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FOURTH AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
AMONG
iVILLAGE INC.
AND
EACH OF THE
SIGNATORIES HERETO
Dated as of December 4, 1998
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FOURTH AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT dated as of
December 4, 1998, among (i)
iVILLAGE INC., a Delaware
Corporation (the "Corporation"),
(ii) each of the signatories hereto
identified as an Investor on the
signature page of such signatory
(each, an "Investor and,
collectively, the "Investors"),
(iii) XXXXXXX XXXXXXXXX, XXXXX
XXXXX and XXXXXX XXXXXXX (the
"Founders"), (iv) XXXXXXX
XXXXXXXXX, as voting trustee (the
"Voting Trustee") under the Voting
Trust Agreement dated September 19,
1995, among the Founders and (v)
each of the other parties hereto
(the "Other Stockholders").
The Investors own and/or have the right to acquire upon the
exercise or exchange of stock subscription warrants, shares of Series A
Preferred Stock, $.0005 par value (the "Series A Preferred Stock"), Series B
Preferred Stock, $.0005 par value (the "Series B Preferred Stock"), Series B-1
Preferred Stock, $.0005 par value (the "Series B-1 Preferred Stock"), Series C
Preferred Stock, $.0005 par value (the "Series C Preferred Stock"), Series D
Preferred Stock, $.0005 par value (the "Series D Preferred Stock"), Series E
Preferred Stock, $.0005 par value (the "Series E Preferred Stock") and/or Xxxxx
Common Stock (as hereinafter defined) of the Corporation and each Founder owns,
on the date hereof, shares of Common Stock, $.0005 par value (the "Common
Stock"), of the Corporation. The parties wish to amend and restate the Amended
and Restated Stockholders' Agreement dated as of May 6, 1996 as amended and
restated by the Second Amended and Restated Stockholders' Agreement dated as of
May 28, 1997, as amended as of December 22, 1997, and as amended and restated by
the Third Amended and Restated Stockholders' Agreement dated February 24, 1998
as amended on May 26, 1998 (the "Old Stockholders' Agreement"), among the
Corporation, certain of the Investors, the Founders and the Voting Trustee and
to provide herein for the terms with respect to certain matters regarding the
relationship between the Corporation and its stockholders and among such
stockholders. Accordingly, the parties agree as follows:
ARTICLE 1
Definitions
1.1. Definitions.
The following terms shall have the following meanings:
(a) "Affiliate" shall mean any (a) corporation or other entity in
which the subject person owns, directly or indirectly, more than 50% of the
capital stock or other equity
interests the holders of which are generally entitled to vote for the election
of the board of directors or other governing body of such corporation or other
entity and (b) any other person that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with, the
subject person.
(b) "AOL" shall mean America Online, Inc., a Delaware
corporation.
(c) "AOL Warrants" shall mean the stock subscription warrants
dated September 19, 1995 and May 6, 1996 to purchase shares of Series B
Preferred Stock of the Corporation.
(d) "Board" means the Board of Directors of the Corporation.
(e) "Change-of-Control" means (i) any consolidation or merger of
the Corporation, other than any merger or consolidation resulting in the holders
of the capital stock of the Corporation entitled to vote for the election of
directors holding a majority of the capital stock of the surviving or resulting
entity entitled to vote for the election of directors, (ii) any person or entity
(including Affiliates thereof) becoming the holder of a majority of the capital
stock of the Corporation entitled to vote for the election of directors, or
(iii) any sale or other disposition by the Corporation of all or substantially
all of its assets to a third party.
(f) "Control" (including the terms "controlled by" and "under
common control with") shall mean the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
management or policies of a person, whether through the ownership of stock, as
trustee or executor, by contract or credit arrangement or otherwise.
(g) "Election Notice" means any notice delivered by any Founder
to the Corporation stating that such Founder elects the benefit of additional
vesting in accordance with the definition of "Vested Shares" set forth in this
Agreement and acknowledges to be governed by an additional non-competition
period in accordance with the definition of "Competitive Period" set forth in
the Non-Competition, Non-Disclosure and Assignment of Inventions Agreement dated
September 19, 1995, between such Founder and the Corporation.
(h) "Equity Securities" means all shares of capital stock of the
Corporation, all securities convertible into or exchangeable for shares of
capital stock of the Corporation, and all options, warrants, and other rights to
purchase or otherwise acquire from the Corporation shares of such capital stock,
or securities convertible into or exchangeable for shares of such capital stock.
(i) "Founder Shares" means the shares of Common Stock held by the
Founders or the Voting Trustee on the date hereof, and any shares of capital
stock issued thereon as a stock dividend or upon any stock split or other
subdivision of shares of capital stock.
(j) "Future Stockholder" means any person or entity that acquires
Equity Securities from the Corporation after the date hereof, other than
Investor Shares, representing at least five (5%) percent of the outstanding
voting capital stock of the Corporation.
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(k) "Group" means:
(i) in the case of any Founder, (i) the spouse and lineal
descendants of such Founder, and (ii) all trusts for the benefit of any of the
foregoing;
(ii) in the case of any Investor, (i) all Affiliates of such
Investor, (ii) all partners of such Investor (if a partnership), and (iii) any
person or entity to which such Investor Transfers all or substantially all of
its assets;
(iii) in the case of any Future Stockholder that is an
individual, (i) the spouse and lineal descendants of such Future Stockholder,
and (ii) all trusts for the benefit of any of the foregoing;
(iv) in the case of any Future Stockholder that is an entity,
all Affiliates of such Future Stockholder; and
(v) in the case of Rho Management Trust I ("Rho"), to the
beneficial owners of such trust.
(l) "Independent Individual" means any individual who is not an
officer, director, employee, consultant, or stockholder of the Corporation.
