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