{"id":43693,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-purchase-agreement-marketwatch-com-inc-cbs-broadcasting.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-purchase-agreement-marketwatch-com-inc-cbs-broadcasting","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-purchase-agreement-marketwatch-com-inc-cbs-broadcasting.html","title":{"rendered":"Stock Purchase Agreement – MarketWatch.com Inc., CBS Broadcasting Inc. and Data Broadcasting Corp."},"content":{"rendered":"
<\/b>
STOCK PURCHASE AGREEMENT<\/p>\n
This Stock Purchase Agreement (this 'Agreement<\/i><\/b>') is made and entered into as of March 28, 2000 (the\n'Effective Date<\/i><\/b>') by and among MarketWatch.com, Inc., a Delaware corporation (the\n'Company<\/i><\/b>'), and the parties listed on the Schedule of Investors attached to this Agreement as\nExhibit A<\/u> (each hereinafter individually referred to as an 'Investor<\/i><\/b>' and collectively referred\nto as the 'Investors<\/i><\/b>').<\/p>\n<\/b>
Whereas, the Company desires to sell to the Investors, and the Investors desire to purchase from the Company, shares of the\nCompany's Common Stock on the terms and conditions set forth in this Agreement;<\/p>\n<\/b>
Now, therefore, the parties hereby agree as follows:<\/p>\n<\/b>
1.\tAGREEMENT TO PURCHASE AND SELL STOCK<\/u>.<\/p>\n
\t1.1\tAuthorization<\/u><\/b>.  As of the Closing (as defined below) the Company will have authorized the issuance,\npursuant to the terms and conditions of this Agreement, of up to 2,273,628 shares of the Company's Common Stock, par value $0.01 per\nshare.<\/p>\n
\t1.2\tAgreement to Purchase and Sell<\/u>.<\/b>  The Company agrees to sell to each Investor at the Closing, and each\nInvestor agrees, severally and not jointly, to purchase from the Company at the Closing, the number of shares of Common Stock at the\nprice per share and type of consideration set forth beside such Investor's name on Exhibit A<\/u>.  Cash consideration paid by\nan Investor shall be allocated among all shares purchased by such Investor so that all of such shares will be 'fully paid'\nunder applicable law.  The shares of Common Stock purchased and sold pursuant to this Agreement will be collectively hereinafter\nreferred to as the 'Purchased Shares<\/i><\/b>.'<\/i><\/b><\/p>\n
2.\tCLOSING<\/u>.  The purchase and sale of the Purchased Shares will take place at the offices of Fenwick & West\nLLP, Two Palo Alto Square, Palo Alto, California, at 10:00 a.m. Pacific Time, on that certain date on which all applicable waiting\nperiods (and all extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the 'HSR\nAct<\/i><\/b>') shall have expired or otherwise been terminated (or such later date following the satisfaction or waiver of all of\nthe conditions set forth in Sections 5 and 6 hereof) or at such other time and place as the Company and the Investors mutually agree\nupon (which time and place are referred to in this Agreement as the 'Closing<\/i><\/b>').  At the Closing, the Company\nwill deliver to each Investor a certificate representing the number of Purchased Shares that such Investor has agreed to purchase\nhereunder as shown on Exhibit A<\/u> against delivery to the Company by such Investor of the full purchase price of such Purchased\nShares set forth beside such Investor's name on Exhibit A<\/u>.<\/p>\n<\/b>
3.\tREPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/u>.  The Company hereby represents and warrants to each Investor as\nfollows:<\/p>\n
\t3.1\tOrganization, Good Standing and Qualification<\/u>.<\/b>  The Company has been duly incorporated and organized, and\nis validly existing in good standing, under the laws of the State of Delaware.  The Company has the corporate power and authority to\nenter into and perform this Agreement, to own and operate its properties and assets and to carry on its business as currently\nconducted and as presently proposed to be conducted.  The Company is duly qualified to do business as a foreign corporation in good\nstanding in each jurisdiction where failure to be so qualified would have a material adverse effect on the business, assets or\nfinancial condition of the Company taken as a whole.<\/p>\n
\t3.2\tCapitalization<\/u>.<\/b>  The capitalization of the Company immediately prior to the Closing consists of the\nfollowing:<\/p>\n
\t\t(a)\tPreferred Stock<\/u>.  A total of 5,000,000 authorized shares of preferred stock, par value $0.01 per share,\nof which none are issued and outstanding.<\/p>\n
