Unassociated Document


     

    
      EMPLOYMENT
        AGREEMENT

      


      


      THIS
        EMPLOYMENT AGREEMENT (the
        “Agreement”)
        is
        entered into as of July 8, 2008, between Chanticleer Holdings, Inc., a Delaware
        corporation (the “Company”)
        and
        Neil G. Kiefer (“Executive”).

      


      WHEREAS,
        Wise Acquisition Corp., a Delaware corporation, the Company, Hooters, Inc.,
        a
        Florida corporation (the “HI”),
        and
        certain other entities and selling stockholders have entered into that certain
        Stock Purchase Agreement (the “SPA”),
        dated
        March 7, 2008, pursuant to which the Company will acquire, directly or
        indirectly, all of the outstanding shares of capital stock of HI and certain
        of
        its affiliates; 

      


      WHEREAS,
        Owl Acquisition Holdings Corp., a Delaware corporation, the
        Company, certain related entities that have executed and delivered a
        joinder thereto, and Texas
        Wings Incorporated, a Texas corporation ("TW"), have
        entered into
        that
        certain Asset Purchase Agreement (the “APA”),
        dated
        as of the date hereof, pursuant to which the Company will indirectly
        acquire, certain Hooters restaurants or rights related thereto of TW and
        certain of its affiliates as set forth in the APA; 

      


      WHEREAS,
        it is contemplated that the closing of the transactions contemplated by the
        SPA will occur immediately prior to the closing of the transactions
        contemplated by the APA  (collectively, the “Closings”),
        and
        upon the Closings the Company and Executive desire that, immediately at the
        effective time of the Closings (the “Effective
        Time”),
        the
        Company shall employ Executive, and Executive shall accept such employment,
        on
        the terms and subject to the conditions set forth herein; and 

       

      WHEREAS,
        this Agreement will become effective only if the Closings occurs and only
        if
        Exhibit A has been agreed to by July 14, 2008;

      


      NOW,
        THEREFORE, in consideration of the mutual agreements set forth herein and
        for
        other good and valuable consideration, the receipt and sufficiency of which
        are
        hereby acknowledged, the parties hereto hereby agree as follows: 

      


      1. Employment
        Period.
        Subject
        to earlier termination as hereinafter provided, Executive’s employment hereunder
        shall be for a period (the “Employment
        Period”)
        commencing at the Effective Time and ending on the third anniversary of the
        date
        of the Closings (the “Initial
        Termination Date”).
        If
        not previously terminated, the Employment Period shall automatically be extended
        for one additional year on the Initial Termination Date and on each subsequent
        anniversary of the Initial Termination Date, unless either Executive or the
        Company elects not to so extend the Employment Period by notifying the other
        party, in writing, of such election not less than ninety (90) days prior
        to the
        last day of the then-current Employment Period. 


      
        
           

        

        
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      2. Position,
        Duties and Responsibilities.

      


      (a) Position.
        Effective at the Effective Time, the Company shall employ Executive, and
        Executive hereby agrees to serve the Company, as Chief Executive Officer
        and
        President of the Company reporting to the Company’s Board of Directors (the
“Board”).
        In
        addition, during the Term, the Company shall use
        its
        best efforts to cause
        Executive to be nominated to serve on the Board;
        provided,
        however,
        that
        the Company shall not be obligated to cause such nomination if circumstances
        constituting Cause for Executive’s termination of employment exist or Executive
        is no longer employed as Chief Executive Officer and President. Provided
        that
        if
        Executive is so nominated and elected, Executive hereby agrees to serve as
        a
        member of the Board. Executive shall perform such employment duties as are
        usual
        and customary for such position. At the Company’s request, Executive shall serve
        the Company and/or its subsidiaries and affiliates in such other offices
        and
        capacities in addition to the foregoing (consistent with Executive’s position
        with the Company) as the Company shall designate. In the event that Executive
        serves in any one or more of such additional capacities, Executive’s
        compensation will not be increased on account of such additional service
        beyond
        that specified in this Agreement. 

      


      (b) Place
        of Employment.
        During
        the Employment Period, Executive shall perform the services required by this
        Agreement at the Company’s offices in Tampa, FL. Notwithstanding the foregoing,
        the Company may from time to time require Executive to travel temporarily
        to
        other locations for the Company’s business.

      


      (c) Exclusivity.
        Except
        (i) with the prior written approval of the Board (which the Board may grant
        or
        withhold in its sole discretion), (ii) to the extent expressly required under
        the terms of that certain Transition Services Agreement by and between Hooters
        Management Corporation and the Serviced Companies (as defined therein) in
        the
        form attached as Exhibit G, or (iii) with respect to services provided by
        Executive as an officer of Hooters Casino Hotel, provided that such services
        do
        not significantly interfere or conflict with the performance of Executive’s
        duties or responsibilities hereunder, Executive, during the Employment Period,
        shall devote his entire working time, attention and energies to the business
        of
        the Company and will not (A) accept any other employment or consultancy,
        (B) serve on the board of directors or similar body of any other for-profit
        (other than the Company or any subsidiary of the Company), or (C) engage,
        directly or indirectly, in any other business activity (whether or not pursued
        for pecuniary advantage) that is or may be competitive with, or that might
        place
        him in a competing position to, that of the Company or any of its subsidiaries
        or affiliates.

      


      3. Cash
        Compensation.

      


      (a) Base
        Salary.
        During
        the Employment Period, the Company shall pay Executive an annual base salary
        of
        $450,000 per year, which shall be paid to Executive in accordance with the
        Company’s standard payroll practices, as in effect from time to time (such base
        salary, as may be increased pursuant to the following sentence, the
“Base
        Salary”).
        The
        Base Salary shall be reviewed annually for increase as determined by the
        Board
        or the Compensation Committee thereof in its sole discretion.


      
        
           

        

        
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      (b) Bonuses.
        

      


      
        	 	
                i.

