[EXECUTION COPY]
IVILLAGE INC.
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") made as of the 24th day
of May, 2004, by and between iVillage Inc., a Delaware corporation (the
"Company"), and Conopco, Inc. a New York corporation ("Investor").
WHEREAS, Investor holds 200,000 shares of Common Stock, par value $.01
per share ("Common Stock"), of the Company (the "Shares") which Investor
acquired pursuant to a Stock Purchase Agreement, dated as of October 29, 2003
(the "Purchase Agreement"), between the Company and Investor;
WHEREAS, the Company currently is considering an underwritten public
offering (the "Offering") of its Common Stock and, to that end, the Company has
filed with the Securities and Exchange Commission ("SEC") a Registration
Statement on Form S-3 (File No. 333-114474)(the "Registration Statement") which
allows the Company and certain stockholders named therein to sell shares of
Common Stock from time to time, which Registration Statement has been declared
effective by SEC; and
WHEREAS, under the Purchase Agreement, Investor has certain
registration rights with respect to its participation in the Offering which it
desires to waive in consideration of the execution and delivery of this
Agreement, it being understood that except for such waiver the Purchase
Agreement remains in full force and effect;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investor covenant and
agree:
1.1 DEFINITIONS. For purposes of this Agreement:
(a) The term "Change of Control" means (i) a
transaction or series of related transactions deemed to be a liquidation,
dissolution or winding up of the Company; or (ii) any merger or consolidation
involving the Company, any other transaction involving cessation of the
Company's obligation to file reports with the SEC pursuant to Section 12(g) or
Section 15(d) of the Exchange Act or any sale of all or substantially all of the
assets of the Company, in each case so long as Investor receives, as a result of
such merger, consolidation, other transaction or sale, and in exchange for or
cancellation of the Registrable Securities, any combination of (x) cash or (y)
securities registered pursuant to the Securities Act or issued in a transaction
exempt from such registration pursuant to Section 3(a)(10) of the Securities
Act.
(b) The term "Exchange Act" means the Securities
Exchange Act of 1934, as amended (and any successor thereto), and the rules and
regulations promulgated thereunder;
(c) The term "Form S-3" means such form under the
Securities Act as in effect on the date hereof or any successor form under the
Securities Act that permits significant incorporation by reference of the
Company's subsequent public filings under the Exchange Act;
(d) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such registration
statement or document;
(e) The term "Registrable Securities" means (a) the
Shares, plus any additional shares of Common Stock issued in respect thereof in
connection with any stock split, stock dividend or similar event with respect to
the Common Stock and (b) any securities of the Company into which such shares of
Common Stock described in clause (a) above may be converted or exchanged;
provided, however, that such securities shall cease to be Registrable Securities
when (i) a registration with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of under such registration statement or (ii) such securities shall have
been transferred pursuant to Rule 144 (or any successor provision under the
Securities Act);
(f) The term "SEC" means the Securities and Exchange
Commission; and
(g) The term "Securities Act" means the Securities
Act of 1933, as amended(and any successor thereto) and the rules and regulations
promulgated thereunder.
1.2 FORM S-3 REGISTRATION. If, after consummation of the
Public Offering (as defined below) and expiration of the Lock-Up Period (as
defined below), Company receives from Investor a written request that the
Company effect a registration on Form S-3 with respect to all of the Registrable
Securities (the "Demand Notice"), the Company will, as soon as practicable file
a registration statement on Form S-3 covering the Registrable Securities
specified in such request; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance, pursuant
to this Section 1.2: (i) if Form S-3 is not available for such offering by
Investor, provided that, Company shall use its commercially reasonable efforts
to maintain its eligibility under the Securities Act and the Exchange Act to
file a registration statement on Form S-3, or (ii) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance. For the purposes of this Agreement,
"Lock-Up Period" means an initial Lock-Up Period commencing on the date of the
filing of the preliminary prospectus supplement relating to the public offering
by the underwriters, including the Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc., of common stock pursuant to the Registration Statement (the
"Public Offering"), with the SEC pursuant to Rule 424 of the Securities Act and
continuing until, and including, the date that is 90 days after the date of the
final prospectus relating to the Public Offering (the "Initial Lock-Up Period");
provided, however, that if (1) during the last 17 days of the Initial Lock-Up
Period, (A) the Company releases earnings results or (B) material news or a
material event relating to the Company occurs, or (2) prior to the expiration of
the Initial Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period following the last day of the Initial Lock-Up
Period, then with respect to clause (1), the Lock-Up Period will be extended
until the expiration of the 18-day period beginning on the date of the release
of the earnings results or the occurrence of material news or a material event
relating to the Company, as the case may be, or with respect to clause (2), the
Lock-Up Period will be extended until the lesser of (i) the expiration of the
18-day period beginning on the date of the announcement that the Company will
release earnings results and (ii) the expiration of the 2-day period beginning
on the date of the release of the earnings results, unless, in each case, the
Representatives waive, in writing, such extension. The Company represents and
warrants that the Lock-Up Period is the same lock-up period applicable to the
selling stockholders identified in the preliminary prospectus filed as of the
date hereof with respect to the Registration Statement.
