Employment, Confidentiality and Noncompete Agreement - Build-A-Bear Workshop Inc. and John F. Burtelow
EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT
This Employment, Confidentiality and Noncompete Agreement ("Agreement") is
made and entered into effective as of the 9th day of July, 2001, by and between
Build-A-Bear Workshop, Inc., a Delaware corporation ("Company"), and John F.
Burtelow ("Employee").
WHEREAS, Company desires to employ and Employee desires to be employed as
the Chief Banking Officer of Company.
WHEREAS, Company is engaged in, among other things, the business of
production, marketing, promotion and distribution of stuffed animals, clothing,
accessories and similar items, including without limitation, the ownership,
management, franchising, leasing and development of retail stores in which the
basic operation is the selling of such items. The Company is headquartered and
its principal place of business are located in, and this Agreement is being
signed in, St. Louis, Missouri.
WHEREAS, Company conducts business in selected locations throughout the
United States.
WHEREAS, Company has expended a great deal of time, money and effort to
develop and maintain its proprietary Confidential Information (as defined
herein) which is material to Company and which, if misused or disclosed, could
be very harmful to Company's business.
WHEREAS, the success of Company depends to a substantial extent upon the
protection of its Confidential Information and customer goodwill by all of its
employees.
WHEREAS, Company compensates its employees to, among other things, develop
and preserve goodwill with its customers on Company's behalf and business
information for Company's ownership and use.
WHEREAS, if Employee were to leave Company, Company, in all fairness,
would need certain protections in order to prevent competitors of Company from
gaining an unfair competitive advantage over Company or diverting goodwill from
Company, or to prevent Employee from misusing or misappropriating the
Confidential Information.
NOW, THEREFORE, in consideration of the compensation and other benefits of
Employee's employment by Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and Company agree as follows:
1. Employment Services.
(a) Employee is hereby employed by Company, and Employee hereby
accepts such employment, upon the terms and conditions hereinafter set forth.
Employee shall serve as Chief Banking Officer, during the Employment Period, on
a full-time basis. Employee shall carry out such duties as are assigned to him
by Company's President and Chief Executive Officer.
<PAGE>
(b) Employee agrees that throughout Employee's employment with
Company, Employee will (i) faithfully render such services as may be delegated
to Employee by Company, (ii) devote substantially all of Employee's entire
business time, good faith, best efforts, ability, skill and attention to
Company's business, and (iii) follow and act in accordance with all of the
rules, policies and procedures of Company, including but not limited to working
hours, sales and promotion policies, and specific Company rules. Company further
agrees that it shall not relocate its headquarters outside of the St. Louis
metropolitan area during the term of this Agreement or otherwise during the term
of this Agreement require Employee to relocate his residence outside of the St.
Louis metropolitan area.
(c) "Company" means Build-A-Bear Workshop, Inc. or one of its
Subsidiaries, whichever is Employee's employer. The term "Subsidiary" means any
corporation, joint venture or other business organization in which Build-A-Bear
Workshop, Inc. now or hereafter, directly or indirectly, owns or controls more
than fifty percent (50%) interest.
2. Term of Employment. The term of this Agreement shall commence on the
date first set forth above, and shall end on July 8, 2002, unless sooner
terminated as provided in Section 4 hereof (the "Initial Term"). Following the
Initial Term, this Agreement shall automatically renew for successive one-year
periods (each a "Renewal Period"; collectively, the Initial Term and each
Renewal Period, the "Employment Period"), unless sooner terminated as provided
in Section 4 hereof.
3. Compensation.
(a) Base Salary. During the Employment Period, Company shall pay Employee
as compensation for his services an annual base salary of not less than One
Hundred Seventy-Five Thousand Dollars ($175,000), payable in accordance with
Company's usual practices. Employee's annual base salary rate shall be reviewed
by Company's Compensation Committee at least annually for increase following
each fiscal year so that Employee's salary will be commensurate for similarly
situated executives with firms similarly situated to Company; provided, however,
that if Employee's individualized performance targets (set for each fiscal year
by Employee and Employee's team leader) are achieved, Employee's annual base
salary rate shall not be subject to decrease at any time during the Employment
Period and shall be subject to annual increase by no less than the average
percentage increase given to all other Company executive employees for such
fiscal year (the "Average Increase"). Notwithstanding the foregoing, for the
fiscal year ended December 31, 2001, the Average Increase shall be pro-rated so
that Employee shall only be entitled to five-twelfths of his base salary
increase, if any.
