INDEMNIFICATION AGREEMENT
INDEMNIFICATION
AGREEMENT , made and
executed this 20th day of December, 2005 (this "Agreement"), by and
between FOX & HOUND RESTAURANT GROUP, a Delaware corporation
(the "Company"), and [________], an individual resident of the
State of [Kansas] (the "Indemnitee").
WHEREAS
, the Company is aware that, in
order to induce highly competent persons to serve the Company as
directors or officers or in other capacities, the Company must
provide such persons with adequate protection through insurance and
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the Company;
WHEREAS
, the Company recognizes that the
increasing difficulty in obtaining directors' and officers'
liability insurance, the increases in the cost of such insurance
and the general reductions in the coverage of such insurance have
increased the difficulty of attracting and retaining such
persons;
WHEREAS
, the Board of Directors of the
Company has determined that it is essential to the best interests
of the Company's stockholders that the Company act to assure such
persons that there will be increased certainty of such protection
in the future;
WHEREAS
, it is reasonable, prudent and
necessary for the Company contractually to obligate itself to
indemnify such persons to the fullest extent permitted by
applicable law so that they will continue to serve the Company free
from undue concern that they will not be so indemnified;
and
WHEREAS
, the Indemnitee is willing to
serve, continue to serve, and take on additional service for or on
behalf of the Company on the condition that he/she be so
indemnified.
NOW, THEREFORE
, in consideration of the premises
and the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Indemnitee do
hereby agree as follows:
1. Service by the
Indemnitee. The
Indemnitee agrees to serve and/or continue to serve as a director
or officer of the Company faithfully and will discharge his/her
duties and responsibilities to the best of his/her ability so long
as the Indemnitee is duly elected or qualified in accordance with
the provisions of the certificate of incorporation of the Company,
as amended (the "Certificate"), the by-laws of the Company, as
amended (the "By-laws") and the General Corporation Law of the
State of Delaware, as amended (the "DGCL"), or until his/her
earlier death, resignation or removal. The Indemnitee may at any
time and for any reason resign from such position (subject to any
other contractual obligation or other obligation imposed by
operation by law), in which event the Company shall have no
obligation under this Agreement to continue the Indemnitee in any
such position. Nothing in this Agreement shall confer upon the
Indemnitee the right to continue in the employ of the Company or as
a director of the Company or affect the right of the Company to
terminate the Indemnitee's employment at any time in the sole
discretion of the Company, with or without cause, subject to any
contract rights of the Indemnitee created or existing otherwise
than under this Agreement.
2. Indemnification.
The Company shall indemnify the
Indemnitee against all Expenses (as defined below), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by the Indemnitee as provided in this Agreement to the
fullest extent permitted by the Certificate, By-laws and DGCL or
other applicable law in effect on the date of this Agreement and to
any greater extent that applicable law may in the future from time
to time permit. Without diminishing the scope of the
indemnification provided by this Section 2, the rights of
indemnification of the Indemnitee provided hereunder shall include,
but shall not be limited to, those rights hereinafter set forth,
except that no indemnification shall be paid to the
Indemnitee:
(a) on account of any suit in
which judgment is rendered against the Indemnitee for disgorgement
of profits made from the purchase or sale by the Indemnitee of
securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended (the
"Act"), or similar provisions of any federal, state or local
statutory law;
(b) on account of conduct of the
Indemnitee which is finally adjudged by a court of competent
jurisdiction to have been knowingly fraudulent or to constitute
willful misconduct;
(c) in any circumstance where
such indemnification is expressly prohibited by applicable
law;
(d) with respect to liability for
which payment is actually made to the Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, By-law or agreement (other than this Agreement),
except in respect of any liability in excess of payment under such
insurance, clause, By-law or agreement;
(e) if a final decision by a
court having jurisdiction in the matter shall determine that such
indemnification is not lawful (and, in this respect, both the
Company and the Indemnitee have been advised that it is the
position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore,
unenforceable, and that claims for indemnification should be
submitted to the appropriate court for adjudication); or
(f) in connection with any
proceeding by the Indemnitee against the Company or its directors,
officers, employees or other Indemnitees, (i) unless such
indemnification is expressly required to be made by law, (ii)
unless the proceeding was authorized by the Board of Directors of
the Company, (iii) unless such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in
the Company under applicable law, or (iv) except as provided in
Sections 11 and 13 hereof.
3. Actions or Proceedings
Other Than an Action by or in the Right of the Company.
The Indemnitee shall be entitled to
the indemnification rights provided in this Section 3 if the
Indemnitee was or is a party or is threatened to be a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature,
other than an action by or in the right of the Company, by reason
of the fact that the Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee,
agent or fiduciary of any other entity, including, but not limited
to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or
by reason of any act or omission by him/her in such capacity.
