Exhibit 99.2
[FORM OF AMENDMENT NO. 1 TO THE STOCKHOLDERS AGREEMENT]
This AMENDMENT NO. 1 TO THE STOCKHOLDERS AGREEMENT (this
"Amendment") is dated as of September 5, 2001, and entered into by and
among XXXX XXXXX, Xxxxx XxxxxxXx Investment Management, Inc. and ATHANOR
HOLDINGS, LLC ("Athanor").
RECITALS
WHEREAS, Xxxx Xxxxx, Xxxxx Xxxxxxxx Investment Management, and
Athanor have entered into that certain Stockholders Agreement dated as of
August 15, 2001 (the "Stockholders Agreement"), pursuant to which they
entered into a voting agreement with respect to certain matters related to
The Right Start, Inc. ("Right Start") and covenanted to perform or to cause
to be performed certain actions for the benefit of the other;
WHEREAS, Right Start and Athanor have amended the Investment
Agreement (as defined in the Stockholders Agreement) to provide for certain
changes to the securities issued thereunder;
WHEREAS, Xxxx Xxxxx and Xxxxx Xxxxxxxx Investment Management, as
an inducement to Athanor in respect of the foregoing, and Athanor have
decided to amend the Stockholders Agreement to reflect the changes in their
obligations as a result of such amendment to the Investment Agreement;
NOW, THEREFORE, in consideration of these premises, the
agreements, provisions and covenants contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the meanings given in the Stockholders Agreement or the
Investment Agreement, as amended.
2. Covenant to vote to approve the convertibility feature of the
Convertible Note and of sufficient shares of Common Stock: Xxxx Xxxxx and
Xxxxx Xxxxxxxx Investment Management each severally agree with Athanor that
he/it will vote all securities of Right Start held by them which are
entitled to vote thereon in favor of all matters necessary to approve the
conversion feature of the Convertible Note and any PIK Notes issued
pursuant thereto.
3. Representation and Warranty regarding share ownership and
covenant to cause approval of the issuance of shares and of the conversion
feature of the Convertible Note: Xxxx Xxxxx and Xxxxx Xxxxxxxx Investment
Management represent and warrant to Athanor that they jointly own
sufficient shares of Right Start to cause, and will cause, on the terms and
conditions set forth in the Investment Agreement, the shareholders of Right
Start to approve the conversion feature of the Convertible Note (and any
PIK Notes issued pursuant thereto) and the authorization by Right Start's
shareholders of sufficient additional Common Stock to permit the conversion
of the Convertible Note and of the maximum number of PIK Notes issuable
pursuant to the Convertible Note.
4. Calculation of Ownership Percentage. Notwithstanding anything
to the contrary in this Agreement, determination of Athanor's percentage
ownership of the outstanding Common Stock shall, for all purposes under the
Stockholders Agreement, be calculated on the basis that all securities
convertible into Common Stock (including any PIK Notes) of Xxxx Xxxxx,
Xxxxx Xxxxxxxx Investment Management and Athanor have been converted in
full.
5. Effect of Amendment; Ratification. From and after the date of
this Amendment, all references in the Stockholders Agreement to the
Stockholders Agreement shall mean the Stockholders Agreement as amended
hereby. The terms and provisions set forth in this Amendment are in
addition to and supplemental to the terms and provisions set forth in the
Stockholders Agreement and the terms and provisions of the Stockholders
Agreement are hereby ratified and confirmed, together with the terms and
provisions set forth in this Amendment, and are and shall continue in full
force and effect.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one
and the same instrument. Delivery via facsimile of an executed counterpart
of a signature page of this Amendment shall be effective as delivery of a
manually-executed counterpart of this Amendment.
7. Governing Law. This Amendment shall be governed by, and shall
be construed and enforced in accordance with, the internal laws of the
State of California, without regard to conflicts of laws principles.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to the Stockholders Agreement to be duly executed by a duly authorized
officer as of the date first above written.
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Xxxx Xxxxx
Xxxxx Xxxxxxxx Investment Management, Inc.
By: _______________________________
Name:
Its:
ATHANOR HOLDINGS, LLC
By: ____________________________
Name: Xxxxxxx Xxxxxxx
Title: Manager
By: ____________________________
Name: Xxxxxxx Xxxxx
Title: Manager
