Exhibit 3
XXXX STOCKHOLDER AGREEMENT
THIS XXXX STOCKHOLDER AGREEMENT (this "Agreement"), is entered into as of
this 11th day of February, 2002, by and among IVILLAGE INC., a Delaware
corporation ("Parent"), XXXXXX ACQUISITION CORP., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and Xxx X. Xxxx (the
"Stockholder"), a stockholder of XXXXXXXXXX.XXX, INC., a Delaware corporation
(the "Company").
A. Except as described in Recital B below, the Stockholder is, as of the
date hereof, the record and beneficial owner of the number of shares of common
stock, par value $0.001 (the "Company Common Shares"), of the Company, set forth
opposite the name of the Stockholder on Schedule 1 hereto.
B. The Stockholder believes that he acquired 1,076,667 Company Common
Shares (the "At Home Shares") from At Home Corporation ("At Home") on or prior
to October 1, 2001. At Home filed for Chapter 11 protection in the United States
Bankruptcy Court for the Northern District of California on September 28, 2001.
At Home may claim that it has some interest in the At Home Shares or that the
contract to sell the At Home Shares to the Stockholder is executory and
therefore may be rejected by At Home. The Stockholder acquired all of the
Company Common Shares held by him other than the At Home Shares from XL Ventures
in a separate transaction from the transaction with At Home.
C. Concurrently herewith, Parent, Merger Sub and the Company have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, (i) for Merger Sub to conduct
an exchange offer for all of the issued and outstanding Company Common Shares
(the "Offer") and (ii) for Merger Sub to merge with and into the Company, with
the Company continuing as the surviving corporation (the "Merger"), all upon the
terms and subject to the conditions set forth in the Merger Agreement.
D. As a condition to the willingness of Parent and Merger Sub to enter
into the Merger Agreement and as an inducement and in consideration therefor,
the Stockholder has agreed to enter into this Agreement.
E. Capitalized terms used herein without definition shall have the
respective meanings specified in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
Section 1. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent and Merger Sub as follows:
(a) Subject to an At Home Bankruptcy Decision as to the At Home
Shares, the Stockholder is the record and beneficial owner of the Company Common
Shares set forth opposite his name on Schedule 1 to this Agreement (such Company
Common Shares, together with any Company Common Shares acquired by the
Stockholder after the date of this Agreement, whether upon the exercise of
options to purchase Company Common Shares or otherwise, all as may be
adjusted from time to time pursuant to Section 6 hereof, the "Shares"). Schedule
1 lists separately each option issued to the Stockholder and the exercise price
thereof.
(b) The Stockholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered by the
Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as enforcement thereof may be limited against such Stockholder by (i)
bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting
enforcement of creditors' rights or remedies in general as from time to time in
effect or (ii) the exercise by courts of equity powers.
(d) Subject to an At Home Bankruptcy Decision as to the At Home
Shares, the execution and delivery of this Agreement by the Stockholder, the
performance of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby will not result in a
violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to
which the Stockholder is a party or by which such Stockholder or his assets are
bound. Subject to an At Home Bankruptcy Decision as to the At Home Shares, the
consummation by the Stockholder of the transactions contemplated hereby will not
violate, or require any consent, approval, or notice under, any provision of any
Law or Order applicable to the Stockholder.
(e) Except as described in Recital B above, the Shares owned by the
Stockholder are now, and at all times during the term hereof will be, held by
the Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, options, rights, understandings or arrangements or
any other encumbrances whatsoever on title, transfer, or exercise of any rights
of a stockholder in respect of such Shares (collectively, "Encumbrances"),
except for any such Encumbrances arising hereunder.
(f) The Stockholder acquired the At Home Shares in a transaction
separate and distinct from the Stockholder's transaction with XL Ventures and,
to the knowledge of the Stockholder, At Home and XL Ventures are not Affiliates
of one another.
Section 2. Representations and Warranties of Parent and Merger Sub.