\t\t(b)\tCommon Stock<\/u>.  A total of 30,000,000 authorized shares of common stock, par value $0.01 per share (the\n'Common Stock<\/i><\/b>'), of which approximately 14,108,696 shares were issued and outstanding as of March 20,\n2000 (subject to increase only by employee stock option exercises subsequent to March 20, 2000).<\/p>\n
\t\t(c)\tOptions, Warrants, Reserved Shares<\/u>.  Except for (i) the rights of first refusal granted to\ncertain stockholders under Section 9 of that certain Stockholders' Agreement dated as of January 13, 1999, as amended (the\n'Stockholders' Agreement<\/i><\/b>'), by and among the Company and such stockholders (the\n'Existing Refusal Rights<\/i><\/b>'), (ii) the 3,685,824 shares of Common Stock reserved for issuance under the\nCompany's stock option plans under which options to purchase 2,001,575 shares are outstanding as of March 20, 2000 (subject to\nincrease prior to the Closing due to option grants in the ordinary course), and (iii) options to purchase 150,000 shares of the\nCompany's Common Stock issued outside of the Company's stock option plans, there is no outstanding option, warrant, right (including\nconversion or preemptive rights) or agreement for the purchase or acquisition from the Company of any shares of its capital stock or\nany securities convertible into or ultimately exchangeable or exercisable for any shares of the Company's capital stock.  Apart from\nthe exceptions noted in this Section 3.2(c), and except for any rights of first refusal held by the Company to purchase shares of its\nstock issued under the Company's stock option plans, no shares of the Company's outstanding capital stock, or stock issuable upon\nexercise or exchange of any outstanding options, warrants or rights, or other stock issuable by the Company, are subject to any\npreemptive rights, rights of first refusal or other rights to purchase such stock (whether in favor of the Company or any other\nperson), pursuant to any agreement or commitment of the Company.  <\/p>\n
\t\t(d)\tThe outstanding shares of the capital stock of the Company are duly authorized and validly issued, fully paid and\nnonassessable.<\/p>\n
\t3.3\tDue Authorization<\/u>.<\/b>  All corporate action on the part of the Company's directors and stockholders\nnecessary for the authorization, execution, delivery of, and the performance of all obligations of the Company under, this\nAgreement, <\/b>the authorization, issuance, reservation for issuance and delivery of all of the Purchased Shares being sold under\nthis Agreement has been taken or will be taken prior to the Closing, and this Agreement constitutes a valid and legally binding\nobligation of the Company, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy,\ninsolvency, reorganization or others laws of general application relating to or affecting the enforcement of creditors' rights\ngenerally and (ii) the effect of rules of law governing the availability of equitable remedies.<\/p>\n
\t3.4\tValid Issuance of Stock<\/u>.<\/b><\/p>\n
\t(a)\tThe Purchased Shares, when issued and paid for as provided in this Agreement will be duly authorized and validly\nissued, fully paid and nonassessable.<\/p>\n
\t(b)\tBased in part on the representations made by the Investors in Section 4 hereof, the offer and sale of the Purchased\nShares solely to the Investors in accordance with this Agreement are exempt from the registration and prospectus delivery\nrequirements of the U.S. Securities Act of 1933, as amended (the '1933 Act<\/i><\/b>') and the securities registration\nand qualification requirements of the currently effective provisions of the securities laws of the States in which the Investors are\nresident based upon their addresses set forth on the Schedule of Investors attached hereto as Exhibit A<\/u>.<\/p>\n
\t3.5\tGovernmental Consents<\/u>.<\/b>  No consent, approval, order or authorization of, or registration, qualification,\ndesignation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in\norder to enable the Company to execute, deliver and perform its obligations under this Agreement except<\/u> for<\/u> such\nqualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by\nthis Agreement.  All such qualifications and filings will, in the case of qualifications, be effective on the Closing and will, in\nthe case of filings, be made within the time prescribed by law. <\/p>\n
