EXHIBIT 10.3.3
MODEL
INCENTIVE STOCK OPTION AGREEMENT
UNDER THE
BUILD-A-BEAR WORKSHOP, INC. 2004 STOCK INCENTIVE PLAN
THIS AGREEMENT, made this ________ day of _____________,
______, by and between Build-A-Bear Workshop, Inc., a Delaware corporation
("Company"), and ____________ ("Optionee"),
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company ("Board of
Directors") has adopted the Build-A-Bear Workshop, Inc. 2004 Stock Incentive
Plan (the "Plan") pursuant to which options covering an aggregate of 3,700,000
shares of the Common Stock of the Company may be granted to employees, directors
and consultants of the Company, a parent or subsidiary, as such terms are
defined in the Plan; and
WHEREAS, Optionee is now an employee of the Company, a parent
or a subsidiary; and
WHEREAS, the Company desires to grant to Optionee the option
to purchase certain shares of its stock under the terms of the Plan, which
option is intended to qualify as an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended ("Code")
(hereinafter referred to as an "Incentive Stock Option"); and
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements hereinafter set forth, it is covenanted and agreed as follows:
1. Grant Subject to Plan. This option is granted under
and is expressly subject to all the terms and provisions of the Plan, and the
terms of such Plan are incorporated herein by reference. Optionee hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all the
terms and provisions thereof. Terms not defined herein shall have the meaning
ascribed thereto in the Plan. The Committee referred to in Section 4 of the Plan
("Committee") has been appointed by the Board of Directors, and designated by
it, as the Committee to make grants of options.
2. Grant and Terms of Option. Pursuant to action of the
Committee, [which action was taken on ________, ____ ("Date of Grant"),] [OR]
[effective as of the date the Securities and Exchange Commission declares the
Company's registration statement filed with respect to the initial public
offering of the Common Stock effective ("Date of Grant"),] the Company grants to
Optionee the option to purchase all or any part of ____________(______________ )
shares of the Common Stock of the Company, of the par value of $___ per share
("Common Stock"), for a period of ten (10) years (five (5) years in the case of
a 10% shareholder, as described in Section 6(B) of the Plan) from the Date of
Grant, at a purchase price per share equal
to the initial price to the public as set forth in the final prospectus included
in the registration statement filed with the Securities and Exchange Commission
for the initial public offering of the Common Stock (110% in the case of a 10%
shareholder, as described in Section 6B of the Plan), which amount may not be
less than 100% of the Fair Market Value of the Stock at the time of the granting
of the Option; provided, however, that the right to exercise such option shall
be, and is hereby, restricted as follows:
(a) No shares may be purchased prior to the date
of the initial public offering of the Common Stock; provided that, in
the event an initial public offering of the Common Stock does not occur
before March 1, 2005, this option shall immediately terminate, and no
part of the option may be exercised. Provided that an initial public
offering of the Common Stock has occurred, the right to exercise such
option shall be, and is hereby, restricted as follows: No shares may be
purchased prior to _________,______; that at any time during the term
of this option on or after _________,______, Optionee may purchase up
to 25% of the total number of shares to which this option relates; that
at any time during the term of this option on or after
_________,______, Optionee may purchase up to an additional 25% of the
total number of shares to which this option relates; that at any time
during the term of this option on or after _________,______, Optionee
may purchase up to an additional 25% of the total number of shares to
which this option relates; and that at any time on or after
_________,______, Optionee may purchase up to an additional 25% of the
total number of shares to which this option relates; so that on or
after _________,______, during the term hereof, Optionee will have
become entitled to purchase the entire number of shares to which this
option relates.
