EXHIBIT 4.5
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement"), dated as of 21st day of September, 2001, among BUILD-A-BEAR
WORKSHOP, INC., a Delaware corporation (the "Company"), SMART STUFF, INC., a
Missouri corporation ("SSI"), MAXINE CLARK ("Clark"), CHRISTIANE EBSWORTH,
BARNEY A. EBSWORTH REVOCABLE TRUST DATED JULY 23, 1986 ("Trust"), WAYNE L.
SMITH, II ("Smith"), BRIAN VENT ("Vent"), THOMAS HOLLEY ("Holley"), HYCEL
PARTNERS V, L.L.C., a Missouri limited liability company ("Hycel"), WALNUT
CAPITAL PARTNERS, L.P., a Delaware limited partnership ("WCP"), WALNUT
INVESTMENT PARTNERS, L.P., a Delaware limited partnership ("WIP"), KCEP VENTURES
II, L.P., a Missouri limited partnership ("KCEP"), ADRIENNE WEISS ("Weiss"),
CATTERTON PARTNERS IV, L.P., CATTERTON PARTNERS IV-A, L.P. and CATTERTON
PARTNERS IV-B, L.P., each a Delaware limited partnership, CATTERTON PARTNERS IV
OFFSHORE, L.P., a Cayman Island limited partnership and CATTERTON PARTNERS IV
SPECIAL PURPOSE, L.P., a Cayman Island limited partnership (collectively,
"Catterton"), CLARK/FOX, L.L.C., a Missouri limited liability company
("Clark/Fox"), and CLARK/FOX II, L.L.C., a Missouri limited liability company
("Clark/Fox II") (SSI, Clark, Christiane Ebsworth, Trust, Smith, Vent, Holley,
Hycel, WCP, WIP, KCEP, Weiss, Catterton, Clark/Fox and Clark/Fox II
collectively, "Holders").
1. Background. Certain of the parties originally entered into that
certain Registration Rights Agreement dated April 3, 2000 (the "Original
Agreement"). Due to an additional issuance of preferred stock, the parties now
desire to amend and restate the Original Agreement and the Original Agreement
shall be deemed superseded in its entirety upon execution of this Agreement by
the requisite number of Holders required to amend the Original Agreement. It is
contemplated that the Company may effect an initial public offering of
securities (the "Initial Public Offering") and the parties to this Agreement
desire to define the respective rights and obligations of the Holders and the
Company with respect to the registration, upon and after the Initial Public
Offering, of Registrable Securities of the Company held by the Holders.
2. Registration under Securities Act, etc.
2.1 Registration of Registrable Securities on Demand.
(a) Priority Demand. At any time subsequent to the date
that is eighteen (18) months after the date of this Agreement, but subject to
Section 2.3, a Series D Holder or Series D Holders of at least a majority of the
originally issued Series D Registrable Securities in the Company shall have the
right to demand in writing that the Company use its reasonable best efforts to
effect an underwritten registration under the Securities Act of 1933, as amended
(the "Securities Act"), of at least two-thirds (2/3) of the shares of common
stock issuable upon conversion of Series D Registrable Securities originally
issued to such Series D Holders; provided, however, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of common stock of the Company; provided further, that
if the requested registration is the Company's Initial Public Offering, the
reasonably anticipated aggregate price to the public would equal at least $25
million (otherwise, such aggregate price to the public shall be $2,000,000); and
provided, further, notwithstanding anything to the contrary contained herein,
that if, at any time after giving written notice of their intention to register
such securities and prior to filing the registration statement in connection
with such registration, the Company may elect to delay the filing of such
registration, in the reasonable judgment of the Board of Directors, for a period
of up to ninety (90) days upon giving written notice of such determination to
each Series D Holder. In no event shall the Company be obligated to effect more
than one (1) registration under this Section 2.1(a).
