exv10w1



 





EXHIBIT 10.1


1997 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN

OF

FOX & HOUND RESTAURANT GROUP



1. Purpose of the Plan.



This 1997 Incentive and Nonqualified Stock Option Plan (the “Plan”) is intended as an incentive, to
retain in the employ of Fox & Hound Restaurant Group (the “Company”) and any Subsidiary of the
Company (within the meaning of Section 424(f) of the Internal Revenue Code of 1986, as amended (the
“Code”)), persons of training, experience and ability, to attract new employees whose services are
considered valuable, to encourage the sense of proprietorship and to stimulate the active interest
of such persons in the development and financial success of the Company and its Subsidiaries.



It is further intended that certain options granted pursuant to the Plan shall constitute incentive
stock options within the meaning of Section 422 of the Code (“Incentive Options”) while certain
other options granted pursuant to the Plan shall be nonqualified stock options (“Nonqualified
Options”). Incentive Options and the Nonqualified Options are hereinafter referred to collectively
as “Options”.



2. Administration of the Plan.



The Board of Directors of the Company (the “Board”) shall appoint and maintain as administrator of
the Plan a Stock Option Committee (the “Committee”) consisting of two or more directors of the
Company. No person shall be eligible to serve on the Committee unless he or she is then a
“non-employee director” within the meaning of Rule 16b-3 of the Securities and Exchange Commission
(“Rule 16b-3”) promulgated under the Securities Exchange Act of 1934, as amended (the “Act”), if
and as Rule 16b-3 is then in effect. The members of the Committee shall serve at the pleasure of
the Board.



The Committee, subject to Section 3 hereof, shall have full power and authority to designate
recipients of Options, to determine the terms and conditions of respective Option agreements (which
need not be identical) and to interpret the provisions and supervise the administration of the
Plan. Subject to Section 7 hereof, the Committee shall have the authority, without limitation, to
designate which Options granted under the Plan shall be Incentive Options and which shall be
Nonqualified Options. To the extent any Option does not qualify as an Incentive Option, it shall
constitute a separate Nonqualified Option. Notwithstanding any provision in the Plan to the
contrary, no Options may be granted under the Plan to any member of the Committee during the term
of his membership on the Committee.



Subject to the provisions of the Plan, the Committee shall interpret the Plan and all Options
granted under the Plan shall make such rules as it deems necessary for the proper administration of
the Plan, make all other determinations necessary or advisable for the administration of the Plan
and correct any defects or supply any omission or reconcile any inconsistency in the Plan or in any
Options granted under the Plan in the manner and to the extent that the Committee deems desirable
to carry the Plan or any Options into effect. The act or determination of a majority of the
Committee shall be deemed to be the act or determination of the Committee and any decision reduced
to writing and signed by all of the members of the Committee shall be fully effective as if it had
been made by a majority at a meeting duly held. Subject to the provisions of the Plan, any action
taken or determination made by the Committee pursuant to this and the other paragraphs of the Plan
shall be conclusive on all parties.



3. Designation of Optionees.



The persons eligible for participation in the Plan as recipients of Options (“Optionees”) shall
include the Chairman of the Board and only full-time and part-time key employees (including
full-time and part-time key employees who also serve as directors) of the Company or any
Subsidiary. In selecting optionees, and in determining the number of shares to be covered by each
Option granted to Optionees, the Committee



may consider the office or position held by the Optionee, the Optionee’s degree of responsibility
for and contribution to the growth and success of the Company or any Subsidiary, the Optionee’s
length of service,




 









 







age, promotions, potential and any other facts to which the Committee may
consider relevant. Subject to the next sentence, an
employee who has been granted an Option hereunder may be granted an additional Option or Options,
if the Committee shall so determine. Notwithstanding anything contained in the Plan to the
contrary, no recipient of Options may be granted Options to purchase in excess of fifty percent of
the maximum number of shares of Stock (as defined herein) authorized to be issued under the Plan.



4. Stock Reserved for the Plan.



Subject to adjustment as provided in Section 7 hereof, a total of 1.5 million (1,500,000) shares of
common stock, $.01 par value (“Stock”), of the Company shall be subject to the Plan. The shares of
Stock subject to the Plan shall consist of unissued shares or previously issued shares reacquired
and held by the Company or any Subsidiary of the Company, and such amount of shares of Stock shall
be and is hereby reserved for such purpose. Any of such shares of Stock which may remain unsold and
which are not subject to outstanding Options at the termination of the Plan shall cease to be
reserved for the purpose of the Plan, but until termination of the Plan the Company shall at all
times reserve a sufficient number of shares of Stock to meet the requirements of the Plan. Should
any Option expire or be canceled prior to its exercise in full or should the number of shares of
Stock to be delivered upon the exercise in full of any Option be reduced for any reason, the shares
of Stock theretofore subject to such Option may again be subject to an Option under the Plan.



