\n ARTICLE IV<\/p>\n Representations and Warranties of CBS<\/p>\n
SECTION 4.01. Organization, Standing and Power…………………………………………..15
\nSECTION 4.02. Authority; Execution and Delivery; Enforceability……………………………15
\nSECTION 4.03. No Conflicts; Consents……………………………………………………16<\/p>\n
ARTICLE V<\/p>\n
Covenants<\/p>\n
SECTION 5.01. Reasonable Best Efforts…………………………………………………..16
\nSECTION 5.02. Expenses; Transfer Taxes………………………………………………….16
\nSECTION 5.03. Post-Closing Cooperation………………………………………………….17
\nSECTION 5.04. Further Assurances……………………………………………………….17
\nSECTION 5.05. Year 2000 Compliance……………………………………………………..17<\/p>\n
ARTICLE VI<\/p>\n
Indemnification<\/p>\n
SECTION 6.01. Indemnification by DBC……………………………………………………18
\nSECTION 6.02. Indemnification by CBS……………………………………………………18
\nSECTION 6.03. Calculation of Losses…………………………………………………….19
\nSECTION 6.04. Termination of Indemnification…………………………………………….19
\nSECTION 6.05. Procedures………………………………………………………………19
\nSECTION 6.06. Survival of Representations……………………………………………….21<\/p>\n
ARTICLE VII<\/p>\n
General Provisions<\/p>\n
SECTION 7.01. Assignment………………………………………………………………21
\nSECTION 7.02. No Third-Party Beneficiaries………………………………………………21
\nSECTION 7.03. Attorney Fees……………………………………………………………21
\nSECTION 7.04. Notices…………………………………………………………………21
\nSECTION 7.05. Interpretation; Exhibits and Schedules; Certain Definitions…………………..22
\nSECTION 7.06. Counterparts…………………………………………………………….23
\nSECTION 7.07. Entire Agreement…………………………………………………………23
\nSECTION 7.08. Severability…………………………………………………………….23
\nSECTION 7.09. Amendments and Waivers……………………………………………………23
\nSECTION 7.10. Consent to Jurisdiction…………………………………………………..24
\nSECTION 7.11. Governing Law……………………………………………………………24
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
ii
\n 4<\/p>\n
CONTRIBUTION AGREEMENT (this “Agreement”) dated as of
\n October 29, 1997, among CBS INC., a New York corporation
\n (“CBS”), DATA BROADCASTING CORPORATION, a Delaware corporation
\n (“DBC”), and MARKETWATCH.COM, LLC, a Delaware limited
\n liability company (the “Company”).<\/p>\n
WHEREAS, immediately prior to the execution and delivery of this
\nAgreement, CBS and DBC entered into the Limited Liability Company Agreement of
\nMarketwatch.Com, LLC dated as of the date hereof, in the form attached as
\nExhibit A hereto (the “LLC Agreement”);<\/p>\n
WHEREAS, simultaneously herewith, CBS and the Company are entering into
\nthe License Agreement, in the form attached as Exhibit B hereto (the “License
\nAgreement”) and DBC and the Company are entering into the Services Agreement, in
\nthe form attached as Exhibit C hereto (the “DBC Services Agreement”); and<\/p>\n
WHEREAS, in connection with the execution and delivery of the LLC
\nAgreement, the License Agreement and the DBC Services Agreement and the
\nformation of the Company, each of CBS and DBC desires to receive certain
\nrepresentations and warranties from the other and each of them desires to
\nreceive certain agreements from the other.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the mutual
\nagreements herein and for other good and valuable consideration, the receipt and
\nadequacy of which are hereby acknowledged, the parties hereto, intending to be
\nlegally bound by the terms hereof applicable to each of them, hereby agree as
\nfollows:<\/p>\n
ARTICLE I<\/p>\n
Contributions<\/p>\n
SECTION 1.01. DBC Contribution; DBC Assets.<\/p>\n
(a) On the terms and subject to the conditions of this
\nAgreement, DBC hereby sells, assigns, transfers, conveys and delivers or is
\ncausing one or more of its subsidiaries to sell, assign, transfer, convey and
\ndeliver to the Company, and the Company hereby acquires from DBC, or such
\nsubsidiary, effective as of the date hereof, all the right, title and interest
\nof the DBC Companies (as defined below) in, to and under the DBC Assets (as
\ndefined below), and agrees to make the cash payments to the Company required
\npursuant to Section 1.01(b), in exchange for (i) a 50% membership interest in
\nthe Company (the “DBC Interest”) and (ii) the assumption of the Assumed DBC
\nLiabilities (as defined in Section 1.02). The contribution and acquisition of
\nthe DBC Assets, the making of the cash payments pursuant to Section 1.01(b) and
\nthe assumption of the Assumed DBC Liabilities is referred to in this Agreement
\nas the “DBC Contribution”. The term “Business” means the businesses conducted by
\nDBC and its subsidiaries and known as DBC News and DBC On-Line, including, but
\nnot limited to, the “Financial Markets”, “Mutual Fund Center”, “Trading Center”,
\n“Stock Chat” and “MarketWatch” portions of the Internet website owned by DBC and
\nknown as dbc.com. The term “DBC Companies” means DBC and any of its subsidiaries
\nthat engage in the operation of <\/p>\n
5<\/p>\n
the Business or own, lease or license and DBC Assets. The term “DBC Assets”
\nmeans the business, properties, assets, goodwill and rights of any of the DBC
\nCompanies, of whatever kind and nature, real or personal, tangible or
\nintangible, that are owned, leased or licensed by any of the DBC Companies and
\nare set forth on Schedule 1.01.<\/p>\n
(b) On the terms and subject to the conditions of this
\nAgreement, DBC hereby agrees to pay to the Company by wire transfer of
\nimmediately available funds, to an account specified by the Company in writing,
\n$1,000,000 on each of the date hereof and the first anniversary of the date
\nhereof.<\/p>\n
SECTION 1.02. Assumption of Certain Liabilities.<\/p>\n
(a) On the terms and subject to the conditions of this
\nAgreement, the Company hereby assumes, effective as of the date hereof, and from
\nand after the date hereof the Company agrees to pay, perform and discharge when
\ndue, any liability, obligation or commitment of the DBC Companies under the
\ncontracts, leases, licenses, indentures, agreements, commitments and other
\nlegally binding arrangements, whether oral or written (“Contracts”), listed on
\nSchedule 1.02 (the “DBC Contracts”), to the extent such liability, obligation or
\ncommitment relates to the period from and after the date hereof (the “Assumed
\nDBC Liabilities”), other than any Excluded DBC Liabilities.<\/p>\n
(b) Notwithstanding Section 1.02(a), or any other provision of
\nthis Agreement or any of the other agreements and instruments executed and
\ndelivered in connection herewith and the transactions contemplated hereby,
\nincluding, but not limited to, the License Agreement and the DBC Services
\nAgreement (the “Ancillary Agreements”), and regardless of any disclosure to CBS
\nor the Company, the Company shall not assume any Excluded DBC Liability, each of
\nwhich shall be retained and paid, performed and discharged when due by one of
\nthe DBC Companies. The term “Excluded DBC Liability” means:<\/p>\n
(i) any liability, obligation or commitment of any of
\n the DBC Companies not specifically assumed pursuant to Section 1.02(a);<\/p>\n
(ii) any liability, obligation or commitment of any
\n of the DBC Companies, whether express or implied, liquidated, absolute,
\n accrued, contingent or otherwise, or known or unknown, arising out of
\n the operation or conduct by any of the DBC Companies or any of their
\n respective affiliates of any business other than the Business, and any
\n liability, obligation or commitment of any subsidiary of DBC that is
\n not a DBC Company, whether express or implied, liquidated, absolute,
\n accrued, contingent or otherwise, or known or unknown;<\/p>\n
(iii) any liability, obligation or commitment of any
\n of the DBC Companies (A) arising out of any actual or alleged breach by
\n any of the DBC Companies of, or nonperformance by any of the DBC
\n Companies under, any Contract (including any DBC Contract) prior to the
\n date hereof or (B) accruing under any DBC Contract with respect to any
\n period prior to the date hereof;<\/p>\n
2
\n 6<\/p>\n
(iv) any liability, obligation or commitment of any
\n of the DBC Companies arising out of (A) any suit, action or proceeding
\n (“Proceeding”) pending or, to the knowledge of any of the DBC
\n Companies, threatened as of the date hereof or (B) any actual or
\n alleged violation by any of the DBC Companies or any of their
\n respective affiliates of any Applicable Law (as defined in Section
\n 3.03) prior to the date hereof;<\/p>\n
(v) any account payable or accrued liability of any
\n of the DBC Companies;<\/p>\n
(vi) any liability, obligation or commitment for
\n Taxes (as defined in Section 3.12), whether or not accrued, assessed or
\n currently due and payable, (A) of any of the DBC Companies or (B)
\n relating to the operation or ownership of the Business or the assets
\n for any Tax period (or portion thereof) ending on or prior to the date
\n hereof (for purposes of this clause (vii), all real property Taxes,
\n personal property Taxes and similar ad valorem obligations levied with
\n respect to the DBC Assets for a Tax period that includes (but does not
\n end on) the date hereof shall be apportioned between DBC and the
\n Company based upon the number of days of such period included in the
\n Tax period prior to the date hereof and the number of days of such Tax
\n period after the date hereof (which period shall include the date
\n hereof));<\/p>\n
(vii) except as provided in Section 5.02(b), any
\n liability, obligation or commitment for transfer, documentary, sales,
\n use, registration, value-added and other similar Taxes and related
\n amounts (including any penalties, interest and additions to Tax)
\n incurred in connection with this Agreement, the Ancillary Agreements,
\n the DBC Contribution and the other transactions contemplated hereby and
\n thereby (“Transfer Taxes”);<\/p>\n
(viii) any liability, obligation or commitment of any
\n of the DBC Companies arising under any DBC Benefit Plan (as defined in
\n Section 3.14(a));<\/p>\n
(ix) Any liability, obligation or commitment of any
\n of the DBC Companies that relates to, or that arises out of, products
\n or services shipped or sold by or on behalf of any of the DBC Companies
\n on or prior to the date hereof (including claims of negligence,
\n personal injury, product damage, product liability, product warranties,
\n promotional obligations, strict liability, product recall or any other
\n claims (including workers’ compensation, employer’s liability or
\n otherwise)), whether such liability, obligation or commitment relates
\n to or arises out of accidents, injuries or losses occurring on or prior
\n to or after the date hereof;<\/p>\n
(x) any liability, obligation or commitment of any of
\n the DBC Companies that relates to, or that arises out of, the
\n employment or the termination of the employment with any of the DBC
\n Companies of any employee or former employee of the Business (including
\n as a result of the transactions contemplated by this Agreement); and<\/p>\n
(xi) any liability, obligation or commitment of any
\n of the DBC Companies to any of their respective affiliates.<\/p>\n
3
\n 7<\/p>\n
(c) The Company shall acquire the DBC Assets free and clear of
\nall liabilities, obligations and commitments of any of the DBC Companies, other
\nthan the Assumed DBC Liabilities, and free and clear of all Liens (as defined in
\nSection 3.05), other than Permitted Liens (as defined in Section 3.05).<\/p>\n
SECTION 1.03. Consents of Third Parties.<\/p>\n
(a) Notwithstanding anything in this Agreement to the
\ncontrary, this Agreement shall not constitute an agreement to assign any asset
\nor any claim or right or any benefit arising under or resulting from such asset
\nif an attempted assignment thereof, without the consent of a third party, would
\nconstitute a breach or other contravention of the rights of such third party,
\nwould be ineffective with respect to any party to an agreement concerning such
\nasset, or would in any way adversely affect the rights of any of the DBC
\nCompanies or, upon transfer, the Company under such asset. If any transfer or
\nassignment by any of the DBC Companies to, or any assumption by the Company of,
\nany interest in, or liability, obligation or commitment under, any asset
\nrequires the consent of a third party, then such assignment or assumption shall
\nbe made subject to such consent being obtained. To the extent any DBC Contract
\nmay not be assigned to the Company by reason of the absence of any such consent,
\nthe Company shall not be required to assume any Assumed DBC Liabilities arising
\nunder such DBC Contract.<\/p>\n
(b) In connection with those consents that have not been
\nobtained as of the date hereof, DBC and the Company hereby agree that, until any
\nsuch required consent is obtained, DBC, or one or more of its subsidiaries, as
\nappropriate, shall, with the reasonable and necessary cooperation of the
\nCompany, and at the Company’s direction, continue to fulfill any and all
\nobligations and commitments, and enforce any and all rights, of the DBC
\nCompanies in connection with any asset, claim or right that constitutes a DBC
\nAsset but for which any required consent has not been obtained, and that the
\nCompany shall be entitled to all of the economic claims, rights and benefits
\nunder such asset, claim or right and DBC shall pay or cause to be paid to the