(m) "Investor Shares" means at any time, with respect to any
Investor, the shares of Preferred Stock (as defined herein) or Xxxxx Common
Stock held by it on the date hereof or issuable upon exercise or exchange of the
AOL Warrants or the 1997 Warrants (as such term is defined in the Series C
Preferred Stock Purchase Agreement dated as of May 28, 1997 (the "Series C Stock
Purchase Agreement"), among the Company and the other parties thereto or
issuable pursuant to the Letter Agreement dated November 11, 1998 between the
Company and National Broadcating Company, Inc. (the "NBC Letter Agreement"), any
shares of Common Stock issued or issuable upon conversion thereof, and any
shares or other securities received in respect thereof, which are held by such
Investor and which have not previously been sold to the public pursuant to a
registration statement under the Securities Act or pursuant to Rule 144.
(n) "IPO" means an underwritten public offering of Common Stock
of the Company registered pursuant to the Securities Act of 1933, as amended.
(o) "Major Stockholder" means each Founder, the Voting Trustee,
each Future Stockholder that is an officer of the Corporation, and each Future
Stockholder.
(p) "Observer" shall have the meaning set forth in Section
2.1(d).
(q) "Preferred Stock" shall mean shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock.
(r) "Pro Rata Amount" means, with respect to any Stockholder, the
quotient obtained by dividing (i) the number of shares of Common Stock held by
such
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Stockholder (or with respect to NBC, the number of shares of Common Stock issued
or issuable pursuant to the NBC Letter Agreement) by (ii) (A) in the case of
Section 3.3(c), the aggregate number of shares of Common Stock held by all
Investors entitled to exercise the rights provided under said Section 3.3(c) and
(B) in the case of Section 3.5, the aggregate number of shares of Common stock
held by all Investors entitled to execute the rights provided under said Section
3.5 and by all Major Stockholders, in the case of each of clause (i) and (ii),
assuming the conversion, exercise or exchange of all securities held by such
parties that by their terms are convertible into or exercisable or exchangeable
directly or indirectly for Common Stock and the exercise of all options held by
such parties to purchase or rights to subscribe for Common Stock or such
securities.
(s) "Qualified Public Offering" means the first underwritten
public offering for the account of the Corporation of Common Stock pursuant to a
registration statement filed under the Securities Act of 1933, as amended, at an
offering price to the public (subject to equitable adjustment for stock splits,
stock dividends, stock combinations, recapitalization and like occurrences) of
not less than $3.93 per share of Common Stock and with aggregate proceeds (net
of underwriting discounts and commissions) to the Corporation of not less than
$20,000,000.
(t) "Repurchase Notice" is defined in Section 3.2(b).
(u) "Series B Investor" shall mean any Stockholder who or which
at the relevant time holds, or has the right to acquire (upon the conversion,
exercise or exchange of any rights, options, warrants or other securities that
are convertible into or exercisable or exchangeable for) any shares of Series B
Preferred Stock.
(v) "Series C Investor" shall mean any Stockholder who or which
at the relevant time holds, or has the right to acquire (upon the conversion,
exercise or exchange of any rights, options, warrants or other securities that
are convertible into or exercisable or exchangeable for) any shares of Series C
Preferred Stock.
(w) "Series D Investor" shall mean any Stockholder who or which
at the relevant time holds, or has the right to acquire (upon the conversion,
exercise or exchange of any rights, options, warrants or other securities that
are convertible into or exercisable or exchangeable for) any shares of Series D
Preferred Stock.
(x) "Series E Investor" shall mean any Stockholder who or which
at the relevant time holds, or has the right to acquire (upon the conversion,
exercise or exchange of any rights, options, warrants or other securities that
are convertible into or exercisable or exchangeable for) any shares of Series E
Preferred Stock.
(y) "Shares" means the Investor Shares, the Founder Shares, and
all Equity Securities acquired by any Future Stockholders.
(z) "Stockholders" means the Investors, the Founders, the Other
Stockholders, the Voting Trustee, and any Future Stockholders.
(aa) "Xxxxx Common Stock" means shares of common stock of the
Company, $.0005 par value, sold to Xxxxx Healthcare Corporation pursuant to the
Common
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Stock Purchase Agreement dated as of February 24, 1998, and any Additional
Shares (as such term is defined therein) issued thereunder.
(bb) "Termination of Employment" of any Founder means the
termination of the employment of such Founder with the Corporation.
(cc) "Termination Date" means the consummation of the earlier to
occur of (i) any Change-of-Control and (ii) any Qualified Public Offering.
(dd) "Third Party" means, with respect to any Stockholder, any
person or entity that is not a member of the Group of such Stockholder.
(ee) "Transfer" means to sell, transfer, assign, or otherwise
dispose of, either voluntarily or involuntarily and with or without
consideration.
(ff) "Unvested Shares" of any Founder means those Founder Shares
held by such Founder that are not Vested Shares.
(gg) "Vested Shares" of any Founder at any time means (i) prior
to any Change-of-Control, the sum of (A) 33% of the Founder Shares held by such
Founder, (B) the product of (x) 22.33% of the Founder Shares held by such
Founder and (y) the number of successive 12-month periods elapsed from September
19, 1995 through the date of the Termination of Employment of such Founder, and
(C) if such Termination of Employment occurred before September 19, 1998 as a
result of (1) such Founder's death or disability or (2) any termination without
cause by the Corporation and such Founder delivers an Election Notice no later
than 10 days after delivery of any Repurchase Notice, then 22.33% of the Founder
Shares held by such Founder, and (ii) upon any Change-of-Control, 100% of the
Founder Shares held by such Founder.
(hh) "Voting Shares" means the shares of capital stock of the
Corporation entitled to vote for the election of directors.
ARTICLE 2
BOARD REPRESENTATION
2.1. Board Representation.
(a) The Corporation and each Stockholder shall take such
corporate actions as may be reasonably required to ensure that (i) the number of
directors constituting the Board shall not exceed fifteen prior to an IPO, or
such higher number as shall be required to satisfy the provisions of Section
2.1(b) hereof, unless otherwise increased in accordance with the Certificate of
Incorporation and By-laws of the Corporation, and (ii) the presence of a simple
majority of the then directors in office is required to constitute a quorum of
the Board.
