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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
------------
iVillage Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value per share
- --------------------------------------------------------------------------------
(Title of class of securities)
46588H105
- --------------------------------------------------------------------------------
(CUSIP Number)
Richard Cotton, Executive Vice President and General Counsel
NBC Universal, Inc.
30 Rockefeller Plaza
New York, NY 10112
(212) 664-4444
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 3, 2006
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [_].
================================================================================
- ------------------------------------------------------- -------------------------------------------------------------
CUSIP NO. 46588H105 13D Page 2
- ------------------------------------------------------- -------------------------------------------------------------
- -------------- ---------------------------------------- --------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS NBC Universal, Inc.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 14-1682529
- -------------- -------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [x]
- -------------- -------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------- ----------------------- -------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: WC; AF
- -------------- -------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): [_]
- -------------- ----------------------------------------------------- -------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
- ----------------------- ----- -------------------------------------- -------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----- -------------------------------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 18,184,653
OWNED BY
----- -------------------------------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----- -------------------------------------- -------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 18,184,653
- -------------- -------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 18,184,653
- -------------- ----------------------------------------------------------------------------------------------------- -------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
- -------------- -------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 25.0%
- -------------- ---------------------------------------- --------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- -------------- ---------------------------------------- --------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
2
- ------------------------------------------------------- -------------------------------------------------------------
CUSIP NO. 46588H105 13D Page 3
- ------------------------------------------------------- -------------------------------------------------------------
- -------------- ---------------------------------------- --------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: General Electric Company
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 14-0689340
- -------------- ----------------------------------------------------------------------------------------------------- -------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [x]
- -------------- -------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------- ----------------------- -------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: Not applicable
- -------------- -------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): [x]
- -------------- ----------------------------------------------------- -------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: New York
- ----------------------- ----- -------------------------------------- -------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: Disclaimed (see 11 below)
SHARES
----- -------------------------------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----- -------------------------------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: Disclaimed (see 11 below)
REPORTING
----- -------------------------------------- -------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- -------------- -------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: Beneficial ownership of all shares disclaimed by
General Electric Company
- -------------- -------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
- -------------- -------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): Not applicable (see 11 above)
- -------------- ---------------------------------------- --------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- -------------- ---------------------------------------- --------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
3
- ------------------------------------------------------- -------------------------------------------------------------
CUSIP NO. 46588H105 13D Page 4
- ------------------------------------------------------- -------------------------------------------------------------
- -------------- ---------------------------------------- --------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: National Broadcasting Company Holding, Inc.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 13-3448662
- -------------- ----------------------------------------------------------------------------------------------------- -------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [x]
- -------------- -------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------- ----------------------- -------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: Not applicable
- -------------- ----------------------------------------------------------------------------------------------------- -------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- -------------- ----------------------------------------------------- -------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
- -------------------------- ------ ---------------------------------- -------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: Disclaimed (see 11 below)
SHARES
------ ---------------------------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
------ ---------------------------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: Disclaimed (see 11 below)
REPORTING
------ ---------------------------------- -------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- -------------- -------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: Beneficial ownership of all shares disclaimed by
National Broadcasting Company Holding, Inc.
- -------------- -------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
- -------------- -------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): Not applicable (see 11 above)
- -------------- ---------------------------------------- --------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- -------------- ---------------------------------------- --------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
4
This statement on Schedule 13D relates to the common stock, par value
$.01 per share ("iVillage Common Stock"), of iVillage Inc., a Delaware
corporation ("iVillage"). The address of iVillage's principal executive offices
is 500 Seventh Avenue, New York, New York 10018.
Item 2. Identity and Background.
-----------------------
This statement is being filed by NBC Universal, Inc. ("NBCU"), for
and on behalf of itself, National Broadcasting Company Holding, Inc. ("NBC
Holding") and General Electric Company ("GE"). NBCU is an 80% owned subsidiary
of NBC Holding, and NBC Holding is a wholly owned subsidiary of GE. NBCU, NBC
Holding and GE are referred to herein as the "Reporting Persons." An agreement
among the Reporting Persons with respect to the filing of this statement is
attached hereto as Exhibit 1.
NBCU is a Delaware corporation with its principal executive offices
located at 30 Rockefeller Plaza, New York, New York 10112. The principal
activities of NBCU are the operation of television and cable broadcast networks
and television stations and the provision of related media and Internet
services. NBC Holding is a Delaware corporation with its principal executive
offices located at 30 Rockefeller Plaza, New York, New York 10112. NBC Holding
is a holding company which owns 80% of the outstanding common stock of NBCU. GE
is a New York corporation with its principal executive offices located at 3135
Easton Turnpike, Fairfield, Connecticut 06431. GE engages in providing a wide
variety of industrial, commercial and consumer products and services.
The name, business address, present principal occupation or
employment, and citizenship of each director and executive officer of NBCU, NBC
Holding and GE are set forth on Schedules A, B and C, respectively, attached
hereto.
Other than the SEC's Order Instituting Cease-and-Desist Proceedings,
Making Findings, and Imposing a Cease-and-Desist Order Pursuant to Section 21C
of the Act, SEC Release No. 34-50426 (September 23, 2004), none of the Reporting
Persons nor, to the best of their knowledge, any of the persons listed on
Schedules A, B or C hereto, during the last five years, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors), or
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction resulting in a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
This statement is being filed while the Reporting Persons are in the
process of verifying information required herein from their respective directors
and executive officers. If the Reporting Persons obtain information concerning
such individuals which would cause a material change in the disclosure contained
herein, an amendment to this statement will be filed that will disclose such
change.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The Voting Agreement described in Item 4 of this statement (the terms
of which are hereby incorporated by reference) was entered into by NBCU and
Hearst Communications, Inc. (the "Stockholder") as an inducement to NBCU to
enter into the Merger Agreement described in Item 4 (the terms of which are
hereby incorporated by reference). NBCU did not pay additional consideration to
5
the Stockholder in connection with the execution and delivery of the Voting
Agreement. In addition, the Stockholder granted NBCU a limited irrevocable proxy
for the purpose of voting the shares covered by the Voting Agreement in
accordance with the terms of the Voting Agreement. NBCU presently expects that
the consideration paid by it to the holders of iVillage Common Stock following
consummation of the Merger will be provided by working capital and/or
contributions to capital by its affiliates.
Item 4. Purpose of Transaction.