\t3.6\tCommission Filings and Financial Statements<\/u>.<\/b>  The Company has filed all forms, reports and documents (the\n'SEC Documents'<\/i><\/b>) required to be filed by it with the U.S. Securities and Exchange Commission (the\n'Commission'<\/i><\/b>) pursuant to the 1933 Act or the U.S. Securities Exchange Act of 1934, as amended (the\n'Exchange Act'<\/i><\/b>), as the case may be, and the rules and regulations of the Commission thereunder since January\n13, 1999 through the date of this Agreement.  As of their respective filing dates, the SEC Documents complied in all material\nrespects with the requirements of the 1933 Act or the Exchange Act, as the case may be, and the rules and regulations of the\nCommission thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material\nfact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light\nof the circumstances under which they were made, not misleading.  As of their respective filing dates, the financial statements of\nthe Company included in the SEC Documents complied as to form in all material respects with the applicable accounting requirements\nand the rules and regulations of the Commission thereunder and were prepared in accordance with generally accepted accounting\nprinciples consistently applied (except as may be indicated in the notes thereto) and fairly presented, in all material respects, the\nfinancial position of the Company as at the dates thereof and the results of operations and cash flows of the Company for the periods\nthen ended (subject, in the case of unaudited statements, to normal, recurring audit adjustments not material in scope or\namount).<\/p>\n<\/b>
\t3.7\tAbsence of Changes<\/u>.  Since December 31, 1999 through the date of this Agreement, there has not been (i)\nany material adverse change in the business, assets or financial condition of the Company, (ii) any transaction that is material to\nthe Company, except transactions entered into in the ordinary course of business, (iii) any obligation, direct or contingent, that is\nmaterial to the Company incurred by the Company, except obligations incurred in the ordinary course of business, (iv) any change in\nthe capital stock or outstanding indebtedness of the Company that is material to the Company, other than the authorization by the\nBoard of Directors (the 'Board<\/i><\/b>') of the Company of an increase in the number of shares of the Company's\nCommon Stock subject to the Company's 1998 Equity Incentive Plan (the 'Plan<\/i><\/b>') by additional 1,500,000 shares,\n(v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, or (vi) any loss or damage\n(whether or not insured) to the property of the Company which has been sustained or will have been sustained which has a material\nadverse effect on the business, assets or financial condition of the Company.<\/b><\/p>\n
\t3.8\tSubsidiaries<\/u>.  The Company does not presently own or control, directly or indirectly, any interest in any\nother corporation, partnership, trust, joint venture, association, or other entity, other than (i) BigCharts Inc., a wholly-owned\nsubsidiary of the Company, and (ii) a joint venture established pursuant to that certain Joint Venture Agreement made on January 6,\n2000 between the Company and Financial Times Group Limited. <\/p>\n
\t3.9\tLitigation<\/u>.<\/b>  There is no action, suit, proceeding, claim, arbitration or investigation pending\n('Litigation<\/i><\/b>') (or, to the Company's knowledge, currently threatened) against the Company, its activities,\nproperties or assets or, to the Company's knowledge, against any officer, director or employee of the Company in connection with such\nofficer's, director's or employee's relationship with, or actions taken on behalf of, the Company, except for any such Litigation\nthat individually or in the aggregate would have no material adverse impact on the Company's business.  <\/b><\/p>\n
\t3.10\tStatus of Proprietary Assets<\/u>.  <\/b>The Company has full title and ownership of, or is\nduly licensed under or otherwise authorized to use, all patents, patent applications, trademarks, domain names, service marks, trade\nnames, copyrights, mask works, trade secrets, confidential and proprietary information, designs and proprietary rights, necessary to\nenable it to carry on its business as now conducted without any conflict with or infringement of the rights of others.\nNotwithstanding the foregoing, no representation or warranty is made with respect to (i) trademarks, service marks and other\nproprietary rights licensed to the Company by CBS Broadcasting Inc. and\/or its affiliates, and\/or (ii) the enforceability of any\nrights of the Company in, or the ability of the Company to use, any trademarks or service marks containing the words\n'MarketWatch' or 'MarketWatch.com.'  The Company has not received any written communication from any party or\nagent thereof alleging that the Company's use of the marks 'MarketWatch' or 'MarketWatch.com' may infringe such\nparty's trademark rights.<\/p>\n