Each of Parent and Merger Sub hereby, jointly and severally, represents and
warrants to the Stockholder as follows:
(a) Parent is a corporation duly organized and validly existing
under the Laws of the state of Delaware, Merger Sub is a corporation duly
organized, validly existing and in good standing under the Laws of the state of
Delaware, and each of Parent and Merger Sub has all requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(b) Such Person has all necessary corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by such Person of this Agreement have been
duly authorized by all necessary corporate or company action and no other
corporate or company proceedings on the part of such Person are
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necessary to authorize this Agreement. This Agreement has been duly executed and
delivered by such Person and, assuming due authorization, execution and delivery
by the Stockholder, constitutes a legal, valid and binding obligation of each of
such Persons enforceable against such Person in accordance with its terms,
except as enforcement thereof may be limited against such Person by (i)
bankruptcy, insolvency, reorganization, moratorium and similar Laws 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.
Section 3. Tender of the Shares. The Stockholder hereby agrees that (a)
he, she or it shall tender his Shares into the Offer as promptly as practicable,
and in any event no later than the fifth business day, following the
commencement of the Offer pursuant to Section 1.1 of the Merger Agreement, and
(b) he, she or it shall not withdraw any Shares so tendered unless the Offer is
terminated or has expired without Merger Sub purchasing all Company Common
Shares validly tendered in the Offer and not withdrawn. Notwithstanding the
foregoing, the Stockholder shall not tender the At Home Shares into the Offer
unless and until the Stockholder shall have obtained an At Home Bankruptcy
Decision stating that At Home has no claim to the At Home Shares or otherwise
expressly permitting the tender of the At Home Shares into the Offer.
Section 4. Transfer of the Shares.
(a) Prior to the termination of this Agreement, the Stockholder
shall not: (i) transfer, assign, sell, gift-over, pledge or otherwise dispose
of, or consent to any of the foregoing ("Transfer"), any or all of the Shares or
any right or interest therein; (ii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer; (iii)
grant any proxy, power-of-attorney or other authorization or consent with
respect to any of the Shares; (iv) deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect to any of
the Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of the Stockholder's obligations hereunder or the
transactions contemplated hereby. Notwithstanding the foregoing, the Stockholder
may Transfer the At Home Shares as directed by an At Home Bankruptcy Decision.
(b) As soon as practicable after the date hereof, the Stockholder
shall surrender to the Company, or to the transfer agent for the Company,
certificates evidencing the Shares, and shall cause the Company or the transfer
agent for the Company to place the following legend on any and all certificates
evidencing the Shares:
THE SHARES OF XXXXXXXXXX.XXX, INC. COMMON STOCK REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO
THAT CERTAIN STOCKHOLDER AGREEMENT, DATED AS OF FEBRUARY 11, 2002, BY AND
AMONG IVILLAGE INC., XXXXXX ACQUISITION CORP. AND THE HOLDER OF THIS
CERTIFICATE. ANY TRANSFER OF SUCH SHARES OF XXXXXXXXXX.XXX, INC. COMMON
STOCK IN VIOLATION OF THE TERMS AND PROVISIONS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
Section 5. Voting Arrangements.