(b) Subject to the terms of this Agreement:
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(i) the holders of a majority in voting power of all
outstanding shares of Series A Preferred Stock shall be entitled (A) to nominate
one individual for election to the Board to serve as a director until his or her
successor is elected and qualifies, (B) to nominate such successor, and (C) if
such holders so determine to be appropriate, to propose the removal from the
Board of such director nominated under the foregoing clause (A) or (B);
provided, however that AOL, for so long as it shall hold at least a majority of
the shares of Series A Preferred Stock (or Common Stock issuable upon conversion
thereof) held by it on the date hereof, shall have the right to designate such
individual for such nomination;
(ii) the holders of a majority in voting power of all
outstanding shares of Series B Preferred Stock shall be entitled (A) to nominate
two individuals for election to the Board to serve as directors until their
successors are elected and qualify, (B) to nominate each such successor, and (C)
if such holders so determine to be appropriate, to propose the removal from the
Board of such directors nominated under the foregoing clause (A) or (B);
provided that Tribune Company, for so long as such party (together with its
Affiliates), shall hold at least a majority of the shares of Series B Preferred
Stock (or Common Stock issuable upon conversion thereof) held by it on the date
hereof, shall have the right to designate one of such individuals for such
nomination;
(iii) the holders of a majority in voting power of all
outstanding shares of Series C Preferred Stock shall be entitled (A) to nominate
two individuals for election to the Board to serve as directors until their
successors are elected and qualify, (B) to nominate each such successor, and (C)
if such holders so determine to be appropriate, to propose the removal from the
Board of such directors nominated under the foregoing clause (A) or (B); ;
provided that each of (x) CIBC Wood Gundy Ventures, Inc. ("CIBC") and (y) Xxx
Interactive Media, Inc., for so long as each such party (together with their
respective Affiliates), respectively, shall hold at least a majority of the
shares of Series C Preferred Stock (or Common Stock issuable upon conversion
thereof) held by such party on the date hereof, shall, respectively, have, at
such party's discretion, the right to (i) designate one of such individuals for
such nomination or (ii) appoint an Observer to the Board if no such designation
is made;
(iv) the National Broadcasting Company, Inc. ("NBC"), shall
from and after the date hereof and thereafter, for so long as it (together with
its Affiliates), shall hold at least fifty percent (50%) of the highest number
of shares of Series E Preferred Stock (or Common Stock issuable upon conversion
thereof) at any time held by NBC shall be entitled (A) to nominate one
individual for election to the Board to serve as director until his or her
successor is elected and qualify, (B) to nominate each such successor, and (C)
if NBC so determines to be appropriate, to propose the removal from the Board of
such director nominated under the foregoing clause (A) or (B); notwithstanding
the foregoing, NBC's rights under this Section 2.1(b)(iv) shall cease and
terminate in the event that NBC shall have failed to telecast or otherwise
deliver in accordance with the terms of the Letter Agreement dated November 11,
1998 (the "Letter Agreement"), between the Corporation and NBC, the First
Tranche (as defined in the Letter Agreement) of advertising in accordance with
the Letter Agreement;
(v) the holders of a majority in voting power of all
outstanding shares of Series D Preferred Stock shall be entitled (A) to nominate
one individual for election to the Board to serve as a director until his or her
successor is elected and qualifies, (B) to nominate
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such successor, and (C) if such holders so determine to be appropriate, to
propose the removal from the Board of such director nominated under the
foregoing clause (A) or (B); provided, that Xxxxx Healthcare Corporation, for so
long as it (together with its Affiliates), shall hold at least a majority of
Series D Preferred Stock (or Common Stock issuable upon conversion thereof) held
by it on the date hereof, shall have the right to designate such individual for
such nomination;
(vi) the holders of a majority in voting power of all Founder
Shares shall be entitled (A) to nominate two individuals for election to the
Board to serve as directors until their successors are elected and qualify, (B)
to nominate each such successor, and (C) if such holders so determine to be
appropriate, to propose the removal from the Board of any director nominated
under the foregoing clause (A) or (B);
(vii) if the then Chairman of the Board at any time
determines in his or her discretion to recommend to the Board that an
Independent Individual be added to the Board and so recommends to the Board,
then each Stockholder shall vote all Voting Shares held by such Stockholder in
favor of increasing the authorized number the directors by one director if
necessary to effectuate the provisions of this Section 2.1(b)(vi) and the Board
(acting by majority vote) shall (A) be entitled to designate an Independent
Individual for election to the Board to serve as director until his or her
successor is elected and qualifies, (B) nominate each such successor and (C) if
the Board, acting by majority vote, so determines to be appropriate, to propose
the removal from the Board of the Independent Individual (the "Independent
Individual Election") (it being understood that the Independent Individual
Election may only occur as to one Independent Individual during the term of this
Agreement);
(viii) Intel Corporation ("Intel"), (A) for so long as Intel
(together with its Affiliates) shall hold shares of Series C Preferred Stock (or
Common Stock issuable upon conversion thereof) shall have, at its discretion,
the right to appoint an Observer to the Board and (B) for so long as Intel
(together with its Affiliates) shall hold at least a majority of the shares of
Series C Preferred Stock (or Common Stock issuable upon conversion thereof) held
by it on the date hereof the right to designate an Observer and upon the
occurrence of an Independent Individual Election and only for so long the
Independent Individual contemplated by Section 2.1(b)(vii) shall serve on the
Board, to convert its right to appoint an Observer, exercisable by written
notice to the Corporation and the other Stockholders, into the right (1) to
nominate an individual for election to the Board to serve as a director until
his or her successor is elected and qualifies, (2) to nominate each successor
and (3) if Intel so determines to be appropriate, to propose the removal from
the Board of any director nominated under the foregoing clause (1) or (2); and
in such event each Stockholder shall vote all Voting Shares held by such
Stockholder in favor of increasing the authorized number of directors, if
necessary, by one director if necessary to effectuate the provisions of this
Section 2.1(b)(viii);
(ix) as a result of the increase in the authorized number of
directors pursuant to Sections 2.1(b)(vii) and (viii) such authorized number of
directors shall be an even number, then if the Board (acting by majority vote)
determines to increase further the number of authorized directors by one
Independent Individual (so as to increase the authorized number of directors to
an odd number) (the "Odd Director"), then each Stockholder shall vote all Voting
Shares held by such Stockholders in favor of so further increasing the
authorized number of directors and the Board (acting by majority vote) shall be
entitled to (A) designate the Odd
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Director for election to the Board to serve until his or her successor is
elected and qualifies and (B) nominate each such successor.