\t3.11\tCompliance with Law and Documents<\/u><\/b>.  The Company is not in violation or default of\nany provisions of its Certificate of Incorporation or Bylaws, both as amended, and to the Company's knowledge, except for any\nviolations that individually or in the aggregate would have no material adverse impact on the Company's business, the Company is in\ncompliance with all applicable statutes, laws, regulations and executive orders of the United States of America and all states or\nother governmental bodies and agencies having jurisdiction over the Company's business or properties. The Company has not received\nany notice of any violation of any such statute, law, regulation or order which has not been remedied prior to the date hereof.  The\nexecution, delivery and performance of this Agreement <\/b>and the consummation of the transactions contemplated hereby or thereby\nwill not result in any such violation or default, or be in conflict with or result in a violation or breach of, with or without the\npassage of time or the giving of notice or both, the Company's Certificate of Incorporation or Bylaws, any judgment, order or decree\nof any court or arbitrator to which the Company is a party or is subject, any agreement or contract of the Company that is material\nto the Company's business (taken as a whole), or, to the Company's knowledge, a violation of any statute, law, regulation or order,\nor an event which results in the creation of any lien, charge or encumbrance upon any asset of the Company, except for defaults and\nviolations that individually or in the aggregate would have no material adverse impact on the Company's business.<\/p>\n
\t3.12\tTitle to Property and Assets<\/u>.<\/b>  The properties and assets the Company owns are owned\nby the Company free and clear of all mortgages, deeds of trust, liens, encumbrances and security interests except for statutory liens\nfor the payment of current taxes that are not yet delinquent and liens, encumbrances and security interests which arise in the\nordinary course of business and which do not affect material properties and assets of the Company.  With respect to the property and\nassets it leases, the Company is in material compliance with such leases.<\/p>\n
\t3.13\tTax Returns and Payments<\/u>.<\/b>  The Company has timely filed all tax returns and reports\nrequired by law.  All tax returns and reports of the Company are true and correct in all material respects.  The Company has paid all\ntaxes and other assessments due, except those, if any, currently being contested by it in good faith.<\/p>\n<\/b>
4.\tREPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS<\/u>.  Each Investor hereby represents and warrants\nto, and agrees with, the Company, severally and not jointly, that:<\/p>\n
\t4.1\tAuthorization<\/u>.<\/b>  All corporate action on the part of such Investor and its officers, directors and\nstockholders necessary for the authorization, execution and delivery of, and the performance of all obligations of such Investor\nunder, this Agreement has been taken or will be taken prior to the Closing, and this Agreement constitutes such Investor's valid and\nlegally binding obligation, enforceable in accordance with its terms except as may be limited by (i) applicable bankruptcy,\ninsolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditors' rights\ngenerally and (ii) the effect of rules of law governing the availability of equitable remedies.  Each Investor represents that such\nInvestor has full power and authority to enter into this Agreement. <\/b><\/p>\n
\t4.2\tPurchase for Own Account<\/u>.<\/b>  The Purchased Shares to be purchased by such Investor\nhereunder will be acquired for investment for such Investor's own account, not as a nominee or agent, and not with a view to the\npublic resale or distribution thereof within the meaning of the 1933 Act, and such Investor has no present intention of selling,\ngranting any participation in, or otherwise distributing the same.  If not an individual, such Investor also represents that such\nInvestor has not been formed for the specific purpose of acquiring Purchased Shares.<\/p>\n
