FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
made as of September 12, 2007 by and among BabyUniverse, Inc., a Florida
corporation ("Parent"), Baby Acquisition Sub, Inc., a Delaware corporation and a
direct wholly owned Subsidiary of Parent ("Merger Sub"), and eToys Direct, Inc.,
a Delaware corporation (the "Company"). All capitalized terms used in this
Amendment which are not herein defined shall have the same meanings ascribed to
them in the Agreement (as defined infra).
WHEREAS, the undersigned are parties to that certain Agreement and Plan of
Merger, dated as of March 13, 2007 (the "Agreement"), pursuant to which, inter
alia, each outstanding share of Company Common Stock issued and outstanding
immediately prior to the Effective Time, other than shares owned or held
directly or indirectly by Parent, Merger Sub, the Company or any direct or
indirect wholly owned Subsidiary of Parent or the Company, and other than
Dissenting Shares, will, upon the terms and subject to the conditions set forth
in the Agreement, be converted into the right to receive shares of Parent Common
Stock; and
WHEREAS, the terms of this Amendment have been approved or authorized by
the respective Boards of Directors of each of Parent, Merger Sub and the
Company.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Extension of Termination Date. Section 9.1(b) of the Agreement shall be
amended, effective as of the date hereof, by being replaced in its entirety with
the following:
"(b) By either the Company or Parent if the Effective Time shall not have
occurred on or before October 19, 2007 (the "Termination Date"); provided,
however, that the right to terminate this Agreement under this Section 9.1(b)
shall not be available to any party whose breach of any representation or
warranty or failure to fulfill any obligation under this Agreement has been the
primary cause of the failure of the Effective Time to occur on or before the
Termination Date and such breach, action or failure to perform constitutes a
breach of this Agreement;".
2. Headings; Counterparts. Section headings used herein are for convenience
of reference only, are not part of this Amendment and shall not affect the
construction of or be taken into consideration in interpreting this Amendment.
This Amendment may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument, and may
be delivered by facsimile.
3. Governing Law; Jurisdiction. This Amendment shall be construed,
performed and enforced in accordance with, and governed by, the laws of the
State of Delaware. The parties hereto irrevocably elect as the sole judicial
forum for the adjudication of any matters arising under or in connection with
this Amendment, and consent to the jurisdiction of, the courts of the State of
Delaware.
4. Continued Effectiveness. It is the express intention of the parties
hereto to ratify and reaffirm the terms and conditions of the Agreement, as
amended pursuant to the terms of this Amendment. Except as expressly amended
hereby, the Agreement shall remain unmodified and in
full force and effect. In the event of any inconsistency between the provisions
of the Agreement and the provisions of this Amendment, the provisions of this
Amendment shall prevail.
(signature page follows)
2
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Agreement and Plan of Merger to be executed by their duly authorized
representatives as of the day and year first above written.
BabyUniverse, Inc.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
Baby Acquisition Sub, Inc.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: President
eToys Direct, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
The undersigned joins as a party to the foregoing First Amendment to
Agreement and Plan of Merger for the limited purposes provided in Article X of
the Agreement.
D. E. SHAW COMPOSITE SIDE POCKET SERIES
1, L.L.C., as initial Shareholder
Representative of the Former Company
Stockholders
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
3
Each of the undersigned joins as a party to the foregoing First Amendment
to Agreement and Plan of Merger for the limited purposes provided in the first
two sentences of Section 7.11 of the Agreement.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
D. E. SHAW COMPOSITE SIDE POCKET
SERIES 1, L.L.C.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
