EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), dated as of
____________, 2004, is made by and between Build-A-Bear Workshop, Inc., a
Delaware corporation (the "Company") and _________________ (the "Indemnitee"),
an "agent" (as hereinafter defined) of the Company.
RECITALS
A. The Company recognizes that competent and experienced
persons are reluctant to serve as directors or officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, or
both, due to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such
directors and officers;
B. The statutes and judicial decisions regarding the duties of
directors and officers are often difficult to apply, ambiguous, or conflicting,
and therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take;
C. The Company and the Indemnitee recognize that plaintiffs
often seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal resources of
directors and officers;
D. The Company believes that it is unfair for its directors
and officers to assume the risk of huge judgments and other expenses which may
occur in cases in which the
director or officer received no personal profit and in cases where the director
or officer was not culpable;
E. The Company, after reasonable investigation, has determined
that the liability insurance coverage presently available to the Company may be
inadequate to cover all possible exposure for which the Indemnitee should be
protected. The Company believes that the interests of the Company and its
stockholders would best be served by a combination of such insurance and the
indemnification by the Company of the directors and officers of the Company;
F. Section 145 of the General Corporation Law of Delaware
("Section 145"), under which the Company is organized, empowers the Company to
indemnify its officers, directors, employees and agents by agreement and to
indemnify persons who serve, at the request of the Company, as the directors,
officers, managers, employees or agents of other corporations or enterprises,
and expressly provides that the indemnification provided by Section 145 is not
exclusive;
G. The Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but
necessary to promote the best interests of the Company and its stockholders;
H. The Company desires and has requested the Indemnitee to
serve or continue to serve as a director or officer of the Company free from
undue concern for claims for damages arising out of or related to such services
to the Company; and
I. The Indemnitee is willing to serve, or to continue to
serve, the Company, only on the condition that he or she is furnished the
indemnity provided for herein.
2
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions
(a) Agent. For purposes of this Agreement, "agent" of
the Company means any person who is or was a director, officer, manager,
employee or other agent of the Company or a subsidiary of the Company; or is or
was serving at the request of the Company or a subsidiary of the Company as a
director, officer, manager, employee or agent of another foreign or domestic
corporation, partnership, limited liability company, joint venture, trust or
other enterprise; or was a director, officer, manager, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
Company or a subsidiary of the Company; or was a director, officer, manager,
employee or agent of another foreign or domestic corporation, partnership,
limited liability company, joint venture, trust or other enterprise at the
request of, for the convenience of, or to represent the interests of such
predecessor corporation.
(b) Expenses. For purposes of this Agreement,
"expenses" includes all direct and indirect costs of any type or nature
whatsoever (including, without limitation, reasonable attorneys' fees and
related disbursements, other out-of-pocket costs and reasonable compensation for
time spent by the Indemnitee for which he or she is not otherwise compensated by
the Company or any third party, provided that the rate of compensation and
estimated time involved is approved by the Board of Directors, which approval
shall not be unreasonably withheld), actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, settlement and/or
appeal of a proceeding or establishing or enforcing a
3
right to indemnification under this Agreement, Section 145 or otherwise,
excluding the amount of any settlement, judgment, fine or penalty.
(c) Proceedings. For the purpose of this Agreement,
"proceeding" shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the giving of
testimony in, any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative.
(d) Subsidiary. For purposes of this Agreement,
"subsidiary" means any foreign or domestic corporation, partnership, limited
liability company, joint venture, trust or other enterprise of which more than
50% of the outstanding voting securities (or comparable interests) are owned
directly or indirectly by the Company, by the Company and one or more other
subsidiaries, or by one or more other subsidiaries.
(e) Miscellaneous. For purposes of this Agreement,
"other enterprise" shall include employee benefit plans; references to "fines"
shall include any excise tax assessed with respect to any employee benefit
plans; references to "serving at the request of the Company" shall include any
service as a director, officer, manager, employee or agent of the Company which
imposes duties on, or involves services by, such director, officer, manager,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; any person who acts in good faith and in a manner he or she
reasonably believes to be in the best interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement.
