Exhibit 99.1
BUILD-A-BEAR WORKSHOP,
INC.
SECOND AMENDED AND
RESTATED
2004 STOCK INCENTIVE
PLAN
as amended and restated effective
March 17, 2009
BUILD-A-BEAR WORKSHOP, INC.
2004 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
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Page
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1.
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Purpose of the
Plan
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1
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2.
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Definitions
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1
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A.
“Act”
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1
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B.
“Award”
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1
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C. “Award
Agreement”
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1
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D.
“Board”
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1
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E.
“Cash-Based Award”
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1
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F.
“Change in Control”
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1
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G.
“Code”
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1
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H.
“Committee”
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I.
“Company”
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J.
“Employer”
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1
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K. “Fair
Market Value”
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2
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L.
“Incentive Stock Option”
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2
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M.
“Non-qualified Stock Option”
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2
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N.
“Officer”
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2
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O.
“Option”
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2
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P. “Other
Stock-Based Award”
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2
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Q.
“Parent”
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2
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R.
“Participant”
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2
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S.
“Performance Based Award”
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2
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T.
“Plan”
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2
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U.
“Public Offering”
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2
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V.
“Statutory Option Stock”
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2
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W.
“Stock”
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2
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X. “Stock
Appreciation Right”
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2
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Y.
“Subsidiary”
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2
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Z.
“Trading Date”
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2
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3.
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Stock Subject
to the Plan
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2
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4.
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Administration
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3
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5.
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Committee
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3
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6.
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Options
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3
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A. Type of
Option
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3
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B. Option
Prices
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3
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C. Exercise -
Elections and Restrictions
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3
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D. Option
Terms
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4
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E. Successive
Option Grants
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4
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F. Additional
Incentive Stock Option Requirements
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4
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G. Deferral of
Gain on a Non-qualified Stock Option
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5
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7.
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Stock
Appreciation Rights
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5
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A. Grant
Terms
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5
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B. Exercise
Terms
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5
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C.
Limitations
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5
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8.
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Other
Stock-Based Awards and Cash-Based Awards
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5
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9.
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Performance-Based Awards
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6
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i
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10.
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Nontransferability of Awards
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11.
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Investment
Purpose
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6
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A. Right of
First Refusal
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6
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B. Take-Along
Rights
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7
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C. Effect of
Prohibited Transfer
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7
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D. Buy-Back
Rights
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7
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E. Exceptions
to Transfer Restrictions
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7
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F. Termination
of Transfer Restrictions
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7
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12.
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Adjustments
Upon Changes in Capitalization or Corporation
Acquisitions
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7
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13.
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Amendment and
Termination
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8
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14.
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Effectiveness
of the Plan
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8
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15.
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Time of
Granting of an Award
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8
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16.
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Term of
Plan
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8
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17.
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Severability
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8
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18.
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Non-Waiver of
Rights
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9
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19.
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Assignment
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9
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20.
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No Right To
Continued Employment or Other Status
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9
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21.
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Choice of
Law
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9
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22.
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Awards to
Employees of Non-United States Subsidiaries
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9
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23.
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Section
409A.
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9
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ii
BUILD-A-BEAR WORKSHOP, INC.
2004 STOCK INCENTIVE PLAN
WHEREAS, the Company previously
adopted the Build-A-Bear Workshop, Inc. 2004 Stock Incentive Plan
and subsequently amended and restated the Plan, effective
July 26, 2006 (the “Plan”); and
WHEREAS, in accordance with
Section 13 of the Plan, the Board of Directors of the Company,
or any duly appointed Committee thereof (the “Board”),
may at any time make such amendments or modifications to the Plan
as it shall deem advisable; provided, however, that if and solely
if such approval is required by applicable law, then to the extent
such approval is so required, such amendment or modification shall
be made subject to approval by the holders of Stock; and
WHEREAS, the Board deems it
advisable to amend the Plan in certain respects and to completely
restate the Plan effective March 17, 2009;
NOW, THEREFORE, the Plan is hereby
amended and restated as follows:
1. Purpose of the
Plan.
The purpose of the Plan is to provide the
Company with a means to assist in recruiting, retaining and
rewarding certain employees, directors and consultants and to
motivate such individuals to exert their best efforts on behalf of
the Employer by providing incentives through the granting of
Awards. By granting Awards to such individuals, the Company expects
that the interests of the recipients will be better aligned with
those of the Employer.
2. Definitions.
Unless the context clearly indicates otherwise,
the following capitalized terms shall have the meanings set forth
below:
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A.
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“Act” means the Securities Exchange
Act of 1934, as amended, or any successor thereto.
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B.
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“Award” means a grant under the Plan
of an Option, Stock Appreciation Right, Cash-Based Award or Other
Stock-Based Award.
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C.
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“Award
Agreement” means an agreement entered into between the
Employer and a Participant, or a certificate issued by the Employer
as determined by the Committee, as such agreement or certificate
may be amended from time to time, setting forth the terms and
provisions applicable to Awards granted under the Plan.