5. Terms and Conditions of Options.



Options granted under the Plan shall be subject to the following conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee
shall deem desirable:



(a) Option Price. The purchase price of each share of Stock purchasable under an Option shall be
determined by the Committee at the time of grant but shall not be less than 100% of the fair market
value of such share of Stock on the date the Option is granted in the case of an Incentive Option
and not less than 75% of the fair market value of such share of Stock on the date the Option is
granted in the case of a non-Incentive Option; provided, however, that with respect to an Incentive
Option, in the case of an Optionee who, at the time such Option is granted, owns (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or of any Subsidiary, then the purchase price per share of stock
shall be at least 110% of the Fair Market Value as defined below) per share of Stock at the time of
grant. The exercise price for each incentive stock option shall be subject to adjustment as
provided in Section 7 below. The fair market value (“Fair Market Value”) means the closing price of
publicly traded shares of Stock on the national securities exchange on which shares of Stock are
listed (if the shares of Stock are so listed) or on the Nasdaq National Market (if the shares of
stock are regularly quoted on the Nasdaq National Market), or, if not so listed or regularly
quoted, the mean between the closing bid and asked prices of publicly traded shares of Stock in the
over-the-counter market, or, if such bid and asked prices shall not be available, as reported by
any nationally recognized quotation service selected by the Company, or as determined by the
Committee in a manner consistent with the provisions of the Code.



(b) Option Term. The term of each Option shall be fixed by the Committee, but no Option shall be
exercisable more than ten years after the date such Option is granted; provided, however, that in
the case of an Optionee who, at the time such Option is granted, owns more than 10% of the total
combined voting power of all classes of stock of the Company or any Subsidiary, then such Incentive
Stock Option shall not be exercisable with respect to any of the shares subject to such Incentive
Stock Option later than the date which is five years after the date of grant.



(c) Exercisability. Subject to paragraph (j) of this Section 5, Options shall be exercisable at
such time or times and subject to such terms and conditions as shall be determined by the Committee
at grant,



provided, however, that except as provided in paragraphs (f) and (g) of this Section 5, unless a
shorter or longer vesting period is otherwise determined by the Committee at grant, Options shall
be exercisable as




 









 







follows: up to ten (10%) percent of the aggregate initial shares of Stock
purchasable under an Option shall be exercisable commencing one year after the date of grant, an
additional fifteen (15%) percent of the aggregate initial shares of Stock purchasable under an
Option shall be exercisable commencing two years after the date of grant up to an additional
twenty-five (25%) percent of the aggregate initial shares of Stock purchasable under an Option
shall be exercisable commencing three years from the date of grant, up to an additional twenty-five
(25%) percent of the aggregate initial shares of Stock purchasable under an Option shall be
exercisable commencing four years from the date of grant and
the balance commencing on the fifth anniversary from the date of grant. The Committee may waive
such installment exercise provision at any time in whole or in part based on performance and/or
such other factors as the Committee may determine in its sole discretion, provided, however, no
Option shall be exercisable until more than six months have elapsed from the date of grant of such
Option.



(d) Method of Exercise. Options may be exercised in whole or in part at any time during the option
period, by giving written notice to the Company specifying the number of shares to be purchased,
accompanied by payment in full of the purchase price, in cash, by check or such other instrument as
may be acceptable to the Committee, including a cashless exercise. As determined by the Committee,
in its sole discretion, at or after grant, payment in full or in part may also be made in the form
of Stock owned by the Optionee (based on the Fair Market Value of the Stock owned by the Optionee
(based on the Fair Market Value of the Stock on the trading day before the Option is exercised);
provided, however, that if such Stock was issued pursuant to the exercise of an Incentive Option
under the Plan, the holding requirements for such Stock under the Code shall first have been
satisfied. An Optionee shall have the rights to dividends or other rights of a stockholder with
respect to shares subject to the Option after (i) the Optionee has given written notice of exercise
and has paid in full for such shares and (ii) becomes a stockholder of record.



