EXHIBIT 10.34
Execution Version
October 5, 2000
Xx. Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxxxxx:
This letter, when mutually executed, will constitute the agreement
between iVillage Inc. (the "Company") and you regarding the terms and conditions
of your new role with the Company (the "Agreement").
1. Title and Role.
a. Chairperson of the Board. Effective as of August 1, 2000
(the "Effective Date"), you have resigned as Chief Executive
Officer of the Company and have, at the request of the
Company's Board of Directors, assumed the role of
Chairperson of the Board of Directors of the Company, with
responsibility for chairing meetings of the Company's Board
of Directors, chairing the Strategy Committee of the Board
(currently comprised of Xxxxx Xxxxxxx, Xxxxxxx X. Leader,
Xxxxxx Xxxxxxxx and yourself) and all other responsibilities
and obligations generally associated with such title. You
shall not have any other management, operational or
day-to-day responsibilities with the Company, nor have any
direct management reports.
b. Special Projects. Notwithstanding the foregoing, you have
agreed to remain available to the Company as an employee for
special projects, as and to the extent mutually agreed upon
and as your time permits, and will receive the compensation
and benefits described herein until December 31, 2002 (the
"Special Projects Period"), unless otherwise specified in
this Agreement. Such special projects may include, without
limitation, (i) at the request of the Company's Board and
Chief Executive Officer, representing the Company on the
boards of directors of various domestic (e.g. Unilever joint
venture) and international (e.g. Tesco joint venture) joint
ventures, whether now existing or hereafter created, (ii) at
the request of the Company's Board and Chief Executive
Officer, participating in the development
of various strategic initiatives being considered by the
Company from time-to-time; (iii) representing the Company at
all conferences, events and speaking engagements for the
remainder of calendar year 2000 to which you have already
committed and which are designated on Attachment A attached
hereto, including the proposed television pilot with the
Public Broadcasting System ("PBS") provided that the
Company's responsibility for any expenditures for such PBS
television pilot shall be limited to $50,000 in the
aggregate (including any expenses already incurred); and
(iv) beginning January 1, 2001, representing the Company at
all conferences, events and speaking engagements mutually
agreed by the Company and you; with the underlying general
understanding being that you shall generally participate in
such engagements dealing with women's issues, industry and
social trends, and branding issues. You will not participate
in financial, operational or similar conferences or events,
however, you may participate either with the Chief Executive
Officer or separately at Internet industry conferences with
the Company's consent.
2. Compensation and Benefits. In consideration of your acceptance of
this Agreement, you shall receive the following:
a. Salary. Payment at the rate of your current base salary
($400,000 annually), less all deductions required by law,
through December 31, 2002 and payable in the manner and at
the times of normal payroll, and after such date subject to
extension and renegotiation upon mutual agreement of the
parties;
b. Insurance. The Company will continue to pay the premiums for
medical insurance and provide you all the employee benefits
which are currently available to you through the earlier of
(i) the end of the Special Projects Period or (ii) the date
on which you commence full-time employment with another
employer (subject to Section 5 hereof);
c. Car Service. You shall continue to be entitled to utilize
the car and driver service provided to you at the Company's
expense through December 31, 2000;
d. 2000 Bonus. Subject to approval by the Compensation
Committee of the Board of Directors and the terms of the
Company's senior management bonus plan, and if bonuses are
paid to any member of the Company's senior management,
payment of your fiscal year 2000 bonus pro-rated to reflect
seven (7) months' service as the Company's Chief Executive
Officer;
e. Expenses. You will be reimbursed for reasonable, documented
travel/business expenses, including conference fees,
incurred by you in performing the duties described in
paragraph 1(b) of this Agreement,
in accordance with the Company's travel and entertainment
expense policy, as may be amended from time to time.
