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FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 4, 1998
AMONG
iVILLAGE INC.
AND
EACH OF THE
SIGNATORIES HERETO
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FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT dated
as of December 4, 1998, among
iVILLAGE INC., a Delaware
corporation (the "Company"), each
of the signatories hereto
identified as an Investor on the
signature page of such signatory
(the "Investors") and each of the
parties identified on Annex A
hereto (the "Founders").
The Investors and the Founders currently own, or are acquiring
on the date hereof, (i) securities of the Company that are directly or
indirectly convertible into or exercisable for shares of Common Stock, $.0005
par value (the "Common Stock"), or (ii) Common Stock of the Company. The parties
deem it to be in their best interests to amend and restate the Third Amended and
Restated Registration Rights Agreement dated as of February 24, 1998 (the "Old
Registration Rights Agreement"), among the Company, the Investors and Founders
identified therein and to set forth herein their rights and obligations in
connection with public offerings and sales of shares of Common Stock.
Accordingly, the parties agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "AOL Warrants" shall mean stock subscription warrants
dated September 19, 1995 and May 6, 1996 issued by the Company to America
Online, Inc. ("AOL") to purchase shares of Series B Preferred Stock of the
Company.
(b) "Bear ▇▇▇▇▇▇▇ Warrants" shall mean stock subscription
warrants dated May __, 1997 issued by the Company to Bear ▇▇▇▇▇▇▇ & Co. Inc.
("Bear ▇▇▇▇▇▇▇") to purchase shares of Common Stock.
(c) "Commission" means the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
(d) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect from time to time.
(e) "IPO" means an underwritten public offering of Common
Stock of the Company registered pursuant to the Securities Act.
(f) "1997 Warrants" means the stock subscription warrants
dated February 27, 1997, issued by the Company to AOL, Tribune Company
("Tribune"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII and KPCB Information Sciences
Zaibatsu Fund II and the stock
subscription warrants dated April 30, 1997, issued by the Company to AOL and
Tribune to purchase shares of Series C Preferred Stock of Company.
(g) "Other Shares" means at any time those shares of Common
Stock which do not constitute Primary Shares or Registrable Shares.
(h) "Preferred Stock" means shares of Series A Preferred
Stock, $.0005 par value, Series B Preferred Stock, $.0005 par value, Series B-1
Preferred Stock, $.0005 par value, Series C Preferred ▇▇▇▇▇, ▇.▇▇▇▇ par value,
Series D Preferred Stock, $.0005 par value and Series E Preferred Stock, $.0005
par value of the Company.
(i) "Primary Shares" means at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the Company in
its treasury.
(j) "Registrable Bear ▇▇▇▇▇▇▇ Shares" means at any time with
respect to Bear ▇▇▇▇▇▇▇, the shares of Common Stock issued or issuable upon
exercise of the Bear ▇▇▇▇▇▇▇ Warrants and any shares or other securities
received in respect thereof, which are held by Bear ▇▇▇▇▇▇▇ and which have not
previously been sold to the public pursuant to a registration statement under
the Securities Act or pursuant to Rule 144.
(k) "Registrable Shares" means at any time, with respect to
any Investor, the shares of Common Stock held (or to be held upon conversion of
any Restricted Shares) by such Investor that constitute Restricted Shares.
(l) "Registrable Founder Shares" means at any time, with
respect to any Founder, the shares of Common Stock held by such Founder that
constitute Restricted Founder Shares.
(m) "Registration Date" means the date upon which the
registration statement pursuant to which the Company shall have initially
registered shares of Common Stock under the Securities Act for sale to the
public shall have been declared effective.
(n) "Restricted Founder Shares" means at any time, with
respect to any Founder, the shares of Common Stock held by him or her on the
date hereof, and any shares or other securities received in respect thereof,
which are held by such Founder and which have not previously been sold to the
public pursuant to a registration statement under the Securities Act or pursuant
to Rule 144.
(o) "Restricted Shares" means at any time, with respect to any
Investor, the shares of Preferred Stock and/or ▇▇▇▇▇ Common Stock held by it on
the date hereof, issuable upon exercise or exchange of the AOL Warrants and the
1997 Warrants or issuable pursuant to the Letter Agreement dated November 11,
1998, between the Company and National Broadcasting Company, Inc. (the "NBC
Letter Agreement"), any shares of Common Stock issued or issuable upon
conversion thereof, and any shares or other securities received in respect
thereof, which are held by such Investor and which have not previously been sold
to the public pursuant to a registration statement under the Securities Act or
pursuant to Rule 144.
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(p) "Rule 144" means Rule 144 promulgated under the Securities
Act or any successor rule thereto or any complementary rule thereto.
(q) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time.
(r) "Stockholder" means any Investor or Founder and any person
or entity that acquires Restricted Shares from such Investor or Restricted
Founder Shares from such Founder in accordance with Section 16.
(s) "▇▇▇▇▇ Common Stock" means shares of Common Stock sold to
▇▇▇▇▇ Healthcare Corporation pursuant to the terms of the Common Stock Purchase
Agreement dated as of February 24, 1998 among the Company and the Investors
identified therein and any Additional Shares (as such term is defined therein)
issued thereunder.