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D.
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“Board” means the Board of Directors
of the Company or any duly appointed Committee thereof.
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E.
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“Cash-Based Award” means an Award
described in Section 8 as a Cash-Based Award.
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F.
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“Change
in Control” means (i) 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
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 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 (ii) individuals who, as of the date hereof,
constitute 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 stockholders, 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 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 Act) shall be, for purposes of this
Section, considered as though such person were a member of the
Incumbent Board; (iii) a reorganization, merger or
consolidation involving the Company, 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 (iv) a liquidation or dissolution of the
Company, or the sale of all or substantially all of the assets of
the Company.
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G.
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“Code” means the Internal Revenue
Code of 1986, as amended, or any successor thereto.
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H.
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“Committee” means the committee
described in Section 5 or, in the absence of any such
Committee, the Board.
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I.
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“Company” means Build-A-Bear
Workshop, Inc., a Delaware corporation.
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J.
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“Employer” means the Company and any
other entity directly or indirectly controlling, controlled by, or
under common control with, the Company or any other entity
designated by the Board in which the Company has an
interest.
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K.
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“Fair
Market Value” means (i) if the Stock is listed on any
established stock exchange its Fair Market Value shall be the
closing sales price for such stock on such exchange for the Trading
Day applicable to the date of determination, as reported in The
Wall Street Journal or such other source as the Board deems
reliable; or (ii) in the absence of an established market for
the Stock, the Fair Market Value thereof shall be determined in
good faith by the Board.
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For these purposes, the
determination date shall mean for employees receiving an Award in
connection with an initial hire or a promotion within the Company,
the determination date shall mean the Trading Date which is the
first date of hire or promotion. For all other Awards, the
determination date shall mean the Trading Date on which the
Committee (or its delegate) approves the Award.
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L.
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“Incentive Stock Option” means a
stock option which is an incentive stock option within the meaning
of Code Section 422.
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M.
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“Non-qualified Stock Option” means a
stock option which is not an Incentive Stock Option.
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N.
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“Officer” means an officer of the
Company as defined in Rule 16a-1(f) of the Act.
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O.
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“Option” means both an Incentive
Stock Option and a Non-qualified Stock Option.
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P.
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“Other
Stock-Based Award” means an Award granted pursuant to
Section 8 and described as an Other Stock-Based
Award.
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Q.
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“Parent” means any corporation
(other than the Company) in an unbroken chain of corporations
ending with the Company if, at the time of the granting of the
Option, each of the corporations other than the Company owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain, or
such other meaning as may be hereafter ascribed to it in Code
Section 424.
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R.
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“Participant” means an employee,
director or consultant of the Employer who is selected by the
Committee to receive an Award.
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S.
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“Performance Based Award” means an
Award issued pursuant to the terms of Section 9.
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T.
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“Plan” means the Second Amended and
Restated Build-A-Bear Workshop, Inc. 2004 Stock Incentive
Plan.
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U.
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“Public
Offering” means the creation of an active trading market in
common Stock by the sale of common Stock to the public pursuant to
a registration statement under the Securities Act of
1933.
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V.
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“Statutory Option Stock” means any
stock acquired through the exercise of an Incentive Stock Option or
an option granted under an employee stock purchase plan as defined
in Code Section 423.
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W.
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“Stock” means the common stock, par
value of $0.01 per share, of the Company.
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X.
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“Stock
Appreciation Right” means a stock appreciation right
described in Section 7.
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Y.
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“Subsidiary” means any corporation
or other legal entity (other than the Company) in an unbroken chain
of corporations or other legal entities beginning with the Company
if, at the time of granting an Award, each of the corporations or
other legal entities other than the last corporation or other legal
entity in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock or other
equity in one of the other corporations or other legal entities in
such chain, or such other meaning as may be hereafter ascribed to
it in Code Section 424.
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Z.
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“Trading
Date” means a day on which national stock exchanges and the
Nasdaq System are open for trading.
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3. Stock Subject to the
Plan.
The number of shares of Stock allocated to the
Plan and reserved to satisfy Awards under the Plan as of January 3,
2009 (the “Share Reserve”) shall be an aggregate of
Three Million Two Hundred Thirty Thousand (3,230,000) shares of
Stock in addition to shares of Stock subject to awards outstanding
under (i) this Plan; (ii) the Build-A-Bear Workshop, Inc. 2000
Stock Option Plan; and (iii) the Build-A-Bear Workshop, Inc. 2002
Stock Incentive Plan that may lapse, terminate, be forfeited or
otherwise expire. Each share of Stock awarded pursuant to an Option
shall reduce the Share Reserve by one (1) share. Each share of
Stock subject to the exercised portion of a Stock Appreciation
Right (whether the distribution upon exercise is made in cash,
shares, or a combination of the two) shall reduce the Share Reserve
by one (1) share. Each share of Stock awarded pursuant to Other
Stock-Based Awards shall reduce the Share Reserve by 1.27
shares.
