<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 1999
REGISTRATION NO. 333-68749
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
IVILLAGE INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7375 13-3845162
(STATE OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
170 FIFTH AVENUE
NEW YORK, NEW YORK 10010
(212) 604-0963
(212) 604-9133 (FAX)
(ADDRESS AND TELEPHONE NUMBER OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
CANDICE CARPENTER
CO-CHAIRPERSON OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
IVILLAGE INC.
170 FIFTH AVENUE
NEW YORK, NEW YORK 10010
(212) 604-0963
(212) 604-9133 (FAX)
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
Please send copies of all communications to:
<TABLE>
<S> <C>
MARTIN H. LEVENGLICK, ESQ. MARK G. BORDEN, ESQ.
RUBI FINKELSTEIN, ESQ. JAMES R. BURKE, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP HALE AND DORR LLP
30 ROCKEFELLER PLAZA 60 STATE STREET
NEW YORK, NEW YORK 10112 BOSTON, MASSACHUSETTS 02109
(212) 506-5000 (617) 526-6000
(212) 506-3730 (FAX) (617) 526-5000 (FAX)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
as amended (the "Securities Act"), please check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ____________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / ____________
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
This Amendment No. 3 to iVillage Inc.'s Registration Statement on
Form S-1 is being filed solely for the purpose of filing certain exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discounts, payable by the Registrant in connection with the sale of
the securities being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fee and the Nasdaq/NMS listing fee.
<TABLE>
<S> <C>
SEC Registration Fee................................................................ $ 16,337
NASD Filing Fee..................................................................... 6,377
Nasdaq National Market Listing Fee.................................................. 95,000
Printing Costs...................................................................... 350,000
Legal Fees and Expenses............................................................. 500,000
Accounting Fees and Expenses........................................................ 375,000
Blue Sky Fees and Expenses.......................................................... 10,000
Transfer Agent and Registrar Fees................................................... 7,500
Miscellaneous....................................................................... 139,786
----------
Total.......................................................................... $1,500,000
----------
----------
</TABLE>
- ------------------------------
* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent to the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Article VII of the Registrant's Bylaws provides for indemnification by the
Registrant of its directors, officers and employees to the fullest extent
permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant's Amended and Restated Certificate
of Incorporation provides for such limitation of liability.
The Registrant intends to obtain directors, and officers, insurance
providing indemnification for certain of the Registrant's directors, officers
and employees for certain liabilities.
Reference is also made to the Underwriting Agreement to be filed as
Exhibit 1.1 to the Registration Statement for information concerning the
Underwriters' obligation to indemnify the Registrant and its officers and
directors in certain circumstances.
II-1
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since January 1, 1995, the Registrant has issued and sold (without payment
of any selling commission to any person) the following unregistered securities:
(1) In September 1995, the Registrant issued and sold an aggregate of
666,668, 333,333, and 83,333 shares of Common Stock to Candice Carpenter,
Nancy Evans and Robert Levitan, respectively, at a price per share of
$.0015 (on a post-split basis).
(2) In September 1995, the Registrant issued a stock subscription
warrant to purchase 17,366 shares, on a post-split basis, of Series B
Convertible Preferred Stock at a price per share of $7.50 (the "September
1995 Warrant") and 1,000,000 shares of Series A Convertible Preferred Stock
to America Online, Inc. ("AOL") at a price per share of $1.00 in exchange
for the cancellation of a note and $496,494 in cash.
(3) In May 1996, the Registrant issued 797,130 shares of Series B
Convertible Preferred Stock to AOL at a price per share of $2.50 in
exchange for the cancellation of a note payable.
(4) In May 1996, the Registrant issued and sold an aggregate of
300,000 shares of Series B-1 Convertible Preferred Stock to AOL at a price
per share of $2.50 in exchange for the conversion of the principal amount
and accrued interest on two notes and $450,000 in cash.
(5) In May 1996, in connection with an information provider agreement,
the Registrant issued a stock subscription warrant to purchase 266,666
shares, (on a post-split basis), to AOL at a price per share of $7.50.
(6) In May 1996, the Registrant issued and sold an aggregate of
4,477,746 shares of Series B Convertible Preferred Stock at a price per
share of $2.50 to the following entities: Kleiner Perkins Caufield & Byers
VII ("Kleiner"), KPCB VII Founders Fund ("KPCB VII"), KPCB Information
Sciences Zaibatsu Fund II ("KPCB Information"), Ann R. Mathias, Edward J.
Mathias, TCI Online Village Holdings, Inc. ("TCI") and the Tribune Company
("Tribune").
(7) In December 1996, in connection with an Agreement and Plan of
Reorganization, the Registrant issued 33,333 shares of Common Stock (on a
post-split basis) each to Jacqueline B. Needelman and David L. Cohen in
consideration for 1,500 shares of jointly owned common stock of
ParentsPlace.com, Inc.
(8) In January 1997, Beth Polish exercised an option and received
8,333 shares of Common Stock at a price per share of $3.00 (on a post-split
basis).
(9) In January 1997, Elaine Rubin exercised an option and received
12,500 shares of Common Stock at a price per share of $3.00 (on a
post-split basis).
(10) In January 1997, Tina Neederlander exercised an option and
received 12,500 shares of Common Stock at a price per share of $3.00 (on a
post-split basis).
(11) In February 1997, the Registrant issued and sold stock
subscription warrants to purchase an aggregate of 111,771 shares of Common
Stock at a price per share of $5.86 (on a post-split basis) to AOL,
Tribune, Kleiner and KPCB Information in consideration for the cancellation
of a note and cash.
(12) In May 1997, the Registrant issued and sold an aggregate of
11,003,068 shares of Series C Preferred Stock at a price per share of
$1.954 to the following entities: AOL, Philip E Berney, CIBC Wood Gundy
Ventures, Inc. ("CIBC") Cox Interactive Media, Inc. ("Cox"), Convergence
Ventures I, L.P. ("Convergence"), Stephen Friedman, Charles A. Davis,
Growth Shares Ltd., Juergen Habermeier, Kleiner, KPCB Information, Ralph
Mack, Stephen M. Parish, Rho Management Trust I ("Rho"), Sonem Partners,
Tenet, Transatlantic Venture Partners C.V., Tribune, The Trustees of the
General Electric Pension Trust, Norman Tulchin, Stanley Tulchin and one
other corporate investor.
II-2
<PAGE>
(13) In May 1997, the Registrant issued warrants to Bear, Stearns &
Co. Inc. to purchase 30,194 shares of the Registrant's Common Stock at an
exercise price of $0.03 per share in consideration for services rendered
(on a post-split basis).
(14) In May 1997, in connection with a Plan of Reorganization and
Merger, among the Registrant, Health ResponseAbility Systems, Inc. and
other signatories thereto, the Registrant issued 433,400 shares of Common
Stock to Elin Silveous and 203,000 shares of Common Stock to AOL (on a
post-split basis).
(15) In December 1997, the Registrant issued and sold an aggregate of
2,190,377 shares of Series C Convertible Preferred Stock at a price per
share of $1.954 per share to the following entities: AOL, Convergence,
Convergence Entrepreneurs Fund I ("Convergence Entrepreneurs"), Rho, Sonem
Partners and O'Sullivan Graev & Karabell, L.L.P., Profit Sharing Plan F/B/O
Martin H. Levenglick.
(16) In February 1998, the Registrant issued and sold an aggregate of
284,317 shares of Common Stock to Tenet Healthcare Corporation ("Tenet") at
a price per share of $5.86 (on a post-split basis).
(17) In February 1998, the Registrant issued a certificate for an
aggregate of 76,800 shares of Series B Convertible Preferred Stock to
Kleiner in exchange for a certificate representing 76,800 shares of Series
B Convertible Preferred Stock issued to KPCB VII.
(18) In February 1998, the Registrant issued and sold an aggregate of
1,333,334 shares of Series D Convertible Preferred Stock to Tenet at a
price per share of $2.50.
(19) In March 1998, the Registrant issued and sold an aggregate of
4,480,000 shares of Series D Convertible Preferred Stock at a price per
share of $2.50 to the following entities: Convergence, Nexus Capital
Partners I, L.P., NIG-Village Ltd., Porcelain Partners L.P., Rho, TCV II
V.O.F., Technology Crossover Ventures II, L.P., TCV Strategic Partners,
L.P., Technology Crossover Partners II, C.V. and TCV II (Q), L.P.
(20) In April 1998, the Registrant issued and sold an aggregate of
6,434,000 shares of Series D Convertible Preferred Stock at a price per
share of $2.50 to the following entities: AOL, CIBC, Transatlantic Venture
Partners, C.V., Leavitt Family Trust, Boston Millennia Partners Limited,
Boston Millennia Associates I Partnership, FIMA Finance Management, Inc.,
Josef H. von Rickenbach, David Mahoney, Chestnut Investment Associates
1998, Chestnut Partners, Inc., Allyn C. Woodward, Moore Global Investments,
Ltd., Remington Investment Strategies, L.P., Ralph Mack, Cox and one other
corporate investor.
(21) In May 1998, the Registrant issued and sold an aggregate of
352,666 shares of Series D Convertible Preferred Stock at a price per share
of $2.50 to the following entities: Merrill Roth, Gannett International
Communications, Inc. and Pasquale Lavecchia.
(22) In June 1998, the Registrant issued and sold an aggregate of
400,000 shares of Series D Convertible Preferred Stock to a corporate
investor at a price per share of $2.50.
(23) In June 1998, Stephen Chao, Inc. exercised an option and received
8,333 shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(24) In December 1998, the Registrant issued and sold an aggregate of
11,730,948 shares of Series E Convertible Preferred Stock at a price of
$2.85 to the following entities: AOL, Boston Millennia Associates, Boston
Millennia Partners Limited, Lawrence Berk, CIBC, Convergence, Convergence
Entrepreneurs, Cox, Gannett, Leavitt, Steven Parish, Merrill Roth, Moore,
Nexus, NIG, O'Sullivan Graev & Karabell, L.L.P., Profit Sharing Plan F/B/O
Martin H. Levenglick, Ralph Mack, Remington, Rho, Sonem, TCI, TCI Ventures
Group, LLC, TCV II (Q), L.P., TCV II V.O.F., TCV Strategic Partners, L.P.,
Technology Crossover Ventures II, C.V., Technology Crossover Ventures II,
L.P., Tenet, Transatlantic, Tribune, William James Bell 1993 Trust,
Seligman Communications & Information Fund, Vantage Point Communications
Partners, LP, Vantage Point
II-3
<PAGE>
Venture Partners 1996, LP, Applewood Associates, Fred F. Nazem, Admirals,
L.P., Fred Tanzer, Van Wagoner Capital Management.
(25) In December 1998, John Kiefer exercised an option and received
833 shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(26) In December 1998, Eileen O'Reilly exercised an option and
received 83 shares of Common Stock at a price per share of $5.10 (on a
post-split basis).
(27) In December 1998, Laurie Peterson Wardell exercised an option and
received 83 shares of Common Stock at a price per share of $5.10 (on a
post-split basis).
(28) In January 1999, Warren Cook exercised an option and received
1,000 shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(29) In January 1999, Maura Curtin exercised an option and received 83
shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(30) In January 1999, Lisa Gansky exercised an option and received
4,000 shares of Common Stock at a price per share of $7.50 (on a post-split
basis).
