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EXHIBIT 99.3
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement") is entered into as of
__________, 2001 by and between iVillage Inc., a Delaware corporation (the
"Company"), and Hearst Communications, Inc., a Delaware corporation
("Purchaser").
RECITALS
WHEREAS, the Company and Purchaser are parties to that certain Amended
and Restated Securities Purchase Agreement, dated as of February 22, 2001 (the
"Securities Purchase Agreement"), which, among other things, provides for the
sale by the Company and the purchase by Purchaser of up to 9,324,000 shares
(subject to adjustment as provided in Section 1.2 of the Securities Purchase
Agreement) of the Company's common stock (as adjusted, the "Purchase Shares")
and a warrant to purchase up to an additional 2,100,000 shares of the Company's
common stock (the "Warrant" and, upon exercise, the "Warrant Shares" and, each
together with the Purchase Shares, the "Investment Shares"); and
WHEREAS, the Investor Group (as hereinafter defined) acquired _____
shares of the Company's common stock in exchange for certain shares of Xxxxx.xxx
Networks, Inc. common stock (the "Merger Shares") pursuant to an Agreement and
Plan of Merger, dated as of February 5, 2001 and amended as of February 22,
2001, by and among Purchaser, the Company and a wholly-owned subsidiary of the
Company (as amended, the "Agreement and Plan of Merger"); and
WHEREAS, the Investment Shares and the Merger Shares constitute all of
the Voting Securities (as defined hereafter) owned by the Investor Group as of
the date hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
(a) "13D Group" means any group of persons formed for the
purpose of acquiring, holding, voting or disposing of Voting Securities which
would be required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder, to file a
statement on Schedule 13D with the Securities and Exchange Commission as a
"person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned sufficient securities to require such a filing under
the Exchange Act.
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(b) "20% Share Issuance" means the issuance of Voting
Securities in a single transaction or a series of related transactions which
represent greater than twenty percent (20%) but less than forty percent (40%) of
the number of Voting Securities outstanding immediately after such transaction
or series of related transactions.
(c) "40% Share Issuance" means the issuance of Voting
Securities in a single transaction or a series of related transactions which
represent forty percent (40%) or more of the number of Voting Securities
outstanding immediately after such transaction or series of related
transactions.
(d) "Affiliate" shall have the meaning set forth in Rule 12b-2
under the Exchange Act and shall also include any person acting on behalf of any
person or its affiliate.
(e) "Board" means the Board of Directors of the Company.
(f) "Consenting Vote" means (i) the unanimous written consent
of the Board or (ii) the approval of the Board at any properly noticed Board
meeting at which a quorum is present which approval shall include all of the
non-Investor Group Designees present at the meeting.
(g) "Independent Director" means any person, as of the date of
his or her appointment or election to the Board, that is not and has not been
during the three years preceding the date of such appointment or election (i) an
Investor Group Designee, or (ii) an employee of the Company or any of its
subsidiaries.
(h) "Initial Equity Stake" means the number of shares of
iVillage securities represented by the Investment Shares and the Merger Shares.
(i) "Investor Group" means Purchaser and its Affiliates.
(j) "Investor Group Designee" means any person representing,
employed by, designated as nominee by or otherwise affiliated with any member of
the Investor Group.
(k) "Investor Group Interest" means, as of the date of
determination, the total number of (i) the outstanding Voting Securities owned
by the Investor Group and (ii) any outstanding convertible securities, options,
warrants or other rights owned by the Investor Group which are, or with the
passage of time or satisfaction of any conditions could be, convertible into or
exchangeable or exercisable for securities entitled to vote for the election of
directors treating such convertible securities, options, warrants or other
rights on an as converted basis.
(l) "Maximum Interest" means, as of the date of determination,
the total number of shares resulting from the product of the Threshold
Percentage and the sum of (i) the total outstanding Voting Securities and (ii)
the Warrant Shares owned by the Investor Group.
(m) "Minimum Interest" means, as of the date of determination,
ten percent (10%) of the outstanding Voting Securities.
(n) "Non-Investor Group Designees" means all directors on the
Board as of the time of the determination, other than Investor Group Designees.
