JOINDER AGREEMENT
Exhibit
99.3
This
JOINDER AGREEMENT (this “Joinder
Agreement”)
to the
Merger Agreement (defined below), dated October 12, 2007, is from the party
identified on the signature page hereto (the “Joining
Party”).
RECITALS
WHEREAS,
BabyUniverse, Inc, a Florida corporation (“Parent”),
Baby
Acquisition Sub, Inc., a Delaware corporation (“Merger
Sub”),
and
eToys Direct, Inc., a Delaware corporation (the “Company”)
entered into a certain Agreement and Plan of Merger, dated as of March 13,
2007,
as
amended by that First Amendment to Agreement and Plan of Merger, dated as of
September 12, 2007, and that Second Amendment to Agreement and Plan of Merger,
dated as of September 20, 2007 (as so amended, the “Merger
Agreement”),
an
executed copy of which is attached hereto as Exhibit
A
(capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Merger Agreement); and
WHEREAS,
pursuant to Sections 1.8 and 2.1 of the Merger Agreement, the Joining Party
has
the right to receive the Merger Consideration with respect to each share of
such
Joining Party’s Company Common Stock, conditioned in part upon the delivery to
Parent of this Joinder Agreement, duly executed by the Joining
Party.
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Joining Party hereby agrees as follows:
1. Joinder
of Merger Agreement.
By
executing this Joinder Agreement, the Joining Party hereby consents and agrees
to become a party to and be bound by and subject to all of the terms,
liabilities and obligations pertaining to the Former Company Stockholders in
Article X of the Merger Agreement, entitled “Indemnification”, as if it were an
original signatory thereto with respect to such terms, liabilities and
obligations.
2. Representations
and Warranties.
The
Joining Party hereby represents and warrants to Parent, Merger Sub and the
Company as follows:
(a)
The Joining Party has the requisite power and authority to execute, deliver
and
perform its obligations under this Joinder Agreement and Article X of the Merger
Agreement.
(b)
This
Joinder Agreement has been duly and validly executed and delivered by the
Joining Party and each of this Joinder Agreement and Article X of the Merger
Agreement constitutes a legal, valid and binding obligation of the Joining
Party, enforceable against such Joining Party in accordance with its respective
terms, subject to (i) the effect of bankruptcy, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
the
enforcement of creditors’ rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing.
(c)
The
Joining Party has received a copy of the Merger Agreement and has read and
understands the terms of the Merger Agreement, including, without limitation,
Article X thereof.
3. Full
Force and Effect.
All of
the terms and conditions of the Merger Agreement remain in full force and
effect.
4. Notices.
All
Notices provided to the Joining Party under the Merger Agreement or this Joinder
Agreement shall be sent or delivered to the address set forth on the signature
page hereto.
5. Governing
Law.
This
Joinder Agreement shall be construed, performed and enforced in accordance
with,
and governed by, the laws of the State of Delaware. The Joining Party
irrevocably elects as the sole judicial forum for the adjudication of any
matters arising under or in connection with this Agreement, and consents to
the
jurisdiction of, the courts of the State of Delaware.
6. Severability.
In the
event that any part of this Joinder Agreement is declared by any court or other
judicial or administrative body of competent jurisdiction to be null, void
or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Joinder Agreement shall remain in full
force and effect.
7. Headings.
The
descriptive headings contained in this Joinder Agreement are for convenience
of
reference only and shall not affect in any way the meaning or interpretation
of
this Joinder Agreement.
[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Joining Party has executed and delivered this Joinder
Agreement as of the date first above written.
| D. E. Shaw Laminar Acquisition Holdings 3, L.L.C. | |
| By: X. X. Xxxx & Co., L.L.C., as Manager | |
| By: /s/ Xxxxxx Xxxxxx | |
| Name:
Xxxxxx Xxxxxx
Title:
Managing
Director
|
Address:
000 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx
Xxxxxxx
Xxxx
[Signature
Page to Joinder Agreement]
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EXHIBIT
A
MERGER
AGREEMENT
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