(t) "Transfer" means any disposition of any Restricted Shares
or Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares or of any
interest therein which constitutes a sale within the meaning of the Securities
Act, other than any disposition pursuant to an effective registration statement
under the Securities Act and complying with all applicable state securities and
"blue sky" laws.
SECTION 2. Required Registration.
If the Company shall be requested by Investors who or which
hold Restricted Shares (based upon Common Stock equivalents) constituting at
least 40% of the then-outstanding Restricted Shares held by all Investors, to
effect the registration under the Securities Act of Registrable Shares in
accordance with this Section (the "Investor Demand"), then the Company shall
promptly give written notice of such proposed registration to all holders of
Restricted Shares and to Bear ▇▇▇▇▇▇▇ and shall offer to include in such
proposed registration any Registrable Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares
requested to be included in such proposed registration by such holders who
respond in writing to the Company's notice within 30 days after delivery of such
notice (which response shall specify the number of Registrable Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares, as the case may be, proposed to be included in
such registration). If the Company shall at any time following six months after
the consummation of an IPO be requested by the National Broadcasting Company,
Inc. for itself and, to the extent applicable, its affiliates ("NBC") (and not
in conjunction with the other Investors) in writing (which request shall specify
the number of Registrable Shares held by NBC proposed to be included in such
registration), to effect the registration under the Securities Act of
Registrable Shares held by NBC in accordance with this Section (the "NBC
Additional Demand"), then the Company shall include in such proposed
registration any Registrable Shares held by NBC requested to be included in such
proposed registration. The Company shall promptly use its best efforts to effect
such registration under the Securities Act of the Registrable Shares which the
Company has been so requested to register; provided, however, that the Company
shall not be obligated to effect any registration under the Securities Act
except in accordance with the following provisions:
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(a) the Company shall not be obligated to file (i) more than
four registration statements initiated pursuant to this Section that constitute
Investor Demands which become effective or which are rescinded by the Investors
without reimbursement referred to in the last paragraph of this Section, (ii)
more than one registration statement initiated pursuant to this Section that
constitutes an NBC Additional Demand which becomes effective or which is
rescinded by NBC without reimbursement referred to in the last paragraph of this
Section, or (iii) any registration statement during any period in which any
other registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to which
Primary Shares are to be or were sold has been filed and not withdrawn or has
been declared effective within the prior 180 days;
(b) the Company shall not be obligated to effect any
registration unless the anticipated aggregate offering proceeds, net of
underwriting discounts and commissions, are expected to exceed $5,000,000;
(c) the Company may delay the filing or effectiveness of any
registration statement for a period not to exceed 120 days after the date of a
request for registration pursuant to this Section 2 if (i) at the time of such
request the Company is engaged, or has fixed plans to engage within 60 days of
the time of such request, in a firm commitment underwritten public offering of
Primary Shares in which the holders of Restricted Shares may include Registrable
Shares pursuant to Section 3 or (ii) the Company shall furnish to the Investors
requesting such registration a certificate signed by the President of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement (provided that the
Company may not utilize the right set forth in this clause (c) more than once in
any 12-month period); and
(d) with respect to any registration pursuant to this Section,
the Company may include in such registration any Primary Shares, Registrable
Bear ▇▇▇▇▇▇▇ Shares or Other Shares; provided, however, that if the managing
underwriter advises the Company that the inclusion of all Registrable Shares,
Registrable Bear ▇▇▇▇▇▇▇ Shares, Primary Shares and Other Shares proposed to be
included in such registration would interfere with the successful marketing
(including pricing) of all such securities, then (A) in the case of any Investor
Demand, the number of Registrable Shares, Registrable Bear ▇▇▇▇▇▇▇ Shares,
Primary Shares and Other Shares proposed to be included in such registration
shall be included in the following order:
(i) first, no less than twenty-five (25%) percent of the
Registrable Shares held by Investors, pro rata based upon
the number of Restricted Shares (based upon Common Stock
equivalents) owned by each Investor at the time of such
registration;
(ii) second, the Registrable Bear ▇▇▇▇▇▇▇ Shares;
(iii) third, the Primary Shares; and
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(iv) fourth, the Other Shares;
or (B) in the case of the NBC Additional Demand, the number of Registrable
Shares, Registrable Bear ▇▇▇▇▇▇▇ Shares, Primary Shares and Other Shares
proposed to be included in such registration shall be included in the following
order:
(i) first, the Registrable Shares held by NBC;
(ii) second, any Registrable Shares held by Investors
other than NBC, pro rata based upon the number of
Restricted Shares (based upon Common Stock equivalents)
owned by each Investor at the time of such registration;
and
(iii) third, as determined by the Company in its sole and
absolute discretion.
A requested registration under this Section may be rescinded
by written notice to the Company by the Investors initiating such request (in
the case of an Investor Demand) or by NBC (in the case of an NBC Additional
Demand); provided, however, that such rescinded registration shall not count as
a registration statement initiated pursuant to this Section for purposes of
paragraph (a) above if the Investors initiating such request (in the case of an
Investor Demand) or NBC (in the case of the NBC Additional Demand) shall have
reimbursed the Company for all out-of-pocket expenses incurred by the Company in
connection with such rescinded registration. The Company shall select any firm
of underwriters in connection with a registration under this Section 2, which
firm of underwriters shall be reasonably acceptable to the Investors (in the
case of an Investor Demand) or NBC (in the case of an NBC Additional Demand)
including Restricted Shares in a registration under this Section; provided,
however, that at such time as General Electric Pension Trust shall include
Restricted Shares in a registration under this Section, General Electric Pension
Trust shall have the right to approve or disapprove the use of a firm of
underwriters in which it has a 5% or more direct or indirect interest.