\nCompany all such economic benefits as promptly as practicable following receipt
\nby DBC or any of its subsidiaries. To the extent, and only to the extent, a
\nrequired consent is received to the transfer of any asset, claim or right, the
\nCompany shall be responsible for the Assumed DBC Liabilities, if any, arising
\nunder such asset, claim or right.<\/p>\n
SECTION 1.04. CBS Contribution. On the terms and subject to the
\nconditions of this Agreement, CBS will contribute to the Company, over a period
\nof five years and on the terms set forth in Exhibit D, advertising time with an
\naggregate rate card value of $50 million calculated in accordance with the terms
\nset forth in Exhibit D (the “CBS Contribution” and, together with the DBC
\nContribution, the “Contributions”), which contribution is deemed to have a
\ndiscounted present value equal to the discounted present value of the DBC
\nContribution, in exchange for a 50% membership interest in the Company (the “CBS
\nInterest”).<\/p>\n
4
\n 8<\/p>\n
ARTICLE II<\/p>\n
The Closing<\/p>\n
SECTION 2.01. The Closing. The closing of the Contributions (the
\n“Closing”) is taking place at the offices of Cravath, Swaine & Moore, 825 Eighth
\nAvenue, New York, New York 10019, on the date hereof.<\/p>\n
SECTION 2.02. Transactions To Be Effected at the Closing. At the
\nClosing:<\/p>\n
(a) DBC is delivering (i) appropriately executed copies of
\nthis Agreement and each Ancillary Agreement to which it is specified to be a
\nparty, (ii) such appropriately executed bills of sale, assignments and other
\ninstruments of transfer relating to the DBC Assets in form and substance
\nreasonably satisfactory to CBS and the Company and (iii) such other documents as
\nCBS or the Company have reasonably requested to demonstrate compliance with the
\nterms and provisions of this Agreement;<\/p>\n
(b) CBS is delivering (i) appropriately executed copies of
\nthis Agreement and each Ancillary Agreement to which it is specified to be a
\nparty, and (ii) such other documents as DBC or the Company have reasonably
\nrequested to demonstrate compliance with the terms and provisions of this
\nAgreement; and<\/p>\n
(c) the Company is delivering (i) appropriately executed
\ncopies of this Agreement and each Ancillary Agreement to which it is specified
\nto be a party, (ii) such appropriately executed assumption agreements and other
\ninstruments of assumption providing for the assumption of the Assumed DBC
\nLiabilities in form and substance reasonably satisfactory to CBS and DBC and
\n(iii) such other documents as CBS or DBC have reasonably requested to
\ndemonstrate compliance with the terms and provisions of this Agreement.<\/p>\n
ARTICLE III<\/p>\n
Representations and Warranties of DBC<\/p>\n
DBC hereby represents and warrants to CBS and the Company, as of the
\ndate of this Agreement, as follows:<\/p>\n
SECTION 3.01. Organization, Standing and Power. Each of the DBC
\nCompanies is duly organized, validly existing and in good standing under the
\nlaws of the jurisdiction in which it is organized and has full corporate power
\nand authority and possesses all governmental franchises, licenses, permits,
\nauthorizations and approvals necessary to enable it to own, lease or otherwise
\nhold its properties and assets and to conduct the Business and its other
\nbusinesses as presently conducted, other than such franchises, licenses,
\npermits, authorizations and approvals the lack of which, individually or in the
\naggregate, have not had and could not reasonably be expected to have a material
\nadverse effect (i) on the business, assets, condition (financial or otherwise)
\nor results of operations or prospects of DBC and its subsidiaries, taken as a
\nwhole, or of the Business, (ii) on the ability of DBC to perform its obligations
\nunder this Agreement and <\/p>\n
5
\n 9<\/p>\n
the Ancillary Agreements or (iii) on the ability of the DBC Companies to
\nconsummate the DBC Contribution and the other transactions contemplated hereby
\nand thereby (a “DBC Material Adverse Effect”). Each of the DBC Companies is duly
\nqualified to do business as a foreign corporation in each jurisdiction where the
\ncharacter of the DBC Assets held by it or the nature of the Business make such
\nqualification necessary for it to conduct the Business as currently conducted by
\nit or the failure to so qualify has had or could reasonably be expected to have
\na DBC Material Adverse Effect. DBC has delivered to the Company true and
\ncomplete copies of the certificate of incorporation and by-laws of each of the
\nDBC Companies, in each case as amended through the date of this Agreement.<\/p>\n
SECTION 3.02. Authority; Execution and Delivery; Enforceability. DBC
\nhas full power and authority to execute this Agreement and the Ancillary
\nAgreements to which it is a party. Each of the DBC Companies has full power and
\nauthority to consummate the DBC Contribution and the other transactions
\ncontemplated hereby and thereby. The execution and delivery by DBC of this
\nAgreement and the Ancillary Agreements to which it is a party and the
\nconsummation by the DBC Companies of the DBC Contribution and the other
\ntransactions contemplated hereby and thereby have been duly authorized by all
\nnecessary corporate action. DBC has duly executed and delivered this Agreement
\nand each Ancillary Agreement to which it is a party, and this Agreement, and
\neach Ancillary Agreement to which it is a party, constitutes its legal, valid
\nand binding obligation, enforceable against it in accordance with its terms
\nexcept as enforcement may be limited by bankruptcy, insolvency or similar laws
\naffecting creditors’ rights generally or equitable principles relating to or
\nlimiting creditors’ rights generally.<\/p>\n
SECTION 3.03. No Conflicts; Consents. The execution and delivery by DBC
\nof this Agreement and each Ancillary Agreement to which it is a party and the
\nconsummation of the DBC Contribution and the other transactions contemplated
\nhereby and thereby and compliance by DBC with the terms hereof and thereof do
\nnot conflict with, or result in any violation of or default (with or without
\nnotice or lapse of time, or both) under, or give rise to a right of termination,
\ncancellation or acceleration of any obligation or to loss of a material benefit
\nunder, or result in the creation of any Lien upon any of the properties or
\nassets of DBC or any of its subsidiaries under, any provision of (i) the
\ncertificate of incorporation or by-laws of DBC or any of its subsidiaries, (ii)
\nany Contract to which DBC or any of its subsidiaries is a party or by which any
\nof their respective properties or assets is bound or (iii) any judgment, order
\nor decree (“Judgment”) or statute, law, ordinance, rule or regulation
\n(“Applicable Law”) applicable to DBC or any of its subsidiaries or their
\nrespective properties or assets, other than, in the case of clauses (ii) and
\n(iii) above, any such items that, individually or in the aggregate, have not had
\nand could not reasonably be expected to have a DBC Material Adverse Effect. No
\nconsent, approval, license, permit, order or authorization (“Consent”) of, or
\nregistration, declaration or filing with, any Federal, state, local or foreign
\ngovernment or any court of competent jurisdiction, administrative agency or
\ncommission or other governmental authority or instrumentality, domestic or
\nforeign (a “Governmental Entity”), is required to be obtained or made by or with
\nrespect to DBC or any of its subsidiaries in connection with (A) the execution,
\ndelivery and performance of this Agreement or any Ancillary Agreement or the
\nconsummation of the DBC Contribution or the other transactions contemplated
\nhereby and thereby or (B) the conduct by the Company of the Business following
\nthe Closing as conducted on the date hereof.<\/p>\n
6
\n 10<\/p>\n
SECTION 3.04. Financial Statements.<\/p>\n
(a) Schedule 3.04 sets forth for the Business (i) a Statement
\nof Assets as of June 30, 1997 (the “Year End Balance Sheet”), (ii) a Statement
\nof Assets as of September 30, 1997 (the “First Quarter Balance Sheet”), (iii) an
\nIncome Statement for the twelve months ended June 30, 1997 (the “Full Year
\nIncome Statement”), and (iv) an Income Statement for the three months ended
\nSeptember 30, 1997 (the “First Quarter Income Statement”). The Year End Balance
\nSheet and the Full Year Income Statement were derived from the audited
\nconsolidated financial statements of DBC and its subsidiaries for the year ended
\nJune 30, 1997, as audited and opined upon by Price Waterhouse LLP in their
\nreport dated August 8, 1997. The term “Financial Statements” shall mean the Year
\nEnd Balance Sheet, the First Quarter Balance Sheet, the Full Year Income
\nStatement and the First Quarter Income Statement. The Financial Statements have
\nbeen prepared from the books and records of DBC and its subsidiaries relating to
\nthe Business and fairly present the financial condition and results of
\noperations of the Business as of the respective dates and for the respective
\nperiods indicated.<\/p>\n
(b) The Business does not have any material liabilities or
\nobligations of any nature (whether accrued, absolute, contingent, unasserted or
\notherwise), except for items set forth in Schedule 3.04(b).<\/p>\n
SECTION 3.05. DBC Assets. One of the DBC Companies has good and valid
\ntitle to all the DBC Assets, in each case free and clear of all mortgages,
\nliens, security interests, charges, easements, leases, subleases, covenants,
\nrights of way, options, claims, restrictions or encumbrances of any kind
\n(collectively, “Liens”), except (i) such as are set forth in Schedule 3.05 (all
\nof which shall be discharged prior to the Closing), (ii) mechanics’, carriers’,
\nworkmen’s, repairmen’s or other like Liens arising or incurred in the ordinary
\ncourse of business, Liens arising under original purchase price conditional
\nsales contracts and equipment leases with third parties entered into in the
\nordinary course of business and liens for Taxes that are not due and payable or
\nthat may thereafter be paid without penalty, and (iii) other imperfections of
\ntitle or encumbrances, if any, that do not, individually or in the aggregate,
\nmaterially impair the continued use and operation of the assets to which they
\nrelate in the conduct of the Business as presently conducted (the Liens
\ndescribed in clauses (ii) and (iii) above are referred to collectively as
\n“Permitted Liens”).<\/p>\n
SECTION 3.06. Intellectual Property.<\/p>\n
(a) Schedule 3.06 sets forth a true and complete list of all
\npatents (including all reissues, divisions, continuations and extensions
\nthereof), patent applications, patent rights, trademarks, trademark
\nregistrations, trademark applications, servicemarks, trade names, business
\nnames, brand names, domain names, copyrights, copyright registrations and
\nrenewals, designs, design registrations, software (together with all related
\nsource code(s)) and all owned, used, filed by or licensed to any of the DBC
\nCompanies and used, held for use or intended to be used in the operation or
\nconduct of the Business, other than unregistered designs and copyrights that,
\nindividually and in the aggregate, are not material to the conduct of the
\nBusiness as presently conducted. With respect to all Intellectual Property
\nconstituting DBC Assets (“Contributed<\/p>\n
7
\n 11<\/p>\n
Intellectual Property”) that is registered or subject to an application for
\nregistration, Schedule 3.06 sets forth a list of all jurisdictions in which such
\nContributed Intellectual Property is registered or registrations applied for an
\nall registration and application numbers. Except as set forth in Schedule 3.06
\n(i) all the Contributed Intellectual Property has been duly registered in, filed
\nin or issued by the appropriate Governmental Entity where such registration,
\nfiling or issuance is necessary or appropriate for the conduct of the business
\nas presently conducted, (ii) one or more of the DBC Companies is the sole and
\nexclusive owner of, and DBC has the right to use, execute, reproduce, display,
\nperform, modify, enhance, distribute, prepare derivative works of and
\nsublicense, without payment to any other person, all the Contributed
\nIntellectual Property and the consummation of the DBC Contribution and the other
\ntransactions contemplated hereby does not and will not conflict with, alter or
\nimpair any such rights, and (iii) during the past three years, none of the DBC
\nCompanies has received any written or oral communication from any person
\nasserting any ownership interest in any Contributed Intellectual Property.<\/p>\n
(b) None of the DBC Companies has granted any license of any
\nkind relating to any trade secrets, confidential information, inventions,
\nknow-how, formulae, processes, procedures, research records, records of
\ninventions, test information, market surveys, subscriber lists and marketing
\nknow-how of DBC constituting DBC Assets (the “Technology”), or to any
\nContributed Intellectual Property or the marketing or distribution thereof,
\nexcept nonexclusive licenses to end-users in the ordinary course of business.