(31) In January 1999, Dermott McCormack exercised an option and
received 83 shares of Common Stock at a price per share of $5.10 (on a
post-split basis).
(32) In January 1999, Christine Ohly exercised options and received
250 and 2,416 shares of Common Stock at a price per share of $3.00 and
$5.10, respectively (on a post-split basis).
(33) In January 1999, Sarah Cabot Rockwell exercised options and
received 833 shares of Common Stock at a price per share of $5.10 (on a
post-split basis).
(34) In January 1999, Deanna Vincent exercised options and received
6,250 shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(35) In January 1999, Philip Vo exercised options and received 83
shares of Common Stock at a price per share of $5.10 (on a post-split
basis).
(36) In February 1999, in connection with the acquisition of
KnowledgeWeb, Inc. d/b/a Astrology.Net, the Registrant issued 802,125
shares of Common Stock to Astrology.Net (on a post-split basis).
(37) In February 1999, the Registrant issued to NBC, pursuant to an
amendment to an advertising and promotional agreement, 3,684,210 shares of
Series E Convertible Preferred Stock at $2.85 per share, 1,204,819 shares
of Series E Convertible Preferred Stock at $4.15 per share and an option to
purchase 970,873 shares of Series E Convertible Preferred Stock at $5.15
per share during 2000 and 813,008 shares at $6.15 per share during 2001 in
exchange for a promissory note in the approximate amount of $15.5 million
at 5% interest per annum.
Exemption from registration for the transactions described above was
claimed pursuant to Section 4(2) of the Securities Act of 1933, as amended,
regarding transactions by the issuer not involving a public offering, in that
these transactions were made, without general solicitation or advertising, to
sophisticated investors with access to all relevant information necessary to
evaluate these investments and who represented to the Registrant that the shares
were being acquired for investment.
II-4
<PAGE>
ITEM 16. EXHIBITS.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.**
2.1 Agreement and Plan of Reorganization and Merger dated as of January 31, 1997, as amended on
March 31, 1997, as further amended as of May 15, 1997, as further amended as of May 16, 1997 and as
further amended as of May 23, 1997 among the Registrant, Health ResponseAbility Systems, Inc., and
other signatories thereto.**
2.2 Letter of Intent dated January 4, 1999 between the Registrant and KnowledgeWeb, Inc. d/b/a
Astrology.Net.**
2.3 Agreement and Plan of Reorganization dated as of December 10, 1996 among the Registrant, PP
Acquisition Corporation, ParentsPlace.com, Inc. and the stockholders of ParentsPlace.com, Inc.**
2.4 Letter Agreement dated February 10, 1999 by and among the Registrant and Kid's Warehouse, Inc.,
iBaby, Inc., Our Baby, LLC, JBM Ventures, Inc. and Gavin Mandelbaum.**
2.5 Agreement and Plan of Reorganization dated as of February 12, 1999 among the Registrant and
KnowledgeWeb Acquisition Corporation and KnowledgeWeb, Inc. and the Shareholders of
KnowledgeWeb,Inc.**
3.1 Certificate of Incorporation of the Registrant, as currently in effect.**
3.2 Form of Amended and Restated Certificate of Incorporation of the Registrant, to be filed prior to
completion of this offering.**
3.3 Form of Amended and Restated Certificate of Incorporation of the Registrant, to be filed and
effective upon completion of this offering.**
3.4 Bylaws of the Registrant, as currently in effect.**
3.5 Form of Amended and Restated Bylaws of the Registrant, to be effective upon completion of this
offering.**
4.1 Form of Registrant's Common Stock Certificate.*
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
9.1 Voting Trust Agreement dated as of September 19, 1995 between Candice Carpenter, Nancy Evans and
certain owners of Common Stock of the Registrant.**
10.1 Form of Indemnification Agreement between the Registrant and each of its directors and officers.**
10.2 1995 Amended and Restated Employee Stock Option Plan of the Registrant.**
10.3 1997 Amended and Restated Acquisition Stock Option Plan of the Registrant.**
10.4 Form of 1999 Employee Stock Option Plan of the Registrant.**
10.5 Form of 1999 Director Stock Option Plan of the Registrant.**
10.6 Form of 1999 Employee Stock Purchase Plan of the Registrant.**
10.7 Form of 1999 Acquisition Stock Option Plan of the Registrant.**
10.8 Interactive Services Agreement dated December 31, 1998, between the Registrant and America Online,
Inc. ("AOL").+
10.9 Confidential Bankcard Marketing Agreement dated June 4, 1998, between the Registrant and First
Credit Card Services USA L.L.C.+**
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------------------------
<S> <C>
10.10 Promotion Distribution and License Agreement dated October 21, 1998 between AT&T Corp. and the
Registrant.+**
10.11 Exclusive Sponsorship Agreement dated February 28, 1998 between Amazon.com, Inc. and the
Registrant.+**
10.12 Promotion Agreement dated November 6, 1998 between Snap! LLC and the Registrant.+**
10.13 Online Services Agreement dated December 19, 1997 between Charles Schwab & Co., Inc. and the
Registrant.+**
10.14 Letter Agreement dated November 11, 1998 between the National Broadcasting Company, Inc. and the
Registrant.**
10.15 Joint Activities Agreement dated September 1997 between Intuit Inc. and the Registrant.+**
10.16 Sponsorship Agreement dated as of December 18, 1998 by and between Ford Motor Media, a division of
J. Walter Thompson and the Registrant.+**
10.17 Sponsorship Agreement dated as of October 30, 1998 between Ralston Purina Company and the
Registrant.+**
10.18 Form of Non-Competition, Non-Disclosure and Assignment of Inventions Agreement dated September 9,
1995, and Amendment dated May 6, 1996, between the Registrant and each of Candice Carpenter and
Nancy Evans.**
10.19 Employment Letter dated June 4, 1998 to Craig Monaghan.**
10.20 Employment Letter dated December , 1998 to Allison Abraham.*
10.21 Lease dated August 21, 1995, commencing on September 1, 1995, as amended on September 20, 1995, as
amended and supplemented April 5, 1996, as further amended and supplemented on April 15, 1996, as
further amended and supplemented January 20, 1997, and as amended and supplemented on May 8, 1997,
between 170 Fifth Associates (the "Landlord") and the Registrant.**
10.22 Lease dated March 19, 1998, commencing March 15, 1998 between 149 Fifth Avenue Corporation and the
Registrant, as supplemented on June 30, 1998.**
10.23 Note and Warrant Purchase Agreement dated as of February 27, 1997, as amended April 29, 1997, among
the Registrant, AOL, Tribune, KPCB VII and KPCB Zaibatsu II, including Form of Warrant.**
10.24 Promissory Note dated June 5, 1998 in the amount of $500,000 between Candice Carpenter and the
Registrant.**
10.25 Fourth Amended and Restated Stockholders' Agreement dated as of December 4, 1998, among the
Registrant, the Founders and each of the Investors identified therein.**
10.26 Fourth Amended and Restated Registration Rights Agreement dated as of December 4, 1998, among the
Registrant, the Founders and each of the Investors identified therein.**
10.27 Amended Stock Purchase Agreement dated as of March , 1999 between the Registrant and the National
Broadcasting Company, Inc.*
10.28 Amended Letter Agreement dated as of March , 1999 between the Registrant and the National
Broadcasting Company, Inc.*
10.29 Promissory Note dated March , 1999 in the amount of $15,497,558.48 between the Registrant and the
National Broadcasting Company, Inc.*
21 List of subsidiaries.**
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2 Consents of PricewaterhouseCoopers LLP.**
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ----------------------------------------------------------------------------------------------------
<S> <C>
24 Power of Attorney (included on page II-8).**
27 Financial Data Schedule.**
</TABLE>
- ------------------------------
* To be filed by amendment.
** Previously filed
+ Confidential treatment has been requested for certain portions of this
agreement.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
II-7
<PAGE>
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 3 to this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York, on the 3rd day of March, 1999.
iVILLAGE INC.
By: /s/ Caterina A. Conti
---------------------------------
Caterina A. Conti
General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 3 to this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
- ------------------------------------------ -------------------------------------------------- -------------
<C> <S> <C>
/s/ Candice Carpenter* Co-Chairperson of the Board and Chief Executive March 3, 1999
- ------------------------------------------ Officer (Principal Executive Officer)
Candice Carpenter
/s/ Nancy Evans* Co-Chairperson of the Board and Editor-in- Chief March 3, 1999
- ------------------------------------------
Nancy Evans
/s/ Craig T. Monaghan* Chief Financial Officer (Principal Financial March 3, 1999
- ------------------------------------------ Officer)
Craig T. Monaghan
/s/ Sanjay Muralidhar* Vice President, Finance (Principal Accounting March 3, 1999
- ------------------------------------------ Officer)
Sanjay Muralidhar
/s/ Alan Colner* Director March 3, 1999
- ------------------------------------------
Alan Colner
/s/ Jay Hoag* Director March 3, 1999
- ------------------------------------------
Jay Hoag
/s/ Lennert J. Leader* Director March 3, 1999
- ------------------------------------------
Lennert J. Leader
/s/ Habib Kairouz* Director March 3, 1999
- ------------------------------------------
Habib Kairouz
/s/ Michael Levy* Director March 3, 1999
- ------------------------------------------
Michael Levy
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
- ------------------------------------------ -------------------------------------------------- -------------
<S> <C> <C>
/s/ Douglas McCormick* Director March 3, 1999
- ------------------------------------------
Douglas McCormick
/s/ Martin Yudkovitz* Director March 3, 1999
- ------------------------------------------
Martin Yudkovitz
/s/ Daniel Schulman* Director March 3, 1999
- ------------------------------------------
Daniel Schulman
*By: /s/ Caterina A. Conti
- ------------------------------------------
Caterina A. Conti
</TABLE>
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ---------- ------------------------------------------------------------------------------------------- -----------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement.**
2.1 -- Agreement and Plan of Reorganization and Merger dated as of January 31, 1997, as
amended on March 31, 1997, as further amended as of May 15, 1997, as further amended
as of May 16, 1997 and as further amended as of May 23, 1997 among the Registrant,
Health ResponseAbility Systems, Inc., and other signatories thereto.**
2.2 -- Letter of Intent dated January 4, 1999 between the Registrant and Knowledgeweb, Inc.
d/b/a Astrology.Net.**
2.3 -- Agreement and Plan of Reorganization dated as of December 10, 1996 among the
Registrant, PP Acquisition Corporation, ParentsPlace.com, Inc. and the stockholders
of ParentsPlace.com, Inc.**
2.4 -- Letter Agreement dated February 10, 1999 by and among the Registrant and Kid's
Warehouse, Inc., iBaby, Inc., Our Baby, LLC, JBM Ventures, Inc. and Gavin
Mandelbaum.**
2.5 -- Agreement and Plan of Reorganization dated as of February 12, 1999 among the
Registrant and KnowledgeWeb Acquisition Corporation and KnowledgeWeb, Inc. and the
shareholders of KnowledgeWeb, Inc.**
3.1 -- Certificate of Incorporation of the Registrant, as currently in effect.**
3.2 -- Form of Amended and Restated Certificate of Incorporation of the Registrant, to be
filed prior to completion of this offering.**
3.3 -- Form of Amended and Restated Certificate of Incorporation of the Registrant, to be
filed and effective upon completion of this offering.**
3.4 -- Bylaws of the Registrant, as currently in effect.**
3.5 -- Form of Amended and Restated Bylaws of the Registrant, to be effective upon
completion of this offering.**
4.1 -- Form of Registrant's Common Stock Certificate.*
5.1 -- Opinion of Orrick, Herrington & Sutcliffe LLP.