SECTION 3. Piggyback Registration.
(a) If the Company at any time proposes for any reason to
register Primary Shares, Registrable Shares (other than pursuant to Section 2
hereof) or Other Shares under the Securities Act (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto or other
than in connection with an exchange offer or offering solely to, the Company's
stockholders), it shall promptly give written notice to each Stockholder and to
Bear ▇▇▇▇▇▇▇ of its intention so to register the Primary Shares, Registrable
Shares or Other Shares and, upon the written request, given within 30 days after
delivery of any such notice by the Company, of any Stockholder and/or of Bear
▇▇▇▇▇▇▇ to include in such registration Registrable Shares, Registrable Founder
Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares, as the case may be (which request
shall specify the number of Registrable Shares, Registrable Founder Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares, as the case may be, proposed to be included in
such registration), the Company shall use its best efforts to cause all such
Registrable Shares, Registrable Founder Shares, or Registrable Bear ▇▇▇▇▇▇▇
Shares as the case may be, to be included in such registration on the same terms
and conditions as the securities otherwise being
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sold in such registration; provided, however, that if the managing underwriter
advises the Company that the inclusion of all Registrable Shares, Registrable
Founder Shares, Registrable Bear ▇▇▇▇▇▇▇ Shares and/or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of the Primary Shares proposed to be registered by the
Company, then the number of Primary Shares, Registrable Shares, Registrable
Founder Shares, Registrable Bear ▇▇▇▇▇▇▇ Shares and Other Shares, proposed to be
included in such registration shall be included in the following order:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares held by Investors and
the Registrable Bear ▇▇▇▇▇▇▇ Shares, pro rata based upon
the number of Restricted Shares (based upon Common Stock
equivalents) owned by each Investor and the number of
Registrable Bear ▇▇▇▇▇▇▇ Shares then held by or issuable
to Bear ▇▇▇▇▇▇▇ at the time of such registration;
(iii) third, Registrable Founder Shares pro rata based
upon the number of shares of Common Stock then owned by
each Founder at the time of such registration; and
(iv) the Other Shares (other than Registrable Founder
Shares).
(b) Each Stockholder who has requested that Registrable Shares
or Registrable Founder Shares, as the case may be, and Bear ▇▇▇▇▇▇▇ if it has
requested that Registrable Bear ▇▇▇▇▇▇▇ Shares, be included in a registration
pursuant to Section 3(a) hereof, shall be bound by the Company's choice of
managing underwriter stated in the Company's notice; provided, however, at such
time as General Electric Pension Trust shall include Restricted Shares in a
registration under this Section, General Electric Pension Trust shall have the
right to approve or disapprove the use of a firm of underwriters in which it has
a 5% or more direct or indirect interest, and to execute an underwriting
agreement with such underwriter that is (i) reasonably satisfactory to such
Stockholder and (ii) in customary form.
SECTION 4. Registrations on Form S-3.
Anything contained in Section 2 to the contrary
notwithstanding, at such time as the Company shall have qualified for the use of
Form S-3 promulgated under the Securities Act or any successor form thereto, the
Investors shall have the right to request in writing an unlimited number of
registrations on Form S-3 or such successor form of Registrable Shares, which
request or requests shall (i) specify the number of Registrable Shares intended
to be sold or disposed of, (ii) state the intended method of disposition of such
Registrable Shares, and (iii) relate to Registrable Shares having an anticipated
aggregate offering price of at least $500,000; provided, however, the Investors
may only make one such request in any 6-month period. A requested registration
on Form S-3 or any such successor form in compliance with this Section shall not
count as a registration statement demanded pursuant to Section 2, but shall
otherwise be treated as a registration initiated pursuant to and shall, except
as otherwise expressly provided in this Section, be subject to Section 2.
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SECTION 5. Holdback Agreement.
(a) In connection with the initial public offering of shares
of Common Stock of the Company registered pursuant to the Securities Act, if the
managing underwriter for such registration shall so request, the Stockholders
and Bear ▇▇▇▇▇▇▇ shall not (and will not permit any other person, to the extent
allowable by law, who or which holds of record any of the Stockholders' or Bear
▇▇▇▇▇▇▇' Restricted Shares, Founder Restricted Shares or Registrable Bear
▇▇▇▇▇▇▇ Shares, to), with respect to the Restricted Shares, Founder Restricted
Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares so held, directly or indirectly, sell,
offer to sell, contract to sell, grant any option or warrant for the sale or
purchase of, or otherwise dispose of, any of such shares (other than those
included in such registration), or any security convertible or exchangeable into
or exercisable therefor, whether now owned or hereafter acquired, owned by the
Stockholders or Bear ▇▇▇▇▇▇▇ or with respect to which the Stockholders or Bear
▇▇▇▇▇▇▇ have the power of disposition or beneficial ownership (as used in this
Section 5, collectively, the "Subject Shares") for a period of 180 days after
the effective date of the registration statement pursuant to which such public
offering shall be made. Notwithstanding anything to the contrary contained
elsewhere herein, the transfer restrictions contained in this Section 5 shall
not apply to shares of Common Stock purchased by the Stockholders in the initial
public offering or in market transactions after the initial public offering. Any
subsequent resale of such shares of Common Stock so acquired shall not
constitute a breach of this Section 5.
