Sale and Purchase Agreement – MarketWatch.com Inc., Pearson International Finance Ltd., Financial Times Group Ltd. and Pearson Internet Holdings BV

MARKETWATCH.COM, INC.



PEARSON INTERNATIONAL FINANCE LTD



FINANCIAL TIMES GROUP LIMITED



PEARSON INTERNET HOLDINGS BV





____________________

AGREEMENT

for the sale and purchase of

42,500 A Shares in 

FINANCIAL TIMES MARKETWATCH.COM 

(EUROPE) LIMITED

____________________
 
 
 
 
 













 
 
 

CONTENTS
 
 

CLAUSE		PAGE
1.	INTERPRETATION	1
2.	SALE OF THE SHARES AND PRICE	2
3.	COMPLETION	2
4.	POST COMPLETION UNDERTAKINGS	4
5.	WARRANTIES	4
6.	ENTIRE AGREEMENT	5
7.	VARIATION	5
8.	ANNOUNCEMENTS	6
9.	COSTS	6
10.	SEVERABILITY	6
11.	NOTICES	6
12.	WAIVERS/BUYER’S RIGHTS AND REMEDIES	7
13.	FURTHER ASSURANCE	8
14.	NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999	8
15.	CONFLICT WITH JV AGREEMENT	8
16.	COUNTERPARTS	8
17.	GOVERNING LAW	9

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THIS AGREEMENT is made on November 16, 2001

BETWEEN

(1) MARKETWATCH.COM, INC. a company incorporated under the laws of
Delaware and having its principal place of business at 825 Battery Street, San
Francisco, California 94111 (the Seller);

(2) PEARSON INTERNATIONAL FINANCE LTD a company incorporated
under the laws of England and Wales whose registered office is at 80 Strand,
London, WC2R 0RL (the Buyer);

(3) FINANCIAL TIMES GROUP LIMITED incorporated under the laws of
England and Wales whose registered office is at Number One, Southwark
Bridge, London SE1 9HL (Financial Times); and

(4) PEARSON INTERNET HOLDINGS BV incorporated under the laws of the
Netherlands whose principal place of business is at Media Centre, 4th FI, Rm
405, Sumatralaan 45, 1217 GP Hilversum, Netherlands (Pearson Internet).

WHEREAS:

Financial Times, Pearson Internet and the Seller are parties to a joint venture
agreement dated 19 June, 2000 governing the relationship of the Seller and Pearson
Internet as shareholders in Financial Times MarketWatch.com (Europe) Limited (the
JV Agreement).

Financial Times MarketWatch.com (Europe) Limited (the Company) is a
private company limited by shares incorporated in England and Wales. The Company
has an authorised share capital of £55,000 divided into 250,000 A Shares of 10 pence
(A Shares) each and 30,000 B shares of £1 each. 42,500 A Shares each have been
issued and are fully paid and are beneficially owned by the Seller (the Shares).
42,500 A Shares are held by Pearson Internet and 30,000 B Ordinary Shares of £1
each are held by the Buyer.

The Seller has agreed to sell the Shares to the Buyer, and Buyer has agreed to
purchase the Shares from the Seller for the consideration and upon the terms of this
Agreement.

IT IS AGREED as follows:

1. INTERPRETATION

In this Agreement, unless the context otherwise requires:

(a) Ancillary Agreements means the Transitional Services Agreement, the
WAT/CMS License Agreement, and the Assignment of Big Charts Sales
MOU (each as defined in clause 3.2);

(b) Buyer’s Group means the Buyer, any holding company from time to time of the
Buyer and any subsidiary from time to time of the Buyer or any such holding
company (with holding company and subsidiary being construed in
accordance with Section 736 of the Companies Act 1985);

(c) Buyer Party means each member of the Buyer’s Group which is a party to this
Agreement;

(d) Completion means completion of the sale and purchase of the Shares upon the
terms and the conditions of this Agreement;

(e) Seller’s Group means the Seller, any holding company from time to time of the
Seller and any subsidiary from time to time of the Seller or any such holding
company;

(f) the headings are inserted for convenience only and shall not affect the
construction of this Agreement;

(g) any reference to a document in the agreed form is to the form of the relevant
document agreed between the parties and for the purpose of identification
initialled by each of them or on their behalf (in each case with such
amendments as may be agreed by or on behalf of the Seller and the Buyer).

2. SALE OF THE SHARES AND PRICE

2.1 The Seller shall sell, and the Buyer shall purchase, the Shares, on the terms that
the same covenants shall be deemed to be given by the Seller on Completion in
relation to the Shares as are implied under Part I of the Law of Property
(Miscellaneous Provisions) Act 1994 where a disposition is expressed to be made
with full title guarantee. The Shares shall be sold free from all security interests,
options, equities, claims or other third party rights (including rights of pre-emption) of
any nature whatsoever, together with all rights attaching to them.