9.1 -- Voting Trust Agreement dated as of September 19, 1995 between Candice Carpenter,
Nancy Evans and certain owners of Common Stock of the Registrant.**
10.1 -- Form of Indemnification Agreement between the Registrant and each of its directors
and officers.**
10.2 -- 1995 Amended and Restated Employee Stock Option Plan of the Registrant.**
10.3 -- 1997 Amended and Restated Acquisition Stock Option Plan of the Registrant.**
10.4 -- Form of 1999 Employee Stock Option Plan of the Registrant.**
10.5 -- Form of 1999 Director Stock Option Plan of the Registrant.**
10.6 -- Form of 1999 Employee Stock Purchase Plan of the Registrant.**
10.7 -- Form of 1999 Acquisition Stock Option Plan of the Registrant.**
10.8 -- Interactive Services Agreement dated December 31, 1998, between the Registrant and
America Online, Inc. ("AOL").+
10.9 -- Confidential Bankcard Marketing Agreement dated June 4, 1998, between the Registrant
and First Credit Card Services USA L.L.C.+**
10.10 -- Promotion Distribution and License Agreement dated October 21, 1998 between AT&T
Corp. and the Registrant.+**
10.11 -- Exclusive Sponsorship Agreement dated February 28, 1998 between Amazon.com, Inc. and
the Registrant.+**
10.12 -- Promotion Agreement dated November 6, 1998 between Snap! LLC and the Registrant.+**
10.13 -- Online Services Agreement dated December 19, 1997 between Charles Schwab & Co., Inc.
and the Registrant.+**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ---------- ------------------------------------------------------------------------------------------- -----------
<S> <C> <C>
10.14 -- Letter Agreement dated November 11, 1998 between the National Broadcasting Company,
Inc. and the Registrant.**
10.15 -- Joint Activities Agreement dated September 1997 between Intuit Inc. and the
Registrant.+**
10.16 -- Sponsorship Agreement dated as of December 18, 1998 by and between Ford Motor Media,
advisor of J. Walter Thompson and the Registrant.+**
10.17 -- Sponsorship Agreement dated as of October 30, 1998 between Ralston Purina Company and
the Registrant.+**
10.18 -- Form of Non-Competition, Non-Disclosure and Assignment of Inventions Agreement dated
September 9, 1995, and Amendment dated May 6, 1996, between the Registrant and each
of Candice Carpenter and Nancy Evans.**
10.19 -- Employment Letter dated June 4, 1998 to Craig Monaghan.**
10.20 -- Employment Letter dated December , 1998 to Allison Abraham.*
10.21 -- Lease dated August 21, 1995, commencing on September 1, 1995, as amended on
September 20, 1995, as amended and supplemented April 5, 1996, as further amended and
supplemented on April 15, 1996, as further amended and supplemented January 20, 1997,
and as amended and supplemented on May 8, 1997, between 170 Fifth Associates (the
"Landlord") and the Registrant.**
10.22 -- Lease dated March 19, 1998, commencing March 15, 1998 between 149 Fifth Avenue
Corporation and the Registrant, as supplemented on June 30, 1998.**
10.23 -- Note and Warrant Purchase Agreement dated as of February 27, 1997, as amended
April 29, 1997, among the Registrant, AOL, Tribune, KPCB VII and KPCB Zaibatsu II,
including Form of Warrant.**
10.24 -- Promissory Note dated June 5, 1998 in the amount of $500,000 between Candice
Carpenter and the Registrant.**
10.25 -- Fourth Amended and Restated Stockholders' Agreement dated as of December 4, 1998,
among the Registrant, the Founders and each of the Investors identified therein.**
10.26 -- Fourth Amended and Restated Registration Rights Agreement dated as of December 4,
1998, among the Registrant, the Founders and each of the Investors identified
therein.**
10.27 -- Amended Stock Purchase Agreement dated as of March , 1999 between the Registrant
and the National Broadcasting Company, Inc.*
10.28 -- Amended Letter Agreement dated as of March , 1999 between the Registrant and the
National Broadcasting Company, Inc.*
10.29 -- Promissory Note dated March , 1999 in the amount of $15,497,558.48 between the
Registrant and the National Broadcasting Company, Inc.*
21 -- List of subsidiaries.**
23.1 -- Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2 -- Consents of PricewaterhouseCoopers LLP.**
24 -- Power of Attorney (included on page II-7).**
27 -- Financial Data Schedule.**
</TABLE>
- ------------------
* To be filed by amendment.
** Previously filed.
+ Confidental treatment has been requested for certain portions of this
agreement.
<PAGE>
iVillage Inc.
170 Fifth Avenue
New York, New York 10010
Re: iVillage Inc.
Registration Statement on Form S-1
----------------------------------
We have acted as counsel to iVillage Inc., a Delaware corporation
(the "Company"), in connection with the proposed issuance and sale by the
Company of up to 4,197,500 shares of the Company's Common Stock (the "Shares")
pursuant to the Company's Registration Statement on Form S-1 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"). This opinion is being furnished
in accordance with the requirements of item 16(a) of Form S-1 and Item
601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the issuance and sale of the
Shares. Based on such review, we are of the opinion that the Shares have been
duly authorized, and if, as and when issued in accordance with the Registration
Statement and the related prospectus (as amended and supplemented through the
date of issuance) will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus which is part of the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act, the rules and
regulations of the Securities and Exchange Commission promulgated thereunder, or
Item 509 of Regulation S-K. This opinion letter is rendered as of the date first
written above and we disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought to our
attention and which may alter, affect or modify the opinion expressed herein.
Our opinion is expressly limited to the matters set forth above and we render no
opinion, whether by implication or otherwise, as to any other matters relating
to the Company or the Shares.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
------------------------------
This Interactive Services Agreement (this "Agreement"), effective as
of December 31, 1998 (the "Effective Date"), is made and entered into by and
between America Online, Inc. ("AOL"), a Delaware corporation, with its
principal offices at 22000 AOL Way, Dulles, Virginia 20166, and iVillage, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 170 Fifth Avenue, 4th Floor, New York, NY 10010 (each a
"Party" and collectively the "Parties").
INTRODUCTION
------------
AOL and ICP each desires that ICP provide the ICP Sites through the
AOL Network, subject to the terms and conditions set forth in this Agreement.
Defined terms used but not defined in the body of the Agreement or in Exhibit C
shall be as defined on Exhibit B attached hereto.
TERMS
-----
1. DISTRIBUTION; PROGRAMMING
-------------------------
1.1 Anchor Tenancy. Beginning on the Launch Date (or upon the
launch of the new version of the applicable screen or
channel, as the case may be), ICP shall receive anchor tenant
distribution within the AOL Service as follows:
(a) Within the Families channel (or any specific successor
thereof), AOL shall continuously and prominently place an
agreed-upon ICP logo or banner (an "Anchor Tenant Button") on
each of (i) the Families channel main screen, (ii) the
Parenting subscreen and (iii) the Babies subscreen, or any
specific successor(s) of such screens, which Anchor Tenant
Buttons shall each link to the "Parent Soup" Online Area.
(b) Within the Health channel (or any specific successor
thereof), AOL shall continuously and prominently place an
Anchor Tenant Button on each of (i) the Health channel main
screen and (ii) the Illnesses and Treatments subscreen, or
any specific successor(s) of such screens, which Anchor
Tenant Buttons shall link to the "Better Health" Online Area.
(c) AOL shall continuously and prominently place an Anchor
Tenant Button on the Women's subchannel main screen (or any
specific successor thereof), which Anchor Tenant Button shall
link to the "iVillage Women's Network" Online Area.
(d) Until [*], AOL shall continuously and prominently place an
Anchor Tenant Button on the Lifestyles channel main screen (or
any specific successor thereof), which Anchor Tenant Button
shall link to the "iVillage Women's Network" Online Area.
Beginning on [*], AOL shall have the option to remove the
Anchor Tenant Button set forth in this Section 1.1(d), [*]
from the Lifestyles channel main screen, in which case the
carriage payments and Impressions Guarantees shall be
adjusted as set forth in Section 1.5.1.1 and
1
<PAGE>
Section 1.6.1. ICP may request that [*] the Anchor Tenant
Button set forth in this Section 1.1(d) on [*] by providing
[*] with written notice thereof no later than [*], in which
case the [*] and [*] shall be [*] as set forth in [*] and [*].
(e) AOL shall provide ICP with the keywords specified on
Exhibit A.2 hereto provided, however, that (i) AOL shall have
the right to discontinue provision to ICP of any keywords
that are not registered trademarks of ICP upon thirty (30)
days notice and (ii) ICP may submit for AOL's approval (not
to be unreasonably withheld) any other trademarks or trade
names of ICP as potential additional keywords.
(f) list the ICP Sites in AOL's "Find" feature.
Except to the extent expressly described herein, the exact
form, placement and nature of the Anchor Tenant Buttons shall
be determined by AOL in its reasonable editorial discretion.
1.1.1 Discontinuation of ICP properties. If ICP
discontinues provision of any property specified in
Section 1.1, ICP shall continue to be obligated to
pay AOL the full carriage fee specified in Section
1.5, provided that ICP and AOL shall negotiate in
good faith for a "make-good" provision to ICP for
the discontinued property, which may include
carriage for another ICP property or provision to
ICP of remnant AOL advertising inventory. Any such
"make-good" provision shall occur during the Term of
this Agreement.
1.2 ICP Sites. ICP shall work diligently to develop and implement
the ICP Sites, consisting of, at a minimum, the specific
Content described on Exhibit A attached hereto. ICP shall
develop the design of the Online Areas in consultation with
AOL and in accordance with any standard design and content
publishing guidelines provided to ICP by AOL (including,
without limitation, any HTML publishing guidelines). ICP
shall not authorize or permit any third party to distribute
the Licensed Content or any other Content of ICP through the
AOL Network absent AOL's prior written approval which shall
not be unreasonably withheld. The inclusion of any additional
Content in the ICP Sites (including, without limitation, any
features, functionality or technology) not expressly
described on Exhibit A shall be subject to AOL's prior
written approval, which shall not be unreasonably withheld or
delayed.
1.3 License. ICP hereby grants AOL a worldwide license to use,
market, license, store, distribute, display, communicate,
perform, transmit and promote the ICP Sites and the Licensed
Content (or any portion thereof) through such areas or
features of the AOL Network as AOL deems appropriate,
including without limitation the right to integrate Content
from the ICP Sites or another Linked Interactive Site by
linking to specific areas on the ICP Sites, provided that the
link to any such Content on the AOL Network shall conform
with the specifications set forth on Exhibit D. Without
limiting the generality of the foregoing, to the extent AOL
wishes to distribute the Licensed Content through an online
or Internet product or service separate and distinct from the
U.S. version of the America
2
<PAGE>
Online branded service (each an '"Additional AOL Product"):
(i) AOL shall provide ICP with prior written notice of the
Additional AOL Product through which the Licensed Content
will be made available; and (ii) any changes in the form or
presentation of the Licensed Content within the Additional
AOL Product shall be subject to ICP's approval, which shall
not be unreasonably withheld or delayed. AOL shall not be
required to pay any additional fees or other form of
compensation in connection with distribution of the Licensed
Content through any such Additional AOL Product.
