EXHIBIT 2.1
___________________________________________________________________________
AGREEMENT AND PLAN OF MERGER
by and among
TOYS "R" US, INC.
(a Delaware corporation)
and
TOYS "R" US-HEADQUARTERS, INC.
(a Delaware corporation)
and
TRU INTERIM, INC.
(a Delaware corporation)
_______________________________
Dated as of December 8, 1995
_______________________________
___________________________________________________________________________
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 8, 1995, by and
among TOYS "R" US, INC., a Delaware corporation ("Toys 'R' Us"), TOYS "R" US-
HEADQUARTERS, INC., a Delaware corporation and a wholly-owned subsidiary of
Toys "R" Us ("Toys HQ"), and TRU INTERIM, INC., a Delaware corporation and a
wholly-owned subsidiary of Toys HQ ("TRU Interim").
This Agreement provides for the merger of TRU Interim with and
into Toys "R" Us (the "Merger"), which will be the surviving corporation, in
accordance with Section 251(g) of the General Corporation Law of the State of
Delaware (the "DGCL"), upon the terms and conditions set forth herein and in
accordance with the applicable provisions of the DGCL. The purpose of the
Merger is to implement a holding company organizational structure under which
Toys HQ would be the holding company for Toys "R" Us' operating subsidiaries
and Toys "R" Us would become a direct wholly-owned subsidiary of Toys HQ.
The respective Boards of Directors of Toys "R" Us, Toys HQ and TRU
Interim have approved the Merger upon the terms and subject to the conditions
set forth herein.
Accordingly, in consideration of the mutual promises and
agreements set forth herein, and in order to set forth the terms and
conditions of the Merger and the mode of carrying the same into effect, the
parties hereby agree as follows:
1. The Merger.
1.1 The Merger. At the Effective Time (as defined in Section
1.3 hereof), and subject to the terms and conditions of this Agreement and the
DGCL, TRU Interim shall be merged with and into Toys "R" Us in the Merger, the
separate corporate existence of TRU Interim shall thereupon cease, and Toys
"R" Us shall be the surviving corporation in the Merger (the "Surviving
Corporation").
1.2 Surviving Corporation. At the Effective Time, Toys "R" Us
shall continue its corporate existence under the laws of the State of Delaware
and shall thereupon and thereafter possess all rights, privileges, powers and
franchises and all property of TRU Interim and shall be subject to all debts,
liabilities and duties of TRU Interim, all as provided under the DGCL.
1.3 Effective Time of the Merger. The Merger shall become
effective and be consummated at 5:00 p.m., local time, on January 1, 1996 (the
"Effective Time"), provided that the Surviving Corporation shall have caused
to be filed prior to the Effective Time a certified copy of this Agreement
with the Secretary of State of the State of Delaware (the "Delaware Secretary
of State") in accordance with the DGCL, as set forth in Section 3.4 hereof.
1.4 Certificate of Incorporation of the Surviving Corporation.
At the Effective Time, the Certificate of Incorporation of Toys "R" Us, as
amended and in effect immediately prior to the Effective Time, shall be
amended as set forth below and as so amended shall thereafter continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until further amended as provided therein and under the DGCL.
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(a) Article FIRST shall be amended to read in its entirety as
follows:
"FIRST. The name of the Corporation is TOYS "R" US-DELAWARE,
INC."
(b) Article FOURTH shall be amended to read in its entirety as
follows:
"FOURTH. The aggregate number of shares which the Corporation
shall have the authority to issue is One Thousand (1,000) shares of Common
Stock, par value $.10 per share."
(c) Article TENTH shall be added and will read as follows:
"TENTH. Any act or transaction by or involving the Corporation
that requires for its adoption under the Delaware General Corporation Law or
under this Certificate of Incorporation the approval of the Corporation's
stockholders shall, pursuant to Section 251(g) of the Delaware General
Corporation Law, require, in addition, the approval of the stockholders of the
Corporation's holding company, Toys "R" Us, Inc., or any successor by merger,
by the same vote as is required by the Delaware General Corporation Law and/or
by the Certificate of Incorporation of the Corporation."
1.5 By-Laws of the Surviving Corporation. The By-Laws of Toys
"R" Us (as amended and restated effective January 31, 1994), as in effect
immediately prior to the Effective Time, shall be amended as set forth below
and so amended shall thereafter continue in full force and effect as the By-
Laws of the Surviving Corporation until thereafter amended or repealed as
provided therein and under the DGCL.
The first paragraph of Section 2.1 of Article II shall be amended
to read in its entirety as follows:
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"Section 2.1 Number, Term of Office and Notice of Nomination.
The business, property and affairs of the Corporation shall be managed and
controlled by a Board of three (3) directors; provided, however, that the
Board, by resolution adopted by vote of a majority of the then authorized
number of directors, may increase or decrease the number of directors. The
directors shall be elected at the annual meeting of stockholders, and serve
(subject to the provisions of Article IV) until the next succeeding annual
meeting of stockholders and until the election and qualification of their
respective successors."