2.2 The total price payable by the Buyer to the Seller for the Shares shall be the sum
of US$1 (the Purchase Price).

3. COMPLETION

3.1 Completion shall be effected immediately after the signing of this Agreement.
The events referred to in the following provisions of this clause 3 shall take place on
or prior to Completion, and shall be deemed to be conditions to Completion (unless
waived in writing beforehand by the Seller, as regards the conditions set forth in
clause 3.3or the Buyer, as regards the conditions set forth in clause 3.2 ):

3.2 The Seller shall deliver (or cause to be delivered) to the Buyer the following:

(a) duly executed transfers into the name of the Buyer (or a member of the Buyer’s
Group as its nominee) in respect of all of the Shares, together with the
appropriate share certificate(s) and a certified copy of any authority under
which such transfer is made;

(b) all such other documents (including any necessary waivers or consents) as may be
required to enable the Buyer (or a member of the Buyer’s Group as its
nominee) to be registered as the holder(s) of the Shares;

(c) a letter of resignation, to take effect upon Completion, in the agreed form duly
executed by each of Joan Platt, Larry Kramer and Bill Bishop as directors of
the Company;

(d) a counterpart original of an agreement relating to the provision of transitional
services by the Seller to the Company in the agreed form between the Seller
and the Company, duly executed by the Seller (the Transitional Services
Agreement);

(e) a counterpart original of a licence agreement relating to the licensing of
WAT/CMS in the agreed form between the Seller and the Company duly
executed by the Seller (the WAT/CMS License Agreement); and

(f) a counterpart original of an assignment of the Revised Memorandum of
Understanding between the Seller and the Company dated October 4th, 2001
(the Big Charts Sales MOU) in the agreed form duly executed by the the
Seller (the Assignment of the Big Charts Sales MOU).

3.3 The Buyer and/or each Buyer Party shall deliver (or cause to be delivered) to
the Seller the following:

(a) a counterpart original of Transitional Services Agreement duly executed by
the Company;

(b) a counterpart original of the WAT/CMS License Agreement duly executed by
the Company; and

(c) a counterpart original of the Assignment of the Big Charts Sales MOU duly
executed by the Company and Financial Times Information Ltd.

3.4 The parties shall procure that resolutions of the Board of Directors of the
Company are passed by which the following business is transacted:

(a) the registration (subject to their being duly stamped) of the transfer in respect
of the Shares referred to in clause 3.2 is approved; and

(b) the resignations referred to in clause 3.2(c) are accepted and the Articles of
Association of the Company are amended with regard to the number of directors and
the appointment and removal of directors.

3.5 The Buyer shall, in satisfaction of its obligations under clause 2.2, pay
the Purchase Price in cash at Completion.

4. POST COMPLETION UNDERTAKINGS

4.1 The Buyer and each of the Buyer Parties, if applicable, agrees that, as soon as
practicable and in any event within 90 days of Completion, it will cease the use or
display of any trade or service marks, trade or service names, domain names or logos
containing the words ‘MarketWatch’ or any confusingly similar mark, name or logo,
except to the extent that this period may be extended with the prior written consent of
Seller at its sole discretion. The Seller accepts that the Buyer and the Company may
use the name ‘FT Markets’ or, subject to the foregoing sentence, a similar name.

4.2 To the extent that this has not already been done pursuant to Clause 2.6(b) of the
JV Agreement the Seller agrees that it shall transfer to the Buyer’s Group as soon as
practicable following Completion all domain names it has registered which comprise
or include the names ‘FT’ or ‘Financial Times’ including without limitation
‘ftmarketwatch.com’, ‘ftmarketwatch.net’, ‘ftmarketwatch.org’ and
‘ftmarketwatch.co.uk.’ Buyer shall pay all costs and fees associated with the
foregoing transfer.

5. WARRANTIES

5.1 The Seller represents and warrants to the Buyer as follows:

(a) the Seller has obtained all corporate authorisations and all other applicable
governmental, statutory, regulatory or other consents, licences, authorisations,
waivers or exemptions required to empower it to enter into and perform its
obligations under this Agreement and the Ancillary Agreements; and

(b) all of the Shares are fully-paid or properly credited as fully-paid and the Seller is
the sole legal and beneficial owner of them free from all security interests,
options, equities, claims or other third party rights (including rights of
pre-emption) of any nature whatsoever.

5.2 The Seller acknowledges that the Buyer has entered into this Agreement and the
Ancillary Agreements in reliance upon the warranties contained in clause 5.1.

5.3 Except as regards the Buyer’s and each Buyer Party’s representations and
warranties in clause 5.4, and except for fraud and deliberate malfeasance, the Seller
agrees to waive the benefit of all rights (if any) which the Seller may have against the
Company, or any present or former officer or employee of the Company, on whom
the Seller may have relied in agreeing to any term of this Agreement and the Seller
undertakes not to make any claim in respect of such reliance.