(e) Transferability of Options. No Option granted hereunder shall be transferable otherwise than by
(i) will, (ii) the laws of descent and distribution or (iii) pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code or Title 1 of the Employee Retirement
Income Security Act of 1986, as amended, or the rules and regulations promulgated thereunder;
provided however, that to the extent the option agreement provisions do not disqualify such option
for exemption under Rule 16b- 3 under the Act of 1934, as amended, Nonqualified Options may be
transferable during an Optionee’s lifetime to immediate family members of an optionee, partnerships
in which the only partners are members of the Optionee’s immediate family, and trusts established
solely for the benefit of such immediate family members.



(f) Termination by Death. Unless otherwise determined by the Committee at grant, if any Optionee’s
employment with the Company or any Subsidiary terminates by reason of death, the Option may
thereafter be immediately exercised, to the extent then exercisable (or on such accelerated basis
as the Committee shall determine at or after grant), by the legal representative of the estate or
by the legatee or the Optionee under the will of the Optionee, for a period of one year from the
date of such death or until the expiration of the stated term of such Option as provided under the
Plan, whichever period is shorter.



(g) Termination by Reason of Disability. Unless otherwise determined by the Committee at grant, if
any Optionee’s employment with the Company or any Subsidiary terminates by reason of total and
permanent disability as determined under [the Company’s long term disability policy
(“Disability”)], any Option held by such Optionee may thereafter be exercised, to the extent it was
exercisable at the time of termination due to Disability (or on such accelerated basis as the
Committee shall determine at or after grant), but may not be exercised after one year from the date
of such termination of employment or the expiration of the stated term of such Option, whichever
period is shorter; provided, however, that, if the Optionee dies within such one-year period, any
unexercised Option held by such Optionee shall thereafter be exercisable to the extent to which it
was exercisable at the time of death for a period of one year from the date of such death or for
the stated term of such Option, whichever period is shorter.



(h) Termination by Reason of Retirement. Unless otherwise determined by the Committee at grant, if
any Optionee’s employment with the Company or any Subsidiary terminates by reason of Normal or
Early



Retirement (as such terms are defined below), any Option held by such Optionee may thereafter be
exercised to the extent it was exercisable at the time of such Retirement (as defined below) (or on
such


 









 







accelerated basis as the Committee shall determine at or after grant), but may not be
exercised after three months from the date of such termination of employment or the expiration of
the stated term of such Option, whichever period is shorter; provided, however, that, if the
Optionee dies within such three-month period, any unexercised Option held by such Optionee shall
thereafter be exercisable, to the extent to which it was exercisable at the time of death, for a
period of one year from the date of such death or for the stated term of such Option, whichever
period is shorter.



For purposes of this paragraph (h), “Normal Retirement” shall mean retirement from active
employment with the Company or any Subsidiary on or after the normal retirement date specified in
the applicable Company or Subsidiary pension plan. “Early Retirement” shall mean retirement from
active employment with the Company or
any Subsidiary pursuant to the early retirement provisions of the applicable Company or Subsidiary
pension plan. “Retirement” shall mean Normal or Early Retirement.



(i) Other Termination. Unless otherwise determined by the Committee at grant, if any Optionee’s
employment with the Company or any Subsidiary terminates for any reason other than death,
Disability or Retirement, the Option shall thereupon terminate, except that the portion of any
Option which was exercisable on the date of such termination of employment may be exercised for the
lesser of (A) three months from the date of termination or (B) the balance of such Option’s term if
the Optionee’s employment with the Company or any Subsidiary is involuntarily terminated by the
Optionee’s employer without Cause. “Cause” shall mean a felony conviction or the failure of an
Optionee to contest prosecution for a felony or an Optionee’s willful misconduct or dishonesty, any
of which is harmful to the business or reputation of the Company or any Subsidiary. The transfer of
an Optionee from the employ of the Company to a Subsidiary, or vice versa, or from one Subsidiary
to another, shall not be deemed to constitute a termination of employment for purposes of the Plan.



(j) Limit on Value of Incentive Option. The aggregate Fair Market Value, determined as of the date
the Option is granted, of the Stock for which Incentive Options are exercisable for the first time
by any Optionee during any calendar year under the Plan (and/or any other stock option plans of the
Company or any Subsidiary) shall not exceed $100,000.



(k) Disposition of Incentive Option Shares. The stock option agreement evidencing any Incentive
Options granted under this Plan shall provide that if the Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated thereunder, of any share or
shares of Stock issued to him pursuant to his exercise of an Incentive Option granted under the
Plan within the two-year period commencing on the day after the date of the grant of such Incentive
Option or within a one-year period commencing on the day after the date of transfer of the share or
shares to him pursuant to the exercise of such Incentive option, he shall, within ten days of such
disposition, notify the Company thereof and immediately deliver to the Company any amount of
federal income tax withholding required by law.