(x) Rho, for so long as it (together with its Affiliates)
shall hold at least a majority of Preferred Stock (or Common Stock issuable upon
conversion thereof) held by it on March 6, 1998, shall be entitled (A) to
nominate one individual for election to the Board to serve as a director until
his or her successor is elected and qualifies, (B) to nominate such successor,
(C) if Rho so determines to be appropriate, to propose the removal from the
Board of such director nominated under the foregoing clause (A) or (B) and (D)
to appoint an Observer to the Board if no nomination is made pursuant to clause
(A) above; and
(xi) Following the consummation by the Corporation of an IPO
and for six months thereafter, a majority of the Venture Investors (as
hereinafter defined) acting together shall be entitled (A) to nominate two
individuals for election to the Board to serve as a director until his or her
successor is elected and qualifies, assuming that the Board consists of seven
directors, and, in the event the Board consists of more than seven directors,
such greater number of individuals as shall constitute two-sevenths of such
number of directors on the Board, (B) to nominate such successor, and (C) if
such holders so determine to be appropriate, to propose the removal from the
Board of such director nominated under the foregoing clause (A) or (B). As used
herein, "Venture Investors" means, each of the following stockholders of the
Company that holds (when aggregated with its affiliated entity or entities
identified below) at least two and one-half percent of the outstanding voting
capital stock of the Company immediately prior to an IPO: Rho Management Trust
I, CIBC Wood Gundy Ventures, Inc., Xxxxxxx Xxxxxxx, Xxxxxxxx & Xxxxx VII., KPCB
Information Sciences Zaibatsu Fund II, Convergence Entrepreneurs Fund I,
Convergence Ventures I, L.P., Transatlantic Venture Partners C.V., TCV II
Strategic Partners, L.P., TCV II, (Q), L.P., TCV II, V.O.F., Technology
Crossover Ventures II, C.V., Technology Crossover Ventures II, L.P., Xxxxx
Capital, National Bank of Kuwait, Boston Millennia Associates I Partnership and
Boston Millennia Partners Limited Partnership.
(c) Each nomination or any proposal to remove from the Board any
director shall be made by delivering to the Corporation a notice signed by the
party or parties entitled to such nomination or proposal. As promptly as
practicable after delivery of such notice, the Corporation shall take or cause
to be taken such corporate actions as may be reasonably required to cause the
election or removal proposed in such notice. Such corporate actions may include
calling a meeting or soliciting a written consent of the Board, or calling a
meeting or soliciting a written consent of the stockholders of the Corporation.
Anything contained herein to the contrary notwithstanding, no director may be
proposed for removal (other than for cause) by any Stockholder other than the
Stockholder entitled to nominate such individual in accordance with the
foregoing provisions of this Section 2.1(b).
(d) Each observer to the Board (an "Observer") who is appointed
pursuant to Sections 2.1(b), shall be entitled to attend all meetings of the
Board in a non-voting observer capacity and to receive from the Corporation
copies of all notices, minutes, consents, and other material that the
Corporation provides to its directors; provided, however, that such Observer
shall abide by the confidentiality provisions of Section 8.1 of the Series C
Stock Purchase Agreement and provided further that the Corporation reserves the
right to exclude any
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such Observer from attendance at any meeting or portion thereof or access to any
material or portion thereof with respect to agreements or transactions directly
involving the Stockholder (or its Affiliates) represented by such Observer.
2.2. Voting Agreement.
Each Stockholder shall vote all Voting Shares held by such Stockholder
for the election to the Board of all individuals nominated in accordance with
Section 2.1 and for the removal from the Board of all directors proposed to be
removed in accordance with Section 2.1. Each Stockholder shall use all
reasonable efforts to cause each director originally nominated by such
Stockholder (other than Independent Individuals) to vote for the election to the
Board of all individuals nominated as replacement directors in accordance with
Section 2.1.
2.3. Committees; Subsidiaries.
(a) Each Stockholder shall use all reasonable efforts to cause
each director of the Corporation originally nominated by such Stockholder to
take such corporate actions as may be reasonably required to ensure that the
Board has at all times an executive committee, a compensation committee and an
audit committee; provided, however, that the Board shall not create any
committee in the nature of an executive committee to which the Board delegates
substantially all of its powers.
(b) The Corporation and each Stockholder shall take, and each
Stockholder shall use all reasonable efforts to cause each director of the
Corporation originally nominated by such Stockholder (other than Independent
Individuals) to take, such corporate actions as may be reasonably required to
ensure that the composition of the board of directors of all direct and indirect
subsidiaries of the Corporation is identical to the composition of the Board.
2.4. Meetings.
(a) The Corporation shall convene meetings of the Board at least
once every quarter. Upon any failure by the Corporation to convene any meeting
required by this paragraph, any Investor or holder of a majority-in-voting power
of the Founder Shares may convene such meeting.
(b) The Corporation shall reimburse each director for his or her
reasonable out-of-pocket expenses incurred in connection with the attendance of
meetings of the Board or the performance of his or her other duties as a
director.
