STOCKHOLDER VOTING AGREEMENT
This STOCKHOLDER VOTING AGREEMENT (this "Agreement"), dated February 5,
2001, by and among iVillage Inc., a Delaware corporation ("Holder"), and Hearst
Communications, Inc., a Delaware corporation(the "Stockholder").
WITNESSETH THAT:
WHEREAS, the Stockholder owns of record 21,576,447 shares of common
stock (the "Common Stock"), $.001 par value, of Xxxxx.xxx Networks, Inc., a
Delaware corporation ("Company") (all of such shares being referred to herein,
and giving effect to Section 11 hereof, as the "Shares"); and
WHEREAS, concurrently herewith Holder, Stanhope Acquisition Sub, LLC, a
Delaware limited liability company, the sole member of which is Holder
("Newco"), and Company are entering into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which Newco would, upon the terms and subject to
the conditions set forth therein, merge with and into Company (the "Merger");
and
WHEREAS, the Stockholder desires to induce Holder to proceed with the
Merger and enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, Holder's willingness to enter into the Merger Agreement and
the sum of $100, and such other valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Representations and Warranties of the Stockholder. The Stockholder
represents and warrants (such representations and warranties being deemed
repeated at any Closing at which Shares of the Stockholder are purchased) that:
1.1 Own ership of Shares. Except for the encumbrances and
restrictions arising hereunder, the Stockholder has good and marketable title to
and is the sole record owner of the Shares; the Stockholder does not own
beneficially or of record any other capital stock of Company; such Shares are
validly issued, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof; and such Shares are owned by the Stockholder
free and clear of any pledges, liens, security interests, adverse claims,
assessments, proxies, participations, options, equities, charges or encumbrances
of any nature whatsoever with respect to the ownership of or right to vote or
dispose of such Shares.
1.2 Authority; Due Execution; Enforceability. The Stockholder has
the full right, power, capacity and authority to enter into this Agreement and
has sole voting power and sole power of disposition with respect to the Shares
with no restrictions on the Stockholder's voting rights or rights of disposition
pertaining thereto; and this Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder enforceable against him in accordance with its
terms, except as enforcement thereof may be limited against the Stockholder by
(i) bankruptcy, insolvency, reorganization, moratorium
and similar laws, both state and federal, affecting the enforcement of
creditors' rights or remedies in general as from time to time in effect or (ii)
the exercise by courts of equity powers.
1.3 No Conflicts. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated hereby will not, with
or without giving of notice or the passage of time, (a) violate any judgment,
award, decree, injunction or order of any court, arbitrator or governmental
agency applicable to the Stockholder or the Stockholder's property or assets or
any federal or state law, statute or regulation, or (b) conflict with, result in
the breach of any provision of or constitute a violation of or default under any
agreement or instrument to which the Stockholder is a party or by which the
Stockholder or the Stockholder's property or assets may be bound.
2. Covenants of the Stockholder. The Stockholder hereby covenants and
agrees that during the term hereof:
(a) The Stockholder shall not enter into any transaction, take any
action or by inaction permit any event to occur, that would result in any of the
representations or warranties of the Stockholder herein contained not being true
and correct at and as of (i) the time immediately after the occurrence of such
transaction, action or event or (ii) the date of any Closing of the purchase of
Shares. Without limiting the generality of the foregoing, the Stockholder
covenants and agrees that the Stockholder will not sell, transfer, pledge,
hypothecate, assign or otherwise convey or dispose of, or enter into any
contract, option, agreement or other arrangement or understanding with respect
to the sale, transfer, pledge, assignment, conveyance or other disposition of,
any Shares, other than to or in favor of Holder or Holder's assignee, or in
connection with the Merger or an Acquisition Transaction between Company and
Holder, Newco or another subsidiary of Holder (a "Holder Acquisition
Transaction").
(b) The Stockholder hall not, nor shall it authorize or permit any of
its Representatives to, directly or indirectly through another Person, (i)
solicit, initiate or encourage (including by way of furnishing information) or
otherwise take any action to facilitate, the making of any proposal that
constitutes an Acquisition Proposal relating to the Company or (ii) participate
in any discussions or negotiations regarding, any proposal that constitutes, or
may reasonably be expected to lead to, any such Acquisition Proposal. The
Stockholder shall provide immediate oral and written notice to the Holder of (1)
the receipt of any such Acquisition Proposal or any inquiry which could
reasonably be expected to lead to any such Acquisition Proposal, (2) the
material terms and conditions of any such Acquisition Proposal or inquiry, and
(3) the identity of such Person or entity making any such Acquisition Proposal
or inquiry. The Stockholder shall continue to keep the Holder informed of the
status and details of any such Acquisition Proposal or inquiry.