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(o) "Person" shall mean any individual, corporation,
partnership (general or limited), limited liability company, limited liability
partnership, trust, joint venture, joint-stock company, syndicate, association,
entity, unincorporated organization or government or any political subdivision,
agency or instrumentality thereof.
(p) "Restricted Block" means, at the time of determination,
the number of Voting Securities held by the Investor Group in excess of the
Unrestricted Block.
(q) "Threshold Percentage" means ______% [This percentage will
be calculated as of the closing date of the merger by dividing the Investor
Group Interest on such date (including the Investment Shares and the Warrant
Shares) by the sum of (i) the total number of outstanding Voting Securities on
such date and (ii) the Warrant Shares owned by the Investor Group.]
(r) "Transfer" means (i) to sell, exchange, pledge or
otherwise transfer any interest in, and (ii) a sale, exchange, pledge or other
transfer of any interest in, Voting Securities.
(s) "Unrestricted Block" means, at the time of determination,
the number of Voting Securities held by the Investor Group which represents the
Unrestricted Percentage of the total outstanding Voting Securities of the
Company.
(t) "Unrestricted Percentage" means __%. [This percentage will
be calculated as of the closing date of the merger by adding 25% and the
percentage of the outstanding shares of iVillage common stock represented by any
additional shares of iVillage common stock required to be purchased by Hearst
Communications pursuant to Article 12 of the Stock Purchase Agreement.]
(u) "Voting Security" means, as of the date of determination,
the Common Stock of the Company and any other security generally entitled to
vote for the election of directors.
1.2 OTHER DEFINED TERMS. In addition to the terms defined in Section
1.1, certain other defined terms are defined elsewhere in this Agreement and,
whenever such terms are used in this Agreement, they shall have their respective
defined meanings.
ARTICLE II
PURCHASE RESTRICTIONS
2.1 STANDSTILL OBLIGATIONS.
(a) LIMITATION. At any time following the date of this
Agreement, without a prior Consenting Vote, no member of the Investor Group
shall, directly or indirectly, (i) acquire any Voting Securities (except by way
of (A) stock splits, stock dividends or other distributions or offerings made
available to holders of Voting Securities generally, or (B) stock options,
warrants or other rights to purchase Voting Securities approved by Consenting
Vote), or (ii) (other than in connection with an actual sale of such securities)
exercise any stock options, warrants or other rights to purchase Voting
Securities if the effect of such acquisition or exercise would be to increase
the Investor Group Interest to more than the Maximum Interest.
(b) RECAPITALIZATIONS, ETC. Notwithstanding Section 2.1(a), no
member of the Investor Group shall be obligated to dispose of any Voting
Securities (or be prohibited from exercising the Warrant) if the Investor Group
Interest exceeds (or would, as a result of exercise of
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the Warrant, exceed) the Maximum Interest as a result of (i) a recapitalization
of the Company, (ii) a repurchase of Voting Securities or (iii) any other action
taken by the Company or its Affiliates other than the Investor Group.
(c) PARTICIPATION. Without a prior Consenting Vote, the
Investor Group will not (i) solicit proxies in respect of any Voting Securities,
(ii) become a "participant" or "participant in a solicitation", as those terms
are defined in Rule 14a-11 under the Exchange Act, in opposition to a
solicitation by the Company, (iii) form or join any group (other than a group
composed solely of the Investor Group) for the purpose of voting, purchasing or
disposing of Voting Securities, (iv) initiate, propose or otherwise solicit
stockholders for any matter at any time, or induce or attempt to induce any
other person (including the Company) to initiate any stockholder proposal or
tender offer for shares of the Company, or for the purpose of convening a
stockholders' meeting of the Company, (v) take any action by written consent in
lieu of a meeting, or (vi) deposit any Voting Securities in a voting trust or
subject them to a voting agreement or other arrangement of similar effect,
except as contemplated by this Agreement; provided, however, that the Investor
Group shall not be deemed to be a "participant" or to have become engaged in a
solicitation hereunder solely by reason of (I) the membership of an Investor
Group Designee on the Board, (II) the voting of the Investor Group's Voting
Securities in any election of such representative of the Investor Group to the
Board, or (III) the solicitation of proxies by the Company in connection with
any annual meeting of the stockholders of the Company.
