Sample Business Contracts

AGREEMENT AND PLAN OF MERGER

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INDEX OF DEFINED TERMS

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of March 3, 2006 (as amended, supplemented or otherwise modified from time to time, and together with all schedules hereto, this “Agreement”), is entered into by and among NBC Universal, Inc., a Delaware corporation (“Parent”), iVillage Inc., a Delaware corporation (the “Company”), and iVillage Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”).

WHEREAS, the respective Boards of Directors of each of the Company, Parent, and Merger Sub have approved the acquisition of the Company by Parent on the terms and subject to the conditions of this Agreement;

WHEREAS, the Board of Directors of the Company has (a) determined that the Merger (as defined herein) and the other transactions contemplated hereby are fair to and advisable and in the best interests of the Company and its stockholders, (b) approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, and (c) recommended that the Company’s stockholders adopt this Agreement; and

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with the Merger and to prescribe certain conditions to the Merger;

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1.                    THE MERGER

1.1      The Merger.  Upon the terms and subject to the conditions of this Agreement, in accordance with Section 251 of the Delaware General Corporation Law (“DGCL”), at the Effective Time (as hereinafter defined), Merger Sub shall merge with and into the Company (the “Merger”).  The Company shall be the surviving corporation (hereinafter sometimes called the “Surviving Company”) of the Merger, and shall continue its corporate existence under the laws of the State of Delaware.  Upon consummation of the Merger, the separate corporate existence of Merger Sub shall terminate.

1.2      Effective Time.  The Merger shall become effective as set forth in the certificate of merger (the “Certificate of Merger”) which shall be filed with the Secretary of State of the State of Delaware (the “Delaware Secretary”) as soon as practicable on the Closing Date (as hereinafter defined).  As used herein, the term “Effective Time” shall mean the date and time when the Merger becomes effective, which shall be upon the filing of the Certificate of Merger or such later time as is agreed to by the parties hereto and specified in the Certificate of Merger

1.3      Effects of the Merger.  At and after the Effective Time, the Merger shall have the effects and consequences set forth in Section 259 of the DGCL.

1.4      Closing of the Merger.  Upon the terms and subject to the conditions of this Agreement, the closing of the Merger (the “Closing”) will take place (a) at the offices of Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New York, New York, at 8:00 a.m., Eastern time, on the date that is the second Business Day after the satisfaction or waiver of the conditions set forth in Section 8 hereof, other than conditions which by their terms are to be satisfied at the Closing, or (b) such other location, date or time as the parties may mutually agree (the “Closing Date”).  For purposes of this Agreement, a “Business Day” shall mean any day that is not a Saturday, a Sunday or other day on which the office of the Delaware Secretary is closed.

1.5      Certificate of Incorporation.  At the Effective Time, subject to Section 7.6(c), the certificate of incorporation of the Company shall be amended and restated in its entirety to be identical to the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, except that the name of the Surviving Company shall be “iVillage Inc.,” until thereafter amended as provided therein or in accordance with applicable law.

1.6      Bylaws.  The bylaws of Merger Sub, as in effect immediately prior to the Effective Time, subject to Section 7.6(c), shall be the bylaws of the Surviving Company, until thereafter amended as provided therein or in accordance with applicable law.

1.7      Board of Directors.  The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Company, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Company and applicable law, until their respective successors are duly elected or appointed (as the case may be) and qualified.

1.8      Officers.  The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Company until their respective successors are duly appointed and qualified or their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Company.

2.                    EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS

2.1      Conversion of Company Capital Stock.  At the Effective Time, by virtue of the Merger and without any action on the part of Parent, the Company or the holder of any of the shares of Company Common Stock:

(a)      All shares of common stock, par value $0.01 per share, of the Company (the “Company Common Stock”) owned by the Company (including treasury shares), Merger Sub or Parent (other than shares in trust accounts, managed accounts and the like or shares held in satisfaction of a debt previously contracted) automatically shall be cancelled and retired and shall not represent capital stock of the Surviving Company and shall not be exchanged for the Merger Consideration (as defined below); and

(b)      Each outstanding share of Company Common Stock (other than those cancelled pursuant to Section 2.1(a) and Dissenting Shares (as defined below)) shall be converted into and become the right to receive an amount in cash, without interest, equal to $8.50 (the “Merger Consideration”).

