{"id":43488,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/participation-agreement-desktop-data-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"participation-agreement-desktop-data-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/participation-agreement-desktop-data-inc.html","title":{"rendered":"Participation Agreement &#8211; Desktop Data Inc."},"content":{"rendered":"<pre>                            PARTICIPATION AGREEMENT\n                                        \n     This Participation Agreement dated as of November 3, 1997 (the 'Agreement')\n                                                                     ---------  \nby and between Desktop Data, Inc., a Delaware corporation ('Desktop'), and the\n                                                            -------           \nstockholders who are signatories hereto (the 'Major Stockholders') of\n                                              ------------------     \nIndividual, Inc., a Delaware corporation ('Individual').  Capitalized terms not\n                                           ----------                          \ndefined herein have the meanings assigned to them in the Agreement and Plan of\nReorganization (the 'Merger Agreement') dated the date hereof by and between\n                     ----------------                                       \nDesktop and Individual.\n\n                                  WITNESSETH:\n\n     WHEREAS, pursuant to the Merger Agreement, Individual has agreed to merge\n(the 'Merger') into Desktop on the terms and conditions set forth therein; and\n      ------                                                                  \n\n     WHEREAS, to induce Desktop to enter into the Merger Agreement, each of the\nMajor Stockholders, as principal stockholders of Individual, has agreed to enter\ninto this Agreement;\n\n     NOW, THEREFORE, in consideration of the premises and the mutual agreements,\nprovisions and covenants contained in this Agreement, the parties hereby agree\nas follows:\n\n                                   ARTICLE I\n\n                                   COVENANTS\n\n     1.1     Covenants and Agreements. Each of the Major Stockholders hereby \n             ------------------------\ncovenants and agrees with Desktop as follows:\n\n          1.1(a)  Cooperation. It shall cooperate fully with Individual and\n                  -----------\nDesktop in furnishing any information or performing any action reasonably\nrequested by any such party, which information or action is necessary or\nappropriate for the efficient and successful consummation of the transactions\ncontemplated by the Merger Agreement or is necessary or appropriate for the\ncorporate purposes of Desktop. It shall use all reasonable efforts to cause the\nClosing to occur at the earliest practical time.\n\n          1.1(b)  Other Required Information. It shall furnish to Individual and\n                  --------------------------\nDesktop all information concerning itself and its subsidiaries and affiliates,\nif applicable, as is required to be set forth in any application or statement to\nbe filed with any Governmental Entity in connection with the transactions\ncontemplated by the Merger Agreement or otherwise.\n\n          1.1(c)  Publicity. Except as otherwise required by applicable law or\n                  ---------\nstock exchange or securities market regulations, it shall not issue any press\nrelease or make any other public statement concerning the Merger without\nobtaining the prior approval of Desktop to the contents and the manner of\npresentation and publication thereof.\n\n\n \n                                      -2-\n\n          1.1(d)  Restriction on Sales of Individual Common Stock and Desktop\n                  -----------------------------------------------------------\nCommon Stock. It agrees to comply with the restrictions on transfer of shares of\n------------\nIndividual Common Stock or Desktop Common Stock set forth in that certain\nAffiliate Agreement of even date herewith.\n\n          1.1(e)  Other Negotiations. It agrees to fully comply with the\n                  ------------------\nprovisions of Section 4.02 of the Merger Agreement.\n\n          1.1(f)  Agreement to Vote Shares. At every meeting of the stockholders\n                  ------------------------\nof Individual held on or prior to the Expiration Date, and at every adjournment\nthereof, and on every action or approval by written consent of the stockholders\nof Individual, it shall vote all shares of Individual capital stock owned by it:\n(i) in favor of approval and adoption of the Merger Agreement and the Merger and\nany matter that could reasonably be expected to facilitate the Merger and (ii)\nagainst approval of any proposal made in opposition to or competition with\nconsummation of the Merger (an 'Opposing Proposal'). 'Expiration Date' shall\n                                -----------------      ---------------       \nmean the earlier of (i) such time as the Merger shall become effective in\naccordance with the terms and provisions of the Merger Agreement and (ii) such\ntime as the Merger Agreement shall have been terminated pursuant to Article VII\nthereof.\n\n          1.1(g)  Agreement to Grant Proxy. It shall execute and deliver to\n                  ------------------------\nDesktop within five days of Desktop's written request therefor a valid and\nbinding irrevocable proxy in any form reasonably proposed by Desktop granting\nDesktop (or its designees) the authority to vote its shares of capital stock of\nIndividual in accordance with and subject to the limitations of Section 1.1(f).\n\n          1.1(h)  No Proxy Solicitations.  