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(a) The Stockholder agrees that, during the time this Agreement is
in effect, at any meeting of the stockholders of the Company (a "Company
Stockholders' Meeting"), however called, and at every adjournment or
postponement thereof, he, she or it shall (i) appear at the meeting or otherwise
cause his Shares, to be counted as present thereat for purposes of establishing
a quorum, (ii) vote, or execute consents in respect of, his Shares, or cause his
Shares to be voted, or consents to be executed in respect thereof, in favor of
the approval and adoption of the Merger Agreement (including any revised or
amended Merger Agreement among Parent, Merger Sub, and the Company approved by
the Company Board of Directors), and any action required in furtherance thereof
and (iii) vote, or execute consents in respect of, his Shares, or cause his
Shares to be voted, or consents to be executed in respect thereof, against (A)
any proposal or offer, whether in writing or otherwise, from any Third Party to
acquire beneficial ownership (as defined under Rule 13d-3 under the Securities
Exchange Act of 1934, as amended ("Exchange Act")) of all or more than 15% of
the assets of the Company, or 15% or more of any class of equity securities of
the Company pursuant to a merger, consolidation or other business combination,
sale of shares of stock, sale of assets, tender offer, exchange offer or similar
transaction or series of related transactions, which is structured to permit
such Third Party to acquire beneficial ownership of more than 15% of the assets
of the Company, or 15% or more of any class of equity securities in the Company
(each, a "Competing Transaction") or (B) any amendment of the Company
Certificate of Incorporation or Company By-laws or other proposal, action or
transaction involving the Company or any of the Company Stockholders, which
amendment or other proposal, action or transaction could reasonably be expected
to prevent or materially impede or delay the consummation of the Offer, the
Merger or the other transactions contemplated by the Merger Agreement or the
consummation of the transactions contemplated by this Agreement or to deprive
Parent of any material portion of the benefits anticipated by Parent to be
received from the consummation of the Offer, the Merger or the other
transactions contemplated by the Merger Agreement or this Agreement, or change
in any manner the voting rights of Company Common Shares (collectively,
"Frustrating Transactions") presented to the Company Stockholders (regardless of
any recommendation of the Company Board of Directors) or in respect of which
vote or consent of the Stockholder is requested or sought. Notwithstanding the
foregoing, with respect to clause (ii) above, the Stockholder shall abstain as
to the At Home Shares, and shall cause the At Home Shares not to be voted either
in favor of or against the Merger Agreement, unless and until the Stockholder
shall have obtained an At Home Bankruptcy Decision stating that At Home has no
claim to the At Home Shares or otherwise expressly permitting the Stockholder to
vote the At Home Shares.
(b) No Proxy Solicitation. The Stockholder shall not, and shall not
permit any Affiliate of the Stockholder to: (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to a Competing Transaction or Frustrating
Transaction or otherwise encourage or assist any party in taking or planning any
action that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Offer or the Merger in accordance with
the terms of the Merger Agreement, (ii) initiate a vote or action by written
consent in lieu of a Company Stockholders' Meeting, or (iii) become a member of
a "group" (as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) with respect to any voting securities of the Company, as
applicable, with respect to any matter or transaction described in Section 5(a).
(c) Irrevocable Proxy. As security for the Stockholder's
obligations under Section 5(a), the Stockholder hereby irrevocably constitutes
and appoints Parent as his attorney and
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proxy in accordance with the Delaware General Corporation Law ("DGCL"), with
full power of substitution and resubstitution, to cause the Stockholder's shares
to be counted as present at any Company Stockholders Meetings to vote his Shares
at any Company Stockholders' Meeting, however called, and execute consents in
respect of his shares as and to the extent provided in Section 5(a). The
Stockholder hereby revokes all other proxies and powers of attorney with respect
to his Shares that he, she or it may have heretofore appointed or granted, and
no subsequent proxy or power of attorney shall be granted.
(d) The Stockholder represents that any proxies heretofore given in
respect of the Shares, if any, are revocable.
(e) The Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Stockholder under this Agreement. The Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and,
except as set forth in this Section or in Section 10, is intended to be
irrevocable in accordance with the provisions of Section 212 of the DGCL. If for
any reason the proxy granted herein is not irrevocable, then the Stockholder
agrees to vote his Shares in accordance with Section 5(a) above as instructed by
Parent in writing. The parties agree that the foregoing is a voting agreement
created under Section 218 of the DGCL.
(f) This irrevocable proxy shall not be terminated by any act of the
Stockholder or by operation of Law, whether by the death or incapacity of the
Stockholder or by the occurrence of any other event or events (including the
termination of any trust or estate for which the Stockholder is acting as a
fiduciary or fiduciaries or the dissolution or liquidation of any corporation or
partnership or other entity). If between the execution hereof and the
Termination Date, the Stockholder should die or become incapacitated, or if any
trust or estate holding Company Common Shares should be terminated, or if any
corporation or partnership or other entity holding Company Common Shares should
be dissolved or liquidated, or if any other such similar event or events shall
occur before the Termination Date, certificates representing Company Common
Shares shall be delivered by or on behalf of the Stockholder in accordance with
the terms and conditions of the Merger Agreement and this Agreement, and actions
taken by Parent hereunder shall be as valid as if such death, incapacity,
termination, dissolution, liquidation or other similar event or events had not
occurred, regardless of whether or not Parent has received notice of such death,
incapacity, termination, dissolution, liquidation or other event.
