Repayment and Stock Pledge Agreement - Build-A-Bear Workshop Inc. and Tina Klocke
REPAYMENT AND STOCK PLEDGE AGREEMENT
This Repayment and Stock Pledge Agreement (this "Agreement or "Pledge
Agreement") is made as of September 19, 2001 between Build-A-Bear Workshop,
Inc., a Delaware corporation ("Pledgee"), and Tina Klocke ("Pledgor").
Recitals
A. Pursuant to Pledgor's purchase of shares of Pledgee's common stock,
par value $.01 per share ("Common Stock"), under the Restricted Stock Purchase
Agreement dated September 19, 2001 (the "Purchase Agreement"), between Pledgor
and Pledgee, and Pledgor's payment for such shares with monies advanced pursuant
to that certain Secured Promissory Note executed by Pledgor in favor of the
Pledgee dated September 19, 2001 (the "Note"), Pledgor has purchased 20,491
shares of Common Stock (the "Shares") at a price of $6.10 per share, for a total
purchase price of $124,995.
B. It is a condition precedent to the extension of credit pursuant to
the Note that the Pledgor shall have executed and delivered this Pledge
Agreement in favor of the Pledgee.
NOW, THEREFORE, in consideration of the foregoing and for other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Creation and Description of Security Interest. Pledgor hereby grants a lien
on and pledges all of the Shares (herein sometimes referred to as the
"Collateral") represented by certificate number 10, duly endorsed in blank or
with executable stock powers in form and substance satisfactory to Pledgee, and
herewith delivers said certificate to the Secretary of Pledgee (the "Escrow
Agent"), who shall hold said certificate subject to the terms and conditions of
this Pledge Agreement.
The pledged stock shall be held by the Escrow Agent as security for
the repayment of the Note, and any costs and expenses incurred in the
enforcement or attempted enforcement of the Note, and any extensions or renewals
thereof, and the Escrow Agent shall not encumber, sell or otherwise dispose of
such Shares except in accordance with the provisions of this Pledge Agreement.
2. Pledgor's Representations and Covenants. Pledgor represents and covenants to
Pledgee, its successors and assigns, as follows:
(a) Pledgor will pay the principal sum of the Note secured hereby,
together with interest thereon, at the time and in the manner provided in
the Note.
(b) The Shares are free of all other encumbrances, defenses and liens
(other than the lien granted hereunder), and Pledgor will not encumber or
allow to be
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encumbered the Shares without the prior written consent of Pledgee or
enter into any agreement that could restrict Pledgee's exercise of its
rights hereunder or under the Note.
(c) Pledgor shall pay, prior to the delinquency date, all taxes,
liens, assessments and other charges levied against the Collateral, and in
the event Pledgor fails to do so, Pledgee shall have the right, but not the
obligation, to pay all or any portion of such taxes and charges without
contesting the validity or legality thereof. Any payment made by Pledgee
pursuant to this Section 2(c) shall become part of the indebtedness of
Pledgor secured hereunder, and until paid by Pledgor, shall bear interest
at the default rate per annum set forth in the Note.
3. Voting Rights. During the term of this pledge, Pledgor shall vote the Shares
pledged hereunder solely in accordance with the provisions of that certain
Amended and Restated Stockholders' Agreement dated as of September 21, 2001
among the Company and certain of its stockholders a party thereto.
4. Stock Adjustments. In the event during the term of this Agreement of any
stock dividend, reclassification, readjustment, or other changes declared or
made in the capital structure of Pledgee, all new, substituted and additional
shares or other securities issued by reason of any such change shall be
delivered to and held by the Pledgee under the terms of this Pledge Agreement in
the same manner as the Shares originally pledged hereunder. In the event of
substitution of such securities, Pledgor, Pledgee and Escrow Agent shall
cooperate and execute such documents as are reasonable so as to provide for the
substitution of such Collateral and, upon such substitution, references to
"Shares" in this Pledge Agreement shall include the substituted shares of
capital stock of Pledgor as a result thereof.
5. Warrants and Rights. In the event that, during the term of this Agreement,
subscription warrants or other rights or options shall be issued in connection
with the Shares, such rights, warrants and options shall be the property of
Pledgor and, if exercised by Pledgor, all new stock or other securities so
acquired by Pledgor as it relates to the Share then held by Pledgee shall be
immediately delivered to Pledgee, to be held under the terms of this Agreement
in the same manner as the Shares pledged hereunder.
6. Repayment. Pledgor hereby agrees that at any time if Borrower shall have
received any cash payment or other distribution in respect of, or upon transfer,
sale or other disposition of, the Shares, then and in each such case, Pledgor
shall immediately deliver to Pledgee such amount as in partial or full payment
of principal and interest on the Note.
7. Default. Pledgor shall be deemed to be in default of the Note and of this
Pledge Agreement upon the occurrence of any of the following events (each such
event, an "Event of Default"):
(a) Payment of principal or interest on the Note shall be delinquent
for a period of 30 days or more beyond the due date thereof; or
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(b) Pledgor fails to perform any of the covenants or other agreements
set forth in this Agreement for a period of 10 days; or
(c) Any representation or warranty herein shall be untrue in any
material respect; or
(d) Pledgee shall cease to have valid perfected first priority lien on
all or any part of the Collateral.