----------------------
(a)-(b) On March 3, 2006, NBCU, iVillage Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of NBCU ("Sub"), and iVillage
entered into an Agreement and Plan of Merger (the "Merger Agreement") providing
for the merger of Sub with and into iVillage (the "Merger"), with iVillage
surviving the Merger as a wholly owned subsidiary of NBCU (the "Surviving
Corporation"), upon the terms and subject to the conditions set forth in the
Merger Agreement. Pursuant to the Merger Agreement, as of the Effective Time (as
defined in the Merger Agreement), each issued and outstanding share of iVillage
Common Stock (other than iVillage Common Stock held in treasury or owned by NBCU
or Sub or with respect to which statutory appraisals rights are perfected) will
be converted into the right to receive $8.50 in cash in accordance with the
terms and conditions of the Merger Agreement. A copy of the Merger Agreement is
included as Exhibit 2 hereto and the description of the Merger Agreement
contained herein is qualified in its entirety by reference to Exhibit 2, which
is incorporated herein by reference.
In connection with the execution of the Merger Agreement, in order to
induce NBCU to enter into the Merger Agreement, NBCU and the Stockholder entered
into a Voting Agreement, dated as of March 3, 2006 (the "Voting Agreement").
Pursuant to the Voting Agreement, the Stockholder has agreed, among other
things, during the period from the date of the Voting Agreement until any
termination of the Voting Agreement in accordance with its terms, (a) to vote
all the shares of iVillage Common Stock that it owns (i) in favor of the
adoption of the Merger Agreement and the approval of the transactions
contemplated thereby, (ii) against any action or agreement that would result in
a breach of any representation, warranty, covenant, agreement or other
obligation of iVillage in the Merger Agreement, (iii) against any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by iVillage or
any other Acquisition Proposal (as defined in the Merger Agreement) and (iv)
against any agreement, amendment of the Company Charter Documents (as defined in
the Merger Agreement) or other action that is intended or could reasonably be
expected to prevent, impede, interfere with, delay, postpone or discourage the
consummation of the Merger; (b) not to (i) sell, transfer (including by
operation of law), give, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement (including any profit
sharing arrangement) or understanding with respect to the Transfer (as defined
in the Voting Agreement) of, any Stockholder Shares (as defined in the Voting
Agreement) owned by the Stockholder (or any interest therein), (ii) deposit any
Stockholder Shares owned by the Stockholder into a voting trust or grant any
proxies or enter into a voting agreement, power of attorney or voting trust with
respect to any Stockholder Shares, (iii) commit to do any of the foregoing or
(iv) take any action that would make any representation or warranty of the
Stockholder set forth in the Voting Agreement untrue or incorrect in any
material respect or have the effect of preventing, disabling or delaying the
6
Stockholder from performing any of its obligations under the Voting Agreement;
and (c) as a stockholder (either individually or through any representatives or
agents) not to (i) solicit, initiate or knowingly facilitate or encourage an
Acquisition Proposal or any proposal that is reasonably likely to lead to an
Acquisition Proposal, and (ii) subject to certain exceptions, (x) furnish or
disclose to any Person (as defined in the Merger Agreement) non-public
information with respect to or in furtherance of an Acquisition Proposal, (y)
negotiate or engage in discussions with any Person with respect to or in
furtherance of an Acquisition Proposal or (z) enter into any agreement (whether
or not binding) or agreement in principle with respect to an Acquisition
Proposal. The Voting Agreement terminates upon the earlier to occur of (i) the
Effective Time and (ii) the termination of the Merger Agreement in accordance
with its terms. The number of shares of iVillage Common Stock held by the
Stockholder and subject to the Voting Agreement as of March 3, 2006 are set
forth on Schedule A thereto. A copy of the Voting Agreement is included as
Exhibit 3 hereto and the description of the Voting Agreement contained herein is
qualified in its entirety by reference to Exhibit 3, which is incorporated
herein by reference.
(c) Not applicable.
(d) Upon consummation of the Merger, the directors of the Surviving
Corporation shall be the existing directors of Sub, until the earlier of their
resignation or removal or until their respective successors are duly elected (as
the case may be) and qualified.
(e)-(f) Not applicable.
(g) Pursuant to the Merger Agreement, upon consummation of the
Merger, the Certificate of Incorporation and Bylaws of iVillage will be changed
as provided for in the Merger Agreement.
(h)-(i) Upon consummation of the Merger, iVillage Common Stock will
be delisted from the Nasdaq National Market and will become eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended.
(j) Other than as described above, the Reporting Persons currently
have no plans or proposals which relate to, or may result in, any of the matters
listed in Items 4(a)-(i) of Schedule 13D (although the Reporting Persons reserve
the right to develop such plans).
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a)-(b) The responses of the Reporting Persons to Rows (11) through
(13) of the cover pages of this Schedule 13D are incorporated herein by
reference. As of March 3, 2006, the shares of common stock subject to the Voting
Agreement consisted of 18,184,653 shares of iVillage Common Stock and
represented approximately 25.0% of the issued and outstanding shares of iVillage
Common Stock as of February 28, 2006, based on iVillage's representation in the
Merger Agreement that there were 72,781,679 shares of iVillage Common Stock
outstanding as of that date. By virtue of the Voting Agreement, NBCU may be
deemed to share with the Stockholder the power to vote or, with certain
exceptions, dispose of shares of iVillage Common stock subject to the Voting
Agreement. However, NBCU is not entitled to any rights as a stockholder of
iVillage as to the shares of iVillage Common Stock covered by the Voting
Agreement. As a result of the Voting Agreement, NBCU may be deemed to be the
beneficial owner of 18,184,653 shares, or approximately 25.0%, of iVillage
Common Stock.
7
Pursuant to Rule 13d-4 under the Act, NBCU hereby states that this
Schedule 13D shall not be deemed an admission that NBCU is, or for purposes of
Section 13(d) of the Act, the beneficial owner of any of the equity securities
of iVillage that are subject to the Voting Agreement.
Except as set forth in this Item 5, none of the Reporting Persons
nor, to the best of the Reporting Persons' knowledge, any person identified on
Schedules A, B or C hereto, (i) beneficially owns any shares of iVillage Common
Stock or (ii) presently has the power to vote or direct the vote or dispose or
direct the disposition of any of the shares of iVillage Common Stock which they
may be deemed to beneficially own.
(c) Except as described in this Schedule 13D, there have been no
transactions in the shares of iVillage Common Stock effected by the Reporting
Persons or, to the best of the Reporting Persons' knowledge, any person
identified on Schedules A, B or C hereto, during the last 60 days.