(b) Demand. At any time subsequent to the date that is
six (6) months after the date the Company's Initial Public Offering is
consummated, but subject to Section 2.3, a Holder or Holders that own
Registrable Securities equal to or greater than ten percent (10%) of the
outstanding Registrable Securities in the Company shall have the right to demand
in writing that the Company effect an underwritten registration under the
Securities Act, of all or part of such Holders' Registrable Securities;
provided, however, that the only securities which the Company shall be required
to register pursuant hereto shall be shares of common stock of the Company;
provided further, that the reasonably anticipated aggregate price to the public
would equal at least $2 million. In no event shall the Company be obligated to
effect more than two (2) registrations under this Section 2.1(b), other than
registrations on Form S-3 (as defined herein).
(c) Effecting the Registration. The Company will
promptly give written notice of any registration requested under Sections 2.1(a)
and 2.1(b) to all other Series D Holders in the case of registration requests
under Section 2.1(a) or all other Holders in all other cases, which Holders
shall be entitled to include, with respect to Section 2.1(a) their Series D
Registrable Securities and with respect to Section 2.1(b) their Registrable
Securities, in such registration subject to Sections 2.1(d) and 2.1(i).
Thereupon the Company will use its best efforts to effect the registration under
the Securities Act of:
(i) the Series D Registrable Securities or the
Registrable Securities which the Company has been so
requested to register by the Holders making the registration
demand under Sections 2.1(a) or 2.1(b), as applicable; and
(ii) subject to Sections 2.1(d) and 2.1(i), all
other Series D Registrable Securities or Registrable
Securities, as applicable, which the Company has been
requested to register by the Holders thereof by written
request given to the Company within twenty (20) days after
the giving of such written notice by the Company (which
request shall specify the intended method of disposition of
such Series D Registrable Securities or Registrable
Securities, as applicable) all to the extent requisite to
permit the disposition of the Series D Registrable Securities
or the Registrable Securities, as applicable, so to be
registered.
The Company shall be entitled to include in any registration statement referred
to in this Section 2.1, for sale in accordance with the method of disposition
specified by the requesting Holders, shares of common stock of the Company to be
sold by the Company for its own
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account, except as and to the extent that, in the opinion of the managing
underwriter, such inclusion would adversely affect the marketing or pricing of
the Registrable Securities to be sold.
(d) Registration of Other Securities. Whenever the
Company shall effect a registration pursuant to this Section 2.1, Series D
Registrable Securities held by Series D Holders other than the Holder or Holders
that make the registration demand under Section 2.1(a) and Registrable
Securities held by Holders other than the Holder or Holders that make the
registration demand under Section 2.1(b), shall, upon the request of such
Holders, be included in the registration unless the managing underwriter of such
offering shall have advised each Series D Holder of Series D Registrable
Securities and each Holder of Registrable Securities, as applicable, to be
covered by such registration in writing that the inclusion of such other Series
D Registrable Securities or Registrable Securities, as applicable, would, in the
opinion of the underwriter, materially adversely affect the marketing or the
selling price of the Series D Registrable Securities or Registrable Securities,
as applicable, to be covered by such registration. In such event, the Series D
Registrable Securities or Registrable Securities, as applicable, to be included
in the registration shall be allocated pro rata among the Holders demanding or
requesting registration, all as set forth in Section 2.1(i). The Company will
not grant to any person at any time on or after the date hereof the right to be
included among the securities registered pursuant to this Section 2.1 that is
inconsistent with the provisions of this Section 2.1(d).
(e) Registration Statement Form. Registrations under
this Section 2.1 shall be on such appropriate registration form or prospectus of
the Commission (i) as shall be reasonably selected by the Company provided,
however, that the Company shall be entitled to use Form S-3 promulgated under
the Securities Act or any successor form thereto ("Form S-3") if eligible to do
so, and (ii) as shall permit the disposition of such Series D Registrable
Securities or Registrable Securities, as applicable, in accordance with the
intended method or methods of disposition specified in their demand for such
registration.
(f) Expenses. The Company will pay all Registration
Expenses for all Holders participating in a registration in connection with the
registration demands made pursuant to this Section 2.1 other than with respect
to registrations on Form S-3, in which case the Holders shall pay their own
expenses.