(b) Bonus. Should Company exceed its sales, profits and other objectives
as set forth on EXHIBIT 3(c) attached hereto for the fiscal year beginning
January 2, 2001 and ending December 31, 2001, Employee shall receive a bonus for
such fiscal year equal to 35% of Employee's actual annual Base Salary paid
during such fiscal year, such bonus to be payable in cash, stock or stock
options, or combination thereof, as agreed to by the Board of Directors and
Employee. Should Company exceed its sales, profits and other objectives as
agreed upon between
2
<PAGE>
Employee and Board of Directors at the beginning of each calendar year for any
fiscal year thereafter during the Employment Period, Employee shall be entitled
to receive a bonus for such fiscal year equal to an amount agreed upon by
Employee and the Board of Directors, such bonus to be payable in cash, stock or
stock options, or combination thereof, as agreed to by the Board of Directors
and Employee; provided that in no event shall such bonus be less than 35% of
Employee's actual annual Base Salary paid during such fiscal year. In the event
of termination of this Agreement because of Employee's death or disability (as
defined by paragraph 4(b)), or pursuant to Employee's right to terminate this
Agreement under paragraph 4, the bonus criteria shall not change and any bonus
shall be pro-rated based on the number of full calendar weeks during the
applicable fiscal year during which Employee was employed hereunder.
Such bonus, if any, shall be payable after Company's accountants have
determined the sales and profits and have issued their audit report with respect
thereto for the applicable fiscal year, which determination shall be binding on
the parties. Any such bonus shall be paid within one hundred twenty (120) days
after the end of each calendar year or thirty (30) days after the issuance of
the auditor's report, whichever is later, regardless of Employee's employment
status at the time payment is due. For the period after the fiscal year ending
December 31, 2001, Employee's bonus shall be based upon Company exceeding sales
and profit objectives as agreed upon between Employee and Board of Directors at
the beginning of each calendar year. The objectives and formula for determining
bonuses, once agreed upon, shall be put in writing and signed by Employee and
Board of Directors
(c) Stock Options. Subject to approval by Company's Compensation
Committee, an option to purchase 20,000 shares of Company's common stock, par
value $.01 per share (the "Common Stock"), will be granted to Employee, pursuant
to the terms set forth more particularly in the Option Agreement used in
connection with the Build-A-Bear Workshop, Inc. 2000 Stock Option Plan (the
"Plan"). It is intended that such option will be granted pursuant to the Plan,
and will be a non-qualified stock option. Future options to purchase the Common
Stock may granted upon the recommendation of the Chief Executive Officer, in her
discretion, and approval of the Compensation Committee.
(d) Discounts. Employee and his immediate family will be entitled to a 20%
discount for all merchandise purchased at Company's stores.
(e) Vacation. After completing ninety (90) days of continuous service,
Employee shall be entitled to fifteen (15) days per calendar year of paid
vacation, and paid sick leave on the same basis as may from time to time apply
to other Company executive employees generally. Vacations will be scheduled with
the approval of Company's President and Chief Executive Officer, who may block
out certain periods of time during which vacations may not be taken, including
preceding Valentine's Day, preceding Easter, from November 1 through December
31, during Company inventory, and just prior to store openings. One-third of one
year's vacation (or any part of it) may be carried over to the next year;
provided that such carry over is used in the first calendar quarter of the next
year. All unused vacation shall be forfeited. No more than two weeks of vacation
can be taken at one time. After completing ninety (90) days of continuous
service,
3
<PAGE>
Employee shall also be entitled to one (1) day per calendar year of paid
vacation to be taken in the month of his birthday.
(f) Other. Employee shall be eligible for such other perquisites as may
from time to time be awarded to Employee by Company payable at such times and in
such amounts as Company, in its sole discretion, may determine. All such
compensation shall be subject to customary withholding taxes and other
employment taxes as required with respect thereto. Employee shall also qualify
for all rights and benefits for which Employee may be eligible under any benefit
plans including group life, medical, health, dental and/or disability insurance
or other benefits which are provided for employees generally at his then current
location of employment.
4. Termination of Employment. Prior to the expiration of the Employment
Period, this Agreement and Employee's employment may be terminated by Company as
follows:
(a) Upon Employee's death;
(b) Upon thirty (30) day's prior written notice to Employee in the event
Employee, by reason of permanent physical or mental disability (which shall be
determined by a physician selected by Company or its insurers and acceptable to
Employee or Employee's legal representative (such agreement as to acceptability
not to be withheld unreasonably), shall be unable to perform the essential
functions of his position, with or without reasonable accommodation, for three
(3) consecutive months; provided, however, Employee shall not be terminated due
to permanent physical or mental disability unless or until said disability also
entitles Employee to benefits under such disability insurance policy as is
provided to Employee by Company.