\t4.3\tDisclosure of Information<\/u>.<\/b>  Such Investor has received or has had full access to all the\ninformation it considers necessary or appropriate to make an informed investment decision with respect to the Purchased Shares to be\npurchased by such Investor under this Agreement.  Such Investor further has had an opportunity to ask questions and receive answers\nfrom the Company regarding the terms and conditions of the offering of the Purchased Shares and to obtain additional information (to\nthe extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any\ninformation furnished to such Investor or to which such Investor had access.  The foregoing, however, does not in any way limit or\nmodify the representations and warranties made by the Company in Section 3.<\/p>\n
\t4.4\tInvestment Experience<\/u>.<\/b>  Such Investor understands that the purchase of the Purchased Shares involves\nsubstantial risk.  Such Investor:  (i) has experience as an investor in securities of companies in the development stage and\nacknowledges that such Investor is able to fend for itself, can bear the economic risk of such Investor's investment in the Purchased\nShares and has such knowledge and experience in financial or business matters that such Investor is capable of evaluating the merits\nand risks of this investment in the Purchased Shares and protecting its own interests in connection with this investment and\/or (ii)\nhas a preexisting personal or business relationship with the Company and certain of its officers, directors or controlling persons of\na nature and duration that enables such Investor to be aware of the character, business acumen and financial circumstances of such\npersons.  <\/p>\n
\t4.5\tAccredited Investor Status<\/u>.<\/b>  Such Investor is an 'accredited investor' within the\nmeaning of Regulation D promulgated under the 1933 Act.<\/p>\n<\/b>
\t4.6\tRestricted Securities<\/u>.  Such Investor understands that the Purchased Shares are characterized as\n'restricted securities' under the 1933 Act inasmuch as they are being acquired from the Company in a transaction not\ninvolving a public offering and that under the 1933 Act and applicable regulations thereunder such securities may be resold without\nregistration under the 1933 Act only in certain limited circumstances.  In this connection, such Investor represents that such\nInvestor is familiar with Rule 144 of the Commission, as presently in effect, and understands the resale limitations imposed thereby\nand by the 1933 Act.  Such Investor understands that the Company is under no obligation to register any of the securities sold\nhereunder except as provided in that certain Registration Rights Agreement dated as of January 13, 1999, as amended, by and among the\nCompany and certain stockholders.<\/p>\n
\t4.7\tFurther Limitations on Disposition<\/u>.<\/b>  Without in any way limiting the representations set\nforth above, such Investor further agrees not to make any disposition of all or any portion of the Purchased Shares unless and\nuntil:<\/p>
\n\n \n
\t\t(a)\tthere is then in effect a registration statement under the 1933 Act covering such proposed disposition and such\ndisposition is made in accordance with such registration statement; or<\/p>\n
\t\t(b)\tsuch Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with\na statement of the circumstances surrounding the proposed disposition, and, at the expense of such Investor or its transferee, with\nan opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such securities\nunder the 1933 Act.<\/p><\/dir>\n<\/dir>\n \n
Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be\nrequired for any transfer of any Purchased Shares in compliance with Commission Rule 144; provided<\/u> that in each of the\nforegoing cases (other than any transfer of any Purchased Shares pursuant to such a registration statement or in compliance with\nCommission Rule 144) the transferee agrees in writing to be subject to the terms of this Section 4 (other than Section 4.5) to the\nsame extent as if the transferee were an original Investor hereunder.<\/p>\n<\/b>
\t4.8\tLegends<\/u>.  It is understood that the certificates evidencing the Purchased Shares will bear the legend set\nforth below: <\/p>
\n\n \n<\/i>
The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended\n(the 'Act'), or under the securities laws of certain states.  These securities are subject to restrictions on\ntransferability and resale and may not be transferred or resold except as permitted under the Act and the applicable state securities\nlaws, pursuant to registration or exemption therefrom.  investors should be aware that they may be required to bear the financial\nrisks of this investment for an indefinite period of time.  The issuer of these securities may require an opinion of counsel in form\nand substance satisfactory to the issuer to the effect that any proposed transfer or resale is in compliance with the Act and any\napplicable state securities laws.<\/p><\/dir>\n<\/dir>\n \n
