Exhibit 3
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of March 3, 2006,
by and among NBC Universal, Inc., a Delaware corporation ("Parent"), and Hearst
Communications, Inc. (the "Stockholder").
WHEREAS, concurrently with the execution of this Agreement, iVillage
Inc., a Delaware corporation (the "Company"), Parent and iVillage Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), are entering into an Agreement and Plan of Merger of even date herewith
(as the same may be amended or supplemented, the "Merger Agreement"; capitalized
terms used but not defined in this Agreement have the meanings ascribed thereto
in the Merger Agreement);
WHEREAS, as of the date hereof, the Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock set forth
opposite the Stockholder's name on Schedule A hereto (such shares, together with
any other shares of Company Common Stock acquired by the Stockholder after the
date hereof, being collectively referred to herein as the "Stockholder Shares");
and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have required that the Stockholder enter into
this Agreement and, in order to induce Parent and Merger Sub to enter into the
Merger Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Agreements of Stockholder.
(a) Voting. From the date hereof until any termination of this
Agreement in accordance with its terms, at any meeting of the stockholders of
the Company however called (or any action by written consent in lieu of a
meeting) or any adjournment thereof, the Stockholder shall vote all Stockholder
Shares owned by the Stockholder (or cause them to be voted) or (as appropriate)
execute written consents in respect thereof, (i) in favor of the adoption of the
Merger Agreement and the approval of the transactions contemplated thereby, (ii)
against any action or agreement that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
in the Merger Agreement, (iii) against any merger agreement or merger (other
than the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or any other Acquisition Proposal and (iv)
against any agreement, amendment of the Company Charter Documents or other
action that is intended or could reasonably be expected to prevent, impede,
interfere with, delay, postpone or discourage the consummation of the Merger.
Any such vote shall be cast (or consent shall be given) by the Stockholder in
accordance with such procedures relating thereto so as to ensure that it is duly
counted, including for purposes of determining that a quorum is present and for
purposes of recording the results of such vote (or consent).
(b) Grant of Limited Irrevocable Proxy; Appointment of
Attorney-in-Fact.
(i) In furtherance of the Stockholder's agreement in Section
1(a) above, but subject to Section 1(b)(ii) below, the Stockholder hereby
appoints Parent and Parent's designees, and each of them individually, as the
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote all Stockholder
Shares owned by the Stockholder (at any meeting of stockholders of the Company
however called or any adjournment thereof), or to execute one or more written
consents in respect of such Stockholder Shares, for the following limited, and
for no other, purposes: (A) in favor of the adoption of the Merger Agreement and
the approval of the transactions contemplated thereby; (B) against any action or
agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company in the Merger Agreement;
(C) against any Acquisition Proposal and (D) against any agreement, amendment of
the Company Charter Documents or other action that is intended or could
reasonably be expected to prevent, impede, interfere with, delay, postpone or
discourage the consummation of the Merger.
(ii) Such proxy granted pursuant to Section 1(b)(i) above shall
(A) be valid and irrevocable until the termination of this Agreement in
accordance with Section 4 hereof and (B) automatically terminate upon the
termination of this Agreement in accordance with Section 4 hereof. The
Stockholder represents that any and all other proxies heretofore given in
respect of Stockholder Shares owned by the Stockholder are revocable, and that
such other proxies have been revoked.
(iii) The Stockholder affirms that the proxy granted pursuant to
Section 1(b)(i) above is: (A) given (x) in connection with the execution of the
Merger Agreement and (y) to secure the performance of the Stockholder's duties
under this Agreement, (B) coupled with an interest and may not be revoked except
as otherwise provided in this Agreement and (C) intended to be irrevocable prior
to termination of this Agreement in accordance with the provisions of Section
212(e) of the DGCL.