2.2 PURCHASER REPORTING OBLIGATIONS.
(a) [Intentionally omitted].
2.3 COMPANY REPURCHASE RIGHTS; DISPOSITION OBLIGATION. In the event
that any acquisition of Voting Securities by the Investor Group should cause the
Investor Group Interest to exceed the Maximum Interest:
(a) The Company or its designee shall have the right,
but shall not be required, to purchase from the Investor Group, and the Investor
Group shall have the obligation to sell, such number of Voting Securities owned
by the Investor Group as is necessary to reduce the Investor Group Interest to
the Maximum Interest. The exercise of such right by the Company shall require a
Consenting Vote. Any Voting Securities purchased by the Company pursuant to this
Section shall be purchased for cash at a price per share equal to the lowest of:
(i) the average cost per share to the
Investor Group of the Voting Securities being purchased (it being conclusively
presumed that the Voting Securities last acquired which exceeded the Maximum
Interest are the Voting Securities being purchased);
(ii) the average of the closing price for
the Company's Common Stock on a national stock exchange or automated quotation
system for the ten (10) consecutive trading days preceding the date on which the
Company or its designee gives written notice to Purchaser of its intent to
exercise its option under this Section; or
(iii) the closing price for the Company's
Common Stock on a national stock exchange or automated quotation system on the
last trading day preceding the date on which the Company or its designee gives
written notice to Purchaser of its intent to exercise its
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option under this Section. This right is exercisable by the Company's delivery
of written notice to Purchaser, within thirty (30) days after the Company first
learns of such violation, specifying the number of Voting Securities to be
purchased, the date on which said purchase shall occur (which date shall be not
more than thirty (30) days after the date on which such notice was delivered to
Purchaser) and the place designated for such transaction to take place.
(b) The Company shall have the right, but shall not
be required, to require the Investor Group, and the Investor Group shall have
the obligation to sell or transfer as soon as practicable and in compliance with
all applicable securities laws, such number of Voting Securities owned by the
Investor Group as is necessary to reduce the Investor Group Interest to the
Maximum Interest so as to not be in violation of Section 2.1(a). This right is
exercisable by the Company's delivery of written notice to Purchaser, within
thirty (30) days after the Company first learns of such violation. In the event
the Company exercises such right, the sale or transfer of such number of Voting
Securities owned by the Investor Group necessary to reduce the Investor Group
Interest to the Maximum Interest shall be effected only in ordinary brokerage
transactions, or in private block trades approved by Consenting Vote, provided,
however, that (i) the selling member of the Investor Group shall inform the
Company of such sale or transfer of Voting Securities, prior to effecting it,
and (ii) Purchaser will use its reasonable efforts to effect or to cause the
sale or transfer in a manner which will effect the broadest possible
distribution with no sales or transfers to any one person or group within the
meaning of the Exchange Act in excess of one percent (1%) of the
then-outstanding Voting Securities. The exercise of such right by the Company
shall require a Consenting Vote.
The rights contained in this Section 2.3 shall not be deemed to be the
exclusive remedies for acquisition of Voting Securities resulting in the
Investor Group Interest exceeding the Maximum Interest in violation of Section
2.1(a), nor shall such right be deemed to prejudice, or to operate as a waiver
of, any remedy contained in Section 6.1, or any other remedy to which the
Company may be entitled at law or in equity.
ARTICLE III
VOTING OBLIGATIONS
3.1 VOTING OBLIGATIONS. For so long as the Investor Group holds a
Minimum Interest:
(a) QUORUM OBLIGATION. Purchaser agrees, as a stockholder, and
shall cause each member of the Investor Group to so agree, to be present in
person or to be represented by proxy at all stockholder meetings of the Company
so that all Restricted Block Voting Securities owned by the Investor Group may
be counted for the purpose of determining the presence of a quorum at such
meetings with respect to those matters as to which Purchaser agrees to vote its
shares in Section 3.1(b).
(b) VOTING OF SHARES. Purchaser, as a stockholder, may vote
the Unrestricted Block in its sole discretion. Purchaser agrees, as a
stockholder, and shall cause each member of the Investor Group to so agree, to
vote or cause to be voted the Restricted Block in the manner recommended to
stockholders by Consenting Vote on any vote submitted to the stockholders for
vote or action by written consent including, without limitation, any stockholder
rights plan approved by Consenting Vote.