6. Term of Plan.



No Option shall be granted pursuant to the Plan on or after the tenth anniversary of the date the
Plan is approved by the Board, but Options granted may extend beyond that date.



7. Capital Change of the Company.



In the event of any merger, reorganization or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation, or upon a sale of
substantially all of the property or more than 80% of the then-outstanding shares of Stock of the
Company to another corporation, all Options granted under the Plan shall immediately vest, assuming
that the Optionee has held the Option for at least six months. In the event of a stock dividend or
recapitalization, or other change in corporate structure affecting the Stock not covered in the
first sentence of this Section 7 (or in the event of a merger, reorganization or consolidation
where the Optionee has not held the Option for at last six months), the Committee shall make an
appropriate and equitable adjustment in the number and kind of shares reserved for issuance under
the Plan and in the number and option price of shares subject to outstanding Options granted under
the Plan, to the end that after such event each Optionees’s proportionate interest shall be





 









 







maintained as immediately before the occurrence of such event.



8. Proportionate Adjustments.



If the outstanding shares of Stock are increased, decreased, changed into or exchanged into a
different number or kind of shares of Stock or securities of the Company through reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock split or other
similar transaction, an appropriate and proportionate adjustment shall be made to the maximum
number and kind of shares of Stock as to which Options may be granted under this Plan. A
corresponding adjustment changing the number or kind of shares of Stock allocated to unexercised
Options or portions thereof, which shall have been granted prior to any such change, shall likewise
be made. Any such adjustment in the outstanding Options shall be made without change in the
purchase price applicable to the unexercised portion of the Option with a corresponding adjustment
in the exercise price of the shares of Stock
covered by the Option. Notwithstanding the foregoing, there shall be no adjustment for the issuance
of shares of Stock on conversion of notes, preferred stock or exercise of warrants or shares of
Stock issued by the Board for such consideration as the Board deems appropriate.



9. Purchase for Investment.



Unless the Options and shares covered by the Plan have been registered under the Securities Act of
1933, as amended (the “Securities Act”), or the Company has determined that such registration is
unnecessary, each person exercising an Option under the Plan may be required by the Company to give
a representation in writing that he is acquiring the shares for his own account for investment and
not with a view to, or for sale in connection with, the distribution of any part thereof.



10. Taxes.



The Company may make such provisions as it may deem appropriate, consistent with applicable law, in
connection with any Options granted under the Plan with respect to the withholding of any taxes or
any other tax matters.



11. Effective Date of Plan.



The Plan shall be effective on the date it is approved by the Board, provided, however, that the
Plan shall subsequently be approved by majority vote of the Company’s stockholders within one (1)
year from the date approved by the Board.



12. Amendment and Termination.



The Board may amend, suspend, or terminate the Plan, except that no amendment shall be made which
would impair the right of any Optionee under any Option theretofore granted without his consent,
and except that no amendment shall be made which, without the approval of the stockholders, would:



(a) materially increase the number of shares which may be issued under the Plan, except as is
provided in Sections 7 and 8;



(b) materially increase the benefits accruing to the Optionees under the Plan;



(c) materially modify the requirements as to eligibility for participation in the Plan;



(d) decrease the Option exercise price to less than 100% of the Fair Market Value on the date of
grant thereof; or



(e) extend the Option term provided for in Section 5(b).



The Committee may amend the terms of any Option theretofore granted, prospectively or
retroactively, but




 









 







no such amendment shall impair the rights of any Optionee without his consent.
The Committee may also substitute new Options for previously granted Options, including options
granted under other plans applicable to the participant and previously granted Options having
higher option prices, upon such terms as the Committee may deem appropriate.



13. Government Regulations.



The Plan, and the granting and exercise of Options hereunder, and the obligation of the Company to
sell and deliver shares under such Options, shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national securities exchanges as
may be required.



14. Rule 16b-3 Compliance.



The Company intends that the Plan meet the requirements of Rule 16b-3 by officers of the Company
(whether or not they are directors) pursuant to the Plan will be exempt from the operation of
Section 16(b) of the Act. In all cases, the terms, provisions, conditions and limitations of the
Plan shall be construed and interpreted consistent with the
Company’s intent as stated in this Section 14.



15. General Provisions.



(a) Certificates. All certificates for shares of Stock delivered under the Plan shall be subject to
such stock transfer orders and other restrictions as the Committee may deem advisable under the
rules, regulations, and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Stock is then listed, and any applicable Federal or state securities law,
and the Committee may cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions.