5.4 The Buyer and each Buyer Party represents and warrants to the Seller as follows:

(a) it has obtained all corporate authorisations and all other applicable governmental,
statutory, regulatory or other consents, licences, authorisations, waivers or
exemptions required to empower it to enter into and perform its obligations
under this Agreement and the Ancillary Agreements to which it is a party;

(b) the Company has obtained all corporate authorisations and all other applicable
governmental, statutory, regulatory or other consents, licences, authorisations,
waivers or exemptions required to empower it to enter into and perform its
obligations under the Ancillary Agreements to which it is a party; and

(c) there is no agreement (whether in writing or otherwise) or any present intention or
negotiations by or on behalf of the Buyer or any member of Buyer’s Group, to
issue, transfer or otherwise dispose of any equity interest in the Company, or
transfer or otherwise dispose of all or substantially all of the assets of the
Company, to a third party.

5.5 The Buyer and each Buyer Party acknowledges that the Seller has entered into this
Agreement and the Ancillary Agreements in reliance upon the warranties contained in
clause 5.4.

5.6 Except as regards the Seller’s representations and warranties contained in clause
5.1 and except for fraud and deliberate malfeasance, the Buyer and each member of
the Buyer’s Group that is a party to this Agreement agrees to waive the benefit of all
rights (if any) which it may have against the Seller or any member of the Seller’s
Group or any present or former officer or employee of the Seller or any member of
the Seller’s Group on whom it may have relied in agreeing to any term of this
Agreement and undertakes not to make any claim in respect of such reliance.

5.7 Each of the warranties in this clause 5 shall be construed as a separate warranty
and shall not be limited or restricted by reference to or inference from the terms of the
other warranty or any other term of this Agreement.

6. ENTIRE AGREEMENT

This Agreement, the Transitional Services Agreement, the WAT/CMS License
Agreement and the Assignment of Big Charts Sales together constitute the entire
agreement and understanding between the parties in connection with the sale and
purchase of the Shares and the transactions contemplated hereunder and thereunder.
None of the parties has entered into this Agreement or the Ancillary Agreements in
reliance upon any representation, warranty or undertaking which is not set out or
referred to in this Agreement or the Ancillary Agreements.

7. VARIATION

7.1 No variation of this Agreement (or of any of the documents referred to in this
Agreement) shall be valid unless it is in writing and signed by or on behalf of each of
the parties to it. The expression “variation” shall include any variation, supplement,
deletion or replacement however effected.

7.2 Unless expressly agreed, no variation shall constitute a general waiver of any
provisions of this Agreement, nor shall it affect any rights, obligations or liabilities
under or pursuant to this Agreement which have already accrued up to the date of
variation, and the rights and obligations of the parties under or pursuant to this
Agreement shall remain in full force and effect, except and only to the extent that they
are so varied.

8. ANNOUNCEMENTS

No announcement or circular in connection with the existence or the subject matter of
this Agreement shall be made or issued by or on behalf of the Seller or the Buyer
without the prior written approval of the other, (such approval not to be unreasonably
withheld or delayed) during any period prior to or within three (3) months after
Completion. This shall not affect any announcement or circular required by law or
the rules of any stock exchange.

9. COSTS

9.1 Subject to 9.2 and as expressly provided in 4.2 and 13.2, each of the parties shall
pay its own costs (being liabilities, losses, damages, costs (including legal costs) and
expenses (including taxation) in each case of any nature whatsoever) incurred in
connection with the negotiation, preparation and implementation of this Agreement.

9.2 The Buyer shall bear all stamp or other documentary or transaction duties and any
other transfer taxes arising as a result or in consequence of this Agreement or of its
implementation.

10. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, then such
provision shall (so far as it is invalid or unenforceable) be given no effect and shall be
deemed not to be included in this Agreement but without invalidating any of the
remaining provisions of this Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provisions by a valid and
enforceable substitute provision the effect of which is as close as possible to the
intended effect of the invalid or unenforceable provision.

11. NOTICES

11.1 Any notice or other communication to be given by one party to the other party
under, or in connection with, this Agreement shall be in writing and signed by or on
behalf of the party giving it. It shall be served by sending it by fax to the number set
out in clause 11.2, or delivering it by hand, or sending it by pre-paid recorded
delivery, special delivery or registered post, to the address set out in clause 11.2 and
in each case marked for the attention of the relevant party set out in clause 11.2 (or as
otherwise notified from time to time in accordance with the provisions of this
clause 11). Any notice so served by hand, fax or post shall be deemed to have been
duly given:

(a) in the case of delivery by hand, when delivered;

(b) in the case of fax, at the time of transmission;

(c) in the case of prepaid recorded delivery, special delivery or registered post, at 10
a.m. on the second business day following the date of posting.
provided that in each case where delivery by hand or by fax occurs after 6pm on a
business day or on a day which is not a business day, service shall be deemed to occur
at 9 a.m. on the next following business day.
References to time and business days in this clause 11 are to local time and business
days in the country of the addressee.