The legend set forth above shall be removed by the Company from any certificate evidencing Purchased Shares if a\nregistration statement under the 1933 Act is at that time in effect with respect to the legended security or if such security can be\nfreely transferred in a public sale without such a registration statement being in effect and if such transfer will not jeopardize\nthe exemption or exemptions from registration pursuant to which the Company issued the Purchased Shares.<\/p>\n
In addition, it is understood that the certificates evidencing the Purchased Shares will bear the legends set forth below, or\nlegends substantially equivalent thereto:<\/p>
\n\n \n<\/i>
The shares represented by this certificate are subject to certain rights of first refusal as set forth in a\nstockholders' agreement dated as of january 13, 1999 entered into by the holder of these shares, the company and certain stockholders\nof the company.  a copy of such agreement is on file at the principal office of the company.  such right of first refusal is binding\non certain transferees of these shares.<\/p>\n
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN AGREEMENTS AND RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH\nSHARES, AS PROVIDED IN A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 13, 1999 ENTERED INTO BY THE ORIGINAL HOLDER OF THESE SHARES,\nTHE CORPORATION AND CERTAIN STOCKHOLDERS OF THE CORPORATION.  A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE\nCORPORATION.<\/p><\/dir>\n<\/dir>\n \n
The legends set forth above shall be removed by the Company from any certificate evidencing Purchased Shares upon the\ntermination of such Stockholders' Agreement.<\/p>\n<\/b>
5.\tCONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING<\/u>.  The obligations of each Investor under Section 2 of this\nAgreement are subject to the fulfillment or waiver, on or before the Closing, of each of the following conditions, the waiver of\nwhich shall not be effective against any Investor who does not consent to such waiver, which consent may be given by written, oral or\ntelephone communication to the Company, its counsel or to special counsel to the Investors:<\/p>\n
\t5.1\tRepresentations and Warranties True<\/u>.<\/b>  Each of the representations and warranties of the\nCompany contained in Section 3 shall be true and complete on and as of the Closing with the same effect as though such\nrepresentations and warranties had been made on and as of the date of the Closing.<\/p>\n
\t5.2\tPerformance<\/u>.<\/b>  The Company shall have performed and complied with all agreements, obligations and\nconditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing and shall\nhave obtained all approvals, consents and qualifications necessary to complete the purchase and sale described herein.  The other\nInvestor shall simultaneously be completing the purchase of the Purchased Shares to be purchased by such other Investor.<\/p>\n
\t5.3\tCompliance Certificate<\/u>.<\/b>  The Company shall have delivered to each Investor at the Closing a\ncertificate signed on its behalf by its President, Chief Executive Officer, or Chief Financial Officer certifying that the conditions\nspecified in Sections 5.1 and 5.2 have been fulfilled and stating that there shall have been no material adverse change in the\nbusiness, financial condition, or assets of the Company since December 31, 1999.<\/p>\n
\t5.4\tSecurities Exemptions<\/u>.<\/b>  The offer and sale of the Purchased Shares to the Investors pursuant to this\nAgreement shall be exempt from the registration requirements of the 1933 Act and the registration and\/or qualification requirements\nof all other applicable state securities laws.<\/p>\n
\t5.5\tProceedings and Documents<\/u>.<\/b>  All corporate and other proceedings in connection with the\ntransactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to\neach Investor and to the Investors' special counsel, and they shall each have received all such counterpart originals and certified\nor other copies of such documents as they may reasonably request.  Such documents shall include (but not be limited to) the\nfollowing:<\/p>
\n\n \n
\t\t(a)\tCertified Charter Documents<\/u>.  A copy of the Amended and Restated Certificate of Incorporation and\nthe Bylaws of the Company (as amended through the date of the Closing), certified by the Secretary of the Company as true and correct\ncopies thereof as of the Closing.<\/p>\n
