EXHIBIT 2.2
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