(b) The foregoing restriction is expressly agreed by the
parties hereto to preclude the Stockholders and Bear ▇▇▇▇▇▇▇ from engaging in
any hedging or other transaction which is designed to or reasonably expected to
lead to or result in a sale or disposition of the Subject Shares even if such
Subject Shares would be disposed of by someone other than the Stockholders and
Bear ▇▇▇▇▇▇▇. Such prohibited hedging or other transactions would include,
without limitation, any short sale or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any of
the Subject Shares or with respect to any security that includes, relates to, or
derives any significant part of its value from the Subject Shares.
(c) Notwithstanding the foregoing, the provisions of this
Section 5 shall not prohibit the Stockholders and Bear ▇▇▇▇▇▇▇ from transferring
the Subject Shares (i) as a bona fide gift or gifts, provided that the donee or
donees thereof agree to be bound by the restrictions set forth herein, (ii) to
any trust for the direct or indirect benefit of any Stockholder or Bear ▇▇▇▇▇▇▇
or the immediate family of such Stockholder or (iii) any affiliate of any
Stockholder, provided that the trustee of the trust or any such affiliate
transferee agrees to be bound by the restrictions set forth herein, and provided
further (x) that any such transfer shall not involve a disposition for value and
(y) in the case of an affiliate, such affiliate continues during such restricted
period to be an affiliate, or (iv) with the prior written consent of the
managing underwriter of such public offering on behalf of the underwriters for
such public offering. For purposes of this Section 5, "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
(d) The Stockholders and Bear ▇▇▇▇▇▇▇ also agree and consent
to the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Subject Shares except in compliance with
the foregoing restrictions.
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(e) The foregoing restrictions in this Section 5 shall be
binding on the Stockholders and Bear ▇▇▇▇▇▇▇ only if, and to the extent, the
executive officers of the Company owning Common Stock shall be bound by such
restrictions.
SECTION 6. Preparation and Filing.
If and whenever the Company is under an obligation pursuant to
the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares, Registrable Founder Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares, the Company shall, as expeditiously as
practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares, Registrable Founder Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) to become and remain
effective for a period of 180 days or until all of such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) have been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, Registrable
Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), a
prospectus relating thereto or any amendments or supplements relating to such a
registration statement or prospectus, to one counsel selected by the holders of
a majority of such Registrable Shares (the "Selling Stockholders' Counsel") or,
with respect to the NBC Additional Demand, one counsel selected by NBC (the "NBC
Counsel"), copies of all such documents proposed to be filed (it being
understood that such five-business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to such counsel in advance of the proposed filing by a
period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least a period of 180 days or until all of such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) have been disposed of (if earlier) and to comply with the provisions of
the Securities Act with respect to the sale or other disposition of such
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be);
(d) notify in writing the Selling Stockholders' Counsel or NBC
Counsel (as the case may be) promptly (i) of the receipt by the Company of any
notification with respect to any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement thereto or
any request by the Commission for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the receipt by the Company
of any notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or prospectus
or any amendment or supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of such
Registrable Shares, Registrable Founder Shares and/or Registrable
8
Bear ▇▇▇▇▇▇▇ Shares (as the case may be) for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be) under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Shares, Registrable Founder Shares
and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) reasonably requests
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller of Registrable Shares, Registrable Founder
Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) to consummate
the disposition in such jurisdictions of the Registrable Shares, Registrable
Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) owned
by such seller; provided, however, that the Company will not be required to
qualify generally to do business, subject itself to general taxation or consent
to general service of process in any jurisdiction where it would not otherwise
be required so to do but for this paragraph (e);
(f) furnish to each seller of such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) such number of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such seller of Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) may reasonably request in order to facilitate the public sale or other
disposition of such Registrable Shares and/or Registrable Founder Shares (as the
case may be);
(g) use its best efforts to cause such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) to be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the seller or sellers thereof to consummate the disposition of
such Registrable Shares, Registrable Founder Shares and/or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be);
(h) notify on a timely basis each seller of such Registrable
Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as
the case may be) at any time when a prospectus relating to such Registrable
Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as
the case may be) is required to be delivered under the Securities Act within the
appropriate period mentioned in paragraph (a) of this Section, of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing and, at the request of such seller, prepare and furnish to such seller
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
9
(i) make available for inspection by any seller of such
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be), any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information (together with the Records, the "Information") reasonably
requested by any such Inspector in connection with such registration statement.