\nNone of the DBC Companies is bound by or a party to any option, license or
\nagreement of any kind relating to the Intellectual Property of any other person
\nfor the use of such Intellectual Property in the conduct of the Business, except
\nas set forth in Schedule 3.06 and except for so-called “shrink-wrap” license
\nagreements relating to computer software licensed in the ordinary course of the
\nBusiness. The conduct of the Business as presently conducted does not violate,
\nconflict with or infringe the Intellectual Property of any other person. Except
\nas set forth in Schedule 3.06, (i) no claims are pending or, to the knowledge of
\nDBC, threatened, as of the date of this Agreement against any of the DBC
\nCompanies by any person with respect to the ownership, validity, enforceability,
\neffectiveness or use in the Business of any Intellectual Property and (ii)
\nduring the past three years DBC and its affiliates have not received any written
\nor oral communication alleging that DBC or any of its affiliates has in the
\nconduct of the Business violated any rights relating to Intellectual Property of
\nany person.<\/p>\n
(c) All material Technology has been maintained in confidence
\nin accordance with protection procedures customarily used in the industry to
\nprotect rights of like importance. All former and current members of management
\nand key personnel of DBC or any of its affiliates, including all former and
\ncurrent employees, agents, consultants and independent contractors who have
\ncontributed to or participated in the conception and development of material
\nTechnology (collectively, “Personnel”) either (i) have been party to a
\n“work-for-hire” arrangement or agreement with any of the DBC Companies, in
\naccordance with all Applicable Laws, that has accorded any of the DBC Companies
\nfull, effective, exclusive and original ownership of all tangible and intangible
\nproperty thereby arising or (ii) have executed appropriate instruments of
\nassignment in favor of one of the DBC Companies as assignee that have conveyed
\nto one of the DBC Companies full, effective and exclusive ownership of all
\ntangible and <\/p>\n
8
\n 12<\/p>\n
intangible property thereby arising. No former or current Personnel have any
\nclaim against any of the DBC Companies in connection with such person’s
\ninvolvement in the conception and development of any Technology and no such
\nclaim has been asserted or is threatened. None of the current officers and
\nemployees of any of the DBC Companies has any patents issued or applications
\npending for any device, process, design or invention of any kind now used or
\nneeded by any of the DBC Companies in the furtherance of the business, which
\npatents or applications have not been assigned to one of the DBC Companies, with
\nsuch assignment duly recorded in the United States Patent and Trademark Office.<\/p>\n
(d) All Contributed Intellectual Property, as applicable, is
\nfree of any “bugs” or “viruses” that could materially interfere with the
\nCompany’s use of such Intellectual Property.<\/p>\n
SECTION 3.07. Contracts.<\/p>\n
(a) Except as set forth in Schedule 3.07, and except for
\nContracts relating solely to assets that do not constitute DBC Assets, no DBC
\nCompany is a party to or bound by any Contract that is used, held for use or
\nintended for use in, or that arises out of, the operation or conduct of the
\nBusiness and that is:<\/p>\n
(i) an employment agreement or employment Contract;<\/p>\n
(ii) a collective bargaining agreement or other
\n Contract with any labor organization, union nor association;<\/p>\n
(iii) a covenant not to compete or other covenant of
\n any of the DBC Companies restricting the development, manufacture,
\n marketing or distribution of the products and services of the Business;<\/p>\n
(iv) a Contract with (A) any shareholder or affiliate
\n of DBC or (B) any current or former officer, director or employee of
\n DBC or any of its affiliates;<\/p>\n
(v) a lease, sublease or similar Contract with any
\n person under which (A) any of the DBC Companies is lessee of, or holds
\n or uses, any machinery, equipment, vehicle or other tangible personal
\n property owned by any person or (B) any of the DBC Companies is a
\n lessor or sublessor of, or makes available for use by any person, any
\n tangible personal property owned or leased by any of the DBC Companies,
\n in any such case has an aggregate future liability or receivable, as
\n the case may be, in excess of $5,000;<\/p>\n
(vi) (A) a continuing Contract for the future
\n purchase of materials, supplies or equipment, (B) a management,
\n service, consulting or other similar Contract or (C) an advertising
\n agreement or arrangement, in any such case that has an aggregate future
\n liability to any person in excess of $5,000;<\/p>\n
(vii) a material license, option or other Contract
\n relating in whole or in part to the Contributed Intellectual Property
\n (including any license or other Contract <\/p>\n
9
\n 13<\/p>\n
under which any of the DBC Companies is licensee or licensor of any
\n Contributed Intellectual Property) or to any Technology;<\/p>\n
(viii) (A) a Contract under which any of the DBC
\n Companies has borrowed any money from, or issued any note, bond,
\n debenture or other evidence of indebtedness to, any person or (B) any
\n other note, bond, debenture or other evidence of indebtedness issued to
\n any person;<\/p>\n
(ix) a Contract (including any so-called take-or-pay
\n or keepwell agreement) under which (A) any person has directly or
\n indirectly guaranteed indebtedness, liabilities or obligations of any
\n of the DBC Companies or (B) or any of the DBC Companies has directly or
\n indirectly guaranteed indebtedness, liabilities or obligations of any
\n other person (in each case other than endorsements for the purpose of
\n collection in the ordinary course of business);<\/p>\n
(x) a Contract under which any of the DBC Companies
\n has, directly or indirectly, made any advance, loan, extension of
\n credit or capital contribution to, or other investment in, any person
\n (other than extensions of trade credit in the ordinary course of the
\n Business);<\/p>\n
(xi) a Contract granting a Lien upon any DBC Asset;<\/p>\n
(xii) a Contract providing for indemnification of any
\n person with respect to material liabilities relating to any current or
\n former business of DBC or any predecessor person;<\/p>\n
(xiii) a Contract not made in the ordinary course of
\n the Business;<\/p>\n
(xiv) a confidentiality agreement;<\/p>\n
(xv) a Contract for the sale of any DBC Asset or the
\n grant of any preferential rights to purchase any DBC Asset or requiring
\n the consent of any party to the transfer thereof;<\/p>\n
(xvi) a Contract for any joint venture, partnership
\n or similar arrangement;<\/p>\n
(xvii) other Contract that has an aggregate future
\n liability to any person in excess of $5,000 and is not terminable by
\n one of the DBC Companies by notice of not more than 60 days for a cost
\n of less than $5,000; or<\/p>\n
(xviii) a Contract other than as set forth above to
\n which any of the DBC Companies is a party or by which it or any of its
\n assets or businesses is bound or subject that is material to the
\n Business or the use or operation of the DBC Assets.<\/p>\n
10
\n 14<\/p>\n
(b) Except as set forth in Schedule 3.07, all DBC Contracts
\nare valid, binding and in full force and effect and are enforceable by the
\napplicable DBC Companies in accordance with their terms except as enforcement
\nmay be limited by bankruptcy, insolvency or similar laws affecting creditors’
\nrights generally or equitable principles relating to or limiting creditors’
\nrights generally. Except as set forth in Schedule 3.07, the applicable DBC
\nCompanies have performed all material obligations required to be performed by
\nthem to date under the DBC Contracts, and they are not (with or without the
\nlapse of time or the giving of notice, or both) in breach or default in any
\nmaterial respect thereunder and, to the knowledge of DBC, no other party to any
\nDBC Contract is (with or without the lapse of time or the giving of notice, or
\nboth) in breach or default in any material respect thereunder. No DBC Company
\nhas, except as disclosed in the applicable Schedule, received any notice of the
\nintention of any party to terminate any DBC Contract. Complete and correct
\ncopies of all Contracts listed in the Schedules, together with all modifications
\nand amendments thereto, have been delivered to CBS and the Company.<\/p>\n
(c) Schedule 3.07 sets forth each DBC Contract with respect to
\nwhich the Consent of the other party or parties thereto is required by virtue of
\nthe execution and delivery of this Agreement or the consummation of the DBC
\nContribution to avoid the invalidity of the transfer of such Contract, the
\ntermination thereof, a breach, violation or default thereunder or any other
\nchange or modification to the terms thereof, each of which has been or will be
\nobtained.<\/p>\n
SECTION 3.08. Personal Property. Each material item of tangible
\npersonal property and interests therein, including all machinery, equipment,
\nfurniture and vehicles, of any of the DBC Companies that constitute DBC Assets
\n(the “Personal Property”) is in good working order (ordinary wear and tear
\nexcepted), is free from any material defect and has been maintained in all
\nmaterial respects in accordance with the past practice of the Business and
\ngenerally accepted industry practice, and no repairs, replacements or regularly
\nscheduled maintenance relating to any such item has been deferred. All leased
\npersonal property of the Business is in all respects in the condition required
\nof such property by the terms of the lease applicable thereto.<\/p>\n
SECTION 3.09. Permits.<\/p>\n
(a) Schedule 3.09 sets forth all material certificates,
\nlicenses, permits, authorizations and approvals (“Permits”) issued or granted to
\nany of the DBC Companies by Governmental Entities that are necessary or
\ndesirable for the conduct of the Business. Except as set forth in Schedule 3.09,
\n(i) all such Permits are validly held by one of the DBC Companies, and the
\napplicable DBC Companies have complied in all material respects with all terms