2.5. Termination.
The agreements set forth in this Article II shall terminate upon
the consummation of a Qualified Public Offering except for the agreement set
forth in Section 2.1(b)(xi) and Section 2.2 solely with respect to said Section
2.1(b)(xi) which shall terminate on the sixth month anniversary of the
consummation of an IPO.
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ARTICLE 3
SHARES
3.1. Future Stockholders.
The Corporation shall require each Future Stockholder, as a
condition to the effectiveness of such acquisition, to execute a counterpart to
this Agreement, agreeing to be treated as a Future Stockholder, whereupon such
person or entity shall be bound by, and entitled to the benefits of, the
provisions of this Agreement relating to Stockholders.
3.2. Termination of Employment.
(a) Upon any Termination of Employment of any Founder, the
Corporation shall have the right (but not the obligation) to repurchase from
such Founder (or his or her estate), upon the terms set forth in this Section,
all or a part of all Unvested Shares held by such Founder for a purchase price
equal to the price at which such Unvested Shares were originally issued by the
Corporation.
(b) The repurchase right of the Corporation under this Section
may be exercised by notice specifying the Unvested Shares to be repurchased (a
"Repurchase Notice"). The Repurchase Notice shall be delivered to the terminated
Founder during the period (the "Repurchase Period") ending 90 days after the
Termination of Employment. Upon the delivery of any Repurchase Notice, such
Founder shall be obligated to sell to the Corporation the Unvested Shares
specified in such Repurchase Notice.
(c) The closing of any repurchase of Unvested Shares under this
Section shall take place at the offices of the Corporation on a business day
designated by the Corporation. At such closing, (i) the terminated Founder shall
deliver to the Corporation the certificate or certificates evidencing the
Unvested Shares specified in the Repurchase Notice, duly endorsed for transfer
and free and clear of all liens, claims and other encumbrances, and (ii) the
Corporation shall deliver to such Founder the purchase price therefor in cash.
3.3. Limitations on Transfers.
(a) Founder Transfer Generally. Each Founder shall not (i)
Transfer any Unvested Shares, and (ii) until the earlier to occur of the
Termination Date and September 19, 1998, Transfer any Vested Shares.
Notwithstanding the foregoing, each Founder may Transfer any Founder Shares to
any other member of the Group of such Founder, and each such transferee may
Transfer such Founder Shares to any other member of the Group of such initial
Founder. Anything contained herein to the contrary notwithstanding, Xxxxxxx
Xxxxxxxxx may pledge up to 500,000 shares of Common Stock held by her to the
Corporation pursuant to a Pledge Agreement dated as of June 5, 1998, between
Xxxxxxx Xxxxxxxxx and the Corporation.
(b) Stockholder Transfer Generally. Each Transfer of any Shares
by any Stockholder before the Termination Date shall not become effective unless
and until the transferee executes and delivers to the Corporation a counterpart
to this Agreement, agreeing to
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be treated in the same manner as the transferring Stockholder. Upon such
Transfer and such execution and delivery, the transferee shall be bound by, and
entitled to the benefits of, this Agreement with respect to the transferred
Shares in the same manner as the transferring Stockholder.
(c) Founder Transfer to Series B Investor, Series C Investor,
Series D Investor or Series E Investor.
(i) If any Founder proposes to Transfer any Shares (the
"Subject Founder Shares") to any Series B Investor, Series C Investor, Series D
Investor or Series E Investor (the "Purchaser") prior to a Qualified Public
Offering, such Founder shall, prior to consummating such Transfer, deliver to
each of the Series B Investors, Series C Investors, Series D Investors and
Series E Investors other than the Purchaser (the "Other Preferred Investors") a
written offer (the "Founder First Refusal Offer") to sell to the Other Preferred
Investors the Subject Founder Shares other than the Purchaser's Pro Rata Amount
thereof (the "Net Subject Founder Shares") in accordance with this Section
3.3(c). The Founder First Refusal Offer shall state that such Founder proposes
to effect a Transfer of the Subject Founder Shares to the Series B Investor,
Series C Investor, Series D Investor or Series E Investor, as the case may be,
identified therein, the number of Net Subject Founder Shares proposed to be so
Transferred to the Other Preferred Investors and the terms and conditions of
such proposed Transfer.
(ii) Each Other Preferred Investor shall have the right,
exercisable by delivery to such Founder within 30 days after delivery of the
Founder First Refusal Offer (the "Acceptance Period") of a written notice (a
"Notice of Acceptance") to purchase from such Founder, at the price and on the
terms and conditions set forth in the Founder First Refusal Offer, up to such
Other Preferred Investor's Pro Rata Amount (excluding from the determination
thereof the Purchaser) of the Net Subject Founder Shares proposed to be
Transferred. Sales of Net Subject Founder Shares to Other Preferred Investors
shall be consummated on a mutually acceptable business day within 45 days after
delivery of the Founder First Refusal Offer at the price and on the terms and
conditions set forth therein.
(iii) If the Other Preferred Investors did not accept all Net
Subject Founder Shares offered in the Founder First Refusal Offer, such Founder
may Transfer to the Purchaser all or any portion of the Net Subject Founder
Shares not so accepted for purchase, at the price and on the terms and
conditions set forth in the Founder First Refusal Offer, at any time within 90
days after expiration of the Acceptance Period. If such Transfer is not made
within such 90-day period, the restrictions provided for in this Section 3.3(c)
shall again become effective.
(iv) Such Founder may consummate a Transfer to the Purchaser
of such Purchaser's Pro Rata Amount of the Subject Founder Shares originally
proposed to be Transferred to such Purchaser, either prior to, simultaneously
with or following the Transfer of Net Subject Founder Shares (if any are to be
so Transferred) to Other Preferred Investors as provided herein, so long as such
Founder complies with clauses (i) and (ii) of this Section 3.3(c).
