EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is
entered into effective September 16, 2008 (the "Effective Date") by
and between
Buffalo Wild Wings, Inc., a Minnesota corporation (the "Company"),
and Judith A.
Shoulak, a resident of Minnesota ("Executive").
BACKGROUND
A. Executive is currently employed by the Company as its Senior
Vice
President, Operations. The Company desires to continue to employ
Executive under
the terms and conditions set forth in this Agreement.
B. The Company and Executive are parties to an Employment
Agreement
dated February 24, 2002 (the "Prior Agreement"), which the parties
desire to
amend and restate in its entirety as set forth in this Agreement.
The Company
and Executive are also parties to Restricted Stock Unit Agreements
dated
December 26, 2005 and January 1, 2007 (the "RSU Agreements").
C. In October 2004, the American Jobs Creation Act of 2004 (the
"Act")
was enacted, Section 885 of which Act added new provisions to the
Internal
Revenue Code pertaining to deferred compensation. The Treasury
Department has
issued final regulations and guidances regarding the deferred
compensation
provisions of the Act, which permit service providers and service
recipients a
transition period to modify existing deferred compensation
arrangements to bring
them into compliance with the Act.
D. The parties agree that it is in their mutual best interests
to
modify, amend and clarify the terms and conditions of the Prior
Agreement, as
set forth in this Agreement, with the full intention of complying
with the Act
so as to avoid the additional taxes and penalties imposed under the
Act.
E. Executive is a key member of the management of the Company and
is
expected to devote substantial skill and effort to the affairs of
the Company,
and the Company desires to recognize the significant personal
contribution that
Executive makes and is expected to continue to make to further the
best
interests of the Company and its shareholders.
F. It is desirable and in the best interests of the Company and
its
shareholders to continue to obtain the benefits of Executive's
services and
attention to the affairs of the Company. It is desirable and in the
best
interests of the Company and its shareholders to provide inducement
for
Executive (1) to remain in the service of the Company in the event
of any
proposed or anticipated change in control of the Company and (2) to
remain in
the service of the Company in order to facilitate an orderly
transition in the
event of a change in control of the Company.
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G. It is desirable and in the best interests of the Company and
its
shareholders that Executive be in a position to make judgments and
advise the
Company with respect to proposed changes in control of the Company
without
regard to the possibility that Executive's employment may be
terminated without
compensation in the event of certain changes in control of the
Company.
H. In Executive's position, Executive will have access to
confidential,
proprietary and trade secret information of the Company. It is
desirable and in
the best interests of the Company and its shareholders to protect
confidential,
proprietary and trade secret information of the Company, to prevent
unfair
competition by former executives of the Company following
separation of their
employment with the Company and to secure cooperation from former
executives
with respect to matters related to their employment with the
Company.
AGREEMENT
In consideration of the foregoing premises and the respective
agreements of the Company and Executive set forth below, the
Company and
Executive, intending to be legally bound, agree as follows:
1. TERM. The term of Executive's employment under this
Agreement shall commence on the Effective Date and shall continue
in effect
until the last day of the Company's fiscal year 2009, unless
earlier terminated
in accordance with Section 9 of this Agreement. Thereafter, unless
earlier
terminated in accordance with Section 9 hereof, the term of
Executive's
employment with the Company shall be automatically extended for
successive
one-year periods, each ending on the last day of the Company's
fiscal year,
unless either party gives written notice to the other party at
least four (4)
months prior to the expiration of such term that such party elects
not to extend
the term of this Agreement. The term of Executive's employment,
beginning on the
Effective Date of this Agreement, together with any automatic
extensions
thereof, shall collectively be the "Term."
2. POSITION AND DUTIES. During Executive's employment under
this Agreement, Executive will have the following position, duties
and
responsibilities:
(a) Position with the Company. Executive will serve as
Senior Vice President, Operations of the Company, or in such other
executive
position of a similar nature, and will perform such duties and
responsibilities
as the Chief Executive Officer and President of the Company (the
"CEO") may
assign Executive from time to time.
(b) Performance of Duties and Responsibilities. Executive
will serve the Company faithfully and to the best of Executive's
ability and
will devote Executive's full working time, attention, and efforts
to the
business of the Company. Executive will report to the CEO or CEO's
designee.