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1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible and without charge to Investor:
(a) Prepare and file with the SEC, no later than five
(5) business days following receipt of the Demand Notice, a registration
statement on Form S-3 with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective, and, upon
the request of Investor, keep such registration statement effective for one
hundred twenty (120) days or until such earlier date when Investor no longer
holds Registrable Securities. The Company shall not be required to file, cause
to become effective or maintain the effectiveness of any registration statement
that contemplates a distribution of securities on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until the earlier of 120 days
following the effectiveness of such registration statement or such time as
Investor no longer holds Registrable Securities.
(c) Take such action as may be necessary so that (i)
any registration statement, and any amendment thereto, and any prospectus
forming a part thereof, and any amendment or supplement thereto (and each report
or other document incorporated therein by reference in each case) complies in
all material respects with the Securities Act and the Exchange Act, and the
respective rules and regulations thereunder, (ii) any registration statement,
and any amendment thereto, does not, when it becomes effective, contain 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, in the light of
the circumstances under which they were made, not misleading, and (iii) any
prospectus forming part of any registration statement, and any amendment or
supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading.
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(d) Furnish to the Investor such numbers of copies of
a prospectus, including a preliminary prospectus, and supplements thereto in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of
Registrable Securities.
(e) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by
Investor; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(f) Notify Investor at any time when a prospectus
relating thereto is required to be delivered under the Securities Act 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 the light of the
circumstances then existing, such obligation to continue until the earlier of
120 days following the effectiveness of such registration statement or such time
as Investor no longer holds Registrable Securities. The Company will use
reasonable efforts to amend or supplement such prospectus in order to cause such
prospectus not to include any 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 the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered
pursuant hereto to be listed on each securities exchange on which similar
securities issued by the Company are then listed no later than the effective
date of such registration.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Advise Investor and, if requested by Investor,
confirm such advice in writing:
(i) when such registration statement, and
any amendment thereto, has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has become effective;
(ii) of any request by the SEC for
amendments or supplements to such registration statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the SEC of any stop
order suspending effectiveness of the registration statement or the initiation
of any proceedings for that purpose; and
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(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
securities included in the registration statement for sale in any jurisdiction
or the initiation of any proceeding for such purpose.
(j) Use its reasonable efforts to prevent the
issuance, and, if issued, to obtain the withdrawal, of any order suspending the
effectiveness of any registration statement at the earliest possible time.
(k) Cooperate with the Investor to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold or delivered pursuant to such registration statement free
of any restrictive legends and in such permitted denominations and registered in
such names as the Investor may request in connection with the sale or delivery
of Registrable Securities pursuant to such registration statement.
(l) Use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally available to its
security holders or otherwise provide in accordance with Section 11(a) of the
Securities Act as soon as practicable after the effective date of such
registration statement an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act.
1.4 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities that Investor shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Registrable Securities.
1.5 EXPENSES OF REGISTRATION. All fees and expenses incurred
in connection with a registration requested pursuant to Sections 1.2 and 1.3,
including, without limitation, all registration, filing, stock exchange, SEC,
NASDAQ qualification, printers', counsel and accounting fees and expenses, shall
be borne by the Company; provided, however, that Investor shall bear all
underwriting discounts and commissions and all fees and disbursements of
Investor's own counsel in connection with registration and/or disposition of the
Registrable Securities.
1.6 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To Company will indemnify and hold harmless
Investor, each of its officers, employees and directors, and each person
controlling Investor (each an "Investor Indemnified Party"), with respect to the
registration which is effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter (each an "Underwriter
Indemnified Party"), against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related registration statement, notification or
the like) incident to any such registration, or based on any 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 any violation by
the Company of the Securities Act, Exchange Act, any state securities law or any
rule or regulation thereunder applicable to the Company and relating to action
or inaction required of the Company in connection with any such registration,
and will reimburse the Investor, each of its officers, directors, members and
partners, and each person controlling the Investor, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by Investor or
an Investor Indemnified Party or underwriter or an Underwriter Indemnified Party
and stated to be specifically for use therein.