f. Stock Options. Any outstanding stock options to purchase the
Company's common stock will continue to vest according to
their current respective vesting schedules through the end
of the Special Projects Period; provided, however, that the
vesting schedule of any portion of any outstanding stock
options which, according to their terms, would not vest
prior to December 31, 2002 shall be amended to provide that
such portion shall vest pro rata on a quarterly basis
commencing on the date of this Agreement through December
31, 2002. Notwithstanding any conflicting terms in the
Company's stock option plans under which such stock options
were granted and subject to applicable law, the exercise
period with respect to the options as described in this
Agreement shall expire ninety (90) days after termination of
the Special Projects Period. You shall be solely
responsible, and the Company shall bear no liability, for
your failure to timely exercise the options described in
this Agreement;
g. Promissory Note. Your promissory note to the Company dated
June 5, 1998 in the principal amount of $500,000 shall be
amended such that the maturity date of such note shall be
extended to December 31, 2002 with all other terms and
conditions thereof remaining the same;
h. Support. You shall be entitled to utilize one (1) Company
employee (initially contemplated to be Xxxxx Xxxxx) on a
half-time basis to assist you with coordination of your
speaking and other Company-related engagements pursuant to
Section 1(b); and (2) the Company shall pay $12,500 per
month through December 31, 2002 for other reasonable
expenses related to support for the duties you perform to
paragraph 1(b) of this Agreement, payable quarterly in
advance.
i. Fees. You shall be entitled to keep any and all speaking
fees and/or honoraria in connection with any conferences,
events or speaking engagements attended pursuant to Section
1(b) above and any publication fees, advances or royalties.
Notwithstanding the foregoing, you may not exploit, sell, or
otherwise use for any purpose, any Company-owned and/or
copyrighted content, materials and/or intellectual property
for your personal benefit.
3. Release. For and in consideration of the respective payments and
obligations under this Agreement, as well as for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
as a material inducement to the parties to enter into this Agreement, you
knowingly and voluntarily release, acquit and forever discharge the Company
(including the Company's present, future and former stockholders, predecessors,
successors, assigns, agents, directors,
officers, employees, representatives, parents, subsidiaries, and affiliates),
and all persons acting by, through, under or in concert with any of them
(collectively, the "Releasees"), from any and all claims of any nature
whatsoever, known or unknown, which exist, have existed or may arise from any
matter arising out of or in any way related to your relationship, including your
employment with, or departure from, the Company (collectively, "Claims"), or the
execution of this Agreement (but excluding any claims that may hereafter arise
concerning the performance of this Agreement), that you, including your heirs,
executors, administrators, successors and assigns ever had, now have or at any
time hereafter may have, own or hold against any of the Releasees. This Release
shall include and apply to any rights and/or claims (i) arising under any
contract, express or implied, written or oral; (ii) for wrongful dismissal or
termination of employment; (iii) arising under any applicable federal, state,
local or other statutes, orders, laws, ordinances, regulations or the like, or
case law, that relate to employment or employment practices and/or,
specifically, that prohibit discrimination based upon age, race, religion, sex,
national origin, disability or any other unlawful bases, including without
limitation, the Civil Rights Act of 1964, as amended, the Civil Rights Act of
1991, as amended, the Civil Rights Acts of 1866 and 1871, as amended, the
Americans with Disabilities Act of 1990, as amended, the Family Leave Act of
1993, as amended, the Employee Retirement Income Security Act of 1990, as
amended, the Fair Labor Standards Act, as amended, the Vietnam Era Veterans'
Readjustment Assistance Act, as amended, the Equal Pay Act, as amended, and any
similar applicable statutes, orders, laws, ordinances, regulations or the like,
or case law, of the State of New York or any political subdivision thereof, and
all applicable rules and regulations promulgated pursuant to or concerning any
of the foregoing statutes, orders, laws, ordinances, regulations or the like;
(iv) based upon any other federal, state or local statutes, orders, laws,
ordinances, regulations or the like, or case law; (v) for tortious or harassing
conduct, infliction of mental distress, interference with contract, fraud, libel
or slander; and (vi) for damages, including without limitation, punitive or
compensatory damages, or for attorneys' fees, expenses, costs, wages, injunctive
or equitable relief. This Release and/or any payments made hereunder are not
intended to be and shall not be construed as an admission or concession by the
Company.