              	
                Quarterly
                  Bonuses.
                  During the Employment Period, Executive shall be eligible to participate
                  in the Company’s incentive bonus plan applicable to the Company’s senior
                  executives and to earn a target bonus of 58% of Base Salary paid
                  during
                  each quarter of a fiscal year (the “Target
                  Bonus”),
                  based on the attainment of Company budgeted EBITDA for each such
                  quarter,
                  as contained in the annual budget presented by executive management
                  of the
                  Company and approved by the Board or the Compensation Committee
                  thereof
                  (and for the remainder of 2008, to be agreed to and set forth on
                  Exhibit
                  A
                  hereto no later than July 14, 2008). The amount of each Target
                  Bonus will
                  be increased or decreased by the same percentage that actual EBITDA
                  is
                  greater or less than budgeted EBITDA for a given fiscal quarter,
                  provided
                  that if actual EBITDA is less than 50% of budgeted EBITDA, no Target
                  Bonus
                  will be payable for such quarter. Any quarterly bonus shall be
                  paid by the
                  Company to Executive as soon as practicable following the quarter-end
                  determination of such bonus, but in any event within thirty (30)
                  days
                  after the end of the fiscal quarter in which such bonus is earned,
                  subject
                  to and conditioned upon Executive’s continued employment with the Company
                  through the date on which such bonus is paid (the “Bonus
                  Payment Date”).
                  

              


      

      


      
        	 	
                ii.

              	
                Discretionary
                  Bonuses.
                  In addition to the quarterly bonus, during the Employment Period,
                  Executive shall be eligible to receive additional discretionary
                  cash
                  and/or equity incentive bonus awards based on significant acquisitions,
                  significant corporate achievements and/or the attainment of other
                  objectives. The award of any bonus under this Section 3(b)(ii)
                  (if any)
                  shall be made in the sole discretion of the Board and shall be
                  paid, if at
                  all, at such time or times and in such form as the Board
                  determines.

              


      

      


      4. Equity
        Grants.
        

      


      (a) General.
        Subject
        to adoption by the Board and approval by Company’s shareholders of the Company’s
        2008 Equity Incentive Plan (the “Plan”)
        in
        substantially the form attached as Exhibit
        B
        hereto,
        the Company shall grant to Executive (i) an option (“Option”)
        to
        purchase shares of common stock, par value $0.0001 per share, of the Company
        (“Shares”),
        and
        (ii) restricted Shares (the “Restricted
        Stock”),
        each
        as provided below in this Section 4.
        To
        the
        greatest extent permitted under applicable law, the Option shall constitute
        an
“incentive stock option” within the meaning of Section 422 of the Internal
        Revenue Code of 1986, as amended (the “Code”).
        If
        approval of the Plan is not obtained by the time any portion of the Option
        or
        Restricted Stock are scheduled to vest, the Company will instead grant awards
        that substantially replicate the terms and economics of the Option and
        Restricted Stock award, payable in cash or other awards that do not require
        the
        approval of the Company’s shareholders.


      
        
           

        

        
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      (b)  Option.
        Subject
        to Section 4(a) above and Section 4(g) below, as soon as practicable following
        the Effective Time, the Company shall grant to Executive an Option to purchase
        195,546 Shares (subject to adjustment for stock splits and similar changes
        in
        share capital between the date hereof and the Effective Date). The Option
        shall,
        subject to Sections 4(d) and 7(a) hereof, vest and become exercisable as
        to
        one-third of the Shares subject thereto on the first anniversary of the date
        of
        grant (the “Grant
        Date”)
        of
        such Option and as to one-twelfth of the Shares subject thereto on each
        quarterly anniversary of the Grant Date thereafter, subject to Executive’s
        continued employment with the Company through each such vesting date. The
        Option
        shall be
        granted at
        an
        exercise price per share equal to the Fair Market Value (as defined in the
        Plan)
        of a Share on the Grant Date.
        Consistent
        with the applicable provisions of this Section 4, the
        terms
        and conditions of the Option, including without limitation any applicable
        vesting and forfeiture conditions, shall be set forth in a Stock Option
        Agreement to be entered into by the Company and Executive in substantially
        the
        form attached hereto as Exhibit
        C
        (the
“Option
        Agreement”).
        The
        Option shall be governed in all respects by the terms of the Plan and the
        Option
        Agreement. 

       

         (c) Restricted
        Stock.
        Subject
        to Section 4(a) above and Section 4(g) below, as soon as practicable following
        the Effective Time, the Company shall grant to Executive 48,886 Shares of
        Restricted Stock (the “Restricted
        Stock”)
        (subject to adjustment for stock splits and similar changes in share capital
        between the date hereof and the Effective Date).
        The
        Restricted Stock shall vest and the restrictions thereon shall lapse,
subject
        to Sections 4(d) and 7(a) hereof,
        with
        respect to one-third of the Shares subject thereto on the first anniversary
        of
        the Grant Date of such Restricted Stock and as to one-twelfth of the Shares
        subject thereto on each quarterly anniversary of such Grant Date thereafter,
        subject to Executive’s continued employment with the Company through each such
        vesting date. Consistent with the applicable provisions of this Section 4,
        the
        terms and conditions of the Restricted Stock shall be set forth in a Restricted
        Stock Agreement to be entered into by the Company and Executive in substantially
        the form attached hereto as Exhibit
        D
        which
        shall evidence the grant of the Restricted Stock (the “Restricted
        Stock Agreement”).
        The
        Restricted Stock shall be governed in all respects by the terms of the Plan
        and
        the Restricted Stock Agreement. 

       

      (d) Change
        in Control.
        Notwithstanding anything herein to the contrary, in the event that a Change
        in
        Control (as defined in the Plan) occurs and Executive remains employed until
        at
        least immediately prior to the closing of the Change in Control, then,
        immediately prior to such Change in Control, 50% of the then-unvested Shares
        subject to each of the Option and the Restricted Stock award shall
        vest.

      


      (e) Additional
        Terms.
        The
        Option shall terminate immediately upon Executive’s termination of employment
        for Cause (as defined below), without regard to the vested status of such
        Option
        at the time of such a termination. In the event of any other termination
        of
        employment, the Option, to the extent vested, shall remain outstanding and
        exercisable for a period of up to (i) 180 days following Executive’s termination
        of employment for any reason other than Cause or due to death or Disability
        (as
        defined below), and (ii) one year following Executive’s termination of
        employment due to death or Disability (but in no event beyond the stated
        expiration date of the Option). 


