Exhibit 99.G
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of May 4, 2000, by and between DATA
BROADCASTING CORPORATION, a Delaware corporation ("PLEDGOR"), and RYCADE CAPITAL
CORPORATION, a Delaware corporation (the "COMPANY").
WHEREAS, contemporaneously herewith (i) the Company is lending to
Pledgor FIFTEEN MILLION DOLLARS AND ZERO CENTS ($15,000,000), (ii) Pledgor is
issuing to the Company a secured promissory note (the "Note") in the aggregate
principal amount of FIFTEEN MILLION DOLLARS AND ZERO CENTS ($15,000,000) and
(iii) pursuant to the Stock Purchase Agreement, dated as of March 28, 2000, by
and among XxxxxxXxxxx.xxx, Inc. ("MARKETWATCH"), Pledgor and CBS Broadcasting
Inc. (as such agreement may be amended or modified from time to time, the "STOCK
PURCHASE AGREEMENT"), MarketWatch is issuing to Pledgor 1,136,814 shares of
common stock, par value $.01 per share, of MarketWatch; and
WHEREAS, the Company requires Pledgor, and Pledgor is willing, as a
condition to the consummation of the transactions contemplated above, to pledge
to the Company the Pledged Stock (as defined herein) as security for the payment
and performance by Pledgor of all of the obligations of Pledgor now or hereafter
existing under the Note by delivering the Pledged Stock and by executing and
delivering this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. DEFINITIONS.
"PLEDGED STOCK" shall mean 1,887,980 shares of common stock, par
value $.01 per share, of MarketWatch.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code of
the jurisdiction with respect to which such term is used, as in effect from time
to time.
2. PLEDGE AND GRANT OF SECURITY INTEREST.
As security for the prompt payment and full performance of all
obligations under the Note (the "SECURED OBLIGATIONS"), Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over
and delivers unto the Company, and grants to the Company, a security interest
in, (a) the Pledged Stock, (b) all other property which may be delivered to and
held by the Company pursuant to the terms hereof, and (c) subject to Section 9
below, all proceeds of the Pledged Stock and of such other property, including,
without limitation, all dividends, cash, securities or other property at any
time and from time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any of or all
such stock or other property whether issued by MarketWatch or otherwise, whether
in connection with any tender offer, exchange offer, merger, recapitalization,
reorganization or otherwise (the "PROCEEDS") (the items referred to in clauses
(a) through (c) being collectively called the "PLEDGED COLLATERAL").
3. SECURITY FOR OBLIGATIONS.
This Agreement and the Pledged Collateral secure the prompt payment
and full performance when due of each and every one of, and all amounts that
constitute part of, the Secured Obligations of Pledgor.
4. DELIVERY OF PLEDGED COLLATERAL.
All certificates representing or evidencing the Pledged Stock shall
be delivered to and held by or on behalf of the Company pursuant hereto and
shall be accompanied by undated stock powers duly executed in blank (in the form
attached hereto as Exhibit A) or other instruments of transfer or assignment,
all in form and substance reasonably satisfactory to the Company, and by such
other instruments and documents as the Company may reasonably request. Pledgor
shall receive all Proceeds in respect or in trust for the Company and shall
forthwith upon receipt deliver to the Company such Proceeds, together with any
necessary endorsement; PROVIDED, however, any Proceeds comprised of dividends
and other distributions made in respect of the Pledged Stock shall be held in
trust and delivered only upon and during the continuance of an Event of Default.
5. REPRESENTATIONS AND WARRANTIES AND COVENANTS.
Pledgor hereby represents, warrants and covenants to and with the
Company that:
a. OBLIGATIONS; NO LIENS. Except for the security interest
granted to the Company pursuant to this Agreement and subject to the
Stockholders' Agreement, dated as of January 13, 1999, by and among CBS
Broadcasting Inc., MarketWatch, XxxxxxXxxxx.xxx LLC and the Pledgor (as such
agreement may be amended or modified from time to time, the "STOCKHOLDERS'
AGREEMENT"), the Pledgor (i) is and will at all times continue to be the direct
owner, beneficially and of record, of the Pledged Collateral being pledged
hereunder, (ii) holds the Pledged Collateral being pledged hereunder free and
clear of all liens, charges, encumbrances and security interests of every kind
and nature, and (iii) subject to Section 9 below, will cause any and all Pledged
Collateral, whether for value paid by Pledgor or otherwise, to be forthwith
deposited with the Company and pledged or assigned hereunder;
b. LEGAL TITLE. The Pledgor (i) has good right and legal
authority to pledge the Pledged Collateral being pledged hereunder in the manner
hereby done or contemplated and (ii) will defend its title or interest thereto
or therein against any and all attachments, liens, claims, encumbrances,
security interests or other impediments of any nature, however arising, of all
persons whomsoever;
c. NO CONSENTS. No consent or approval of any governmental
body or regulatory authority or any securities exchange was or is necessary to
the validity of the pledge effected hereby;
d. SECURITY INTEREST. By virtue of the execution and
delivery by Pledgor of this Agreement, when the certificates, stock powers,
instruments or other documents representing or evidencing the Pledged Collateral
are delivered to the Company in accordance with this Agreement, the Company will
obtain a valid lien upon and security interest in such Pledged Collateral as
security for the repayment of the Secured Obligations, prior to all other liens
and encumbrances thereon and security interests therein; and
e. RIGHTS. The pledge effected hereby is effective to vest
in the Company the rights of the Pledgor in the Pledged Collateral as set forth
herein.