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2.2      Effect on Capital Stock of Merger Sub.  At and after the Effective Time, each share of common stock, par value $0.01, per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Company and constitute the only outstanding shares of capital stock of the Surviving Company and shall not be effected by the Merger.

2.3      Appraisal Rights.  Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a stockholder who did not vote in favor of the Merger (or consent thereto in writing) and who is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL (the “Dissenting Stockholders”), shall not be converted into or be exchangeable for the right to receive the Merger Consideration (the “Dissenting Shares”), but instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262 of the DGCL (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL), unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost rights to appraisal under the DGCL.  If any Dissenting Stockholder shall have failed to perfect or shall have effectively withdrawn or lost such right, such holder’s shares of Company Common Stock shall thereupon be treated as if they had been converted into and become exchangeable for the right to receive, as of the Effective Time, the Merger Consideration for each such share of Company Common Stock, in accordance with Section 2.1(b), without any interest thereon.  The Company shall give Parent (i) prompt notice of any written demands for appraisal of any shares of Company Common Stock, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company relating to stockholders’ rights of appraisal, and (ii) the right to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL.  The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.  Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.1 to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent upon demand.

2.4      Treatment of Options and Other Stock-Based Awards.

(a)      As of the Effective Time, each option to purchase shares of Company Common Stock or other right to receive shares of Company Common Stock under any Company Stock Plan (each a “Company Option”) which is outstanding and unexercised immediately prior thereto shall become fully vested as of the Effective Time and shall by virtue of the Merger and without any action on the part of any holder of any Company Option be cancelled and the holder thereof will receive as soon as reasonably practicable following the Effective Time a cash payment (without interest) with respect thereto equal to the product of (i) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Option and (ii) the number of shares of Company Common Stock issuable upon exercise of such Company Option (collectively, the “Option Consideration”).  As of the Effective Time, all Company Options,

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whether or not vested or exercisable, shall no longer be outstanding and shall automatically cease to exist, and each holder of a Company Option shall cease to have any rights with respect thereto, except the right to receive the Option Consideration.

(b)      The Board of Directors of the Company (the “Company Board”) or compensation committee of the Company Board shall make such amendments and adjustments to or make such determinations with respect to the Company Options, as are necessary to implement the provisions of this Section 2.4.  Without limiting the foregoing, the Company shall take all actions necessary to ensure that the Company will not following the Effective Time, be bound by any options, SARs, warrants or other rights or agreements which would entitle any Person, other than Parent and its Subsidiaries, to own any capital stock of the Surviving Company or to receive any payment in respect thereof other than with respect to the payment of the Option Consideration as provided in Section 2.4(a).  Prior to the Effective Time, the Company shall take all actions necessary to terminate all its Company Stock Plans, such termination to be effective at or before the Effective Time.

3.                    EXCHANGE OF CERTIFICATES FOR MERGER CONSIDERATION

3.1      Parent to Make Merger Consideration Available.  Immediately prior to the Effective Time, Parent shall (a) deposit, or shall cause to be deposited, with a bank or trust company designated by Parent and reasonably acceptable to the Company (the “Paying Agent”) in a separate fund (the “Exchange Fund”), for the benefit of the holders of certificates or evidence of shares in book-entry form which immediately prior to the Effective Time evidenced shares of Company Common Stock (each a “Certificate”), an amount in cash sufficient to pay the aggregate Merger Consideration, and (b) instruct the Paying Agent to timely pay the Merger Consideration in accordance with this Agreement.  The Merger Consideration deposited with the Paying Agent pursuant to this Section 3.1 shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investment or any payment of earnings from any such investment shall not delay the receipt by the holders of record of the Certificates of the Merger Consideration or otherwise impair such holders’ rights hereunder.  Any interest or income produced by such investments shall be the property of and shall be paid promptly to Parent.  In the event that the funds in the Exchange Fund shall be insufficient to make the payments contemplated by Section 2.1(b), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payment.  The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of shares Company Common Stock and (ii) applied promptly to making the payments provided for in Section 2.  The Exchange Fund shall not be used for any purpose that is not expressly provided for in this Agreement.

3.2      Exchange of Shares.

(a)      As soon as reasonably practicable after the Effective Time, the Paying Agent shall mail to each holder of record of a Certificate a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and which shall be in customary form and shall have such other provisions as Parent may reasonably specify) and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger

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Consideration.  Upon proper surrender of a Certificate for exchange and cancellation to the Paying Agent, together with a properly completed letter of transmittal, duly completed and validly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a check representing the amount of the Merger Consideration that such former holder has the right to receive pursuant to the provisions of Section 2, in each case, in respect of the Certificate surrendered pursuant to the provisions of this Section 3, and the Certificate so surrendered shall forthwith be cancelled.