11.2 The addresses and fax numbers of the parties for the purpose of clause 11.1
are as follows:

Seller

Address: MarketWatch.com, Inc., 825 Battery Street, San Francisco, CA 94111
Fax: 415-392-2133
For the attention of: William Bishop and Terrie Prescott

Buyer

Address: FT.com, 37 – 45 Paul Street, London EC2A 4LS
Fax: (0)20 7825 7771
For the attention of: Mr Zach Leonard

11.3 A party may notify the other party to this Agreement of a change to its name,
relevant addressee, address or fax number for the purposes of this clause 11, provided
that, such notice shall only be effective on:

(a) the date specified in the notice as the date on which the change is to take place; or

(b) if no date is specified or the date specified is less than five business days after the
date on which notice is given, the date following five business days after
notice of any change has been given.

12. WAIVERS/BUYER’S AND SELLER’S RIGHTS AND REMEDIES

12.1 No failure or delay by either of the parties in exercising any right or remedy
provided by law under or pursuant to this Agreement shall impair such right or
remedy or operate or be construed as a waiver or variation of it or preclude its
exercise at any subsequent time and no single or partial exercise of any such right or
remedy shall preclude any other or further exercise of it or the exercise of any other
right or remedy.

12.2 The rights and remedies of the parties under or pursuant to this Agreement are
cumulative, may be exercised as often as such party considers appropriate and are in
addition to its rights and remedies under general law.

12.3 The rights and remedies of either of the parties under this Agreement shall not
be affected, and the parties’ respective liabilities under this Agreement shall not be
released, discharged or impaired, by (i) Completion, (ii) subject to compliance with
the notice requirements in clause 11, the expiry of any limitation period prescribed by
law, or (iii) any event or matter whatsoever, other than a specific and duly authorised
written waiver or release by the other party.

13. FURTHER ASSURANCE

13.1 The parties agree to perform (or procure the performance of) all further acts
and things, and execute and deliver (or procure the execution and delivery of) such
further documents, as may be required by law or as the other party may reasonably
require, whether on or after Completion, to implement and/or give effect to this
Agreement and the transactions contemplated by it and for the purpose of vesting in
the Buyer the Shares to be transferred to it pursuant to the provisions of this
Agreement.

13.2 The Buyer and each Buyer Party agree that each shall procure that there is
made available to the Seller at such time(s) and place(s) as party may reasonably
direct all information in the possession or under the control of the Buyer or any
Buyer Party which Seller or its auditors may from time to time reasonably require,
whether before or after Completion, in relation to the business and affairs of the
Company. The Seller shall cooperate reasonably with the Company and the Buyer’s
Group on all tax matters including without limitation future tax filings, but only to the
extent there is no adverse affect on Seller’s tax position or its tax expenses, and
provided that Company or Buyer’s Group, as the case may be, reimburse Seller for all
reasonable out-of-pocket expenses and costs incurred in connection herewith.

14. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

A person who is not a party to this Agreement shall have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any of its terms.

15. CONFLICT WITH JV AGREEMENT

To the extent, if any, that this Agreement is in conflict with the provisions of the JV
Agreement, the provisions of this Agreement shall prevail. To the extent that the
implementation and execution of this Agreement and the sale and purchase of the
Shares is inconsistent with any provision of the JV Agreement such provision is
hereby amended pro tanto.

16. COUNTERPARTS

This Agreement may be executed in any number of counterparts and any party hereto
may execute any such counterpart, each of which when executed and delivered shall
be deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. This Agreement shall become binding
when one or more counterparts taken together shall have been executed and delivered
by all of the parties. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other counterparts.

17. GOVERNING LAW

This Agreement and the relationship between the parties shall be governed by, and
interpreted in accordance with, English law.

[The remainder of this page has been left intentionally blank.]

AS WITNESS this Agreement has been signed on behalf of the parties the day and year
first before written.

SIGNED by Joan P. Platt
for and on behalf of
MARKETWATCH.COM, INC.
/s/ JOAN P. PLATT

SIGNED by David Colville
for and on behalf of
PEARSON INTERNATIONAL FINANCE LTD
/s/ DAVID COLVILLE

SIGNED by Andrew Gowers
for and on behalf of
FINANCIAL TIMES GROUP LTD
/s/ ANDREW GOWERS

SIGNED by David Colville
for and on behalf of
PEARSON INTERNET HOLDINGS BV
in the presence of:
/s/ DAVID COLVILLE