      
        
           

        

        
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      (f) Additional
        Discretionary Equity Grants.
        During
        the Employment Period, Executive shall be eligible as a senior executive
        of the
        Company to receive future grants of equity-based awards, including, without
        limitation, upon authorization of additional Shares for grant under the Plan.
        The award of additional equity-based awards (if any) pursuant to this Section
        4(f) shall be made in the sole discretion of the Board or the Compensation
        Committee thereof and shall be subject to such terms and conditions as the
        Board
        or the Compensation Committee may determine.

      


      (g) Equity
        Grant Allocation.
        Notwithstanding the provisions of Sections 4(b) and 4(c) above, if, on the
        Grant
        Date, the Fair Market Value of a Share is greater than $7 per Share, then
        the
        parties agree to cooperate and work together in good faith to adjust the
        number
        of Shares subject to the Option and/or Restricted Stock grants described
        in
        Sections 4(b) and 4(c) above to reflect the value intended to be provided
        to
        Executive under the Options and Restricted Stock had such awards been granted
        in
        the amounts stated in Sections 4(b) and 4(c) above with the Options having
        an
        exercise price equal to $7 per Share.

      


      5. Benefits
        and Vacation.
        During
        the Employment Period, Executive shall be eligible to participate in such
        group
        life, health, accident, disability and/or hospitalization insurance and
        retirement plans as the Company may make available generally to its senior
        executives as a group, which plans shall be no less favorable in the aggregate
        than those maintained for the benefit of Executive immediately prior to the
        Effective Time, without regard to sale participation and retirement bonus
        arrangements pursuant to agreements between Executive and Hooters Management
        Corporation, subject to the terms and conditions of any such plans. In addition,
        Executive shall be eligible for such other benefits, perquisites, paid vacation
        and holidays, to the extent applicable generally to other senior executives
        of
        the Company, subject to the terms and conditions of the applicable policies.
        In
        addition, the Company agrees to consider the implementation of a nonqualified
        deferred compensation plan and an executive supplemental life insurance program.
        Nothing contained herein shall, or shall be construed so as to, obligate
        the
        Company to adopt, maintain or continue any particular plans, policies or
        programs at any time.

      


      6. Expenses.
        During
        the Employment Period, Executive shall be entitled to receive prompt
        reimbursement of all reasonable business expenses incurred by Executive
        in accordance with the expense reimbursement policy applicable to the Company’s
        senior executives, as in effect from time to time.
        


      
        
           

        

        
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      7. Termination
        of Employment.
        

      


      (a) Termination
        Without Cause or for Good Reason.
        The
        Company may terminate Executive’s employment without Cause (as defined below) at
        any time during the Employment Period upon ten (10) days’ written notice
        provided to Executive in accordance with Section 8 below or, in the Company’s
        sole discretion, payment of Executive’s Base Salary for such period in lieu of
        notice. In addition, Executive may terminate his employment for Good Reason
        (as
        defined below) at any time during the Employment Period in accordance with
        the
        terms of Section 7(i)(ii) hereof. If Executive experiences
        a “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of
        the Code, and Treasury Regulation Section 1.409A-1(h)) (“Separation
        from Service”)
        due to a
        termination by the Company without Cause or by Executive for Good Reason,
        the
        Company shall promptly or, in the case of obligations described in clause
        (iv)
        below, as such obligations become due, pay or provide to Executive, (i)
        Executive’s earned but unpaid Base Salary accrued through the date of such
        Separation from Service (the “Termination
        Date”),
        (ii)
        accrued but unpaid vacation time through the Termination Date, (iii)
        reimbursement of any unreimbursed business expenses incurred by Executive
        prior
        to the Termination Date that are reimbursable under Section 6 above, (iv)
        any
        vested benefits and other amounts due to Executive under any plan, program
        or
        policy of the Company, (v) if the Termination Date occurs after the end of
        a
        fiscal quarter but before the Bonus Payment Date in respect of such quarter,
        the
        quarterly bonus that would have been paid pursuant to Section 3(b)(i) had
        Executive remained employed until the Bonus Payment Date, and (vi) any payment
        in lieu of notice of termination under this Section 7(a) (together, the
“Accrued
        Obligations”).
        In
        addition, subject to Section 7(f) below and Executive’s execution and
        non-revocation of a binding release in accordance with Section 7(g) below,
        in
        the event of a termination of Executive’s employment by the Company without
        Cause or by Executive for Good Reason, the Company shall pay or provide to
        Executive the following (the “Severance”):

      


      (x)
        a
        lump-sum payment equal to the greater of (A) the Base Salary that would have
        been payable over the remainder of the Employment Period (without regard
        to any
        subsequent extensions thereof) had Executive not incurred a Separation from
        Service at the rate in effect as of the Termination Date, or (B) 200% of
        the
        Base Salary in effect as of the Termination Date;
        provided that
        200%
        shall be replaced by 250% if such termination occurs within the one year
        period
        after either of (I) a Change in Control or (II) the consummation of an Excluded
        Acquisition (as defined in the Plan) that, but for the Change in Control
        Exceptions (as defined in the Plan), would constitute a Change in Control;
        provided
        further,
        that if
        within the six month period following such termination, an event described
        in
        clause (I) or (II) occurs, Executive shall be entitled to an additional payment
        on the six month anniversary of such termination so that the total payments
        received pursuant to this Section 7(a)(x) equals 250% of the Base Salary
        in
        effect as of the Termination Date; and


      
        
           

        

        
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      (y)
        50%
        of the then-unvested Shares subject to each of the Option and the Restricted
        Stock award shall vest immediately prior to such termination, provided,
        that
        if
        such termination occurs within the one year period after either of (A) a
        Change
        in Control or (B) the consummation of an Excluded Acquisition (as defined
        in the
        Plan) that, but for the Change in Control Exceptions (as defined in the Plan),
        would constitute a Change in Control, in either case, then all of the
        then-unvested Shares subject to each of the Option and the Restricted Stock
        award shall vest immediately prior to such termination; provided
        further,
        if the
        preceding proviso is not applicable, then the portion of the Option and
        Restricted Stock award that did not vest immediately prior to such termination
        shall conditionally remain outstanding and unvested, and if within the six
        month
        period following such termination, an event described in clause (A) or (B)
        occurs, such unvested portion shall vest upon such event, and as to the Option,
        shall remain exercisable for at least 30 days thereafter (unless canceled
        in
        connection with such Change in Control), and if within the six month period
        following such termination, an event described in clause (A) or (B) does
        not
        occur, such unvested portion shall be forfeited on the six-month anniversary
        of
        the Termination Date; notwithstanding the foregoing, in no event shall any
        portion of any such award remain outstanding beyond its stated expiration
        date;
        and

      


      (z)
        at
        the Company’s expense, continuation of group healthcare coverage for Executive
        and his legal dependents until the earlier of (i) eighteen months after the
        Termination Date, or (ii) such time as Executive becomes eligible to receive
        comparable benefits under another employer’s group health plan, provided, in any
        case, that Executive properly elects continuation healthcare coverage under
        COBRA; following such continuation period, any further continuation of coverage
        under applicable law shall be at Executive’s sole expense.