(c) Restriction on Transfer; Proxies; Non-Interference; etc. From the
date hereof until any termination of this Agreement in accordance with its
terms, the Stockholder shall not (i) sell, transfer (including by operation of
law), give, pledge, encumber, assign or otherwise dispose of (collectively,
"Transfer"), or enter into any contract, option or other arrangement (including
any profit sharing arrangement) or understanding with respect to the Transfer
of, any Stockholder Shares owned by the Stockholder (or any interest therein),
(ii) deposit any Stockholder Shares owned by the Stockholder into a voting trust
or grant any proxies or enter into a voting agreement, power of attorney or
voting trust with respect to any Stockholder Shares, (iii) commit to do any of
the foregoing or (iv) take any action that would make any representation or
warranty of the Stockholder set forth in this Agreement untrue or incorrect in
any material respect or have the effect of preventing, disabling or delaying the
Stockholder from performing any of its obligations under this Agreement.
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(d) Legending of Stockholder Shares. If so requested by Parent, at
Parent's sole cost, the Stockholder agrees that the certificates representing
Stockholder Shares owned by the Stockholder shall bear a legend stating that
such Stockholder Shares are subject to this Agreement and to an irrevocable
proxy.
(e) No Solicitation. The Stockholder shall, and shall cause its
subsidiaries and its subsidiaries' respective directors, officers, employees,
investment bankers, financial advisors, attorneys, accountants, agents and other
representatives (collectively, "Stockholder Representatives") to, immediately
cease any existing discussions or negotiations, if any, with any Person that may
be ongoing with respect to an Acquisition Proposal. The Stockholder shall not,
and shall not authorize or permit any Stockholder Representative to, directly or
indirectly, (i) solicit, initiate or knowingly facilitate or encourage an
Acquisition Proposal or any proposal that is reasonably likely to lead to an
Acquisition Proposal, (ii) furnish or disclose to any Person non-public
information with respect to or in furtherance of an Acquisition Proposal, (iii)
negotiate or engage in discussions with any Person with respect to or in
furtherance of an Acquisition Proposal or (iv) enter into any agreement (whether
or not binding) or agreement in principle with respect to an Acquisition
Proposal. In addition, from the date hereof until any termination of this
Agreement in accordance with its terms, the Stockholder shall promptly advise
Parent, orally and in writing, and in no event later than the later of 48 hours
or one Business Day after receipt, if any proposal, offer, inquiry or other
contact is initially received by, any information is initially requested from,
or any discussions or negotiations are sought to be initiated or continued with,
the Stockholder in respect of any Acquisition Proposal, and shall, in any such
notice to Parent, indicate the identity of the Person making such proposal,
offer, inquiry or other contact and the material terms and conditions of any
proposals or offers or the nature of any inquiries or contacts (and shall
include with such notice copies of any written materials received from or on
behalf of such Person relating to such proposal, offer, inquiry or request), and
thereafter shall keep Parent fully informed of all material developments
affecting the status and material terms of any such proposals, offers, inquiries
or requests (and the Stockholder shall provide Parent with written materials
received by the Stockholder that set forth the terms of such proposals, offers,
inquiries or requests). As used in this paragraph, "affiliates" of the
Stockholder shall not include the Company and its subsidiaries. Notwithstanding
anything to the contrary in this Section 1(e), if and to the extent that,
pursuant to the terms of the Merger Agreement, the Company is permitted to and
is providing (or has provided) information to and is permitted to and is
engaging in (or has engaged in) substantive discussions and negotiations with
any Person regarding an Acquisition Proposal, then the Stockholder and
Stockholder Representatives may provide information to, engage in substantive
discussions and negotiations with, and provide draft documents and agreements to
and exchange the same with, such Person and its representatives, provided, that,
prior to the termination of this Agreement, the Stockholder may not enter into
any agreement (except for a customary confidentiality agreement) with such
Persons relating to the Merger Agreement or the transactions contemplated
thereby, other than agreements entered into substantially contemporaneously with
termination of this Agreement pursuant to a termination of the Merger Agreement
under Section 9.1(h) thereof.