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3.2 BOARD REPRESENTATION. In consideration of the Purchaser's agreement
to acquire the Purchase Shares (as defined in the Securities Purchase
Agreement), the Company agrees as follows:
(a) APPOINTMENT AND NOMINATION. Upon the Closing (as defined
in the Securities Purchase Agreement), the Company's Board will be fixed at ten
(10) persons and the Company will cause the following appointments to be made:
(i) Three (3) Investor Group Designees shall be
appointed to the Board, with each such Investor Group Designee appointed to a
separate class of directors.
(ii) One (1) Investor Group Designee appointed to the
Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's
nominating committee.
(iii) One (1) Investor Group Designee appointed to
the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's
compensation committee.
(iv) Five (5) Independent Directors shall be
appointed to the Board.
Thereafter, during the term of this Agreement and for so long as the Investor
Group holds at least a Minimum Interest and subject to Sections 3.2(b) and 3.3,
(i) the Company's nominating committee shall recommend to the Board that the
Investor Group Designees be included in the slate of nominees recommended by the
Board to the stockholders for election as directors at each annual meeting of
stockholders for which an election is held for such class of directors, (ii) the
total size of the Board shall be fixed at ten (10) persons, (iii) one (1)
Investor Group Designee appointed to the Board pursuant to Section 3.2(a) or
3.2(b) shall be appointed to each of the Company's nominating committee (which
committee shall be set at three (3) members consisting of the Company's Chief
Executive Officer, an Investor Group Designee, and an Independent Director
appointed by the Company's Chief Executive Officer) and compensation committee
and (iv) in connection with each annual meeting, the Company's nominating
committee shall recommend to the Board a slate of nominees which, if elected at
such annual meeting, would conform with the requirements of the composition of
the Board to be in effect upon the Closing, and the Board shall recommend such
slate to the stockholders. In the event that any of such Investor Group
Designees shall cease to serve as a director for any reason, the vacancy
resulting thereby shall be filled according to the procedures described in the
previous sentence.
(b) BOARD NOMINEES. During the Term of this Agreement and for
so long as the Investor Group holds a Minimum Interest, the Investor Group may
recommend to the Company's nominating committee and the Company's nominating
committee shall recommend to the Board, the number of Investor Group Designees
determined in the manner described below. Such Investor Group Designees shall be
included in the slate of nominees recommended by the Board to the stockholders
for election as directors at each annual meeting of stockholders for which an
election is held for such class of directors.
(i) For so long as the Investor Group owns at least
eighty percent (80%) of the Initial Equity Stake, the Investor Group may
recommend three (3) Investor Group Designees, each to be recommended and
nominated upon the expiration of the term of each Investor Group Designee
appointed pursuant to Section 3.2(a)(i) or elected subsequent to nomination
under this
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Section 3.2(b). If, at any time during the Term of this Agreement, the Investor
Group shall hold at least sixty-six percent (66%) but less than eighty percent
(80%) of the Initial Equity Stake, immediately upon such occurrence the Investor
Group shall cause all the Investor Group Designees serving on the Board in
excess of the number of Investor Group Designees described in Section 3.2(b)(ii)
to resign from the Board, effective as of the date of such occurrence. In the
event that more than one Investor Group Designee shall be required to resign
pursuant to this Section, the order of resignation shall proceed beginning with
the most recently elected or appointed Investor Group Designee and proceeding to
the next most recently elected or appointed Investor Group Designee;
(ii) For so long as the Investor Group owns at least
sixty-six percent (66%) but less than eighty percent (80%) of the Initial Equity
Stake, the Investor Group may name two (2) Investor Group Designees, each to be
recommended and nominated upon the expiration of the term of each Investor Group
Designee appointed pursuant to Section 3.2(a)(i) or elected subsequent to
nomination under this Section 3.2(b). If, at any time during the Term of this
Agreement, the Investor Group shall hold at least a Minimum Interest but less
than sixty-six percent (66%) of the Initial Equity Stake, immediately upon such
occurrence the Investor Group shall cause all the Investor Group Designees
serving on the Board in excess of the number of Investor Group Designees
described in Section 3.2(b)(iii) to resign from the Board, effective as of the
date of such occurrence. In the event that more than one Investor Group Designee
shall be required to resign pursuant to this Section, the order of resignation
shall proceed beginning with the most recently elected or appointed Investor
Group Designee and proceeding to the next most recently elected or appointed
Investor Group Designee;
(iii) If the Investor Group owns less than sixty-six
percent (66%) of the Initial Equity Stake, the Investor Group may name one (1)
Investor Group Designee.
