Exhibit 10.34


 


EMPLOYMENT
AGREEMENT


 


This Employment
Agreement (this “Agreement”) is entered into by and between Healthology, Inc.
(the” Company”), a wholly-owned subsidiary of iVillage Inc. (“iVillage”), and
Steven Haimowitz (“Executive”), as of January 7, 2005 (the “Effective Date”).  In consideration of the mutual covenants and
agreements hereinafter set forth, the Company and Executive hereby agree as
follows:


 


1.                                       EMPLOYMENT.


 


1.1.  The Company hereby
employs Executive to serve as President of Healthology, Inc. (“Healthology)
and in such other capacities as are agreed by the parties. The Company agrees
that you will be the most senior executive at the Company and that in the event
a CEO position is created and occupied by anyone other than the CEO of iVillage,
Executive will also hold such title. 
Executive will report directly to Douglas W. McCormick (the “CEO”) or
his successor.


 


1.2  Executive shall perform
such executive and managerial duties and responsibilities customary to his
office and those of other similarly situated executives at iVillage.  Without limiting the generality of the
foregoing, as President, the Executive shall have the responsibility and
authority (subject to the terms of this Agreement and the budget established by
Executive and the CEO), for the general supervision, direction and control of
the day-to-day operations of the business and the affairs of the Company.


 


2.                                       COMPENSATION.


 


2.1                                 Base Salary.  Executive shall be paid a base salary (the “Base Salary”) at the annual rate of Three
Hundred Thousand Dollars ($300,000), subject to annual review.  The Base Salary may be increased but not
decreased.  The Base Salary shall be
payable in installments consistent with the Company’s payroll practices.


 


2.2                                 Bonus. 
Commencing in calendar year 2005, for each year Executive will be
eligible for a discretionary bonus with a target set at 40% of base
salary.  (the “Target
Bonus”)  Bonuses will generally be
payable by the first quarter of each year, but not later than the Company pays
bonuses to similarly situated executives. 
Entitlement for a bonus will be at the


 


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discretion of iVillage,
but are based equally on the achievement of performance goals related to: (a) the
Company, as mutually agreed upon by Executive and iVillage, and (b) iVillage,
as reasonably determined by the CEO or iVillage’s Board of Directors (the “Board”),
such performance goals to be substantially similar to other similarly situated
executives.  Except as otherwise set forth
in Section 5.1(a) and 5.1(c), Executive must be employed by the
Company at the time bonuses are payable in order to receive such payment.


 


2.3                                 Stock Options. Executive shall be granted,
subject to approval by the Board, which approval will not be unreasonably
withheld, non-qualified options to purchase 125,000 shares of iVillage’s common
stock, $.01 par value per share (the “Grant”), (a) at an exercise price
equal to the fair market value of the Company’s common stock at the close of
business on the date of grant; (b) vesting to the extent of 25% of the
Grant on the first anniversary date of the date of grant and in equal quarterly
installments over a three-year period thereafter; and (c) otherwise in
accordance with the terms of the Healthology Inc. Stock Option Plan (the “Stock
Option Plan”).  Except as otherwise
provided in this Agreement, the Grant will be subject to the Company’s standard
terms and conditions for executive stock option awards applicable to similarly
situated executives and will be issued pursuant to and consistent with the
terms of the Stock Option Plan.  All
options granted to Executive will have a ten-year maximum term and any vested
options will remain exercisable after Executive’s employment with the Company
terminates as follows, subject to the ten-year term: (i) if Executive’s
employment with the Company terminates for any reason other than Cause (as
defined herein) the options will remain exercisable for twelve (12) months
after his termination date; (ii) if Executive’s employment with the
Company is terminated by the Company for Cause (as defined herein) the options
will remain exercisable for a period of ninety (90) days after his termination
date.


 


2.4                                 Employment At Will:  Subject to the terms described
below, Executive is employed “at will” meaning that he or the Company may end
the employment relationship at any time for any legal reason.