6. ADDITIONAL COVENANTS.
a. TRANSFER AND OTHER LIENS. Except as otherwise required
under the Stockholders' Agreement, without the prior written consent of the
Company, Pledgor will not directly or indirectly, sell, transfer, assign,
hypothecate, pledge or otherwise dispose of any Pledged Collateral or any
interests therein, except for the pledge and security interest created by this
Agreement.
b. FURTHER ASSURANCES; CREATION AND PRESERVATION OF LIEN.
Pledgor will, at its expense, promptly execute, acknowledge and deliver all such
instruments and take all such actions as the Company, from time to time, may
request in order to ensure to the Company the benefits of the lien against the
Pledged Collateral intended to be created by this Agreement and to protect any
pledge or security interest granted or purported to be granted hereby or to
enable the Company to exercise and enforce its rights and remedies hereunder
with respect to the Pledged Collateral.
c. LEGENDS. Pledgor shall cause each certificate delivered
to the Company evidencing the Pledged Collateral to state that it is subject to
this Agreement.
7. PLEDGOR'S RIGHTS.
Until the occurrence of an Event of Default under the Note (an
"EVENT OF DEFAULT"), Pledgor shall be entitled to exercise all voting rights
pertaining to the Pledged Collateral. Upon and after the occurrence of such an
Event of Default, the Company or its nominee shall have the sole right to vote
any and all of the Pledged Collateral and give consents, waivers and
ratifications in respect thereof, and Pledgor shall deliver to the Company or
its nominee such proxies and other documents as the Company may request to
further effectuate the foregoing.
8. DEFAULTS AND REMEDIES.
a. DEFAULTS AND REMEDIES. Upon the occurrence of an Event
of Default and during the continuance of such Event of Default, upon at least
ten (10) days' notice but without any other notice or demand, the Company
(through an agent or otherwise) is hereby authorized and empowered to transfer
and register in its name or in the name of its nominee the whole or any part of
the Pledged Collateral, to exercise the voting rights with respect thereto, and
to collect and receive all dividends and other distributions made thereon; and,
subject to the Company's Certificate of Incorporation, the Stockholders'
Agreement and other instruments and agreements relating to shares of the
Company's capital stock, to sell in one or more sales, after at least ten (10)
days' written notice which Pledgor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York of the time and place of any public sale or of the time after
which a private sale is to take place, but without any advertisement, the whole
or any part of the Pledged Collateral and otherwise to act with respect to the
Pledged Collateral as though the Company were the outright owner thereof,
Pledgor hereby irrevocably constituting and appointing the Company as the proxy
and attorney-in-fact of Pledgor, with full power of substitution to do so;
PROVIDED, HOWEVER, the Company shall not have any duty to exercise any such
right or to preserve the same and shall not be liable for any failure to do so
or for any delay in doing so. The Company shall exercise reasonable care in
preserving the certificates representing the Pledged Collateral, but the Company
shall have no obligation to preserve the value of the Pledged Collateral. Any
sale of the Pledged Collateral shall be made for any consideration allowable
under all applicable laws, and the Company may be the purchaser of the whole or
any part of the Pledged Collateral so sold, and hold the same thereafter in its
own right free from any claim of Pledgor or any right of redemption. The Pledgor
and the Company agree that it would be considered fair to sell the Pledged Stock
at a per share price equal to the average closing price per share of the Pledged
Stock as reported on the Nasdaq Stock Market's National Market for the five days
prior to the occurrence of the Event of Default. Each sale shall be made to the
highest bidder, but the Company reserves the right to reject any and all bids at
such sale which, in its discretion, it shall deem inadequate. Demands of
performance, notices of sale, advertisements and the presence of property at
sale are hereby waived, and any sale hereunder may be conducted by an auctioneer
or any officer or agent of the Company.