\nand conditions thereof, (ii) during the past three years, no DBC Company has
\nreceived notice of any Proceedings relating to the revocation or modification of
\nany such Permits the loss of which, individually or in the aggregate, has had or
\ncould reasonably be expected to have a DBC Material Adverse Effect, and (iii)
\nnone of such Permits will be subject to suspension, modification, revocation or
\nnonrenewal as a result of the execution and delivery of this Agreement or the
\nconsummation of the DBC Contribution.<\/p>\n
(b) The applicable DBC Companies possess all material Permits
\nto own or hold under lease and operate the DBC Assets and to conduct the
\nBusiness as currently conducted.<\/p>\n
11
\n 15<\/p>\n
SECTION 3.10. Insurance. The DBC Companies maintain policies of fire
\nand casualty, liability and other forms of insurance with respect to the
\nBusiness in such amounts, with such deductibles and against such risks and
\nlosses as are, in DBC’s judgment, reasonable for the Business. The material
\ninsurance policies maintained by the DBC Companies with respect to the Business
\nare listed in Schedule 3.10. All such policies are in full force and effect, all
\npremiums due and payable thereon have been paid, and no notice of cancellation
\nor termination has been received with respect to any such policy which has not
\nbeen replaced on substantially similar terms prior to the date of such
\ncancellation. To the knowledge of DBC, the Business has been conducted in a
\nmanner so as to conform in all material respects to all applicable provisions of
\nsuch insurance policies.<\/p>\n
SECTION 3.11. Sufficiency of DBC Assets. The DBC Assets, together with
\nthe services to be provided by DBC under the DBC Services Agreement, are
\nsufficient for the conduct of the Business immediately following the Closing in
\nthe same manner as currently conducted. There are not any assets used, held for
\nuse or intended to be used in the operation or conduct of the Business that do
\nnot constitute DBC Assets or which are not to be made available to the Company
\npursuant to the DBC Services Agreement.<\/p>\n
SECTION 3.12. Taxes.<\/p>\n
(a) For purposes of this Agreement:<\/p>\n
“Tax” means (i) any tax, governmental fee or other
\nlike assessment or charge of any kind whatsoever (including any tax imposed
\nunder Subtitle A of the Code and any net income, alternative or add-on minimum
\ntax, gross income, gross receipts, sales, use, ad valorem, value added,
\ntransfer, franchise, profits, license, withholding tax on amounts paid, payroll,
\nemployment, excise, severance, stamp, capital stock, occupation, property,
\nenvironmental or windfall profit tax, premium, custom, duty or other tax),
\ntogether with any interest, penalty, addition to tax or additional amount due,
\nimposed by any Governmental Entity (domestic or foreign) responsible for the
\nimposition of any such tax (a “Taxing Authority”), (ii) any liability for the
\npayment of any amount of the type described in clause (i) above as a result of a
\nparty to this Agreement being a member of an affiliated, consolidated or
\ncombined group with any other corporation at any time on or prior to the date
\nhereof and (iii) any liability of any person with respect to the payment of any
\namounts of the type described in clause (i) or (ii) above as a result of any
\nexpress or implied obligation of such person to indemnify any other person.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as
\namended.<\/p>\n
(b) Except as set forth in Schedule 3.12, (i) DBC, and
\nany affiliated group, within the meaning of Section 1504 of the Code, of which
\nany of the DBC Companies is or has been a member, has filed or caused to be
\nfiled in a timely manner (within any applicable extension periods) all material
\nTax returns, reports and forms required to be filed by the Code or by applicable
\nstate, local or foreign Tax laws, (ii) all Taxes shown to be due on such
\nreturns, reports and forms have been timely paid in full or will be timely paid
\nin full by the due date <\/p>\n
12
\n 16<\/p>\n
thereof, and (iii) no material Tax Liens have been filed and no material claims
\nare being asserted in writing with respect to any Taxes.<\/p>\n
(c) Except as set forth in Schedule 3.12, (i) neither DBC nor
\nany of its affiliates has made with respect to DBC, or the assets of the
\nBusiness, any consent under Section 341 of the Code, (ii) none of the DBC Assets
\nis “tax exempt use property” within the meaning of Section 168(h) of the Code,
\nand (iii) none of the DBC Assets is a lease made pursuant to Section 168(f)(8)
\nof the Internal Revenue Code of 1954.<\/p>\n
(d) None of the DBC Companies is a “foreign person” within the
\nmeaning of Section 1445 of the Code.<\/p>\n
SECTION 3.13. Proceedings. Schedule 3.13 sets forth a list of all
\npending Proceedings or claims with respect to which any of the DBC Companies has
\nbeen contacted in writing by counsel for the plaintiff or claimant, arising out
\nof the conduct of the Business or against or affecting any DBC Asset and that
\n(a) relate to or involve more than $5,000, (b) seek any material injunctive
\nrelief or (c) may give rise to any legal restraint on or prohibition against the
\ntransactions contemplated by this Agreement. Except as set forth in Schedule
\n3.13, none of the Proceedings or claims listed in Schedule 3.13 as to which
\nthere is at least a reasonable possibility of adverse determination would have,
\nif so determined, individually or in the aggregate, a DBC Material Adverse
\nEffect. Except as set forth in Schedule 3.13, to the knowledge of DBC, there are
\nno unasserted claims of the type that would be required to be disclosed in
\nSchedule 3.13 if counsel for the claimant had contacted DBC that if asserted
\nwould have at least a reasonable possibility of an adverse determination. Except
\nas set forth in Schedule 3.13, no DBC Company is a party or subject to or in
\ndefault under any material Judgment applicable to the conduct of the Business or
\nany DBC Asset or Assumed DBC Liability. Except as set forth in Schedule 3.13,
\nthere is not any Proceeding or claim by any of the DBC Companies pending, or
\nwhich any of the DBC Companies intends to initiate, against any other Person
\narising out of the conduct of the Business. Except as set forth in Schedule
\n3.13, to the knowledge of DBC, there is no pending or threatened investigation
\nof or affecting the conduct of the Business or any DBC Asset or Assumed DBC
\nLiability.<\/p>\n
SECTION 3.14. Benefit Plans.<\/p>\n
(a) Schedule 3.14 contains a list and brief description of all
\n“employee pension benefit plans” (as defined in Section 3(2) of the Employee
\nRetirement Income Security Act of 1974, as amended (“ERISA”)), maintained or
\ncontributed to by any of the DBC Companies for the benefit of any officers or
\nemployees of the Business (“DBC Pension Plans”) and all “employee welfare
\nbenefit plans” (as defined in Section 3(1) of ERISA), bonus, stock option, stock
\npurchase, deferred compensation plans or arrangements and other employee fringe
\nbenefit plans maintained, or contributed to, by any of the DBC Companies for the
\nbenefit of any officers or employees of the Business (all the foregoing,
\nincluding DBC Pension Plans, being herein called “DBC Benefit Plans”). DBC has
\nmade available to the Company true, complete and correct copies of (i) each DBC
\nBenefit Plan (or, in the case of any unwritten DBC Benefit Plans, descriptions
\nthereof), (ii) the two most recent annual reports on Form 5500 (including all<\/p>\n
13
\n 17<\/p>\n
schedules and attachments thereto) filed with the Internal Revenue Service with
\nrespect to each DBC Benefit Plan (if any such report was required), (iii) the
\nmost recent summary plan description for each DBC Benefit Plan for which such a
\nsummary plan description is required and (iv) each trust agreement, group
\nannuity contract or other funding and financing arrangement relating to any DBC
\nBenefit Plan.<\/p>\n
(b) Each DBC Benefit Plan has been administered in all
\nmaterial respects in accordance with its terms. The applicable DBC Companies and
\nall the DBC Benefit Plans are in compliance in all material respects with the
\napplicable provisions of ERISA, the Code, all other Applicable Laws and all
\napplicable collective bargaining agreements. Except as set forth in Schedule
\n3.14, all material reports, returns and similar documents with respect to the
\nDBC Benefit Plans required to be filed with any Governmental Entity or
\ndistributed to any DBC Benefit Plan participant have been duly and timely filed
\nor distributed. Except as set forth in Schedule 3.14, there are no Proceedings
\npending or, to the knowledge of DBC, threatened against or involving any DBC
\nBenefit Plan and there are no investigations by any Governmental Entity or other
\nclaims (except routine claims for benefits payable in the normal operation of
\nthe DBC Benefit Plans) pending or, to the knowledge of DBC, threatened against
\nor involving any DBC Benefit Plan or asserting any rights to benefits under any
\nDBC Benefit Plan.<\/p>\n
(c) Except as set forth in Schedule 3.14, no employee or
\nformer employee of the Business will become entitled to any bonus, retirement,
\nseverance, job security or similar benefit or any enhanced benefit solely as a
\nresult of the transactions contemplated hereby.<\/p>\n
SECTION 3.15. Absence of Changes or Events. Except as set forth in
\nSchedule 3.15, since the date of the First Quarter Balance Sheet, there has not
\nbeen any material adverse change in the business, assets, condition (financial
\nor otherwise), results of operations or prospects of the Business, taken as a
\nwhole. Except as set forth in Schedule 3.15, since the date of the First Quarter
\nBalance Sheet, DBC has caused the Business to be conducted in the ordinary
\ncourse and in substantially the same manner as previously conducted and has made
\nall reasonable efforts consistent with past practices to preserve the
\nrelationships of the Business with customers, suppliers and others with whom the
\nBusiness deals.<\/p>\n
SECTION 3.16. Compliance with Applicable Laws. Except as set forth in
\nSchedule 3.16, the Business is in compliance in all material respects with all
\nApplicable Laws, including those relating to occupational health and safety.