 


2.5                                 Payment. 
Payment of all compensation to Executive hereunder shall be subject to
all applicable employment and withholding taxes and other customary deductions.


 


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3.                                       OTHER EMPLOYMENT BENEFITS.


 


3.1                                 Fringe Benefits. Executive shall receive
the standard package of fringe benefits as iVillage provides to other
executives of iVillage similarly situated. 
Fringe benefits to be included in this standard benefit package include,
but are not limited to, medical and dental insurance coverages, disability
insurance, vacations, holidays and sick leave. 
Participation in all fringe benefit programs will be subject to certain
Executive contributions that may from time to time be applicable to such
programs.


 


3.2                                 No Other Benefits.  Executive understands and acknowledges that
the compensation specified in Sections 2 and 3 of this Agreement shall be
in lieu of any and all other compensation, benefits and plans.


 


4.                                       EXECUTIVE’S BUSINESS ACTIVITIES.


 


4.1                                 Professional Time.  Executive shall devote his full business time
attention and energy to the business and affairs of the Company and its
affiliates, as its business and affairs now exist and as they hereafter may be
changed.


 


4.2                                 Prohibited Activity.


 


(a)                                  Executive
covenants and agrees that during (i) the Term (as defined in Section 11.2)
of his employment with the Company, and (ii) if his employment hereunder
is terminated (A) by the Company for cause pursuant to Section 5.2
hereof or by Executive without “good reason” as defined in Section 5.3
hereof, during the period ending on the second anniversary of the date of such
termination of employment, or (B) by the Company without cause or by
Executive for good reason, during the period ending on the first anniversary of
the date of such termination of employment, he shall not at any time, without
the prior written consent of the Company, directly or indirectly, whether for
his own account or as a stockholder (other than as permitted by Section 4.2(c) below),
partner, venturer, director, officer, employee, consultant, lender, advisor,
and/or agent, of any person, firm, corporation, or other entity:


 


(1)                                  engage
in activities or businesses that are substantially in competition with the
Company, iVillage or any of its affiliates (in each case for the purposes of
this Section 4.2, the term “Company” shall be deemed to include any
successor entity to the Company)(“Competitive Activities”), including (A) engaging
in a business which involves (i) production or distribution of online
health content, (ii) the establishment of a network of healthcare
professionals for the purpose of on-line publishing activities or (iii) the
creation or


 


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maintenance of healthcare related web sites (except
that if any activities or businesses were not engaged in by the Company,
iVillage or any of their affiliates during the period of time that Executive
was employed by the Company and are not engaged in by the Company, iVillage or
any of its affiliates at the time the Executive’s employment by the Company
terminates (collectively “Permitted Activities”), the Executive may engage in
any Permitted Activities notwithstanding anything contained in this Agreement),
(B) soliciting any customer or prospective customer, supplier or vendor of
the Company, iVillage or any of its affiliates to  purchase or provide any goods or services of
the type provided by the Company, as applicable, from anyone other than the
Company, iVillage or any of its affiliates and (C) assisting any person or
entity in any way to do, or attempt to do, anything prohibited by clause (A) or
(B) above; and


 


(2) establish any new
business that engages in Competitive Activities.


 


For purposes of this Section 4.2(a)(1)(B), the
term customer shall only apply to those customers with whom Executive developed
a relationship during his employment with the Company, and the term prospective
customer shall only apply to those prospective customers to whom the Company
(or iVillage or any of its affiliates) had made a new business presentation (or
similar offering of services) at any time during the one year period
immediately preceding the date of Executive’s termination, provided that
Executive actively participated in or supervised such presentation or the
preparation thereof.  For purposes of
this Section 4.2(a), with regard to iVillage or any of its affiliates, it
shall be deemed a “Competitive Activity” if Executive acquired proprietary
and/or confidential information relative to such activity or business or
Executive was involved in any such activity or business.