1.4 Links on Sites. The Parties will work together on mutually
acceptable links (including links back to AOL) within the ICP
Sites in order to create a robust and engaging AOL member
experience. ICP shall take reasonable efforts to insure that
AOL traffic is generally either kept within the ICP Sites or
channeled back into the AOL Network. [*], ICP shall not be
permitted to establish any "pointers" or links between the ICP
Sites and any other area on or outside of the AOL Network,
including, without limitation, other ICP Sites or sites on the
World Wide Web portion of the Internet ("Linked Sites"),
without the prior written approval of AOL, which approval
shall not be unreasonably withheld and may be conditioned
upon, among other things, payment of certain linking fees and
commitments providing for promotion of the ICP Sites and AOL
through the Linked Site in question. In addition, AOL may
restrict its approval (at any time) to specific portions of
Content or functionality within a Linked Site (based on AOL's
programming objectives related to the ICP Sites). In such
case, establishment of the link from the ICP Site to the
Linked Site will be subject to mutual agreement of the Parties
regarding the means by which access will be restricted to the
approved portions of the Linked Site. Notwithstanding the
foregoing, ICP may establish links from an ICP Site to another
ICP Site provided that such links are editorial,
content-specific links, to relevant areas of the ICP Sites. In
general, such links shall be temporary (i.e., generally no
more than [*] days continuous duration, and in any event, for
no more than [*] days continuous duration and no more than [*]
days cumulatively (including partial duration days) in any [*]
period).
1.4.1 Management. AOL shall have no obligations of any
kind with respect to the ICP Sites or any Linked
Interactive Site. ICP shall be responsible for any
hosting or communication costs associated with the
ICP Sites and any Linked Interactive Sites
(including, without limitation, the costs associated
with (i) any agreed-upon direct connections between
the AOL Network and an ICP Internet Site or a Linked
Interactive Site or (ii) a mirrored version of an
ICP Internet Site or a Linked Interactive Site). Any
Linked Interactive Sites shall be subject to the
license set forth in Section 1.3 above. ICP will
permit AOL Members to access and use any ICP
Interactive Site free of charge during the Term. AOL
Members shall not be
3
<PAGE>
required to go through a registration process (or
any similar process) in order to access and use the
ICP Sites, provided that if ICP elects to have all
users of ICP Internet Sites go through a
registration and subscription process (or other
similar process) in order to access and use the
sites, then ICP shall be permitted to require AOL
Members to go through the identical process,
provided, further, that (a) AOL Members shall not be
required to go through any such registration process
from a Welcome Mat, and (b) in any event the ICP
Internet Sites shall contain a material amount of
Content that is available without AOL Members having
to go through any such registration process.
1.5 Carriage Fee. ICP shall pay AOL during the Term as follows:
1.5.1 Cash Payments. ICP shall pay AOL Three Million Six
Hundred Eighty Four Thousand Six Hundred Fifteen
Dollars ($3,684,615) in equal quarterly installments
beginning on the date this Agreement is executed and
Four Million Eight Hundred Sixty Three Thousand Six
Hundred Ninety Two Dollars ($4,863,692) in equal
quarterly installments beginning on or before the
date which is one (1) year from the Effective Date.
1.5.1.1 [*] Anchor Tenancy. In the event that
AOL or ICP elects to [*] the [*] channel
Anchor Tenant Button, as set forth in
Section [*], AOL will [*] (or [*] from
future [*]) a [*] of the [*] associated
with such [*], based on a monthly [*] of
$[*] for the first year of the Term and
a monthly [*] of $[*] for the second
year of the Term.
1.5.2 In-Kind Programming and Promotion. ICP shall provide
AOL with the equivalent of $[*] during the Term,
made up of the in-kind commitments specified on
Exhibit E attached hereto in the amounts and with
the bona-fide values listed in such exhibit (the
"ICP In-kind Commitments"). Without limiting any
other rights or remedies available to AOL, AOL's
anchor tenant and impressions commitments specified
in Sections 1.1 and 1.6 herein are and will be
contingent upon provision by ICP of the ICP In-Kind
Commitments in accordance with Exhibit E.
1.5.3 [*] Television Advertisements. ICP will make best
efforts to obtain [*] consent to provide AOL with the
following advertising on [*] ("[*]") during the Term:
(a) ICP will provide AOL with $[*], (based on
the best available preferred rate card as
provided in any ICP agreement with [*] or
its affiliates), in prime time advertising
spots on [*] for the broadcast of co-branded
ICP/AOL advertisements (each an "[*]" and
collectively, the "[*]"). In the event that
ICP is unable to secure every [*] during
prime time, the mix of prime time/non-prime
time [*] shall be at least equivalent to the
mix of prime time/non-prime time advertising
spots provided to ICP by [*]. No less than
[*] of the creative for each [*] shall
promote AOL.
(b) AOL, or its agents, shall produce at least
one [*], subject to the following: AOL shall
submit the [*] for ICP's approval, which
shall not be unreasonably withheld. If ICP
does not approve
4
<PAGE>
the [*], AOL will make one round of
revisions and resubmit the [*] for ICP's
approval, which shall not be unreasonably
withheld. If ICP approves the [*], either on
the first or second submission, AOL shall be
responsible for any costs [*] Incurred In
the production thereof. In the event that
ICP does not approve the second submission
of the [*], or in the event that the Parties
otherwise agree, ICP or its agents shall
produce the [*] and ICP shall obtain AOL's
approval of the [*]; provided that ICP shall
be responsible for any and all costs
incurred in the production thereof.
(c) In any instance when ICP promotes an ICP
Interactive Site on [*], ICP shall include
an equally prominent reference to ICP's AOL
Keyword.
1.5.4 Substitute [*]-Advertising. To the extent ICP is
unable to obtain [*] consent to the [*] set forth in
Section 1.5.3 above, then, at AOL's option:
(a) ICP will provide AOL with $[*] in
AOL-approved banner advertisements on ICP
Interactive Sites, valued at ICP's
preferred rate card price, which AOL may
use to promote any AOL product; or
(b) ICP will purchase $[*] of run of service
advertisements on the AOL Network (which
shall be in addition to the advertising
package set forth in Section 1.7). The
Parties shall work together to select the
screens on which such run of service
advertisements shall appear, subject to
AOL's discretion and final approval.
1.6 Impressions Guarantee. AOL shall provide ICP with at least
[*] Impressions for the first year of the Term and [*]
Impressions for the second year of the Term from ICP's
presence on the AOL Network (collectively, the "Impressions
Guarantee"). AOL shall use reasonable efforts to ensure that
the Impressions Guarantee is delivered in relatively
consistent amounts over the Term, measured on a quarterly
basis, subject to seasonal, customary and other appropriate
fluctuations. A minimum of [*]% of the Impressions Guarantee
shall be generated from the presence of ICP on the screens
set forth in Section 1.1, and the remaining Impressions, if
any, may be generated from ICP's presence on other
appropriate screens on the AOL Network as AOL may determine
in its discretion. For the purposes of this Agreement, ICP's
presence on an AOL screen shall conform to the specifications
set forth on Exhibit D (each, an "ICP Presence"), provided
that only screens that contain a link to an ICP Site will
count against the Impressions Guarantee. AOL will not be
obligated to provide in excess of any of such Impression
amounts in any year. In the event AOL provides an excess of
any annual Impressions amounts in any year, the Impressions
amount for the subsequent year will be reduced by the amount
of such excess. Any shortfall in Impressions at the end of a
year will not be deemed
5
<PAGE>
a breach of this Agreement by AOL; instead such shortfall
will be added to the Impressions target for the subsequent
year. In the event that the Impressions Guarantee is not met
(or will not, in AOL's reasonable judgment, be met) during
the Term, at AOL's option either (a) the Term shall be
extended for up to six (6) months without additional carriage
fees payable by ICP until the Impressions Guarantee is met,
(b) AOL shall, from time to time, provide ICP with the
remaining Impressions in the form of advertising space within
the AOL Network of comparable value to the undelivered
Impressions (as reasonably determined by AOL), or (c) some
combination thereof.
1.6.1 [*] Anchor Tenancy. In the event that AOL or ICP
elects to [*] the [*] channel Anchor Tenant Button,
as set forth in Section [*], the Impressions
Guarantee will be reduced by a pro rata portion,
based on a monthly Impressions Guarantee of [*] for
the first year of the Term and a monthly Impressions
Guarantee of [*] for the second year of the Term.
1.7 Other Advertising. The Parties shall work together in good
faith to develop a mutually agreed upon advertising package
(the "Advertising Package"). The Advertising Package shall be
comprised of advertising placements within the AOL Network
valued at (i) no less than $[*] during the first year of the
Term and (ii) no less than $[*] during the second year of the
Term. The Parties shall work together to make the Women's
subchannel the primary component of the Advertising Package.
The remaining advertising placements in the Advertising
Package shall be mutually agreed upon by the Parties. All
advertising placements in the Advertising Package shall be
subject to AOL's then-standard advertising policies and
exclusivity commitments to third parties and the terms and
conditions of AOL's standard advertising insertion order.
2. ADVERTISING AND TRANSACTIONS
----------------------------
2.1 Advertising Sales. AOL owns all right, title and Interest in
and to the advertising and promotional spaces within the AOL
Network (including, without limitation, advertising and
promotional spaces on any AOL forms or pages which are
included within, preceding, framing or otherwise associated
with the ICP Sites). The specific advertising inventory
within any AOL forms or pages shall be as reasonably
determined by AOL. With respect to the Online Areas
(including the Welcome Mats), AOL hereby grants ICP the sole
right, subject to the terms of his Agreement, to license or
sell promotions, advertisements, links, pointers or similar
services or rights in or through the Online Areas ("Online
Advertisements"), subject to (i) AOL's approval for each
Online Advertisement (such approval not to be unreasonably
delayed) and (ii) the Advertising Minimum. In addition, with
respect to promotions, advertisements, links, pointers or
similar services or rights in or through the Welcome Mats
(not including screens linked from the Welcome Mats) "Welcome
Mat Advertisements" and, collectively with Online
Advertisements, "AOL Advertisements"), which pursuant to the
preceding sentence ICP has the sole right to license or sell,
ICP shall pay AOL [*] of the Advertising Revenue generated
from such Welcome Mat Advertisements. If and when AOL makes
its ad server technology generally available to third parties,
AOL shall make such technology available for use by
6
<PAGE>
ICP with respect to the AOL Advertisements on AOL's
then-standards terms and conditions.
2.2 Advertising Policies.
2.2.1 AOL Advertisements. Any AOL Advertisements sold by
ICP or its agents shall be subject to AOL's
then-standard advertising policies, including,
without limitation, restrictions on the promotion of
any entity reasonably construed to be in competition
with AOL..