      


      Subject
        to Section 7(g) below and except as expressly provided in Section 7(a)(x)
        above,
        the Severance amounts described in Section 7(a)(x) above shall be paid to
        Executive no later than fifteen calendar days following the Termination Date.
        In
        no event shall an election not to extend the Employment Period in accordance
        with Section 1 hereof constitute a termination of employment without Cause
        or
        for Good Reason.

       

      (b) Resignation
        without Good Reason.
        Executive may terminate his employment at any time without Good Reason upon
        thirty (30) days’ written notice provided to the Company in accordance with
        Section 8 hereof, provided,
        that
        the Company may, in its sole discretion, waive such notice period without
        payment in lieu thereof. If Executive so resigns his employment, Executive
        shall
        be entitled to receive the Accrued Obligations promptly or, in the case of
        benefits described in Section 7(a)(iv) above, as such obligations become
        due,
        provided the Executive shall not be entitled to any payment described in
        Section
        7(a)(v) above.

      


      (c) Death;
        Disability.
        If
        Executive dies during the Employment Period or his employment is terminated
        due
        to his total and permanent disability (as determined by the Board), Executive
        or his estate, as applicable, shall be entitled to receive the Accrued
        Obligations promptly or, in the case of benefits described in Section 7(a)(iv)
        above, as such obligations become due. 

      


      (d) Cause.
        The
        Company may terminate Executive’s employment for Cause by providing notice to
        Executive in accordance with Section 8 hereof. If the Company terminates
        Executive’s employment for Cause, Executive shall be entitled to receive the
        Accrued Obligations promptly or, in the case of benefits described in Section
        7(a)(iv) above, as such obligations become due, provided the Executive shall
        not
        be entitled to any payment described in Section 7(a)(v) above. 


      
        
           

        

        
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      (e) Non-Renewal.
        Either
        party may terminate Executive’s employment by electing not to renew the
        Employment Period in accordance with Section 1 hereof. Upon Executive’s
        Separation from Service in connection with any such election, Executive shall
        be
        entitled to receive the Accrued Obligations promptly or, in the case of benefits
        described in Section 7(a)(iv) above, as such obligations become due. In
        addition, if the Company elects not to renew the Employment Period and (i)
        Executive is willing and able to renew the Employment Period on substantially
        similar terms to those in effect at the time of such Company non-renewal,
        and
        (ii) Executive remains employed through the last day of the Term (other than
        due
        to an involuntary termination without Cause, resignation by Executive for
        Good
        Reason, or due to Executive’s death or Disability), then subject to Section 7(f)
        below and Executive’s execution and non-revocation of a binding release in
        accordance with Section 7(g) below, the Company shall pay or provide to
        Executive (the “Non-Renewal
        Benefits”)
        (x) a
        lump-sum payment equal to 75% of the Base Salary in effect as of the Termination
        Date, and (y) at the Company’s expense, continuation of group healthcare
        coverage for Executive and his legal dependents until the earlier of (A)
        twelve
        months after the Termination Date, (B) such time as Executive becomes eligible
        to receive comparable benefits under another employer’s group health plan,
        provided, in any case, that Executive properly elects continuation healthcare
        coverage under COBRA; following such continuation period, any further
        continuation of coverage under applicable law shall be at Executive’s sole
        expense. Subject to Section 7(g) below, the lump-sum payments described in
        this
        Section 7(e) shall be paid (if payable) to Executive no later than fifteen
        calendar days following the Termination Date.

       

      (f) Potential
        Six-Month Delay.
        Notwithstanding anything to the contrary in this Agreement, no compensation
        or
        benefits, including without limitation any Severance or Non-Renewal Payment,
        shall be paid to Executive during the 6-month period following his Separation
        from Service to the extent that the Company determines that Executive is
        a
“specified employee” at the time of such Separation from Service (within the
        meaning of Section 409A of the Code) and that that paying such amounts at
        the
        time or times indicated in this Agreement would be a prohibited distribution
        under Section 409A(a)(2)(b)(i) of the Code. If the payment of any such amounts
        is delayed as a result of the previous sentence, then on the first business
        day
        following the end of such 6-month period (or
        such
        earlier date upon which such amount can be paid under Section 409A of the
        Code
        without being subject to such additional taxes, including as a result of
        Executive’s
        death),
        the
        Company shall pay to Executive a lump-sum amount equal to the cumulative
        amount
        that would have otherwise been payable to Executive during such 6-month
        period.

      


      (g) Release.
        Executive’s right to receive any of the Severance payments and benefits,
        accelerated vesting or Non-Renewal Benefits set forth in this Section 7 is
        conditioned on and subject to the execution and non-revocation by Executive
        of a
        general release of claims against the Company, substantially in the form
        attached hereto as Exhibit
        E,
        as may
        be amended to reflect changes in applicable law.


      
        
           

        

        
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      (h) Termination
        of Offices and Directorships.
        Upon
        termination of Executive’s employment for any reason, Executive shall be deemed
        to have resigned from all offices and directorships, if any, then held with
        the
        Company or any affiliate, and shall take all actions reasonably requested
        by the
        Company to effectuate the foregoing.