 


(b)                                 Executive
also covenants and agrees that (i) during the Term of his employment, and (ii) during
the period ending on the second anniversary of the date of the termination of
his employment, he shall not at any time, without the prior written consent of
the Company, directly or indirectly, whether for his own account or as a stockholder
(other than as permitted by Section 4(c) below), partner, joint
venturer, director, officer, employee, consultant, lender, advisor, and/or
agent, of any person, firm, corporation, or other entity, solicit, recruit or
hire any employees of the Company, iVillage or any of their affiliates or
persons who have worked for the Company, iVillage or any of such affiliates, or
solicit or encourage any employee


 


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of the Company, iVillage or any
of their affiliates to leave the employment of the Company, iVillage or any of
such affiliates, as applicable.


 


(c)                                  Notwithstanding
anything to the contrary contained in this Section 4.2, the Company hereby
agrees that the foregoing covenant shall not be deemed breached by Executive
solely as a result of the ownership by Executive of less than an aggregate of
5% of any class of stock of a corporation engaged, directly or indirectly, in
Competitive Activities; provided that such stock is listed on a national
securities exchange or is quoted on the NASDAQ National Market System.


 


(d)                                 Executive
hereby declares, acknowledges and agrees that the foregoing time limitations
are reasonable and properly required for the adequate protection of the
business and the goodwill of the Company. In the event any such time limitation
is deemed to be unreasonable by any court of competent jurisdiction, the
Executive agrees to the reduction of such time limitation to such period which
such court shall deem reasonable. 
Executive further declares, acknowledges and agrees that (i) concurrently
with the execution and delivery of this Agreement iVillage has entered into a
Stock Exchange and Merger Agreement of even date herewith (the “Merger
Agreement”) providing for iVillage’s acquisition of all the outstanding stock
of the Company, including the shares therein held by Executive, (ii) iVillage’s
willingness to enter into the Merger Agreement and complete such acquisition is
conditioned upon Executive’s execution and delivery of this Agreement and Executive’s
agreement to be bound by this Agreement, including without limitation this Section 4,
(iii) Executive’s execution and delivery of this Agreement has induced
iVillage to enter into the Merger Agreement and complete such acquisition, and (iv) Executive’s
execution and delivery of this Agreement is expressly required by the terms of
the Merger Agreement.


 


(e)                                  The
parties acknowledge that in the event of a breach or threatened breach of Section 4.2(a) or
4.2(b) above, the Company shall not have an adequate remedy at law.  Accordingly, in the event of any breach or
threatened breach of Section 4.2(a) or 4.2(b) above, the Company
shall be entitled to such equitable and injunctive relief as may be available
to restrain Executive and any business, firm, partnership, individual,
corporation or entity participating in the breach or threatened breach from the
violation of the provisions of Section 4.2(a) or 4.2(b) above.
Nothing in this Agreement shall be construed as prohibiting the Company


 


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from pursuing any other remedies
available at law or in equity for breach or threatened breach of Section 4.2(a) or
4.2(b) above, including the recovery of damages.


 


5.                                       TERMINATION OF EMPLOYMENT AND EFFECTS OF TERMINATION.


 


5.1                                 Events of Termination.  Executive’s employment with the Company shall
terminate upon any one of the following:


 