(f) Company. "Company" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power
4
and authority to indemnify its directors, officers, managers, employees or
agents, so that any person who is or was a director, officer, manager, employee
or agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, manager, employee or agent
of another corporation, partnership, limited liability company, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving corporation as he
or she would have with respect to such constituent corporation if its separate
existence had continued.
2. Agreement to Serve. The Indemnitee agrees to serve and/or
continue to serve as an agent of the Company, at its will (or under separate
agreement, if such agreement now or hereafter exists), in the capacity
Indemnitee currently serves (or in such other positions which he or she agrees
to assume) as an agent of the Company, so long as he or she is duly appointed or
elected and qualified in accordance with the applicable provisions of the Bylaws
of the Company, any subsidiary of the Company, or any applicable other foreign
or domestic corporation, partnership, limited liability company, joint venture,
trust or other enterprise, or until such time as he or she tenders his or her
resignation in writing, provided, however, that nothing contained in this
Agreement is intended to create any right to continued employment by Indemnitee
in any capacity.
3. Indemnity in Third Party Proceedings. The Company shall
indemnify the Indemnitee if the Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding (other than a proceeding
by or in the name of the Company to procure judgment in its favor) by reason of
the fact that the Indemnitee is or was an agent of the Company, or by reason of
any act or inaction by him or her in any such capacity, against any and all
expenses and liabilities of any type whatsoever (including, but not limited to,
settlements,
5
judgments, fines and penalties), actually and reasonably incurred by him or her
in connection with the investigation, defense, settlement or appeal of such
proceeding, unless it is determined that the Indemnitee did not act in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any proceeding by judgment, order of court, settlement,
conviction or on plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith in a
manner which he or she reasonably believed to be in the best interests of the
Company, and with respect to any criminal proceedings, that such person had
reasonable cause to believe that his or her conduct was unlawful.
4. Indemnity in Derivative Action. The Company shall indemnify
the Indemnitee if the Indemnitee is a party to or threatened to be made a party
to or otherwise involved in any proceeding by or in the name of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee is or
was an agent of the Company, or by reason of any act or inaction by him or her
in any such capacity, against all expenses actually and reasonably incurred by
the Indemnitee in connection with the investigation, defense, settlement and/or
appeal of such proceeding, unless it is determined that the Indemnitee did not
act in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification
under this subsection shall be made in respect of any claim, issue or matter as
to which the Indemnitee shall have been finally adjudged to be liable to the
Company by a court of competent jurisdiction, unless and only to the extent that
any court in which such proceeding was brought or another court of competent
jurisdiction shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of
6
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper.
5. Indemnification of Expenses of Successful Party.
Notwithstanding any other provisions of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, the Company shall indemnify the
Indemnitee against all expenses actually and reasonably incurred in connection
with the investigation, defense or appeal of such proceeding.
6. Partial Indemnification. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for some
or a portion of any expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines or penalties), but is not entitled,
however, to indemnification for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled.
7. Advancement of Expenses. Except as otherwise provided
herein, the Company shall advance all expenses incurred by the Indemnitee in
connection with the investigation, defense, settlement and/or appeal of any
proceeding to which the Indemnitee is a party or is threatened to be made a
party by reason of the fact that the Indemnitee is or was an agent of the
Company. Indemnitee hereby undertakes to repay such amounts advanced only if,
and to the extent that, it shall ultimately be finally determined that the
Indemnitee is not entitled to be indemnified by the Company as authorized by
this Agreement or otherwise. The advances to be made hereunder shall be paid by
the Company to or on behalf of the Indemnitee promptly and in any event within
thirty (30) days following delivery of a written request therefor by the
Indemnitee to the Company.
7
8. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of
notice of the commencement of or the threat of commencement of any proceeding,
the Indemnitee shall, if the Indemnitee believes that indemnification with
respect thereto may be sought from the Company under this Agreement, notify the
Company of the commencement or threat of commencement thereof, provided that the
failure to provide such notification shall not diminish Indemnitee's
indemnification hereunder, except to the extent that the Company can demonstrate
that it was actually prejudiced as a result thereof.