(d)-(e) Not applicable.
This statement is being filed while the Reporting Persons are in the
process of verifying information required in this Item 5 from its directors and
executive officers. If the Reporting Persons obtain information concerning such
individuals which would cause a change in the disclosure contained herein, an
amendment to this statement will be filed that will disclose such change.
Item 6. Contracts, Arrangements, Understandings or Relationships with
-------------------------------------------------------------
Respect to Securities of the Issuer.
-----------------------------------
The information set forth under Items 3, 4 and 5 and the agreements
set forth on the Exhibits attached hereto are incorporated herein by reference.
As described in Item 4, NBCU anticipates it will acquire the entire equity
interest in iVillage pursuant to the Merger Agreement. Other than the Merger
Agreement and the Voting Agreement described in Item 4, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
Reporting Persons or, to the best of the Reporting Persons' knowledge, any
person listed on Schedules A, B or C hereto, and any person with respect to
iVillage Common Stock.
Item 7. Material to Be Filed as Exhibits.
--------------------------------
Exhibit 1. Joint Filing Agreement by and among General Electric
Company, National Broadcasting Company Holding, Inc. and NBC Universal, Inc.,
dated as of March 13, 2006.
Exhibit 2. Agreement and Plan of Merger, dated as of March 3, 2006
among NBC Universal, Inc., iVillage Acquisition Corp. and iVillage Inc.
(incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of
iVillage Inc. filed on March 6, 2006).
Exhibit 3. Voting Agreement, dated as of March 6, 2006 among NBC
Universal, Inc., and Hearst Communications, Inc.
8
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: March 13, 2006
NBC UNIVERSAL, INC.
By: /s/ Elizabeth Newell
--------------------------------------
Name: Elizabeth Newell
Title: Assistant Secretary
GENERAL ELECTRIC COMPANY
By: /s/ Richard Cotton
--------------------------------------
Name: Richard Cotton
Title: Vice President
NATIONAL BROADCASTING COMPANY
HOLDING, INC.
By: /s/ Elizabeth Newell
--------------------------------------
Name: Elizabeth Newell
Title: Assistant Secretary
9
SCHEDULE A
NBC UNIVERSAL, INC.
DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
---- ---------------- --------------------
Jeffrey R. Immelt General Electric Company Chairman of the Board and Chief Executive
3135 Easton Turnpike Officer, General Electric Company
Fairfield, CT 06431
Robert C. Wright NBC Universal, Inc. Vice Chairman of the Board and Executive Officer,
30 Rockefeller Plaza General Electric Company;
New York, NY 10112 Chairman and Chief Executive Officer, NBC
Universal, Inc.
Lynn Calpeter NBC Universal, Inc. Executive Vice President and Chief Financial
30 Rockefeller Plaza Officer, NBC Universal, Inc.
New York, NY 10112
Robert De Metz Vivendi Universal S.A. Executive Vice President, Mergers and
42 Avenue de Friedland Acquisitions, Vivendi Universal S.A.
75380 Paris Cedex, 08
France
Dick Ebersol NBC Universal, Inc. Chairman, NBCU Sports & Olympics, NBC Universal,
30 Rockefeller Plaza Inc.
New York, NY 10112
Randy A. Falco NBC Universal, Inc. President, NBCU TV Networks Group, NBC Universal,
30 Rockefeller Plaza Inc.
New York, NY 10112
Jean-Rene Fourtou Vivendi Universal S.A. Chairman, Chief Executive Officer, and Director,
42 Avenue de Friedland Vivendi Universal S.A.
75380 Paris Cedex, 08
France
Jay W. Ireland III NBC Universal, Inc. President, NBCU TV Stations, NBC Universal, Inc.
30 Rockefeller Plaza
New York, NY 10112
Jean-Bernard Levy Vivendi Universal S.A. Chief Operating Officer, Vivendi Universal S.A.
42 Avenue de Friedland
75380 Paris Cedex, 08
France
10
NBC UNIVERSAL, INC. DIRECTORS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
---- ---------------- --------------------
Ron Meyer Universal Studios, Inc. President, Chief Operating Officer, and
100 Universal City Plaza Director, Universal Studios, Inc. and Vivendi
Universal City, CA 91608 Universal Entertainment LLLP
Keith S. Sherin General Electric Company Senior Vice President and Chief Financial
3135 Easton Turnpike Officer, General Electric Company
Fairfield, CT 06431
Stacey Snider Universal Pictures Division Chairman, Universal Pictures Group
100 Universal City Plaza
Universal City, CA 91608
Thomas L. Williams Universal Studios Florida Chairman and Chief Executive Officer, Universal
1000 Universal Studios Plaza Parks & Resorts Group
Orlando, FL 32819
Jeffrey Zucker NBC Universal, Inc. President - NBCU TV Group, NBC Universal, Inc.
30 Rockefeller Plaza
New York, NY 10112
Citizenship
-----------
Robert De Metz France
Jean-Rene Fourtou France
Jean-Bernard Levy France
All others U.S.A.
11
NBC UNIVERSAL, INC.
EXECUTIVE OFFICERS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
Robert C. Wright NBC Universal, Inc. Vice Chairman of the Board
30 Rockefeller Plaza and Executive Officer,
New York, NY 10112 General Electric Company;
Chairman and Chief Executive Officer, NBC
Universal, Inc.
Lynn Calpeter NBC Universal, Inc. Executive Vice President/
30 Rockefeller Plaza Chief Financial Officer/
New York, NY 10112 Treasurer
Richard Cotton NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Dick Ebersol NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
John W. Eck NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Randy A. Falco NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Jay W. Ireland III NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Anna Perez NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Marc Saperstein NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Eileen Whelley NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
12
NBC UNIVERSAL, INC.
EXECUTIVE OFFICERS
(Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
David Zaslav NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Jeffrey Zucker NBC Universal, Inc. Executive Vice President
30 Rockefeller Plaza
New York, NY 10112
Citizenship
-----------
All U.S.A
13
SCHEDULE B
NATIONAL BROADCASTING COMPANY HOLDING, INC.
DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
James I. Cash, Jr. Harvard Business School Former Professor of Business
Morgan Hall Administration-Graduate
Soldiers Field Road School of Business
Boston, MA 02163 Administration, Harvard University
Ann M. Fudge Young & Rubicam Brands. Chairman and Chief
285 Madison Avenue Executive Officer,
New York, NY 10017 Young & Rubicam Brands
(advertising and media services)
Jeffrey R. Immelt General Electric Company Chairman of the Board and Chief Executive
3135 Easton Turnpike Officer, General Electric Company
Fairfield, CT 06431
Andrea Jung Avon Products Chairman and Chief Executive Officer, Avon
1345 Avenue of the Americas Products, Inc.
New York, NY 10105
Alan G. Lafley The Proctor & Gamble Company Chairman of the Board, President and
1 Proctor & Gamble Plaza Chief Executive Officer, The Proctor & Gamble
Cincinnati, OH 45202-3315 Company
Ralph S. Larsen Johnson & Johnson Former Chairman and Chief Executive Officer,
100 Albany Street Johnson & Johnson
Suite 200
New Brunswick, NJ 08901
Rochelle B. Lazarus Ogilvy & Mather Worldwide Chairman and Chief
309 West 49th Street Executive Officer, Ogilvy & Mather Worldwide
New York, NY 10019-7316
Sam Nunn Sam Nunn School of International Affairs Retired Partner, King & Spalding
Georgia Institute of Technology
781 Marietta Street, NW
Atlanta, Georgia 30318
14
NATIONAL BROADCASTING COMPANY HOLDING, INC. DIRECTORS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
Roger S. Penske Penske Corporation Chairman of the Board
2555 Telegraph Road and President,
Bloomfield Hills, MI Penske Corporation
48302-0954
Robert J. Swieringa S.C. Johnson Graduate School Anne and Elmer Lindseth Dean and Professor of
Cornell University Accounting, S.C. Johnson Graduate School
207 Sage Hall of Cornell University
Ithaca, NY 14853-6201
Douglas A. Warner III J.P. Morgan Chase & Co., Former Chairman of the
The Chase Manhattan Bank and Board, J.P. Morgan Chase & Co.,
Morgan Guaranty Trust Co. of New York The Chase Manhattan Bank and
345 Park Avenue Morgan Guaranty Trust Co. of New York
New York, NY 10154 345 Park Avenue
New York, NY 10154
Robert C. Wright NBC Universal, Inc. Vice Chairman of the Board and Executive Officer,
30 Rockefeller Plaza General Electric Company;
New York, NY 10112 Chairman & Chief Executive Officer, NBC Universal,
Inc.
Citizenship
-----------
Andrea Jung Canada
All Others U.S.A.
15
NATIONAL BROADCASTING COMPANY HOLDING, INC.
EXECUTIVE OFFICERS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
Robert C. Wright NBC Universal, Inc. Chairman, Chief
30 Rockefeller Plaza Executive Officer
New York, NY 10112
Lynn Calpeter NBC Universal, Inc. Vice President,
30 Rockefeller Plaza Treasurer
New York, NY 10112
Todd Davis NBC Universal, Inc. Assistant Treasurer
30 Rockefeller Plaza
New York, NY 10112
Brian O'Leary NBC Universal, Inc. Assistant Treasurer
30 Rockefeller Plaza
New York, NY 10112
Eliza Fraser General Electric Company Assistant Secretary
3135 Easton Turnpike
Fairfield, CT 06431
Elizabeth Newell NBC Universal, Inc. Assistant Secretary
30 Rockefeller Plaza
New York, NY 10112
16
SCHEDULE C
GENERAL ELECTRIC COMPANY
DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
James I. Cash, Jr. General Electric Company Former Professor of Business
3135 Easton Turnpike Administration-Graduate
Fairfield, CT 06828 School of Business
Administration, Harvard
University
Sir William Castell GE Healthcare Vice Chairman of the Board and
Pollards Wood, Nightingales Lane Executive Officer, General
Chalfont St. Giles Electric Company; Chairman,
HP8 4SP Great Britain GE Healthcare
Ann M. Fudge Young & Rubicam Brands. Chairman and Chief
285 Madison Avenue Executive Officer,
New York, NY 10017 Young & Rubicam Brands
(advertising and media services)
Claudio X. Gonzalez Kimberly-Clark de Mexico, Chairman of the Board
S.A. de C.V. and Chief Executive Officer,
Jose Luis Lagrange 103, Kimberly-Clark de Mexico,
Tercero Piso S.A. de C.V. (consumer products)
Colonia Los Morales
Mexico, D.F. 11510, Mexico
Jeffrey R. Immelt General Electric Company Chairman of the Board
3135 Easton Turnpike and Chief Executive
Fairfield, CT 06828 Officer, General Electric
Company
Andrea Jung Avon Products, Inc. Chairman and Chief
1345 Avenue of the Americas Executive Officer,
New York, NY 10105 Avon Products, Inc. (cosmetics)
Alan G. (A.G.) Lafley The Procter & Gamble Company Chairman of the Board, President
1 Procter & Gamble Plaza and Chief Executive
Cincinnati, Oh 45202-3315 The Procter & Gamble Company
(household products)
Robert W. Lane Deere & Company Chairman and Chief
One John Deere Place Executive Officer
Moline, Illinois 61265 Deere & Company (equipment
manufacturer)
17
GENERAL ELECTRIC COMPANY DIRECTORS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
Ralph S. Larsen Johnson & Johnson Former Chairman and Chief
100 Albany Street Executive Officer (pharmaceutical,
Suite 200 medical and consumer products)
New Brunswick, NJ 08901
Rochelle B. Lazarus Ogilvy & Mather Worldwide Chairman and Chief
309 West 49th Street Executive Officer (advertising)
New York, NY 10019-7316
Sam Nunn Sam Nunn School of Retired Partner
International Affairs King & Spalding
Georgia Institute of Technology
781 Marietta Street, NW
Atlanta, Georgia 30318
Roger S. Penske Penske Corporation Chairman of the Board
2555 Telegraph Road and President, Penske
Bloomfield Hills, MI 48302-0954 Corporation (transportation and
automotive services)
Robert J. Swieringa S.C. Johnson Graduate School Anne and Elmer Lindseth Dean
Cornell University and Professor of Accounting,
207 Sage Hall S.C. Johnson Graduate School of
Ithaca, NY 14853-6201 Management, Cornell University
Douglas A. Warner III J. P. Morgan Chase & Co., Former Chairman of the Board,
The Chase Manhattan Bank and J.P. Morgan Chase & Co.,
Morgan Guaranty Trust Co. of New York The Chase Manhattan Bank and
270 Park Avenue Morgan Guaranty Trust Co. of
New York, NY 10154 New York
Robert C. Wright NBC Universal, Inc. Vice Chairman of the Board and
30 Rockefeller Plaza Executive Officer, General
New York, NY 10112 Electric Company; Chairman
and Chief Executive Officer,
NBC Universal, Inc.