(c) TERMINATION OF REPRESENTATION. If, at any time during the
Term of this Agreement, the Investor Group shall hold Voting Securities
representing less than a Minimum Interest, immediately upon such occurrence the
Investor Group shall cause all Investor Group Designees serving on the Board to
resign from the Board, effective as of the date of such occurrence.
(D) REVIVAL. If, at any time during the Term of this
Agreement, the number of Voting Securities held by the Investor Group shall
increase in excess of any of the percentages indicated in Section
3.2(b)(i)-(iii) (but in no event in excess of the Maximum Interest), the
Investor Group may name such additional Investor Group Designees as may be
provided by Sections 3.2(b)(i)-(iii). Each additional Investor Group Designees
shall be included in the slate of nominees recommended by the Board to the
stockholders for election as directors at the next annual meeting of
stockholders.
3.3 BOARD EXPANSION FOLLOWING CERTAIN SUBSEQUENT SHARE ISSUANCES.
(a) Promptly after the occurrence of a 20% Share Issuance, and
upon the request of the Company, Purchaser agrees, and shall cause each member
of the Investor Group and each Investor Group Designee to agree, to cooperate
with the Company and to take all action reasonably necessary to increase the
size of the Board to eleven (11) and to fill the vacancy resulting therefrom
with an Independent Director approved by a Consenting Vote.
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(b) Promptly after the occurrence of a 40% Share Issuance, and
upon the request of the Company, Purchaser agrees, and shall cause each member
of the Investor Group and each Investor Group Designee to agree, to cooperate
with the Company and to take all action reasonably necessary to increase the
size of the Board to twelve (12) and to fill the two (2) vacancies resulting
therefrom with Independent Directors approved by a Consenting Vote.
ARTICLE IV
TRANSFER RESTRICTIONS
4.1 RESTRICTIONS ON TRANSFER. For so long as the Investor Group shall
own Voting Securities representing at least the Minimum Interest, Purchaser
shall not Transfer any Voting Securities, except certain permitted transactions
made in accordance with Sections 4.2 and 4.3 or Transfers made to members of the
Investor Group, provided, that any proposed transferee that is a member of the
Investor Group must, as a condition to such Transfer, agree to be bound by the
restrictions of this Article 4, and, provided further, that if Purchaser ceases
to own, directly or indirectly, securities representing at least 80% of the
aggregate voting power of all voting securities issued by any such member of the
Investor Group or if Purchaser ceases to control, directly or indirectly, the
management or policies of any such member of the Investor Group (whether through
ownership of securities, partnership or membership interests, by contract or
otherwise), then in either such case, any Transfers to such member of the
Investor Group will automatically and without further action be rescinded and
nullified and the member of the Investor Group will be stripped of any ownership
or voting rights relating to any Voting Securities and will be irrevocably
obligated promptly to Transfer any and all Voting Securities held by it to
Purchaser unless such transfer would be permitted pursuant to Section 4.3.
4.2 CONSENT REQUIRED FOR CERTAIN TRANSFERS. Except in the case of
Transfers to Investor Group members as permitted by Section 4.1 or in the case
of Transfers permitted by Section 4.3, Purchaser must obtain a Consenting Vote
to any proposed Transfer of any Voting Securities by Purchaser or any Investor
Group member. The Company may refuse to grant or may withhold its consent to any
such proposed Transfer of Voting Securities in its sole and absolute discretion,
and also in its sole and absolute discretion may condition its consent to any
such proposed Transfer of Voting Securities on agreements of either or both the
Purchaser and the proposed transferee, including (by way of example and not
limitation), an agreement of the proposed transferee to be bound by any or all
of the restrictions set forth in this Agreement or of the Purchaser to be
jointly and severally liable with the proposed transferee for any breach or
violation of this Agreement by such proposed transferee.
