FIRST AMENDMENT TO EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT
EXHIBIT 10.8.1
FIRST AMENDMENT TO EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT
This First Amendment (the “Amendment”) to the Employment, Confidentiality and Non-compete
Agreement dated the 7th day of March, 2004 (the “Agreement”) is made effective as of
February 24, 2006, between BUILD-A-BEAR WORKSHOP, INC. (“Company”) and XXXXXX XXXXX XXXX
(“Employee” or “Xx. Xxxx”).
Recital
Company and Employee previously entered into the Agreement whereby Company hired Employee to
provide various services to Company under the title of Chief Workshop Bear. Company and Employee
now mutually desire to amend the Agreement pursuant to the terms of this Amendment.
NOW, THEREFORE, in consideration of the premises and agreements hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 3(b) of the Agreement is hereby amended as follows:
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 in the amount as
determined by the Compensation Committee of the Board of Directors; provided however the
potential bonus opportunity for Employee in any given fiscal year will be set by the
Compensation Committee such that, if the Company exceeds its objectives, the Company will
pay Employee in cash an amount no less than thirty five percent (35%) of the Employee’s
base salary for such fiscal year. Employee may be entitled to additional bonus
opportunities payable in stock or stock options or combination thereof, all as determined
by the Compensation Committee. Unless a different payout schedule is applicable for all
executive employees of the Company, any such cash bonus payment will be payable in a
single, lump sum payment. 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 finally 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 seventy-five (75) days after the end of each calendar year,
regardless of Employee’s employment status at the time
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EXHIBIT 10.8.1
payment is due. If timely payment is not made, the Company shall indemnify the Employee
against any additional tax liability that the Employee may incur proximately as a result of
the payment being made after the seventy-five day period.
| 2. | Section 3(f) of the Agreement is hereby amended as follows: | |
| 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. Employee may, in his sole discretion, decline any perquisite, proposed annual salary increase, or bonus payment. | ||
| 3. | Section 4 of the Agreement is hereby amended as follows: | |
| 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 six (6) 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; (v) 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
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EXHIBIT 10.8.1
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. In
the event of termination for cause, the Employee will afforded an opportunity prior to the
actual date of termination to discuss the matter with the Company.
(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 Agreement by
Company, or (ii) relocating Employee to a location more than 100 miles from St. Louis
without the express written consent of the Employee; provided Company does not cure said
breach within thirty (30) days after Employee provides the Board of Directors with written
notice of the 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 during the Employment Period (i) the Company terminates
Employee’s employment 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, such payments
to be reduced by the amount of any cash 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 Benefit Plans. Employee shall accept these
payments in full discharge of all obligations of any kind which Company has to his except
obligations, if any, (i) for post-employment benefits expressly provided under this
Agreement and/or at law, (ii) to repurchase any capital stock of Company owned by Employee;
or (iii) for indemnification under separate agreement by virtue of Employee’s status as a
director/officer of the Company. Employee shall also be eligible to receive a bonus with
respect to the year of termination as provided in Section 3(c).
| 5. | Except to the extent expressly provided herein, the Agreement remains in full force and effect, in accordance with its terms. |
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EXHIBIT 10.8.1
IN WITNESS WHEREOF, the parties have executed this First Amendment effective as of the date
indicated above.
| XXXXXX XXXXX XXXX | BUILD-A-BEAR WORKSHOP, INC. | |||||
By:
|
/s/ Xxxxxx Xxxxx Xxxx | By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx Xxxx | Xxxxxx Xxxxx | |||||
| Chief Executive Bear | ||||||
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