The maximum number of shares of
Stock subject to Awards which are Options and Stock Appreciation
Rights which may be granted during a calendar year to a Participant
shall be Three Hundred Thousand (300,000). Notwithstanding the
preceding, in no event shall the number of shares of Stock awarded
to Participants under the Plan, when taken in combination with the
number of outstanding shares of Stock previously issued by the
Company, a Parent or Subsidiary to employees of the Company, a
Parent or Subsidiary, exceed the limit specified in the Company
Charter. The Company may, in its discretion, use shares held in the
treasury or shares acquired on the public market, if applicable, in
lieu of authorized but unissued shares. Any shares of
Stock
2
which are used by a Participant as full or
partial payment to the Company to satisfy a purchase price related
to an Award shall not again be available for the purposes of the
Plan. To the extent any shares subject to an Award are not
delivered to a Participant because such shares are used to satisfy
an applicable tax-withholding obligation, such withheld shares
shall not again be available for the purposes of the
Plan.
4. Administration.
The Plan shall be administered by the Committee.
Subject to the express provisions of the Plan, the Committee shall
have plenary authority, in its discretion, to determine the
individuals to whom, and the time or times at which, Awards shall
be granted and the number of shares, if applicable, to be subject
to each Award. In making such determinations, the Committee may
take into account the nature of services rendered by the respective
individuals, their present and potential contributions to the
Employer’s success and such other factors as the Committee,
in its discretion, shall deem relevant.
Subject to the express provisions of
the Plan, the Committee shall also have plenary discretionary
authority to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to it, to determine the terms and
provisions of the respective Award Agreements (which need not be
identical), to waive or amend any provision hereof in any manner
not adversely affecting the rights granted to the Participant by
the express terms hereof and to make all other determinations
necessary or advisable for the administration of the Plan;
provided, however, that no Award granted hereunder may be repriced
without approval by the stockholders of the Company. The
Committee’s determinations on the matters referred to in this
Section 4 shall be conclusive, subject to the restrictions
noted herein. Notwithstanding anything herein to the contrary,
Chief Executive Bear and Chief Operating Officer Bear are
specifically designated under the Plan to have plenary authority,
in their discretion, as applicable, to also determine individuals,
other than themselves or other Officers, to whom, and the time or
times at which, Awards shall be granted and the number of shares,
if applicable, subject to such Award.
5. Committee.
The Committee shall be comprised of directors
appointed by the Board, which may from time to time appoint members
of the Committee in substitution for members previously appointed
and may fill vacancies, however caused, in the Committee. The Board
shall select one of the Committee members as its Chairman, and
shall hold its meetings at such times and places as it may
determine. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its
members present at any meeting at which there is a quorum. Any
decision or determination reduced to writing and signed by all of
the members shall be fully as effective as if it had been made by a
majority vote at a meeting duly called and held. The Committee may
appoint a secretary, shall keep minutes of its meetings and shall
make such rules and regulations for the conduct of its business as
it shall deem advisable. The Committee may, to the extent permitted
by law, delegate its responsibilities and authority hereunder to an
executive officer of the Company. All decisions by the Committee
shall be made in the Committee’s sole discretion and shall be
final and binding on all persons having or claiming any interest in
the Plan or in any Award. No person acting pursuant to the
authority delegated by the Committee shall be liable for any action
or determination relating to or under the Plan made in good
faith.
6. Options.
The Committee, in its discretion, may grant
Options which are Incentive Stock Options or Non-qualified Stock
Options, as evidenced by the Award Agreement, and shall be subject
to the foregoing and the following terms and conditions and to such
other terms and conditions, not inconsistent therewith, as the
Committee shall determine:
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A.
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Type of
Option. Incentive
Stock Options may be granted to any individual classified by the
Committee as an employee of the Company, a Parent or a Subsidiary.
A Non-Qualified Stock Option may be granted to any individual
selected by the Committee.
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B.
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Option
Prices. The purchase
price of the Stock under each Option shall not be less than 100% of
the Fair Market Value of the Stock at the time of the granting of
the Option; provided that, in the case of a Participant who owns
more than 10% of the total combined voting power of all classes of
stock of the Company, a Parent or a Subsidiary, the purchase price
of the Stock under each Incentive Stock Option shall not be less
than 110% of the Fair Market Value of the Stock on the date such
Option is granted.
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C.
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Exercise—Elections and
Restrictions. Options
may be exercised by delivery to the Company of a written notice of
exercise signed by the proper persons or by any other form of
notice (including electronic notice) approval by the Committee
together with payment in full as described in this
Section 6(c).
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3
The purchase price for an Option is to be paid
in full upon the exercise of the Option, either (i) in cash,
(ii) in the discretion of the Committee, by the tender to the
Company (either actual or by attestation) of shares of Stock
already owned by the Participant for a period of at least six
months as of the date of tender and registered in his or her name,
having a Fair Market Value equal to the cash exercise price of the
Option being exercised, or (iii) in the discretion of the
Committee, by any combin