(b) Any indemnification requested by the Indemnitee
under Section 3 and/or 4 hereof shall be made no later than forty-five (45) days
after receipt of the written request of Indemnitee unless a determination is
made within said forty-five (45) day period (i) by the Board of Directors of the
Company by a majority vote of a quorum thereof consisting of directors who are
not parties to such proceedings, or (ii) in the event such quorum is not
obtainable, at the election of the Company, either by independent legal counsel
in a written opinion or by a panel of arbitrators, one of whom is selected by
the Company, another of whom is selected by the Indemnitee and the last of whom
is selected by the first two arbitrators so selected, that the Indemnitee has or
has not met the relevant standard for indemnification set forth in Section 3 and
4 hereof.
(c) Notwithstanding a determination under Section
8(b) above that the Indemnitee is not entitled to indemnification with respect
to any specific proceeding, the Indemnitee shall have the right to apply to any
court of competent jurisdiction for the purpose of enforcing the Indemnitee's
right to indemnification pursuant to this Agreement. The burden of proving that
the indemnification or advances are not appropriate shall be on the Company.
8
Neither the failure of the Company (including its Board of Directors or
independent legal counsel or the panel of arbitrators) to have made a
determination prior to the commencement of such action that indemnification or
advances are proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company
(including its Board of Directors or independent legal counsel or the panel or
arbitrators) that the Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create any presumption that the
Indemnitee has or has not met the applicable standard of conduct.
(d) The Company shall indemnify the Indemnitee
against all expenses incurred in connection with any hearing or proceeding under
this Section 8 so long as such claims and/or defenses of the Indemnitee were
made or asserted in good faith.
9. Assumption of Defense. In the event the Company shall be
obligated to pay the expenses of any proceeding against or involving the
Indemnitee, the Company, if appropriate, shall be entitled to assume the defense
of such proceeding, with counsel reasonably acceptable to the Indemnitee, upon
the delivery to the Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
the Indemnitee with respect to the same proceeding, provided that: (i) the
Indemnitee shall have the right to employ his or her counsel in such proceeding
at the Indemnitee's expense; and (ii) if (a) the employment of counsel by the
Indemnitee is subsequently authorized in writing by the Company, (b) the Company
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of such defense, or (c) the
Company shall not, in
9
fact, have employed counsel to assume the defense of such proceeding, the
reasonable fees and expenses of the Indemnitee's counsel shall be at the expense
of the Company.
10. Insurance. The Company may, but is not obligated to,
obtain directors' and officers' liability insurance ("D&O Insurance") with
respect to which the Indemnitee is named as an insured. Notwithstanding any
other provision of the Agreement, the Company shall not be obligated to
indemnify the Indemnitee for expenses, judgments, settlements, fines or
penalties, which have been paid directly to or on behalf of the Indemnitee by
D&O Insurance. If the Company has D&O Insurance in effect at the time the
Company receives from the Indemnitee any notice of the commencement of a
proceeding, the Company shall give notice of the commencement of such proceeding
to the insurer in accordance with the procedures set forth in the policy. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, to or on behalf of the Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of such policy.
11. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or
advance expenses to the Indemnitee with respect to proceedings or claims
initiated or brought voluntarily by the Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as
required under Section 145, but such indemnification or advancement of expenses
may be provided by the Company in specific cases if the Board of Directors finds
it to be appropriate; or
(b) Action for Indemnification. To indemnify the
Indemnitee for any expenses incurred by the Indemnitee with respect to any
proceeding instituted by the Indemnitee
10
to enforce or interpret this Agreement if the material assertions made by the
Indemnitee in such proceeding were not made in good faith or were frivolous; or
(c) Unauthorized Settlements. To indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of a
proceeding effected without the Company's written consent, provided such consent
shall not unreasonably withheld; or
(d) Non-compete and Non-disclosure. To indemnify the
Indemnitee in connection with proceedings or claims involving the enforcement of
non-compete and/or non-disclosure agreements or the non-compete and/or
non-disclosure provisions of employment, consulting or similar agreements the
Indemnitee may be a party to with the Company, any subsidiary of the Company or
any other applicable foreign or domestic corporation, partnership, limited
liability company, joint venture, trust or other enterprise, if any; or
(e) Certain Matters. To indemnify the Indemnitee on
account of any proceeding with respect to (i) remuneration paid to Indemnitee if
it is determined by final judgment or other final adjudication that such
remuneration was in violation of law, (ii) which final judgment is rendered
against the Indemnitee for an accounting of profits made by the purchase or sale
by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any federal, state or local statute, (iii) which it is determined by final
judgment or other final adjudication that the Indemnitee's conduct was knowingly
fraudulent or intentionally dishonest, or (iv) which it is determined by final
judgment or other final adjudication by a court having jurisdiction in the
matter that such indemnification is not lawful; or
(f) Amounts Otherwise Covered. To indemnify the
Indemnitee under this Agreement for any amounts indemnified by the Company other
than pursuant to this
11
Agreement or amounts paid to or for the benefit of Indemnitee by D&O Insurance
pursuant to Section 10 hereof.
12. Nonexclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of, but shall be in addition to and shall not be deemed to diminish or
otherwise restrict, any other rights which the Indemnitee may have under any
provision of law, the Company's Certificate of Incorporation or Bylaws, in any
court in which a proceeding is brought, the vote of the Company's stockholders
or disinterested directors, other agreements or otherwise, both as to action in
his or her official capacity and to action in another capacity while occupying
his or her position as an agent of the Company. To the extent applicable law or
the Company's Certificate of Incorporation or Bylaws permit greater
indemnification than as provided for in this Agreement, the parties hereto agree
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such law or provision of Certificate of Incorporation or Bylaws, and this
Agreement shall be deemed amended without any further action by the Company or
Indemnitee to grant such greater benefits.
13. Settlement. The Company shall not settle any proceeding
without the Indemnitee's written consent. Neither the Company nor Indemnitee
will unreasonably withhold consent to any proposed settlement.
14. Subrogation. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all papers required and
shall do everything that may reasonably be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights. The Company shall pay or
reimburse all reasonable expenses incurred by Indemnitee in connection with such
subrogation.
12
15. Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
16. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, (i) the validity, legality and enforceability of the remaining
provisions of the Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (ii) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby, and (iii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraph of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable and to give effect to Section 12 and Section
15 hereof.
17. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions to this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
13
18. Continuance of Rights; Successor and Assigns. The
Indemnitee's rights hereunder shall continue after the Indemnitee has ceased
acting as an agent of the Company. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successor and assigns of the parties hereto.
19. Notice. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party addressee, (ii) if
mailed by certified or registered mail with postage prepaid, on the third
business day after the mailing date, or (iii) if transmitted electronically by a
means by which receipt thereof can be demonstrated. Addresses for notice to
either party are set out on the signature page hereof and may be subsequently
modified by written notice.
20. Supersedes Prior Agreement. This Agreement supersedes any
prior indemnification agreement between Indemnitee and the Company or its
predecessors.
21. Service of Process and Venue. For purposes of any claims
or proceeding to enforce this agreement, the Company consents to the
jurisdiction and venue of any federal or state court of competent jurisdiction
in the states of Delaware and Missouri, and waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.
22. Governing Law. This Agreement shall be governed
exclusively by and construed according to the laws of the State of Delaware, as
applied to contracts between Delaware residents entered into and to be performed
entirely within Delaware. If a court of competent jurisdiction shall make a
final determination that the provisions of the law of any state other than
Delaware govern indemnification by the Company of its officers and directors,
then the indemnification provided under this Agreement shall in all instances be
enforceable to the
14
fullest extent permitted under such law, notwithstanding any provision of this
Agreement to the contrary.
The parties hereto have entered into this Indemnification
Agreement effective as of the date first above written.
BUILD-A-BEAR WORKSHOP, INC.
By
-------------------------------------
Name:
Title:
Address: 1954 Innerbelt Business Center Drive
St. Louis, Missouri 63114
Indemnitee:
By
-------------------------------------
Name:
Address:
15