(g) Effective Registration Statement. A registration
demanded pursuant to this Section 2.1 shall not be deemed to have been effected
and shall not count as a demand registration pursuant to Section 2.1(a) or
Section 2.1(b), as applicable, hereof (i) unless a registration statement with
respect thereto has become effective, (ii) if a registration statement has been
filed with the Commission and prior to its becoming effective a majority of,
with respect to Section 2.1(a) the Series D Holders of the Series D Registrable
Securities or with respect to Section 2.1(b) the Holders of the Registrable
Securities, as applicable, that have demanded registration has decided to
terminate the registration process and has agreed in writing to reimburse the
Company for all reasonable Registration Expenses, (iii) if after it has become
effective, such registration is subject to any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court or
is withdrawn, suspended or
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terminated by the Company, for any reason not the fault of a Holder of Series D
Registrable Securities or Registrable Securities, as applicable, and the Series
D Registrable Securities or Registrable Securities, as applicable, covered
thereby have not been sold, or (iv) if the conditions to closing specified in
the selling agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived by the parties thereto other than
a Holder of Series D Registrable Securities or Registrable Securities, as
applicable.
(h) Underwriters. Any registration effected pursuant to
Section 2.1(a) shall, at the election of the Company or the Holders requesting
such registration, be an underwritten public offering on a firm commitment basis
and, in such case, the Holders requesting such registration shall have the right
to select a nationally recognized managing underwriter or underwriters, subject
to the approval of the Company, which approval shall not be unreasonably
withheld. Any registration effected pursuant to Section 2.1(b) shall, at the
election of the Holders of at least fifty percent (50%) (by number of shares or
other equity interests) of the Registrable Securities held by the Holders making
the registration demand under Section 2.1(b), be an underwritten public offering
on a firm commitment basis or a best efforts basis. The managing underwriter or
underwriters thereof shall be selected by the Company and such managing
underwriting or underwriters, as well as the price, terms and provisions of the
offering, shall be subject to the approval of the Company and the Holders of
more than fifty percent (50%) (by number of shares) of the Registrable
Securities held by the Holders making the registration demand under Section
2.1(b).
(i) Apportionment in Registrations Requested. If, in
connection with a registration demanded pursuant to this Section 2.1, the
managing underwriter shall advise the Company in writing that, in its opinion,
the number of securities requested to be included in such registration would be
likely to have an adverse effect on marketing the offering, the Company will
include in such registration prior to including any other shares in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering, Series D Registrable Securities or Registrable
Securities, as applicable, requested to be included in such registration pro
rata among the Holders thereof requesting such registration on the basis of the
percentage of the Series D Registrable Securities or Registrable Securities, as
applicable, sought to be registered held by such Holders of Series D Registrable
Securities or Registrable Securities, as applicable, which have requested that
such Series D Registrable Securities or Registrable Securities, as applicable,
be included.
2.2 "Piggyback" Registrations.
(a) Right to Include Registrable Securities. If the
Company at any time subsequent to its Initial Public Offering proposes to
register any of its common stock under the Securities Act (other than by a
registration on Form S-4 or Form S-8 or any other form not available for
registering restricted stock for sale to the public), whether or not for sale
for its own account, it will each such time give prompt written notice to all
Holders of Registrable Securities of its intention to do so and of such Holders'
rights under this Section 2.2. Upon the written request of any such Holder made
within ten (10) days after the date of any such notice given in accordance with
Section 7 hereof, the Company will use its best efforts to effect the
registration
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under the Securities Act of all Registrable Securities which the Company has
been so requested to register by the Holders thereof, to the extent requisite to
permit the disposition of the Registrable Securities so to be registered,
provided, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to effect or to delay such registration, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration, without
prejudice, however to the rights of any Holder or Holders of Registrable
Securities entitled to do so to request that such registration be effected as a
demand registration under Section 2.1, and (ii) in the case of a determination
to delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities. No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect any demand registration under Section 2.1.
Each participating Holder will pay all Registration Expenses allocable or
otherwise applicable to such Holder in connection with each registration of
Registrable Securities requested pursuant to this Section 2.2.
