EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
DATED APRIL 3, 2000
between
BUILD-A-BEAR WORKSHOP, L.L.C.
and
BUILD-A-BEAR WORKSHOP, INC.
TABLE OF CONTENTS
ARTICLE I - THE MERGER............................................................................................1
SECTION 1.01. THE MERGER......................................................................................1
SECTION 1.02. EFFECTIVE TIME..................................................................................1
SECTION 1.03. CERTAIN EFFECTS OF THE MERGER...................................................................1
SECTION 1.04. CERTIFICATE OF INCORPORATION AND BY-LAWS........................................................2
SECTION 1.05. DIRECTORS AND OFFICERS OF THE SURVIVING ENTITY..................................................2
ARTICLE II - EFFECT OF MERGER ON CAPITAL STOCK OF THE CONSTITUENT ENTITIES........................................2
SECTION 2.01. CONVERSION OF MEMBER INTERESTS OF THE LLC.......................................................2
ARTICLE III - MISCELLANEOUS.......................................................................................3
SECTION 3.01. AMENDMENT.......................................................................................3
SECTION 3.02. VALIDITY...........................................................................................3
SECTION 3.03. NOTICES.........................................................................................3
SECTION 3.04. GOVERNING LAW...................................................................................3
SECTION 3.05. DESCRIPTIVE HEADINGS............................................................................3
SECTION 3.06. COUNTERPARTS....................................................................................3
SECTION 3.07. PARTIES IN INTEREST.............................................................................3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated April 3, 2000,
between BUILD-A-BEAR WORKSHOP, L.L.C., a Missouri limited liability company
("LLC"), and BUILD-A-BEAR WORKSHOP, INC., a Delaware corporation
("Corporation").
WHEREAS, the LLC intends to convert to the form of a corporation for
purposes of conducting its business;
WHEREAS, the Members and the Manager of the LLC and the Board of
Directors of the Corporation deem it advisable and in the best interests of the
LLC and the Corporation respectively that the LLC merge with and into the
Corporation (the "Merger"), in accordance with the General Corporation Law of
the State of Delaware ("DGCL") and the Limited Liability Company Act of the
State of Missouri (the "LLC Act"), upon the terms and subject to the conditions
of this Agreement, and have approved and adopted this Agreement; and
WHEREAS, for accounting purposes this Merger shall be effective as of
April 2, 2000 at 12:01 a.m.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER. Upon the terms and conditions hereof, and in
accordance with the DGCL and the LLC Act, the LLC shall be merged with and into
the Corporation and the Corporation shall be the surviving entity in the Merger
(in this capacity, the "Surviving Entity").
SECTION 1.02. EFFECTIVE TIME. As soon as practicable after approval of
the Merger, a Certificate of Merger with respect to the Merger shall be filed
with (i) the Secretary of State of Delaware in accordance with the provisions of
Sections 251(c) and 264(c) of the DGCL and (ii) the Secretary of the State of
Missouri in accordance with Sections 347.715 of the LLC Act. The Merger shall be
effective at such time as the Certificate of Merger is duly filed with the
Secretary of State of the State of Delaware in accordance with Section 103 of
the DGCL and the Secretary of State of the State of Missouri in accordance with
Section 347.725 of the LLC Act or at such later time as is specified in the
Certificate of Merger (the "Effective Time").
SECTION 1.03. CERTAIN EFFECTS OF THE MERGER. After the Effective Time
of the Merger (i) the separate existence of the LLC shall cease and the LLC
shall be merged with and into the Corporation and (ii) the Merger shall have all
the effects set forth in Sections 259, 260 and 261 of the DGCL and Section
347.730 of the LLC Act.
SECTION 1.04. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Certificate of
Incorporation and By-Laws of the Corporation as in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation and By-Laws of the
Surviving Entity until further amended or supplemented in accordance with their
respective terms and the provisions of the DGCL.
SECTION 1.05. DIRECTORS AND OFFICERS OF THE SURVIVING ENTITY. The
directors and officers of the Corporation immediately prior to the Effective
Time shall be the directors and officers of the Surviving Entity, until their
respective successors shall have been duly elected and qualified or until their
earlier death, resignation or removal.
ARTICLE II
EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
SECTION 2.01. CONVERSION OF MEMBER INTERESTS OF THE LLC. At the Effective
Time, all of the Class A, Class B and Class C Member Interests of the LLC which
shall be outstanding immediately prior to the Effective Time, shall, by virtue
of the Merger and without any action on the part of the holder thereof be
converted as follows:
(a) Each one-ten thousandth (1/10,000th) of one percent of
Class A Member Interest in the LLC, assuming all Member Interests are
fully converted to Class A Member Interests, outstanding immediately
prior to the Effective Time shall be converted into and become ten
shares of $0.01 par value Class C Preferred Stock of the Surviving
Entity as set forth on Exhibit A.
(b) Each one-ten thousandth (1/10,000th) of one percent of the
Class A Member Interest into which the Class B Member Interests of the
LLC are convertible, assuming all Member Interests are fully converted
to Class A Member Interests, outstanding immediately prior to the
Effective Time shall be converted into and become ten shares of $0.01
par value of the Class A Preferred Stock of the Surviving Entity, and
further subdivided into the respective Series of Class A Preferred
Stock as set forth on Exhibit A.