\t\t(b)\tCorporate Actions<\/u>.  A copy of the resolutions of the Board of Directors and, if required, the\nstockholders of the Company evidencing the approval of this Agreement, <\/b>the issuance of the Purchased Shares and the other\nmatters contemplated hereby.<\/p><\/dir>\n<\/dir>\n \n
\t\t5.6<\/b>\tHart-Scott-Rodino Act<\/u>.<\/b>  All applicable waiting periods (and all extensions thereof) under the\nHSR Act shall have expired or otherwise been terminated.<\/p>\n<\/b>
6.\tCONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING<\/u>.  The obligations of the\nCompany to each Investor under this Agreement are subject to the fulfillment or waiver on or before the Closing of each of the\nfollowing conditions by such Investor:<\/p>\n
\t6.1\tRepresentations and Warranties<\/u>.<\/b>  The representations and warranties of such Investor contained\nin Section 4 shall be true and complete on the date of the Closing with the same effect as though such representations and warranties\nhad been made on and as of the Closing.<\/p>\n
\t6.2\tPayment of Purchase Price<\/u>.<\/b>  Each Investor shall have delivered to the Company the purchase\nprice specified for such Investor on Exhibit A<\/u> in accordance with the provisions of Section 2.<\/p>\n
\t6.3\tSecurities Exemptions<\/u>.<\/b>  The offer and sale of the Purchased Shares to the Investors pursuant to this\nAgreement shall be exempt from the registration requirements of the 1933 Act, the qualifications requirements of the Law and the\nregistration and\/or qualification requirements of all other applicable state securities laws.<\/p>\n<\/b>
\t6.4\tProceedings and Documents<\/u>.  All corporate and other proceedings in connection with the\ntransactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to\nthe Company and to the Company's legal counsel, and the Company shall have received all such counterpart originals and certified or\nother copies of such documents as it may reasonably request.<\/p>\n
\t6.5<\/b>\tHart-Scott-Rodino Act<\/u>.<\/b>  All applicable waiting periods (and all extensions thereof) under the HSR\nAct shall have expired or otherwise been terminated.<\/p>\n<\/b>
7.\tGENERAL PROVISIONS<\/u>.<\/p>\n
\t7.1\tSurvival of Warranties<\/u>.<\/b>  The representations, warranties and covenants of the Company and\nthe Investors contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the\nClosing and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of any of the\nInvestors, their counsel or the Company, as the case may be.<\/p>\n
\t7.2\tExisting Refusal Rights.<\/u><\/b>  Each of the Investors hereby waives (i) its right to notice with\nrespect to the Existing Refusal Rights (as defined in Section 3.2) as they apply to the issuance and sale of the Purchased Shares and\n(ii) agrees that such issuance and sale pursuant to this Agreement satisfies its Existing Refusal Rights with respect to the issuance\nand sale of the Purchased Shares.<\/p>\n
\t7.3\tSuccessors and Assigns<\/u><\/b>.  The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the parties.<\/p>\n
\t7.4\tGoverning Law<\/u>.<\/b>  This Agreement shall be governed by and construed under the internal laws of the\nState of Delaware, without reference to principles of conflict of laws or choice of laws.<\/p>\n
\t7.5\tCounterparts<\/u>.<\/b>  This Agreement may be executed in two or more counterparts, each of which shall be deemed\nan original, but all of which together shall constitute one and the same agreement.<\/p>\n
\t7.6\tHeadings<\/u>.<\/b>  The headings and captions used in this Agreement are used for convenience only and are not to\nbe considered in construing or interpreting this Agreement.  All references in this Agreement to sections, paragraphs, exhibits and\nschedules shall, unless otherwise provided, refer to sections and paragraphs hereof and exhibits and schedules attached hereto, all\nof which exhibits and schedules are incorporated herein by this reference.<\/p>\n
\t7.7\tNotices<\/u>.<\/b>  Unless otherwise provided, any notice required or permitted under this Agreement shall be given\nin writing and shall be deemed effectively given upon personal delivery to the party to be notified or upon deposit with the United\nStates Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified at the address\nindicated for such party on Exhibit A<\/u> or, in the case of the Company, at <\/p>
\n\n\n\n \n
MarketWatch.com, Inc.,
\n825 Battery Street,
\nSan Francisco, California  94111,
\nAttention:  Joan P. Platt
\nFacsimile:  (415) 392-1914<\/p><\/dir>\n<\/dir>\n<\/dir>\n<\/dir>\n \n
with a copy to<\/p>
\n\n\n\n \n
Fenwick & West LLP
\nTwo Palo Alto Square
\nPalo Alto, California  94306
\nAttention:  Jeffrey R. Vetter, Esq.
