Employment, Confidentiality and Noncompete Agreement - Build-A-Bear Workshop Inc. and Barry Erdos
EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT
This Employment, Confidentiality and Noncompete Agreement ("Agreement") is
made and entered into the 13th day of April, 2004, by and between Build-A-Bear
Workshop, Inc., a Delaware corporation ("Company"), and Barry Erdos
("Employee").
WHEREAS, Company desires to employ and Employee desires to be employed as
the President and Chief Operating Officer Bear of Company.
WHEREAS, Company has pioneered the retail concept of "make your own" stuff
plush toys, including animals and dolls, and is engaged in, among other things,
the business of production, marketing, promotion and distribution of plush stuff
toys, 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, and the promotion of the
related concepts and characters through merchandising and mass media. 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 and internationally through franchise arrangements.
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 goodwill by all of its employees.
WHEREAS, Company compensates its employees to, among other things, develop
and preserve goodwill with its customers, landlords, suppliers and partners 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
<PAGE>
as President and Chief Operating Officer Bear, during the Employment Period, on
a full-time basis. Employee shall carry out such duties as are assigned to him
by Company's Chief Executive Bear.
(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. During the term
of his employment, Employee may engage in outside activities, provided those
activities do not interfere or conflict with his duties and responsibilities
hereunder, provided, Employee will not serve as an officer or on the board of
directors of another for-profit entity without the prior written consent of the
Company.
(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
April 26, 2004 and shall end on the third anniversary hereof, 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
Five Hundred Thousand Dollars ($500,000), 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 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").
(b) Bonus. Should Company exceed its sales, profits and other objectives
for any fiscal year, Employee shall be eligible to receive a bonus for such
fiscal year as determined by the Compensation Committee of the Board of
Directors. For the current fiscal year, Employee will participate in the Chiefs
Bonus plan previously approved by the compensation committee of the Board of
Directors, provided in no event shall Employee's bonus for the current fiscal
year be less than $250,000. In future years, such bonus opportunity will not be
less than fifty percent (50%) of the Employee's annual base pay for such fiscal
year. Any bonus payable to Employee will be
2
<PAGE>
payable in cash, stock or stock options, or combination thereof, all as
determined by the Board of Directors or any duly authorized committee thereof,
and unless a different payout schedule is applicable for all executive employees
of the Company, any such bonus payment will be payable in a single, lump sum
payment. For the current fiscal year, and in the event of termination of this
Agreement because of Employee's death or disability (as defined by Section
4.1(b)), termination by the Company without Cause pursuant to Section 4.1(c) or
pursuant to Employee's right to terminate this Agreement for Good Reason under
Section 4.1(d), 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.
(c) Stock Options. As of the date of this Agreement, Employee will be
granted options to purchase 100,000 shares of Company's common stock (the
"Common Stock") at an exercise price of $8.78, pursuant to the terms set forth
more particularly in an Option Agreement used in connection with the
Build-A-Bear Workshop, Inc. 2002 Stock Incentive Plan (or any successor plan)
(the "Plan"). It is intended that such options will be granted pursuant to the
Plan, and will be incentive stock options. The Option Agreement will provide
that the subject options will vest in the event of a Change in Control or a
Public Offering (as such terms are defined in the Option Agreement). Future
options to purchase the Common Stock may be 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. Employee shall initially 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 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. Unless otherwise approved by the Chief
Executive Bear, all unused vacation shall be forfeited, and no more than two
weeks of vacation can be taken at one time. Employee shall also be entitled to
one (1) additional day per calendar year of paid vacation to be taken in the
month of his birthday.
3
<PAGE>
(f) Relocation. On or before May 1, 2004, Company shall pay to Executive
$150,000 in lieu of a relocation allowance. Such amount is all inclusive and
will not be "grossed up" for tax purposes.
(g) 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 ("Welfare Benefits") which are provided for employees
generally at his then current location of employment.
4. Termination of Employment.
4.1 Termination Events. Prior to the expiration of the Employment Period,
this Agreement and Employee's employment may be terminated as follows:
(a) Upon Employee's death;
(b) By the Company, 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) By the Company with or without Cause. For the purposes of this
Agreement "Cause" shall mean: (i) Employee's engagement in any conduct which, in
Company's reasonable determination, constitutes gross misconduct, or is illegal,
unethical or improper provided such conduct 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 Bear 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 Bear's or the
Board's reasonable business judgment, and is reasonably within Employee's
control; provided Employee does not cure said conduct or breach (to the extent
curable) within 30 days after the Chief Executive Bear or the Board of Directors
provides Employee with written notice of said conduct or breach.
(d) By the Employee with or without Good Reason. For purposes of this
Agreement, "Good Reason" shall mean: (i) a material breach of a material
provision of this
4
<PAGE>
Agreement by Company; (ii) a significant diminishment in the nature or scope of
authority, power, function, or duty attached to the position Employee currently
maintains without the express written consent of Employee (provided, the
assignment of one or more functional areas to another executive of the Company
in and of itself shall not constitute "Good Reason"); or (iii) relocating
Employee to a location more than 100 miles from St. Louis without the express
written consent of Employee; provided Company does not cure said conduct or
breach within thirty (30) days after Employee provides the Board of Directors
with written notice of said conduct or breach.
4.2 Impact of Termination.
(a) Survival of Covenants. Upon termination of this Agreement, all
rights and obligations of the parties hereunder shall cease, except termination
of employment pursuant to Section 4 or otherwise shall not terminate or
otherwise affect the rights and obligations of the parties pursuant to Sections
5 through 13 hereof.