(c) Each one-ten thousandth (1/10,000th) of one percent of the
Class A Member Interest into which the Class C Member Interest in the
LLC are convertible, assuming all Member Interests are fully converted
to Class A Member Interests, outstanding immediately prior to the
Effective Time shall be converted into and become
ten shares of $0.01 par value of the Class B Preferred Stock of the
Surviving Entity, and further subdivided into the respective Series of
Class B Preferred Stock as set forth on Exhibit A.
(d) The accrued but unpaid distributions with respect to the
Class B Member Interests immediately prior to the Effective Time shall
be converted into and become the number of shares of $0.01 par value
Common Stock of the Surviving Entity and shall be issued to the persons
as set forth on Exhibit A.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of both parties.
SECTION 3.02. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, all of which shall remain in full force
and effect.
SECTION 3.03. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given to the respective parties when delivered in person, by cable,
telegram, telex or telecopy, or when received by registered or certified mail
(postage prepaid, return receipt requested), at their respective principal
executive offices or at such other address as the person to whom notice is given
may have previously furnished to the other in writing in the manner set forth
above (provided that notice of any change of address shall be effective only
upon receipt thereof).
SECTION 3.04. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Missouri, without
regard to its conflict of laws principles.
SECTION 3.05. DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 3.06. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 3.07. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure to the benefit of each party hereto and their respective successors,
and nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
day and year first above written.
BUILD-A-BEAR WORKSHOP, L.L.C.
By: /s/ Maxine Clark
-------------------------------
Maxine Clark
Title: Manager
BUILD-A-BEAR WORKSHOP, INC.
By: /s/ Maxine Clark
-------------------------------
Name: Maxine Clark
Title: President
Attest:
/s/ Brian Vent
- ----------------------------
Name:
Title: Secretary
EXHIBIT A
Preferred Stock
--------------------------
Common Stock
Name (shares) Series Shares (#)
---- -------- ------ -----------
SSI C-1 3,418,306
- -------------- ------------ ------ -----------
Windsor 84,791 C-2 911,383
A-1 1,137,898
- -------------- ------------ ------ -----------
C. Ebsworth C-2 474,124
- -------------- ------------ ------ -----------
Vent C-3 64,500
- -------------- ------------ ------ -----------
Smith C-3 64,500
- -------------- ------------ ------ -----------
Weiss C-3 65,276
- -------------- ------------ ------ -----------
Hycel 23,572 A-2 139,981
B-1 275,352
- -------------- ------------ ------ -----------
Walnut 98,804 A-3 961,263
B-2 1,453,072
- -------------- ------------ ------ -----------
KCEP 10,352 A-4 205,824
B-3 311,003
- -------------- ------------ ------ -----------
Total: 217,520 9,482,480
- -------------- ------------ ------ -----------
CERTIFICATE OF MANAGER
OF
BUILD-A-BEAR WORKSHOP, L.L.C.
I, Maxine Clark, Manager of the Build-a-Bear Workshop, L.L.C., a
Missouri limited liability company ("the LLC"), hereby certify that the
Agreement and Plan of Merger to which this certificate is attached, after having
been first duly signed on behalf of the LLC by its Manager, was duly submitted
to the Members of the LLC and was approved by the written consent of the Members
of the LLC on April 3, 2000.
WITNESS my hand this 3rd day of April, 2000.
/s/ Maxine Clark
-------------------------------
Manager
CERTIFICATE OF SECRETARY
OF
BUILD-A-BEAR WORKSHOP, INC.
I, Brian Vent, the Secretary of Build-A-Bear Workshop, Inc., a
Delaware corporation (the "Corporation"), hereby certify that the Agreement and
Plan of Merger to which this certificate is attached, after having been first
duly signed on behalf of the Corporation by its President and attested by its
Secretary under the corporate seal of the Corporation.
WITNESS my hand this 3rd day of April, 2000.
/s/ Brian Vent
------------------------------
Secretary
The foregoing Agreement and Plan of Merger having been executed on
behalf of each of the parties thereto and having been adopted by the members of
each of Build-A-Bear Workshop, L.L.C., a limited liability company organized and
existing under the laws of the State of Missouri, and the stockholders of
Build-A-Bear Workshop, Inc., a corporation organized and existing under the laws
of the State of Delaware, in accordance with the provisions of the General
Corporation Law of the State of Delaware and that fact having been certified on
said Agreement and Plan of Merger by the Manager of the LLC and the Secretary of
the Corporation, the President of said corporation does hereby execute said
Agreement and Plan of Merger and the Secretary of the Corporation does hereby
attest said Agreement and Plan of Merger, by authority of the directors and
members thereof and as the respective act, deed and agreement of each of said
corporation and limited liability company on the 3rd day of April, 2000.
BUILD-A-BEAR WORKSHOP, L.L.C.
By: /s/ Maxine Clark
-----------------------------
Maxine Clark
Title: Manager
BUILD-A-BEAR WORKSHOP, INC.
By: /s/ Maxine Clark
----------------------------
Name: Maxine Clark
Title: President
Attest:
/s/ Brian Vent
- -----------------------------
Name:
Title: Secretary