(b)      If payment of the Merger Consideration is to be made to any Person other than the registered holder of the Certificate surrendered in exchange therefor, it shall be a condition of the payment thereof that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Paying Agent in advance any transfer or other similar taxes required by reason of the payment of the Merger Consideration to any Person other than the registered holder of the Certificate surrendered, or required for any other reason relating to such holder or requesting Person, or shall establish to the reasonable satisfaction of the Paying Agent that such tax has been paid or is not payable.  Until surrendered as contemplated by this Section 3.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration.  No interest will be paid or will accrue on the cash payable upon surrender of any Certificate.  As used herein, “Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other entity of whatever nature.

(c)      All cash paid upon the surrender of Certificates in accordance with the terms of this Section 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock previously represented by such Certificates.  At or after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock which were issued and outstanding immediately prior to the Effective Time.  If, after the Effective Time, Certificates representing such shares are presented for transfer to the Paying Agent, they shall be cancelled and exchanged for the Merger Consideration as provided in this Section 3.

(d)      Any portion of the Exchange Fund that remains unclaimed by the Company’s stockholders for one year after the Effective Time shall be paid, at the request of Parent, to Parent.  Any stockholders of the Company who have not theretofore complied with this Section 3 shall thereafter look only to Parent for payment of the Merger Consideration payable in respect of each share of Company Common Stock held by such stockholder at the Effective Time as determined pursuant to this Agreement, in each case, without any interest thereon.  Notwithstanding anything to the contrary contained herein, none of Parent, the Company, the Paying Agent, Merger Sub or any other Person shall be liable to any former holder of shares of Company Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.

(e)      In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond in such amount as

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Parent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof pursuant to this Agreement.

(f)       Parent and the Paying Agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement or the transactions contemplated hereby to any holder of Company Common Stock or Company Options such amounts as Parent, or any affiliate (as defined under the Exchange Act (an “Affiliate”)) thereof, or the Paying Agent are required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable provision of U.S. federal, state, local or non-U.S. tax law.  To the extent that such amounts are properly withheld by Parent or the Paying Agent and paid over to the appropriate taxing authority, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the Company Common Stock in respect of whom such deduction and withholding were made by Parent or the Paying Agent.

3.3      Adjustments to Prevent Dilution.  Without limiting the other provisions of the Agreement, in the event that the Company changes the number of shares of Company Common Stock issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, subdivision, issuer tender or exchange offer, or other similar transaction, the Merger Consideration and the Option Consideration shall be equitably adjusted to reflect such change.

4.                    REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the disclosure schedule of the Company delivered to Parent concurrently herewith (the “Company Disclosure Schedule”) (with specific reference to the section of this Agreement to which the information stated in such Company Disclosure Schedule relates; provided that (i) disclosure in any section of such Company Disclosure Schedule shall be deemed to be disclosed with respect to any other Section of this Agreement to the extent that it is readily apparent from the face of such disclosure that such disclosure is applicable to such other Section and (ii) the mere inclusion of an item in such Company Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would have a Company Material Adverse Effect), the Company hereby represents and warrants to Parent and Merger Sub as follows:

4.1      Corporate Organization.

(a)      The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  The Company has the corporate power and corporate authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, is duly licensed or qualified to do business, and is in good standing in each jurisdiction in which the nature of the business currently conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing,