1.6 Directors and Officers of the Surviving Corporation. At the
Effective Time, the directors and officers of the Surviving Corporation shall
be those persons listed on Exhibit A attached hereto, in the case of
directors, until their successors are elected and qualified and, in the case
of officers, to serve at the pleasure of the Board of Directors of the
Surviving Corporation.
2. Conversion of Securities and Assumption of Certain
Obligations.
2.1 Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Toys "R" Us, Toys HQ, TRU
Interim or the holders of any securities of the foregoing corporations:
2.1.1 Common Stock of TRU Interim. Each share of common
stock, par value $.01 per share, of TRU Interim issued and outstanding
immediately prior to the Effective Time, including each share that is owned by
Toys "R" Us or its subsidiaries, shall be converted into one share of common
stock, par value $.10 per share, of the Surviving Corporation.
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2.1.2 Common Stock of Toys "R" Us. Each share of common
stock, par value $.10 per share, of Toys "R" Us ("Toys 'R' Us Common Stock")
issued and outstanding or held in its treasury immediately prior to the
Effective Time shall be converted into one share of common stock, par value
$.10 per share, of Toys HQ ("Toys HQ Common Stock"), and shall have the same
designations, rights and powers and preferences, and the qualifications,
limitations and restrictions thereof, as the Toys "R" Us Common Stock being
converted. Each certificate representing shares of Toys "R" Us Common Stock
immediately prior to the Effective Time shall be deemed without the need for
any exchange or transfer to represent the same number of shares of Toys HQ
Common Stock.
2.1.3 Common Stock of Toys HQ. Each share of Toys HQ
Common Stock issued and outstanding immediately prior to the Effective Time
shall continue to be held by the Surviving Corporation.
2.1.4 Toys "R" Us Stock Options and Other Awards. Toys HQ
shall assume and continue all the rights and obligations of Toys "R" Us under
the 1994 Stock Option and Performance Incentive Plan, the 1995 Employee Stock
Option Plan and all other stock option and employee benefit plans and
agreements of Toys "R" Us (collectively, the "Plans"). The outstanding
options and other awards assumed by Toys HQ shall be exercisable upon the same
terms and conditions as under the Plans immediately prior to the Effective
Time, except that, upon the exercise of each such option or award, shares of
Toys HQ Common Stock shall be issuable in lieu of each share of Toys "R" Us
Common Stock issuable upon the exercise thereof immediately prior to the
Effective Time.
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2.1.5 It is the intent of the parties hereto that Toys HQ,
as of the Effective Time, be deemed a "successor issuer" for purposes of
continuing offerings under the Securities Act of 1933, as amended.
2.2 Retention of Certificates. Each outstanding certificate
that prior to the Effective Time represented shares of Toys "R" Us Common
Stock shall be deemed, for all corporate purposes, to evidence ownership of
the number of shares of Toys HQ Common Stock into which such shares of Toys
"R" Us Common Stock have been converted pursuant to Section 2.1.2 hereof.
2.3 Toys "R" Us Stock Transfer Books. At the Effective Time,
the stock transfer books for the shares of Toys "R" Us Common Stock which will
be converted to Toys HQ Common Stock pursuant to Section 2.1 hereof shall be
deemed closed, and no transfer of such shares shall thereafter be made or
consummated.
2.4 Other Agreements. At the Effective Time, Toys HQ shall
assume any obligation of Toys "R" Us to deliver or make available shares of
Toys "R" Us Common Stock under any agreement or employee benefit plan not
referred to in this Section 2 to which Toys "R" Us or any of its subsidiaries
is a party. Any reference to Toys "R" Us Common Stock under any such
agreement or employee benefit plan shall be deemed to be a reference to Toys
HQ Common Stock and one share of Toys HQ Common Stock shall be issuable in
lieu of each share of Toys "R" Us Common Stock required to be issued by any
such agreement or employee benefit plan, subject to subsequent adjustment as
provided in any such agreement or employee benefit plan.
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2.5 Assumption and Guaranty of Toys "R" Us Debt and Other
Obligations.
2.5.1 Toys "R" Us Public Debt. At the Effective Time,
Toys HQ shall be deemed to have assumed the obligations of Toys "R" Us in
respect of the following outstanding publicly-held debt: Toys "R" Us' 8 1/4%
Debentures due 2017 and Toys "R" Us' 8 3/4% Debentures due 2021.
2.5.2 Revolving Credit Facility. Certain of the
subsidiaries of Toys "R" Us are borrowers under a Credit Agreement, dated as
of January 27, 1995, by and among Toys "R" Us, the Subsidiary Borrowers party
thereto, the Lenders party thereto, and The Bank of New York, as
Administrative Agent (the "Credit Agreement"). Toys "R" Us has guaranteed all
of the obligations under the Credit Agreement. At the Effective Time, Toys
"R" Us assigns the rights and Toys HQ assumes the obligations of Toys "R" Us
under the Credit Agreement.