2.2.2 Linked Interactive Site Advertisements. ICP shall
ensure that AOL Members linking to any Linked ICP
Interactive Site from the AOL Network do not
encounter advertisements, promotions or links on or
through the Online Sites, the Welcome Mats or via
any Linked ICP Interactive Sites, (a) for any
entity, [*], reasonably construed to be
in competition with AOL or any AOL "component"
products and services, (e.g. AOL NetFind or other
search/directory services, AOL NetMail or
free/discount E-mail, yellow pages, white pages, "My
AOL" type personalized information, classifieds, and
other products and services as AOL may designate
from time to time during the Term) (collectively,
the "Component Products and Services"), (b) for [*]
(including any affiliates thereof), or any [*] or
affiliate products or services, (c) [*], or (d) in
violation of any other of AOL's then-standard
advertising policies. In the event that AOL notifies
ICP in writing that any advertising or promotional
Content associated with any Linked ICP Interactive
Site (a "Linked ICP Interactive Site Advertisement")
is in violation of AOL's then-standard advertising
policies, then ICP shall take commercially reasonable
steps to block access by AOL Members to such
advertising using ICP's then-available ad server or
other technology. In the event that ICP cannot,
through Its commercially reasonable efforts, block
access by AOL Members to the advertising in question,
then ICP shall provide AOL prompt written notice of
such fact. AOL may then, at its option, either (i)
restrict access from the AOL Network to the
advertising in question using technology available to
AOL or (ii) terminate the link from the AOL Network
to the Linked ICP Interactive Site until such time as
the advertising in question is no longer displayed.
ICP will cooperate with AOL's reasonable requests to
the extent AOL elects to implement any such access
restrictions.
2.3 Advertising Compliance. ICP shall take all reasonable steps
necessary to ensure that any AOL Advertisement sold by ICP
complies with all applicable federal, state and local laws
and regulations.
2.4 Advertising Registration Form. In connection with the sale by
ICP of any AOL Advertisement, ICP shall, in each instance,
provide AOL with a completed standard AOL Advertising
Registration Form relating to such AOL Advertisement.
2.5 Advertising Packages. To the extent ICP sells a Welcome Mat
Advertisement as part of an advertising package including
multiple placement locations (e.g., both Welcome Mat and
another area or site), ICP shall allocate the payment for
7
<PAGE>
such advertising package between or among such locations in
an equitable fashion, subject to the Advertising Minimum.
When selling advertising associated with the ICP Sites, ICP
shall use commercially reasonable efforts to sell related
advertising within the Welcome Mats. To the extent an
advertisement is delivered through a dynamic mechanism
primarily linked to particular AOL Members viewing such
advertisement (rather than a defined space within the Welcome
Mats), the amount of revenue from the advertisement allocable
to Advertising Revenue shall be determined based on the
number of impressions to the advertisement generated by AOL
Members while viewing Content within the Welcome Mat relative
to the total impressions to the advertisement during the
given period (or such other formula as AOL may reasonably
implement given the then-existing advertising models).
2.6 Interactive Commerce. All merchandising on the ICP Sites
shall be subject to (i) the terms of the Shopping Channel
Promotional Agreement between AOL and ICP dated as of January
1, 1998 (the "Commerce Agreement"), (ii) the requirements
posted at keyword "Marketplace Policy" on the America
Online(R) brand service (or such other keyword as AOL may
designate during the Term), (iii) approval by AOL of all
Products to be offered, which approval shall not be
unreasonably withheld, and (iv) the then-current requirements
of AOL's merchant certification program. Upon the expiration
of the Commerce Agreement, all merchandising on the ICP Sites
shall be subject to AOL's prior written approval. Prior to
entering into negotiations with any third party regarding
merchandising or commerce arrangements through the ICP Sites,
ICP shall give AOL written notice of such desire and, upon
request by AOL made within [*] business days after receipt of
such notice from ICP, negotiate in good faith with AOL or its
commerce or marketing partner in the applicable product/
service category regarding a merchandising or commerce
arrangement.
3. PROMOTION
---------
3.1 Cooperation. Each Party shall cooperate with and reasonably
assist the other Party in supplying Content for marketing and
promotional activities which relate to the ICP Sites.
3.2 Interactive Site. ICP shall include the following promotions
within each ICP Interactive Site, including, without
limitation, ICP's Interactive Site on [ * ],
during the Term: a continuous promotional banner for
AOL appearing "above the fold" on the first screen of the ICP
Interactive Site which shall be as prominent as the banner
(or any other form of promotion) for [ * ] and more
prominent than the banner (or any other form of promotion)
for any other Interactive Service, through which AOL may
promote any AOL product. AOL shall have a "right of first
refusal" with respect to ICP's promotion of any products or
services reasonably deemed to be competitive with AOL's
Component Products and Services (as set forth in Section
2.2.2). The "right of first refusal" means that AOL shall
have the right to purchase promotional space on an ICP
Interactive Site to promote AOL's Component Products and
Services, upon ICP's decision to offer such promotional
space, at the same terms offered by ICP to a third party.
8
<PAGE>
3.3 Other Media. In addition to the specific terms set forth in
Section 1.5.3 herein, ICP shall prominently and regularly
promote AOL and the ICP Sites availability through the AOL
Service in publications, television and radio programs,
features or other forms of media over which ICP exercises
substantial editorial control. Except as required by the
terms of ICP's agreement with [*] as set forth in the letter
[*] from [*] to ICP, ICP shall not promote any other
Interactive Service, including without limitation [ * ] in any
forms of "offline" media through which ICP purchases
promotional space (either through cash, stock, barter or by
providing any other "in-kind" value) or in publications,
television and radio programs, features or other forms of
media over which ICP exercises complete or substantial
editorial control. ICP shall not enter into any agreement,
written or oral, that will in any way serve to intentionally
undermine the provisions of this, or any other, paragraph of
the Agreement.
3.4 Keyword Mentions. In any instances when ICP makes promotional
reference to an ICP Interactive Site in publications,
television, radio, the Internet, and any other forms of
media, and exercises at least partial editorial control,
including any listings of the applicable "URL(s)" for such
web site(s) (each a "Web Reference"), ICP shall include a
listing of the applicable AOL "keyword" of comparable
prominence to the Web Reference.
3.5 Preferred Access Provider. In any "offline" Web Reference,
ICP shall promote AOL as the preferred access provider
through which a user can access ICP's Content (and ICP shall
not implement or authorize any other promotions on behalf of
any third parties which are inconsistent with the foregoing).
Notwithstanding the foregoing, AOL acknowledges that, due to
contractual commitments set forth in [ * ], ICP may be
required to promote [*] on an ICP Interactive Site. In such
cases, AOL shall be promoted as prominently as [ * ].
3.5.1. Upon the expiration or termination of the [ * ],
AOL shall have the non-exclusive right of
first negotiation to enter into a similar
promotion/distribution agreement with ICP.
3.6 Direct Marketing. The Parties shall execute any commercially
reasonable New Member acquisition programs, and ICP shall
earn a bounty of $[*] for each New Member.
3.7 Member Benefits. ICP will generally promote through the ICP
Sites any special or promotional offers made available by or
on behalf of ICP through any ICP Interactive Site or any
other distribution channel. In addition, ICP shall promote
through the ICP Sites on a regular and consistent basis
special offers exclusively available to AOL Members ("AOL
Exclusive Offers"). ICP shall, at all times, feature at least
one AOL Exclusive Offer for AOL Members (except as otherwise
mutually agreed upon by the Parties). The AOL Exclusive Offer
made available by ICP shall provide a substantial member
benefit to AOL Members, either by virtue of a meaningful
price discount, product enhancement, unique service benefit
or other special feature. The Parties shall meet from time to
time during the Term, (e.g. quarterly) to agree upon any such
AOL Exclusive Offers. In any
9
<PAGE>
event, ICP will provide AOL with reasonable prior notice of
AOL Exclusive Offers and other special offers so that AOL
can, in its editorial discretion, market the availability of
such offers.
4. PAYMENTS AND REPORTING
----------------------
4.1 Payment Schedule. Except as otherwise specified in Section
1.5 and 6.4, each Party agrees to pay the other Party all
amounts received and owed to such other Party as described
herein on a quarterly basis within thirty (30) days of the
end of the quarter in which such amounts were collected by
such Party. The first quarter for which payment is to be made
shall (i) begin on the first day of the month following the
month of execution of this Agreement and (ii) include the
portion of the month of execution following the Effective
Date (unless the Agreement was executed on the first day of a
month, in which case the quarter shall be deemed to begin on
the first day of such month). All payments by ICP hereunder
shall be paid in immediately available, non-refundable U.S.
funds wired to the "America Online" account, Account Number
[*], or such other account of which AOL shall give ICP
written notice.
4.2 Reporting. On no less than a monthly basis, each Party shall
supply or make available to the other Party reports
containing the following information:
4.2.1 Advertising and Transactions. ICP shall provide
detailed information to AOL regarding AOL
Advertisements. In reporting any advertisement or
promotion, ICP shall indicate the name of the
advertiser, the term of the advertising arrangement
and the amounts paid (or to be paid) to ICP or its
agent(s).
4.2.2 Usage Data. AOL shall make available to ICP a
monthly report specifying usage information for each
of the Online Areas for the prior month in the
format which is generally made available to
similarly situated interactive content providers. In
addition, to the extent AOL is caching the ICP
Sites, AOL shall supply ICP with monthly reports for
each ICP Site reflecting aggregate impressions by
AOL Members to the cached version of the ICP Sites
during the prior month. ICP will supply AOL with
monthly reports, for each ICP Site, which reflect
total impressions by AOL Members to Welcome Mats
during the prior month and any transactions
involving AOL Members at the ICP Sites during the
period in question. ICP shall also provide AOL with
"click-through" data with respect to the promotions
specified in Section 3.
4.2.3 Promotional Commitments. ICP shall provide to AOL a
monthly report documenting its compliance with any
promotional commitments it has undertaken pursuant
to Section 3 in the form attached as Exhibit E
hereto.
5. CUSTOMIZED LINKED INTERACTIVE SITE
----------------------------------
5.1 Performance. ICP shall optimize the ICP Sites for
distribution hereunder according to AOL specifications and
guidelines, including, if applicable, the Operating Standards
set forth on Exhibit G attached hereto. ICP shall allow
10
<PAGE>
appropriate AOL personnel to have access to the ICP Sites for
the purpose of reviewing such site to determine compliance
with the provisions of this Section 5 and Exhibit G.
5.2 Customization. ICP shall customize the ICP Sites for AOL
Members as follows:
(a) upon AOL's request, create a customized, co-branded home
page "welcome mat" for the AOL audience for each area on the
ICP Sites linked to from the AOL Network on a continuous
basis (each a "Welcome Mat"), which Welcome Mat(s) shall be
subject to AOL approval;
(b) ensure that AOL Members linking to the ICP Sites do not
receive advertisements, promotions or links for any entity,
product, or service reasonably construed to be in competition
with AOL's products or services, or otherwise in violation of
AOL's then-standard advertising policies or exclusivity or
premiere commitments to third parties; and
(c) provide continuous navigational ability for AOL Members
to return to an agreed-upon point on the AOL service (for
which AOL shall supply the proper address) from the ICP Sites
(e.g., the point on the AOL service from which the ICP Sites
are linked), which, at AOL's option, may be satisfied through
the use of a hybrid browser format.