(c) For cause, which for the purposes of this Agreement shall mean: (i)
Employee's engagement in any conduct which, in Company's reasonable
determination, constitutes gross misconduct, or is illegal, unethical, improper
or which otherwise brings detrimental notoriety or material harm to Company;
(ii) gross negligence or willful misconduct; (iii) conviction of fraud or theft;
(iv) a material breach of a material provision of this Agreement by Employee, or
(v) failure of Employee to follow a written directive of the Chief Executive
Officer or the Board of Directors within thirty (30) days after receiving such
notice, provided that such directive is reasonable in scope or is otherwise
within the Chief Executive Officer's or the Board's reasonable business
judgment, and is reasonably within Employee's control.
In addition, Employee's employment may be terminated by Employee in the
event of a material breach of a material provision of this Agreement by Company,
provided Company does not cure said breach within thirty (30) days after
Employee provides the Board of Directors with written notice of the breach.
Upon termination of this Agreement, all rights and obligations of the parties
hereunder shall cease, except termination of employment pursuant to this Section
4 or otherwise shall not terminate or otherwise affect the rights and
obligations of the parties pursuant to Sections 5 through 13 hereof; provided,
however, should Company terminate Employee's employment for any reason other
than matters set forth in Section 4(b) or 4(c) of this Agreement during the
Employment Period, Company
4
<PAGE>
shall continue his base salary for a period of up to six (6) months from
termination, such payments to cease at the time Employee has obtained other
employment. Employee shall accept these payments in full discharge of all
obligations of any kind which Company has to him except obligations, if any, to
repurchase any capital stock of Company owned by Employee.
5. Confidential Information.
(a) Employee agrees to keep secret and confidential, and not to use
or disclose to any third parties, except as directly required for Employee to
perform Employee's employment responsibilities for Company, any of Company's
proprietary Confidential Information.
(b) Employee acknowledges and confirms that certain data and other
information (whether in human or machine readable form) that comes into his
possession or knowledge (whether before or after the date of this Agreement) and
which was obtained from Company, or obtained by Employee for or on behalf of
Company, and which is identified herein (the "Confidential Information") is the
secret, confidential property of Company. This Confidential Information
includes, but is not limited to:
(1) lists or other identification of customers or prospective
customers of Company (and key individuals employed or engaged by such
parties);
(2) lists or other identification of sources or prospective
sources of Company's products or components thereof (and key individuals
employed or engaged by such parties);
(3) all compilations of information, correspondence, designs,
drawings, files, formulae, lists, machines, maps, methods, models, notes
or other writings, plans, records and reports;
(4) financial, sales and marketing data relating to Company or
to the industry or other areas pertaining to Company's activities and
contemplated activities (including, without limitation, manufacturing,
transportation, distribution and sales costs and non-public pricing
information);
(5) equipment, materials, procedures, processes, and
techniques used in, or related to, the development, manufacture, assembly,
fabrication or other production and quality control of Company's products
and services;
(6) Company's relations with its customers, prospective
customers, suppliers and prospective suppliers and the nature and type of
products or services rendered to such customers (or proposed to be
rendered to prospective customers);
(7) Company's relations with its employees (including, without
limitation, salaries, job classifications and skill levels); and
5
<PAGE>
(8) any other information designated by Company to be
confidential, secret and/or proprietary (including without limitation,
information provided by customers or suppliers of Company).
Notwithstanding the foregoing, the term Confidential Information shall not
consist of any data or other information which has been made publicly available
or otherwise placed in the public domain other than by Employee in violation of
this Agreement.
(c) During the Employment Period, Employee will not copy, reproduce
or otherwise duplicate, record, abstract, summarize or otherwise use, any
papers, records, reports, studies, computer printouts, equipment, tools or other
property owned by Company except as expressly permitted by Company in writing or
required for the proper performance of his duties on behalf of Company.