11
(d) Any Transfer of Shares by any Stockholder not permitted by
paragraph (a) above or not in accordance with paragraphs (b) or (c) above shall
be void.
3.4. Right of First Refusal.
(a) If at any time before (i) September 19, 1997 in the case of
AOL with respect to Series A Preferred Stock owned by it or shares of Common
Stock issued upon conversion thereof or (ii) May 6, 1998, in the case of all
Series B Investors with respect to Series B Preferred Stock owned by it or
shares of Common Stock issued upon conversion thereof or (iii) May 28, 1999, in
the case of all Founders with respect to Common Stock owned by him or her and
all Investors with respect to the Series C Preferred Stock owned by it or shares
of Common Stock issued upon conversion thereof or (iv) February 24, 2000 in the
case of all Series D Investors with respect to Series D Preferred Stock owned by
it or shares of Common Stock issued upon conversion thereof other than as
contemplated in the immediately preceding clauses (i) through (iii), or (v) the
second anniversary of the date hereof in the case of all Series E Investors with
respect to the Series E Preferred Stock owned by it or shares of Common Stock
issued upon conversion thereof other than as contemplated in the immediately
preceding clauses (i) through (iv), any Investor or Founder shall receive a bona
fide written offer (an "Offer") from a Third Party to purchase all or a portion
of the Investor Shares or Founder Shares, as the case may be, held by such
Investor or Founder, as the case may be, and such Investor or Founder, as the
case may be, desires to accept the offer, such Investor or Founder, as the case
may be, shall, before accepting the Offer, deliver to the Corporation an offer
(the "First Refusal Offer") to sell such Investor Shares or Founder Shares, as
the case may be, in accordance with this Section.
(b) The First Refusal Offer shall state that such Investor or
Founder, as the case may be, proposes to effect a sale of Investor Shares or
Founder Shares, as the case may be, to a Third Party, the number of Investor
Shares or Founder Shares, as the case may be, proposed to be sold, the terms and
conditions of the Offer, and the name and address of the Third Party. The
Corporation shall have the right to purchase all, but not a part, of such
Investor Shares or Founder Shares, as the case may be. Such right may be
exercised by the Corporation by delivery of a written notice to the Investor or
Founder, as the case may be, within 30 days after delivery of the First Refusal
Offer (the "Acceptance Period"). Upon delivery of such notice, the purchase of
such Investor Shares or Founder Shares, as the case may be, shall be consummated
on a business day designated by such Investor at the offices of the Corporation
within 60 days after the delivery of such notice on the terms of the First
Refusal Offer.
(c) If the Corporation did not accept all Investor Shares or
Founder Shares, as the case may be, offered in the First Refusal Offer, or if
the Corporation failed to purchase such shares within the 60 day period referred
to in Section 3.4(b) above, such Investor or Founder, as the case may be, may
sell such Investor Shares or Founder Shares, as the case may be, on the terms
and conditions of the Offer to the Third Party within 90 days after expiration
of the Acceptance Period or the 60-day period referred to in Section 3.4(b), as
the case may be. If such sale is not made within such 90-day period, the
restrictions provided for in this Section shall again become effective.
12
3.5. Co-Sale.
(a) If (i) any Major Stockholder proposes to Transfer any Shares
or (ii) any Investor or group of Investors (the "Selling Investor(s)") proposes,
in one transaction or a series of related transactions, to Transfer, in the
aggregate, at least 25% of the then outstanding voting capital stock of the
Corporation (other than to a member of such Investor's Group), in each case to
any Third Party before the consummation of any Qualified Public Offering, such
Major Stockholder or Selling Investor(s), as the case may be, shall, at least 30
days before such Transfer, deliver a notice (the "Sale Notice") to all the
Investors other than the Selling Investor, if applicable, (the "Other
Investors") specifying the identity of the Third Party and disclosing in
reasonable detail the terms and conditions of the proposed Transfer. Within 30
days after delivery of the Sale Notice, each Other Investor may elect to
participate in the proposed Transfer by delivering to such Major Stockholder or
Selling Investor(s), as the case may be, a notice (the "Purchase Notice")
specifying the Investor Shares with respect to which the Other Investor
exercises its right under this Section. Each Other Investor shall be entitled to
Transfer, at the price and on the terms and conditions applicable to the
Transfer by such Major Stockholder or Selling Investor(s), as the case may be,
up to a number of shares of Common Stock equal to its Pro Rata Amount of the
aggregate number of shares of Common Stock subject to the Transfer, plus, in the
case of any Other Investor who or which indicated in its Purchase Notice its
intention to sell, if available, any Shares in excess of its Pro Rata Amount
thereof, such Other Investor's Pro Rata Amount of the balance of the Shares not
sold by the Other Investors(s) and/or Founder(s) (if in the latter case Section
3.5(b) is applicable) (excluding for purposes of determining such Pro Rata
Amount the Other Investor(s) electing not to sell or selling less than its Pro
Rata Amount and/or Founder (if in the latter case Section 3.5(b) is applicable).
(b) Without limiting the rights of the Investors under Section
3.5(a) hereof, if any Founder (a "Selling Founder") proposes to Transfer any
Shares to any Third Party before any Qualified Public Offering, such Founder
shall, at least 30 days before such Transfer, deliver a Sale Notice to the other
Founders (the "Other Founders") specifying the identity of the Third Party and
disclosing in reasonable detail the terms and conditions of the proposed
Transfer. Within 30 days after delivery of the Sale Notice, each Other Founder
may elect to participate in the proposed Transfer by delivering to such Selling
Founder a notice specifying the Founder Shares with respect to which such Other
Founders exercises his or her right under this Section. The Other Founder shall
be entitled to Transfer, at the price and on the terms applicable to the
Transfer by such Selling Founder, up to a number of shares of Common Stock equal
to his or her Pro Rata Amount of the aggregate number of shares of Common Stock
subject to the Transfer, plus, in the case of any Founder who indicated in his
or her Purchase Notice his or her intention to sell, if available, any Shares in
excess of his or her Pro Rata Amount thereof, such Founder's Pro Rata Amount of
the balance of the Shares not sold by the Other Founder(s) and Investors
(pursuant to Section 3.5(a) hereof) (excluding for purposes of determining such
Pro Rata Amount the non-selling Investor(s) and/or non-selling Founders).