      


      (i) Definitions.
        For
        purposes of this Agreement:

      


      (i)
         “Cause”
shall
        mean: (A) any willful and material failure by Executive to perform his duties
        and responsibilities under this Agreement (other than due to Executive’s
        disability); (B) any material act of fraud, embezzlement, theft or
        misappropriation by Executive relating to the Company or its business or
        assets,
        (C) Executive’s commission of a felony or a crime involving moral turpitude; (D)
        any gross negligence or willful misconduct on the part of Executive in the
        conduct of his duties and responsibilities with the Company or which has
        a
        materially adverse economic impact on the Company or its affiliates; or (E)
        any
        willful and material breach by Executive of this Agreement,
        provided,
        that no
        termination for Cause shall be effective unless and until (1) the Company
        has first provided Executive with written notice specifically identifying
        the
        acts or omissions constituting the grounds for “Cause” within thirty (30) days
        after the Company has knowledge of the occurrence thereof, and (2) if capable
        of
        cure, Executive has not cured such acts or omissions within fifteen (15)
        days of
        his actual receipt of such notice. For purposes of the foregoing, no act
        or
        failure to act shall be deemed willful unless done in bad faith, and a failure
        to meet performance expectations, after a good faith effort to do so, shall
        not
        in of itself constitute Cause.

      


      (ii)
         “Good
        Reason”
shall
        mean the Company’s material breach of this Agreement, including: (A) a material
        reduction in Executive’s Base Salary or Target Bonus, (B) a material reduction
        in Executive’s job duties and responsibilities or the assignment to Executive of
        any duties inconsistent in any material respect with Executive’s position with
        the Company, or (C) a relocation of Executive’s principal work location to a
        location that is more than 50 miles from Executive’s principal work location as
        of the date of the Closing, provided,
        that no
        resignation for Good Reason shall be effective unless and until
        (1) Executive has first provided the Company with written notice
        specifically identifying the acts or omissions constituting the grounds for
        “Good Reason” within thirty (30) days after Executive has or should reasonably
        be expected to have had knowledge of the occurrence thereof, (2) the Company
        has
        not cured such acts or omissions within thirty (30) days of its actual receipt
        of such notice, and (3) the
        effective date of Executive’s termination for Good Reason occurs no later than
        ninety (90) days after the initial existence of the facts or circumstances
        constituting Good Reason.
        


      
        
           

        

        
          9

          
            

          

        

        
           

        

      

       

      8. Notice.
        Any
        notice or other communication required or permitted under this Agreement
        shall
        be effective only if it is in writing and delivered personally or sent by
        fax,
        email or registered or certified mail, postage prepaid, addressed as follows
        (or
        if it is sent through any other method agreed upon by the parties):

      


      If
        to the
        Company:

       

      Chanticleer
        Holdings, Inc.

      4201
        Congress Street, Suite 145 

      Charlotte,
        NC 28209

      Fax:
        (704) 366-5122 

      Attention:
        Chief Financial Officer and General Counsel

       

      If
        to
        Executive: to Executive’s most current home address on file with the Company’s
        Human Resources Department, or to such other address as any party hereto
        may
        designate by notice to the other in accordance with this Section 8, and shall
        be
        deemed to have been given upon receipt.

       

      9. Certain
        Additional Payments by the Company.
         

      


      (a) Gross-Up
        Payment.
        Anything in this Agreement to the contrary notwithstanding and except as
        set
        forth below, in the event it shall be determined that any Payment (as defined
        below) would be subject to the Excise Tax (as defined below), then Executive
        shall be entitled to receive an additional payment (the “Excise
        Tax Gross-Up Payment”)
        in an
        amount such that, after payment by Executive of all taxes (and any interest
        or
        penalties imposed with respect to such taxes), including, without limitation,
        any income taxes (and any interest and penalties imposed with respect thereto)
        and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Executive retains
        an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed
        upon the Payments. Notwithstanding the foregoing provisions of this Section
        9(a), if it shall be determined that Executive is entitled to the Excise
        Tax
        Gross-Up Payment, but that the Parachute Value (as defined below) of all
        Payments does not exceed 110% of the Safe Harbor Amount (as defined below),
        then
        no Excise Tax Gross-Up Payment shall be made to Executive and the amounts
        payable under this Agreement shall instead be reduced so that the Parachute
        Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The
        reduction of the amounts payable hereunder, if applicable, shall be made
        by
        first reducing the payments under Section 7(a)(x) hereof, unless an alternative
        method of reduction is elected by Executive, and in any event shall be made
        in
        such a manner as to maximize the Value (as defined below) of all Payments
        actually made to Executive. The Company’s obligation to make Excise Tax Gross-Up
        Payments under this Section 9 shall not be conditioned upon Executive’s
        termination of employment or Executive’s Separation from Service. For purposes
        of determining the amount of any Excise Tax Gross-Up Payment, Executive shall
        be
        considered to pay federal income tax at Executive’s actual marginal rate of
        federal income taxation in the calendar year in which the Excise Tax Gross-Up
        Payment is to be made and state and local income taxes at Executive’s actual
        marginal rate of taxation in the state and locality of Executive’s residence on
        the date on which the Excise Tax Gross-Up Payment is calculated for purposes
        of
        this Section 9, net of Executive’s actual reduction in federal income taxes
        which could be obtained from deduction of such state and local taxes, and
        taking
        into consideration the phase-out of Executive’s itemized deductions under
        federal income tax law.


      
        
           

        

        
          10

          
            

          

        

        
           

        

      

       