(b) Apportionment in "Piggyback" Registrations. If (i) a
registration to this 2.2 involves an underwritten offering of the securities
being registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized national or regional standing under underwriting terms appropriate
for such a transaction, and (ii) the managing underwriters of such underwritten
offering shall inform the Company in writing that in its opinion, that the
number of securities requested to be included in such registration would be
likely to have an adverse effect on marketing the offering, then the Company may
include all securities proposed by the Company to be sold for its own account or
the maximum amount that the underwriters considers saleable and such limitation
on any remaining securities that may, in the opinion of the underwriter, be sold
will be imposed pro rata among Holders of Registrable Securities on the basis of
the percentage of the securities sought to be registered, provided, however,
that no holders of securities other than Holders of Registrable Securities shall
be entitled to include their securities in such registration if such limitation
is imposed on Holders of Registrable Securities.
(c) Notwithstanding anything to the contrary contained
in this Section 2.2, if, in the event of a firm commitment underwritten public
offering of the Company's common stock a Holder of Registrable Securities does
not elect, or is not allowed (at the discretion of the underwriters thereof), to
sell his Registrable Securities in connection with such offering, such Holder
shall refrain from selling such Registrable Securities during the period of
distribution of the common stock of the Company by such underwriters.
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2.3 Registration Procedures. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
and under the Securities Act as provided in Sections 2.1 and 2.2, the Company
will as expeditiously as possible:
(i) prepare and (as soon thereafter as possible or in any
event no later than forty-five (45) days after the end of the period
within which requests for a registration may be given to the Company)
file with the Commission a registration statement (which, in the case
of an underwritten public offering, shall be on Form S-1, Form S-3 or
other form of general applicability satisfactory to the managing
underwriter) to effect such registration and thereafter use its best
efforts to cause such registration statement to become effective,
provided that the Company may discontinue and/or delay any registration
of the securities which are not Registrable Securities (and, under the
circumstances specified in Section 2.2(a), its securities which are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have
been disposed of in accordance with the intended methods of disposition
by the Holder or Holders thereof set forth in such registration
statement or for one hundred eighty (180) days, whichever period is
shorter;
(iii) furnish to each Holder of Registrable Securities
covered by such registration statement such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto, such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule
424 or Rule 430A under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
Holder may reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of
such jurisdictions as each Holder thereof shall reasonably request, to
keep such registration or qualification in effect for so long as such
registrations statement remains in effect, and take any other action
which may be reasonably necessary to enable such Holder or Holders to
consummate the disposition in such jurisdictions of the securities
owned by such Holder or Holders, except that the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for
the requirements of this subdivision (iv) be obligated to be qualified
or to consent to general service of process in any such jurisdiction or
subject itself to be required to pay any franchise or income taxes in
any such jurisdiction;
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(v) use its best efforts to cause all Registrable Securities
covered by registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the Holder or Holders thereof to consummate the disposition of
such Registrable Securities;
(vi) use its best efforts to cause to be furnished to each
Holder of Registrable Securities as signed counterpart, addressed to
such Holder (and the underwriters, if any), of
(x) an opinion of counsel for the Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to counsel for all such
Holders or, if such registration includes an underwritten public
offering, to such underwriter, and
(y) a "comfort" letter, dated the effective date of
such registration statement (and, if such registration includes
an underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement, addressed to
each Holder, to the extent the same can be reasonably obtained,
and addressed to the underwriters, if any, covering substantially
the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in
accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other
financial matters as such Holder (or the underwriters, if any)
may reasonably request;
(vii) notify each Holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any
such Holder promptly prepare to furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to the purchasers
of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as
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reasonably practicable, an earnings statement covering the period of at
least twelve (12) months, but not more than eighteen (18) months,
beginning with the first full calendar month after the effective date
of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act, and in the case
of a registration requested pursuant to Section 2.1 hereof, will
furnish to each such Holder at least two (2) business days prior to the
filing thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to
which any such Holder shall have reasonably objected on the grounds
that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(ix) provide and caused to be maintained a transfer agent
and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such registration statement; and
(x) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on
which any of the Registrable Securities is then listed.