(g) The Stockholder hereby waives any appraisal rights with respect
to the Shares or any other rights to dissent from the Merger (including, without
limitation, under the DGCL) that he has or may have with respect to the Merger
or the other transactions contemplated by the Merger Agreement.
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Section 6. Certain Events. In the event of any change in the Company
Common Shares by reason of a stock dividend, stock split, split-up,
recapitalization, reorganization, business combination, consolidation, exchange
of shares, or any similar transaction or other change in the capital structure
of the Company affecting the Company Common Shares or the acquisition of
additional Company Common Shares or other securities or rights of the Company by
the Stockholder (whether through the exercise of any options, warrants or other
rights to purchase Company Common Shares or otherwise): (a) the number of Shares
owned by the Stockholder shall be adjusted appropriately and (b) this Agreement
and the obligations hereunder shall attach to any additional Company Common
Shares or other securities or rights of the Company issued to or acquired by the
Stockholder.
Section 7. Competing Transactions; Non-Solicitation.
(a) Competing Transactions. The Stockholder will notify Parent and
Merger Sub immediately (and in any event within 24 hours) if any proposals are
received by, any information is requested from, or any negotiations or
discussions are sought to be initiated or continued with such Stockholder, the
Company or the Company's Representatives in each case in connection with any
Competing Transaction, indicating, in connection with such notice the name of
the person making such proposal, requesting such information or seeking to
initiate negotiations or discussions with the Stockholder, the Company or the
Company's Representatives that relate to a Competing Transaction and the
material terms and conditions of any proposals or offers.
(b) Non-Solicitation. The Stockholder agrees that it shall
immediately cease and cause to be terminated all existing discussions,
negotiations and communications with any persons with respect to any Competing
Transaction. The Stockholder shall not, nor shall he, she or it authorize or
permit any of his Representatives to (i) solicit, initiate, intentionally
encourage, participate in or otherwise facilitate, directly or indirectly, any
inquiries relating to, or the submission of, any Competing Transaction; or (ii)
directly or indirectly, solicit, initiate, intentionally encourage, participate
in or otherwise facilitate any discussions or negotiations regarding, or furnish
to any Third Party any information or data with respect to the Company or the
Stockholder or provide access to the properties, offices, books, records,
officers, directors or employees of the Company or the Stockholder, or take any
other action to knowingly, directly or indirectly, solicit, initiate,
intentionally encourage, participate in or otherwise facilitate the making of
any proposal that constitutes, or may reasonably be expected to lead to, any
Competing Transaction. Any violation of the foregoing restrictions by the
Stockholder or his Representatives, whether or not the Stockholder or any such
Representative is so authorized by the Company or the Stockholder and whether or
not the Stockholder or any such Representative is purporting to act on behalf of
the Company, the Stockholder or otherwise, shall be deemed to be a breach of
this Agreement by the Stockholder. It is understood that this Section 7 limits
the rights of the Stockholder only to the extent that the Stockholder is acting
in the Stockholder's capacity as a Stockholder. Nothing herein shall be
construed as preventing a Stockholder who is an officer or director of the
Company from fulfilling the obligations of such office.
Section 8. Further Assurances. The Stockholder shall, upon request of
Parent or Merger Sub, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent or Merger Sub to be
necessary or desirable to carry out the provisions hereof and to vest in Parent
the power to vote the Shares as contemplated by Section 5.
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Section 9. At Home Bankruptcy Decision.
(a) The Stockholder shall use commercially reasonable efforts to
obtain the At Home Bankruptcy Decision as soon as practicable after the date of
this Agreement.
(b) Notwithstanding anything to the contrary in the Merger
Agreement, unless the Stockholder shall have obtained prior to the Effective
Time an At Home Bankruptcy Decision stating that At Home has no claim to the At
Home Shares or otherwise expressly permitting the release of the Merger
Consideration to the Stockholder, at the Effective Time, the Merger
Consideration into which the At Home Shares are converted in accordance with the
Merger Agreement shall be deposited in escrow (which shall be interest bearing
as to the Cash Portion) pursuant to an escrow agreement in a form mutually
acceptable to Parent and the Stockholder, with the Exchange Agent or another
third-party selected by Parent and reasonably acceptable to the Stockholder
acting as escrow agent. At such time as an At Home Bankruptcy Decision is
obtained, the Escrow shall be released and distributed in accordance with such
At Home Bankruptcy Decision.