4.3 PERMITTED TRANSACTIONS. The provisions of Sections 4.1 and 4.2 of
this Agreement shall not pertain or apply to:
(a) Any pledge of any Voting Securities made by a
member of the Investor Group pursuant to a bona fide loan transaction which
creates a mere security interest;
(b) Any repurchase of any Voting Securities by the
Company;
(c) Any bona fide gift of any Voting Securities by a
member of the Investor Group;
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(d) Any sale or transfer by the Investor Group of
Voting Securities to a transferee which transfer shall not cause the transferee
to hold a Minimum Interest or more after giving effect to such transfer;
(e) Any sale or transfer of any Voting Securities
pursuant to a tender offer or exchange approved by Consenting Vote; and
(f) Any sale or transfer of any Voting Securities in
connection with a merger or consolidation in which the Company is acquired, or
the sale of all or substantially all of the Company's assets which, in either
case, is approved by Consenting Vote;
provided, however, in each case (other than Sections 4.3(b), 4.3(d), 4.3(e) and
4.3(f)), that (i) the transferring member of the Investor Group shall inform the
Company of such pledge, transfer or gift of Shares, at least five (5) days prior
to effecting it, and (ii) the pledgee, transferee or donee shall furnish the
Company and the Investor Group with a written agreement to be bound by and
comply with all applicable provisions of this Agreement.
ARTICLE V
TERM AND TERMINATION
5.1 TERM. Unless earlier terminated as hereinafter provided, this
Agreement shall terminate on the earlier of (i) the fifth anniversary date of
this Agreement and (ii) the date of any merger or consolidation pursuant to
which the Company is not the surviving corporation.
5.2 TERMINATION. This Agreement may only be terminated before the
expiration of its term by mutual written consent of the Company and the
Purchaser. In the event of termination of this Agreement, the Investor Group
shall cause all the Investor Group Designees serving on the Board to resign from
the Board, effective as of the date of such termination. The resulting vacancies
on the Board shall be filled in accordance with the procedures set forth in the
Company's Bylaws.
ARTICLE VI
MISCELLANEOUS
6.1 EQUITABLE RELIEF. The parties acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which they may be entitled in
law or in equity.
6.2 WAIVER. The failure of either party to assert a right hereunder or
to insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other party.
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None of the terms, covenants and conditions of this Agreement can be waived
except by the written consent of the party waiving compliance.
6.3 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the parties or their respective
successors and assigns. Any amendment or waiver effected in accordance with this
Section 6.3 shall be binding upon the parties and their respective successors
and assigns.
6.4 ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other.
6.5 GOVERNING LAW; JURISDICTION. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the courts of the state and federal courts of the
County of New York, New York.
6.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.8 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in Person, by overnight
courier or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses, or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 6.8:
If to the Company:
iVillage Inc.
500 - 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Executive Vice President-
Operations and Business Affairs
with a copy to: iVillage Inc.
500 - 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
General Counsel
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
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000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx Xxxxx, Esq.
If to Purchaser:
Hearst Communications, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
General Counsel
with a copy to: Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
6.9 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith, in order to maintain the economic position enjoyed by
each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a mutually agreeable
and enforceable replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
6.10 ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6.11 ENTIRE AGREEMENT. This Agreement is the product of both of the
parties hereto, and constitutes the entire agreement between such parties
pertaining to the subject matter hereof, and merges all prior negotiations and
drafts of the parties with regard to the transactions contemplated herein. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
6.12 SURVIVAL. The provisions of Section 5.2 and Article VI shall
survive the termination of this Agreement forever. This Agreement shall apply,
without further act or formality, with any necessary changes to any new class,
series or numbers of securities to which any Voting Securities owned by the
Investor Group may be changed by virtue of any reorganization or
recapitalization of the Company or after a consolidation, subdivision or other
change in the capital stock of the Company, in each case, approved by Consenting
Vote.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
iVILLAGE INC.
By:
--------------------------
Name:
Title:
HEARST COMMUNICATIONS, INC.
By:
--------------------------
Name:
Title:
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