(c) The Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that such Stockholder may under Section 262 the DGCL or
otherwise.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) The Stockholder hereby agrees that, during the term of this
Agreement, at any meeting of the stockholders of the Company, however called, or
in connection with any written consent of the stockholders of the Company, such
Stockholders shall vote (or cause to be voted) the Shares held of record or
beneficially by the Stockholder (i) in favor of the approval and adoption of
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the Merger Agreement and the consummation of the transactions contemplated
therein, including the Merger, (ii) against any action or agreement that would
result in a breach in any material respect of the Company under the Merger
Agreement, and (c) except as otherwise agreed to in writing in advance by the
Holder (other than the Merger and the other transactions contemplated by the
Merger Agreement), against: (1) any extraordinary corporate transaction
involving the Company, such as a merger, consolidation or other business
combination involving the Company or any of its Subsidiaries, (2) a sale, lease
or transfer of a material amount of assets of the Company or any of its
Subsidiaries or a reorganization, recapitalization, dissolution or liquidation
of the Company or any its Subsidiaries, (3) any change in the board of directors
of the Company, (4) any amendment of the Company's certificate of incorporation,
or (5) any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or materially and adversely
affect the contemplated benefits to Holder of the Merger and the other
transactions contemplated by the Merger Agreement (including the Investment
Agreement). The Stockholder shall not enter into any agreement or understanding,
whether oral or written, with any person or entity prior to the termination of
this Agreement to vote thereafter in a manner inconsistent with this Section
3(a).
(b) The Stockholder has revoked or terminated any proxies, voting
agreements or similar arrangements previously given or entered into with respect
to the Shares and hereby irrevocably appoints Holder, during the term of this
Agreement, as proxy, with full power of substitution, for the Stockholder to
vote (or refrain from voting) with respect to matters specified in and in any
manner consistent with Section 3(a) all of the Shares of the Stockholder for the
Stockholder and in the Stockholder's name, place and stead, at any annual,
special or other meeting or action of the stockholders of Company or at any
adjournment thereof or pursuant to any consent of the stockholders of Company in
lieu of a meeting or otherwise, with respect to any issue brought before
stockholders of Company. If the issue on which Holder is voting pursuant to the
irrevocable proxy is the proposal to approve and adopt the Merger and the Merger
Agreement, Holder shall vote for such proposal or give its consent, as
applicable.
4. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective spouses, heirs, personal
representatives, successors and assigns. Holder may, without the consent of the
Stockholder, assign its rights hereunder to any wholly owned subsidiary of
Holder, but otherwise the consent of the Stockholder shall be required to assign
the rights of Holder hereunder. The consent of Holder shall be required to
assign the rights of the Stockholder hereunder.
5. Further Assurances. The Stockholder shall cooperate with Holder and
execute and deliver any additional documents necessary or desirable, in the
opinion of Holder or its counsel, to evidence the irrevocable proxy granted
herein with respect to the Shares.
6. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, postage prepaid, addressed to the
respective party at the following addresses:
To Holder: iVillage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
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with a copy to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Xxxxx, Esq.
To the Stockholder: Hearst Communications, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
with a copy to: Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
7. Termination. This Agreement, other than as provided in Section 10
below, shall terminate on the earlier of: (i) the delivery by Holder to the
Stockholder of written notice of Holder's determination to terminate this
Agreement, (ii) the termination of the Merger Agreement in accordance with the
terms thereof and (iii) the Effective Time (the "Termination Date").
8. Remedies. The Stockholder acknowledges that Holder will be
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of the Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Holder upon the breach by the
Stockholder of such covenants and agreements, Holder shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
9. Commissions. Each of the parties hereto represents and warrants that
there are no agreements or claims for brokerage commissions or finders' fees in
connection with the transactions contemplated by this Agreement, and the
Stockholder and Holder will respectively pay or discharge and will indemnify
each other for brokerage commissions or finders' fees incurred by reason of any
action taken by such indemnifying party.
10. Survival of Representations. Notwithstanding any provision of this
Agreement to the contrary, all representations and warranties made by the
Stockholder in this Agreement and the covenants set forth in Section 9 hereof
shall survive any vote by Holder of the Shares pursuant to the irrevocable proxy
or any vote by the Stockholder in accordance with Section 3.
11. Changes in Capitalization. For all purposes of this Agreement, the
Shares shall include any securities for cash or other property issued or
exchanged with respect to such Shares upon any recapitalization,
reclassification, or any other change in its capital structure and shall also
include all Shares of Common Stock issued to the Stockholder after the date
hereof pursuant to the exercise by the Stockholder of stock options.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to principles
of conflicts of law thereof.
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13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
14. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any current or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom. In lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement, a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the parties hereto
request the court or any arbitrator to whom disputes relating to this Agreement
are submitted to reform the otherwise illegal, invalid or unenforceable
provision in accordance with this Section 14.
15. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
prior understandings, agreements or representations by or among the parties,
written or oral, with respect to the subject matter hereof.
16. Headings; Interpretation. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
17. Expenses. Each party hereto shall pay its own costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
18. Definitions. Capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
STOCKHOLDER:
/s/ Xxxxx X Xxxxx
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Hearst Communications, Inc.
By: Xxxxx X Xxxxx
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Title: SR. VP
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HOLDER:
/s/ Xxxxxxx X. XxXxxxxxx
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iVillage Inc.
By: Xxxxxxx X. XxXxxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE FOR HEARST COMMUNICATIONS, INC. STOCKHOLDER VOTING AGREEMENT]