\nExcept as set forth in Schedule 3.16, no DBC Company has received any written or
\noral communication during the past three years from a Governmental Entity that
\nalleges that the Business is no in compliance in any material respect with any
\nApplicable Laws. No DBC Company has received any written notes that any
\ninvestigation or review by any Governmental Entity with respect to any DBC Asset
\nor the Business is pending or that any such investigation or review is
\ncontemplated. This Section 3.16 does not relate to matters with respect to
\nTaxes, which are the subject of Section 3.12.<\/p>\n
SECTION 3.17. Transactions with Affiliates. Except as set forth in
\nSchedule 3.17, none of the Contracts set forth in Schedule 3.07 between the
\nBusiness, on the one hand, and DBC or any of its affiliates, on the other hand,
\nwill continue in effect subsequent to the Closing.<\/p>\n
14
\n 18<\/p>\n
SECTION 3.18. Effect of Transaction. Except as set forth in Schedule
\n3.18, no creditor, employee, client, customer or other person having a material
\nbusiness relationship with the Business has informed any of the DBC Companies
\nthat such person intends to change such relationship because of the contribution
\nof the Business or the consummation of any other transaction contemplated
\nhereby.<\/p>\n
SECTION 3.19. Disclosure. No representation or warranty of DBC
\ncontained in this Agreement or in any Ancillary Agreement, and no statement
\ncontained in any document, certificate or Schedule furnished or to be furnished
\nby or on behalf of DBC to CBS or the Company or any of their representatives
\npursuant to this Agreement, contains or will contain any untrue statement of a
\nmaterial fact, or omits or will omit to state any material fact necessary, in
\nlight of the circumstances under which it was or will be made, in order to make
\nthe statements herein or therein not misleading or necessary in order to fully
\nand fairly provide the information required to be provided in any such document,
\ncertificate or Schedule.<\/p>\n
ARTICLE IV<\/p>\n
Representations and Warranties of CBS<\/p>\n
CBS hereby represents and warrants to DBC and the Company, as of the
\ndate of this Agreement, as follows:<\/p>\n
SECTION 4.01. Organization, Standing and Power. CBS is duly organized,
\nvalidly existing and in good standing under the laws of the jurisdiction in
\nwhich it is organized and has full corporate power and authority and possesses
\nall governmental franchises, licenses, permits, authorizations and approvals
\nnecessary to enable it to own, lease or otherwise hold its properties and assets
\nand to conduct its businesses as presently conducted, other than such
\nfranchises, licenses, permits, authorizations and approvals, the lack of which,
\nindividually or in the aggregate, have not had and could not reasonably be
\nexpected to have a material adverse effect on the ability of CBS to perform its
\nobligations under this Agreement and the Ancillary Agreements to which it is a
\nparty or to consummate the CBS Contribution and the other transactions
\ncontemplated hereby and thereby (a “CBS Material Adverse Effect”).<\/p>\n
SECTION 4.02. Authority; Execution and Delivery; Enforceability. CBS
\nhas full power and authority to execute this Agreement and the Ancillary
\nAgreements to which it is a party and to consummate the CBS Contribution and the
\nother transactions contemplated hereby and thereby. The execution and delivery
\nby CBS of this Agreement and the Ancillary Agreements to which it is a party and
\nthe consummation by it of the CBS Contribution and the other transactions
\ncontemplated hereby and thereby have been duly authorized by all necessary
\ncorporation action. CBS has duly executed and delivered this Agreement and each
\nAncillary Agreement to which it is a party, and this Agreement and each
\nAncillary Agreement to which it is a party constitutes its legal, valid and
\nbinding obligation, enforceable against it in accordance with its terms except
\nas enforcement may be limited by bankruptcy, insolvency or similar laws
\naffecting creditors’ rights generally or equitable principles relating to or
\nlimiting creditors’ rights generally.<\/p>\n
15
\n 19<\/p>\n
SECTION 4.03. No Conflicts; Consents. The execution and delivery by CBS
\nof this Agreement and each Ancillary Agreement to which it is a party and the
\nconsummation of the CBS Contribution and the other transactions contemplated
\nhereby and thereby and compliance by CBS wit the terms hereof and thereof do not
\nconflict with, or result in any violation of or default (with or without notice
\nor lapse of time, or both) under, or give rise to a right of termination,
\ncancelation or acceleration of any obligation or to loss of a material benefit
\nunder or result in the creation of any Lien upon any of the properties or assets
\nof CBS or any of its subsidiaries under, any provision of (i) the certificate of
\nincorporation or by-laws of CBS or any of its subsidiaries, (ii) any Contract to
\nwhich CBS or any of its subsidiaries is party or by which any of their
\nrespective properties or assets is bound or (iii) any Judgment or Applicable Law
\napplicable to CBS or any of its subsidiaries or their respective properties or
\nassets, other than, in the case of clauses (ii) and (iii) above, any such items
\nthat, individually or in the aggregate, have not had and could not reasonably be
\nexpected to have a CBS Material Adverse Effect. No Consent of, or registration,
\ndeclaration or filing with, any Governmental Entity is required to be obtained
\nor made by or with respect to CBS or any of its subsidiaries in connection with
\n(A) the execution, delivery and performance of this Agreement or any Ancillary
\nAgreement or the consummation of the CBS Contribution or the other transactions
\ncontemplated hereby and thereby or (B) the conduct by the Company of the
\nBusiness following the Closing as conducted on the date hereof.<\/p>\n
ARTICLE V<\/p>\n
Covenants<\/p>\n
SECTION 5.01. Reasonable Best Efforts. Each party shall, and shall
\ncause its affiliates to, use its reasonable best efforts (at its own expense) to
\nobtain, and to cooperate in obtaining, all consents from third parties necessary
\nor appropriate to permit the Contributions to be completed.<\/p>\n
SECTION 5.02. Expenses; Transfer Taxes.<\/p>\n
(a) Except as set forth in Section 5.02(b) below and in
\nSection 5.03 and 7.03, all costs and expenses incurred in connection with this
\nAgreement and the Ancillary Agreements and the transactions contemplated hereby
\nand thereby shall be paid by the party incurring such expense, including all
\ncosts and expenses incurred pursuant to Sections 1.04 and 5.01.<\/p>\n
(b) The Company shall be responsible for and shall pay, as and
\nwhen incurred, all Transfer Taxes, documentary Taxes and filing or recording
\nfees and applicable to the Contributions up to a maximum aggregate amount of
\n$50,000; to the extent that the aggregate amount of such Taxes and fees exceeds
\n$50,000, the party incurring such Tax or fee shall be responsible for its
\npayment. Each party shall use reasonable effort to avail itself of any available
\nexemptions from any such Taxes or fees, and to cooperate with the other parties
\nin providing any information and documentation that may be necessary to obtain
\nsuch exemptions.<\/p>\n
16
\n 20<\/p>\n
SECTION 5.03. Post-Closing Cooperation.<\/p>\n
(a) CBS, DBC and the Company shall cooperate with each other,
\nand shall cause their respective officers, employees, agents, auditors and
\nrepresentatives to cooperate with each other, after the Closing to ensure the
\norderly transition of the Business from DBC to the Company and to minimize any
\ndisruption to the Business that might result from the transactions contemplated
\nhereby. After the Closing, upon reasonable written notice, CBS, DBC and the
\nCompany shall furnish or cause to be furnished to each other and to their
\nrespective employees, counsel, auditors and representatives access, during
\nnormal business hours, to such information and assistance relating to the
\nBusiness (to the extent within the control of such party) as is reasonably
\nnecessary for financial reporting and accounting matters.<\/p>\n
(b) After the Closing, upon reasonable written notice, CBS,
\nDBC and the Company shall furnish or cause to be furnished to each other, as
\npromptly as practicable, such information and assistance relating to the DBC
\nAssets (including, access to books and records) and the Contributions, to the
\nextent within the control of such party, as is reasonably necessary for the
\nfiling or all Tax returns, and making of any election related to Taxes, the
\npreparation for any audit by any Taxing Authority, and the prosecution or
\ndefense of any claim, suit or proceeding related to any Tax return. CBS, DBC and
\nthe Company shall cooperate with each other party in the conduct of any audit or
\nother proceeding relating to Taxes involving the Business.<\/p>\n
(c) Each party shall reimburse the others for reasonable
\nout-of-pocket costs and expenses incurred in assisting such party pursuant to
\nthis Section 5.03. No party shall be required by this Section 5.03 to take any
\naction with would unreasonably interfere wit the conduct of its business or
\nunreasonably disrupt its normal operations.<\/p>\n
SECTION 5.04. Further Assurances. From time to time, as and when
\nrequested by any party, each party shall execute and deliver, or cause to be
\nexecuted and delivered, all such documents and instruments and shall take, or
\ncause to be taken, all such further or other actions (subject to Section 5.01),
\nas such other party may reasonably deem necessary or desirable to consummate the
\ntransactions contemplated by this Agreement and the Ancillary Agreements,
\nincluding, in the case of CBS and DBC, executing and delivering to the Company
\nsuch assignments, deeds, bills of sale, consents and other instruments as the
\nCompany or its counsel may reasonably request as necessary or desirable for such
\npurpose.<\/p>\n
SECTION 5.05. Year 2000 Compliance. Notwithstanding anything herein to
\nthe contrary, DBC agrees to use its best efforts (at its own expense) to ensure
\nthat all Contributed Intellectual Property, as applicable, is free of any “Year
\n2000 Problem” such that such Intellectual Property will not experience any
\nmalfunctions or other usage problems in connection with the Year 2000 (and later
\nyears) as distinct from the year 1900 through 1999, and earlier years.<\/p>\n
17
\n 21<\/p>\n
ARTICLE VI<\/p>\n
Indemnification<\/p>\n
SECTION 6.01. Indemnification by DBC. DBC shall indemnify each of CBS
\nand the Company and each of their respective affiliates and each of their
\nrespective officers, directors, employees, stockholders, agents and
\nrepresentatives against, and hold them harmless from, any loss, liability,
\nclaim, damage or expense (including reasonable legal fees and expenses)
\n(“Losses”), as incurred (payable promptly upon written request), arising from,
\nin connection with or otherwise with respect to:<\/p>\n
(i) any breach of any representation or warranty of
\n DBC that survives the Closing and is contained in this Agreement, in
\n any Ancillary Agreement or in any document delivered in connection
\n herewith;<\/p>\n
(ii) any breach of any covenant of DBC contained in
\n this Agreement or in any Ancillary Agreement;<\/p>\n
(iii) any Excluded DBC Liability;<\/p>\n
(iv) the disclosure by any current or former
\n Personnel of any proprietary information of DBC and its affiliates;<\/p>\n
(v) the failure to comply with statutory provisions
\n relating to bulk sales and transfers, if applicable; and<\/p>\n
(vi) any fees, expenses or other payments incurred
\n or owed by DBC to any brokers, financial advisors or comparable other
\n persons retained or employed by it in connection with the transactions
\n contemplated by this Agreement.<\/p>\n
SECTION 6.02. Indemnification by CBS. CBS shall indemnify each of DBC
\nand the Company and each of their respective affiliates and each of their
\nrespective officers, directors, employees, stockholders, agents and
\nrepresentatives against, and hold them harmless from, any Losses, as incurred
\n(payable promptly upon written request), arising from, in connection with or
\notherwise with respect to:<\/p>\n
(i) any breach of any representation or warranty of
\n CBS that survives the Closing and is contained in this Agreement, in
\n any Ancillary Agreement or in any document delivered in connection
\n herewith;<\/p>\n
(ii) any breach of any covenant of CBS contained in
\n this Agreement or in any Ancillary Agreement;<\/p>\n
(iii) any fees, expenses or other payments incurred
\n or owed by CBS to any brokers, financial advisors or comparable other
\n persons retained or employed by it in connection with the transactions
\n contemplated by this Agreement.<\/p>\n
18
\n 22<\/p>\n
SECTION 6.03. Calculation of Losses. The amount of any Loss for which
\nindemnification is provided under this Article VI shall be net of any amounts
\nactually recovered by the indemnified party under insurance policies with
\nrespect to such Loss and shall be (i) increased to take account of any net Tax
\ncost incurred by the indemnified party arising from the receipt of indemnity
\npayments hereunder (grossed up for such increase) and (ii) reduced to take
\naccount of any net Tax benefit realized by the indemnified party arising from
\nthe incurrence or payment of any such Loss. In computing the amount of any such
\nTax cost or Tax benefit, the indemnified party shall be deemed to recognize all
\nother items of income, gain, loss, deduction or credit before recognizing any
\nitem arising from the receipt of any indemnity payment hereunder or the
\nincurrence or payment of any indemnified Loss.<\/p>\n
SECTION 6.04. Termination of Indemnification. The obligations to
\nindemnify and hold harmless any party, (i) pursuant to Section 6.01(i) or
\n6.02(i), shall terminate when the applicable representation or warranty
\nterminates pursuant to Section 6.06 and (ii) pursuant to the other clauses of
\nSection 6.01 or 6.02 shall not terminate; provided, however, that such
\nobligations to indemnify and hold harmless shall not terminate with respect to
\nany item as to which the person to be indemnified shall have, before the
\nexpiration of the applicable period, previously made a claim by delivering a
\nnotice of such claim (stating in reasonable detail the basic of such claim)
\npursuant to Section 6.05 to the party to be providing the indemnification.<\/p>\n
SECTION 6.05. Procedures.<\/p>\n
(a) In order for a party (the “indemnified party”), to be entitled to
\nany indemnification provided for under this Agreement in respect of, arising out
\nof or involving a claim made by any person against the indemnified party (a
\n“Third Party Claim”), such indemnified party must notify the indemnifying party
\nin writing of the Third Party Claim promptly following receipt by such
\nindemnified party of written notice of the Third Party Claim; provided, however,
\nthat failure to give such notification shall not affect the indemnification
\nprovided hereunder except to the extent the indemnifying party shall have been
\nactually and materially prejudiced as a result of such failure. Thereafter, the