b. SALE OF PLEDGED COLLATERAL. If, at the original time or
times appointed for the sale of the whole or any part of the Pledged Collateral,
the highest bid shall be inadequate to discharge in full all the Secured
Obligations if there be but one sale, or if the Pledged Collateral be offered
for sale in lots, if at any of such sales the highest bid for the lot offered
for sale would indicate to the Company, in its discretion, the unlikelihood of
the proceeds of the sales of the whole of the Pledged Collateral being
sufficient to discharge in full all of the Secured Obligations, the Company may,
on one or more occasions and in its discretion, postpone any of said sales by
public announcement at the time of sale or the time of previous postponement of
sale, and no other notice of such postponement or postponements of sale need be
given, any other notice being hereby waived.
c. PROCEEDS. In the event of any sales hereunder, the
Company shall, after deducting
all costs and expenses of every kind (including reasonable attorneys' fees and
disbursements) for care, safekeeping, collection, sale, delivery or otherwise,
apply the residue of the proceeds of the sales to the payment or reduction,
either in whole or in part, of the Secured Obligations in accordance with
Section 9 and the agreements and instruments governing and evidencing such
Secured Obligations, returning the surplus, if any, to Pledgor.
d. PLEDGOR WAIVERS. Pledgor agrees that following the
occurrence and during the continuance of an Event of Default, it will not at any
time plead, claim or take the benefit of any appraisal, valuation, stay,
extension, moratorium or redemption law now or hereafter in force in order to
prevent or delay the enforcement of this Agreement, or the absolute sale of the
whole or any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all such laws
to the extent it lawfully may do so.
e. NON-INTERFERENCE. Pledgor agrees that it will not
interfere with any right, power or remedy of the Company provided for in this
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, or the exercise or beginning of the exercise by the Company of any
one or more of such rights, powers or remedies. No failure or delay on the part
of the Company to exercise any such right, power or remedy, and no notice or
demand which may be given to or made upon Pledgor by the Company with respect
thereto, shall operate as a waiver thereof, or limit or impair the Company's
right to take any action or to exercise any right, power or remedy hereunder,
without notice or demand, or prejudice its rights against Pledgor in any
respect.
f. UNENCUMBERED SHARES. The Company agrees, notwithstanding
any provision to the contrary set forth herein, that in connection with any
sale, transfer or other disposition by it of the Pledged Collateral in
accordance with this Section 8, the Company shall first remove its lien against
such Pledged Collateral so that the transferee of such Pledged Collateral is
acquiring, in accordance with this Section 8, such Pledged Collateral free and
clear of all liens, encumbrances and other restrictions or title defects.
9. APPLICATION OF PROCEEDS.
Any cash held by the Company as Pledged Collateral and all cash
proceeds received by the Company in respect of any sale of, liquidation of or
other realization upon all or any part of the Pledged Collateral shall be
applied by the Company as follows:
a. First, to the payment of the costs and expenses of such
sale, including reasonable fees and expenses of the Company's agents and
counsel, and all expenses, liabilities and advances made or incurred by the
Company in connection therewith;
b. Next, to the payment of that portion of the Secured
Obligations consisting of accrued and unpaid interest and fees;
c. Next, to the payment of that portion of the Secured
Obligations consisting of the
unpaid remaining principal amounts; and
d. Finally, to the payment to Pledgor, or the successors or
assigns of Pledgor, or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
10. TERMINATION.
This Agreement shall terminate when all Secured Obligations have
been paid fully at which time the Company shall reassign and deliver to Pledgor,
or to such person or persons as Pledgor shall designate, against receipt, such
of the Pledged Collateral (if any) as shall not have been sold or otherwise
still be held by it hereunder, together with appropriate instruments of
reassignment and release; PROVIDED, HOWEVER, that all indemnities of Pledgor
contained in this Agreement shall survive and remain operative and in full force
and effect regardless of the termination of this Agreement. Any such
reassignment shall be without recourse to or warranty by the Company and at the
expense of Pledgor.
11. INDEMNIFICATION.
Pledgor agrees to indemnify and hold the Company harmless from and
against any and all taxes, liabilities, claims and damages, including reasonable
attorneys' fees and disbursements, and other expenses incurred or arising by
reason of the taking action by the Company, in good faith, to perfect or enforce
its rights hereunder, including any taxes payable in connection with the
delivery of any of the Pledged Collateral as provided herein. The liabilities of
Pledgor under this Section 11 shall survive the termination of this Agreement.
