REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of January
6, 2002 between The Right Start, Inc., a California corporation (the "Company"),
and Royal Vendex KBB N.V., a Netherlands corporation (the "Nominee"), as nominee
for the holders (the "Holders") of time to time of the Registrable Securities
(as defined below).
R E C I T A L S
WHEREAS, pursuant to Section 2.6(b)(xiii) of that certain Asset Purchase
Agreement dated November 19, 2001 (the "Purchase Agreement"), by and among the
Company, Toy Solider, Inc., a Delaware corporation that is a wholly owned
subsidiary of the Company ("TSI"), the Nominee, F.A.O. Xxxxxxx, a New York
corporation that is an indirect wholly owned subsidiary of the Nominee ("FAO"),
and Quality Fulfillment Services, Inc., a Virginia corporation that is an
indirect wholly owned subsidiary of the Nominee ("QFS"), TSI has delivered
shares of the Company's Series H Contingent Convertible Preferred Stock (the
"Convertible Securities") to FAO and QFS as a portion of the Initial Purchase
Price (as defined in the Purchase Agreement and is required to deliver to the
Nominee the Registration Rights Agreement (as defined in the Purchase
Agreement), containing the terms and provisions set forth in Section 12.9 of the
Purchase Agreement, executed by the Company, providing for the registration of
the shares of the Company's common stock, no par value (the "Common Stock"),
issuable upon conversion of the Convertible Securities (the "Registrable
Securities") following the obtaining of the requisite approval of the Company's
shareholders as contemplated by Section 12.4 of the Purchase Agreement and the
terms of the Convertible Securities (the "Approval");
WHEREAS, the Company and the Nominee desire to enter into this Agreement to
fulfill the above described obligations, to provide the Nominee with certain
registration rights and to address related matters;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Registration Rights.
1.1 Demand Registration Rights. Subject to the provisions of this Section
1.1, and conditioned upon obtaining the Approval, at any time after January 6,
2004, Nominee shall have a one-time right to demand, by written notice to the
Company, on behalf of the then Holders, the registration of all or part of the
Registrable Securities and, upon receipt of such notice, the Company shall, as
expeditiously as practicable, use its best efforts to file with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Act"), a registration statement (the "Registration Statement"), on the
appropriate form (using Form S-3 or other "short form," if available) covering
all the Registrable Securities requested to be covered by the Nominee pursuant
to Section 1.3. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when such securities shall: (x) have
been disposed of pursuant to an effective registration statement or Rule 144
promulgated under the Act ("Rule 144"); (y) be freely transferable pursuant to
paragraph (k) of Rule 144; or (z) cease to be outstanding.
If the Registration Statement ceases to be effective for any reason at any
time during the Effectiveness Period (as defined below) (other than because of
the sale of all of the Registrable Securities registered thereunder), the
Company shall use its reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall within
thirty (30) business days of such cessation of effectiveness amend the
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof.
Subject to the provisions of this Section 1.1, the Company shall cause the
Registration Statement to remain effective until the earlier of (A) nine months
after the effective date thereof or (B) until the completion of the distribution
described in the Registration Statement (the date such Registration Statement
becomes effective until the earlier of (A) or (B) above, the "Effectiveness
Period").
The Nominee agrees that no Holder may effect a public sale or distribution
under the Registration Statement and the Company need not file the Registration
Statement or may suspend resales by any Holder under the Registration Statement
pursuant to this Section 1.1 for a period (the "Suspension Period") (i)
beginning at the commencement of the "road show" for any registered offering of
securities by the Company and for 180 days thereafter; provided, however, that
all directors, executive officers and five percent holders of Company's Common
Stock agree to the same restrictions; or (ii) of 90 days in any 12 month period
if and when the board of directors of the Company reasonably determines in good
faith that there is material undisclosed information for which immediate
disclosure would be adverse to the Company. The Company shall promptly notify
the Nominee in writing of any decision not to file the Registration Statement or
to prohibit resales pursuant to this Section 1.1, which notice shall set forth
in reasonable detail the reason for such decision and shall include an
undertaking by the Company promptly to notify the Nominee as soon as the
Registration Statement may be filed or resales may resume. Upon receipt by the
Nominee of notice of an event of the kind described in this Section 1.1, the
Nominee shall ensure that each Selling Holder (as defined below) shall forthwith
discontinue such Selling Holder's disposition of Registrable Securities until
the earlier of the expiration of the Suspension Period set forth above and such
Nominee's receipt of notice from the Company that such disposition may continue
and of any supplemented or amended prospectus indicated in such notice. In the
event the Nominee exercises its demand registration right under this Section
1.1, the Company shall use its commercially reasonable efforts to cause its
officers to participate in "road shows" with respect to the offering.