Any of the Information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, shall
not be disclosed by the Inspectors unless (i) the disclosure of such Information
is necessary to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii) such
Information has been made generally available to the public. The seller of
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be) agrees that it will, upon learning that disclosure
of such Information is sought in a court of competent jurisdiction, give notice
to the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by comfort
letters;
(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be);
(m) issue to any underwriter to which any seller of
Registrable Shares, Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as
the case may be) may sell shares in such offering certificates evidencing such
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be);
(n) list such Registrable Shares, Registrable Founder Shares
and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) on any national
securities exchange on which any shares of the Common Stock are listed or, if
the Common Stock is not listed on a national securities exchange, use its best
efforts to qualify such Registrable Shares, Registrable Founder Shares and/or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) for inclusion on the
automated quotation system of the National Association of Securities Dealers,
Inc. (the "NASD") or such national securities exchange as the holders of a
majority of such Registrable Shares, Registrable Founder Shares and/or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) shall request;
10
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months beginning within three
months after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares, Registrable Founder Shares
and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) contemplated hereby.
SECTION 7. Expenses.
All expenses incurred by the Company in complying with Section
6, including, without limitation, all registration and filing fees (including
all expenses incident to filing with the NASD), fees and expenses of complying
with securities and blue sky laws, printing expenses, and fees and expenses of
the Company's counsel and accountants, and the fees and expenses of the Selling
Stockholders' Counsel or NBC Counsel (as the case may be) shall be paid by the
Company; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Shares, Registrable Founder Shares
and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), and all fees and
expenses of any special or interim audit for any registration initiated by
Stockholders or Bear ▇▇▇▇▇▇▇ pursuant to Section 2 that is not otherwise
required under the Securities Act in connection with such registration, shall be
borne by the seller or sellers thereof, in proportion to the number of
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be) sold by such seller or sellers.
SECTION 8. Indemnification.
In connection with any registration of any Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the seller of such Registrable Shares, Registrable
Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), its
partners, members in the case of a limited liability company, beneficiaries in
the case of a trust, officers and directors, each underwriter, broker or any
other person acting on behalf of such seller and each other person, if any, who
controls any of the foregoing persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, (or
actions in respect thereof) to which any of the foregoing persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) were registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, Registrable Founder Shares and/or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or, with
11
respect to any prospectus, necessary to make the statements therein in light of
the circumstances under which they were made not misleading, or any violation by
the Company of the Securities Act or state securities or blue sky laws
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration or qualification under such state
securities or blue sky laws; and shall reimburse such seller, such officer or
director, such underwriter, such broker or such other person acting on behalf of
such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares, Registrable Founder Shares and/or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be) in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller or underwriter that states that it is specifically for use in the
preparation thereof.
In connection with any registration of Registrable Shares,
Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case
may be) under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, Registrable Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇
Shares (as the case may be) shall indemnify and hold harmless (in the same
manner and to the same extent as set forth in the preceding paragraph of this
Section) the Company, each director of the Company, each officer of the Company
who shall sign such registration statement, each underwriter, broker or other
person acting on behalf of such seller, each person who controls any of the
foregoing persons within the meaning of the Securities Act and each other seller
of Registrable Shares, Registrable Founder Shares and/or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be) under such registration statement with
respect to any statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, Registrable
Founder Shares and/or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Company or such underwriter through an
instrument duly executed by such seller or underwriter that states that it is
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; provided, however, that the obligation to indemnify will be several,
not joint and several, among such sellers of Registrable Shares, Registrable
Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be), and the
maximum amount of liability in respect of such indemnification shall be in
proportion to and limited to, in the case of each seller of Registrable Shares,
Registrable Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may
be), an amount equal to the net proceeds actually received by such seller from
the sale of Registrable Shares, Registrable Founder Shares or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be) effected pursuant to such registration.
The indemnification required by this Section 8 will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses
12
incurred, subject to prompt refund in the event any such payments are determined
not to have been due and owing hereunder.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section.
The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of such
indemnified party and will survive the transfer of securities.
If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage or
liability as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Registrable Shares, Registrable Founder Shares
and Registrable Bear ▇▇▇▇▇▇▇ Shares agree that it would not be just and
equitable if contributions pursuant to this paragraph were determined by pro
rata allocation or by any other method of allocation which did not take into
account the equitable considerations referred to herein. The amount paid or
payable to an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to above shall be deemed to include, subject to
the limitation set forth in the fourth paragraph of
13
this Section 8, any legal or other expenses reasonably incurred in connection
with investigating or defending the same. Notwithstanding the foregoing, in no
event shall the amount contributed by a seller of Registrable Shares,
Registrable Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares exceed the
aggregate net offering proceeds received by such seller from the sale of such
seller's Registrable Shares, Registrable Founder Shares or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be).
SECTION 9. Underwriting Agreement.
Notwithstanding the provisions of Sections 5, 6, 7 and 8, to
the extent that the Company and the Stockholders selling Registrable Shares,
Registrable Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may
be) in a proposed registration shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more issues
addressed in such Sections, the provisions contained in such Sections addressing
such issue or issues shall be superseded with respect to such registration by
such other agreement.
SECTION 10. Information by Holder.
Each Stockholder or Bear ▇▇▇▇▇▇▇ (as the case may be) selling
Registrable Shares, Registrable Founder Shares Registrable or Bear ▇▇▇▇▇▇▇
Shares (as the case may be) in a proposed registration shall furnish to the
Company such written information regarding such holder and the distribution
proposed by such Stockholder or Bear ▇▇▇▇▇▇▇ (as the case may be) as the Company
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 11. Exchange Act Compliance.