      (b) Determinations.
        Subject
        to the provisions of Section 9(c) below, all determinations required to be
        made under this Section 9, including whether and when an Excise Tax Gross-Up
        Payment is required, the amount of such Excise Tax Gross-Up Payment and the
        assumptions to be utilized in arriving at such determination, shall be made
        by
        such nationally recognized accounting firm as may be selected by the Company
        (the “Accounting
        Firm”);
        provided,
        that
        the Accounting Firm’s determination shall be made based upon “substantial
        authority” within the meaning of Section 6662 of the Code. The Accounting Firm
        shall provide detailed supporting calculations both to the Company and Executive
        within fifteen business days of the receipt of notice from Executive that
        there
        has been a Payment or such earlier time as is requested by the Company. All
        fees
        and expenses of the Accounting Firm shall be borne solely by the Company.
        Any
        Excise Tax Gross-Up Payment, as determined pursuant to this Section 9, shall
        be
        paid by the Company to Executive within five days of the receipt of the
        Accounting Firm’s determination. Any determination by the Accounting Firm shall
        be binding upon the Company and Executive, unless the Company obtains an
        opinion
        of outside legal counsel, based upon at least “substantial authority” within the
        meaning of Section 6662 of the Code, reaching a different determination,
        in
        which event such legal opinion shall be binding upon the Company and Executive.
        Notwithstanding anything herein to the contrary, in no event shall any Excise
        Tax Gross-Up Payment or any payment of any income or other taxes to be paid
        by
        the Company under this Section 9 be made later than the end of Executive’s
        taxable year next following Executive’s taxable year in which Executive remits
        the related taxes. Any costs and expenses incurred by the Company on behalf
        of
        Executive under this Section 9 due to any tax contest, audit or litigation
        will
        be paid by the Company promptly upon the date the Excise Tax (or any related
        penalties and interest) is due, and in no event later than by the end of
        Executive’s taxable year following Executive’s taxable year in which the taxes
        that are the subject of the tax contest, audit or litigation are remitted
        to the
        taxing authority, or where as a result of such tax contest, audit or litigation
        no taxes are remitted, the end of Executive’s taxable year following Executive’s
        taxable year in which the audit is completed or there is a final and
        non-appealable settlement or other resolution of the contest or
        litigation.

      


      (c) Notification;
        Contest.
        Executive shall notify the Company in writing of any claim by the Internal
        Revenue Service that, if successful, would require the payment by the Company
        of
        the Excise Tax Gross-Up Payment. Such notification shall be given as soon
        as
        practicable, but no later than 15 business days after Executive is informed
        in
        writing of such claim. Executive shall apprise the Company of the nature
        of such
        claim and the date on which such claim is requested to be paid. Executive
        shall
        not pay such claim prior to the expiration of the 30-day period following
        the
        date on which Executive gives such notice to the Company (or such shorter
        period
        ending on the date that any payment of taxes with respect to such claim is
        due).
        If the Company notifies Executive in writing prior to the expiration of such
        period that the Company desires to contest such claim, Executive
        shall:

       

      (i)  
        give the Company any information reasonably requested by the Company relating
        to
        such claim,

       

      (ii)  
        take such action in connection with contesting such claim as the Company
        shall
        reasonably request in writing from time to time, including, without limitation,
        accepting legal representation with respect to such claim by an attorney
        reasonably selected by the Company,

       

      (iii)  
        cooperate with the Company in good faith in order effectively to contest
        such
        claim, and 

       

      (iv)  
        permit the Company to participate in any proceedings relating to such
        claim;

       

      
        
           

        

        
          11

          
            

          

        

        
           

        

      

       

      provided,
        that
        the Company shall bear and pay directly all costs and expenses (including
        additional interest and penalties) incurred in connection with such contest,
        and
        shall indemnify and hold Executive harmless, on an after-tax basis, for any
        Excise Tax or income tax (including interest and penalties) imposed as a
        result
        of such representation and payment of costs and expenses. Without limitation
        on
        the foregoing provisions of this Section 9(c), the Company shall control
        all
        proceedings taken in connection with such contest, and, at its sole discretion,
        may pursue or forgo any and all administrative appeals, proceedings, hearings
        and conferences with the applicable taxing authority in respect of such claim
        and may, at its sole discretion, either direct Executive to pay the tax claimed
        and sue for a refund or contest the claim in any permissible manner, and
        Executive agrees to prosecute such contest to a determination before any
        administrative tribunal, in a court of initial jurisdiction and in one or
        more
        appellate courts, as the Company shall determine; provided,
        that any
        extension of the statute of limitations relating to payment of taxes for
        the
        taxable year of Executive with respect to which such contested amount is
        claimed
        to be due is limited solely to such contested amount. Furthermore, the Company’s
        control of the contest shall be limited to issues with respect to which the
        Excise Tax Gross-Up Payment would be payable hereunder, and Executive shall
        be
        entitled to settle or contest, as the case may be, any other issue raised
        by the
        Internal Revenue Service or any other taxing authority.

       

      (d) Refund.
        If,
        after the receipt by Executive of an Excise Tax Gross-Up Payment, Executive
        becomes entitled to receive any refund with respect to the Excise Tax to
        which
        such Excise Tax Gross-Up Payment relates, Executive shall (subject to the
        Company’s complying with the requirements of Section 9(c) hereof, if
        applicable) promptly pay to the Company the amount of such refund (together
        with
        any interest paid or credited thereon after taxes applicable thereto).


       

      (e) Excise
        Tax Withholding.
        Notwithstanding any other provision of this Section 9, the Company may, in
        its
        sole discretion, withhold and pay over to the Internal Revenue Service or
        any
        other applicable taxing authority, for the benefit of Executive, all or any
        portion of any Excise Tax Gross-Up Payment, and Executive hereby consents
        to
        such withholding. Any other liability for unpaid or unwithheld Excise Taxes
        shall be borne exclusively by the Company, in accordance with Section 3403
        of
        the Code. The foregoing sentence shall not in any manner relieve the Company
        of
        any of its obligations under this Employment Agreement.

       


      
        
           

        

        
          12

          
            

          

        

        
           

        

      

       

      (f) Definitions.
        The
        following terms shall have the following meanings for purposes of this Section
        9:

       

      (i) “Excise
        Tax”
shall
        mean the excise tax imposed by Section 4999 of the Code, together with any
        interest or penalties imposed with respect to such excise tax.

      


      (ii) “Parachute
        Value”
of
        a
        Payment shall mean the present value as of the date of the change of control
        for
        purposes of Section 280G of the Code of the portion of such Payment that
        constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as
        determined by the Accounting Firm for purposes of determining whether and
        to
        what extent the Excise Tax will apply to such Payment.

      


      (iii) “Payment”
shall
        mean any payment or distribution in the nature of compensation (within the
        meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive,
        whether paid or payable pursuant to this Agreement or otherwise.

      


      (iv) “Safe
        Harbor Amount”
shall
        mean 2.99 times Executive’s “base amount,” within the meaning of Section
        280G(b)(3) of the Code.

      


      (v)
         “Value”
of
        a
        Payment shall mean the economic present value of a Payment as of the date
        of the
        change of control for purposes of Section 280G of the Code, as determined
        by the
        Accounting Firm using the discount rate required by Section 280G(d)(4) of
        the
        Code.