4. Public Statements. The parties mutually agreed on the joint press
release announcing your new role with the Company (the "Announcement"), which
Announcement was issued concurrently with the Company's second quarter 2000
financial results press release and was announced on the analyst conference call
discussing such results. Except as expressly provided herein or required by
applicable law, regulation, court order or NASDAQ stock market rule, after the
Effective Date the parties agree that they will not make, or cause to be made,
any statements, observations or opinions, or communicate any information
(whether oral or written) ("Statements") inconsistent with the Announcement that
references or refers to (a) the terms of your new role with the Company; (b) the
existence of this Agreement; or (c) any Statements, including Statements to the
press or media, that disparage or are likely in any way to harm the reputation
of each other, which in the case of the Company shall include any of its
respective former, present or future directors, officers, stockholders or
employees and which shall include Statements likely to damage each other's
business opportunities and
reputations. Further, in the event you are contacted by a member of the media
regarding the Company, you agree that you will coordinate with the Company's
public relations department, in addition to any other restrictions or conditions
included within this Agreement, prior to responding.
5. Events of Termination. This Agreement shall terminate prior to
termination of the Special Projects Period upon any one of the following:
a. The Board of Directors of the Company provides you with
written notice of its intent to terminate your
responsibilities without "Cause," in which case termination
shall be effective on the date specified in such written
notice. In the event of termination under this subsection
(a), the Company shall continue to pay and make available to
you the compensation and benefits payable to you under
Section 2 through the respective dates specified in such
Section 2, and you shall continue to be an employee of the
Company. Your rights under the Company's benefit plans of
general application shall be determined under the provisions
of those plans. You shall continue to comply with Sections
3, 4, 6, 7, 8, 10, 11, 12 and 13 of this Agreement after
termination pursuant to this subsection (a).
b. The Board of Directors of the Company determines, in good
faith, that your employment should be terminated for "Cause"
as defined in subsection (d) below, in which case
termination shall be effective on the date that written
notice of termination is hand-delivered to you by the
Company (or, if the Company is unable to hand-deliver such
notice to you, the date that such notice is mailed or faxed
to you pursuant to Section 11). In the event of termination
under this subsection (b), the Company shall pay you the
compensation and benefits otherwise payable to you under
Section 2 through the effective date of termination, and the
Company will have no obligation to pay you any salary, bonus
or other compensation (including vesting of stock options)
for the remainder of the Special Projects Period. Your
rights under the Company's benefit plans of general
application shall be determined under the provisions of
those plans. You shall continue to comply with Sections 3,
4, 6, 7, 8, 10, 11, 12 and 13 of this Agreement after
termination pursuant to this subsection (b).
c. The effective date of any voluntary resignation by you
without "Good Reason," defined as a breach of any material
provision of Section 2 of this Agreement, which breach is
not cured within thirty (30) days following delivery to the
Company of written notice reasonably describing the alleged
breach. In the event of termination under this subsection
(c), the Company shall pay you the compensation and benefits
otherwise payable to you under Section 2 through the
effective date of termination, and the Company will have no
obligation to pay you any salary, bonus, or other
compensation (including vesting
of stock options) for the remainder of the Special Projects
Period. Your rights under the Company's benefit plans of
general application shall be determined under the provisions
of those plans. You shall continue to comply with Sections
3, 4, 6, 7, 8, 10, 11, 12 and 13 of this Agreement after
termination pursuant to this subsection (c).
d. For purposes of Sections 5(a) and (b) above, "Cause" shall
exist at any time after the happening of one or more of the
following events:
(i) You have breached any material provision of this
Agreement, including without limitation the provisions
of Sections, 4, 6, 7, 8, 10 and 12 of this Agreement
which breach is not cured within thirty (30) days
following the delivery to you of written notice
reasonably describing the alleged breach;
(ii) You have engaged in habitual neglect of your duties
under this Agreement which remains uncured following
delivery to you of written notice reasonably describing
the offending conduct and a reasonable opportunity to
cure;
(iii) You have committed an act of dishonesty, or gross
misconduct, including, without limitation, your theft,
misuse or unauthorized disclosure of proprietary
information; or
(iv) You are convicted of a felony or a crime involving
moral turpitude.