From and after the Registration Date or such earlier date as a
registration statement filed by the Company pursuant to the Exchange Act
relating to any class of the Company's securities shall have become effective,
the Company shall comply with all of the reporting requirements of the Exchange
Act and with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Company shall cooperate with each Stockholder or Bear
▇▇▇▇▇▇▇ (as the case may be) in supplying such information as may be necessary
for such Stockholder or Bear ▇▇▇▇▇▇▇ (as the case may be) to complete and file
any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
SECTION 12. No Conflict of Rights.
The Company represents and warrants to the Stockholders that
the registration rights granted to the Stockholders and Bear ▇▇▇▇▇▇▇ hereby do
not conflict with any other registration rights granted by the Company. The
Company shall not, after the date hereof, grant any registration rights which
conflict with or impair the registration rights granted hereby.
SECTION 13. Restriction on Transfer.
(a) The Restricted Shares, the Restricted Founder Shares and
Registrable Bear ▇▇▇▇▇▇▇ Shares shall not be transferable except upon the
conditions specified in
14
this Section, which conditions are intended to insure compliance with the
provisions of the Securities Act.
(b) Each certificate representing Restricted Shares,
Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may
be) shall (unless otherwise permitted by the provisions of paragraph (c) and (d)
below) be stamped or otherwise imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT. ADDITIONALLY, THE TRANSFER
OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN
SECTION 13 OF THE FOURTH AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT DATED AS OF ___________, 1998, AMONG i
VILLAGE INC., AND THE OTHER PARTIES THERETO, AND NO TRANSFER
OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF
CERTAIN OF SUCH CONDITIONS, i VILLAGE INC., HAS AGREED TO
DELIVER TO THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING
THIS LEGEND, FOR THE SECURITIES REPRESENTED HEREBY REGISTERED
IN THE NAME OF SUCH HOLDER. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF i VILLAGE INC."
(c) The holder of any Restricted Shares, Restricted Founder
Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares by acceptance thereof agrees, prior to
any Transfer of any Restricted Shares or Restricted Founder Shares (as the case
may be), to give written notice to the Company of such holder's intention to
effect such Transfer and to comply in all other respects with the provisions of
this Section. Each such notice shall describe the manner and circumstances of
the proposed Transfer. Upon request by the Company, the holder delivering such
notice shall deliver a written opinion, addressed to the Company, of counsel for
the holder of Restricted Shares, Restricted Founder Shares or Registrable Bear
▇▇▇▇▇▇▇ Shares (as the case may be), stating that in the opinion of such counsel
(which opinion and counsel shall be reasonably satisfactory to the Company) such
proposed Transfer does not involve a transaction requiring registration or
qualification of such Restricted Shares, Restricted Founder Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) under the Securities Act or
the securities or "blue sky" laws of any state of the United States provided,
however, that no such opinion of counsel shall be necessary for a Transfer by an
Investor which is a partnership to a partner of such Investor, or a retired
partner of such holder who retires after the date hereof, or the estate of
15
any such partner or retired partner, or in the case of Rho Management Trust I,
to the beneficial owners of such trust, if in each case the transferee agrees in
writing to be subject to the terms of this Section 13 to the same extent as if
such transferee were originally a signatory to this Agreement. Such holder of
Restricted Shares, Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares
(as the case may be) shall be entitled to Transfer such Restricted Shares,
Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may
be) in accordance with the terms of the notice delivered to the Company, if the
Company does not reasonably object to such Transfer and request such opinion
within three business days after delivery of such notice, or, if it requests
such opinion, does not reasonably object to such Transfer within five days after
delivery of such opinion. Each certificate or other instrument evidencing the
securities issued upon the Transfer of any Restricted Shares, Restricted Founder
Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) (and each
certificate or other instrument evidencing any untransferred balance of such
Registered Shares, Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares)
shall bear the legend set forth in paragraph (b) above unless (i) in such
opinion of counsel registration of any future Transfer is not required by the
applicable provisions of the Securities Act or (ii) the Company shall have
waived the requirement of such legends.
(d) Notwithstanding the foregoing provisions of this Section,
the restrictions imposed by this Section upon the transferability of any
Restricted Shares, Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares shall cease
and terminate when (i) any such Restricted Shares, Restricted Founder Shares or
Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) (as the case may be) are
sold or otherwise disposed of (A) pursuant to an effective registration
statement under the Securities Act or (B) in a transaction contemplated by
paragraph (c) above which does not require that the Restricted Shares,
Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may
be) so transferred bear the legend set forth in paragraph (b) hereof, or (ii)
the holder of such Restricted Shares, Restricted Founder Shares or Registrable
Bear ▇▇▇▇▇▇▇ Shares has met the requirements for Transfer of such Restricted
Shares, Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the
case may be) under Rule 144(k) under the Securities Act. Whenever the
restrictions imposed by this Section shall terminate, the holder of any
Restricted Shares, Restricted Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares
(as the case may be) as to which such restrictions have terminated shall be
entitled to receive from the Company, without expense, a new certificate not
bearing the restrictive legend set forth in paragraph (b) above and not
containing any other reference to the restrictions imposed by this Section.