Except as required by law, including\n                  ----------------------                                       \nactions which it determines upon the written advice of legal counsel are\nrequired pursuant to its fiduciary duties as a Director (as defined below) under\napplicable law, it shall not, and will not permit any person under its control\nto:  (i) solicit proxies or become a 'participant' in a 'solicitation' (as such\nterms are defined in Regulation 14A under the Exchange Act) with respect to an\nOpposing Proposal; or (ii) initiate a stockholders' vote or action by consent of\nIndividual stockholders with respect to an Opposing Proposal.\n\n          1.1(i)  Obligations as Director and\/or Officer. If at any time prior\n                  --------------------------------------\nto the expiration of this Agreement a Major Stockholder, or a representative of\na Major Stockholder, is also a member of the Board of Directors of Individual\n('Director') or an officer of Individual, nothing in this Agreement shall limit\n ----------                                                                     \nor restrict the Director or officer in acting in his or her capacity as a\nDirector or officer, as the case may be, of Individual and exercising his or her\nfiduciary duties and responsibilities, it being agreed and understood that this\nAgreement shall apply to the Major Stockholder solely in its capacity as a\nshareholder and shall not apply to the Director's or officer's actions,\njudgments or decisions as a Director or officer of Individual.\n\n\n \n                                      -3-\n\n                                   ARTICLE II\n\n                         REPRESENTATIONS AND WARRANTIES\n\n     2.1  Representations and Warranties of Major Stockholders.  Each of the\n          ----------------------------------------------------              \nMajor Stockholders hereby represents and warrants to Desktop as follows:\n\n          2.1(a) Existence and Power. If the Major Stockholder is a corporation,\n                 -------------------\npartnership or trust, it is duly organized, validly existing and in good\nstanding under the laws of its jurisdiction of organization.\n\n          2.1(b)  Authorization; Binding Agreement.  The execution, delivery and\n                  --------------------------------                              \nperformance by the Major Stockholder, if it is a corporation, partnership or\ntrust, of this Agreement are within its corporate, partnership or trust power\nand authority and have been duly authorized by all necessary corporate,\npartnership or trust action on the part of the Major Stockholder.  This\nAgreement has been duly executed and delivered by the Major Stockholder and\nconstitutes a valid and binding agreement of the Major Stockholder, enforceable\nagainst the Major Stockholder in accordance with its terms.\n\n          2.1(c)  Governmental Authorization.  The execution, delivery and\n                  --------------------------                              \nperformance by it of this Agreement does not require any action by or in respect\nof, or declaration, filing or registration with, any Governmental Entity.\n\n          2.1(d) Non-Contravention. The execution, delivery and performance by\n                 -----------------\nit of this Agreement does not and will not (i) if it is a corporation,\npartnership or trust, contravene or conflict with its organizational documents,\nor (ii) contravene or conflict with or constitute a violation of any provision\nof any law, regulation, judgment, injunction, order or decree binding upon or\napplicable to it.\n\n          2.1(e) Litigation. There is no action, suit, investigation or\nproceeding (or any basis therefor) pending against or, to the knowledge of the\nMajor Stockholder, threatened against or affecting, the Major Stockholder or any\nof its respective properties before any court or arbitrator or any governmental\nbody, agency, official or authority that in any manner challenges or seeks to\nprevent, enjoin, alter or materially delay the transactions contemplated by this\nAgreement or the Merger Agreement.\n\n          2.1(f)  Finders' Fees.  There is no investment banker, broker, finder\n                  -------------\nor other intermediary that has been retained by or is authorized to act on\nbehalf of the Major Stockholder who might be entitled to any fee or commission\nfrom Desktop, Individual or any of their affiliates upon consummation of the\ntransactions contemplated by this Agreement or the Merger Agreement.\n\n          2.1(g)  Ownership of Stock.  The Major Stockholder is the record and\n                  ------------------                                          \nbeneficial owner of the shares of Individual Common Stock set forth in the\nAffiliate Agreement, and owns all such shares free and clear of any and all\nliens, pledges, charges, security interests, restrictions\n\n \n                                      -4-\n\nor encumbrances of any kind or any rights of first refusal (other than in favor\nof Individual), voting trusts, proxies or other arrangements or understandings,\nwhether written or oral, and the Major Stockholder has the sole and exclusive\nright and power to exercise all voting rights and other rights with respect to\nsuch shares.\n\n          2.1(h)  Certain Tax Matters.  The Major Stockholder has no plan or\n                  -------------------                                       \nintention to engage in a direct or indirect sale, exchange, redemption,\ndisposition or conveyance or any transaction that would have the effect of\nreducing in any way the Major Stockholder's risk of ownership, including, but\nnot limited to, distributions by a partnership to its partners and by a\ncorporation to its stockholders, of the shares of Desktop Common Stock to be\nreceived by the Major Stockholder in the Merger.  The Major Stockholder\nacknowledges that it is giving this representation and covenant to enable Testa,\nHurwitz &amp; Thibeault, LLP and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.