12. LIEN ABSOLUTE.
All rights of the Company hereunder, and all obligations of Pledgor
hereunder, shall be absolute and unconditional and shall remain in full force
and effect without regard to, and shall not be impaired or affected by, or
deemed to be satisfied by, nor shall Pledgor or any Pledged Collateral be
exonerated, discharged or released by, any of the following events:
a. The Company's exercise or enforcement of or failure or
delay in exercising or enforcing any legal proceedings to collect the Secured
Obligations or any power, right or remedy with respect to the Secured
Obligations, the Pledged Collateral or any other collateral held by the Company,
including any action or inaction of the Company to perfect, protect or enforce
any security interest in the Pledged Collateral or any other collateral, any
impairment or suspension of the Pledged Collateral or any other collateral, the
Company's compromise, exchange, release, settlement, amendment or waiver with or
of any other person, or the Pledged Collateral or any other collateral, or any
change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other amendment, impairment,
renunciation, cancellation, surrender, suspension or waiver of the Note, the
Stock Purchase Agreement or any other agreement, document or instrument
governing or evidencing any of the Secured
Obligations;
b. Any insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or assignment for the benefit of creditors of the
Company or Pledgor, appointment of a receiver or trustee for all or any part of
the Company's or Pledgor's assets, or liquidation, winding-up or dissolution of
the Company;
c. Any invalidity, voidability, unenforceability or
irregularity, or future change to or amendment of, in whole or in part, the
Secured Obligations, the Note, the Stock Purchase Agreement, this Agreement or
any other agreements, documents or instruments governing or evidencing any of
the Secured Obligations;
d. Any merger, acquisition, consolidation or change in
structure of MarketWatch, or any sale, lease, transfer or other disposition of
any or all of the assets of MarketWatch;
e. Any assignment, endorsement or other transfer, in whole
or in part, of the Company's interest in the Secured Obligations, the Pledged
Collateral or any other collateral;
f. Any claim, defense, counterclaim or set-off, other than
that of prior performance, that Pledgor may have or assert, including, but not
limited to, any defense of incapacity, disability or lack of corporate or other
authority to execute any documents relating to the Secured Obligations, the
Pledged Collateral or any other collateral;
g. The Company's vote, claim, distribution, election,
acceptance, action or inaction in any bankruptcy or reorganization case related
to the Pledged Collateral or the Secured Obligations; or
h. Any cancellation, renunciation or surrender of any pledge or any
other debt instrument evidencing the Secured Obligations, other than the Note.
13. REINSTATEMENT.
This Agreement shall remain in full force and effect and continue to
be effective if at any time payment and performance of the Secured Obligations
of Pledgor, or any part thereof, is, pursuant to applicable law, avoided,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the Secured Obligations, whether as a "voidable preference,"
"fraudulent conveyance" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
avoided, rescinded, reduced, restored or returned, the Secured Obligations, as
the case may be, shall be reinstated and deemed reduced only by such amount paid
and not so avoided, rescinded, reduced, restored or returned.
14. MISCELLANEOUS.
a. SURVIVAL. All representations, warranties and covenants
of Pledgor contained in this Agreement shall survive the execution, delivery and
performance of this Agreement until the termination of this Agreement pursuant
to Section 10 hereof.
b. USE OF AGENTS. The Company may execute any of its duties
hereunder by or through agents or employees and shall be entitled to advice of
counsel concerning all matters pertaining to its duties hereunder.
c. REIMBURSEMENT. Pledgor agrees to reimburse the Company
promptly for all expenses, including reasonable counsel fees, incurred by the
Company in connection with the enforcement of this Agreement.
d. LIMITATIONS ON LIABILITY. Neither the Company nor any of
its officers, directors, employees, agents or counsel shall be liable for any
action lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct.
e. BINDING EFFECT. The representations and warranties of
each party to this Agreement shall be binding upon, and any action for a breach
thereof may be brought against, such party or its respective successors and
assigns.
f. AMENDMENT. This Agreement may be amended, modified or
supplemented only by a written instrument executed by or on behalf of each of
the parties hereto.
g. ENTIRE AGREEMENT. This Agreement, the Stock Purchase
Agreement and the Note supersede all prior discussions and agreements between
the parties with respect to the subject matter hereof and contain the sole and
entire agreement between the parties hereto with respect to the subject matter
hereof.
h. SEVERABILITY. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
i. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to be duly
given when delivered personally, by registered or certified mail postage
prepaid, or by a nationally recognized overnight courier service as follows:
(1) If to the Company:
Rycade Capital Corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
(2) If to Pledgor:
Data Broadcasting Corporation
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Vice President
and General Counsel
Attention: Xxxxxx Xxxxx, Executive Vice
President and Chief Financial
Officer
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
j. SECTION TITLES. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
k. GOVERNING LAW. All questions concerning the
construction, validity and interpretation of this Agreement and the exhibits
hereto will be governed by and construed in accordance with the domestic laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
l. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
RYCADE CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
DATA BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT A
IRREVOCABLE STOCK POWER
For Value Received, _______________ hereby sells, assigns and transfers unto-
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
+--------------------------------------+
| |
+--------------------------------------+
--------------------------------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER
______________________________________________ Shares represented by the within
Certificate, and does hereby irrevocably constitute and appoint
__________________________________Attorney to transfer the said Shares on the
books of the within named Corporation with full power of substitution in the
premises.
Dated
-------------------
By:
-------------------------------------
Name:
In the presence of
------------------------------
(Signature of Witness)