6. TERM AND TERMINATION.
---------------------
6.1. Term. Unless earlier terminated as set forth herein, the
initial Term of this Agreement shall commence on the
Effective Date and expire two (2) years from the Effective
Date ("Initial Term").
6.1.1 One Year Extension by AOL. AOL may extend the
Agreement for an additional year from December 31,
2000, upon AOL's then-standard terms and conditions
generally applicable to anchor tenants (but in no
event less favorable to ICP than the terms and
conditions provided for herein) and with payments by
ICP to AOL of $[*] (or $[*] if the [*] channel Anchor
Tenant Button is removed pursuant to 1.1(d)) (the
"Renewal Carriage Fee") by providing ICP with written
notice thereof no later than sixty (60) days prior to
the expiration of the Initial Term (the "Put
Notice"), provided, however, that if the most recent
price offered to and accepted by AOL as valid for the
placements specified herein (e.g., for continuous and
prominent logos or banners as specified in Section
1.1) is [*] of the Renewal Carriage Fee or less (a
"Renewal Offer"), then AOL may only extend this
Agreement for an additional year by a Put Notice
specifying to ICP the Renewal Offer as the applicable
carriage fee. The Renewal Carriage Fee (or Renewal
Offer as the applicable carriage fee, as the case may
be) shall be made up of a combination of cash and
in-kind commitments, subject to the following: (i)
the proportion of cash to in-kind commitments shall
be determined by ICP, provided that no less than (a)
$[*] of the Renewal Carriage Fee or [*]% of the
Renewal Offer (as the case
11
<PAGE>
may be) or (b) if the [*] channel Anchor Tenant
Button is [*] pursuant to [*], $[*] of the Renewal
Carriage Fee or [*]% of the Renewal Offer (as the
case may be) shall be in cash and payable in equal
monthly installments in advance of each month
beginning on December 31, 2000; and (ii) the value
placed by ICP on and schedule of the in-kind
commitments shall be subject to AOL's prior written
approval (not to be unreasonably withheld).
6.1.2 One Year Extension by ICP. If AOL does not deliver
the Put Notice, ICP may, no later than forty five
(45) days prior to the expiration of the Initial
Term, notify AOL in writing (the "Call Notice") that
ICP desires to renew this Agreement for an
additional year from December 31, 2000, on AOL's
then-standard terms and conditions generally
applicable to anchor tenants (but in no event less
favorable to ICP than the terms and conditions
provided for herein) and with payments by ICP to AOL
of the "Market Rate" (as defined below). AOL shall
then provide ICP written notice of the "Market Rate"
for the additional year within thirty (30) days of
AOL's receipt of the Call Notice (the "Market Rate
Notice"). ICP shall have ten (10) days from receipt
of the Market Rate Notice to either accept or
decline the terms contained therein for the
additional year, provided that ICP's failure to
respond to the Market Rate Notice within such 10 day
period shall be deemed to be an acceptance of the
terms contained therein. If ICP accepts the terms
contained in the Market Rate Notice for the
additional year, then the Market Rate shall be
payable by ICP to AOL in a combination of cash and
in-kind commitments, subject to the following: (i)
the proportion of cash to in-kind commitments shall
be determined by ICP, provided that no less than
[*]% of the Market Rate (or [*]% of such Market Rate
if the Lifestyles channel Anchor Tenant Button is
removed) shall be in cash and payable in equal
monthly installments in advance of each month
beginning on December 31, 2000; and (ii) the value
placed by ICP on and schedule of the in-kind
commitments shall be subject to AOL's prior written
approval (not to be unreasonably withheld). If ICP
declines the terms contained in the Market Rate
Notice for the additional year, AOL shall not, for a
period of one hundred twenty days (120) days
thereafter, agree with any non-affiliated third
party for continuous placement on the Screens (as
specified in this Agreement) for a carriage fee that
is materially less than the Market Rate. For the
purposes hereof, "Market Rate" shall mean the rate,
specified by AOL in its notice to ICP, reasonably
determined by AOL for anchor tenant placement as
specified herein for the screens specified in this
Agreement, taking into account such reasonable
considerations as AOL may determine in its
discretion.
6.2 Termination for Breach. Either Party may terminate this
Agreement at any time in the event of a material breach by
the other Party which remains uncured after thirty (30) days
written notice thereof.
6.3 Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary
or involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
12
<PAGE>
6.4 Effect of Agreement. The Parties agree that upon the
execution of this Agreement by both Parties, that Interactive
Services Agreement by and between AOL and ICP, effective as
July 1, 1997 ("ICP Agreement") is terminated. The termination
of the ICP Agreement is subject to the survival of those
terms expressly identified for survival in the ICP Agreement
and ICP's payment to AOL of all amounts owed by ICP to AOL as
of the Effective Date of this Agreement pursuant to Section
1.5.1 thereof. ICP shall pay the foregoing outstanding
amounts to AOL no later than sixty (60) days following the
execution of this Agreement by both Parties. Except as
otherwise provided herein, any and all obligations arising
from, related to or in connection with that ICP Agreement are
hereby extinguished.
6.5 Entire Agreement. This Agreement sets forth the entire
agreement and supersedes any and all prior agreements of the
Parties with respect to the transactions set forth herein.
Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is
different from or in addition to the provisions of this
Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in
writing.
7. TERMS AND CONDITIONS. The legal terms and conditions set forth on
Exhibit C attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
AMERICA ONLINE, INC. iVILLAGE, INC.
By: /s/ Lynne Crawford By: /s/ Steve Elkes
Print Name: Lynne Crawford Print Name: Steve Elkes
Title: VP/CFO AOL Interactive Services Title: VP Business/Legal Affairs
13
<PAGE>
EXHIBIT A
---------
A.1 Description of Content
----------------------
Description of the ICP Sites
- ----------------------------
iVillage:
Parent Soup:
Better Health:
A.2 iVillage Keywords
-----------------
14
<PAGE>
EXHIBIT B
---------
DEFINITIONS. The following definitions shall apply to this Agreement:
Advertising Minimum. (i) [*] per thousand entries per month or (ii) such
different rate or fates as AOL may establish based upon market conditions and
publish during the Term.
Advertising Revenues. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP or its
agents arising from the license or sale of Welcome Mat Advertisements. less
applicable Advertising Sales Commissions; provided that in order to ensure that
AOL receives fair value in connection with Welcome, Mat Advertisements, ICP
shall be deemed to have received no less than the Advertising Minimum in
instances when ICP makes an AOL Advertisement available to a third patty at a
cost below the Advertising Minimum.
Advertising Sales Commission. Actual amounts paid as commission to third party
agencies in connection with sale of the Welcome Mat Advertisement or (ii) 15%.
in the event ICP has sold the Welcome Mat Advertisement directly and will riot
be deducting any third party agency commissions.
Affiliate. Any agent, distributor or franchises of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL Look and Feel. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user Interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) which are
associated with Online Areas within the AOL Network and the total appearance
and impression substantially formed by the combination. coordination and
interaction of these elements.
AOL Member(s). Authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL Service. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) AOL.com or any other AOL Interactive Site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) "ICQ," "AOL NetFind", "AOL Instant Messenger(Trade Mark)" 'Digital
Cities(Trade Mark)". 'NetMail(Trade Mark)" or any similar independent product
or service which may be offered by, through or with to U.S. version of the
America Online(Registered) brand service, (d) any programming or content area
offered by or through the U.S. version of the America Online brand service over
which AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (e) any yellow pages. white pages, classifieds or other search,
directory or review services of Content offered by or through the U.S. version
of the America Online(R) brand service, (f) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (g) any other version of an America Online service which is materially
different from the narrow-band U.S. version of the America Online brand service,
by virtue of its branding, distribution, functionality, Content and services,
including, without imitation, any co-branded version of the service and any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
AOL Network. (i) The AOL Service and (ii) any other product or service owned,
operated, distributed or authorized to be distributed by or through AOL or its
Affiliates worldwide through which such party elects to offer the Licensed
Content (which may include, without limitation, AOL-related Internet sites,
"offline" information browsing products, international versions of the AOL
brand service, and CompuServe). For the avoidance of doubt, without imitation,
the AOL Network includes the AOL Australia Service, the AOL Canada Service, the
AOL France Service, the AOL Germany Service, the AOL Japan Service and the AOL
UK Service.
Confidential Information. Any information relating to or disclosed In the
course of negotiating and Implementing the Agreement which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing
Party, including, but not limited to, the content of negotiations between the
Parties. the material terms of this Agreement. Information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost
and other unpublished financial information, product and business plans.
projections and marketing data "Confidential Information" shall not Include
information (a) already lawfully known to or independently developed by the
receiving Party, (b) disclosed in published materials, (c) generally known to
the public, (d) lawfully obtained from any third party or (e) required or
reasonably advised to be disclosed by law.
Content. Text, images, video, audio (including, without Imitation, music used
In time relation with text. Images, or video), and other data, products,
services, advertisements, promotions. links, pointers, technology and software.
ICP Interactive Site. Any interactive site or area (other than the ICP Sites)
which is managed, maintained or owned by ICP or its agents or to which ICP
provides and/or licenses Content, Including, by way of example and without
Imitation, (i) an ICP site on the World Wide Web portion of the Internet
(including the ICP Internet Sites) or (ii) a channel or area delivered through
a "push" product such as the Pointcast Network or interactive environment such
as Microsoft's proposed "Active Desktop."
ICP Internet Sites. Collectively, (i) the Internet site and Content, currently
located at URL:http://www.ivillage.com, which are managed, maintained or owned
by ICP or its agents or to which ICP licenses Information, content or other
materials and (H) the portions of the ICP Sites which are located on the world
wide web portion of the Internet.
ICP Sites. The sites and Content specified on Exhibit A which are managed,
maintained or owned by ICP or its agents. The ICP Sites shall consist of the
Online Areas (including the Welcome Mats) and the ICP Internet Sites.
Impression. User exposure to (i) the page containing an ICP Presence or (i) a
page of the ICP Internet Sites, as the context may require, as such exposure
may be reasonably determined and measured by the reporting Party In accordance
with its standard methodologies and protocols.
16
<PAGE>
Interactive Service. An entity, offering one or more of the following: (i)
online or Internet connectivity services (e.g., an Internet service provider);
(ii) a broad selection of aggregated third party Interactive content (or
navigation thereto) (e.g., an online service or search and directory service),
(iii) communications software capable of serving as the principal means through
which a user creates, sends and receives electronic mail or real time online
messages.
Keyword(TM) Search Terms. The Keyword(TM) online search terms made available on
the AOL Service for use by AOL Members, combining AOL's Keyword(TM) online
search modifier with a term or phrase specifically related to ICP (and
determined in accordance with the terms of this Agreement).
Launch Date. The earliest date upon which ICP's Anchor Tenant Button is
displayed on any screen on which it is required under Section 1.1 to be
displayed.
Licensed Content. All Content provided by ICP or its agents to AOL or its
Affiliates for distribution through the, AOL Network In connection with the
subject matter of this Agreement
Linked Interactive Site. Any site or area outside of the AOL Service which is
linked to the Online Areas (through a "pointer" or similar link) In accordance
with the terms and conditions of this Agreement. For the avoidance of doubt,
the ICP Internet Site shall be deemed a Linked Interactive Site if the ICP
Internet Site is linked to the Online Areas.
Linked ICP Interactive. Site. Any ICP Interactive Site which is also a Linked
Interactive Site.