\nto opine that the Merger constitutes a reorganization within the meaning of\nSection 368 of the Code and further recognizes that significant adverse tax\nconsequences might result if such representation is not true.  The Major\nStockholder understands and agrees that, in connection with the Merger, the\nMajor Stockholder will be required to restate the foregoing representation on or\nabout the Effective Time of the Merger.\n\n                                  ARTICLE III\n\n                                 MISCELLANEOUS\n\n     3.1     Survival; Termination.\n             --------------------- \n\n          3.1(a)  All representations and warranties in this Agreement shall\nsurvive the Closing. Any investigation or other examination that may have been\nmade or may be made at any time by or on behalf of the party to whom\nrepresentations and warranties are made shall not limit, diminish or in any way\naffect the representations and warranties in this Agreement, and the parties may\nrely on the representations and warranties in this Agreement irrespective of any\ninformation obtained by them by any investigation, examination or otherwise.\n\n          3.1(b)  The covenants contained in Sections 1.1(a), 1.1(b), 1.1(e),\n1.1(f), 1.1(g), 1.1(h) and 1.1(i) (but not any liability for any breach thereof)\nshall terminate at the Effective Time. All other covenants contained in this\nAgreement shall survive the Merger.\n\n          3.1(c)  This Agreement shall terminate in all respects upon\ntermination of the Merger Agreement (but not any liability for any breach\nhereof).\n\n     3.2     Specific Performance. Each of the parties to this Agreement\n             --------------------\nhereby acknowledges that the other party will have no adequate remedy at law if\nit fails to perform any of its obligations under this Agreement. In such event,\neach of the parties agrees that the other party shall have the right, in\naddition to any other rights it may have (whether at law or in equity), to\nspecific performance of this Agreement.\n\n\n \n                                      -5-\n\n     3.3  Further Assurances.  If at any time after the Effective Time, Desktop\n          ------------------                                                   \nshall consider it advisable that any further conveyance, agreements, documents,\ninstruments and assurances of law or any other things are necessary or desirable\nto vest, perfect, confirm or record the title to any property, rights,\nprivileges, powers and franchises of Individual, the officers of Individual last\nin office and such other persons, if any, as the Board of Directors of\nIndividual last in office may authorize shall execute and deliver, upon\nDesktop's request, any and all proper conveyances, agreements, documents,\ninstruments and assurances of law, and do all things necessary or proper to\nvest, perfect, confirm or record title to such property, rights, privileges,\npowers and franchises in Desktop and otherwise to carry out the provisions of\nthis Agreement.\n\n     3.4  Parties in Interest.  All the terms and provisions of this Agreement\n          -------------------                                                 \nshall be binding upon, shall inure to the benefit of and shall be enforceable by\nthe respective successors and permitted assigns of the parties hereto.  Nothing\nexpressed or implied in this Agreement is intended or shall be construed to\nconfer upon or give any person, firm or corporation other than the parties\nhereto, their permitted successors or assigns, and their respective stockholders\nany rights or remedies under or by reason of this Agreement or any transaction\ncontemplated hereby.\n\n     3.5  Entire Agreement.  This Agreement and the Merger Agreement (together\n          ----------------                                                    \nwith the Exhibits, the Desktop Disclosure Schedule, the Individual Disclosure\nSchedule and the other documents delivered pursuant thereto) constitute the\nentire agreement between the parties and supersede all prior agreements and\nunderstandings, both written and oral, between the parties, or any of them, with\nrespect to the subject matter hereof.\n\n     3.6  Amendment or Modification.  At any time before or after the adoption\n          -------------------------                                           \nof the Agreement by the stockholders of Individual or the approval of the\nproposals contained in the Proxy Statement by the stockholders of Desktop and\nIndividual, this Agreement may be amended or supplemented by additional\nagreements, articles or certificates, in writing, as may be determined by the\nparties hereto to be necessary, desirable or expedient to further the purposes\nof this Agreement, or to clarify the intention of the parties hereto, or to add\nto or to modify the covenants, terms or conditions hereof or to effect or\nfacilitate any governmental approval or acceptance of the Merger or of this\nAgreement or to effect or facilitate the filing or recording of the Agreement or\nthe consummation of any of the transactions contemplated hereby or thereby.\n\n     3.7  No Waiver.  The failure of any party hereto to enforce at any time any\n          ---------                                                             \nof the provisions of this Agreement shall in no way be construed to be a waiver\nof any such provision, nor in any way to affect the validity of this Agreement\nor any part hereof or the right of such party thereafter to enforce each and\nevery such provision.  No waiver of any breach of or non-compliance with this\nAgreement shall be held to be a waiver of any other or subsequent breach or non-\ncompliance.\n\n     3.8  Assignability.  This Agreement shall not be assignable by the Major\n          -------------                                                      \nStockholder, on the one hand, or Desktop, on the other hand, without the prior\nwritten consent of Desktop, on the one hand, or the Major Stockholder, on the\nother hand.