(b) Severance. In the event (i) the Company terminates Employee's
employment during the Employment Period without Cause pursuant to Section 4.1(c)
or (ii) the Employee terminates his employment for Good Reason pursuant to
Section 4.1(d), the Company shall continue his base salary for a period of
twelve (12) months from termination (unless such termination occurs within the
first twelve (12) months following the date of this Agreement, in which event
such base salary shall be continued for twenty-four (24) months), such payments
to be reduced by the amount of any compensation from a subsequent employer
during such period. The Company shall also continue Employee's Welfare Benefits
for such period to the extent permitted by the Company's Welfare Benefits Plans.
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. Employee shall also be eligible to
receive a bonus with respect to the year of termination as provided in Section
3(b).
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;
5
<PAGE>
(2) lists or other identification of sources or prospective
sources of Company's products or components thereof, its landlords and
prospective landlords and its current and prospective alliance, marketing
and media partners (and key individuals employed or engaged by such
parties);
(3) all compilations of information, correspondence,
designs, drawings, files, formulae, lists, machines, maps, methods,
models, studies, surveys, scripts, screenplays, artwork, sketches, notes
or other writings, plans, leases, 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, leasing,
manufacturing, transportation, distribution and sales costs and non-public
pricing information);
(5) equipment, materials, designs, procedures, processes,
and techniques used in, or related to, the development, manufacture,
assembly, fabrication or other production and quality control of Company's
products, stores and services;
(6) Company's relations with its past, current and
prospective customers, , suppliers, landlords, alliance, marketing and
media partners and the nature and type of products or services rendered
to, received from or developed with such parties or prospective parties;
(7) Company's relations with its employees (including,
without limitation, salaries, job classifications and skill levels); and
(8) any other information designated by Company to be
confidential, secret and/or proprietary (including without limitation,
information provided by customers, suppliers and alliance partners 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, suppliers, landlords and
alliance, marketing and media partners and
6
<PAGE>
in developing its Confidential Information; (ii) long-term customer, landlord,
supplier and partner 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, landlord, vendor and partner goodwill, customer, landlord, vendor and
partner loyalty and customer, landlord, vendor and partner 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, landlords, suppliers or partners of Company, either individually or
on a combined basis, or to put himself 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, 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 the United States or within any country where the Company has
established a retail presence either directly or through a franchise
arrangement; or
(b) for three (3) years, induce or attempt to induce any employee,
consultant, partner or advisor of Company to accept employment or an affiliation
with any entity engaged in a 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, for three (3) years following termination of said employment,: (i)
the sale of stuffed plush toys is not a material business of the entity; (ii)
Employee has no direct or personal involvement in the sale of stuffed plush toys
; 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 Section 6,
"material business" shall mean that either (A) greater than 10% of annual
revenues received by such entity were derived from the sale of stuffed plush
toys and related products, or (B) the annual revenues received or projected to
be received by such entity from the sale of stuffed plush toys and related
products exceeded $10 million, or (C) or the entity otherwise annually derives
or is projected to derive annual revenues in excess of $5 million 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), including the geographic scope thereof in light of the Company's
marketing efforts, 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.
7
<PAGE>
8. Inventions.
(a) 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.
(b) Employee acknowledges that as part of his work for the Company he or
she may be asked to create, or contribute to the creation of, computer programs,
documentation and other copyrightable works. Employee hereby agrees that any and
all computer programs, documentation and other copyrightable materials that he
has prepared or worked on for the Company, or is asked to prepare or work on by
the Company, shall be treated as and shall be a "work made for hire," for the
exclusive ownership and benefit of Company according to the copyright laws of
the United States, including, but not limited to, Sections 101 and 201 of Title
17 of the U.S. Code ("U.S.C.") as well as according to similar foreign laws.
Company shall have the exclusive right to register the copyrights in all such
works in its name as the owner and author of such works and shall have the
exclusive rights conveyed under 17 U.S.C. Sections 106 and 106A including, but
not limited to, the right to make all uses of the works in which attribution or
integrity rights may be implicated. Without in any way limiting the foregoing,
to the extent the works are not treated as works made for hire under any
applicable law, Employee hereby irrevocably assigns, transfers, and conveys to
Company and its successors and assigns any and all worldwide right, title, and
interest that Employee may now or in the future have in or to the works,
including, but not limited to, all ownership, U.S. and foreign copyrights, all
treaty, convention, statutory, and common law rights under the law of any U.S.
or foreign jurisdiction, the right to sue for past, present, and future
infringement, and moral, attribution, and integrity rights. Employee[ and its
employees and agents] hereby expressly and forever irrevocably waives any and
all rights that he or she[ or they] may have arising under 17 U.S.C. Sections
106A, rights that may arise under any federal, state, or foreign law that
conveys rights that are similar in nature to those conveyed under 17 U.S.C.
Sections 106A, and any other type of moral right or droit moral.
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.
8
<PAGE>
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 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
and that Employee is not subject to any agreement which restricts the scope of
his employment.
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.
9
<PAGE>
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 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. Attorney's Fees. Company shall pay any reasonable attorney's fees
(not in excess of $10,000) of Kelley Drye & Warren LLP incurred by Employee in
connection with the negotiation of this Agreement. Payment of such fees shall be
made within 30 days of the date Employee presents Company with an invoice.
18. 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 SERVICE 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.
10
<PAGE>
[Remainder of page intentionally left blank]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY COMPANY.
/s/ BARRY ERDOS
----------------------------------------
Barry Erdos
Address:
----------------------------
----------------------------
BUILD-A-BEAR WORKSHOP, INC.
By: /s/ MAXINE CLARK
------------------------------------
Maxine Clark, Chief Executive Bear
12