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individually or in the aggregate, has not had and would not reasonably be expected to have or result in a Company Material Adverse Effect.  As used in this Agreement, the term “Company Material Adverse Effect” means any change, event, occurrence or state of facts that has had or would reasonably be expected to have or result in (i) a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole, (ii) a material adverse effect on the Company’s ability to consummate the transactions contemplated hereby on a timely basis or (iii) a condition that causes the iVillage.com web site to be completely and substantially disabled for more than 48 consecutive hours; provided, however, that in determining whether a Company Material Adverse Effect has occurred, there shall be excluded any effect on the Company or its Subsidiaries the cause of which is (A) the execution, delivery, pendency or public announcement of this Agreement or the transactions contemplated hereby or any actions required to be taken in compliance herewith or otherwise with the consent of the other party hereto, including the impact thereof on the relationships of the Company or any of its Subsidiaries with customers, suppliers, distributors, consultants, employees or independent contractors or other third parties with whom the Company or any of its Subsidiaries has any relationship and including any litigation brought by stockholders of Company in connection with the transactions contemplated hereby (provided that the exclusion set forth in this clause (A) shall not apply to Section 4.3(b) hereof), (B) any change in the market price or trading volume of the Company’s securities or any effect resulting from any such change (provided that this clause shall not be construed as providing that the change, event, occurrence or state of facts giving rise to such change does not constitute or contribute to a Company Material Adverse Effect), (C) any failure by the Company to meet any projections or forecasts for any period ending (or for which revenues or earnings are released) on or after the date hereof (provided that this clause shall not be construed as providing that the change, event, occurrence or state of facts giving rise to such failure does not constitute or contribute to a Company Material Adverse Effect), (D) any change in federal or state law or regulations, generally accepted accounting principles (“GAAP”) or regulatory accounting requirements applicable or potentially applicable generally to the industries in which the Company or its Subsidiaries operate, (E) any expiration or any breach or termination by Hearst Communications, Inc.  (“Hearst”) of the Website Services Agreement, entered into as of July 1, 2004, as amended, by and between the Company and Hearst, (F) changes generally affecting the industries in which the Company or its Subsidiaries operate (except with respect to changes that disproportionately affect the Company or its Subsidiaries relative to other participants in the industries in which the Company and its Subsidiaries operate), (G) changes in economic conditions (including changes in the prevailing interest rates) in the United States, in any region thereof, or in any non-U.S. or global economy (except with respect to changes that disproportionately affect the Company or its Subsidiaries relative to other participants in the industries in which the Company and its Subsidiaries operate) or (H) any attack on, or by, outbreak or escalation of hostilities or acts of terrorism involving, the United States, or any declaration of war by the United States Congress or any hurricane or other natural disaster that does not disproportionately affect the Company or its Subsidiaries relative to other participants in the industries in which the Company and its Subsidiaries operate.

(b)      The copies of the certificate of incorporation and bylaws of the Company (the “Company Charter Documents”) which have previously been provided or made available to Parent are true, complete and correct copies of such documents as in effect as of the date of this Agreement.  The copies of the certificate of incorporation and bylaws (or comparable

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organizational documents) of each of the Company’s Significant Subsidiaries (the “Subsidiary Documents”) which have previously been provided or made available to Parent are true, complete and correct copies of such documents as in effect on the date of this Agreement.  All such Company Charter Documents and Subsidiary Documents are in full force and effect and neither the Company nor any of its Significant Subsidiaries is in violation of any of their respective provisions.  As used herein, “Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or any other entity that is consolidated with such Person for financial reporting purposes and, with respect to the Company, “Significant Subsidiary” means  the Subsidiaries listed in Section 4.1(a) of the Company Disclosure Schedule.

(c)      Each Subsidiary of the Company (i) is duly organized, validly existing and in good standing as a corporation, partnership, limited liability company or other entity, as the case may be, under the laws of its jurisdiction of organization, (ii) is duly licensed or qualified to do business and is in good standing in all jurisdictions (whether federal, state, local or foreign) where its ownership or leasing of property or the conduct of its business requires it to be so licensed or qualified, except when the failure to be so licensed, qualified or in good standing, individually or in the aggregate, would not have or would not reasonably be expected to have or result in a Company Material Adverse Effect and (iii) has all requisite corporate or other requisite power and authority to own or lease its properties and assets and to carry on its business as now conducted.  As of the date hereof, the Company does not have any Subsidiary, other than the Significant Subsidiaries, from which it derived greater than 5% of the Company’s consolidated revenues for fiscal 2005.

(d)      The minute books of the Company and each of its Significant Subsidiaries previously provided or made available to Parent contain true, complete and correct records in all material respects of all meetings and other material corporate actions held or taken from January 1, 2003 through January 31, 2006 of their respective stockholders, members, partners or other equity holders and Boards of Directors or other governing bodies (including committees of their respective Boards of Directors or other governing bodies).  Except as previously provided or made available to Parent, from January 31, 2006 through the date hereof, the Company Board of Directors and committees thereof have not taken any action by written consent or by meeting, other than with respect to the Merger and the solicitation process code-named “Project Galaxy.”

4.2      Capitalization.