Executive will follow and comply with applicable policies and
procedures adopted
by the Company from time to time, including without limitation
policies relating
to business ethics, conflict of interest, non-discrimination,
confidentiality
and protection of trade secrets, and insider trading. Executive
will not engage
in other employment or other material business activity, except as
approved in
writing by the CEO. Executive hereby represents and confirms that
Executive is
under no contractual or legal commitments that would prevent
Executive from
fulfilling Executive's duties and responsibilities as set forth in
this
Agreement.
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3. COMPENSATION. During Executive's employment under this
Agreement, Executive will be provided with the following
compensation and
benefits:
(a) Base Salary. The Company will pay to Executive for
services provided hereunder a base salary paid in accordance with
the Company's
normal payroll policies and procedures. The Board of Directors of
the Company
(or any authorized committees of the Board, together hereafter the
"Board") will
review Executive's performance on an annual basis and determine any
adjustments
to Executive's base salary in its sole discretion; provided,
however, that any
reduction shall be permitted only if the Company then reduces the
base
compensation of all its executive officers generally and shall not
exceed the
average percentage reduction for all such executive officers.
(b) Incentive Compensation. Executive will be eligible to
participate in such programs under the Buffalo Wild Wings, Inc.
Cash Incentive
Plan as determined by the Board and in accordance with the terms,
as may be
amended and in effect from time to time (the "CIP").
(c) Equity. Executive will be eligible to participate in
such programs under the Buffalo Wild Wings, Inc. 2003 Equity
Incentive Plan as
determined by the Board and in accordance with the terms of such
plan as may be
in effect from time to time.
(d) Employee Benefits. Executive will be entitled to
participate in all employee benefit plans and programs generally
available to
executive employees of the Company, to the extent that Executive
meets the
eligibility requirements for each individual plan or program.
Executive's
participation in any plan or program will be subject to the
provisions, rules,
and regulations of, or applicable to, the plan or program. The
Company provides
no assurance as to the adoption or continuation of any particular
employee
benefit plan or program.
(e) Expenses. The Company will reimburse Executive for all
reasonable and necessary out-of-pocket business, travel, and
entertainment
expenses incurred by Executive in the performance of Executive's
duties and
responsibilities to the Company during the Term. Such reimbursement
shall be
subject to the Company's normal policies and procedures for
expense
verification, documentation, and reimbursement; provided, however,
that
Executive shall submit verification of expenses within 30 days
after the date
the expense was incurred, and the Company shall reimburse Executive
for such
expenses eligible for reimbursement within 30 days thereafter.
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4. AMENDMENT OF RSU AGREEMENTS. Simultaneous with the
execution of this Agreement, Executive and the Company will execute
amendments
to the RSU Agreements, in the form attached to this Agreement as
Exhibit A.
5. CONFIDENTIAL INFORMATION. Except as authorized in writing
by the Board or as necessary in carrying out Executive's
responsibilities for
the Company, Executive will not at any time divulge, furnish, or
make accessible
to anyone or use in any way, any confidential, proprietary, or
secret knowledge
or information of the Company that Executive has acquired or will
acquire about
the Company, whether developed by himself or by others, concerning
(i) any trade
secrets, (ii) any confidential, proprietary, or secret recipes,
designs,
inventions, discoveries, programs, processes, formulae, plans,
devices, or
material (whether or not patented or patentable) directly or
indirectly useful
in any aspect of the business of the Company, (iii) any customer or
supplier
lists, (iv) any confidential, proprietary, or secret development or
research
work, (v) any strategic or other business, marketing, or sales
plans, systems or
techniques, (vi) any financial data or plans, or (vii) any other
confidential or
proprietary information or secret aspects of the business of the
Company.
Executive acknowledges that the above-described knowledge and
information
constitute a unique and valuable asset of the Company and represent
a
substantial investment of time and expense by the Company, and that
any
disclosure or other use of such knowledge or information other than
for the sole
benefit of the Company would be wrongful and would cause
irreparable harm to the
Company. Executive will refrain from intentionally committing any
acts that
would materially reduce, and shall take reasonable steps to
protect, the value
of such knowledge and information to the Company. The foregoing
obligations of
confidentiality shall not apply to any knowledge or information
that (i) at the
time of Executive's use or disclosure is generally publicly known,
other than as
a direct or indirect result of the breach by Executive of this
Agreement, (ii)
is independently made available to Executive in good faith by a
third party who
has not violated a confidential relationship with the Company, or
(iii) is
required to be disclosed by law or legal process. Executive
understands and
agrees that Executive's obligations under this Agreement to
maintain the
confidentiality of the Company's confidential information are in
addition to any
obligations of Executive under applicable statutory or common
law.