Notwithstanding the foregoing, the Company may defer its obligations
under Section 2.1(b) to file a registration statement, but not its obligations
to initiate the process of preparing the applicable registration statement, for
a period of no more than (i) ninety (90) days in any three hundred sixty-five
(365) day period, if the Company's Board of Directors (or comparable governing
body) determines in good faith that filing such a registration statement would
be materially detrimental to the Company, provided, that once any such
detrimental information has been publicly disclosed or the condition which
caused such filing to be potentially materially detrimental to the Company no
longer exists, the Company shall promptly proceed to fulfill its obligations
under Section 2.1 and (ii) one hundred eighty (180) days from the most recent
effective date of any registration statement of the Company filed under the
Securities Act pursuant to Section 2.1 and occurring prior to the demand for
registration made pursuant to Section 2.1.
The Company may require each proposed Holder of Registrable Securities
as to which any registration is being effected to promptly furnish the Company,
as a condition precedent to including such Holder's Registrable Securities in
any registration, such information regarding such Holder and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (vii) of this
Section 2.3, such Holder will forthwith discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than
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permanent file copies, then in such Holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
2.4 Underwritten Offerings.
(a) Underwritten Demand Offerings. If requested by the
underwriters for any offering by Holders of Registrable Securities pursuant to a
registration demanded under Section 2.1, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be satisfactory in substance and form to the Company, to Holders of more than
fifty percent (50%) (by number of shares or other equity interests) of the
Registrable Securities held by the Holders making the registration request under
Section 2.1(b) and the underwriters and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.6. The Holders of the Registrable
Securities will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable requests of
the Company regarding the form thereof, provided, that nothing herein contained
shall diminish the foregoing obligations of the Company. The Holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement.
(b) Incidental Underwritten Offerings. If the Company at
any time proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any Holder
of Registrable Securities as provided in Section 2.2 and subject to the
provisions of Sections 2.2(a) and 2.2(b), arrange for such underwriters to
include all the Registrable Securities to be offered and sold by such Holder
among the securities to be distributed by such underwriters. The Holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters.
2.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Holders of Registrable
Securities registered under such registration statement, the underwriters, if
any, and their respective counsel (such Holders' counsel to be appointed by the
Holders of more than fifty percent (50%) (by number of shares or other equity
interests) of Registrable Securities held by the Holders making the registration
request under Section 2.1(b)), reasonable opportunity to review and comment on
such registration statement, each prospectus included there or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
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2.6 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company agrees to indemnify and hold harmless the Holder of any Registrable
Securities covered by such registration statement, its directors and officers,
each other Person who participates as an underwriter in the offering or sale of
such securities and such other Person, if any, who controls such Holder or any
such underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Holder or any
such director or officer or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such Holder and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
said preliminary or final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, specifically for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder or any such director, officer,
underwriter or controlling person and shall survive the transfer of such
securities by such Holder.
(b) Indemnification by the Holders of Securities. The
Holders of Registrable Securities agrees to severally and not jointly, indemnify
and hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 2.6) the Company, each director of the Company,
each officer of the Company and each other Person, if any, who controls the
Company within the meaning of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which such indemnified Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Holder
or Holders of Registrable Securities for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect, regardless of any investigation made by or on behalf of the Company
or any
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such director, officer or controlling person and shall survive the transfer of
such securities by such Holder with respect to information furnished by such
Holder prior to such transfer. Provided however that in no event shall the
indemnification obligation of any Holder pursuant to this Section 2.6(b) exceed
the gross proceeds received by such Holder pursuant to the sale of the Holders
Registrable Securities.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the assertion of a claim referred to in the
preceding subdivisions of this Section 2.6, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the assertion, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 2.6, except to the extent that the indemnifying party is prejudiced by
such failure to give notice. In case any such claim is made against an
indemnified party, unless in the written opinion of counsel a conflict of
interest between such indemnified party and indemnifying parties may exist in
respect of such claim, the indemnifying party shall be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to
that specified in the preceding subdivisions of this Section 2.6 (with
appropriate modifications) shall be given by the Company and each Holder of
Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification Payments. The indemnification
required by this Section 2.6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
2.7 Adjustments Affecting Registrable Securities. The Company
will not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Holders of Registrable
Securities to include such Registrable Securities in any registration of its
securities contemplated by this Section 2 or the marketability of such
Registrable Securities under any such registration.