\nFacsimile:  (650) 494-1417<\/p><\/dir>\n<\/dir>\n<\/dir>\n<\/dir>\n \n
or at such other address as any party or the Company may designate by giving ten (10) days advance written notice to all other\nparties.<\/p>\n<\/b>
\t7.8\tNo Finder's Fees<\/u>.  Each party represents that it neither is nor will be obligated for any\nfinder's or broker's fee or commission in connection with this transaction.  Each Investor agrees to indemnify and to hold harmless\nthe Company from any liability for any commission or compensation in the nature of a finders' or broker's fee (and any asserted\nliability) for which the Investor or any of its officers, partners, employees, or representatives is responsible.  The Company agrees\nto indemnify and hold harmless each Investor from any liability for any commission or compensation in the nature of a finder's or\nbroker's fee (and any asserted liability) for which the Company or any of its officers, employees or representatives is\nresponsible.<\/p>\n
\t7.9\tCosts, Expenses<\/u>.<\/b>  Each party to this Agreement shall bear its own fees and expenses (including,\nwithout limitation, the fees and expenses of its legal counsel) in connection with the preparation, execution and delivery of this\nAgreement and the issuance of the Purchased Shares.  <\/p>\n
\t7.10\tAmendments and Waivers<\/u>.  A<\/b>ny term of this Agreement may be amended and the observance of any\nterm of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only\nwith the written consent of the Company and the holders of Purchased Shares representing at least a majority of the aggregate number\nof shares of the Purchased Shares (excluding any of such shares that have been sold to the public or pursuant to Commission Rule\n144).  Any amendment or waiver effected in accordance with this Section shall be binding upon each holder of any Purchased Shares at\nthe time outstanding, each future holder of such securities, and the Company; provided<\/u>, however<\/u>, that no condition set\nforth in Section 5 may be waived with respect to any Investor who does not consent thereto.<\/p>\n
\t7.11\tSeverability<\/u>.<\/b>  If one or more provisions of this Agreement are held to be unenforceable under applicable\nlaw, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such\nprovision(s) were so excluded and shall be enforceable in accordance with its terms.<\/p>\n
\t7.12\tEntire Agreement<\/u>.<\/b>  This Agreement, together with all exhibits and schedules hereto, constitutes the\nentire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior\nnegotiations, correspondence, agreements, understandings duties or obligations between the parties with respect to the subject matter\nhereof.<\/p>\n
\t7.13\tFurther Assurances<\/u>.<\/b>  From and after the date of this Agreement, upon the request of any Investor or\nthe Company, the Company and the Investors shall execute and deliver such instruments, documents or other writings as may be\nreasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement.<\/p>\n \n
[Remainder of this page intentionally left blank]<\/p>\n\n<\/b>
In Witness Whereof, the parties hereto have executed this Agreement as of the date first written above.<\/p>\n\n<\/b>
MARKETWATCH.COM, INC.\t
\nBy: \t\/s\/ Joan P. Platt<\/u>\t\t
\nName:\tJoan P. Platt\t\t
\nTitle: \tChief Financial Officer\t\t<\/p>\n \n<\/b>
CBS BROADCASTING, INC.
\nBy:\t\/s\/ Fredric G. Reynolds
\n<\/u>Name:\t\tFredric G. Reynolds
\nTitle:\t\tExecutive Vice President, Chief Financial Officer<\/p>\n \n<\/b>
DATA BROADCASTING CORPORATION
\nBy: \t\/s\/ Stuart J. Clark
\n<\/u>Name: \tStuart J. Clark
\nTitle: \tPresident and Chief Executive Officer<\/p>\n \n \n
\n
\n
\n
\n
\n
\n
\n \n \n<\/b>
EXHIBIT A<\/p>\n<\/u>
Schedule of Investors<\/p>\n
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