CONFIDENTIAL - SETTLEMENT AGREEMENT
September 18, 2000
Steve Elkes
Chief Operating Officer
ivillage Inc.,
170 Fifth Avenue
New York, NY 10010
Re: Termination of iVillage Content License and Co-development Agreement &
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iVillage Online Merchant Agreement
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Dear Mr. Elkes:
This Letter Agreement effective as of September 18, 2000 serves to
terminate both the November 11th, 1999 Content License and Co-development
Agreement & the October 15th, 1999 Online Merchant Agreement (collectively, the
"Agreements") between ivillage Inc., and Garden.com, Inc. effective as of
September 18th, 2000 ("Termination Agreement"), subject to the following terms
and conditions:
1. Upon execution of this Letter Agreement, Garden.com agrees to pay to
ivillage the aggregate sum of [*] as payment in full of all amounts due under
the Agreements (the "Termination Payment"). The Termination Payment will be
paid to ivillage as follows; [*] on or before September 30th, 2000; and [*] on
or before each of October 30, 2000, November 30, 2000 and December 30, 2000.
2. Other than as expressly set forth in paragraph 1, no further
payments will be made by either party pursuant to the Agreements and no further
payment obligation exists under this Letter Agreement.
3. Each party hereby releases and forever discharges the other party
and such party's officers, directors, stockholders, employees, agents and
affiliates from any and all causes of action, claims, liabilities and demands
that such party, its affiliates, subsidiaries, officers, directors, agents,
employees or legal representatives may now have or that may subsequently accrue,
whether known or unknown, that relate to or arise from the Agreements, the
parties respective performance thereunder and the termination thereof. The
above release does not apply to any claims that may arise that are directly
related to this Letter Agreement or the obligations of the parties set forth
herein.
__________________
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
4. Neither party will disclose the existence or any terms of this
Letter Agreement to anyone other than its attorneys, accountants, and other
professional advisors, except: (i) in connection with a contemplated change of
control of such party or sale of such party's business (provided that any third
party to whom the terms of this Agreement are to be disclosed signs a
confidentiality agreement agreeing to be bound by the terms hereof); (ii) as may
be required by law; or (iii) other than as required or appropriate for
securities laws disclosure.
5. Each person executing this Letter Agreement warrants and represents
that he has the authority to bind the party on whose behalf his or her signature
appears. The parties to this Letter Agreement acknowledge that they have read,
and that they fully understand the terms of this Letter Agreement, and that they
each have been advised of the legal effect and consequences of this Letter
Agreement by their respective legal counsel.
6. This Letter Agreement may be executed in counterparts, all of which
together shall constitute one document. This Letter Agreement has been jointly
drafted by the parties and, as such, should not be construed or interpreted as
if drafted by one party or the other.
7. This Letter Agreement expressly supersedes all previous discussions,
negotiations, understandings, or agreements, written or otherwise, and shall be
binding upon the parties' heirs, successors, and assigns. This Letter Agreement
fully, completely, and exclusively sets forth the agreement of the parties as to
the subject matter hereof and may only be amended in a writing executed by all
parties. This Letter Agreement shall be governed by the laws of the State of
Texas. If any provision is subsequently found to be invalid, that provision
shall be stricken from the Letter Agreement and the surviving portion shall
remain in full force and effect.
8. In the event of any dispute between the parties arising from or
concerning in any manner the subject matter of this Letter Agreement, the
parties shall refer the dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator pursuant to the
American Arbitration Association's rules applicable to commercial disputes.
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The arbitration shall be held in Travis County, Texas, and the decision
reached by such arbitrator shall be entered as a judgment in any court of
competent jurisdiction. The prevailing party in such arbitration shall be
entitled to an award of reasonable attorney's fees.
AGREED AND ACCEPTED:
GARDEN.COM, INC. IVILLAGE, INC.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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