8. Pledgee's Rights Upon or Event of Default.
(a) In the case of an Event of Default, Pledgee shall have the right
to accelerate payment of the Note upon notice to Pledgor, and Pledgee shall
thereafter be entitled to pursue all remedies available to a secured party
under the Missouri Uniform Commercial Code in effect from time to time
(whether or not applicable to the Collateral) or available at law or equity
or otherwise.
(b) In the case of an Event of Default, in addition to any other
rights or remedies otherwise available, Pledgee may, without notice and at
its option, with respect to any Collateral which shall then be in, or shall
thereafter come into, the possession or custody of Pledgee, Pledgee may
sell or cause the same to be sold at any broker's board or at any public or
private sale, in one or more sales or lots, at such price or prices as
Pledgee may deem best, for cash or on credit or for future delivery,
without assumption of any credit risk. The purchaser of any or all
Collateral so sold shall thereafter hold the same absolutely, free from any
lien, encumbrance or right of any kind whatsoever. Unless any of the
Collateral threatens to decline speedily in value or is or becomes of a
type sold on a recognized market, Pledgee will give Pledgor reasonable
notice of the time and place of any public sale thereof, or of the time
after which any private sale or other intended disposition is to be made.
Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial finance
companies or other financial institutions disposing of property similar to
the Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to
the Pledgor at least ten (10) days before the time of the sale or
disposition. Any other requirement of notice, demand or advertisement for
sale is, to the extent permitted by law, waived. Pledgee may, in its own
name or in the name of a designee or nominee, buy any of the Collateral at
any public sale and, if permitted by applicable law, at any private sale.
All expenses (including court costs and attorney's fees, expenses and
disbursements) of, or incident to, the enforcement of any of the provisions
hereof shall be recoverable from the proceeds of the sale of any of the
Collateral for the period of time necessary to register such securities for
public sale under the Securities Act of 1933, as amended (the "Securities
Act"), or under any other applicable securities law. In view of the fact
that the Securities Act and other applicable securities laws may impose
certain restrictions on the method by which a sale of the Collateral may be
effected, Pledgor agrees that upon the occurrence of an Event of Default,
Pledgee may, from time to time, attempt to sell all or any part of the
Collateral
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by means of a private sale, restricting the prospective purchasers to those
who will represent and agree that they are purchasing for investment only
and not for distribution. Pledgor acknowledges that any such private sales
may be at prices and on terms less favorable to Pledgor than those
obtainable through a public sale without such restrictions (including,
without limitation, a public offering made pursuant to a registration
statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner and that Pledgee shall
have no obligation to engage in public sales and no obligation to delay the
sale of any Collateral for the period of time necessary to permit the
registration thereof for a form of public sale requiring registration under
the Securities Act or under any other applicable securities laws. Pledgor
waives any claims against Pledgee arising by reason of the fact that the
price at any private sale was less than the price that might have been
obtained at a public sale, even if Pledgee shall accept the first offer
received and does not offer the Collateral to more than one prospective
purchaser.
9. Withdrawal or Substitution of Collateral. Pledgor shall not sell, withdraw,
pledge, substitute, grant any options in or otherwise dispose of all or any part
of the Collateral without the prior written consent of Pledgee.
10. Term. The pledge of Shares set forth herein shall continue until the
indefeasible payment in full in cash of all indebtedness secured hereby, at
which time the Shares shall be promptly delivered to Pledgor, without any
representation, warranty or covenant thereto or any recourse in respect thereof.
11. Insolvency. Pledgor agrees that if a bankruptcy or insolvency proceeding is
instituted by or against him or if a receiver is appointed for the property of
Pledgor, or if Pledgor makes an assignment for the benefit of creditors, or the
Pledgor shall take any action in furtherance of any of the foregoing, or the
Pledgor shall generally not, or shall be unable to, or shall admit in writing
his inability to, pay his debts as they become due, the entire amount unpaid on
the Note shall become immediately due and payable, and Pledgee may proceed as
provided in the case of an Event of Default.
12. Invalidity of Particular Provisions. Pledgor and Pledgee agree that the
enforceability of invalidity of any provision or provisions of this Agreement
shall not render any other provision or provisions herein contained
unenforceable or invalid.
13. Successors or Assigns. Pledgor and Pledgee agree that all of the terms of
this Agreement shall be binding on their respective permitted successors and
assigns, and that the term "Pledgor" and the term "Pledgee" as used herein shall
be deemed to include, for all purposes, the respective designees, successors,
assigns, heirs, executors and administrators. Pledgor shall not assign or
otherwise transfer all or any of her rights and obligations hereunder without
the prior written consent of Pledgee, in its sole discretion. This Agreement
shall be freely assignable by Pledgee.
14. Defined Terms. Capitalized terms used herein without definition shall have
the meanings ascribed to such terms under the Purchase Agreement.
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15. Governing Law. This Pledge Agreement shall be interpreted and governed by
the internal laws of the State of Missouri.
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IN WITNESS WHEREOF, the parties hereto have executed this Repayment and
Stock Pledge Agreement as of the day and year first above written.
"PLEDGOR" /s/ Tina Klocke
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Tina Klocke
5736 Beddeford
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Address
St. Louis, MO 63128
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"PLEDGEE" BUILD-A-BEAR WORKSHOP, INC.
/s/ Maxine Clark
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By: Maxine Clark
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Its: President
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