any future occasion. 9.9 Rights and Remedies Cumulative. The rights and remedies of Lender herein provided will be cumulative and not exclusive of any other rights or remedies provided by law or otherwise. 9.10 Severability. Any invalidity, illegality or unenforceability of any provision of this Agreement in any jurisdiction will not invalidate or render illegal or unenforceable the remaining provisions hereof in such jurisdiction and will not invalidate or render illegal or unenforceable such provision in any other jurisdiction. 8 9.11 Attorneys' Fees. If any party hereto commences or maintains any action at law or in equity (including counterclaims or cross-complaints) against the other party hereto by reason of the breach or claimed breach of any term or provision of this Agreement or any other Loan Document, then the prevailing party in said action will be entitled to recover its reasonable attorney's fees and court costs incurred therein. IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the Effective Date. MARKETWATCH.COM, INC. DATA BROADCASTING CORPORATION By: /s/ J. Peter Bardwick By: /s/ Mark F. Imperiale ------------------------------ ------------------------------- J. Peter Bardwick Title: Chief Financial Officer Title: President --------------------------- ---------------------------- Attachments: Exhibit A - Promissory Note [SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT] 9 THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. REVOLVING PROMISSORY NOTE San Francisco, California $5,000,000.00 January 13, 1999 This Revolving Promissory Note (this "Note") is made and delivered pursuant to that certain Revolving Credit Agreement dated as of January 13, 1999 between Borrower and Lender (as such terms are defined below), as such may be amended from time to time (the "Credit Agreement"). Unless otherwise defined herein, all capitalized terms used in this Note shall have the same meanings that are given to such terms in the Credit Agreement, the terms of which are incorporated into this Note by reference. 1. Obligation. The undersigned, MarketWatch.com, Inc., a Delaware corporation ("Borrower") hereby promises to pay to the order of Data Broadcasting Corporation, a Delaware corporation, ("Lender" or "Holder") on or before October 27, 2000, at Lender's principal place of business at 3955 Point Eden Way, Hayward, California 94545, or at such other place as Holder may direct, the principal sum of five million Dollars ($5,000,000.00) or so much thereof as may be advanced and outstanding, together with all interest accrued on unpaid principal, to be computed on each advance of a Loan from the date of its disbursement to Borrower, at a rate equal to the prime rate as announced by The Chase Manhattan Bank as its prime rate in effect at its principal office in New York City plus two percent (2%) per annum (calculated on the basis of a 360-day year), compounded annually. As used herein, the term "Holder" shall initially mean Lender, and shall subsequently mean each person or entity to whom this Note is duly assigned. The outstanding unpaid principal balance of this Note at any time shall be the total principal amounts advanced hereunder by Holder less the amounts of payments of principal made hereon by Borrower, which balance may be endorsed hereon from time to time by Holder in accordance with Section 2. Payments of interest on this Note shall be payable on a quarterly basis, on the last business day of each calendar quarter. 2. Recording of Loans and Payments. Holder is authorized to record on Schedule A hereto, and on any continuation(s) of such Schedule that may be attached to this Note: (a) the date and principal amount of each Loan advanced by Lender under the Credit Agreement; and (b) the date and amount of each payment or prepayment of principal and/or accrued interest of any Loan; which recordation will constitute prima facie evidence of the accuracy of the information so endorsed on Schedule A; provided, however, that any failure to record such information on such Schedule or continuation thereof will not in any manner affect the obligations of Borrower to make payments of principal and interest in accordance with the terms of this Note. Holder will promptly provide Borrower with a copy of each recordation made by Holder on Schedule A attached hereto. 3. Prepayment. Prepayment of unpaid principal and/or interest due under this Note may be made at any time without penalty as specified in the Credit Agreement. Unless otherwise agreed in writing by Holder, all payments will be made in lawful tender of the United States and will be applied (a) first, to the payment of accrued interest, and (b) second, (to the extent that the amount of such prepayment exceeds the amount of all such accrued interest), to the payment of principal. 4. Default; Acceleration of Obligation. Borrower will be deemed to be in default under this Note and the outstanding unpaid principal balance of this Note, together with all interest accrued thereon, will immediately become due and payable in full, without the need for any further action on the part of Holder, upon the occurrence of any Event of Default (as defined in the Credit Agreement). 5. Remedies On Default; Acceleration. Upon any Event of Default, Holder will have, in addition to its rights and remedies under this Note and the Credit Agreement, full recourse against any real, personal, tangible or intangible assets of Borrower, and may pursue any legal or equitable remedies that are available to Holder, and may declare the entire unpaid principal amount of this Note and all unpaid accrued interest under this Note to be immediately due and payable in full. 6. Waiver and Amendment. Any provision of this Note may be amended or modified only by a writing signed by both Borrower and Holder. Except as provided below with respect to waivers by Borrower, no waiver or consent with respect to this Note will be binding or effective unless it is set forth in writing and signed by the party against whom such waiver is asserted. No course of dealing between Borrower and Holder will operate as a waiver of modification of any party's rights or obligations under this Note. No delay or failure on the part of either party in exercising any right or remedy under this Note will operate as a waiver of such right or any other right. A waiver given on one occasion will not be construed as a bar to, or as a waiver of, any right or remedy on any future occasion. -2- 7. Waivers of Borrower. Borrower hereby waives presentment, notice of nonpayment, notice of dishonor. protest, demand and diligence. This Note may be amended only by a writing executed by Borrower and Holder. 8. Governing Law. This Note will be governed by and construed in accordance with the internal laws of the State of California as applied to agreements between residents thereof to be performed entirely within such State, without reference to that body of law relating to conflict of laws or choice of law. 9. Severability; Headings. The invalidity or unenforceability of any term or provision of this Note will not affect the validity or enforceability of any other term or provision hereof. The headings in this Note are for convenience of reference only and will not alter or otherwise affect the meaning of this Note. 10. Jurisdiction; Venue. Borrower, by its execution of this Note, hereby irrevocably submits to the in personam jurisdiction of the state courts of the State of California and of the United States District Court for the Northern District of California that are located in San Francisco, California, for the purpose of any suit, action or other proceeding arising out of or based upon this Note. 11. Attorneys' Fees. If suit is brought for collection of this Note, Borrower agrees to pay all reasonable expenses, including attorneys' fees, incurred by Holder in connection therewith whether or not such suit is prosecuted to judgment. 12. Assignment. This Note is not assignable by Holder without the written consent of Borrower. This Note may not be assigned or delegated by Borrower, whether by voluntary assignment or transfer, operation of law, merger or otherwise. 13. Credit Agreement. This Note incorporates by reference all the provisions of the Credit Agreement, including but not limited to all provisions contained therein with respect to Events of Default, waivers, remedies and covenants, and the description of the benefits, rights and obligations of each of Borrower and Holder under the Credit Agreement. IN WITNESS WHEREOF, Borrower has executed this Note as of the date and year first above written. BORROWER MarketWatch.com, Inc. a Delaware corporation By: /s/ J. Peter Bardwick ---------------------------------------- Name: J. Peter Bardwick -------------------------------------- Title: Chief Financial Officer ------------------------------------- -3- -----END PRIVACY-ENHANCED MESSAGE-----