Citizenship
-----------
Sir William Castell United Kingdom
Claudio X. Gonzalez Mexico
Andrea Jung Canada
All Others U.S.A.
18
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
Jeffrey R. Immelt General Electric Company Chairman of the Board and
3135 Easton Turnpike Chief Executive Officer
Fairfield, CT 06828
Philip D. Ameen General Electric Company Vice President and Comptroller
3135 Easton Turnpike
Fairfield, CT 06828
Ferdinando Beccalli General Electric Company Senior Vice President-
3135 Easton Turnpike GE International
Fairfield, CT 06828
Charlene T. Begley General Electric Company Senior Vice President
1 Plastics Avenue GE Plastics
Pittsfield, MA 01201
Mark W. Begor General Electric Company Senior Vice President
1600 Summer Street GE Consumer Finance - Americas
Stamford, CT 06927
Paul T. Bossidy General Electric Company Senior Vice President -
44 Old Ridgebury Road GE Capital Solutions
Danbury, CT 06810
David L. Calhoun General Electric Company Vice Chairman of General
3135 Easton Turnpike Electric Company; President
Fairfield, CT 06828 & CEO, GE Infrastructure
James P. Campbell General Electric Company Senior Vice President -
Appliance Park GE Consumer & Industrial
Louisville, KY 40225
Kathryn A. Cassidy General Electric Company Vice President and
201 High Ridge Road GE Treasurer
Stamford, CT 06905-3417
Sir William Castell GE Healthcare Vice Chairman of the Board and
Pollards Wood, Nightingales Lane Executive Officer, General
Chalfont St. Giles Electric Company; Chairman,
HP8 4SP Great Britain GE Healthcare
19
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
William J. Conaty General Electric Company Senior Vice President -
3135 Easton Turnpike Human Resources
Fairfield, CT 06828
Pamela Daley General Electric Company Senior Vice President -
3135 Easton Turnpike Corporate Business
Fairfield, CT 06828 Development
Brackett B. Denniston III General Electric Company Senior Vice President and
3135 Easton Turnpike General Counsel
Fairfield, CT 06828
Scott C. Donnelly General Electric Company Senior Vice President -
1 Neumann Way GE Aviation
Cincinnati, OH 05215
Shane Fitzsimons General Electric Company Vice President -
3135 Easton Turnpike Corporate Financial Planning
Fairfield, CT 06828 and Analysis
Yoshiaki Fujimori General Electric Company Senior Vice President -
21 Mita 1-chome GE Consumer Finance-Asia
Meguro-ku 3d Floor Alto
Tokyo, Japan 153-0062
Joseph M. Hogan General Electric Company Senior Vice President -
Pollards Wood, Nightingales Lane GE Healthcare
Chalfont St. Giles
HP8 4SP Great Britain
John Krenicki General Electric Company Senior Vice President -
4200 Wildwood Parkway GE Energy
Atlanta, GA 30339
Mark M. Little General Electric Company Senior Vice President -
One Research Circle GE Global Research
Niskayuna, NY 12309
Michael A. Neal General Electric Company Vice Chairman of General
260 Long Ridge Road Electric Company; President
Stamford, CT 06927 & CEO, GE Capital Services
20
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS (Continued)
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---- ---------------- --------------------
David R. Nissen General Electric Company Senior Vice President -
201 High Ridge Road GE Consumer Finance
Stamford, CT 06905-3417
Michael E. Pralle General Electric Company Senior Vice President
292 Long Ridge Road GE- Real Estate
Stamford, CT 06927
Ronald R. Pressman General Electric Company Senior Vice President -
9201 State Line GE Insurance Solutions
Kansas City, KS, 64114-3234
Gary M. Reiner General Electric Company Senior Vice President -
3135 Easton Turnpike Chief Information Officer
Fairfield, CT 06828
John G. Rice General Electric Company Vice Chairman of General
4200 Wildwood Parkway Electric Company; President
Atlanta, GA 30339 & CEO, GE Industrial
Keith S. Sherin General Electric Company Senior Vice President - Finance
3135 Easton Turnpike and Chief Financial Officer
Fairfield, CT 06828
Lloyd G. Trotter General Electric Company Executive Vice President
3135 Easton Turnpike and Senior Operations Officer
Fairfield, CT 06828
Robert C. Wright NBC Universal, Inc. Vice Chairman of the Board and
30 Rockefeller Plaza Executive Officer, General
New York, NY 10112 Electric Company; Chairman
and Chief Executive Officer,
NBC Universal, Inc.
Citizenship
-----------
Ferdinando Beccalli Italy
Sir William Castell United Kingdom
Shane Fitzsimons Ireland
Yoshiaki Fujimori Japan
All Others U.S.A.
21
Exhibit 1
JOINT FILING AGREEMENT
This will confirm the agreement by and among all the undersigned that
the Schedule 13D filed on or about this date and any amendments thereto with
respect to beneficial ownership by the undersigned of shares of the Common
Stock, par value $.01 per share, of iVillage Inc. is being filed on behalf of
each of the undersigned in accordance with Rule 13d-1(k) (1) under the
Securities Exchange Act of 1934. 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.
Dated: March 13, 2006
GENERAL ELECTRIC COMPANY
By: /s/ Richard Cotton
----------------------------
Name: Richard Cotton
Title: Vice President
NATIONAL BROADCASTING COMPANY HOLDING, INC.
By: /s/ Elizabeth Newell
----------------------------
Name: Elizabeth Newell
Title: Assistant Secretary
NBC UNIVERSAL, INC.
By: /s/ Elizabeth Newell
----------------------------
Name: Elizabeth Newell
Title: Assistant Secretary
Exhibit 3
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of March 3, 2006,
by and among NBC Universal, Inc., a Delaware corporation ("Parent"), and Hearst
Communications, Inc. (the "Stockholder").
WHEREAS, concurrently with the execution of this Agreement, iVillage
Inc., a Delaware corporation (the "Company"), Parent and iVillage Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), are entering into an Agreement and Plan of Merger of even date herewith
(as the same may be amended or supplemented, the "Merger Agreement"; capitalized
terms used but not defined in this Agreement have the meanings ascribed thereto
in the Merger Agreement);
WHEREAS, as of the date hereof, the Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock set forth
opposite the Stockholder's name on Schedule A hereto (such shares, together with
any other shares of Company Common Stock acquired by the Stockholder after the
date hereof, being collectively referred to herein as the "Stockholder Shares");
and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have required that the Stockholder enter into
this Agreement and, in order to induce Parent and Merger Sub to enter into the
Merger Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Agreements of Stockholder.