(b) Notwithstanding the foregoing, in the event
of a Change of Control Optionee may purchase 100% of the total number
of shares to which this option relates. For purposes of this Agreement,
a Change in Control means:
(1) The purchase or other acquisition
(other than from the Company) by any person, entity or group
of persons, within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (excluding, for this purpose, the Company or its
subsidiaries or any employee benefit plan of the Company or
its subsidiaries), of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either the then-outstanding shares of common stock of
the Company or the combined voting power of the Company's
then-outstanding voting securities entitled to vote generally
in the election of directors; or
(2) Individuals who, as of the date
hereof, constitute the Board of Directors of the Company (the
"Board" and, as of the date hereof, the "Incumbent Board")
cease for any reason to constitute at least a majority of the
Board, provided that any person who becomes a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board (other than an individual whose initial
assumption of office is in
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connection with an actual or threatened election contest
relating to the election of directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this
section, considered as though such person were a member of the
Incumbent Board; or
(3) Approval by the stockholders of the
Company of a reorganization, merger or consolidation, in each
case with respect to which persons who were the stockholders
of the Company immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own
more than 50% of, respectively, the common stock and the
combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or
consolidated corporation's then-outstanding voting securities,
or of a liquidation or dissolution of the Company or of the
sale of all or substantially all of the assets of the Company.
(c) In no event may this option or any part
thereof be exercised after the expiration of ten (10) years (five (5)
years in the case of a 10% shareholder, as described in Section 6(B) of
the Plan) from the Date of Grant.
(d) The purchase price of the shares subject to
the option may be paid for (i) in cash, (ii) in the discretion of the
Committee, by tender of shares of Common Stock already owned by
Optionee, or (iii) in the discretion of the Committee, by a combination
of methods of payment specified in clauses (i) and (ii), all in
accordance with Section 6 of the Plan. Notwithstanding the preceding
sentence, Optionee may request that the Committee agree that payment in
full of the option price need not accompany the written notice of
exercise; provided that, the notice of exercise directs that the
certificate or certificates for the shares of Common Stock for which
the option is exercised be delivered to a licensed broker acceptable to
the Committee as the agent for Optionee and, at the time such
certificate or certificates are delivered, the broker tenders to the
Committee cash (or cash equivalents acceptable to the Committee) equal
to the option price for the shares of Common Stock purchased pursuant
to the exercise of the option plus the amount (if any) of any
withholding obligations on the part of the Company. Such request may be
granted or denied in the sole discretion of the Committee.
(e) No shares of Statutory Option Stock (as
defined in Section 424(c)(3)(B) of the Code) may be tendered in
exercise of this option unless (i) such shares have been held by
Optionee for at least one year, and (ii) at least two years have
elapsed since such Statutory Option Stock was granted.
(f) The Optionee shall not participate in or be
a party to the Stockholders' Agreement.
3. Anti-Dilution Provisions. In the event that, during
the term of this Agreement, there is any change in the number of shares of
outstanding Common Stock of the
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Company by reason of stock dividends, recapitalizations, mergers,
consolidations, split-ups, combinations or exchanges of shares and the like, the
number of shares covered by this option agreement and the price thereof shall be
adjusted, to the same proportionate number of shares and price as in this
original agreement.
4. Investment Purpose and Other Restrictions on
Transfer. Optionee represents that, in the event of the exercise by Optionee of
the option hereby granted, or any part thereof, he or she intends to purchase
the shares acquired on such exercise for investment and not with a view to
resale or other distribution; except that the Company, at its election, may
waive or release this condition in the event the shares acquired on exercise of
the option are registered under the Securities Act of 1933, or upon the
happening of any other contingency which the Company shall determine warrants
the waiver or release of this condition. Optionee agrees that the certificates
evidencing the shares acquired by him or her on exercise of all or any part of
this option, may bear a restrictive legend, if appropriate, indicating any
restrictions on the transfer thereof, which legend may be in suc form as the
Company shall determine to be proper.
5. Non-Transferability. Neither the option hereby
granted nor any rights thereunder or under this Agreement may be assigned,
transferred or in any manner encumbered except by will or the laws of descent
and distribution, and any attempted assignment, transfer, mortgage, pledge or
encumbrance except as herein authorized, shall be void and of no effect. The
option may be exercised during Optionee's lifetime only by Optionee or his or
her guardian or legal representative.