New Member. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) who remains an AOL Member for two
paid billing cycles.
Online Areas. The specific areas of (the ICP Sites that reside within the AOL
Network (including the Welcome Mats), as described In Exhibit A, which shall be
developed, managed or marketed by ICP pursuant to this Agreement including but
not limited to the Licensed Content, message boards, chat and other AOL
Member-supplied content areas contained therein (but excluding any Linked
Interactive Sites other than sites which are exclusively available to AOL
Members).
Products. Any product, good or service which ICP offers, sells or licenses to
AOL Members through (i) the ICP Sites, (ii) any Linked ICP Interactive Site or
(iii) an "offline" means (e.g., toll-free number) for receiving orders related
to specific offers within the ICP Sites requiring purchasers to reference a
specific promotional identifier or tracking code, including, without
limitation, products odd trough surcharged downloads (to the extent permitted
hereunder).
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of the Agreement.
17
<PAGE>
EXHIBIT C
---------
II. ICP SITES
AOL Terms of Service; Unspecified Content. AOL shall have the right to remove,
or direct ICP to remove any Content from the ICP Sites or the Welcome Mat (or
remove the link from, or otherwise block Content contained on. a Linked
Interactive Site), which, as reasonably determined by AOL: (I) violates AOL's
then-standard Terms of Service (as set forth on the America Online(TM) brand
service), the Terms of this Agreement or any other standard, written AOL
policy, (ii) violates the warranties made by ICP under the section below
entitled 'Management", or (iii) is not specifically described on Exhibit A. To
the extent ICP wishes to implement any rules of conduct or terms of service
related to the ICP Sites which are separate from or supplementary to AOL's
Terms of Service, ICP must obtain the prior written approval of the AOL Legal
Department.
Management. ICP shall review, delete, edit, create, update and otherwise manage
all Content available on or through the ICP Sites, any Linked ICP Interactive
Site and the Welcome Mat, including but riot limited to the Licensed Content
and message boards, in a timely and professional manner and in accordance with
the terms of this Agreement, AOL's then-standard Terms of Service and any
generally applicable guidelines and service standards for interactive content
providers published by AOL. In managing the ICP Sites, ICP agrees to refrain
from editing or altering any opinion expressed by an AOL Member within the ICP
Sites, except in cases when ICP (i) has a good faith belief that the Content in
question violates an applicable law, regulation, third party right or portion
of AOL's Terms of Service or (ii) obtains AOL's prior approval. ICP shall
ensure that the ICP Sites is reasonably current and well-organized, and shall
employ all necessary procedures to insure the accuracy of the, Licensed
Content. ICP warrants that the ICP Sites, the Licensed Content. the Welcome Mat
and any Linked Interactive Sites (i) will conform to AOL's applicable Terms of
Service; (ii) will not infringe on or violate any copyright, trademark, patent
or any other third party right, including without limitation, any music
performance or other music related rights; and (iii) will not contain any
Content which violates any applicable law or regulation. AOL shall have no
obligations with respect to the Content available on or through the ICP Sites,
the Welcome Mat or any Linked Interactive Site, including, but not limited to,
any duty to review or monitor any such Content
Changes to AOL Service. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service and/or other portions of the AOL Network. If AOL eliminates or
modifies the screen(s) specified in Section 1.1 in a manner that substantially
modifies the nature of the placements for ICP described in Section 1.1 in a
material adverse fashion, AOL will work with ICP in good faith to provide ICP
with a comparable package of placements which are reasonably satisfactory to
ICP.
Contests. ICP shall take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted Or promoted through the ICP Sites, a
Linked Interactive Site or the Welcome Mat (a 'Contest") complies with all
applicable federal, state and local laws and regulations. ICP shall provide AOL
with (I) at least thirty (30) days prior written notice of any Contest and (ii)
upon AOL's request an opinion from ICP's counsel confirming that the Contest
complies with all applicable federal, state and local laws and regulations.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
title and Interest In and to the AOL Look and Feel. In addition. AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the Licensed Content or any Linked Interactive Site (the -AOL Frames-).
AOL may, at its discretion, incorporate navigational icons, links and pointers
or other Content into such AOL Frames.
Operations. AOL shall be entitled to require reasonable changes to Licensed
Content or any Linked Interactive Site to the extent such Licensed Content
will, in AOL's good faith judgment adversely affect technical operations of the
AOL Network.
Duty to Inform. ICP shall promptly inform AOL of any Information related to the
Licensed Content which could reasonably lead to a claim, demand or liability of
or against AOL and/or its Affiliates by any third party.
Response to Questions/Comments; Customer Service. ICP shall respond promptly
and professionally to questions, comments, complaints and other reasonable
requests regarding the Licensed Content by AOL Members or on request by AOL,
and shall cooperate and assist AOL In promptly answering the same.
Classifieds. To the extent ICP desires to implement any classifieds listing
features through the ICP Sites, ICP shall obtain AOL's prior written approval.
Such approval may be conditioned upon, among other things, ICP's conformance
with any then-applicable service-wide technical or other standards related to
online classifieds.
Message Boards. Any Content submitted by ICP or its agents within message
boards or any comparable vehicles will be subject to the license grant relating
to submissions to "public areas" set forth in the Proprietary Rights section of
the Terms of Service. ICP acknowledges that it has no rights or Interest in AOL
Member submissions to message boards within the ICP Sites.
Statements Through AOL Network. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its Affiliates, directors. officers. employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available Information, or information developed by ICP
independent of its relationship with AOL and its employees and agents.
Accounts. ICP shall be granted a number of accounts for the America Online(R)
brand service deemed reasonable by AOL for the exclusive purpose of enabling it
and its agents to perform ICP's duties under this Agreement. The accounts shall
be of the type determined by AOL to be necessary for ICP to perform its duties
hereunder, and shall be subject to such monthly
18
<PAGE>
subscription charges as AOL shall determine (not to exceed monthly subscription
charges generally available to the public for a similar type of account),
provided, however, that in any event ICP shall be responsible for any
surcharges, including, without limitation, all premium charges, transaction
charges and any applicable communication surcharges incurred by any such
account ICP shall be responsible for to actions taken with or through its
accounts (which actions are subject to AOL's then-standard Terms of Service)
Upon the termination of this Agreement, all accounts, related screen names and
any associated usage credits or similar rights shall automatically terminate.
AOL shall have no liability for loss of any data or content related to the
proper termination of any account.
Keywords. Any Keyword Search Terms to be directed to the ICP Sites shall be (i)
subject to availability for use by ICP and (ii) limited to the combination of
the Keyword(Trade Mark) search modifier combined with a registered trademark of
ICP. AOL reserves the right to revoke at any time ICP's use of any Keyword
Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in it
nor will it represent it has, any right, title or interest in or to such Keyword
Search Term, other than the right, title and interest Partner holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term,
or (b) use the Keyword Search Term except for the purposes expressly required or
permitted under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
Launch Date. In the event that any terms contained herein relate to or depend
on the launch date of the ICP Sites or other property contemplated by this
Agreement then it is the intention of the Parties to record such Launch Date in
a written instrument signed by both Parties promptly following such Launch
Date; provided that, in the absence of such a written instrument, the Launch
Date shall be as reasonably determined by AOL based on the information
available to AOL.
Production Work. In the event that ICP requests AOL's production assistance in
connection with (i) the initial development, design and construction of the ICP
Sites, (ii) ongoing programming and maintenance related to the ICP Sites, (iii)
a redesign of or addition to the ICP Sites (e.g., a change to an existing
screen format or construction of a new custom form), (iv) construction and
maintenance of an approved advertising. sponsorship or promotional area or
online 'store,' (v) production to modify work performed by a third party
provider or (vi) any other type of production work ICP shall work with AOL to
develop detailed production plans for the requested production assistance (the
"Production Plan"). Following receipt of the final Production Plan, AOL shall
notify ICP of (i) AOL's availability to perform the requested production work,
(ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding Implementation of agreed-upon
Production Plan, such agreement shall be reflected in a separate work order
signed by the Parties. To the extent ICP elects to retain a third party
provider to perform any such production work, work produced by such third party
provider must generally conform to AOL's production Standards & Practices (a
copy of which will be supplied by AOL to ICP upon request). The specific
production resources which AOL allocates to any production work to be performed
on behalf of ICP shah be as determined by AOL in its sale discretion.
Publishing Tools. AOL shall make available to ICP AOL's proprietary publishing
tools (each a "Tool") which are made available to AOL's similarly situated
content partners in order to develop and implement the Licensed Content during
the Term. ICP shall be granted a nonexclusive license to use any such Tool,
which license shall be subject to: (i) ICP's compliance with all rules and
regulations totaling to use of the Tools, as published from time to time by
AOL, (ii) AOL's right to withdraw or modify such license at any time, and (iii)
ICP's express recognition that AOL provides all Tools on an "as is" basis,
without warranties of any kind.
Training and Support. AOL shall make available to ICP standard AOL training and
support programs related to ICP'S management and maintenance of the Licensed
Content ICP can select its training and support program from the options then
offered by AOL. ICP shall be responsible to pay the fees associated with its
chosen training and support package; provided, however, that AOL will provide
such training to two (2) of ICP's employees without charging a fee. In
addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AO(:s travel and lodging
costs when training is conducted at ICP's offices), including such costs for
the two (2) employees that AOL trains without charging a fee.
II. TRADEMARKS
Trademark License. In designing and implementing the Promotional Materials and
subject to the other provisions contained herein, ICP shall be entitled to use
the following trade names, trademarks and service marks of AOL: the "America
Online(R)" brand service, AOL(Trade Mark) service/software and AOL's
triangle logo; arid AOL and its Affiliates shall be entitled to use the trade
names, trademarks and service marks of ICP associated with the ICP Sites
(collectively, together with the AOL marks listed above, the "Marks"); provided
that each Party: (i) does not create a unitary composite mark involving a Mark
of the other Patty without the prior written approval of such other Party and
(R) displays symbols and notices clearly and sufficiently indicating the
trademark status and ownership of the other Party's Marks in accordance with
applicable trademark law and practice.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees riot to do anything contesting or impairing the trademark
rights of the other Party.
Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks shall
conform to quality standards communicated in writing by the other Party for use
of its trademarks. Each Party agrees to supply the other Party, upon request
with a reasonable number of samples of any Materials publicly disseminated by
such Party which utilize the other Party's Marks, Each Party shall comply with
all applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials/Press Releases. Each Party will submit to the other
Party, for its prior written approval, which shall not be unreasonably withheld
or delayed, any marketing,
19
<PAGE>
advertising, press releases or other promotional materials related to the ICP
Sites and/or referencing the other Party and/or its trade names, trademarks and
service marks (the 'Promotional Materials"); provided, however, that, following
the initial public announcement of the business relationship between the
Parties in accordance with the approval and other requirements contained
herein, either Party's subsequent factual reference to the existence of a
business relationship between AOL and ICP, including, without limitation, the
availability of the ICP Sites on the AOL Network, or use of screen shots of the
ICP Sites (so long as the AOL Network is clearly identified as the source of
such screw shots) for promotional purposes shall not require the approval of
the other Party. Once approved, the Promotional Materials may be used by a
Party and its affiliates for the purpose of promoting the ICP Sites and the
content contained therein and reused for such purpose until such approval is
withdrawn with reasonable prior notice. In the event such approval is
withdrawn, existing inventories of Promotional Materials my be depleted.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this
Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms; (iv) such
Party's Promotional Materials will neither infringe on any copyright U.S.
patent or any other third party right nor violate any applicable law or
regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the Term of this Agreement
and for a period of three years following expiration or termination of this
Agreement to prevent the duplication or disclosure of Confidential Information
of the other Party, other than by or to its employees or agents who must have
access to such Confidential Information to perform such Party's obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure
containing Confidential Information without the consent of the other Party. to
the extent such disclosure is required by law, rule, regulation or government or
court order. In such event the disclosing Party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
Party. Further, in the event such disclosure is required of either Party under
the laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission air otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
V. RELATIONSHIP WITH AOL MEMBERS
Solicitation of Subscribers. During the Term and for the [*] period following
the expiration or termination of this Agreement, neither ICP nor its agents will
use the AOL Network to (i) solicit or participate in the solicitation of AOL
Members when that solicitation is for the benefit of any entity (including ICP)
which could reasonably [*] or become [*] or (ii) promote any services which
could reasonably be construed to be in competition with services available
through AOL including, but not limited to, services available through the
Internet (e.g., an ICP Interactive Site). ICP may not send any AOL Member
unsolicited email communications on or through the AOL Network without a "Prior
Business Relationship." For purposes of this Agreement a "Prior Business
Relationship" shall mean that the AOL Member has either (i) purchased Products
from ICP through the AOL Network or (ii) voluntarily provided information to ICP
through a contest, registration, or other communication, which included dear and
conspicuous notice to the AOL Member that the information provided by the AOL
Member could result in an e-mall being sent to that AOL Member by ICP or its
agents. A Prior Business Relationship does not exist solely by virtue of an AOL
Member's visit to the ICP Sites (absent the additional elements described
above). In any commercial e-mail communications to AOL Members which are
otherwise permitted hereunder, ICP will provide the recipient with a prominent
and easy means to 'opt-out" of receiving any future commercial e-mail
communications from ICP.
Collection of Member Information. ICP is prohibited from collecting AOL Member
screen names from public or private areas of the AOL Network, except as
specifically provided below. ICP shall ensure that any survey, questionnaire or
other means of collecting Member Information including, without limitation,
requests directed to specific AOL Member screen names and automated methods of
collecting screen names (an "Information Request") complies with (i) all
applicable laws and regulations, (ii) AOL's applicable Terms of Service, and
(iii) any privacy policies which have been Issued by AOL in writing during the
Term (or, in the case of a Linked ICP Interactive Site, ICP's standard privacy
policies, to the extent such policies are prominently published on the site and
provide adequate notice and disclosure to users regarding ICP's collection, use
and disclosure of any user information) (collectively, the "Applicable Privacy
Policies"). Each Information Request shall clearly and conspicuously specify to
the AOL Members at Issue the purpose for which Member Information collected
through the information request shall be used (the "Specified Purpose").
20
<PAGE>
Use of Member Information. ICP shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no event
shall ICP (i) provide AOL Member names, screen names, addresses or other
identifying information Member Information-) to any third party (except to the
extent specifically (a) permitted under the Applicable Privacy Policies or (b)
authorized by the AOL Members in question) or (ii) otherwise use any Member
Information in contravention of the above section regarding "Solicitation of
Members".
E-mail Newsletters. Any e-mail newsletters sent to AOL Members by ICP or its
agents shall (i) be subject to AOL's policies an use of the e-mail
functionality, including but not limited to AOL's policy on unsolicited bulk
e-mail, (ii) be sent only to AOL Members requesting to receive such
newsletters, (iii) not contain Content which violates AOL's Terms of Service,
and (iv) not contain any advertisements, marketing or promotion for any other
interactive Service.
VI. TREATMENT OF CLAIMS
Liability. EXCEPT AS PROVIDED BELOW IN THE INDEMNITY SECTION, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OF OR
INABILITY TO USE THE AOL NETWORK OR ICP SITES OR ANY OTHER PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO. LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE AMOUNTS
PAYABLE HEREUNDER AS OF THE DATE UABIL17Y ACCRUED.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK
THE ICP SITES OR ANY AOL PUBLISHING TOOLS. INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF THE ICP SITES.
Indemnity. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims. demands, liabilities, costs or expenses, Including reasonable
attorneys' fees ("Liability"), resulting from the Indemnifying Party's material
breach of any duty, representation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving
any claim action, suit, investigation, arbitration or other proceeding against
the Indemnified Party by any third party (each an 'Action'), the Indemnified
Party shall give the other Party (the "Indemnifying Party") prompt written
notice of such Action. Such notice shall (i) provide the basis on which
Indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands. and other papers related to the Action and In the
possession of the Indemnified Party. The Indemnifying Party shall have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party shall be obligated to defend the
Action, at Its own expense, and by counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party shall cooperate, at the expense of the
Indemnifying Party, with the Indemnifying Party and its counsel in the defense
and the Indemnified Party shall have the right to participate fully, at its own
expense. In the defense of such Action. If the Indemnifying Party responds
within the required ten (10) day period and elects not to defend such Action.
The Indemnified Party shall be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control the
defense of) such Action. In such case, the Indemnifying Party shall cooperate,
at its own expense, with the Indemnified Party and its counsel in the defense
against such Action and the Indemnifying Party shall have the right to
participate fully, at its own expense, In the defense of such Action. Any
compromise or settlement of an Action shall require the prior written consent
of both Parties hereunder, such consent not to be unreasonably withheld or
delayed.
Acknowledgment. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of
this Agreement which expressly or implicitly provides for the Parties to reach
mutual agreement as to certain terms. If the Management Committee is unable to
amicably resolve the Dispute during the ten (10) day period, then the
Management Committee will consider in good faith (the possibility of retaining a
third party mediator to facilitate resolution of the Dispute. In the event the
Management Committee elects not to retain a mediator, the Dispute will be
subject to the resolution mechanism described below. "Management Committee"
shall mean a committee made up of a senior executive from each of the Parties
for the purpose of
21
<PAGE>
resolving Disputes under this Section and generally overseeing the relationship
between the Parties contemplated by this Agreement Neither Party shall seek,
nor shall be entitled to seek, binding outside resolution of the Dispute unless
and until the Parties have been unable to amicably resolve the dispute as set
forth In this paragraph (a) and then, only in compliance with the procedures
set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (g) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
In paragraph (a), any Dispute not resolved by amicable resolution as set forth
In paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington. D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes "Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand" except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures
shall not apply in order to promote the efficient arbitration of Disputes where
the nature of the Dispute, including without limitation the amount in
controversy, does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which In a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shag be a neutral
participant, with no new working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may hot continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act 9 U.S.C. Sec. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as Is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shag have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law reflect upon in reaching the
decision. The award rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration shag be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay its fees of its own attorneys', expenses of witnesses
and all other expenses and costs In connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of that arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding tie foregoing.
the arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different allocation
of Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the Commonwealth of Virginia. Each Party Irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims or to
recover damages or other relief in connection with such claims or to enforce a
judgment rendered in an arbitration proceeding.
VIII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete. dear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party shall have the right at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts payable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted after twenty (20) business days prior
written notice, subject to the following. Such audits shall not be made more
frequently than once every twelve months. No such audit of AOL shall occur
during the period beginning on June 1 and ending October 1. In lieu of
providing access to its Records as described above, a Party shall be entitled
to provide the other Party with a report from an independent certified public
accounting firm confirming the information to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of1he other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
22
<PAGE>
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership
between the Parties or to impose any liability attributable to such a
relationship upon either Party.
Notice. Any notice, approval, request authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail an the AOL Network (to screen name
"[email protected]" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is
directed; (iii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt or (iv) five business days after
the mailing date, whether or not actually received, if sent by U.S. mall.
return receipt requested, postage and charges prepaid, or any other means of
rapid mail delivery for which a receipt is available. In the case of AOL, such
notice will be provided to both the Senior Vice President for Business Affairs
(fax no. 703-2651206) and the Deputy General Counsel (fax no. 703-285-1105),
each at the address of AOL set forth in the first paragraph of this Agreement.
In the case of ICP, except as otherwise specified herein, the notice address
shall be the address for ICP set forth in the first paragraph of this Agreement
with the other relevant notice Information, including the recipient for notice
arid, as applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by AOL.
No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall
be and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or
destroy (at that option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified the other Party.
Survival. Sections IV, V, V1, and VII of this Exhibit C, all payment provisions
and any provisions that by its nature, must survive the completion, expiration,
termination or cancellation of this Agreement shall survive the completion.
expiration, termination or cancellation of this Agreement.
Amendment. No change. amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
Assignment. ICP shall not assign this Agreement or any right interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any Successor to ICP (including, without
limitation, by way of merger or consolidation) shall be subject to AOL's prior
written approval. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain In full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to
a Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party my possess at law or in
equity.
Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed
and enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles. Each Party irrevocably
consents to the exclusive jurisdiction of the courts o( the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
Export Controls. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country fisted in such
applicable law, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
23
<PAGE>
EXHIBIT D
---------
FORMAT FOR ICP'S PRESENCE ON THE AOL NETWORK
o Any ICP trademark or logo
o Any headline or picture from ICP content
o Any teaser, icon, link to the Online Areas, ICP Internet Sites or
Welcome Mat
o Any other Content which originates from, describes or promotes ICP
or ICP's Content
24
<PAGE>
EXHIBIT E
---------
Detailed Schedule and Bona-Fide Value of ICP In-Kind Commitments
In-Kind Commitment Bona Fide Value
Daily mentions in the "Ask the Family Doctor" $[*]
syndicated column in various newspapers;
approximately [*] total Impressions for the
mentions.
Mentions on the "American Baby" show on the $[*]
Lifetime Network; approximately [*] total
Impressions for the mentions.
Mentions on CNNfn, [*] weekly segments, 3-4 $[*]
minutes each segment.
For the purposes hereof, with respect to each promotion specified above, a
"mention" shall mean a coherent spoken or graphic reference to the relevant ICP
keyword and/or area on AOL, which shall also include at a minimum a reference
to "America Online" and/or "AOL." Additionally, the mentions shall be exclusive
to AOL (i.e., they shall not mention or refer to any ICP Interactive Site).
25
<PAGE>
EXHIBIT F
---------
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Sections 1.5.2 and 1.5.3 and Section 3 of the Interactive Services
Agreement between iVillage, Inc. ("ICP") and America Online, Inc. ("AOL"),
dated as of December 31, 1998 (the "Agreement"), the following report is
delivered to AOL for the month ending ____________ (the "Month"):
1. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
<TABLE>
<CAPTION>
Type of Promotion Date(s) of Promotion Duration/Circulation of Relevant Contract Section
Promotion
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
1.
- ----------------------------------------------------------------------------------------------------------------------
2.
- ----------------------------------------------------------------------------------------------------------------------
3.
</TABLE>
IN WITNESS WHEREOF, this Certificate has been executed this ________ day of
_________, 199_.
- ------------------------------------------
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Date:
-------------------------------------
26
<PAGE>
EXHIBIT G
---------
OPERATING STANDARDS
-------------------
[*]