1.2 Piggyback Registration Rights.
(a) If at any time or times after the date hereof, the Company proposes to
make a registered public offering on Form S-3 (or any successor form) of any of
its securities under the Act (whether to be sold by it or by one or more third
parties), other than an offering pursuant to a demand registration under Section
1.1 hereof, the Company shall, not less than 45 days prior to the proposed
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filing date of the registration statement, give written notice of the proposed
registration to the Nominee, and at the written request of the Nominee,
delivered to the Company within 20 days after the receipt of such notice, shall
include in such registration and offering, and in any underwriting of such
offering, all Registrable Securities that may have been designated in Nominee's
request.
(b) If a registration in which the Holders have the right to participate
pursuant to this Section 1.2 is an underwritten offering for the account of the
Company or for the account of a security holder (other than the Holders)
pursuant to the exercise of a demand registration right, and the managing
underwriters advise the Company or such security holder, as the case may be, in
writing that in their opinion the number of securities requested to be included
in such registration, together with the securities being offered by the Company
or such security holder, as the case may be, exceeds the number which can be
effectively sold in such offering, the Company shall include in such
registration (i) first, the securities of the Company or such security holder
proposed to be sold, and (ii) second, to the extent possible, the Common Stock
proposed to be sold by the Holders and any other selling stockholders, in
proportion to the number of shares of Common Stock with respect to which they
have requested registration.
1.3 Registration Procedures. The Company shall have no obligation to file a
Registration Statement pursuant to Section 1.1 hereof, nor to include
Registrable Securities in a registration statement pursuant to Section 1.2
hereof, unless and until the Nominee shall have furnished the Company with all
information and statements about or pertaining to such Holder proposing to sell
Registrable Securities pursuant thereto (a "Selling Holder") in such reasonable
detail and on such timely basis as is reasonably requested by the Company in
connection with the preparation of such registration statement; provided,
however, that any such information shall be given or made by a Selling Holder
without representation or warranty of any kind whatsoever, except with respect
to the identity of such Selling Holder, such Selling Holder's Registrable
Securities and such Selling Holder's intended method of distribution or any
other representation required by applicable law. In connection with requests by
the Nominee and the filing of any registration statement hereunder, the Company
shall use its reasonable best efforts, as expeditiously as possible to:
(a) prepare and file with the SEC, as soon as practicable, but in no event
later than 30 days after such request by the Nominee, a registration statement
with respect to the shares requested by the Nominee to be registered by the
Selling Holders and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable, but in no event later than
60 days after such filing has been made (or 90 days after such filing has been
made if a "full review" is made by the SEC pursuant to such filing) as provided
herein. Notwithstanding the foregoing, before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
counsel for the Nominee with copies of all such documents proposed to be filed
and shall make such changes reasonably requested by the Nominee or its counsel
in writing;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and prospectus used in connection therewith with respect
to the shares requested by the Nominee to be registered as may be necessary to
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keep such registration statement effective and to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement during the Effectiveness Period;
(c) furnish the Nominee and each Seller Holder such number of conformed
copies of such registration statement, each amendment and supplement thereto
(including all exhibits), the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), any other
prospectus filed under the Act, and such other documents as the Nominee or such
Selling Holder may reasonably request;
(d) use its reasonable best efforts to register or qualify all Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as the Nominee requests in writing (and to
maintain such registrations and qualifications effective during the
Effectiveness Period) and to do any and all other acts and things which may be
reasonable or advisable to enable the Selling Holders to consummate the
disposition in such jurisdictions of such shares (provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not be required but for this Section 1.3(d), (ii) subject itself
to taxation in any such jurisdiction, or (iii) file any general consent to
service of process in any such jurisdiction);
(e) in any underwritten offering, and if reasonable and customary in the
context of such offering, use its reasonable best efforts to furnish to the
Selling Holders a signed counterpart, addressed to the Selling Holders of
Registrable Securities (and the underwriters, if any):
(i) an opinion of counsel for the Company, dated the effective date of