      


      10. Restrictive
        Covenants.

      (a)  Non-Competition.
        During
        the Restricted Period, Executive will not (except as an officer, director,
        stockholder, member, manager, employee, agent or consultant of the Company)
        directly or indirectly, own, manage, operate, join, or have a financial interest
        in, control or participate in the ownership, management, operation or control
        of, or be employed as an employee, agent or consultant, or in any other
        individual or representative capacity whatsoever, or use or permit his name
        to
        be used in connection with, or be otherwise connected in any manner with
        any
        Competitive Enterprise; provided
        that the
        foregoing restriction shall not be construed to prohibit the ownership by
        Executive together with his affiliates and associates, as the case may be,
        of
        not more than five percent (5%) of any class of securities of any corporation
        which is engaged in any Competitive Business, provided further,
        that
        such ownership represents a passive investment and that Executive together
        with
        his affiliates and associates, either directly or indirectly, do not manage
        or
        exercise control of any such corporation, guarantee any of its financial
        obligations, otherwise take part in its business other than exercising
        Executive’s rights as a shareholder, or seek to do any of the foregoing.


      


      (b)  Non-Solicitation.
        During
        the Restricted Period, Executive shall not, directly or indirectly, solicit
        or
        influence any individual who is an employee or consultant of the Company
        to
        terminate his or her employment or consulting relationship with the Company
        or
        to apply for or accept employment with a Competitive
        Enterprise.


      
        
           

        

        
          13

          
            

          

        

        
           

        

      

       

      (c)  Trade
        Secrets and Confidential Information.
        Executive recognizes that it is in the legitimate business interest of the
        Company to restrict his disclosure or use of Trade Secrets or other Confidential
        Information relating to the Company for any purpose other than in connection
        with Executive’s performance of his duties to the Company, and to limit any
        potential appropriation of such Trade Secrets or other Confidential Information.
        Executive therefore agrees that all Trade Secrets or other Confidential
        Information relating to the Company heretofore or in the future obtained
        by
        Executive shall be considered confidential and the proprietary information
        of
        the Company. Executive shall not use or disclose, or authorize any other
        person
        or entity to use or disclose, any Trade Secrets or other Confidential
        Information. 

      


      (d)  Remedies.
        Executive agrees that the Company’s remedies at law for any breach or threat of
        breach by Executive of any of the provisions of this Section 10 will be
        inadequate, and that, in addition to any other remedy to which the Company
        may
        be entitled at law or in equity, the Company shall be entitled to a temporary
        or
        permanent injunction or injunctions or temporary restraining order or orders
        to
        prevent breaches of the provisions of this Section 10 and to enforce
        specifically the terms and provisions hereof, in each case without the need
        to
        post any security or bond and without the requirement to prove that monetary
        damages would be difficult to calculate and that remedies at law would be
        inadequate. Nothing herein contained shall be construed as prohibiting the
        Company from pursuing, in addition, any other remedies available to the Company
        for such breach or threatened breach.

      


      (e)  Enforceability.
        It is
        expressly understood and agreed that although the parties consider the
        restrictions contained in this Section 10 hereof to be reasonable for the
        purpose of preserving the goodwill, proprietary rights and going concern
        value
        of the Company, if a final determination is made by an arbitrator or court,
        as
        the case may be, having jurisdiction that the time or territory or any other
        restriction contained in this Section 10 is an unenforceable restriction
        on
        Executive’s activities, the provisions of this Section 10 shall not be rendered
        void but shall be deemed amended to apply as to such maximum time and territory
        and to such other extent as such arbitrator or court, as the case may be,
        may
        determine or indicate to be reasonable. Alternatively, if the arbitrator
        or
        court, as the case may be, referred to above finds that any restriction
        contained in this Section 10 or any remedy provided herein is unenforceable,
        and
        such restriction or remedy cannot be amended so as to make it enforceable,
        such
        finding shall not affect the enforceability of any of the other restrictions
        contained therein or the availability of any other remedy. 

      


      (f)  Definitions.
        For
        purposes of this Section 10:

      


      (i) “Competitive
        Enterprise”
means
        any business that owns or operates a restaurant chain with at least 10 stores,
        and either (A) operates under the Hooters brand name, (B) derived more than
        25%
        of total food revenue in the preceding 12 month period from sales of chicken
        wings or related buffalo style chicken items and more than 15% of total food
        and
        beverage revenue in the preceding 12 month period from the sale of alcoholic
        beverages, or (C) features female sex appeal in a casual dining
        setting. 

       

      (ii) “Restricted
        Period”
shall
        mean the period commencing on the Effective Date and ending on the first
        anniversary following the termination of Executive’s employment, provided that
        if such termination occurs by reason of a nonrenewal of the Employment Period,
        Restricted Period shall end nine months following such termination.

       

      
        
           

        

        
          14

          
            

          

        

        
           

        

      


      (iii) “Trade
        Secrets or other Confidential Information”
by
        way
        of example and without limitation, and in whatever medium, includes the whole
        or
        any portion or phase of any scientific or technical information, design,
        process, procedure, formula, machine, invention, improvement, manufacturing
        or
        sales technique, manufacturing, sales or test data, reimbursement information,
        business or financial information, listing of names, addresses, or telephone
        numbers, or other information relating to any business or profession which
        is of
        value.

       

      11. Indemnification.
        Concurrently
        with the execution of this Agreement, Executive and the Company shall enter
        into
        an Indemnification Agreement substantially in the form attached hereto as
        Exhibit
        F.

      


      12. Arbitration.
        Any
        dispute, controversy, or claim arising out of or relating to this Agreement
        or
        the breach of this Agreement shall be resolved by binding arbitration in
        Clearwater, Florida administered by the American Arbitration Association
        (“AAA”)
        or, if
        administration by AAA is unavailable for any reason, then by J.A.M.S. and,
        in
        any case, judgment on the award rendered by the arbitrator may be entered
        in and
        fully enforced by any court having jurisdiction thereof. All
        fees
        and expenses of the arbitrators and all other expenses of the arbitration,
        except for attorneys’ fees and witness expenses, which shall be borne by each
        party as incurred by such party, shall be shared equally by Executive and
        the
        Company. However, if in any arbitration proceeding or injunctive action,
        Executive is the prevailing party on any material claim, the Company shall
        reimburse Executive for reasonable attorneys’ fees actually incurred by
        Executive in connection with such proceeding or action.