\nindemnified party shall deliver to the indemnifying party, promptly following
\nthe indemnified party’s receipt thereof, copies of all notices and documents
\n(including court papers) received by the indemnified party relating to the Third
\nParty Claim and not also addressed to the indemnifying party.<\/p>\n
(b) If a Third Party Claim is made against an indemnified party shall
\nbe entitled to participate in the defense thereof and, if it so chooses, to
\nassume the defense thereof with counsel selected by the indemnifying party;
\nprovided, however, that such counsel is not reasonably objected to by the
\nindemnified party. Should the indemnifying party so elect to assume the defense
\nof a Third Party Claim, the indemnifying party shall not be liable to the
\nindemnified party for any legal expenses subsequently incurred by the
\nindemnified party in connection with the defense thereof. If the indemnifying
\nparty assumes such defense, the indemnified party shall have the right to
\nparticipate in the defense thereof and to employ counsel, at its own expense,
\nseparate from the counsel employed by the indemnifying party, it being
\nunderstood that the indemnifying party shall control such defense. The
\nindemnifying party shall be liable for the fees and expenses of counsel employed
\nby the indemnified party for any period during which the <\/p>\n
19
\n 23<\/p>\n
indemnifying party has not assumed the defense thereof. If the indemnifying
\nparty chooses to defend or prosecute a Third Party Claim, all the indemnified
\nparties shall cooperate in the defense or prosecution thereof. Such cooperation
\nshall include the retention and (upon the indemnifying party’s request) the
\nprovision to the indemnifying party of records and information that are
\nreasonably relevant to such Third Party Claim, and making employees available on
\na mutually convenient basis to provide additional information and explanation of
\nany employees available on a mutually convenient basis to provide additional
\ninformation and explanation of any material provided hereunder. Whether or not
\nthe indemnifying party assumes the defense of a Third Party Claim, the
\nindemnified party shall not admit any liability with respect to, or settle,
\ncompromise or discharge, such Third Party Claim without the indemnifying party’s
\nprior written consent (which consent shall not be unreasonably withheld). If the
\nindemnifying party assumes the defense of a Third Party Claim, the indemnified
\nparty shall agree to any settlement, compromise or discharge of a Third Party
\nClaim that the indemnifying party may recommend and that by its terms obligates
\nthe indemnifying party may recommend and that by its terms obligates the
\nindemnifying party to pay the full amount of the liability in connection with
\nsuch Third Party Claim, which releases the indemnified party completely in
\nconnection with such Third Party Claim and that would not otherwise adversely
\naffect the indemnified party. Notwithstanding the foregoing, the indemnifying
\nparty shall not be entitled to assume the defense of any Third Party Claim (and
\nshall be liable for the fees and expenses of counsel incurred by the indemnified
\nparty in defending such Third Party Claim) if the Third Party Claim seeks an
\norder, injunction or other equitable relief or relief for other than money
\ndamages against the indemnified party that the indemnified party reasonably
\ndetermines, after conferring with its outside counsel, cannot be separated from
\nany related claim for money damages. If such equitable relief or other relief
\nportion of the Third Party Claim can be so separated from that for money
\ndamages, the indemnifying party shall be entitled to assume the defense of the
\nportion relating to money damages.<\/p>\n
(c) Other Claims. In the event any indemnified party should have a
\nclaim against any indemnifying party under Section 6.01 or 6.02 that does not
\ninvolve a Third Party Claim being asserted against or sought to be collected
\nfrom such indemnified party, the indemnified party shall deliver notice of such
\nclaim with reasonable promptness to the indemnifying party. The failure by any
\nindemnified party so to notify the indemnifying party shall not relieve the
\nindemnifying party from any liability that it may have to such indemnified party
\nunder Section 6.01 or 6.02, except to the extent that the indemnifying party
\ndemonstrates that it has been materially prejudiced by such failure. If the
\nindemnifying party does not notify the indemnified party within 10 calendar days
\nfollowing its receipt of such notice that the indemnifying party disputes its
\nliability to the indemnified party under Section 6.01 or 6.02, such claim
\nspecified by the indemnified party in such notice shall be conclusively deemed a
\nliability of the indemnifying party under Section 6.01 or 6.02 and the
\nindemnifying party shall pay the amount of such liability to the indemnified
\nparty on demand or, in the case of any notice in which the amount of the claim
\n(or any portion thereof) is estimated, on such later date when the amount of
\nsuch claim (or such portion thereof) becomes finally determined. If the
\nindemnifying party has timely disputed its liability with respect to such claim,
\nas provided above, the indemnifying party and the indemnified party shall
\nproceed in good faith to negotiate a <\/p>\n
20
\n 24<\/p>\n
resolution of such dispute and, if not resolved through negotiations, such
\ndispute shall be resolved by litigation in an appropriate court of competent
\njurisdiction.<\/p>\n
SECTION 6.06. Survival of Representations. The representations and
\nwarranties contained in this Agreement, in any Ancillary Agreement or in any
\ndocument delivered in connection herewith shall survive the Closing solely for
\npurposes of Article VI and shall terminate at the close of business five years
\nfollowing the date hereof.<\/p>\n
ARTICLE VII<\/p>\n
General Provisions<\/p>\n
SECTION 7.01. Assignment. This Agreement and the rights and obligations
\nhereunder shall not be assignable or transferable by CBS, DBC or the Company
\nwithout the prior written consent of the other parties hereto; provided,
\nhowever, that CBS may assign this Agreement and its rights and obligations
\nhereunder to any entity controlling, controlled by or under common control with,
\nCBS, or to any entity that acquires CBS by purchase of stock or by merger or
\notherwise, or by acquiring all or substantially all of CBS’s assets, provided
\nthat any such assignee succeeds to all of the rights and is subject to all of
\nthe obligations of CBS under this Agreement. Any attempted assignment in
\nviolation of this Section 7.01 shall be null and void ab initio.<\/p>\n
SECTION 7.02. No Third-Party Beneficiaries. Except as provided in
\nArticle VI, this Agreement is for the sole benefit of the parties hereto and
\ntheir permitted assigns and nothing herein expressed or implied shall give or be
\nconstrued to give to any person, other than the parties hereto and such assigns,
\nany legal or equitable rights hereunder.<\/p>\n
SECTION 7.03. Attorney Fees. A party in breach of this Agreement shall,
\non demand, indemnify and hold harmless each other party for and against all
\nreasonable out-of-pocket expenses, including legal fees, incurred by such other
\nparty by reason of the enforcement and protection of its rights under this
\nAgreement. The payment of such expenses is in addition to any other relief to
\nwhich such other party may be entitled.<\/p>\n
SECTION 7.04. Notices. All notices or other communications required or
\npermitted to be given hereunder shall be in writing and shall be delivered by
\nhand or sent, postage prepaid, by registered, certified or express mail or
\nreputable overnight courier service and shall be deemed given when so delivered
\nby hand, or if mailed, three days after mailing (one business day in the case of
\nexpress mail or overnight courier service), as follows:<\/p>\n
(i) if to the Company,<\/p>\n
c\/o Data Broadcasting Corporation
\n 1900 South Norfolk Street
\n San Mateo, CA 94403<\/p>\n
Attention of Larry Kramer<\/p>\n
21
\n 25<\/p>\n
with a copy to CBS and DBC as set forth below;<\/p>\n
(ii) if to CBS,<\/p>\n
CBS Inc.
\n 51 West 52nd Street
\n New York, NY 10019<\/p>\n
Attention of Derek Reisfield<\/p>\n
with copies to:<\/p>\n
CBS Inc.
\n 51 West 52nd Street
\n New York, NY 10019<\/p>\n
Attention of Sanford Kryle, and<\/p>\n
Cravath, Swaine & Moore
\n 825 Eighth Avenue
\n New York, NY 10019<\/p>\n
Attention of Peter S. Wilson, Esq.; and<\/p>\n
(iii) if to DBC,<\/p>\n
Data Broadcasting Corporation
\n 1900 South Norfolk Street
\n San Mateo, CA 94403<\/p>\n
Attention of Mark Imperiale<\/p>\n
with a copy to:<\/p>\n
Camhy Karlinsky & Stein LLP
\n 1740 Broadway
\n Sixteenth Floor
\n New York, NY 10019<\/p>\n
Attention of Alan I. Annex, Esq.<\/p>\n
SECTION 7.05. Interpretation; Exhibits and Schedules; Certain
\nDefinitions.<\/p>\n
(a) The headings contained in this Agreement, in any Exhibit
\nor Schedule hereto and in the table of contents to this Agreement are for
\nreference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement. All Exhibits and Schedules annexed hereto or
\nreferred to herein are hereby incorporated in and made a part of this Agreement
\nas if set <\/p>\n
22
\n 26<\/p>\n
forth in full herein. Any capitalized terms used in any Schedule or Exhibit but
\nnot otherwise defined therein, shall have the meaning as defined in this
\nAgreement. When a reference is made in this Agreement to a Section, Exhibit or
\nSchedule, such reference shall be to a Section of, or an Exhibit or Schedule to,
\nthis Agreement unless otherwise indicated.<\/p>\n
(b) For all purposes hereof:<\/p>\n
“affiliate” of any person means another person that directly
\nor indirectly, through one or more intermediaries, controls, is controlled by,
\nor is under common control with, such first person.<\/p>\n
“including” means including, without limitation.<\/p>\n
“person” means any individual, firm, corporation, partnership,
\nlimited liability company, trust, joint venture, Governmental Entity or other
\nentity.<\/p>\n
“subsidiary” of any person means another person, an amount of
\nthe voting securities, other voting ownership or voting partnership interests of
\nwhich is sufficient to elect at least a majority of its Board of Directors or
\nother governing body (or, if there are no such voting interests, 50% or more of
\nthe equity interests of which) is owned directly or indirectly by such first
\nperson.<\/p>\n
SECTION 7.06. Counterparts. This Agreement may be executed in one or
\nmore counterparts, all of which shall be considered one and the same agreement,
\nand shall become effective when one or more such counterparts have been signed
\nby each of the parties and delivered to each of the other parties.<\/p>\n
SECTION 7.07. Entire Agreement. This Agreement and the Ancillary
\nAgreements, along with the Schedules and Exhibits thereto, contain the entire
\nagreement and understanding between the parties hereto with respect to the
\nsubject matter hereof and supersede all prior agreements and understandings
\nrelating to such subject matter. Neither party shall be liable or bound to any
\nother party in any manner by any representations, warranties or covenants
\nrelating to such subject matter except as specifically set forth herein or in
\nthe Ancillary Agreements.<\/p>\n
SECTION 7.08. Severability. If any provision of this Agreement (or any
\nportion thereof) or the application of any such provision (or any portion
\nthereof) to any person or circumstance shall be held invalid, illegal or
\nunenforceable in any respect by a court of competent jurisdiction, such
\ninvalidity, illegality or unenforceability shall not affect any other provision
\nhereof (or the remaining portion thereof) or the application of such provision
\nto any other persons or circumstances.<\/p>\n
SECTION 7.09. Amendments and Waivers. This Agreement may not be amended
\nexcept by an instrument in writing signed on behalf of each of the parties
\nhereto. By an instrument in writing, any two parties hereto may waive compliance
\nby the third party with any term or provision of this Agreement that such third
\nparty was or is obligated to comply with or perform.<\/p>\n
23
\n 27<\/p>\n
SECTION 7.10. Consent to Jurisdiction. Each of CBS, DBC and the Company
\nirrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of
\nthe State of New York, New York County, and (b) the United States District Court
\nfor the Southern District of New York, for the purposes of any suit, action or
\nother proceeding arising out of this Agreement, any Ancillary Agreement or any
\ntransaction contemplated hereby or thereby. Each of CBS, DBC and the Company
\nagrees to commence any such action, suit or proceeding either in the United
\nStates District Court for the Southern District of New York or if such suit,
\naction or other proceeding may not be brought in such court for jurisdictional
\nreasons, in the Supreme Court of the State of New York, New York County. Each of
\nCBS, DBC and the Company further agrees that service of any process, summons,
\nnotice or document by U.S. registered mail to such party’s respective address
\nset forth above shall be effective service of process for any action, suit or
\nproceeding in New York with respect to any matters to which it has submitted to
\njurisdiction in this Section 7.10. Each of CBS, DBC and the Company irrevocably
\nand unconditionally waives any objection to the laying of venue of any action,
\nsuit or proceeding arising out of this Agreement, any Ancillary Agreement or the
\ntransactions contemplated hereby and thereby in (i) the Supreme Court of the
\nState of New York, New York County, or (ii) the United States District Court for
\nthe Southern District of New York, and hereby and thereby further irrevocably
\nand unconditionally waives and agrees not to plead or claim in any such court
\nthat any such action, suit or proceeding brought in any such court has been
\nbrought in an inconvenient forum.<\/p>\n
SECTION 7.11. Governing Law. This Agreement shall be governed by and
\nconstrued in accordance with the internal laws of the State of New York
\napplicable to agreements made and to be performed entirely within such State,
\nwithout regard to the conflicts of law principles of such State.<\/p>\n
IN WITNESS WHEREOF, CBS, DBC and the Company have duly executed this
\nAgreement as of the date first written above.<\/p>\n
CBS INC.,<\/p>\n
by: \/s\/ FREDRIC A. REYNOLDS
\n ———————————–
\n Name: Fredric A. Reynolds
\n Title: Chief Financial Officer<\/p>\n
DATA BROADCASTING CORPORATION<\/p>\n
by: \/s\/ MARK F. IMPERIALE
\n ———————————–
\n Name: Mark F. Imperiale
\n Title: President<\/p>\n
MARKETWATCH.COM, LLC.<\/p>\n
by: \/s\/ DEREK R. REISFIELD
\n ———————————–
\n Name: Derek R. Reisfield
\n Title: Chairman<\/p>\n
24
\n 28<\/p>\n
EXHIBIT A<\/p>\n
Form of LLC Agreement<\/p>\n
26
\n 29<\/p>\n
EXHIBIT B<\/p>\n
Form of License Agreement<\/p>\n
27
\n 30<\/p>\n
EXHIBIT C<\/p>\n
Form of DBC Services Agreement<\/p>\n
28
\n 31<\/p>\n
EXHIBIT D<\/p>\n
CBS Contribution Terms<\/p>\n
1. CBS shall arrange for the placement of broadcast advertising and
\npromotion of the website operated by the Company in the media category or type
\nset forth in the Advertising and Promotion placement schedule set forth below.