6. Post-Termination Restrictions. Employee recognizes that (i) Company has
spent substantial money, time and effort over the years in developing and
solidifying its relationships with its customers and suppliers and in developing
its Confidential Information; (ii) long-term customer relationships often can be
difficult to develop and require a significant investment of time, effort and
expense; (iii) Company has paid its employees to, among other things, develop
and preserve business information, customer goodwill, customer loyalty and
customer contacts for and on behalf of Company; and (iv) Company is hereby
agreeing to employ and pay Employee based upon Employee's assurances and
promises not to divert goodwill of customers or suppliers of Company, either
individually or on a combined basis, or to put herself in a position following
Employee's employment with Company in which the confidentiality of Company's
Confidential Information might somehow be compromised. Accordingly, Employee
agrees that during the Employment Period and for the period of time set forth
below following termination of employment, provided termination is in accordance
with the terms of paragraph 4(b) or (c) or due to expiration of the Employment
Period, Employee will not, directly or indirectly (whether as owner, partner,
consultant, employee or otherwise):
(a) for three (3) years, engage in, assist or have an interest in,
or enter the employment of or act as an agent, advisor or consultant for, any
person or entity which is engaged in, or will be engaged in, the development,
manufacture, supplying or sale of a product, process, service or development
which is competitive with a product, process, service or development on which
Employee worked or with respect to which Employee has or had access to
Confidential Information while at Company ("Restricted Activity"), and which is
located within 100 miles of any Company retail store;
(b) for three (3) years, solicit, call on or provide any Restricted
Activity to any customer or active prospective customer of Company which was a
customer or supplier of Company at any time during the most recent twelve (12)
months of Employee's employment by Company, or cause or attempt to cause such a
person to divert, terminate, limit, modify or fail to enter into any existing or
potential relationship with Company; or
6
<PAGE>
(c) for three (3) years, induce or attempt to induce any employee,
consultant or advisor of Company to accept employment or an affiliation
involving Restricted Activity;
provided, however, that following termination of his employment, Employee shall
be entitled to be an employee of an entity that engages in Restricted Activity
so long as: (i) the sale of stuffed animals is not a principal business of the
entity; (ii) Employee has no direct or personal involvement in the sale of
stuffed animals; and (iii) neither Employee, his relatives, nor any other
entities with which he is affiliated own more than 1% of the entity. As used in
this paragraph 6, "principal business" shall mean that greater than 10% of
revenues received during the twelve (12) months preceding a dispute under this
paragraph 6 were derived from the sale of stuffed animals and related products,
or otherwise derives revenues from a retail concept that is similar in any
material regard to Company.
7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees
that the restraints contained in Section 6 (both separately and in total) are
reasonable and enforceable in view of Company's legitimate interests in
protecting its Confidential Information and customer goodwill and the limited
scope of the restrictions in Section 6.
8. Inventions.
Any and all ideas, inventions, discoveries, patents, patent applications,
continuation-in-part patent applications, divisional patent applications,
technology, copyrights, derivative works, trademarks, service marks,
improvements, trade secrets and the like (collectively, "Inventions"), which are
developed, conceived, created, discovered, learned, produced and/or otherwise
generated by Employee, whether individually or otherwise, during the time that
Employee is employed by Company, whether or not during working hours, that
relate to (i) current and anticipated businesses and/or activities of Company,
(ii) the current and anticipated research or development of Company, or (iii)
any work performed by Employee for Company, shall be the sole and exclusive
property of Company, and Company shall own any and all right, title and interest
to such Inventions. Employee assigns, and agrees to assign to Company whenever
so requested by Company, any and all right, title and interest in and to any
such Invention, at Company's expense, and Employee agrees to execute any and all
applications, assignments or other instruments which Company deems desirable or
necessary to protect such interests, at Company's expense.
9. Company Property. Employee acknowledges that any and all notes,
records, sketches, computer diskettes, training materials and other documents
relating to Company obtained by or provided to Employee, or otherwise made,
produced or compiled during the Employment Period, regardless of the type of
medium in which they are preserved, are the sole and exclusive property of
Company and shall be surrendered to Company upon Employee's termination of
employment and on demand at any time by Company.
10. Non-Waiver of Rights. Either party's failure to enforce at any time
any of the provisions of this Agreement or to require at any time performance by
the other party of any of the provisions hereof shall in no way be construed to
be a waiver of such provisions or to affect either
7
<PAGE>
the validity of this Agreement, or any part hereof, or the right of the
non-breaching party thereafter to enforce each and every provision in accordance
with the terms of this Agreement.
11. Company's Right to Injunctive Relief. In the event of a breach or
threatened breach of any of Employee's duties and obligations under the terms
and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in
addition to any other legal or equitable remedies it may have in connection
therewith (including any right to damages that it may suffer), to temporary,
preliminary and permanent injunctive relief restraining such breach or
threatened breach. Employee hereby expressly acknowledges that the harm which
might result to Company's business as a result of any noncompliance by Employee
with any of the provisions of Sections 5, 6 or 8 would be largely irreparable.