such registration statement or the date of the closing under the
underwriting agreement in the form negotiated by the underwriters, and
(ii) a "comfort" or procedures letter in the form negotiated by the
underwriters dated such dates(s) as the letter(s) delivered to the underwriters,
signed by the independent public accountants who have certified the Company's
financial statements included in such registration statement, in accordance with
the provisions of Statement on Auditing Standards ("SAS") No. 72, as amended by
SAS 76 and SAS 86 (and any successor supplementing statements), covering
substantially the same matters with respect to such registration statement and
the prospectus included therein (and, in the case of the accountants' letter,
with respect to events subsequent to the date of such financial statements), as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to the underwriters in underwritten public offerings of
securities, and in the case of the accountants' letter, such other financial
matters as such underwriters may reasonably request;
(f) promptly notify the Selling Holders, at any time during which a
prospectus relating thereto is required to be delivered under the Act within the
period that the Company is required to keep a registration statement effective
with respect to such shares being registered, of the happening of any event as a
result of which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact required to be stated
therein or necessary to make the statements therein not misleading, and, except
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during a Suspension Period, promptly prepare a supplement or amendment to such
prospectus and deliver it to the Selling Holders, so that, as thereafter
delivered to the Selling Holders, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact required to be stated
therein or necessary to make the statements therein not misleading;
(g) use its reasonable best efforts to cause all Registrable Securities
covered by such registration statement to be listed on the securities exchanges
or interdealer quotation systems (including the NASDAQ National Market), if any,
on which similar securities issued by the Company are then listed;
(h) comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder;
(i) provide a transfer agent and registrar for all Registrable Securities
covered by such registration statement not later than the effective date of such
registration statement, and enter into such customary agreements, including an
underwriting agreement in customary form with a lead underwriter, if any, chosen
by the Nominee, both the lead underwriter and the agreement to be reasonably
acceptable to the Company, and take all such other actions as the Nominee or
underwriters reasonably request (and subject to the reasonable approval of the
Nominee) in order to expedite or facilitate the disposition of such shares;
(j) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, as promptly as practicable;
and
(k) make reasonably available for inspection by the Nominee and by any
underwriter, in each case, participating in any distribution pursuant to such
registration statement, and by any attorney, accountant or other agent retained
by the Nominee, or by any such underwriter, all relevant financial and other
records, pertinent corporate documents, and properties (other than confidential
intellectual property) of the Company and to use its reasonable best efforts to
cause the Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by such persons in connection
with such registration statement; provided, however, that any information that
is designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information (and the fact of, and the actual, notice
under Section 1.1 that a registration statement will not be filed or that
resales will be suspended) shall be kept confidential by the Nominee and by any
underwriter, attorney, accountant or agent participating in any distribution
pursuant to such registration statement, unless such disclosure is required to
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be made in connection with a court proceeding or, in the written opinion of
legal counsel acceptable to the Company, required by law (provided, in each
case, that the Company is given prompt notice of such requirement and the
disclosing party assists the Company to obtain a protective order against such
disclosure), or such information becomes available to the public generally or
through a third party without an accompanying obligation of confidentiality, in
each case, without violation of the confidentiality obligations of the Nominee
under this Agreement.
1.4 Registration Expenses. The Company will pay all Registration Expenses
of all registrations made under this Agreement. For purposes of this Section,
the term "Registration Expenses" means all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees (other than National Association of Securities Dealers, Inc.
filing fees pursuant to an underwritten offering), exchange listing fees,
printing expenses, fees, and expenses of counsel and accountants for the Company
and the reasonable fees and expenses of one firm or counsel selected by the
Nominee, state Blue Sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding underwriting
discounts and selling commissions and transfer taxes, if any, which shall be
paid by the Selling Holders pro rata, based on the number of shares sold by each
Selling Holder under the applicable registration statement.