2.8 Exercise of Demand Rights. Notwithstanding anything to the
contrary contained herein, each Holder of Registrable Securities hereby agrees
not to exercise any demand
11
registration right pursuant to Section 2.1(a) or 2.1(b) hereof, (i) during the
seven (7) days prior to and during the ninety (90) days following the effective
date of any underwritten demand registration or any underwritten piggyback
registration pursuant to this Section 2 (other than the Initial Public Offering)
in which Registrable Securities are included, or (ii) during the seven (7) days
prior to and during the one hundred eighty (180) days following the effective
date of the registration statement relating to the Initial Public Offering.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Company Securities: All shares or other equity interests now or
hereafter authorized by the Company and stock or other equity
interests of any other class with which such shares or equity
interests may hereafter have been exchanged or reclassified.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Person: A corporation, an association, a partnership, a limited
liability company, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
Registrable Securities: Any Company Securities held by the Holders
from time to time.
As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration
statement, (b) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the
Securities Act, or (c) they shall have ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2, including, without
limitation, all registration, filing and National Association of
Securities Dealers, Inc. fees, all fees and expenses of complying
with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of counsel for the Company and
the Company's independent public accountants, including the
expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, the reasonable
fees and disbursements of a single counsel retained by the Holder
or Holders of more than fifty percent (50%) (by number of shares or
other equity interests) of the
12
Registrable Securities being registered, premiums and other costs
of policies of insurance obtained by the Company against
liabilities arising out of the public offering of the Registrable
Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or seller of securities,
including reasonable fees of underwriters counsel incurred in the
qualification of the Securities under blue sky laws, but excluding
all agency fees and commissions, underwriting discounts and
commissions and transfer taxes, if any.
Securities Act: As defined in Section 2.1(a).
Series D Holder: Any Holder of Series D Registrable Securities.
Series D Registrable Securities: Any Registrable Securities
classified as Series D Preferred Stock, par value $.01 per share.
4. Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company will
file the reports required to be filed by it, and in the manner required to be
filed by it, under the Securities Act and the Exchange Act (or, if the Company
is not required to file such reports, will, upon the request of any Holder of
Registrable Securities, make publicly available other information) and will take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission ("Rule 144"). Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
5. Amendment and Waivers. This Agreement may be amended, and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holder or
Holders of seventy-five percent (75%) or more (by number of shares or other
equity interests) of Registrable Securities. Each Holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any consent
authorized by this Section 5, whether or not such Registrable Securities shall
have been marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, upon the giving of written notice to the Company,
at its election, be treated as the holder of such Registrable Securities for
purposes of any demand, request or other action by any Holder or Holders of
Registrable Securities pursuant to this Agreement or any determination of any
number or percentage of shares of Registrable Securities held by any Holder or
Holders of Registrable
13
Securities contemplated by this Agreement. The Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
7. Notices. All notices provided for by this Agreement shall be made in
writing (i) either by actual delivery or (ii) by the mailing of the notice in
the United States mail to the last known address of the party entitled thereto,
registered or certified mail, return receipt requested, courier service or
personal delivery and shall be deemed to have been duly given or made and to
have become effective when delivered in hand to the party to which directed,
when delivered by courier if delivered by commercial overnight courier service,
or if sent by first-class registered mail, postage prepaid and properly
addressed, at the earlier of (a) the time when received by the addressee or (b)
the fifth business day following the dispatch thereof.
8. Assignment. Subject to the restrictions on transfer of the
Registrable Securities imposed by the Company's Stockholders' Agreement or other
organizational documents, this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions respecting minimum numbers or percentages
of shares of Registrable Securities required in order to be entitled to certain
rights, or take certain actions, contained herein.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the
internal substantive laws of the State of Missouri.
11. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12 Expiration. The registration rights granted pursuant to Sections 2.1
and 2.2 hereof shall expire on the earlier of (a) the date which is four (4)
years following an Initial Public Offering; or (b) as to each individual Holder,
at such time after the Company's Initial Public Offering as all Registrable
Securities held by and issuable to such Holder may be sold under Rule 144 of the
1933 Act without regard to volume and manner of sale limitations.
----------------------------
14
SIGNATURE PAGES FOR
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers or other authorized
representatives thereunto duly authorized as of the date first above written.