(c) In the event that the provisions of Section 3.4 and 3.5 shall
both be applicable to the same transaction, the provisions of Section 3.5 shall
supersede the provisions of Section 3.4 and shall govern in such specific
instance.
13
3.6. Change-of-Control Transaction.
Anything contained in this Agreement to the contrary
notwithstanding, in the event any Investor proposes to engage in a
Change-of-Control transaction (a "Change-of-Control Transaction") such Investor
shall, as a condition thereto, be obligated to offer, in the case of a
Change-of-Control Transaction involving a merger or consolidation or purchase of
capital stock or similar transaction, to acquire 100% of the outstanding equity
interests of the Corporation and, accordingly, to offer to each holder of an
equity interest in the Corporation the right and option to sell to such Investor
the entire equity interest of such holder in the Corporation on the same terms
and conditions, and for a purchase price per share that shall in no event be
less than the highest price paid within the preceding eighteen months (a) by
such Investor either to the Corporation or to any Third Party, or (b) by any
Third Party to the Corporation in a bona fide, arms-length sale, for equity
securities of the Corporation, and such Investor shall not be permitted to
consummate any such Change-of-Control Transaction without complying with this
Section 3.6. In the event this Section 3.6 shall be applicable, the provisions
of Section 3.3, 3.4 and 3.5 hereof shall not be applicable in such instance.
3.7. Transfer Among Series B Investors.
Anything contained in this Agreement to the contrary
notwithstanding, no Series B Investor shall Transfer any shares of Series B
Preferred Stock or any shares of Common Stock issued or issuable upon conversion
thereof, or any rights, options, warrants or other securities convertible into
or exercisable or exchangeable for, directly or indirectly, Series B Preferred
Stock, without the prior written approval of all Series B Investors.
3.8. Termination.
The agreements set forth in this Article III shall terminate upon
the consummation of a Qualified Public Offering.
ARTICLE 4
MISCELLANEOUS
4.1. Legend on Stock Certificates.
(a) Each certificate representing shares of capital stock that
are subject to this Agreement shall bear a legend substantially in the following
form:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE HOLDER
OF SUCH SECURITIES IN RESPECT OF THE ELECTION OF DIRECTORS ARE SUBJECT
TO A FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF
________________, 1998, AMONG iVILLAGE INC. AND CERTAIN HOLDERS OF ITS
OUTSTANDING CAPITAL STOCK. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST
14
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY
OF iVILLAGE INC."
provided, however, that all certificates previously issued for capital stock
subject to this Agreement and held by any of the parties hereto may continue to
bear the legend set forth thereon that is substantially similar to the foregoing
legend.
(b) Each certificate issued pursuant to the Voting Trust
Agreement shall bear a legend substantially in the following form:
"THE RIGHTS OF THE HOLDER OF THIS CERTIFICATE ARE SUBJECT TO AND
LIMITED BY THE TERMS OF THE STOCKHOLDERS' AGREEMENT AMONG iVILLAGE INC.
AND ITS STOCKHOLDERS."
(c) Upon the consummation of a Qualified Public Offering, the
holders of any shares of capital stock bearing the legends described in
subsection (a) or (b) above shall be entitled to receive from the Corporation,
without expense, a new certificate not bearing the restrictive legends described
in subsection (a) or (b) and not containing any other reference to the
restrictions imposed by this Agreement.
4.2. Voting Trust.
Each Founder shall cause the Voting Trustee to, and the Voting
Trustee shall, vote all Voting Shares of such Founder in accordance, and
otherwise comply in all respects, with Article II and comply in all respects
with Article III with respect to the Founder Shares of such Founder.
4.3. Series B-1 Preferred Stock Voting Agreement.
On any matter on which the holders of Series B-1 Preferred Stock
shall be entitled to vote as a separate class or series under applicable law,
each Stockholder holding shares of Series B-1 Preferred Stock hereby agrees, for
itself and on behalf of its successors, assigns and transferees, that it shall
vote all shares of Series B-1 Preferred Stock owned or record or beneficially by
it (or consent in writing in lieu of such vote) in the same manner as a majority
of the shares of Series B Preferred Stock are voted (or consented to in writing
in lieu of such vote) by the holders thereof on any similar matter affecting the
Series B Preferred Stock. This provision shall be binding upon all current and
future holders of Series B-1 Preferred Stock and no transfer of shares of Series
B-1 Preferred Stock shall be effective unless the transferee thereof shall
expressly agree in writing to be bound by and comply with the provision. Each
certificate representing shares of Series B-1 Preferred Stock shall bear a
legend reflecting the existence of this provision.
4.4. Severability; Governing Law.
If any provision of this Agreement shall be determined to be
illegal and unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware.
15
4.5. Assignments; Successors and Assigns.
Except in connection with any Transfer of Shares in accordance
with this Agreement, the rights of each party under this Agreement may not be
assigned. This Agreement shall bind and inure to the benefit of the parties and
their respective successors, permitted assigns, legal representatives and heirs.
4.6. Amendments.
This Agreement may only be modified or amended, or the
performance thereof waived, by an instrument in writing signed by the
Corporation, Stockholders (other than the Founders) holding at least sixty (60%)
percent of all Shares then held by all Stockholders (other than the Founders)
and the holders of at least 66-2/3% of the Founder Shares; provided, however,
that any amendment or modification that would (i) adversely affect the right of
NBC to appoint a director to the Board pursuant to Section 2.1(b)(iv), (ii)
increase the obligations of NBC with respect to NBC's right to appoint a
director to the Board pursuant to Section 2.1(b)(iv) or (iii) modify the
references to NBC in Sections 1.1(m) and 1.1(r) shall require the written
approval of NBC; provided further, however, that no modification or amendment
shall discriminate against any Stockholder without the consent of such
Stockholder. This Section may only be amended with the consent of all parties to
this Agreement.