\nThe rate card value of all broadcast advertising and promotion provided
\nhereunder shall be based upon the average paid unit price, excluding barter, for
\nspots purchased during the specific CBS Television Network, CBS Owned and
\nOperated Television Station or CBS Owned and Operated Radio Station broadcast in
\nwhich the advertising or promotion occurs. Banner advertising on CBS Internet
\nsites shall have a rate card price equal to the average price paid by third
\nparties for banner advertising (excluding barter) during the month in which such
\nadvertising is delivered less 20%. The total rate card value of banner
\nadvertising delivered by CBS to the Company shall not exceed 5% per year of the
\ntotal advertising delivered by CBS to the Company during such year. CBS shall
\nnot have to make any ad placements if the exigencies of time or current or
\nfuture contractual obligations, prevent or restrict CBS from doing so.<\/p>\n
2. CBS shall have the right to suspend and\/or withdraw placement of
\nbroadcast advertising and promotion (i) pending resolution of any claim covering
\nuse by the Company of the tradename or trademark “Marketwatch” either alone or
\nin combination with any other mark and\/or (ii) during such time as the Company
\nis enjoined from using the tradename or trademark “Marketwatch” on or in
\nconnection with its website and has not renamed the website. The Company shall
\nrename its website within thirty (30) days following the issuance of any
\ninjunction or the resolution of any claim which requires the Company to cease
\nusing the tradename or trademark “Marketwatch” on or in connection with its
\nwebsite (the “Cessation Event”), it being understood, however, that CBS shall
\nhave the sole right and power to approve the substitute tradename and\/or
\ntrademark to be used. In the event that CBS fails to approve the substitute
\ntradename and\/or trademark within the 30-day period prescribed, then the Members
\nwill be deemed to have mutually agreed to terminate the Company on the 31st day
\nfollowing the date of the Cessation Event as contemplated by Section 11.04(a)(i)
\nof the LLC Agreement.<\/p>\n
29
\n 32<\/p>\n
ADVERTISING AND PROMOTION – PLACEMENTS<\/p>\n
PLACEMENT OBLIGATIONS<\/p>\n
– CBS will be responsible for the placement of all advertising and promotion of
\nthe website operated by the Company<\/p>\n
PLACEMENT POSSIBILITIES<\/p>\n
– CBS Television Network programming<\/p>\n
– CBS Owned and Operated Television and Radio Stations programming, e.g. local
\nnews, music, sports<\/p>\n
– Banner Advertising on CBS Internet Sites<\/p>\n
PLACEMENT TYPES<\/p>\n
– 30 second units where available
\n – 15 second units where available
\n – 10 second units where available
\n – URL Scrolls (5 seconds)
\n – On-air mention (15 seconds)
\n – Banner ads (10 seconds)
\n – Credit rolls\/sign-offs (5 seconds)<\/p>\n
30
\n 33<\/p>\n
Schedule 1.01
\n——————————————————————————–<\/p>\n
Assets of the Business<\/p>\n
1. All contracts listed below (each listed contract is between Data
\n Broadcasting Corporation and the listed party):<\/p>\n
– Baseline Financial Services, Inc. Agreement
\n Dated: January 15, 1997<\/p>\n
– Market Guide Inc. Agreement
\n Dated: September 24, 1996<\/p>\n
– WebRep Representation Agreement
\n Dated: January 15, 1996<\/p>\n
– Comtex Scientific Corporation
\n Dated: February 16, 1996<\/p>\n
– FRB Enterprises
\n Dated: May 1, 1996<\/p>\n
– Bill Helming Consulting Services Agreement
\n Dated: January 31, 1996<\/p>\n
– Joe Kropf and Sid Love Consulting Services Agreement
\n Dated: February 20, 1996<\/p>\n
– Business Wire Agreement
\n Dated: June 10, 1997<\/p>\n
– The Audit Bureau of Verification Services, Inc. Agreement
\n Dated: August 27, 1997<\/p>\n
– USA Today Information Network Agreement
\n Dated: March 18, 1997<\/p>\n
– Digital Ink (Washington Post) Agreement
\n Dated: June 19, 1996<\/p>\n
– American Express Service Corporation
\n Dated: August 5, 1997<\/p>\n
– Knight-Ridder New Media Agreement
\n Dated: October 21, 1996<\/p>\n
– Axxes Inc. (“Financial Web”) Agreement
\n Dated: April 9, 1996<\/p>\n
34<\/p>\n
– John Fairfax Publications Limited (Australian Financial
\n Review) Agreement<\/p>\n
– OTC Financial Network Agreement
\n Dated: February 12, 1996<\/p>\n
– Wall Street Research Net (WSRN) Agreement
\n Dated: March 17, 1996<\/p>\n
2. All goodwill of the Business.<\/p>\n
3. All Intellectual Property (including, without limitation, the
\n copyrights and rights of copyright) and Technology of the Business
\n including the Intellectual Property and Technology listed below
\n and in Exhibit A attached hereto.<\/p>\n
– Marketwatch.com Domain Name Registration.
\n (A copy of the domain registration is attached hereto as
\n Exhibit B).<\/p>\n
– Wall Street Eavesdropper Service Mark Registration.
\n Registered: June 3, 1997
\n Number: 2,067,333
\n (A copy of the confirmation letter is attached hereto as
\n Exhibit C)<\/p>\n
– DBC Online Service Mark Application. Filed: March 19, 1997
\n (A copy of the application letter is attached hereto as
\n Exhibit D)<\/p>\n
– Marketwatch Tradename and Trademark, which are not
\n registered.<\/p>\n
2
\n 35<\/p>\n
Schedule 1.01
\n Exhibit A<\/p>\n
(a) The primary asset of DBC News is the Intellectual
\n Property used to produce the daily DBC News report.
\n That includes, but is not limited to, the editorial
\n capabilities and techniques used to create the
\n following regular features and the copyrights (or
\n rights of copyright) in the content\/graphics
\n embodying the regular features on the DBC Online and
\n MarketWatch sites:<\/p>\n
– DBC StockWatch – a look at the day’s hottest
\n securities by DBC Director of News Thom Calandra
\n in DBC’s San Mateo, Calif., NewsRoom. (updated
\n daily)<\/p>\n
– Market SnapShot – an in-depth look at U.S. stock,
\n bond, commodity and currency markets by Kevin
\n Marder, online editor in DBC’s Los Angeles
\n NewsRoom. (updated five times daily)<\/p>\n
– DBC’s IPO Report – a look at the hottest stock
\n offerings and after-market performances of recent
\n IPOs by DBC News online editor\/reporter Darren
\n Chervitz. (updated daily)<\/p>\n
– Ponder – commentary on recent IPO offerings, from
\n DBC News online editor\/reporter Darren Chervitz.
\n (updated daily)<\/p>\n
– IPO First Words – a regular feature in which DBC
\n editor Chervitz interviews top officials of
\n companies that have just gone or are about to go
\n public.<\/p>\n
– This Week’s IPOs – a chart tracking all new major
\n public offerings.<\/p>\n
– Aftermarket Performance – a chart tracking the
\n stock performance of key IPO’s in the weeks and
\n months following their debut in the public
\n markets.<\/p>\n
– Movers & Shakers – Movers and Shakers sizes up
\n securities whose prices are rising or falling
\n dramatically. David Wilkerson of the DBC NewsRoom
\n takes a money-making look at what’s hot, what’s
\n not. If a stock is moving up or down in a big
\n way, this column tells you why. (up to six times
\n daily)<\/p>\n
– Futures Movers – From soybeans to palladium,
\n DBC’s Futures Movers keeps readers abreast of
\n what commodity futures are moving and why. Mary
\n Kennedy of the DBC NewsRoom has the latest work
\n on what’s moving the market. (daily)\\<\/p>\n
– DBC Business Headlines – the DBC NewsRoom reports
\n the business news and earnings reports of the day
\n with hundreds of financial and world headlines in
\n real-time each day.<\/p>\n
3
\n 36<\/p>\n
– DBC Daily Calendar – a look at the day’s economic
\n and business events. (daily)<\/p>\n
– DBC’s Earnings Surprises by DBC News online
\n reporter Barbara Costanza is a daily look at
\n positive and negative earnings surprises from
\n U.S. companies. This screen is available to
\n subscribers of DBC MarketWatch, the real-time
\n service. A delayed text version can be seen on
\n DBC Online. (up to six times daily)<\/p>\n
– Economic Forecaster – a daily look at U.S.
\n economic reports. This screen, complete with
\n forecasts, is available to subscribers of DBC
\n MarketWatch, a real-time service. (daily)<\/p>\n
– DBC Software Report – a daily look at news from
\n the world’s software developers by DBC News
\n online reporter Brenon Daly. (updated frequently)<\/p>\n
– DBC Tech Report – a daily look at news from the
\n world’ computer hardware developers and
\n semiconductor makers by DBC News online reporter
\n Binti Harvey. (updated frequently)<\/p>\n
– Hot Heads – leading headlines from stories and
\n columns on DBC’s financial Web sites. (daily)<\/p>\n
– NewsWatch – the DBC NewsRoom’s round-up of the
\n day’s top stories. (throughout the day)<\/p>\n
– DBC’s Analysts’ Changes – a daily look at
\n investment houses’ upgrades and downgrades of
\n U.S. stocks. This screen is available to
\n subscribers of DBC MarketWatch, the real-time
\n service. (up to six times daily)<\/p>\n
– Silicon Stocks – a look at the day’s technology
\n stock movers by DBC News online reporter David
\n Wilkerson. (throughout the day)<\/p>\n
– Wall Street Eavesdropper – a digest of the stocks
\n and ideas that online investment newsletters and
\n Internet users are talking about. (daily)<\/p>\n
– DBC Mutual Understanding – a look at mutual fund
\n news form online newsletters and investment
\n professionals. This column is available five days
\n weekly.<\/p>\n
– DBC Mutual Center – a comprehensive analysis of
\n mutual funds and their rankings, update daily and
\n including commentary from Dr. Paul B. Farrell in
\n his column, “Farrell on Funds.” (daily)<\/p>\n
4
\n 37<\/p>\n
– SuperStar Funds – a proprietary ranking of top
\n mutual funds in several categories, based on a
\n scoring system that includes how funds rank on
\n several other evaluating services. Similar to
\n “consensus all-American” rankings in sports.<\/p>\n
– Internet Daily – a digest of the day’s top
\n Internet news. (daily)<\/p>\n
– DBC Capital Report – a daily report of news and
\n analysis form the FNS newsroom in the nation’s
\n capital in which DBC corespondents Rex Nutting
\n and Meg Cofer highlight news form the government
\n that has impact on the financial markets.<\/p>\n
– DBC Film-Flam – a look at the world of cinema.