COMPANY:
BUILD-A-BEAR WORKSHOP, INC.,
a Delaware corporation
By: /s/ Maxine Clark
----------------------------------------
Name: Maxine Clark
Title: President
HOLDERS:
SMART STUFF, INC.,
a Missouri corporation
/s/ Maxine Clark
--------------------------------------------
By: Maxine Clark
CLARK/FOX, L.L.C.
a Missouri limited liability company
/s/ Maxine Clark
--------------------------------------------
By: Maxine Clark, its Manager
CLARK/FOX II, L.L.C.
a Missouri limited liability company
/s/ Maxine Clark
--------------------------------------------
By: Maxine Clark, its Manager
15
/s/ Maxine Clark
--------------------------------------------
Maxine Clark
Barney A. Ebsworth Revocable Trust dated
July 23, 1986
/s/ Barney A. Ebsworth Rev. Tr.
--------------------------------------------
By: Barney A. Ebsworth
----------------------------------------
/s/ Wayne L. Smith, II
----------------------------------------
Wayne L. Smith, II
/s/ Brian Vent
--------------------------------------------
Brian Vent
HYCEL PARTNERS V, L.L.C.,
a Missouri limited liability company
/s/ Mark H. Zorensky
--------------------------------------------
By: Mark H. Zorensky, Manager
-------------------------------------
WALNUT CAPITAL PARTNERS, L.P.,
a Delaware limited partnership
By: Walnut Capital Management Group, LLC,
its general partner
By: /s/ James M. Gould
-------------------------------------
Manager
WALNUT INVESTMENT PARTNERS, L.P.,
a Delaware limited partnership
By: Walnut Investments Holding Company, LLC,
its general partner
By: /s/ James M. Gould
-------------------------------------
Manager
16
KCEP VENTURES II, L.P.,
a Missouri limited partnership
By: KCEP II, L.C., its general partner
By: /s/ William Reisler
-------------------------------------
William Reisler, its Managing Director
CATTERTON PARTNERS IV, L.P.,
a Delaware limited partnership
By: Catterton Managing
Partner IV, L.L.C.
Its: General Partner
By: CP4 Principals, L.L.C.
Its: Managing Member
By: /s/ Frank M. Vest, Jr.
-------------------------------------
Name: Frank M. Vest, Jr.
Title: Authorized Person
CATTERTON PARTNERS IV-A, L.P.,
a Delaware limited partnership
By: Catterton Managing
Partner IV, L.L.C.
Its: General Partner
By: CP4 Principals, L.L.C.
Its: Managing Member
By: /s/ Frank M. Vest, Jr.
-------------------------------------
Name: Frank M. Vest, Jr.
Title: Authorized Person
17
CATTERTON PARTNERS IV-B, L.P.,
a Delaware limited partnership
By: Catterton Managing
Partner IV, L.L.C.
Its: General Partner
By: CP4 Principals, L.L.C.
Its: Managing Member
By: /s/ Frank M. Vest, Jr.
-------------------------------------
Name: Frank M. Vest, Jr.
Title: Authorized Person
CATTERTON PARTNERS IV OFFSHORE, LP.
a Cayman limited partnership
By: Catterton Managing
Partner IV, L.L.C.
Its: Managing General Partner
By: CP4 Principals, L.L.C.
Its: Managing Member
By: /s/ Frank M. Vest, Jr.
-------------------------------------
Name: Frank M. Vest, Jr.
Title: Authorized Person
CATTERTON PARTNERS IV SPECIAL
PURPOSE, L.P.
a Cayman limited partnership
By: Catterton Managing Partner IV, L.L.C.
Its: Managing General Partner
By: CP4 Principals, L.L.C.
Its: Managing Member
By: /s/ Frank M. Vest, Jr.
-------------------------------------
Name: Frank M. Vest, Jr.
Title: Authorized Person
18
/s/ Adrienne Weiss
-------------------------------
Adrienne Weiss
/s/ Christiane Ebsworth
-------------------------------
Christiane Ebsworth
/s/ Thomas Holley
-------------------------------
Thomas Holley
19