e. You provide the Company with written notice of termination
of this Agreement for "Good Reason," as defined in
subsection (c) above. Termination of this Agreement for Good
Reason shall be treated as termination without Cause, and
you shall remain an employee of the Company and be entitled
to the compensation and benefits specified in Section 5(a).
f. In the event that this Agreement is terminated for any
reason before December 31, 2002, you will have no duty to
mitigate the Company's obligations hereunder or your
damages, if any.
g. You agree and acknowledge that upon your execution of this
Agreement, you shall only be entitled to the payments and
benefits, if any, specified in Section 2 and such payments
and benefits shall be in lieu of all other payments and
benefits which might otherwise be payable to you by the
Company.
6. Non-Competition. During the Special Projects Period and for a period
of six (6) months thereafter, you may not (i) directly or indirectly engage in
any
Competitive Business (as defined below), whether such engagement shall be as an
employer, officer, director, owner, employee, partner, stockholder or other
participant, (ii) assist others in engaging in any Competitive Business in the
manner described in the foregoing clause (i), or (iii) induce employees of the
Company or its subsidiaries or affiliates to terminate their employment with the
Company or such subsidiary or affiliate or engage in any Competitive Business.
For purposes of this Agreement, "Competitive Business" means employment or
engagement of any kind by or for Xxxxx.xxx networks, Oxygen Media and/or the
creation, development, support, or assistance for any employer, entity or for
yourself, of a women's general interest internet portal, unless a written waiver
is obtained from the Company's Board of Directors. Subject to this paragraph,
your acceptance of full-time or part-time employment during the term of this
Agreement will not be considered a breach of this Agreement or a "voluntary
resignation" under Section 5(c) above.
7. Confidentiality. In addition to your obligations stated above and
the confidentiality provisions of any other agreements between the Company and
you, you will not, unless required by law and after reasonable notice to the
Company, disclose to any other party any information regarding the following:
a. Any non-public information (information shall not be
considered "public" if it was previously disclosed by you in
violation of this or any other agreement) regarding the
Company's strategies, financial information, technology,
personnel, intellectual property, practices, procedures,
trade secrets, customer lists, product marketing or any
other confidential or proprietary information; or
b. The terms of this Agreement, the benefit being paid under it
or the fact of its payment, except that you may disclose
this information to your attorney, accountant or other
professional advisor to whom you must make the disclosure in
order for them to render professional services to you. You
will instruct them, however, to maintain the confidentiality
of this information just as you must.
In addition, you agree not to use any such confidential or proprietary
information of the Company for your own purposes.
8. Return of Files. Upon termination of the Special Projects Period or
any earlier termination of this Agreement, you will return to the Company all
reports, files, memoranda, records and software, credit cards, cardkey passes,
door and file keys, computer access codes or disks and instructional manuals and
other physical or personal property that you received in connection with your
prior work for the Company, including your former role as Chief Executive
Officer of the Company that you then have in your possession and you shall not
retain any copies, duplicates, reproductions or excerpts thereof.
9. Directorship. The Company will use its best efforts to have you
renominated as a Class III director at the next annual meeting. You agree that
you shall not receive any fees or other compensation for your service as a
director or Chairperson of the Board, except as otherwise provided in this
Agreement or as hereafter provided to non-management Company directors.
10. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by an arbitrator or court of competent
jurisdiction to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom or modify the portion thus adjudicated to be invalid
or unenforceable, such deletion or modification to apply only with respect to
the operation of such provision in the particular jurisdiction in which such
adjudication is made and to be made only to the extent necessary to cause the
provision as amended to be valid and enforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
11. Choice of Law; Waiver; Notice. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
giving effect to any choice or conflict of law provision or rule. No waiver,
amendment or modification of any provision of this Agreement shall be effective
unless in writing and signed by each party hereto. No failure or delay by any
party in exercising any rights, power or remedy under this Agreement shall
operate as a waiver thereof or of any other right, power or remedy. The waiver
by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach. Unless expressly
provided otherwise herein, all such notices, requests, consents and other
communications shall be deemed to have been delivered; (i) in the case of
personal delivery or delivery by telecopy, on the date of such delivery; (ii) in
the case of dispatch by nationally-recognized overnight courier, on the next
business day following such dispatch; and (iii) in the case of mailing, on the
third business day after the posting thereof. Any notices shall be directed as
follows: if to the Company to: iVillage Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxx, Executive Vice President of
Operations and Business Affairs, and if to you to the address set forth on the
first page of this Agreement.
12. Entire Agreement; Assignment. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire agreement
among the parties hereto with respect to the subject matter hereof and unless
otherwise noted herein, supersede all prior and contemporaneous agreements and
understandings with respect thereto. Any section headings included herein are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall bind and inure to the
benefit of the parties and their respective successors and assigns, legal
representatives and heirs; provided, however, that you may not assign this
Agreement or any of your rights or interest herein, in whole or in part, to any
other person or entity without the prior written consent of the Company. This
Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, and all such
counterparts together shall constitute but one agreement.
13. Remedies. In the event any disputes, claims or controversies
relating to or arising out of this Agreement cannot timely be resolved by good
faith negotiations between the parties, the parties hereby agree to refer any
such dispute, claim or controversy, except that which involves a right to
injunctive relief, to any nationally recognized arbitrator selected by mutual
agreement for settlement, which arbitration proceeding shall be kept strictly
confidential. The arbitrator's decisions shall be final and binding upon the
parties and judgment may be entered thereon in any court. All costs and
expenses, including legal fees, of any such arbitration proceeding shall be the
responsibility of the losing party. Notwithstanding the foregoing, the parties
acknowledge and agree that the Company will have no adequate remedy at law for
any breach or alleged breach by you of this Agreement and that the Company shall
be entitled to injunctive relief, in addition to any other remedies available at
law and/or hereunder, in connection with any breach or alleged breach by you of
your obligations under this Agreement.
14. The Company will reimburse you for your reasonable legal fees
associated with the change of your role with the Company and the preparation of
this Agreement, up to $10,000, upon presentation of a statement for legal
services rendered.
To accept the Agreement, please date and sign this letter and return it
to me (An extra copy for your files is enclosed).
Very truly yours,
iVILLAGE INC.
By: /s/ Xxxxxx Xxxxx
------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President --
Operations and Business
Affairs
By signing this letter, I acknowledge that I have had the opportunity
to review this Agreement carefully with an attorney of my choice; that I have
read this Agreement and understand the terms of the Agreement; and that I
voluntarily agree to them.
By: /s/ Xxxxxxx Xxxxxxxxx Date: 10/7/00
----------------------- ---------------------
Xxxxxxx Xxxxxxxxx
ATTACHMENT A
--------------------------------------------------------------------------------
Speaking Engagements - Xxxxxxx Xxxxxxxxx
----------------------------------------
October 3, 2000 - February 20, 2001
----------------- -------------------------------------- -----------------------
Date Conference Panel/Keynote/Solo
----------------- -------------------------------------- -----------------------
Oct. 3, '00 Internet Content East 2000 Keynote
New York City
----------------- -------------------------------------- -----------------------
Oct. 5, '00 Business Week CEO Summit Keynote
New York City
----------------- -------------------------------------- -----------------------
Oct. 14, '00 Xxxxxxxx Alumni Women & Web: Opening Keynote
"Navigating the Cyber Revolution"
Cambridge, MA
----------------- -------------------------------------- -----------------------
Oct. 16-17, '00 Gartner Group Symposium/Itxpo 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX Panel
----------------- -------------------------------------- -----------------------
Oct. 18-20, '00 Women & Co./Fortune Executive Summit Attendees
Palm Beach, FL
----------------- -------------------------------------- -----------------------
Oct. 21, '00 Stanford U's "Making the Most of the Panel
Xxx.xxx Economy"
Stanford, CA
----------------- -------------------------------------- -----------------------
Oct. 23, '00 American Express Internet Marketing Keynote
University
New York City
----------------- -------------------------------------- -----------------------
Oct. 28, '00 MIT Enterprise Forum Keynote & Entrepreneur
Cambridge, MA Leadership award
recipient.