4.7. Exempt Investors.
Intel Corporation ("Intel") shall be exempt from the obligations
set forth in Sections 3.4 and 3.5 and shall not be a beneficiary of the rights
set forth in Section 3.4 or 3.5; provided, however, that Intel may participate
in a proposed Transfer of Shares by any Major Stockholder pursuant to the terms
of Section 3.5. All references to "Investor(s)" in Sections 3.4 and 3.5 shall
exclude Intel.
4.8. Notices.
All notices, claims, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or if sent by nationally-recognized overnight courier, by
telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
if to the Corporation:
iVillage Inc.
000 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx;
with a copy to:
16
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
if to an Investor, to the address specified on such Investor's
signature page hereto; and:
if to any Founder, to his or her address set forth on the books
of the Corporation;
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
4.9. Headings.
The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
4.10. Nouns and Pronouns.
Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice versa.
4.11. Entire Agreement.
This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings with respect to such subject matter, including, without
limitation, the Old Stockholders' Agreement, which is hereby terminated in its
entirety and of no further force or effect.
4.12. Counterparts.
This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
4.13. Limitation on Liability to General Electric Pension Trust.
Any monetary obligation of the Trustees of General Electric
Pension Trust shall be enforceable solely against the assets of such Pension
Trust and not against any Trustee
17
individually, General Electric Pension Trust (other than as necessary to enforce
such rights against such assets) or GE Investment Management Incorporated.
18
COUNTER PART SIGNATURE PAGE TO THE FOURTH
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
DATED AS OF DECEMBER 4, 1998
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders' Agreement on the date first above written.
iVILLAGE, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
FOUNDERS:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
VOTING TRUSTEE:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxx, as VotingTrustee
INVESTOR:
/s/ Admirals, L.P.
-----------------------------------------
Admirals, L.P.
/s/ America Online, Inc.
-----------------------------------------
America Online, Inc.
/s/ Applewood Associates
-----------------------------------------
Applewood Associates
/s/ Xxxxxxx Xxxxx Xxxx 1993 Trust
-----------------------------------------
Xxxxxxx Xxxxx Xxxx 1993 Trust
/s/ Xxxxxxxx Xxxx
-----------------------------------------
Xxxxxxxx Xxxx
/s/ Boston Millenia Associates I Partnership
-----------------------------------------
Boston Millenia Associates I Partnership
/s/ Boston Millenia Partner Limited Partnership
-----------------------------------------
Boston Millenia Partner Limited
Partnership
/s/ CIBC Wood Gundy Ventures, Inc.
-----------------------------------------
CIBC Wood Gundy Ventures, Inc.
/s/ Convergence Entrepreneurs Fund I
-----------------------------------------
Convergence Entrepreneurs Fund I
/s/ Convergence Ventures I, L.P.
-----------------------------------------
Convergence Ventures I, L.P.
/s/ Xxx Interactive Media, Inc.
-----------------------------------------
Xxx Interactive Media, Inc.
/s/ Gannett International Communications, Inc.
-----------------------------------------
Gannett International Communications,
Inc.
/s/ Xxxxxxx Family Trust
-----------------------------------------
Xxxxxxx Family Trust
/s/ Xxxxx Xxxx
-----------------------------------------
Xxxxx Xxxx
/s/ Xxxxx Global Investments, Ltd.
-----------------------------------------
Xxxxx Global Investments, Ltd.
/s/ Xxxx Xxxxx
-----------------------------------------
Xxxx Xxxxx
/s/ Nexus Capital Partners I, L.P.
-----------------------------------------
Nexus Capital Partners I, L.P.
/s/ NIG - Village Ltd.
-----------------------------------------
NIG - Village Ltd.
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
X'Xxxxxxxx Graev & Karabell. L.L.P.
("OGK") Profit Sharing Plan F/B/O
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Remington Investment Strategies, L.P.
-----------------------------------------
Remington Investment Strategies, L.P.
/s/ Rho Management Trust I
-----------------------------------------
Rho Management Trust I
/s/ Xxxxxxx Xxxx
-----------------------------------------
Xxxxxxx Xxxx
/s/ Xxxxxxxx Communications and Information Fund
-----------------------------------------
Xxxxxxxx Communications and Information
Fund
/s/ Sonem Partners
-----------------------------------------
Sonem Partners
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx
/s/ TCI Ventures Group, LLC
-----------------------------------------
TCI Ventures Group, LLC
/s/ TCVII Strategic Partners, L.P.
-----------------------------------------
TCVII Strategic Partners, L.P.
/s/ TCVII, (Q), L.P.
-----------------------------------------
TCVII, (Q), L.P.
/s/ TCVII, V.O.F.
-----------------------------------------
TCVII, V.O.F.
/s/ Technology Crossover Ventures II, C.V.
-----------------------------------------
Technology Crossover Ventures II, C.V.
/s/ Technology Crossover Ventures II, L.P.
-----------------------------------------
Technology Crossover Ventures II, L.P.
/s/ Xxxxx Healthcare Corporation
-----------------------------------------
Xxxxx Healthcare Corporation
/s/ Transatlantic Venture Partners C.V.
-----------------------------------------
Transatlantic Venture Partners C.V.
/s/ Tribune Company
-----------------------------------------
Tribune Company
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
/s/ Vantage Point Venture Partners 1996, LP
-----------------------------------------
Vantage Point Venture Partners 1996, LP
/s/ Vantage Point Communications Partners, LP
-----------------------------------------
Vantage Point Communications Partners, LP
/s/ Xxx Xxxxxxx Capital Management
-----------------------------------------
Xxx Xxxxxxx Capital Management