2.5.3 Other Debt. At the Effective Time, Toys HQ assumes,
to the extent Toys "R" Us is liable therefor, or guarantees, to the extent
that Toys "R" Us is a guarantor thereof, all other indebtedness for money
borrowed, including, without limitation, the obligations under its stepped
coupon bonds pursuant to the Trust Deed, dated April 2, 1992, between Toys "R"
Us Holdings PLC, Toys "R" Us and Bankers Trust Company Limited, several
industrial revenue bonds and a loan to a Japanese subsidiary of Toys "R" Us
pursuant to the Guarantee, dated July 8, 1992, executed by Toys "R" Us in
favor of American Family Life Assurance Company of Columbus.
2.5.4 Additional Covenants. Toys "R" Us and Toys HQ will
execute and deliver such supplemental indentures and trust deeds and other
documents or certificates
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as the officers of Toys "R" Us and Toys HQ deem appropriate or necessary to
comply with the terms of the indebtedness or other obligations assumed or
guaranteed under this Section 2.5.
3. Compliance with Section 251(g) of the DGCL. Prior to the
Effective Time, the parties hereto will take all steps necessary to comply
with Section 251(g) of the DGCL, including without limitation, the following:
3.1 Certificate of Incorporation and By-Laws of Toys HQ. At the
Effective Time, the Certificate of Incorporation and By-Laws of Toys HQ shall
be in the form of the Certificate of Incorporation and By-Laws of Toys "R" Us,
as in effect immediately prior to the Effective Time.
3.2 Directors and Officers of Toys HQ. At the Effective Time,
the directors and officers of Toys "R" Us immediately prior to the Effective
Time shall be the directors and officers of Toys HQ, in the case of directors,
until their successors are elected and qualified and, in the case of officers,
to serve at the pleasure of the Board of Directors of Toys HQ.
3.3 Listing of Toys HQ Common Stock. The Toys HQ Common Stock
to be issued and initially reserved for issuance pursuant to the transactions
contemplated herein shall have been approved for listing, upon official notice
of issuance, by the New York Stock Exchange.
3.4 Filings. Prior to the Effective Time, the Surviving
Corporation shall cause a certified copy of this Agreement to be executed and
filed with the Delaware Secretary of State. Prior to the Effective Time, to
the extent necessary to effectuate the
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amendments to the certificates of incorporation of the Surviving Corporation
and Toys HQ contemplated by this Agreement, each of the Surviving Corporation
and Toys HQ shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
4. Miscellaneous.
4.1 Amendment. At any time prior to the Effective Time, the
parties hereto may, to the extent permitted by the DGCL, by written agreement
amend, modify or supplement any provision of this Agreement.
4.2 Termination. This Agreement may be terminated and the
Merger abandoned by the Board of Directors or duly authorized committees
thereof of Toys "R" Us at any time prior to the filing of the certified copy
of this Agreement with the Delaware Secretary of State.
4.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State.
4.4 Headings. The headings set forth herein are for
convenience only and shall not be used in interpreting the text of the section
in which they appear.
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4.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
IN WITNESS WHEREOF, Toys "R" Us, Toys HQ and TRU Interim, pursuant
to the approval and authority duly given by resolutions adopted by their
respective Boards of Directors, have caused this Agreement to be executed as
of the date first above written by their respective officers thereunto duly
authorized.
TOYS "R" US, INC.
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Senior Vice President - Finance
and Chief Financial Officer
TOYS "R" US-HEADQUARTERS, INC.
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Senior Vice President - Finance
and Chief Financial Officer
TRU INTERIM, INC.
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
President
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Exhibit A
Directors and Officers of Toys "R" Us-Delaware, Inc. (f/k/a Toys "R" Us, Inc.)
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Xxxxxxx Xxxxxxxxx Director; Vice Chairman of the Board and
Chief Executive Officer
Xxxxxx X. Xxxxxxxx Director; President and Chief Operating
Officer
Xxxxx Xxxxxxxxx Director; Senior Vice President - Finance
and Chief Financial Officer; Assistant
Secretary
Xxxxxxx X. Xxxxxx Senior Vice President - Real Estate
Xxxxxxx X. Xxxxx Senior Vice President - Human Resources
Xxxxx X. Xxxxxxx Vice President - Real Estate
Xxx X. Xxxxxxx Vice President - Treasurer
Xxxxxx X. Xxxxxxxx Vice President - Controller
Xxxx X. Xxxxxxxxx Vice President - Architecture and
Construction
Xxxxxxx X. Xxxxxx Vice President - Counsel; Assistant
Secretary
Xxxxx X. Xxxxx Vice President - Taxes; Assistant
Secretary
Xxxxx Xxxxx Secretary
Xxxxxx Xxxxxxx Assistant Secretary