\n\n \n                                      -6-\n\n     3.9  Headings and Interpretation.  The headings contained in this Agreement\n          ---------------------------                                           \nare for reference purposes only and shall not affect the meaning or\ninterpretation of this Agreement.  Terms such as 'herein', 'hereof',\n'hereinafter' refer to this Agreement as a whole and not to the particular\nsentence or paragraph where they appear, unless the context otherwise requires.\nUnless the context otherwise requires, (i) terms used in the plural include the\nsingular, and vice versa, and (ii) words in the masculine gender include the\nfeminine, and vice versa.\n\n     3.10  Notices.  All notices, requests, claims, demands and other\n           -------                                                   \ncommunications under this Agreement shall be in writing and shall be deemed to\nhave been duly given when received at the addresses set forth in the Merger\nAgreement, in the case of Desktop, and the books and records of Individual, in\nthe case of the Major Stockholder, or to such other address as any party may\nhave furnished to the others in writing in accordance herewith, except that\nnotices of change of address shall only be effective upon receipt.\n\n     3.11  Law Governing.  This Agreement shall be governed by and construed and\n           -------------                                                        \nenforced in accordance with the laws of the State of Delaware, without giving\neffect to the principles of conflicts of law thereof.\n\n     3.12  Invalidity of Provisions.  Each of the provisions contained in this\n           ------------------------                                           \nAgreement is distinct and severable and a declaration of invalidity or\nunenforceability of any such provision or part thereof by a court of competent\njurisdiction shall not affect the validity or enforceability of any other\nprovision hereof.\n\n     3.13  Counterparts.  This Agreement may be executed simultaneously in one\n           ------------                                                       \nor more counterparts, each of which shall be deemed to be an original but all of\nwhich together shall constitute one and the same instrument.\n\n                  [Remainder of page intentionally left blank]\n\n \n                                      -7-\n\n     IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by\nthe parties on the date first above written.\n\n\n                                      DESKTOP DATA, INC.\n\n\n                                      By: \/s\/ Donald L. McLagan\n                                         ------------------------------------\n                                         Name:  Donald L. McLagan\n                                         Title: President and Chief Executive\n                                                Officer\n\n\n                                      MAJOR STOCKHOLDERS\n\n\n                                       \/s\/ Michael E. Kolowich\n                                      -------------------------------\n\n                                       \n\n                                      MICROSOFT CORPORATION\n\n                                      By: \/s\/ Gregory S. Stanger\n                                         ----------------------------\n                                         Name:  Gregory S. Stanger\n                                         Title: Director of Business \n                                                Development &amp; Investments\n\n\n\n                                      BURR, EGAN, DELEAGE &amp; CO.\n\n                                      By: \/s\/ Marino R. Polestra\n                                         ----------------------------\n                                         Name:  Marino R. Polestra\n                                         Title: Vice President\n\n\n                                       \/s\/ Joseph A. Amram\n                                      -------------------------------\n\n\n                                      KNIGHT-RIDDER INFORMATION, INC.\n\n                                      By: \/S\/ Jeffrey S. Galt\n                                         ----------------------------\n                                         Name:  Jeffrey S. Galt\n                                         Title: President\n\n\n                                       \/s\/ Elon Kohlberg\n                                      -------------------------------\n\n\n                                       \/s\/ James D. Daniell\n                                      -------------------------------\n\n\n                                       \/s\/ W.A. Devereaux\n                                      -------------------------------\n\n\n                                       \/s\/ Robert L. Lentz\n                                      -------------------------------\n\n\n                                       \/s\/ Gregory S. Stanger\n                                      -------------------------------\n\n\n                                       \/s\/ Jeffrey S. Galt\n                                      -------------------------------\n\n\n                                       \/s\/ Marino R. Polestra\n                                      -------------------------------\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8351],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43488","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-newsedge-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43488","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43488"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43488"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43488"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43488"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}