Section 10. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate immediately upon the earlier of (a) the
Effective Time or (b) the termination of the Merger Agreement (the "Termination
Date"); provided, however, that Section 9 and Section 11 shall survive any
termination of this Agreement.
Section 11. Expenses. All fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs and expenses.
Section 12. Public Announcements. Each of the Stockholder, Parent and
Merger Sub agrees that it will not issue any press release or otherwise make any
public statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure may be
made without obtaining such prior consent (a) if (i) the disclosure is required
by Law or is required by any Governmental Entity, including Nasdaq and any other
national securities exchange, trading market or inter-dealer quotation system on
which the Shares trade and (ii) the party making such disclosure has first used
its best efforts to consult with the other parties about the form and substance
of such disclosure, or (b) by Parent and Merger Sub in accordance with Section
6.5 of the Merger Agreement.
Section 13. Miscellaneous.
(a) Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 13(a)
shall not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
(b) Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing (and made orally if so
required pursuant to any section of the Agreement) and shall be deemed given if
delivered personally, sent by overnight courier
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(providing proof of delivery and confirmation of transmission by telephonic
notice to the applicable contact person) to the parties or sent by fax
(providing proof of transmission and confirmation of transmission by fax to the
applicable contact person) at the following addresses or fax numbers (or at such
other address or fax number for a party as shall be specified by like notice):
If to the Stockholder, at the address and to the facsimile number
set forth opposite the name of such Stockholder on the signature page hereto:
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
and
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to Parent or Merger Sub, to:
iVillage Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No: 000-000-0000
Fax No.: (000) 000-0000
(c) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the
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meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof," "herein,"
"hereby" refer to this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(together with the Merger Agreement and any other documents and instruments
referred to herein and therein) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter of this Agreement, and there are no
other or additional agreements between Parent and Merger Sub or any of their
respective affiliates, on the one hand, and any Stockholder or their respective
affiliates, on the other hand, relating to, arising from or otherwise entered
into in connection with this Agreement and the transactions contemplated hereby.
This Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of Law or otherwise by any of the parties without
the prior written consent of the other parties, except that Parent and Merger
Sub may transfer to their Affiliates without the consent of the Company;
provided, however, that Parent continues to be liable for the performance of all
of the obligations and payments to be made by the Parent Parties and such
assignees hereunder if and only to the extent that such assignees do not perform
such obligations. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
(h) Enforcement. 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 any court of the United States,
this being in addition to any other remedy to which they are entitled at Law or
in equity.
(i) Jurisdiction; Venue. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS
OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW YORK SOLELY IN
RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS
AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND IN RESPECT OF
THE
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TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS
A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR
ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR
THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE
IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS
AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE
PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A NEW YORK STATE OR FEDERAL
COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER
THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE
THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING IN THE MANNER PROVIDED IN SECTION 12(b) OR IN SUCH OTHER MANNER AS
MAY BE PERMITTED BY APPLICABLE LAWS, SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF.
(j) Waiver of Trial by Jury. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(j).
(k) Amendment. No amendment, modification or waiver in respect of
this Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
(l) Representation by Counsel; Construction. Each of the parties to
this Agreement was represented by its own counsel in connection with this
Agreement and had the opportunity to discuss with such counsel the terms hereof.
This Agreement has been drafted with the joint participation of each of the
parties hereto and shall be construed to be neither against nor in favor of any
party hereto, but rather in accordance with the fair meaning hereof.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused
this Agreement to be duly executed and delivered as of the date first written
above.
iVILLAGE INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Executive Vice President-
Operations & Business Affairs
--------------------------------
XXXXXX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: President
--------------------------------
STOCKHOLDER
/s/ Xxx X. Xxxx
-------------------------------------------
Name: Xxx X. Xxxx
Address:
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Fax No.:
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11
Schedule 1
Common Stock Options
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2,166,334 280,000
12
