As Of               Filer                 Filing     As/For/On Docs:Pgs              Issuer               Agent

 3/06/06  Ivillage Inc                      8-K{1,8,9}  3/03/06    3:70                                     Merrill Corp-MD/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report of Material Events or Corporate      HTML     29K 
                          Changes                                                
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML    356K 
                          Liquidation or Succession                              
 3: EX-99.1     Miscellaneous Exhibit                               HTML     23K 

INDEX OF DEFINED TERMS

 

		Page
Acquisition Proposal		41
Affiliate		6
Agreement		1
Balance Sheet Date		19
Bankruptcy and Equity Exceptions		10
Business Day		2
Capitalization Date		8
Certificate		4
Certificate of Merger		1
Closing		2
Closing Date		2
Code		6
Company		1
Company Board		4
Company Charter Documents		7
Company Common Stock		2
Company Contract		18
Company Disclosure Schedule		6
Company Domain Name		21
Company Material Adverse Effect		7
Company Option		3
Company Owned IP		25
Company Plans		16
Company Preferred Stock		8
Company Recommendation		35
Company Recommendation Change		41
Company Registered IP		21
Company Representatives		39
Company Required Vote		10
Company SEC Reports		11
Company Source Code		25
Company Stock Plans		9
Company Stockholder Meeting		35
Confidentiality Agreement		35
Continuing Employees		36
Delaware Secretary		1
DGCL		1
Dissenting Shares		3
Dissenting Stockholders		3
Effective Time		1
Employees		16
Engagement Letter		13
Environmental Laws		21
ERISA		16
Exchange Act		11
Exchange Fund		4
Fairness Opinion		14
Filed Company SEC Documents		13
Foreign Antitrust Laws		11
GAAP		7
Governmental Damages		45
Governmental Entity		11
Governmental Investigation		45
Hearst		7
HSR Act		11
Indemnified Parties		37
Intellectual Property		25
Intellectual Property License		25
Intellectual Property Rights		25
J.P. Morgan		13
Knowledge		11
Legal Proceeding		25
Liens		9
Material Trade Secrets		22
Merger		1
Merger Consideration		2
Merger Sub		1
Multiemployer Plan		16
Notice		41
Off-the-Shelf Software		22
Option Consideration		3
Other Filings		33
Parent		1
Parent Material Adverse Effect		26
Parent Plans		36
Paying Agent		4
Permits		17
Permitted Liens		20

 

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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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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