(a)                                  The
Company or iVillage provides Executive with notice of the Company’s intent to
terminate Executive’s employment with the Company without cause, in which case
termination shall be effective on the date specified in such notice.  In the event of termination under this Section 5.1(a),
in addition to the compensation and benefits otherwise due to Executive through
the date of termination under this Agreement, Executive will receive from the
Company:  (i) the payment of
Executive’s base salary for the greater of (x) the period of time representing
two (2) years less the number of days Executive was employed by the
Company during the first two (2) years of his employment under this
Agreement or (y) twelve (12) months (such period referred to herein as the “Severance
Period”), at the time such payments would otherwise be payable under this
Agreement, (ii) a cash payment payable in equal installments during the
Severance Period equal to a pro rata share of the Target Bonus for the year in
which such termination occurs; and (iii) reimbursement for the applicable
premiums Executive pays, if he elects to continue coverage for Executive and
Executive’s dependants under the Company benefit plans for the Severance Period
under the same terms and conditions applicable to existing employees.  In addition, in the event Executive is
terminated by the Company without cause after the end of the applicable calendar
year but prior to receiving payment of the Target Bonus for such calendar year,
then the Company shall also pay such Target Bonus to the Executive.  In addition, all stock options granted to the
Executive hereunder or hereafter, that would have vested
had the Executive remained employed with the Company during the 12 month period
beginning on the Executive’s termination date shall immediately vest upon such
termination.  Executive’s rights under
the Company’s benefit plans of general application shall, except as herein
provided, be determined under the provisions of those plans.


 


(b)                                 The
Company terminates Executive for “cause” pursuant to Section 5.2
below.  In the event of termination under
this Section 5.1(b), the Company shall pay Executive the compensation and
benefits otherwise payable to Executive under Section 2.1


 


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through
the effective date of termination, and the Company will have no obligation to
pay Executive any further compensation under the Agreement.  Executive’s rights under the Company’s
benefit plans of general application shall be determined under the provisions
of those plans.


 


(c)                                  The resignation by Employee for “good reason” as defined in Section 5.3
below, in which case resignation shall be effective on the date that written
notice of Employee’s resignation is delivered to the Company pursuant to Section 11.8
hereof.  In the event of resignation
under this Section 5.1(c), the Company shall pay Employee the compensation
and benefits described in Section 5.1(a) of this section under
the same terms and conditions described in Section 5.1(a).  Executive’s rights under the Company’s
benefit plans of general application shall be determined under the provisions
of those plans.


 


(d)                                 The
resignation by Executive without “good reason”. 
In the event of termination under this Section 5.1(d) the
Company shall pay Executive the compensation and benefits otherwise payable to
Executive under Section 2.1 through the effective date of termination, and
the Company will have no obligation to pay Executive any further compensation
under this Agreement.  Executive’s rights
under the Company’s benefit plans of general application shall be determined
under the provisions of those plans.


 


(e)                                  The
date of Executive’s death or permanent disability.  Permanent disability may be deemed to occur,
if Executive is incapacitated or disabled by accident or sickness or otherwise
so as to render him mentally or physically incapable of performing the services
required to be performed by him under this Agreement for a period of 120
consecutive days. In the event of termination under this Section 5.1(e),
the Company shall pay Executive the compensation and benefits otherwise payable
to Executive under Section 2.1 through the effective date of termination,
and the Company will have no obligation to pay Executive or his estate any
further compensation under this Agreement. 
Executive’s rights under the Company’s benefit plans of general
application shall be determined under the provisions of those plans or the
provisions of any agreement executed pursuant to those plans.


 


5.2                                 Termination
For “Cause” Defined.  For purposes of
Section 5.1(b) above, “cause” for Executive’s termination shall mean:


 


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(a)                                  Executive
has materially breached any material provision of this Agreement;


 


(b)                                 Executive
has engaged in continuous, gross neglect of his duties as an Executive of the
Company;


 


(c)                                  Executive
has committed an act of gross negligence or gross misconduct, including,
without limitation, Executive’s theft, misuse or unauthorized disclosure of
proprietary information; and


 


(d)                                 Executive is convicted of a felony or a crime
involving moral turpitude.


 


For purposes of Section 5.2(a),
5.2(b) and 5.2(c), before terminating the Executive’s employment, the
Company must provide the Executive with notice describing the specific nature
of the event(s) otherwise constituting cause and Executive will have 15 days to
cure such event(s) if capable of cure. 
In addition, such notice must be given to Executive within 30 days of
the Company’s discovery of the event purportedly constituting cause (or, in the
case of Section 5(d), the Company must terminate the Executive within 30
days of the Company’s discovery of the event constituting cause).