(a) Voting. From the date hereof until any termination of this
Agreement in accordance with its terms, at any meeting of the stockholders of
the Company however called (or any action by written consent in lieu of a
meeting) or any adjournment thereof, the Stockholder shall vote all Stockholder
Shares owned by the Stockholder (or cause them to be voted) or (as appropriate)
execute written consents in respect thereof, (i) in favor of the adoption of the
Merger Agreement and the approval of the transactions contemplated thereby, (ii)
against any action or agreement that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
in the Merger Agreement, (iii) against any merger agreement or merger (other
than the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or any other Acquisition Proposal and (iv)
against any agreement, amendment of the Company Charter Documents or other
action that is intended or could reasonably be expected to prevent, impede,
interfere with, delay, postpone or discourage the consummation of the Merger.
Any such vote shall be cast (or consent shall be given) by the Stockholder in
accordance with such procedures relating thereto so as to ensure that it is duly
counted, including for purposes of determining that a quorum is present and for
purposes of recording the results of such vote (or consent).
(b) Grant of Limited Irrevocable Proxy; Appointment of
Attorney-in-Fact.
(i) In furtherance of the Stockholder's agreement in Section
1(a) above, but subject to Section 1(b)(ii) below, the Stockholder hereby
appoints Parent and Parent's designees, and each of them individually, as the
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote all Stockholder
Shares owned by the Stockholder (at any meeting of stockholders of the Company
however called or any adjournment thereof), or to execute one or more written
consents in respect of such Stockholder Shares, for the following limited, and
for no other, purposes: (A) in favor of the adoption of the Merger Agreement and
the approval of the transactions contemplated thereby; (B) against any action or
agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company in the Merger Agreement;
(C) against any Acquisition Proposal and (D) against any agreement, amendment of
the Company Charter Documents or other action that is intended or could
reasonably be expected to prevent, impede, interfere with, delay, postpone or
discourage the consummation of the Merger.
(ii) Such proxy granted pursuant to Section 1(b)(i) above shall
(A) be valid and irrevocable until the termination of this Agreement in
accordance with Section 4 hereof and (B) automatically terminate upon the
termination of this Agreement in accordance with Section 4 hereof. The
Stockholder represents that any and all other proxies heretofore given in
respect of Stockholder Shares owned by the Stockholder are revocable, and that
such other proxies have been revoked.
(iii) The Stockholder affirms that the proxy granted pursuant to
Section 1(b)(i) above is: (A) given (x) in connection with the execution of the
Merger Agreement and (y) to secure the performance of the Stockholder's duties
under this Agreement, (B) coupled with an interest and may not be revoked except
as otherwise provided in this Agreement and (C) intended to be irrevocable prior
to termination of this Agreement in accordance with the provisions of Section
212(e) of the DGCL.
(c) Restriction on Transfer; Proxies; Non-Interference; etc. From the
date hereof until any termination of this Agreement in accordance with its
terms, the Stockholder shall not (i) sell, transfer (including by operation of
law), give, pledge, encumber, assign or otherwise dispose of (collectively,
"Transfer"), or enter into any contract, option or other arrangement (including
any profit sharing arrangement) or understanding with respect to the Transfer
of, any Stockholder Shares owned by the Stockholder (or any interest therein),
(ii) deposit any Stockholder Shares owned by the Stockholder into a voting trust
or grant any proxies or enter into a voting agreement, power of attorney or
voting trust with respect to any Stockholder Shares, (iii) commit to do any of
the foregoing or (iv) take any action that would make any representation or
warranty of the Stockholder set forth in this Agreement untrue or incorrect in
any material respect or have the effect of preventing, disabling or delaying the
Stockholder from performing any of its obligations under this Agreement.
2
(d) Legending of Stockholder Shares. If so requested by Parent, at
Parent's sole cost, the Stockholder agrees that the certificates representing
Stockholder Shares owned by the Stockholder shall bear a legend stating that
such Stockholder Shares are subject to this Agreement and to an irrevocable
proxy.
(e) No Solicitation. The Stockholder shall, and shall cause its
subsidiaries and its subsidiaries' respective directors, officers, employees,
investment bankers, financial advisors, attorneys, accountants, agents and other
representatives (collectively, "Stockholder Representatives") to, immediately
cease any existing discussions or negotiations, if any, with any Person that may
be ongoing with respect to an Acquisition Proposal. The Stockholder shall not,
and shall not authorize or permit any Stockholder Representative to, directly or
indirectly, (i) solicit, initiate or knowingly facilitate or encourage an
Acquisition Proposal or any proposal that is reasonably likely to lead to an
Acquisition Proposal, (ii) furnish or disclose to any Person non-public
information with respect to or in furtherance of an Acquisition Proposal, (iii)
negotiate or engage in discussions with any Person with respect to or in
furtherance of an Acquisition Proposal or (iv) enter into any agreement (whether
or not binding) or agreement in principle with respect to an Acquisition
Proposal. In addition, from the date hereof until any termination of this
Agreement in accordance with its terms, the Stockholder shall promptly advise
Parent, orally and in writing, and in no event later than the later of 48 hours
or one Business Day after receipt, if any proposal, offer, inquiry or other
contact is initially received by, any information is initially requested from,
or any discussions or negotiations are sought to be initiated or continued with,
the Stockholder in respect of any Acquisition Proposal, and shall, in any such
notice to Parent, indicate the identity of the Person making such proposal,
offer, inquiry or other contact and the material terms and conditions of any
proposals or offers or the nature of any inquiries or contacts (and shall
include with such notice copies of any written materials received from or on
behalf of such Person relating to such proposal, offer, inquiry or request), and
thereafter shall keep Parent fully informed of all material developments
affecting the status and material terms of any such proposals, offers, inquiries
or requests (and the Stockholder shall provide Parent with written materials
received by the Stockholder that set forth the terms of such proposals, offers,
inquiries or requests). As used in this paragraph, "affiliates" of the
Stockholder shall not include the Company and its subsidiaries. Notwithstanding
anything to the contrary in this Section 1(e), if and to the extent that,
pursuant to the terms of the Merger Agreement, the Company is permitted to and
is providing (or has provided) information to and is permitted to and is
engaging in (or has engaged in) substantive discussions and negotiations with
any Person regarding an Acquisition Proposal, then the Stockholder and
Stockholder Representatives may provide information to, engage in substantive
discussions and negotiations with, and provide draft documents and agreements to
and exchange the same with, such Person and its representatives, provided, that,
prior to the termination of this Agreement, the Stockholder may not enter into
any agreement (except for a customary confidentiality agreement) with such
Persons relating to the Merger Agreement or the transactions contemplated
thereby, other than agreements entered into substantially contemporaneously with
termination of this Agreement pursuant to a termination of the Merger Agreement
under Section 9.1(h) thereof.