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(b) Investor will indemnify and hold harmless the
Company, each of its directors , employees and officers and each underwriter, if
any, covered by such a registration statement, and each person who controls the
Company or such underwriter, in each case against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus or other document made by Investor,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by Investor therein not
misleading, and will reimburse the Company and such directors, officers,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus or other document
in reliance upon and in conformity with written information furnished to the
Company by Investor and stated to be specifically for use therein; provided,
however, that the obligations of Investor hereunder shall be limited to an
amount equal to the net proceeds to Investor of the securities of the Company
sold as contemplated herein.
(c) Each party entitled to indemnification under this
Section 1.6 (the "Idemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Agreement unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
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(d) If the indemnification provided for in this
Section 1.6 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense 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,
liability, claim, damage or expense, as well as any other relevant equitable
considerations; provided that, in no event shall any contribution by Investor
exceed the net proceeds to the Investor of the securities of the Company sold as
contemplated herein. 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.
(e) The foregoing indemnity agreement of the Company
and the Investor is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage made in a preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the
registration statement in question becomes effective or the amended prospectus
is filed with the SEC pursuant to Rule 424(b) under the Securities Act (the
"Final Prospectus"), such indemnity agreement shall not inure to the benefit of
any underwriter if a copy of the Final Prospectus was furnished to the
underwriter and was not furnished to the person asserting the loss, liability,
claim or damage at or prior to the time such action is required by the
Securities Act.
1.7 ASSIGNMENT OF REGISTRATION RIGHTS. The rights of Investor
under Section 1.2 of this Agreement may not be assigned or transferred, whether
by contract, assignment, operation of law or otherwise.
1.8 TERMINATION OF REGISTRATION RIGHTS. Investor shall not be
entitled to exercise any right provided for in this Section 1 after termination
of the Agreement, as provided in Section 2.1.
1.9 MFN--REGISTRATION RIGHTS UPON CHANGE OF CONTROL. If, upon
consummation of a Change of Control, stockholders of the Company receive or are
entitled to receive securities of a successor entity to the Company and such
securities are coupled with contractual registration rights, then Investor shall
be entitled to receive and the Company shall use commercially reasonable efforts
to ensure that Investor receives registration rights on terms no less favorable
than those applicable to any other stockholder of the Company.
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2. MISCELLANEOUS.
2.1 TERMINATION. This Agreement shall terminate, and have no
further force and effect at the earliest of (a) such time as Investor no longer
holds Registrable Securities, (b) the expiration of any consecutive three-month
period in which Rule 144 or another similar exemption under the Securities Act
is available for the sale of all of Investor's Registrable Securities without
registration, or (c) a Change of Control; provided, however, that Section 1.6
shall survive such termination.
2.2 WAIVER. In consideration of this Agreement, Investor
hereby waives any rights Investor may have to (a) receive notice pursuant to
Section 4.1 of the Purchase Agreement with respect to the filing of the
Registration Statement and any proposed or actual public offering made
thereunder and (b) include the Shares in any public offering (including the
Offering) made thereunder; it being understood that except for such waiver the
Purchase Agreement remains in full force and effect.
2.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements relating to the subject matter
hereof existing between the parties hereto are expressly canceled.
2.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties.
2.5 AMENDMENTS AND WAIVERS. The terms and provisions of this
Agreement may only be modified or amended, or the performance thereof waived,
pursuant to an instrument signed by (a) the Company and Investor or (b) the
party against whom enforcement of such modification, amendment or waiver is
sought.
2.6 NOTICES. Notices, claims, certificates, requests, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or if sent by nationally-recognized
overnight courier, by telecopy, or by registered or certified mail, return
receipt requested and postage prepaid, addressed as follows:
if to the Company:
iVillage Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Executive Vice President - Operations
and Business Affairs
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with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to the Investor:
Unilever Home & Personal Care USA
Conopco, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Unilever United States, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Assistant General Counsel - Corporate
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of an
internationally-recognized overnight courier, on the next business day after the
date when sent, (c) in the case of telecopy transmission with confirmation of
its receipt, and (d) in the case of mailing, on the third business day following
that on which the piece of mail containing such communication is posted.
2.7 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
2.8 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.
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2.9 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.10 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.11 DELAYS OR OMISSIONS. Except as expressly provided herein,
no delay or omission to exercise any right, power or remedy accruing to the
Company or Investor upon any breach or default of any party under this Agreement
shall impair any such right, power or remedy of the Company or Investor nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of the
Company or Investor of any breach or default under this Agreement, or any waiver
on the part of any such party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to the Company or Investor, shall be cumulative and not
alternative.
[Signature Page Follows]
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The parties have executed this Registration Rights Agreement as of the
date first above written.
iVILLAGE INC. CONOPCO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ Mart Laius
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Print Name: Mart Laius
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Title: EVP Title: Vice President
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