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EXECUTION VERSION
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of April 27, 2001, by and among iVillage Inc., a Delaware
corporation (the "Parent"), Stanhope Acquisition Sub, LLC, a Delaware limited
liability company (the "Merger Sub") and wholly owned subsidiary of the Parent,
and Xxxxx.xxx Networks, Inc., a Delaware corporation (the "Company"), amends the
Agreement and Plan of Merger, dated as of February 5, 2001, as amended by
Amendment No. 1 to Agreement and Plan of Merger, dated as of February 22, 2001,
by and among Parent, Merger Sub and the Company (the "Amended Agreement").
BACKGROUND
A. The parties to the Amended Agreement wish to amend certain provisions of the
Amended Agreement.
B. Parent and the Company wish to provide for the issuance of Parent stock
options upon completion of the Merger.
C. Parent and the Company wish to require the approval by the Required Vote of
the stockholder proposal increasing the number of authorized shares of Parent
Common Stock as a condition to the completion of the Merger.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. The reference in the definition of "Required Vote" to Section 5.16 is hereby
deleted and replaced with a reference to Section 5.15.
2. Section 2.4(e) of the Amended Agreement is hereby amended in its entirety to
read as follows:
"(e) STOCK OPTIONS. At the Effective Time, the Parent shall
issue to each holder of Company Stock Options held immediately prior to
the Effective Time (a "Prior Option") employed by the Parent at the
Effective Time (a "Prior Optionee") an option to purchase shares of
Parent Common Stock (a "Parent Option") for that number of whole shares
of Parent Common Stock determined in accordance with the following
schedule:
(i) For Company Stock Options with an exercise price
per share of $0.25 or less, the whole number of shares
issuable upon exercise of the Parent Option shall be 1/2 the
number of shares issuable upon exercise of the Prior Option;
(ii) For Company Stock Options with an exercise price
per share of more than $0.25 but not more than $0.45, the
whole number of shares issuable upon exercise of the Parent
Option shall be 1/4 the number of shares issuable upon
exercise of the Prior Option;
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EXECUTION VERSION
(iii) For Company Stock Options with an exercise
price per share of more than $0.45 but not more than $1.25,
the whole number of shares issuable upon exercise of the
Parent Option shall be 1/5 the number of shares issuable upon
exercise of the Prior Option;
(iv) For Company Stock Options with an exercise price
per share of more than $1.25 but not more than $2.00, the
whole number of shares issuable upon exercise of the Parent
Option shall be 1/6 the number of shares issuable upon
exercise of the Prior Option; and
(v) For Company Stock Options with an exercise price
per share of more than $2.00, the whole number of shares
issuable upon exercise of the Parent Option shall be 1/7 the
number of shares issuable upon exercise of the Prior Option.
The number of shares of Parent Common Stock issuable upon
exercise of Parent Options shall be rounded down to the nearest whole
number. The per share exercise price for Parent Common Stock issuable
upon exercise of Parent Options will be equal to the closing price per
share on the Nasdaq National Market of Parent Common Stock on the date
of the Effective Time and such options shall be fully vested and
immediately exercisable. Each Parent Option issuable hereunder shall be
exercisable until the earlier to occur of (i) the remaining term of the
associated Prior Option and (ii) the expiration of the one year period
following the termination of the Prior Optionee's employment by Parent
for any reason."
3. Article VI shall be amended to add the following Section 6.19:
"6.19 NOTIFICATION TO COMPANY OPTION HOLDERS. No less than 15 days
prior to the Effective Time, the Company shall provide written notice to each
holder of Company Stock Options, any portion of which may be exercised prior to
the Effective Time or which may become exercisable as a result of the Merger or
the transactions contemplated by the Merger prior to or at the Effective Time,
describing the effect, if any, that the Merger and the transactions contemplated
by the Merger will have upon the vesting and exercisability of such Company
Stock Options including but not limited to the acceleration of vesting of such
Company Stock Options upon a change of control of the Company and the
termination of such Company Stock Options upon a change of control of the
Company if not exercised within the period specified applicable to such Company
Stock Option. Such written notification shall also include an acknowledgement by
such Company Stock Option holder of the receipt of such notice, and a request to
return the notice to the Company. The Company shall provide to Parent copies of
all such notices and all executed acknowledgements upon Parent's reasonable
request prior to the Effective Time."
4. Article VII, Section 7.1 shall be amended to add the following
paragraph (h):
"(h) The stockholder proposal authorizing an amendment to Parent's
certificate of incorporation which increases the number of authorized shares of
Parent Common Stock from
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EXECUTION VERSION
65,000,000 to 200,000,000 shall have been approved by the Parent Stockholders by
the Required Vote."
5. The Amended Agreement, as amended hereby, remains in full force and effect.
6. Capitalized terms used but not defined herein shall have the meanings
designated in the Amended Agreement.
7. This Amendment 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.
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EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
.
XXXXX.XXX NETWORKS, INC.
By: /s/ XXXXXXX XxXXXXXX
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Name: XXXXXXX XxXXXXXX
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Title: PRESIDENT & CEO
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IVILLAGE INC.
By: /s/ XXXXX XXXXX
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Name: XXXXX XXXXX
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Title: EXECUTIVE VICE PRESIDENT - OPERATIONS
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& BUSINESS AFFAIRS
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STANHOPE ACQUISITION SUB, LLC
By: /s/ XXXXX XXXXX
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Name: XXXXX XXXXX
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Title: VICE PRESIDENT
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