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(f) Certain Actions. Until the earlier of (i) the termination of the
Merger Agreement pursuant to its terms and (ii) the Effective Time, the
Stockholder shall at the request of Parent and without further consideration,
execute and deliver such additional documents and make such filings as may be
reasonably required to consummate and make effective, the Merger and the
transactions contemplated by this Agreement. The Stockholder shall not issue any
press release or make any other public statement with respect to this Agreement,
the Merger Agreement or any of the transactions contemplated thereby without the
prior written consent of Parent, except as may be required by any law, judgment,
writ or injunction of any Governmental Entity applicable to such Stockholder.
(g) Approval of Board Action; Appraisal Rights. The Stockholder
hereby consents to and approves the actions taken by the Company Board of the
Company in approving the Merger Agreement, the transactions contemplated thereby
and this Agreement. The Stockholder hereby waives, and agrees not to exercise or
assert, any appraisal or similar rights under Section 262 of the DGCL or other
applicable law in connection with the Merger.
(h) The Stockholder hereby waives any termination right it has or may
have by reason of the execution of the Merger Agreement or the consummation of
the Merger and the other transactions contemplated thereby under or in respect
of that certain Website Services Agreement, entered into as of July 1, 2004, by
and between the Company and the Stockholder (the "Website Services Agreement"),
provided that the parties hereto agree that such Website Services Agreement
automatically shall terminate on and be of no further force and effect from and
after the date that is six months following the date on which the Effective Time
occurs.
2. Representations and Warranties of Stockholders. The Stockholder
hereby represents and warrants to Parent, severally and not jointly, as follows:
(a) Authority. The Stockholder has all necessary power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized and approved by all necessary action on the part of
the Stockholder and no further action on the part of the Stockholder or any
other Person is necessary to authorize the execution, delivery and performance
by the Stockholder of this Agreement and the consummation by the Stockholder of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming due and valid authorization,
execution and delivery hereof by Parent, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the Bankruptcy and Equity Exceptions.
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(b) Consents and Approvals; No Violations. Except for filings under
the Exchange Act, to the Stockholder's knowledge, no consents or approvals of,
or filings, declarations or registrations with, any Governmental Entity are
necessary for the consummation by the Stockholder of the transactions
contemplated by this Agreement, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained, made or given,
would not, individually or in the aggregate, reasonably be expected to prevent
or materially delay the performance by the Stockholder of any of its obligations
under this Agreement. Neither the execution and delivery of this Agreement by
the Stockholder, nor the consummation by the Stockholder of the transactions
contemplated hereby, nor compliance by the Stockholder with any of the terms or
provisions hereof, will, (A) conflict with or violate any provision of any
certificate of incorporation, by law or any other constituent document that may
be applicable to the Stockholder, (B) any agreement to which the Stockholder is
a party or (C) (x) violate any judgment or injunction of any Governmental Entity
applicable to the Stockholder (or any of its properties or assets) or any law,
or (y) violate, conflict with, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under or result in
the creation of any Lien upon any of the properties or assets of, the
Stockholder under, any of the terms, conditions or provisions of any agreement
or other instrument or obligation to which the Stockholder is a party, or by
which it or any of its properties or assets may be bound or affected, except for
such violations, conflicts, losses, defaults, terminations, cancellations,
accelerations or Liens as would not, individually or in the aggregate,
reasonably be expected to prevent or materially delay the performance by the
Stockholder of any of its obligations under this Agreement.