\n (weekly)<\/p>\n
– The Clueless Investor – a look at some of the
\n dumbest investments you can make (every week)<\/p>\n
– Soap Box – Soap Box is a guest column.
\n Contributors include investment professionals,
\n executives, individuals investors and just plain
\n folks. Contributors can send 300-word articles
\n and a one-line biography to newsroom@dbc.com
\n (three times a week)<\/p>\n
– Zapman takes an irreverent view of totally zapped
\n stocks and markets. The only thing Zapman! has
\n reverence for its profits. Zapman! is safely
\n anonymous (weekly).<\/p>\n
– Moscow Report is a summary of the day’s biggest
\n business stories from FNs International in Russia
\n (daily).<\/p>\n
– The X-Pert Files – a review of advice from stock
\n market professionals by DBC online
\n editor\/reporter Darren Chervitz (updated
\n frequently).<\/p>\n
5
\n 38<\/p>\n
– U.S. Treasuries, Corporate Bonds, Mortgage Bonds,
\n CMO Bonds are all regularly (throughout the day)
\n updating charts of the prices on bonds, from the
\n offices of Capital Management Sciences.<\/p>\n
– There are several other features of DBC News that
\n update infrequently or appear irregularly.<\/p>\n
(b) The primary asset of DBC Online is the Intellectual
\n Property used to allow a user to access information
\n on the DBC site in a timely and efficient way. It
\n includes, but is not limited to:<\/p>\n
(i) THE FOLLOWING CHARTS AND GROUPINGS OF FINANCIAL
\n DATA MFIARE CREATED AND UPDATED THROUGHOUT THE
\n TRADING DAY ON THE DBC ONLINE SITE:<\/p>\n
Market Updates
\n Market Monitor
\n Major Indexes
\n Dow Jones Industrial Average(TM)
\n Dow Jones Transportation Average(TM)
\n Dow Jones Utility Average(TM)
\n S & P 500
\n Industry Indexes
\n Industry Groups<\/p>\n
Most Active\/Gainers\/Losers
\n New York Stock Exchange
\n American Stock Exchange
\n Nasdaq Stock Market
\n Options<\/p>\n
Market Analysis
\n DBC NewsRoom
\n New Highs, Lows
\n The DBC Report
\n DBC Newsletter Network<\/p>\n
Index Charts
\n The Dow Jones Industrial Average(TM)
\n Nasdaq Composite
\n S & P 100
\n S & P 500
\n AMEX Composite<\/p>\n
6
\n 39<\/p>\n
Research
\n MarketGuide Reports
\n Industry Features
\n Bank Rate Monitor<\/p>\n
CMS Bond Quotes
\n U.S. Treasuries
\n Corporate Bonds
\n Mortgage Bonds
\n CMO Bonds
\n BondVu.com: Fixed Income<\/p>\n
Resources
\n Financial Links
\n Business Phone Books<\/p>\n
(ii) FORMATS FOR PRESENTING QUOTES,PERSONAL
\n PORTFOLIOS, FUNDAMENTAL DATA, CHARTS AND
\n NEWS-BY-TICKER<\/p>\n
(iii) LINKS TO SEVERAL TRADING SITES FROM THE TRADING
\n CENTER AND FROM PULL DOWN MENUS ON MOST MARKET
\n DATA PAGES<\/p>\n
(iv) TIMELINESS OF EXCHANGE DATA:<\/p>\n
The web site includes the ability to
\n access information from the following
\n exchanges. The availability of data from each
\n exchange varies. Update Times codes are as
\n follows: R\/T is real-time transmission; BAT is
\n batch transmission; EOD is end of day
\n transmission, and 30, 15, 10 is the number of
\n minutes the quote is delayed.<\/p>\n
\n
\n NORTH AMERICA Exchange Market Update Time Market Hours
\n Code Watch (EST)
\n United States<\/p>\n American Stock Exchange (AMEX)
\n *Available RealTime on MarketWatch R\/T 15 09:30-16:00
\n -Includes regional exchanges R\/T
\n -No bid\/ask on AMEX delayed service R\/T
\n Chicago Board Option Exchange (CBOE) 15 08:00-15:00
\n<\/c><\/c><\/c><\/c><\/s><\/table>\n
7
\n 40<\/p>\n
\n
\n Commodity Exchange Center (CEC) 30 08:00-15:00
\n -Coffee, Sugar & Cocoa Exchange 30 09:00-15:15
\n New York Cotton Exchange 30 08:20-15:00
\n -New York Futures Exchange 30 08:15-16:30
\n Chicago Mercantile Exchange (CME) 10 08:00-15:00
\n -Index and Option Market 10 08:00-15:00
\n -International Monetary Market 10 08:00-15:00
\n Commodity Exchange (COMX) 30 07:30-14:15
\n Kansas City Board of Trade (KCBT) 10 09:30-16:15
\n Mid America Commodity Exchange (MIDA) 10 08:20-16:15
\n Minneapolis Grain Exchange (MGE) 10 10:30-14:30
\n NASDAQ Level 1, NMS, Level 2 Bulletin Board R\/T 15 09:30-16:00
\n *Available Real-Time on MarketWatch
\n -Money Market Funds EOD 18:00
\n -Mutual Funds EOD 18:00
\n New York Mercantile Exchange (NYME) 10 08:10-15:10
\n New York Stock Exchange (NYSE) R\/T 20 09:30-17:15
\n *Available Real-Time on MarketWatch
\n -Boston Stock Exchange R\/T 20 09:30-16:00
\n -Chicago Stock Exchange R\/T 20 09:30-16:00
\n -Cincinnati Stock Exchange R\/T 20 09:30-16:00
\n -Pacific Stock Exchange R\/T 20 09:30-16:00
\n -Philadelphia Stock Exchange R\/T 20 09:30-16:00
\n -No bid\/ask on NYSE delayed service R\/T<\/p>\n Canada<\/p>\n
Alberta Stock Exchange AC 15 09:30-16:00
\n Montreal Stock Exchange MC 15 09:30-16:00
\n Toronto Stock Exchange TC 15 09:30-16:00
\n Vancouver Stock Exchange VC 15 09:30-16:00<\/p>\n
EUROPE<\/p>\n
Portugal<\/p>\n
Lisbon Stock Exchange LB BAT 07:00, 12:00 & 14:45<\/p>\n
United Kingdom<\/p>\n
International Petroleum Exchange (IPE) IP 10 04:15-15:15
\n<\/c><\/c><\/c><\/c><\/s><\/table>\n
8
\n 41<\/p>\n
\n
\n London Commodity Exchange (LFOX) FO 10 04:45-14:01
\n London Int’l Financial Fut Exchange (LIFFE) LI 10 02:00-11:15
\n London Metals Exchange (LME) LM 33 06:45-11:35<\/p>\n OTHER EUROPE<\/p>\n
Athens Stock Exchange AN BAT 08:30
\n Istanbul Stock Exchange IS BAT 11:30
\n Luxembourg Stock Exchange LX BAT 09:30
\n Prague Stock Exchange PQ BAT 08:30
\n Warsaw Stock Exchange WS BAT 08:30<\/p>\n
FAR EAST<\/p>\n
Bombay Stock Exchange BY BAT 03:00
\n Colombo Stock Exchange CL BAT 06:00
\n Karachi Stock Exchange KR BAT 08:00
\n New Zealand Stock Exchange NZ BAT 02:15
\n Philippine Stock Exchange MN BAT 05:30
\n Seoul: Korea Stock Exchange SL BAT 05:00
\n Shanghai Stock Exchange SH BAT 07:00
\n Shenzen Stock Exchange SN BAT 07:00
\n Singapore Int’l Monetary Exchange SI 30 18:45-06:10
\n Taipei: Taiwan Stock Exchange TP BAT 03:00<\/p>\n
LATIN AMERICA<\/p>\n
Buenos Aires Stock Exchange BA BAT 17:30
\n Bogota Stock Exchange BG BAT 17:30
\n Caracas Stock Exchange CA BAT 17:30
\n Lima Stock Exchange LV BAT 20:00
\n Montevideo Stock Exchange MV BAT 17:30
\n<\/c><\/c><\/c><\/c><\/s><\/table>\n
(v) ASSETS OF DBC MARKETWATCH, REAL TIME PORTION OF
\n DBC ONLINE INCLUDE:<\/p>\n
Premium financial data<\/p>\n
Vie real-time quotes for NYSE, AMEX, and NASDAQ
\n exchanges on demand. You also get reliable,
\n complete delayed data spanning futures, equity
\n options, and international and Canadian
\n exchanges. Plus, you can access foreign exchange
\n rates and mutual and money market fund quotes,
\n and bulletin board stock data.<\/p>\n
9
\n 42<\/p>\n
Ability to create personal portfolios<\/p>\n
Up to six personal portfolios, each containing up
\n to 10 symbols, calculated in real-time. Customize
\n portfolios by industry, short versus long term
\n holdings, or actual holding versus speculative
\n stocks.<\/p>\n
Enhanced historical charts<\/p>\n
Select 90 day, 180 day, or 1 year charts of
\n stocks and funds. Choose from bar, line or
\n candlestick style charts.<\/p>\n
Real-time financial news and commentary<\/p>\n
Access real-time market news straight from the
\n DBC Newsroom. Plus, headlines from Options News
\n Exchange, Futures World News, and Zacks
\n Investment Research, in addition to top stories
\n from Comtex. And, expert market commentary
\n providing insight on topics ranging from small
\n cap stocks to the overall market, and everything
\n in between.<\/p>\n
Company research<\/p>\n
Extensive company research from Market Guide
\n Company Reports spans 8,000 companies. Plus,
\n receive complete fundamental data on all stocks.<\/p>\n
Ability to Trade online<\/p>\n
MarketWatch provides seamless access to top
\n online trading sites.<\/p>\n
(vi) ASSETS OF STOCKCHAT<\/p>\n
The functionality of the a [?] bulletin board
\n site allowing visitors to read strings of
\n messages on a variety of subjects, including
\n individual stocks and to post messages for others
\n to seen [SIC] and comment upon.<\/p>\n
(vii) BRAND LABEL QUOTE SITES<\/p>\n
Included in DBC online assets is the ability
\n to co-branding a web site with DBC Online. This
\n provides quality, high-traffic web sites the
\n opportunity to furnish their online users with
\n the same comprehensive, user-friendly, and timely
\n financial data & market news that DBC Online
\n offers its own customers in exchange for a
\n revenue split on advertising or for a monthly
\n fee.<\/p>\n
10
\n 43<\/p>\n
Brand Label Quote sites (or BLQs) allow
\n access to 15-minute delayed stock quotes
\n (refreshed every few minutes), a personal
\n portfolio that accepts up to 10 ticker symbols
\n and has price and valuate functions, the
\n extensive DBC Newsroom, up to the minute business
\n headlines, international data, sports data, and
\n more.<\/p>\n
DBC co-brands these pages by using the logo,
\n background and navigation bars of the company’s
\n web site, creating a BLQ that retains the look
\n and feel of the original site design. Every page
\n will carry both the company and the DBC logo,
\n making it a true co-branded site.<\/p>\n
Examples of co-branded sites now in effect:<\/p>\n
– USA Today
\n – Washington Post
\n – The Baltimore Sun
\n – Wall Street Online
\n – USNews & World Report
\n – PR Newswire
\n – TechWeb
\n – Hoover’s Online
\n – Deloitte & Touche
\n – Business Wire<\/p>\n
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