EXHIBIT 99.1
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated as of January 12,
2001 (this "RRA AMENDMENT"), among xXXxX*s Corp., a Delaware corporation
formerly known as iTurf Inc. (the "COMPANY"), and the former stockholders of
XxxXxxxx.xxx, Inc. (a Massachusetts corporation which was merged with and into
Merger Sub) listed on the signature page(s) to this RRA Amendment (the
"SELLERS").
W I T N E S S E T H:
WHEREAS, iTurf and the Sellers have previously entered into a Registration
Rights Agreement, dated as of February 15, 2000 (the "REGISTRATION RIGHTS
AGREEMENT"); and
WHEREAS, the parties have entered into a First Amendment to the Merger
Agreement (as defined in the Registration Rights Agreement) and desire to amend
the Registration Rights Agreement as set forth herein to implement said First
Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereby agree to amend the Merger Agreement as follows:
1. DEFINITIONS.
(a) Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Registration Rights Agreement.
(b) The definition of "MERGER AGREEMENT" in the Registration Rights
Agreement is hereby amended to mean the Plan and Agreement of Merger dated as of
February 4, 2000 by and among iTurf, the Sellers, XxxXxxxx.xxx, Inc., a
Massachusetts corporation, and iTurf Caveman Acquisition Corporation, a
Massachusetts corporation and a wholly owned subsidiary of the Company, as the
same may be amended, modified or supplemented from time to time.
2. AMENDMENT OF SECTION 2(A).
(a) Section 2(a) of the Registration Rights Agreement is hereby
amended and restated as follows:
(a) (i) The Company shall prepare and, on or prior to the date which occurs
three business days after the Company becomes eligible to file a registration
statement on Form S-3 (the "REGISTRATION DATE"), file with the SEC one or more
Registration Statements on Form S-3 (or, if Form S-3 is not then available, on
such form of registration statement as is then available to effect a
registration of the Initial Shares constituting Registrable Securities) and
pursuant to Rule 415 covering the resale from time to time by the Holders
thereof of all Initial Shares constituting Registrable Securities then
outstanding. The Company shall use its best commercial efforts to cause any
Registration Statement filed pursuant to this Section 2(a)(i) to become
effective as soon as practicable after the Registration Date.
(ii) The Company covenants and agrees that it will promptly following the
date of the First Amendment to the Merger Agreement, (x) file with the SEC, and
will use its best efforts to cause to become effective as promptly as
practicable, a post-effective amendment to Registration Statement No. 333-36300
to bring the information in such Registration Statement current and, to the
extent permissible under the rules and regulations of the SEC, to include
therein the Deferred Shares (as defined in the Merger Agreement) and any iTurf
Common Stock issuable upon payment of the Deferred Contingent Payment (as
defined in the Merger Agreement) and (y) if less than all of the Deferred Shares
or iTurf Common Stock issuable upon payment of the Deferred Contingent Payment
are included in such Registration Statement, file, and use its best efforts to
cause to become effective as promptly as practicable, a new additional
Registration Statement, in each case to enable the Sellers to resell upon
issuance to them (subject to Section 4.12 of the Merger Agreement) the Deferred
Shares and all iTurf Common Stock that may be issued in payment of the Deferred
Contingent Payment.
(iii) The Company shall use its best commercial efforts to cause any
Registration Statement filed pursuant to this Section 2(a) to become effective
as soon as practicable after the filing thereof and remain effective until 24
months following the last date of issuance to the Sellers of shares of Common
Stock which are Registrable Securities.
3. AMENDMENT OF SECTION 2(C). The words "during the two year period
following the Closing" in the first sentence of Section 2(c) of the Registration
Rights Agreement are hereby deleted and the following words are substituted
therefor: during the two-year period following the last date of issuance to the
Sellers of shares of Common Stock which are Registrable Securities
4. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This RRA Amendment sets forth the parties'
final and entire agreement with respect to its subject matter and supersede any
and all prior understandings and agreements (other than the Registration Rights
Agreement which, except as expressly modified herein, shall continue in full
force and effect). This RRA Amendment can be amended, supplemented or changed,
and any provision hereof can be waived, only by a written instrument making
specific reference to this RRA Amendment signed by the party against whom
enforcement of any such amendment, supplement, change or waiver is sought.
(b) PARAGRAPH HEADINGS. The paragraph or section headings in this
First Amendment are for reference purposes only and shall not affect in any way
the meaning or interpretation of this RRA Amendment. In the event of any
conflict between the terms of the Registration Rights Agreement and this RRA
Amendment, the terms of the RRA Amendment shall prevail and the Registration
Rights Agreement shall be interpreted in the manner contemplated by the RRA
Amendment.
(c) SEVERABILITY; CONFLICT. If any provision of this First Amendment
shall be held by any court of competent jurisdiction to be illegal, invalid or
unenforceable, such provision (to the extent possible) shall be construed and
enforced as if it had been more narrowly drawn so as not to be illegal, invalid
or unenforceable, and such illegality, invalidity or unenforceability shall have
no effect upon and shall not impair the enforceability of any other provision of
this First Amendment.
(d) COUNTERPARTS. This RRA Amendment may be delivered by facsimile
and executed in one or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, iTurf, the Company and the Selling Stockholders have
caused this Amendment to be executed as of the date first written above by their
respective officers thereunto duly authorized.
xXXxX*S CORP. (F/K/A iTURF INC.)
By:
-----------------------------------
Xxxxxx Xxxxxxxxx
Chief Financial Officer
XXX XXXXX, for himself and as
Sellers' Agent*
--------------------------------------
XXXXXX XXXXXXXX, for Net Associates
--------------------------------------
* Xx. Xxxxx is acting in his capacity as Sellers' Agent as agent and
attorney-in-fact for the Selling Stockholders listed below:
SELLING STOCKHOLDERS:
--------------------
XXXXX XXXXXXXX XXXXXXXXXXX XXXXX
XXXXXX XXXXXXX XXXXXXX XXXXX
XXXXXX XXXXXXXX XXX XXXXXXX
XXXXXXXXX XXXXXX XXX XXXX
XXXXXXX XXXXXXXX XXXXXX XXXXX
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