(c) Ownership of Shares. The Stockholder owns, beneficially and of
record, all of the Stockholder Shares set forth opposite the Stockholder's name
on Schedule A hereto. The Stockholder owns all of its Stockholder Shares free
and clear of any proxy, voting restriction, adverse claim or other Lien (other
than (i) the Amended and Restated Stockholders Agreement, dated as of June 20,
2001, between the Company and the Stockholder and (ii) proxies and restrictions
in favor of Parent pursuant to this Agreement and except for such transfer
restrictions of general applicability as may be provided under the Securities
Act and the "blue sky" laws of the various States of the United States). Without
limiting the foregoing, except for proxies and restrictions in favor of Parent
pursuant to this Agreement and except for such transfer restrictions of general
applicability as may be provided under the Securities Act and the "blue sky"
laws of the various States of the United States, the Stockholder has sole voting
power and sole power of disposition with respect to all of its Stockholder
Shares, with no restrictions on the Stockholder's rights of voting or
disposition pertaining thereto and no Person other than the Stockholder has any
right to direct or approve the voting or disposition of any of its Stockholder
Shares. As of the date hereof, the Stockholder does not own, beneficially or of
record, any securities of the Company other than the number of shares which
constitute Stockholder Shares.
(d) Brokers. No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission that is payable by the Company, Parent or any of their
respective subsidiaries in connection with the transactions contemplated by the
Merger Agreement based upon arrangements made by or on behalf of the
Stockholder.
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3. Representations and Warranties of Parent and Merger Sub. Parent
hereby represents and warrants to the Stockholder as follows:
(a) Organization, Standing and Corporate Power. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware
(b) Authority; Noncontravention. (1) Parent has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Parent of this
Agreement, and the consummation by Parent of the transactions contemplated
hereby, have been duly authorized and approved by its Board of Directors and no
other corporate action on the part of Parent is necessary to authorize the
execution, delivery and performance by Parent of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Parent and, assuming due authorization,
execution and delivery hereof by such Stockholder, constitutes a legal, valid
and binding obligation of Parent, enforceable against it in accordance with its
terms, subject to the Bankruptcy and Equity Exceptions. (2) Neither the
execution and delivery of this Agreement by Parent, nor the consummation by
Parent of the transactions contemplated hereby, nor compliance by Parent with
any of the terms or provisions hereof, will (i) conflict with or violate any
provision of the certificate of incorporation or bylaws of Parent or (ii)
assuming that the authorizations, consents and approvals referred to in Section
3(c) are obtained and the filings referred to in Section 3(c) are made, (x)
violate any law, judgment, writ or injunction of any Governmental Entity
applicable to Parent or any of its Subsidiaries or any of their respective
properties or assets, or (y) violate, conflict with, result in the loss of any
benefit under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination of
or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the properties or
assets of, Parent or any of its Subsidiaries under, any of the terms, conditions
or provisions of any contract to which Parent or any of its Subsidiaries is a
party, or by which they or any of their respective properties or assets may be
bound or affected except, in the case of clause (ii), for such violations,
conflicts, losses, defaults, terminations, cancellations, accelerations or Liens
as, individually or in the aggregate, would not reasonably be expected to
prevent or materially delay the ability of Parent to consummate the transactions
contemplated hereby).
(c) Governmental Approvals. Except for filings required under the
Exchange Act, no filings, declarations or registrations with, any Governmental
Entity are necessary for the execution and delivery of this Agreement by Parent,
other than such other consents, approvals, filings, declarations or
registrations that, if not obtained, made or given, would not, individually or
in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.
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4. Termination. This Agreement shall terminate on the first to occur
of (a) the termination of the Merger Agreement in accordance with its terms and
(b) the Effective Time. Notwithstanding the foregoing, (i) nothing herein shall
relieve any party from liability for breach of this Agreement and (ii) the
provisions of this Section 4, Section 5, paragraphs (c) and (d) of Section 2 and
paragraph (h) of Section 1 hereof shall survive any termination of this
Agreement.
5. Miscellaneous.
(a) Action in Stockholder Capacity Only. The parties acknowledge that
this Agreement is entered into by the Stockholder in its capacity as an owner of
Stockholder Shares and that nothing in this Agreement shall in any way restrict
or limit any representative of the Stockholder that also is a director of the
Company from taking any action in his capacity as a director of the Company that
is necessary for him to comply with his fiduciary duties as a director of the
Company, including, without limitation, participating in his capacity as a
director of the Company in any discussions, negotiations or votes in accordance
with Section 7.7 of the Merger Agreement.