Employee specifically agrees that if there is a question as to the
enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee
will not engage in any conduct inconsistent with or contrary to such Sections
until after the question has been resolved by a final judgment of a court of
competent jurisdiction.
12. Judicial Enforcement. If any provision of this Agreement is
adjudicated to be invalid or unenforceable under applicable law in any
jurisdiction, the validity or enforceability of the remaining provisions thereof
shall be unaffected as to such jurisdiction and such adjudication shall not
affect the validity or enforceability of such provisions in any other
jurisdiction. To the extent that any provision of this Agreement is adjudicated
to be invalid or unenforceable because it is overbroad, that provision shall not
be void but rather shall be limited only to the extent required by applicable
law and enforced as so limited. The parties expressly acknowledge and agree that
this Section is reasonable in view of the parties' respective interests.
13. Employee Representations. Employee represents that the execution and
delivery of the Agreement and Employee's employment with Company do not violate
any previous employment agreement or other contractual obligation of Employee.
14. Amendments. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing specifically
referring hereto, and signed by the parties hereto. This Agreement supersedes
all prior agreements and understandings between Employee and Company to the
extent that any such agreements or understandings conflict with the terms of
this Agreement.
15. Assignments. This Agreement shall be freely assignable by Company to
and shall inure to the benefit of, and be binding upon, Company, its successors
and assigns and/or any other entity which shall succeed to the business
presently being conducted by Company. Being a contract for personal services,
neither this Agreement nor any rights hereunder shall be assigned by Employee.
16. Choice of Forum and Governing Law. In light of Company's substantial
contacts with the State of Missouri, the parties' interests in ensuring that
disputes regarding the interpretation, validity and enforceability of this
Agreement are resolved on a uniform basis, and Company's execution of, and the
making of, this Agreement in Missouri, the parties agree that: (i) any
litigation involving any noncompliance with or breach of the Agreement, or
regarding the
8
<PAGE>
interpretation, validity and/or enforceability of the Agreement, shall be filed
and conducted in the state or federal courts in St. Louis City or County,
Missouri; and (ii) the Agreement shall be interpreted in accordance with and
governed by the laws of the State of Missouri, without regard for any conflict
of law principles.
17. ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO
THIS AGREEMENT, THE BREACH THEREOF, OR EMPLOYEE'S EMPLOYMENT BY COMPANY, SHALL,
AT COMPANY'S SOLE OPTION, BE SETTLED BY BINDING ARBITRATION IN THE COUNTY OF ST.
LOUIS IN ACCORDANCE WITH THE RULES THEN IN FORCE OF THE AMERICAN ARBITRATION
ASSOCIATION, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED AND ENFORCED IN
ANY COURT HAVING JURISDICTION THEREOF. THE CONTROVERSIES OR CLAIMS SUBJECT TO
ARBITRATION AT COMPANY'S OPTION UNDER THIS AGREEMENT INCLUDE, WITHOUT
LIMITATION, THOSE ARISING UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42
U.S.C. SECTION 1981, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS
WITH DISABILITIES ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION ACT, THE MISSOURI HUMAN RIGHTS ACT, LOCAL LAWS
GOVERNING EMPLOYMENT, AND THE STATUTORY AND/OR COMMON LAW OF CONTRACT AND TORT.
IN THE EVENT EMPLOYEE COMMENCES ANY ACTION IN COURT WHICH COMPANY HAS THE RIGHT
TO SUBMIT TO BINDING ARBITRATION, COMPANY SHALL HAVE SIXTY (60) DAYS FROM THE
DATE OF SERVE OF A SUMMONS AND COMPLAINT UPON COMPANY TO DIRECT IN WRITING THAT
ALL OR ANY PART OF THE DISPUTE BE ARBITRATED. ANY REMEDY AVAILABLE IN ANY COURT
ACTION SHALL ALSO BE AVAILABLE IN ARBITRATION.
18. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed to substantively alter the content of
such sections.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT
EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE
EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS
HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS
EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL
SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
9
<PAGE>
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY COMPANY.
/s/ John F. Burtelow
----------------------------------------
John F. Burtelow
Address: 16469 Wilson Farm Drive
Chesterfield, Missouri 63005
BUILD-A-BEAR WORKSHOP, INC.
By: /s/ Maxine Clark
-------------------------------------
Name: Maxine Clark
Title: President
10
<PAGE>
EXHIBIT 3(c)
The goals and objectives for Employee shall be mutually agreed upon by Employee
and the Compensation Committee at the first Compensation Committee meeting after
the date of this Agreement.
11