SECTION 14. Termination.
This Agreement shall terminate and be of no further force or
effect when there shall not be any Restricted Shares, Restricted Founder Shares
or Registrable Bear ▇▇▇▇▇▇▇ Shares, provided that in no event shall this
Agreement terminate with respect to NBC prior to the issuance and delivery of
all shares of Preferred Stock and/or Common Stock pursuant to the NBC Letter
Agreement unless the NBC Letter Agreement terminates prior thereto and no shares
of Preferred Stock and/or Common Stock have been issued to NBC (in which case
this Agreement shall terminate as to NBC), provided further that the rights of
the Stockholders and Bear ▇▇▇▇▇▇▇ and obligations of the Corporation under
Sections 2, 3 and 4 hereof shall earlier terminate and be of no further force or
effect at such earlier time as to any Stockholder or Bear ▇▇▇▇▇▇▇ as the
provisions of Rule 144(k) are applicable to the Restricted Shares, Restricted
16
Founder Shares or Registrable Bear ▇▇▇▇▇▇▇ Shares (as the case may be) then held
by such Stockholder (or, with respect to NBC, to the Restricted Shares issuable
to NBC pursuant to the NBC Letter Agreement.)
SECTION 15. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the
Company, the Stockholders and Bear ▇▇▇▇▇▇▇ and, subject to Section 16, their
respective successors, permitted assigns, heirs and legal representatives (as
the case may be).
SECTION 16. Assignment.
This Agreement and the rights and obligations of the parties
hereunder shall be assignable by the parties hereto and their respective
successors and assigns, except that (i) Intel Corporation and/or NBC may assign
its rights and obligations hereunder only in connection with a sale or transfer
of Restricted Shares at any time, and (ii) any other Stockholder may assign its
rights and obligations hereunder only in connection with a sale or transfer of
Restricted Shares or Restricted Founder Shares, as the case may be, (a) if such
Stockholder is a partnership, to any partner thereof (in the case of a pro rata
distribution by a Stockholder that is a partnership to its partners), (b) if
such Stockholder is a corporation, to any majority-owned subsidiary of such
Stockholder (provided that such rights may be exercised by such subsidiary only
for so long as such subsidiary continues to be majority-owned by such
Stockholder), (c) if such Stockholder is a natural person, to the spouse or
descendants of such person or any trust for the benefit of any thereof, (d)
otherwise to any other person or entity to whom at least 250,000 Restricted
Shares or Restricted Founder Shares (in each case as constituted on the date
hereof) (or lesser number of such shares if representing all of the shares then
held by such Stockholder), have been sold or otherwise transferred in accordance
with the terms of the Fourth Amended and Restated Stockholders' Agreement dated
as of the date hereof, among the Company and the other parties thereto or (e)
(x) in the case of Rho Management Trust I, to the beneficial owners of such
trust, (y) in the case of ▇▇▇ Interactive Media, Inc., to any entity the
majority voting power of which is, directly or indirectly, controlled by ▇▇▇
Enterprises, Inc. and (z) in the case of ▇▇▇▇▇ Healthcare Corporation, to an
entity over which ▇▇▇▇▇ Healthcare Corporation has Control (as hereinafter
defined), provided, however, that the Company is given written notice at the
time of such assignment stating the name and address of the assignee and
identifying the securities with respect to which the rights and benefits
hereunder are being assigned and such assignee expressly agrees in writing with
the Company and the other Stockholders to be bound by and to comply with all
applicable provisions of this Agreement, whereupon such person or entity shall
have the benefits of, and shall be subject to the restrictions contained in,
this Agreement with respect to such securities. Any assignment pursuant to this
Section 16 shall not relieve, release or otherwise discharge the Stockholder
effecting such assignment from its obligations under this Agreement. This
Agreement shall bind and inure to the benefit of the Company, each Stockholder,
and its or his respective successors, permitted assigns, heirs and legal
representatives. For purposes of this Section 16, "Control" or "Controlled"
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management or policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
17
SECTION 17. Entire Agreement.
This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings with respect hereto, including, without limitation, the Old
Registration Rights Agreement, which is hereby terminated in its entirety and of
no further force or effect.
SECTION 18. Notices.
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when delivered in
person, by telecopy, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth below or such other address as may hereafter be designated
in writing by the addressee to the addressor:
(i) if to the Company, to:
iVillage, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.;
(ii) if to an Investor to the address specified
on such Investor's signature page hereto;
(iii) if to the Founders, to the respective addresses set
forth on Annex A hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day and (c) in the case of mailing, on
the third business day following such mailing if sent by certified mail, return
receipt requested.
18
SECTION 19. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified
or amended, except pursuant to a writing signed by the Company and the Investors
holding at least sixty (60%) percent of the Restricted Shares (based upon Common
Stock equivalents) held by all Investors; provided, however, that any amendment
or modification that would adversely affect the rights of the Founders hereunder
shall require the written approval of Founders holding at least 66-2/3% of the
outstanding Restricted Founder Shares (as the case may be); provided,
however, that any amendment or modification that would adversely affect the NBC
Additional Demand right (including NBC's right to select and be reimbursed for
expenses incurred by the NBC Counsel in connection with the NBC Additional
Demand); provided further, however, that no modification or amendment shall
discriminate against any Stockholder or Bear ▇▇▇▇▇▇▇ without the consent of such
Stockholder or Bear ▇▇▇▇▇▇▇.