(b) Employment Matters. The adoption of the Plan shall not confer upon any Optionee of the Company
or any Subsidiary, any right to continued employment (or, in case the Optionee is also a director,
continued retention as a director) with the Company or a Subsidiary, as the case may be, nor shall
it interfere in any way with the right of the Company or any Subsidiary to terminate the employment
of any of its employees at any time.



(c) Limitation of Liability. No member of the Board or the Committee, or any officer or employee of
the Company acting on behalf of the Board or the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith with respect to the Plan, and
all members of the Board of the Committee and each and any officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by
the Company in respect of any such action, determination or interpretation.



(d) Registration of Options. Notwithstanding any other provision in the Plan, no Option may be
exercised unless and until the Stock to be issued upon the exercise thereof has been registered
under the Securities Act and applicable state securities laws, or are, in the opinion of counsel to
the Company, exempt from such registration. The Company shall not be under any obligation to
register under applicable federal or state securities laws any Stock to be issued upon the exercise
of any Option granted hereunder, or to comply with an appropriate exemption from registration under
such laws in order to permit the exercise of an Option and the issuance and sale of the Stock
subject to such Option, however, the Company may in its sole discretion register such Stock at such
time as the Company shall determine. If the Company chooses to comply with such an exemption from
registration, the Stock issued under the Plan may, at the direction of the Committee, bear an a
appropriate restrictive legend restricting the transfer or pledge of the Stock represented thereby,
and the Committee may also give appropriate stop-transfer instructions to the transfer agent to the
Company.




 









 








FIRST AMENDMENT

TO

1997 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN

OF

FOX & HOUND RESTAURANT GROUP




     1. The first sentence of Paragraph 4 of the 1997 Incentive and Nonqualified Stock Option Plan
of Fox & Hound Restaurant Group, (the “Plan”), is hereby amended by replacing it with the following
sentence:




Subject to adjustment as provided in Section 7 hereof, a total of 1.6 million
(1,600,000) shares of common stock, $0.01 par value (“Stock”) of the Company shall be
subject to the Plan.



     2. Except as modified by Paragraph 1 above, the Plan shall remain in full force and effect.



     3. The foregoing First Amendment to the 1997 Incentive and Nonqualified Stock Option Plan of
Fox & Hound Restaurant Group was duly adopted by the Board of Directors of Fox & Hound Restaurant
Group (the “Company”) on January 14, 1999, and approved by the Company’s stockholders at the
Company’s annual stockholder meeting on May 25, 1999.



 









 





SECOND AMENDMENT

TO

1997 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN

OF

FOX & HOUND RESTAURANT GROUP




     1. The first sentence of Paragraph 4 of the 1997 Incentive and Nonqualified Stock Option Plan of
Fox & Hound Restaurant Group, as amended by that certain First Amendment dated January 14, 1999
(the “Plan”), is hereby amended by replacing it with the following sentence:




Subject to adjustment as provided in Section 7 hereof, a total of 2 million (2,000,000) shares of common stock, $0.01 par value (“Stock”) of the Company shall be subject to the
Plan.



     2. Except as modified by Paragraph 1 above, the Plan shall remain in full force and effect.



     3. The foregoing Second Amendment to the 1997 Incentive and Nonqualified Stock Option Plan of Fox &
Hound Restaurant Group was duly adopted by the Board of Directors of Fox & Hound Restaurant Group
(the “Company”) on February 23, 2004, and approved by the Company’s stockholders at the Company’s
annual stockholder meeting on May 19, 2004.



 









 





Exhibit 10.1




THIRD AMENDMENT

TO

1997 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN

OF

FOX & HOUND RESTAURANT GROUP



1. The first sentence of Paragraph 4 of the 1997 Incentive and Nonqualified Stock Option Plan of
Fox & Hound Restaurant Group, as amended by that certain First Amendment dated January 14, 1999 and
that certain Second Amendment dated February 23, 2004 (the “Plan”), is hereby amended by replacing
it with the following sentence:





Subject to adjustment as provided in Section 7 hereof, a total of 2.5 million (2,500,000) shares of common stock, $0.01 par value (“Stock”) of the Company shall be subject to the
Plan.


2. Except as modified by Paragraph 1 above, the Plan shall remain in full force and effect.



3. The foregoing Second Amendment to the 1997 Incentive and Nonqualified Stock Option Plan of Fox &
Hound Restaurant Group was duly adopted by the Board of Directors of Fox & Hound Restaurant Group
(the “Company”) on March 8, 2005, and approved by the Company’s stockholders at the Company’s
annual stockholder meeting on May 17, 2005.