(b) Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
(c) Additional Shares. Until any termination of this Agreement in
accordance with its terms, the Stockholder shall promptly notify Parent of the
number of shares of Company Common Stock, if any, as to which the Stockholder
acquires record or beneficial ownership after the date hereof. Any shares of
Company Common Stock as to which the Stockholder acquires record or beneficial
ownership after the date hereof and prior to termination of this Agreement shall
be Stockholder Shares for purposes of this Agreement. Without limiting the
foregoing, in the event of any stock split, stock dividend or other change in
the capital structure of the Company affecting the Company Common Stock, the
number of shares of Company Common Stock constituting Stockholder Shares shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Common Stock or other voting
securities of the Company issued to the Stockholder in connection therewith.
(d) Definition of "Beneficial Ownership". For purposes of this
Agreement, "beneficial ownership" with respect to (or to "own beneficially") any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement is not intended to and
shall not confer upon any Person other than the parties hereto any rights
hereunder.
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(f) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Any purported
assignment not permitted under this Section shall be null and void.
(g) Amendments; Waiver. This Agreement may not be amended or
supplemented, except by a written agreement executed by the parties hereto. Any
party to this Agreement may (A) waive any inaccuracies in the representations
and warranties of any other party hereto or extend the time for the performance
of any of the obligations or acts of any other party hereto or (B) waive
compliance by the other party with any of the agreements contained herein.
Notwithstanding the foregoing, no failure or delay by Parent in exercising any
right hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right hereunder. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
(h) Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(i) Counterparts. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other parties hereto.
(j) Descriptive Headings. Headings of Sections and subsections of
this Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(k) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Parent, to:
NBC Universal, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy (which shall not constitute notice) to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to Stockholder, to:
Hearst Communications, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 P.M. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(l) Drafting. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and, in the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as jointly drafted by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
(m) GOVERNING LAW; ENFORCEMENT; JURISDICTION; WAIVER OF JURY TRIAL.
(i) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
(ii) ALL ACTIONS AND PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT SHALL BE HEARD AND DETERMINED IN THE DELAWARE COURT OF CHANCERY
(AND IF THE DELAWARE COURT OF CHANCERY SHALL BE UNAVAILABLE, ANY COURT OF THE
STATE OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE
STATE OF DELAWARE), AND THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS (AND, IN THE CASE OF APPEALS, APPROPRIATE
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APPELLATE COURTS THEREFROM) IN ANY SUCH ACTION OR PROCEEDING AND IRREVOCABLY
WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION
OR PROCEEDING. THE CONSENTS TO JURISDICTION SET FORTH IN THIS PARAGRAPH SHALL
NOT CONSTITUTE GENERAL CONSENTS TO SERVICE OF PROCESS IN THE STATE OF DELAWARE
AND SHALL HAVE NO EFFECT FOR ANY PURPOSE EXCEPT AS PROVIDED IN THIS PARAGRAPH
AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OR ENTITY OTHER THAN THE
PARTIES HERETO. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
APPLICABLE LAW.
(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
(iv) THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN
THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY
THE TERMS AND PROVISIONS OF THIS AGREEMENT IN THE DELAWARE COURT OF CHANCERY
(AND IF THE DELAWARE COURT OF CHANCERY SHALL BE UNAVAILABLE, ANY COURT OF THE
STATE OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE
STATE OF DELAWARE), WITHOUT BOND OR OTHER SECURITY BEING REQUIRED, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NBC UNIVERSAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
HEARST COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
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SCHEDULE A
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Number of Shares of
Company Common Stock
Stockholder Beneficially Owned
----------- ------------------
Hearst Communications, Inc. 18,184,653