Pursuant to this Section 3, the Indemnitee shall be indemnified
against all Expenses, judgments, penalties (including excise and
similar taxes), fines and amounts paid in settlement which were
actually and reasonably incurred by the Indemnitee in connection
with such action, suit or proceeding (including, but not limited
to, the investigation, defense or appeal thereof), if the
Indemnitee acted in good faith and in a manner the Indemnitee
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/her conduct was
unlawful.
4. Actions by or in the Right
of the Company. The
Indemnitee shall be entitled to the indemnification rights provided
in this Section 4 if the Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding brought by or in the right of
the Company to procure a judgment in its favor by reason of the
fact that the Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary of another entity, including, but not limited to, another
corporation, partnership, limited liability company, employee
benefit plan, joint venture, trust or other enterprise, or by
reason of any act or omission by him/her in any such capacity.
Pursuant to this Section 4, the Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by him/her in
connection with the defense or settlement of such action, suit or
proceeding (including, but not limited to the investigation,
defense or appeal thereof), if the Indemnitee acted in good faith
and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided however,
that no such indemnification shall be made in respect of any claim,
issue, or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company, unless and only to the extent
that the Court of Chancery of the State of Delaware or the court in
which such action, suit or proceeding was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Indemnitee is fairly
and reasonably entitled to be indemnified against such Expenses
actually and reasonably incurred by him/her which such court shall
deem proper.
5. Good Faith
Definition. For purposes
of this Agreement, the Indemnitee shall be deemed to have acted in
good faith and in a manner the Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, or, with
respect to any criminal action or proceeding to have had no
reasonable cause to believe the Indemnitee's conduct was unlawful,
if such action was based on (i) the records or books of the account
of the Company or other enterprise, including financial statements;
(ii) information supplied to the Indemnitee by the officers of the
Company or other enterprise in the course of their duties; (iii)
the advice of legal counsel for the Company or other enterprise; or
(iv) information or records given in reports made to the Company or
other enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by
the Company or other enterprise.
6. Indemnification for
Expenses of Successful Party. Notwithstanding the other provisions of this
Agreement, to the extent that the Indemnitee has served on behalf
of the Company as a witness or other participant in any class
action or proceeding, or has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred to
in Section 3 and 4 hereof, or in defense of any claim, issue or
matter therein, including, but not limited to, the dismissal of any
action without prejudice, the Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not
the Indemnitee has met the applicable standards of Section 3 or 4
and without any determination pursuant to Section 8.
7. Partial
Indemnification. If the
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the
Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by the Indemnitee in connection with the
investigation, defense, appeal or settlement of such suit, action,
investigation or proceeding described in Section 3 or 4 hereof, but
is not entitled to indemnification for the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the
portion of such Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by the
Indemnitee to which the Indemnitee is entitled.
8. Procedure for Determination
of Entitlement to Indemnification. (a) To obtain indemnification under this
Agreement, Indemnitee shall submit to the Company a written
request, including documentation and information which is
reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon
receipt of a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
Any Expenses incurred by the Indemnitee in connection with the
Indemnitee's request for indemnification hereunder shall be borne
by the Company. The Company hereby indemnifies and agrees to hold
the Indemnitee harmless for any Expenses incurred by Indemnitee
under the immediately preceding sentence irrespective of the
outcome of the determination of the Indemnitee's entitlement to
indemnification.
(b) Upon written request by the
Indemnitee for indemnification pursuant to Section 3 or 4 hereof,
the entitlement of the Indemnitee to indemnification pursuant to
the terms of this Agreement shall be determined by the following
person or persons, who shall be empowered to make such
determination: (i) if a Change in Control (as hereinafter defined)
shall have occurred, by Independent Counsel (as hereinafter
defined) (unless the Indemnitee shall request in writing that such
determination be made by the Board of Directors (or a committee
thereof) in the manner provided for in clause (ii) of this Section
8(b)) in a written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee; or (ii) if a Change in
Control shall not have occurred, (A)(1) by the Board of Directors
of the Company, by a majority vote of Disinterested Directors (as
hereinafter defined) even though less than a quorum, or (2) by a
committee of Disinterested Directors designated by majority vote of
Disinterested Directors, even though less than a quorum, or (B) if
there are no such Disinterested Directors or, even if there are
such Disinterested Directors, if the Board of Directors, by the
majority vote of Disinterested Directors, so directs, by
Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to the Indemnitee. Such
Independent Counsel shall be selected by the Board of Directors and
approved by the Indemnitee. Upon failure of the Board of Directors
to so select, or upon failure of the Indemnitee to so approve, such
Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall
designate to make such selection. Such determination of entitlement
to indemnification shall be made not later than 45 days after
receipt by the Company of a written request for indemnification. If
the person making such determination shall determine that the
Indemnitee is entitled to indemnification as to part (but not all)
of the application for indemnification, such person shall
reasonably prorate such part of indemnification among such claims,
issues or matters. If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made
within 10 days after such determination.
9. Presumptions and Effect of
Certain Proceedings. (a)
In making a determination with respect to entitlement to
indemnification