1.5 Requested Underwritten Offerings. Pursuant to the Registration
Statement requested by the Nominee under Section 1.1, the Nominee may request
that the offering be underwritten by an investment bank, the lead underwriter of
which shall be chosen by the Nominee, such lead underwriter to be reasonably
acceptable to the Company. If requested by the underwriters for any such
underwritten offering by the Nominee, the Company will use its reasonable best
efforts to enter into an underwriting agreement with such underwriters for such
offering, such agreement to be reasonably satisfactory in substance and form to
the Company, the Nominee and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities to the effect and to the extent provided in Section 1.7. The Nominee
and the Selling Holders shall reasonably cooperate with the Company in the
negotiation of the underwriting agreement, and the Company shall prepare and
make any changes to the underwriting agreement, the registration statement and
related documents reasonably requested by the underwriters or the Nominee, as
the case may be. Each Selling Holder participating in such offering shall be a
party to such underwriting agreement. No Selling Holder shall be required to
make any representations or warranties to, or agreements with, the Company other
than representations, warranties or agreements regarding the identity of such
Selling Holder, such Selling Holder's Registrable Securities and such Selling
Holder's intended method of distribution or any other representations required
by applicable law. No Selling Holder may participate in such underwritten
offering unless such Holder agrees to sell its Registrable Securities on the
basis provided in the underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of the underwriting agreement. If a Selling Holder
disapproves of the terms of the underwriting agreement, such holder may elect to
withdraw therefrom and from such registration by notice to the Company and the
lead underwriter.
1.6 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Act pursuant to
this Agreement, the Company will give the Nominee, its underwriters, if any, and
their respective counsel the opportunity to participate in the preparation of
such registration statement and each prospectus included therein or filed with
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the Commission, and each amendment thereof or supplement thereto, and will give
each of them such reasonable access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of the Nominee's and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Act.
1.7 Indemnity.
(a) In the event that any Registrable Securities are registered by means of
a registration statement pursuant to Section 1.1 or 1.2, the Company agrees to
enter into an indemnity agreement (which may be included in the applicable
underwriting agreement) to indemnify and hold harmless each of the Selling
Holder(s), each of its partners, members, managers, officers and directors, as
applicable, and each person, if any, who controls such Selling Holder within the
meaning of the Act (each Selling Holder, its partners, managers, members,
officers and directors, as applicable, and any such other persons being
hereinafter referred to individually as a "Indemnified Person" and collectively
as "Indemnified Persons") from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities (joint or several),
costs, and expenses (joint or several), including, without limitation, interest,
penalties, and reasonable attorneys' fees and disbursements, asserted against,
resulting to, imposed upon or incurred by such Indemnified Person, directly or
indirectly pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under
the Act, the Securities Exchange Act of 1934, as amended, or any other federal
or state laws (hereinafter referred to in this Section 1.6 in the singular as a
"claim" and in the plural as "claims"), insofar as any such claim is based upon,
arising out of or resulting from any untrue statement or alleged untrue
statement of a material fact contained in the registration statement (including
any preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto) or any omission or alleged omission to state
therein a material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such claim is based upon, arises out of or results from information
furnished to the Company in writing by such Selling Holder expressly for use in
connection with the registration statement. Any indemnity by the Company under
this Section 1.6 shall survive the transfer of the Registrable Securities by the
Selling Holder for the benefit of such Selling Holder, and shall also inure to
the benefit of such Selling Holder's successors and assigns. In connection with
an underwritten offering, the Company shall indemnify such underwriters, their
officers and directors and each person who controls such underwriters (within
the meaning of the Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders.