 


5.3                                 Resignation For “Good Reason” Defined.  For purposes of Section 5.1(c) above,
Employee may resign (within thirty (30) days) of the Employee’s discovery of
the occurrence of one or more of the following events, any of which shall
constitute “good reason” for such resignation:


 


(a)                                  Without the Employee’s prior written
consent, the assignment to the Employee of any duties materially inconsistent
with the Employee’s position, duties, responsibilities and status with the
Company as set forth in this Agreement;


 


(b)                                 Without
Employee’s consent, a reduction by the Company of the Employee’s base salary
specified in Section 2.1 above;


 


(c)                                  The
Company requiring the Executive to be based anywhere other than within forty
(40) miles from the current principal offices of iVillage, except for required
travel on the Company’s, iVillage’s or an affiliate’s business to an


 


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extent
substantially consistent with the Executive’s present business travel
obligations; or;


 


(d)                                 Any
other material breach of a material provision of this Agreement by the Company.


 


6.                                       EFFECT OF TERMINATION PAYMENTS.  Executive agrees and acknowledges that upon
Executive’s termination of employment with the Company pursuant to Section 5
of this Agreement, Executive shall only be entitled to the severance payments
and benefits, if any, specified in Section 5 and such severance payments
and benefits shall be in lieu of all other severance payments and benefits
which might otherwise be payable to Executive by the Company.  Executive’s entitlement to the severance
payments and benefits described in Section 5.1(a) or 5.1(c) shall
be contingent on his execution of a separation agreement and release,
substantially in material terms to that attached hereto as Exhibit B.


 


7.                                       CONFIDENTIALITY.  Executive expressly covenants and agrees that
he will execute and comply with the Company’s Non-Competition, Non-Disclosure
and Assignment of Inventions Agreement, in the form attached hereto as Exhibit A
(the “NCNDAI Agreement”); provided that the restrictive covenant in paragraph 6
of the NCNDAI Agreement shall not apply to Executive.  In the event of a conflict between any
provision of this Agreement and the NCNDAI Agreement, the provisions of this
Agreement shall control.  This provision
shall survive the expiration of this Agreement.


 


8.                                       ASSIGNMENT AND TRANSFER.  Executive’s rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, and any purported
assignment, transfer or delegation thereof shall be void.  This Agreement shall inure to the benefit of,
and be enforceable by, any purchaser of substantially all of Company’s assets,
any corporate successor to the Company or any assignee thereof.


 


9.                                       NO INCONSISTENT OBLIGATIONS.  Executive is aware of no obligations, legal
or otherwise, inconsistent with the terms of this Agreement or with his
undertaking employment with the Company, save for any provision contained in
the NCNDAI Agreement.


 


10.                                 INDEMNIFICATION AND INSURANCE.  Executive will be covered under
the Company’s insurance policies and, subject to applicable law, will be
provided indemnification to the maximum extent permitted by the Company’s
bylaws and Certificates of Incorporation, with


 


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such insurance coverage and indemnification to be in accordance with the
Company’s standard practices for senior executive officers but on terms no less
favorable than provided to any other Company senior executive officer or
director.


 


11.                                 MISCELLANEOUS.


 


11.1                           Entire Agreement.  This Agreement and the NCNDAI contain the
entire agreement and understanding between the parties hereto and supersedes
any prior or contemporaneous written or oral agreements between them respecting
the subject matter hereof and thereof, including, without limitation, the
Employment Agreement entered into on February 29, 2000 by and between the
Executive and the Company.  Executive
acknowledges, represents and warrants to the Company that no oral or written
representations have been made to Executive by the Company or any
representative of the Company regarding (a) the Company’s financial
condition or its prospects or (b) any obligation, commitment or
understanding on behalf of the Company to continue to employ Executive for any
specific period of time except as specifically set forth herein.