----------------- -------------------------------------- -----------------------
Date Target Audience Comments
----------------- -------------------------------------------- -------------------------
Oct. 3, '00 500 executives from traditional media,
creative content, business strategy,
new media start-up and vc companies
----------------- -------------------------------------------- -------------------------
Oct. 5, '00 125 CEO's May cancel due to Board
meeting.
----------------- -------------------------------------------- -------------------------
Oct. 14, '00 150-300 alumni, students, and faculty.
----------------- -------------------------------------------- -------------------------
Oct. 16-17, '00 CEO's, CIO's, VP's, Directors, and SR.
Mgrs. From the IT industry.
----------------- -------------------------------------------- -------------------------
Oct. 18-20, '00 By invitation only, 200 women execs from You did panelist last
fortune 500 companies. yr.
----------------- -------------------------------------------- -------------------------
Oct. 21, '00 1700+ undergrads, business school
students, law school students, and faculty.
----------------- -------------------------------------------- -------------------------
Oct. 23, '00 200 mgrs., VP's, directors. Favor to Xxxxx Xxxxx
----------------- -------------------------------------------- -------------------------
Oct. 28, '00 500-600 including early stage technology
entrepreneurs, business service providers,
funding sources.
----------------- -------------------------------------------- -------------------------
ATTACHMENT A
P. 2
------------------ ----------------------------------------- ----------------------------
Nov. 3, '00 London Business School Women in Business Keynote
London, England
------------------ ----------------------------------------- ----------------------------
Nov. 6-8, '00 Forbes 2000 Executive Women's Summit Summit Advisor
Xxxx-Xxxxxxx Buckhead, Atlanta, GA
------------------ ----------------------------------------- ----------------------------
Nov. 20, '00 Princeton 26th Business Today Keynote
International Conference
New York City
------------------ ----------------------------------------- ----------------------------
Dec. 4, '00 Society for Women's Health Research You are receiving award
Dinner
New York City
------------------ ----------------------------------------- ----------------------------
Dec. 6, '00 Business Week Digital Economy Keynote
San Francisco, CA
------------------ ----------------------------------------- ----------------------------
Dec. 28, '00 - Renaissance Panelist
Jan. 2, '01
------------------ ----------------------------------------- ----------------------------
Jan. 25-30, '01 World Economic Forum Annual Meeting Panel
Davos, Switzerland
------------------ ----------------------------------------- ----------------------------
Feb. 8, '01 Yale Speakers Forum Keynote
New Haven, CT
------------------ ----------------------------------------- ----------------------------
Feb. 20, '01 British-American Chamber Speaker Evening Keynote
New York City
------------------ ----------------------------------------- ----------------------------
------------------ -------------------------------------------- -------------------------
Nov. 3, '00 200 students, alumni
------------------ -------------------------------------------- -------------------------
Nov. 6-8, '00 250-275 executive women Attendance optional
------------------ -------------------------------------------- -------------------------
Nov. 20, '00 275 students and business executives
------------------ -------------------------------------------- -------------------------
Dec. 4, '00 Arranged by G. Grehanm
------------------ -------------------------------------------- -------------------------
Dec. 6, '00 500 executives whose companies earn $250
MM as well as leaders from government,
academia, and orgs.
------------------ -------------------------------------------- -------------------------
Dec. 28, '00 - Journalists, policy advisors
Jan. 2, '01
------------------ -------------------------------------------- -------------------------
Jan. 25-30, '01
------------------ -------------------------------------------- -------------------------
Feb. 8, '01 150 MBA students and faculty
------------------ -------------------------------------------- -------------------------
Feb. 20, '01
------------------ -------------------------------------------- -------------------------