SECTION 20. Counterparts.
This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed to be an original instrument,
but all such counterparts together shall constitute but one agreement.
SECTION 21. Headings.
The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
SECTION 22. Severability.
It is the desire and intent of the parties that the provisions
of this Agreement be enforced to the fullest extent permissible under the law
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 23. Governing Law.
This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any law or rule that would cause the laws of any jurisdiction other
than the State of New York to be applied.
SECTION 24. Limitation on liability to General Electric Pension Trust.
Any monetary obligation of the Trustees of General Electric
Pension Trust shall be enforceable solely against the assets of such Pension
Trust and not against any Trustee individually, General Electric Pension Trust
(other than as necessary to enforce such rights against such assets) or GE
Investment Management Incorporated.
19
COUNTERPART SIGNATURE PAGE TO THE FOURTH
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT DATED AS OF DECEMBER 4, 1998
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
i VILLAGE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
COUNTERPART SIGNATURE PAGE TO THE FOURTH
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT DATED AS OF December 4, 1998
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
FOUNDERS:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
INVESTOR:
/s/ Admirals, L.P.
-----------------------------------------
Admirals, L.P.
/s/ America Online, Inc.
-----------------------------------------
America Online, Inc.
/s/ Applewood Associates
-----------------------------------------
Applewood Associates
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 1993 Trust
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 1993 Trust
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ Boston Millenia Associates I
Partnership
-----------------------------------------
Boston Millenia Associates I Partnership
/s/ Boston Millenia Partner Limited
Partnership
-----------------------------------------
Boston Millenia Partner Limited
Partnership
/s/ CIBC Wood Gundy Ventures, Inc.
-----------------------------------------
CIBC Wood Gundy Ventures, Inc.
/s/ Convergence Entrepreneurs Fund I
-----------------------------------------
Convergence Entrepreneurs Fund I
/s/ Convergence Ventures I, L.P.
-----------------------------------------
Convergence Ventures I, L.P.
/s/ ▇▇▇ Interactive Media, Inc.
-----------------------------------------
▇▇▇ Interactive Media, Inc.
/s/ Gannet International Communications
Inc.
-----------------------------------------
Gannett International Communications,
Inc.
/s/ ▇▇▇▇▇▇▇ Family Trust
-----------------------------------------
▇▇▇▇▇▇▇ Family Trust
/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ Global Investments, Ltd.
-----------------------------------------
▇▇▇▇▇ Global Investments, Ltd.
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ Nexus Capital Partners I, L.P.
-----------------------------------------
Nexus Capital Partners I, L.P.
/s/ NIG - Village Ltd.
-----------------------------------------
NIG - Village Ltd.
/s/ ▇'▇▇▇▇▇▇▇▇ Graev & Karabell. L.L.P.
("OGK") Profit Sharing Plan F/B/O
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇'▇▇▇▇▇▇▇▇ Graev & Karabell. L.L.P.
("OGK") Profit Sharing Plan F/B/O
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ Remington Investment Strategies, L.P.
-----------------------------------------
Remington Investment Strategies, L.P.
/s/ Rho Management Trust I
-----------------------------------------
Rho Management Trust I
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ Communications and
Information Fund
-----------------------------------------
▇▇▇▇▇▇▇▇ Communications and Information
Fund
/s/ Sonem Partners
-----------------------------------------
Sonem Partners
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ TCI Ventures Group, LLC
-----------------------------------------
TCI Ventures Group, LLC
/s/ TCVII Strategic Partners, L.P.
-----------------------------------------
TCVII Strategic Partners, L.P.
/s/ TCVII, (Q), L.P.
-----------------------------------------
TCVII, (Q), L.P.
/s/ TCVII, V.O.F.
-----------------------------------------
TCVII, V.O.F.
/s/ Technology Crossover Ventures II,
C.V.
-----------------------------------------
Technology Crossover Ventures II, C.V.
/s/ Technology Crossover Ventures II,
L.P.
-----------------------------------------
Technology Crossover Ventures II, L.P.
/s/ ▇▇▇▇▇ Healthcare Corporation
-----------------------------------------
▇▇▇▇▇ Healthcare Corporation
/s/ Transatlantic Venture Partners C.V.
-----------------------------------------
Transatlantic Venture Partners C.V.
/s/ Tribune Company
-----------------------------------------
Tribune Company
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ Vantage Point Venture Partners 1996,
LP
-----------------------------------------
Vantage Point Venture Partners 1996, LP
/s/ Vantage Point Communications
Partners, LP
-----------------------------------------
Vantage Point Communications Partners, LP
/s/ ▇▇▇ ▇▇▇▇▇▇▇ Capital Management
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ Capital Management
COUNTERPART SIGNATURE PAGE TO THE FOURTH
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT DATED AS OF DECEMBER 4, 1998
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ Bear, ▇▇▇▇▇▇▇ & Co. Inc.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
ANNEX A
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Founder
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o iVillage Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
c/o iVillage Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o iVillage Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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