(b) Subject to Section 1.3, the Nominee agrees to cause each Seller Holder
to enter into an indemnity agreement (which may be included in the applicable
underwriting agreement) and to indemnify and hold harmless the Company, its
officers and directors, and each person, if any, who controls the Company within
the meaning of the Act (the Company, its officers and directors, and any such
other persons also being hereinafter referred to individually as an "Indemnified
Person" and collectively as "Indemnified Persons") from and against all claims
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based upon, arising out of or resulting from any untrue statement of a material
fact contained in the registration statement or any omission to state therein a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, to the
extent that such claim is based upon, arises out of or results from information
furnished to the Company in writing by such Selling Holder expressly for use in
connection with the registration statement; provided that the obligation to
indemnify shall be individual, not joint and several, for each such Selling
Holder and shall be limited to the gross amount of the proceeds received by such
Selling Holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) The indemnification to be set forth in such indemnity agreement shall
be in addition to any liability the Company or a Holder may otherwise have to
the Indemnified Persons. Promptly after actually receiving definitive notice of
any claim in respect of which an Indemnified Person may seek indemnification
under this Section 1.6, such Indemnified Person shall submit written notice
thereof to either the Company or such Selling Holder, as the case may be
(sometimes being hereinafter referred to as an "Indemnifying Person"). The
failure of the Indemnified Person so to notify the Indemnifying Person of any
such claim shall not relieve the Indemnifying Person from any liability it may
have hereunder except to the extent that (a) such liability was caused or
materially increased by such failure, or (b) the ability of the Indemnifying
Person to reduce such liability was materially adversely affected by such
failure. In addition, the failure of the Indemnified Person so to notify the
Indemnifying Person of any such claim shall not relieve the Indemnifying Person
from any liability it may have otherwise than hereunder. The Indemnifying Person
shall have the right to undertake, by counsel or representatives of its own
choosing that are reasonably satisfactory to the Indemnified Person, the
defense, compromise or settlement (without admitting liability of the
Indemnified Person) of any such claim asserted, such defense, compromise or
settlement to be undertaken at the expense and risk of the Indemnifying Person,
and the Indemnified Person shall have the right to engage separate counsel, at
such Indemnified Person's own expense, which counsel for the Indemnifying Person
shall keep informed and consult with in a reasonable manner. In the event the
Indemnifying Person shall elect not to undertake such defense by its own
representatives, the Indemnifying Person shall give prompt written notice of
such election to the Indemnified Person, and the Indemnified Person may
undertake the defense, compromise or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and risk, and
at the expense, of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. Notwithstanding the foregoing, in any
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action or proceeding in which both the Indemnifying Person and an Indemnified
Person is, or is reasonably likely to become, a party, such Indemnified Person
shall have the right to employ separate counsel at the Indemnifying Person's
expense and to control its own defense of such action or proceeding if, on the
reasonable written advice of counsel to such Indemnified Person, the Indemnified
Person reasonably believes (a) there are or may be legal defenses available to
such Indemnified Person or to other Indemnified Persons that are different from
or additional to those available to the Indemnifying Person and (b) any conflict
or potential conflict exists between the Indemnifying Person and such
Indemnified Person that would make such separate representation advisable;
provided, further, however, that in no event shall the Indemnifying Person be
required to pay fees and expenses under this Section 1.6 for more than one firm
of attorneys in any jurisdiction in any one legal action or proceeding or group
of related legal actions or proceedings on behalf of the Indemnified Persons.
Notwithstanding the foregoing, no Indemnifying Person shall be obligated
hereunder with respect to amounts paid in settlement of any claim if such
settlement is effected without the consent of such Indemnifying Person, which
consent shall not be unreasonably withheld, and no Indemnifying Person shall,
without the written consent of each Indemnified Person, which consent shall not
be unreasonably withheld, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Person is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the Indemnified Person from all liability
arising out of such action or claim without any payment or consideration
provided or obligation incurred by any Indemnified Person and (B) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any Indemnified Persons.
(d) The indemnity agreement shall provide that, if for any reason the
foregoing indemnity is unavailable to, or is insufficient to hold harmless, an
Indemnified Person, then the Indemnifying Person shall contribute to the amount
paid or payable by the Indemnified Person as a result of such claims, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Person and the Indemnified Person as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity agreement shall provide that the indemnification and
contribution to the extent required thereby shall be made by periodic payments
of the amounts thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred;
provided that such amounts shall be refunded immediately to the extent it is
finally judicially determined that the Indemnified Person was not entitled to
indemnification thereunder.