      


      13. Effectiveness.
        This
        Agreement shall become effective at the Effective Time. Notwithstanding anything
        contained herein, in the event that the SPA or APA is terminated in accordance
        with its terms or that either Closing otherwise does not occur for any reason,
        or if Exhibit A is not agreed to by July 14, 2008, this Agreement shall
        automatically, and without notice, terminate without any obligation due to
        the
        other party and the provisions of this Agreement shall be of no force or
        effect.

      


      14. Representations.
        Executive hereby represents and warrants to the Company that (a) Executive
        is
        entering into this Agreement voluntarily and that the performance of his
        obligations hereunder will not violate any agreement between Executive and
        any
        other person, firm, organization or other entity, and (b) Executive is not
        bound
        by the terms of any agreement with any previous employer or other party to
        refrain from competing, directly or indirectly, with the business of such
        previous employer or other party that would be violated by his entering into
        this Agreement and/or providing services to the Company pursuant to the terms
        of
        this Agreement.

      


      15. Section
        409A.
        To the
        extent applicable, this Agreement shall be interpreted in accordance with
        Section 409A of the Code and any applicable exemptions therefrom.
        Notwithstanding any provision of this Agreement to the contrary, if at any
        time
        the Company determines that any payments or benefits payable hereunder may
        be
        subject to Section 409A of the Code or may not comply with Section 409A of
        the
        Code, the Company may adopt such amendments to this Agreement or take such
        other
        actions that the Company determines are necessary or appropriate to (i) exempt
        such payments and benefits from Section 409A of the Code and/or preserve
        the
        intended tax treatment of such payments or benefits, or (ii) comply with
        the
        requirements of Section 409A of the Code. To the extent that any reimbursable
        expenses are deemed to constitute compensation to Executive, such expenses
        shall
        be reimbursed by December 31 of the year following the year in which the
        expense
        was incurred, provided that the foregoing shall not be construed so as to
        extend
        the time by which reimbursements are to be made under Section 6 above. The
        amount of any expense reimbursements that constitute compensation in one
        year
        shall not affect the amount of expense reimbursements constituting compensation
        that are eligible for reimbursement in any subsequent year, and Executive’s
        right to reimbursement of any such expenses shall not be subject to liquidation
        or exchange for any other benefit.


      
        
           

        

        
          15

          
            

          

        

        
           

        

      

       

      16. Withholding.
        The
        Company may withhold from any amounts payable under this Agreement such federal,
        state, local or foreign taxes as shall be required to be withheld pursuant
        to
        any applicable law or regulation.

      


      17. Entire
        Agreement.
        As of
        the Effective Date, this Agreement, together with the agreements contained
        in
        the exhibits hereto, constitutes the final, complete and exclusive agreement
        between Executive and the Company with respect to the subject matter hereof
        and
        replaces and supersedes any and all other agreements, offers or promises,
        whether oral or written, made to Executive by the Company or any representative
        thereof. Executive agrees that any such agreement, offer or promise is hereby
        terminated and will be of no further force or effect, and that upon his
        execution of this Agreement, Executive will have no right or interest in
        or with
        respect to any such agreement, offer or promise.

      


      18. Amendment.
        The
        terms of this Agreement may not be amended or modified other than by a written
        instrument executed by the parties hereto or their respective
        successors.

      


      19. Acknowledgement.
        Executive
        hereby acknowledges (a) that Executive has consulted with or has had the
        opportunity to consult with independent counsel of his own choice concerning
        this Agreement, and has been advised to do so by the Company, and (b) that
        Executive has read and understands this Agreement, is fully aware of its
        legal
        effect, and has entered into it freely based on his own judgment.

      


      20. Governing
        Law.
        This
        Agreement shall be governed by and construed in accordance with the laws
        of the
        State of New York, without regard to conflicts of laws principles
        thereof.

      


      21. No
        Waiver.
        Failure
        by either party hereto to insist upon strict compliance with any provision
        of
        this Agreement or to assert any right such party may have hereunder shall
        not be
        deemed to be a waiver of such provision or right or any other provision or
        right
        of this Agreement.


      
        
           

        

        
          16

          
            

          

        

        
           

        

      

       

      22. Assignment.
        This
        Agreement is binding on and for the benefit of the parties hereto and their
        respective successors, heirs, executors, administrators and other legal
        representatives. Neither this Agreement nor any right or obligation hereunder
        may be assigned by Executive.

      


      23. Severability.
        The
        invalidity or unenforceability of any provision of this Agreement shall not
        affect the validity or enforceability of any other provision of this
        Agreement.

      


      24. Construction.
        The
        parties hereto acknowledge and agree that each party has reviewed and negotiated
        the terms and provisions of this Agreement and has had the opportunity to
        contribute to its revision. Accordingly, the rule of construction to the
        effect
        that ambiguities are resolved against the drafting party shall not be employed
        in the interpretation of this Agreement. Rather, the terms of this Agreement
        shall be construed fairly as to all parties hereto and not in favor or against
        any party by the rule of construction abovementioned.

      


      25. Counterparts.
        This
        Agreement may be executed in several counterparts, each of which shall be
        deemed
        an original, but all of which shall constitute one and the same
        instrument.

      


      26. Captions.
        The
        captions of this Agreement are not part of the provisions hereof, rather
        they
        are included for convenience only and shall have no force or effect.


      


      


      


      [Signature
        page follows]


      
        
           

        

        
          17

          
            

          

        

        
           

        

      


      IN
        WITNESS WHEREOF, the parties have executed this Agreement as of the date
        and
        year first above written.

      
         


        
          	 	CHANTICLEER
                  HOLDINGS, INC.
	 	 	 
	 	 	 
	 	
                  By:

                	
                  /s/
                    Michael Pruitt 

                
	 	
                  Name:

                	
                  Michael
                    Pruitt 

                
	 	
                  Title:

                	
                  Chairman,
                    Chief Executive Office and President

                
	 	 	 
	 	 	 
	 	EXECUTIVE
	 	 	 
	 	 	 
	 	
                  /s/ 
                    Neil G. Kiefer

                


        

      

       

      
        
           

        

        
          18