3
(f) Certain Actions. Until the earlier of (i) the termination of the
Merger Agreement pursuant to its terms and (ii) the Effective Time, the
Stockholder shall at the request of Parent and without further consideration,
execute and deliver such additional documents and make such filings as may be
reasonably required to consummate and make effective, the Merger and the
transactions contemplated by this Agreement. The Stockholder shall not issue any
press release or make any other public statement with respect to this Agreement,
the Merger Agreement or any of the transactions contemplated thereby without the
prior written consent of Parent, except as may be required by any law, judgment,
writ or injunction of any Governmental Entity applicable to such Stockholder.
(g) Approval of Board Action; Appraisal Rights. The Stockholder
hereby consents to and approves the actions taken by the Company Board of the
Company in approving the Merger Agreement, the transactions contemplated thereby
and this Agreement. The Stockholder hereby waives, and agrees not to exercise or
assert, any appraisal or similar rights under Section 262 of the DGCL or other
applicable law in connection with the Merger.
(h) The Stockholder hereby waives any termination right it has or may
have by reason of the execution of the Merger Agreement or the consummation of
the Merger and the other transactions contemplated thereby under or in respect
of that certain Website Services Agreement, entered into as of July 1, 2004, by
and between the Company and the Stockholder (the "Website Services Agreement"),
provided that the parties hereto agree that such Website Services Agreement
automatically shall terminate on and be of no further force and effect from and
after the date that is six months following the date on which the Effective Time
occurs.
2. Representations and Warranties of Stockholders. The Stockholder
hereby represents and warrants to Parent, severally and not jointly, as follows:
(a) Authority. The Stockholder has all necessary power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized and approved by all necessary action on the part of
the Stockholder and no further action on the part of the Stockholder or any
other Person is necessary to authorize the execution, delivery and performance
by the Stockholder of this Agreement and the consummation by the Stockholder of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming due and valid authorization,
execution and delivery hereof by Parent, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the Bankruptcy and Equity Exceptions.
4
(b) Consents and Approvals; No Violations. Except for filings under
the Exchange Act, to the Stockholder's knowledge, no consents or approvals of,
or filings, declarations or registrations with, any Governmental Entity are
necessary for the consummation by the Stockholder of the transactions
contemplated by this Agreement, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained, made or given,
would not, individually or in the aggregate, reasonably be expected to prevent
or materially delay the performance by the Stockholder of any of its obligations
under this Agreement. Neither the execution and delivery of this Agreement by
the Stockholder, nor the consummation by the Stockholder of the transactions
contemplated hereby, nor compliance by the Stockholder with any of the terms or
provisions hereof, will, (A) conflict with or violate any provision of any
certificate of incorporation, by law or any other constituent document that may
be applicable to the Stockholder, (B) any agreement to which the Stockholder is
a party or (C) (x) violate any judgment or injunction of any Governmental Entity
applicable to the Stockholder (or any of its properties or assets) or any law,
or (y) violate, conflict with, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under or result in
the creation of any Lien upon any of the properties or assets of, the
Stockholder under, any of the terms, conditions or provisions of any agreement
or other instrument or obligation to which the Stockholder is a party, or by
which it or any of its properties or assets may be bound or affected, except for
such violations, conflicts, losses, defaults, terminations, cancellations,
accelerations or Liens as would not, individually or in the aggregate,
reasonably be expected to prevent or materially delay the performance by the
Stockholder of any of its obligations under this Agreement.
(c) Ownership of Shares. The Stockholder owns, beneficially and of
record, all of the Stockholder Shares set forth opposite the Stockholder's name
on Schedule A hereto. The Stockholder owns all of its Stockholder Shares free
and clear of any proxy, voting restriction, adverse claim or other Lien (other
than (i) the Amended and Restated Stockholders Agreement, dated as of June 20,
2001, between the Company and the Stockholder and (ii) proxies and restrictions
in favor of Parent pursuant to this Agreement and except for such transfer
restrictions of general applicability as may be provided under the Securities
Act and the "blue sky" laws of the various States of the United States). Without
limiting the foregoing, except for proxies and restrictions in favor of Parent
pursuant to this Agreement and except for such transfer restrictions of general
applicability as may be provided under the Securities Act and the "blue sky"
laws of the various States of the United States, the Stockholder has sole voting
power and sole power of disposition with respect to all of its Stockholder
Shares, with no restrictions on the Stockholder's rights of voting or
disposition pertaining thereto and no Person other than the Stockholder has any
right to direct or approve the voting or disposition of any of its Stockholder
Shares. As of the date hereof, the Stockholder does not own, beneficially or of
record, any securities of the Company other than the number of shares which
constitute Stockholder Shares.
(d) Brokers. No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission that is payable by the Company, Parent or any of their
respective subsidiaries in connection with the transactions contemplated by the
Merger Agreement based upon arrangements made by or on behalf of the
Stockholder.