2. Miscellaneous.
2.1 Additional Actions and Documents. Each of the parties hereto hereby
agrees to use its reasonable best efforts to take or cause to be taken such
further actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments, and to obtain such consents,
as may be necessary or as may be reasonably requested in order to fully
effectuate the purposes, terms and conditions of this Agreement.
2.2 Assignment. Any Holder may assign its rights under this Agreement to
any assignee of the Convertible Securities or the
Registrable Securities.
2.3 Entire Agreement; Amendment and Waiver. This Agreement, including the
other writings referred to herein or delivered pursuant hereto, constitutes the
entire agreement among the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for herein.
No amendment, modification or discharge of this Agreement shall be valid or
binding unless set forth in writing and duly executed by a party against whom
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enforcement of the amendment, modification, or discharge is sought. No course of
dealing or the failure of any party to enforce any of the provisions of this
Agreement shall in any way operate as a waiver of such provisions and shall not
affect the right of such party thereafter to enforce each and every provision of
this Agreement in accordance with its terms.
2.4 Limitation on Benefits. Except as provided for elsewhere herein, it is
the explicit intention of the parties hereto that no person or entity other than
the parties hereto (and their respective successors and assigns) is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants, undertakings and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors and
assigns.
2.5 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
The respective indemnities, agreements, representations, warranties and other
provisions set forth in this Agreement or made pursuant hereto shall remain in
full force and effect following any sale of Registrable Securities as
contemplated hereby and regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any Holder or any representative of any
Holder.
2.6 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of California, without
regard to conflicts of laws principles.
2.7 Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be made by
facsimile transmission and shall be mailed by over-night or registered mail,
return receipt requested, postage prepaid, or transmitted by hand delivery,
including delivery by courier, addressed as follows:
(a) If to the Company:
The Right Start, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal
Facsimile: 818.735.7242
with a copy (which shall not constitute notice) to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxx, Esq.
Facsimile: 213.680.4518
(b) If to the Nominee, to the address set forth in the Purchase Agreement.
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Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication that is mailed, delivered
or transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a telex) the answer back being deemed conclusive
(but not exclusive) evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
2.8 Headings. Article and Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
2.9 Execution in Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of each party appear on each counterpart; but it
shall be sufficient that the signature of each party appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of all of the parties hereto. Signatures pages may be
delivered with original signatures or by facsimile, and the delivery of a
signature by facsimile shall have the same effect as the delivery of an original
signature.
2.10 Remedies. The Nominee, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
2.11 Illegality. If any term or provision of this Agreement or any
application thereof shall be declared or held invalid, illegal or unenforceable,
in whole or in part, whether generally or in any particular jurisdiction, such
provision shall be deemed amended to the extent, but only to the extent,
necessary to cure such invalidity, illegality or unenforceability, and the
validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
2.12 Inspection. For so long as this Agreement shall be in effect, this
Agreement shall be made available for inspection and copying on any business day
after reasonable notice to the Company by the Nominee at the offices of the
Company at the address thereof set forth in Section 2.7 above.
2.13 No Inconsistent Agreements. The Company has not entered into (except,
with the respect to 500,000 shares then held by Xxxxxx X. Xxxxxxxx and Primerica
Life Insurance Company under the Registration Rights Agreement dated as of
August 3, 1995 between them, the Company and certain of the shareholders of the
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Company, which to the best knowledge of the Company do not currently have rights
inconsistent with the rights granted hereby), and will not hereafter enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
Without limiting the generality of the foregoing, the Company will not hereafter
grant to any holder of the Company's securities registration rights that are
senior to or that would have the effect of blocking or delaying the rights of
any of the Holders herein.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Registration
Rights Agreement to be duly executed on its behalf as of the date first above
written.
THE RIGHT START, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Chief Executive Officer
ROYAL VENDEX KBB N.V.
By: /s/ Xxxx ter Hark
Name: Xxxx ter Hark
Title: Director of Corporate Development
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