 


11.2                           Term and Amendment.  This Agreement may be amended only by a
writing signed by Executive and by a duly authorized representative of the
Company (other than Executive).  Sections
4.2, 5, 7 and 11 shall survive termination of this Agreement.  The period of time from the date hereof
through termination of this Agreement shall be the “Term” of this Agreement.


 


11.3                           Severability.  If any term, provision, covenant or condition
of this Agreement, or the application thereof to any person, place or
circumstance, shall be held to be invalid, unenforceable or void, the remainder
of this Agreement and such term, provision, covenant or condition as applied to
other persons, places and circumstances shall remain in full force and effect.


 


11.4                           Construction.  The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. 
The language in all parts of this Agreement shall be in all cases
construed according to its fair meaning and not strictly for or against the
Company or Executive.


 


11.5                           Rights
Cumulative.  The rights and remedies
provided by this Agreement are cumulative, and the exercise of any right or
remedy by either party hereto (or by its


 


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successor),
whether pursuant to this Agreement, to any other agreement, or to law, shall
not preclude or waive such party’s right to exercise any or all other rights
and remedies.


 


11.6                           Nonwaiver. 
No failure or neglect of either party hereto in any instance to exercise
any right, power or privilege hereunder or under law shall constitute a waiver
of any other right, power or privilege or of the same right, power or privilege
in any other instance.  All waivers by
either party hereto must be contained in a written instrument signed by the
party to be charged and, in the case of the Company, by an officer of the
Company (other than Executive) or other person duly authorized by the Company.


 


11.7                           Remedy for Breach.  The parties hereto agree that, in the event
of breach or threatened breach of any covenants of Executive, the damage or
imminent damage to the value and the goodwill of the Company’s business shall
be inestimable, and that therefore any remedy at law or in damages shall be
inadequate.  Accordingly, the parties
hereto agree that the Company shall be entitled to injunctive relief against
Executive in the event of any breach or threatened breach of any of such
provisions by Executive, in addition to any other relief (including damages)
available to the Company under this Agreement or under law.  This Agreement shall be governed under the
laws of the State of New York and any action to enforce this Agreement must be
commenced within the State of New York, County of New York.


 


11.8                           Notices. 
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery
service, or mailed by registered or certified mail (return receipt requested)
or sent via facsimile (with acknowledgement of complete transmission) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):


 


if
to the Company, to:


iVillage
Inc.


Legal Department


500 Seventh Avenue


New York, New York 10018


Telephone No.: (212) 600-7838


Facsimile No.: (212) 600-6556


 


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if
to Executive, to:


Steven Haimowitz


430 West 24th
Street, Apartment 2F


New York, New York 10011


 


Telephone
No. (917) 885-0996


Facsimile No.:


 


11.9                           Assistance in Litigation.  Executive shall, during his employment and
after termination, upon reasonable notice, furnish such information and proper
assistance to the Company as may reasonably be required by the Company in
connection with any litigation which it or any of its subsidiaries or
affiliates is, or may become, a party. 
After the termination of his employment, any such reasonable assistance
will take into account Executive’s schedule and commitments and Executive
will be reimbursed for all out-of-pocket expenses incurred in connection any
such assistance.


 


11.10                     Execution. 
This Agreement may be executed in counterparts, each of which shall be
deemed an original but both of which together will constitute one and the same
instrument.


 


IN
WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.


 


	
  HEALTHOLOGY,
  INC.

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ Steven A.
  Elkes

  	
   

  	
   

  	
   /s/ Steven
  Haimowitz

  	
   

  
	
  Name:  Steven A. Elkes

  	
   

  	
  Steven Haimowitz

  
	
  Title:  Secretary

  	
   

  	
   

  
						



 


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