5
3. Representations and Warranties of Parent and Merger Sub. Parent
hereby represents and warrants to the Stockholder as follows:
(a) Organization, Standing and Corporate Power. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware
(b) Authority; Noncontravention. (1) Parent has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Parent of this
Agreement, and the consummation by Parent of the transactions contemplated
hereby, have been duly authorized and approved by its Board of Directors and no
other corporate action on the part of Parent is necessary to authorize the
execution, delivery and performance by Parent of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Parent and, assuming due authorization,
execution and delivery hereof by such Stockholder, constitutes a legal, valid
and binding obligation of Parent, enforceable against it in accordance with its
terms, subject to the Bankruptcy and Equity Exceptions. (2) Neither the
execution and delivery of this Agreement by Parent, nor the consummation by
Parent of the transactions contemplated hereby, nor compliance by Parent with
any of the terms or provisions hereof, will (i) conflict with or violate any
provision of the certificate of incorporation or bylaws of Parent or (ii)
assuming that the authorizations, consents and approvals referred to in Section
3(c) are obtained and the filings referred to in Section 3(c) are made, (x)
violate any law, judgment, writ or injunction of any Governmental Entity
applicable to Parent or any of its Subsidiaries or any of their respective
properties or assets, or (y) violate, conflict with, result in the loss of any
benefit under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination of
or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the properties or
assets of, Parent or any of its Subsidiaries under, any of the terms, conditions
or provisions of any contract to which Parent or any of its Subsidiaries is a
party, or by which they or any of their respective properties or assets may be
bound or affected except, in the case of clause (ii), for such violations,
conflicts, losses, defaults, terminations, cancellations, accelerations or Liens
as, individually or in the aggregate, would not reasonably be expected to
prevent or materially delay the ability of Parent to consummate the transactions
contemplated hereby).
(c) Governmental Approvals. Except for filings required under the
Exchange Act, no filings, declarations or registrations with, any Governmental
Entity are necessary for the execution and delivery of this Agreement by Parent,
other than such other consents, approvals, filings, declarations or
registrations that, if not obtained, made or given, would not, individually or
in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.
6
4. Termination. This Agreement shall terminate on the first to occur
of (a) the termination of the Merger Agreement in accordance with its terms and
(b) the Effective Time. Notwithstanding the foregoing, (i) nothing herein shall
relieve any party from liability for breach of this Agreement and (ii) the
provisions of this Section 4, Section 5, paragraphs (c) and (d) of Section 2 and
paragraph (h) of Section 1 hereof shall survive any termination of this
Agreement.
5. Miscellaneous.
(a) Action in Stockholder Capacity Only. The parties acknowledge that
this Agreement is entered into by the Stockholder in its capacity as an owner of
Stockholder Shares and that nothing in this Agreement shall in any way restrict
or limit any representative of the Stockholder that also is a director of the
Company from taking any action in his capacity as a director of the Company that
is necessary for him to comply with his fiduciary duties as a director of the
Company, including, without limitation, participating in his capacity as a
director of the Company in any discussions, negotiations or votes in accordance
with Section 7.7 of the Merger Agreement.
(b) Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
(c) Additional Shares. Until any termination of this Agreement in
accordance with its terms, the Stockholder shall promptly notify Parent of the
number of shares of Company Common Stock, if any, as to which the Stockholder
acquires record or beneficial ownership after the date hereof. Any shares of
Company Common Stock as to which the Stockholder acquires record or beneficial
ownership after the date hereof and prior to termination of this Agreement shall
be Stockholder Shares for purposes of this Agreement. Without limiting the
foregoing, in the event of any stock split, stock dividend or other change in
the capital structure of the Company affecting the Company Common Stock, the
number of shares of Company Common Stock constituting Stockholder Shares shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Common Stock or other voting
securities of the Company issued to the Stockholder in connection therewith.
(d) Definition of "Beneficial Ownership". For purposes of this
Agreement, "beneficial ownership" with respect to (or to "own beneficially") any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement is not intended to and
shall not confer upon any Person other than the parties hereto any rights
hereunder.
7
(f) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Any purported
assignment not permitted under this Section shall be null and void.
(g) Amendments; Waiver. This Agreement may not be amended or
supplemented, except by a written agreement executed by the parties hereto. Any
party to this Agreement may (A) waive any inaccuracies in the representations
and warranties of any other party hereto or extend the time for the performance
of any of the obligations or acts of any other party hereto or (B) waive
compliance by the other party with any of the agreements contained herein.
Notwithstanding the foregoing, no failure or delay by Parent in exercising any
right hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right hereunder. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
(h) Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(i) Counterparts. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other parties hereto.
(j) Descriptive Headings. Headings of Sections and subsections of
this Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(k) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Parent, to:
NBC Universal, Inc.
30 Rockefeller Plaza
New York, NY 10112
Attention: General Counsel
Facsimile: (212) 664-2147
8
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Raymond O. Gietz, Esq.
Facsimile: (212) 310-8007
if to Stockholder, to:
Hearst Communications, Inc.
959 Eighth Avenue
New York, NY 10019
Attention: General Counsel
Facsimile: (212) 649-2041
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 P.M. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(l) Drafting. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and, in the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as jointly drafted by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
(m) GOVERNING LAW; ENFORCEMENT; JURISDICTION; WAIVER OF JURY TRIAL.
(i) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
(ii) ALL ACTIONS AND PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT SHALL BE HEARD AND DETERMINED IN THE DELAWARE COURT OF CHANCERY
(AND IF THE DELAWARE COURT OF CHANCERY SHALL BE UNAVAILABLE, ANY COURT OF THE
STATE OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE
STATE OF DELAWARE), AND THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS (AND, IN THE CASE OF APPEALS, APPROPRIATE
9
APPELLATE COURTS THEREFROM) IN ANY SUCH ACTION OR PROCEEDING AND IRREVOCABLY
WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION
OR PROCEEDING. THE CONSENTS TO JURISDICTION SET FORTH IN THIS PARAGRAPH SHALL
NOT CONSTITUTE GENERAL CONSENTS TO SERVICE OF PROCESS IN THE STATE OF DELAWARE
AND SHALL HAVE NO EFFECT FOR ANY PURPOSE EXCEPT AS PROVIDED IN THIS PARAGRAPH
AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OR ENTITY OTHER THAN THE
PARTIES HERETO. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
APPLICABLE LAW.
(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
(iv) THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN
THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY
THE TERMS AND PROVISIONS OF THIS AGREEMENT IN THE DELAWARE COURT OF CHANCERY
(AND IF THE DELAWARE COURT OF CHANCERY SHALL BE UNAVAILABLE, ANY COURT OF THE
STATE OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE
STATE OF DELAWARE), WITHOUT BOND OR OTHER SECURITY BEING REQUIRED, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NBC UNIVERSAL, INC.
By: /s/ Lynn A. Calpeter
------------------------------------------
Name: Lynn A. Calpeter
Title: Chief Financial Officer
HEARST COMMUNICATIONS, INC.
By: /s/ James M. Asher
------------------------------------------
Name: James M. Asher
Title: Senior Vice President
11
SCHEDULE A
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Number of Shares of
Company Common Stock
Stockholder Beneficially Owned
- ----------- ------------------
Hearst Communications, Inc. 18,184,653