6. VENTURES. If, during Executive's employment with the
Company, Executive participates in the planning or implementing of
any project,
program, or venture involving the Company, all rights in such
project, program,
or venture belong to the Company. Except as approved in writing by
the Board,
Executive will not be entitled to any interest in any such project,
program, or
venture or to any commission, finder's fee, or other compensation
in connection
therewith. Executive will have no interest, direct or indirect, in
any customer
or supplier that conducts business with the Company. Ownership by
Executive, as
a passive investment, of less than one percent of the outstanding
shares of
capital stock of any corporation listed on a national securities
exchange or
publicly traded in the over-the-counter market shall not constitute
a breach of
this Section 6.
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7. INTELLECTUAL PROPERTY.
(a) Disclosure and Assignment. As of the Effective Date,
Executive hereby transfers and assigns to the Company (or its
designee) all
right, title, and interest of Executive in and to every idea,
concept,
invention, and improvement (whether patented, patentable or not)
conceived or
reduced to practice by Executive whether solely or in collaboration
with others
while Executive is employed by the Company, and all copyrighted or
copyrightable
matter created by Executive whether solely or in collaboration with
others while
Executive is employed by the Company, in each case, that relates to
the
Company's business (collectively, "Creations"). Executive shall
communicate
promptly and disclose to the Company, in such form as the Company
may request,
all information, details, and data pertaining to each Creation.
Every
copyrightable Creation, regardless of whether copyright protection
is sought or
preserved by the Company, shall be a "work made for hire" as
defined in 17
U.S.C. ss. 101, and the Company shall own all rights in and to such
matter
throughout the world, without the payment of any royalty or other
consideration
to Executive or anyone claiming through Executive.
(b) Trademarks. All right, title, and interest in and to
any and all trademarks, trade names, service marks, and logos
adopted, used, or
considered for use by the Company during Executive's employment
(whether or not
developed by Executive) to identify the Company's business or other
goods or
services (collectively, the "Marks"), together with the goodwill
appurtenant
thereto, and all other materials, ideas, or other property
conceived, created,
developed, adopted, or improved by Executive solely or jointly
during
Executive's employment by the Company and relating to its business
shall be
owned exclusively by the Company. Executive shall not have, and
will not claim
to have, any right, title, or interest of any kind in or to the
Marks or such
other property.
(c) Documentation. Executive shall execute and deliver to
the Company such formal transfers and assignments and such other
documents as
the Company may request to permit the Company (or its designee) to
file and
prosecute such registration applications and other documents it
deems useful to
protect or enforce its rights hereunder. Any patentable invention
relating to
the Company's business and disclosed by Executive prior to the
first anniversary
of the effective date of Executive's termination of employment
shall be deemed
to be governed by the terms of this Section 7 unless proven by
Executive to have
been first conceived and made after such termination date.
(d) Non-Applicability. Executive is hereby notified that
this Section 7 does not apply to any invention for which no
equipment, supplies,
facility, confidential information, or other trade secret
information of the
Company was used and which was developed entirely on Executive's
own time,
unless (1) the invention relates (a) directly to the business of
the Company or
(b) to the Company's actual or demonstrably anticipated research or
development,
or (2) the invention results from any work performed by Executive
for the
Company.
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8. NONCOMPETITION AND NONSOLICITATION COVENANTS.
(a) Agreement Not to Compete. During Executive's employment
with the Company and for a period of twelve (12) consecutive months
from and
after the termination of Executive's employment, whether such
termination is
with or without Cause, is at the instance of Executive or the
Company or occurs
before or after expiration of the Term, Executive will not,
directly or
indirectly, in any manner or capacity, including without limitation
as a
proprietor, principal, agent, partner, officer, director, investor,
stockholder,
employee, member of any association, consultant, or otherwise,
engage or
participate in any Competitive Business. "Competitive Business"
means any
person, entity or business operation (other than the Company) that
operates,
manages or franchises, in the United States (i) a sports-themed
restaurant that
operates, manages or franchises two or more restaurants, markets
the public
viewing of sports and has alcohol sales of 20% or more, (ii) a
restaurant that
operates, manages or franchises two or more restaurants and
features chicken
wings that account for 10% or more of food sales, or (iii) any
other business
concept being operated by or under consideration by the Company as
of the date
of the Executive's employment termination. Ownership by Executive,
as a passive
investment, of less than one percent of the outstanding shares of
capital stock
of any corporation listed on a national securities exch