6. Termination of Employment. In the event of the
termination of employment of Optionee other than by death, the option granted
may be exercised at the times and to the extent provided in Section 6 of the
Plan. [IF THE OPTIONEE'S EMPLOYMENT IS TERMINATED OTHER THAN FOR CAUSE, THE
DETERMINATION OF WHICH SHALL BE MADE IN THE SOLE DISCRETION OF THE COMMITTEE,
THE OPTION MAY BE EXERCISED, TO THE EXTENT IT WAS ELIGIBLE FOR EXERCISE AT THE
DATE OF SUCH TERMINATION OF EMPLOYMENT, AT ANY TIME WITHIN THREE (3) MONTHS
AFTER SUCH TERMINATION, BUT NOT AFTER TEN (10) YEARS (OR FIVE (5) YEARS, IF
APPLICABLE) FROM THE DATE OF GRANTING]
7. Death of Optionee. In the event of the death of
Optionee during the term of this Agreement and while he or she is employed by
the Company (or its parent or a subsidiary), or within three (3) months after
the termination of his or her employment, this option shall become fully vested
(if not already fully vested) and may be exercised by a legatee or legatees of
Optionee under his or her last will, or by his or her personal representatives
or distributees, at any time within a period of one year after his or her death,
but not after ten (10) years (or five (5) years, if applicable) from the Date of
Grant, and only if he or she was entitled to exercise the option at the date of
his or her death.
8. Shares Issued on Exercise of Option. It is the
intention of the Company that on any exercise of this option it will transfer to
Optionee shares of its authorized but unissued stock, Treasury shares, or shares
acquired on the public market, if applicable, or it will utilize any combination
of authorized but unissued shares, Treasury shares and shares acquired
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on the public market, if applicable, to satisfy its obligations to deliver
shares on any exercise hereof.
9. Committee Administration. This option has been
granted pursuant to a determination made by the Committee, and such Committee or
any successor or substitute committee authorized by the Board of Directors or
the Board of Directors itself, subject to the express terms of this option,
shall have plenary authority to interpret any provision of this option and to
make any determinations necessary or advisable for the administration of this
option and the exercise of the rights herein granted, and may waive or amend any
provisions hereof in any manner not adversely affecting the rights granted to
Optionee by the express terms hereof.
10. Option an Incentive Stock Option. It is intended that
this option shall be treated as an incentive stock option under Section 422 of
the Internal Revenue Code of 1986, as amended.
11. No Contract of Employment. Nothing contained in this
Agreement shall be considered or construed as creating a contract of employment
for any specified period of time.
12. Severability. Any word, phrase, clause, sentence or
other provision herein which violates or is prohibited by any applicable law,
court decree or public policy shall be modified as necessary to avoid the
violation or prohibition and so as to make this Agreement enforceable as fully
as possible under applicable law, and if such cannot be so modified, the same
shall be ineffective to the extent of such violation or prohibition without
invalidating or affecting the remaining provisions herein.
13. Non-Waiver of Rights. The Company's failure to
enforce at any time any of the provisions of this agreement or to require at any
time performance by Optionee 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 Company thereafter to
enforce each and every provision in accordance with the terms of this agreement.
14. Entire Agreement; 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 Optionee and the Company to the extent that any such
agreements or understandings conflict with the terms of this agreement.
15. Assignment. This agreement shall be freely assignable
by the Company to and shall inure to the benefit of, and be binding upon, the
Company, its successors and assigns and/or any other entity which shall succeed
to the business presently being conducted by the Company.
16. Choice of Forum and Governing Law. In light of the
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 the
Company's execution of, and the making of, this agreement in Missouri,
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the parties agree that: (i) any litigation, validity and/or enforceability of
the agreement, shall be filed and conducted exclusively in the state or federal
courts in St. Louis County, Missouri; and (ii) the agreement shall be
interpreted in accordance with and governed by the laws of the State of
Delaware, without regard for any conflict of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by the undersigned officer pursuant to due
authorization, and Optionee has signed this Agreement to evidence his or her
acceptance of the option herein granted and of the terms hereof, all as of the
date hereof.
BUILD-A-BEAR WORKSHOP, INC.
By
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ATTEST:
Secretary
Optionee
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