Exhibit 10(w)
LUBY'S, INC.
STOCK OPTION
_____________________________
Name of Employee: Christopher J. Pappas
Date of Grant: March 9, 2001
Expiration Date: March 9, 2011
Number of Option Shares: 1,120,000
Option Price per Share: $5.00
THIS OPTION is granted on the above date (the "Date of Grant") by Luby's,
Inc. (together with its subsidiaries, the "Company") to the person named above
(the "Employee"), upon the following terms and conditions:
1. Grant of Option. The Company hereby grants to the Employee an option
to purchase, on the terms and conditions stated herein, all or any part of the
aggregate number of shares specified above (the "Option Shares") of the
Company's Common Stock, par value $0.32 per share, ("Common Stock") at the
Option Price specified above.
2. Exercise of Option. Subject to the earlier expiration of this Option
as herein provided, this Option may be exercised, by written notice to the
Company at its principal executive office at any time and from time to time
after the Date of Grant hereof, but, except as otherwise provided below, this
Option shall not be exercisable for more than a cumulative percentage of the
aggregate number of Option Shares determined by the number of full years from
the date of grant hereof to the date of such exercise, in accordance with the
following schedule:
Number of Full Years Percentage of Shares
From Date of Grant That May Be Purchased
____________________ _____________________
Less than 1 year 0%
1 year 50%
2 years 75%
3 years or more 100%
Notwithstanding the preceding sentence, this Option shall be exercisable
for 25% of the aggregate number of Option Shares at any time and from time to
time after the Last Sale Price of the Common Stock (as defined in Section 3) has
exceeded $8.475 for twenty consecutive Trading Days (as defined in Section 3).
This Option is not transferable by Employee otherwise than by will or the
laws of descent and distribution, and may, subject to the next sentence of this
paragraph as to Permitted Transferees, be exercised only by Employee during
Employee's lifetime. Employee may transfer this Option, subject to the terms
and conditions hereof, for no consideration to (a) a member of his Immediate
Family (as defined below), (b) a trust solely for the benefit of the Employee
and/or one or more members of his Immediate Family or (c) a partnership,
corporation or limited liability company whose only partners, shareholders or
members are the Employee and/or one or more members of his Immediate Family.
Any transferee described in the preceding two sentences is referred to herein as
a "Permitted Transferee." The term "Immediate Family" means, with respect to
the Employee, such Employee's spouse, children and grandchildren (including
adopted and step children and grandchildren). Upon any transfer to a Permitted
Transferee, the terms and conditions of this Option shall be binding upon the
Permitted Transferee who receives a transfer of the Option, except that a
Permitted Transferee may not transfer the Option other than by will or by the
laws of descent and distribution. No transfer pursuant to the terms hereof
shall be effective unless (i) the Company receives prior written notice of the
terms and conditions of any intended transfer and (ii) the Company reasonably
determines that the intended transfer complies with the requirements set forth
herein. Any purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance that does not satisfy the requirements set forth herein
shall be void and unenforceable against the Company.
This Option may be exercised only while Employee remains an employee or
consultant of the Company and will terminate and cease to be exercisable upon
Employee's termination of employment with the Company, except that:
(a) Disability. If Employee's employment by the Company terminates by
reason of disability (as defined in that certain Employment Agreement
between the Company and the Employee dated March 7, 2001), this Option may
be exercised to the extent the Option was exercisable on the date of
termination or would become exercisable within six months of the date of
termination by Employee, or Employee's attorney-in-fact, guardian or
estate or the person who acquires this Option by will or the laws of
descent and distribution, within six months following the date of such
termination but in no event later than the Expiration Date.
(b) Death. If Employee dies while in the employ of the Company,
Employee's estate, or the person who acquires this Option by will or the
laws of descent and distribution, may exercise this Option to the extent
the Option was exercisable on the date of Employee's death or would become
exercisable within six months of the date of Employee's death at any time
within six months following the date of Employee's death but in no event
later than the Expiration Date.
(c) Cause or Without Good Reason. If Employee's employment by the
Company is terminated for "Cause", or Employee terminates his employment
without "Good Reason" (as such terms are defined in that certain
Employment Agreement between the Company and the Employee dated March 7,
2001), this Option may be exercised by Employee at any time during the
period of 30 days following such termination, or by Employee's estate (or
the person who acquires this Option by will or the laws of descent and
distribution during such period if Employee dies during such 30-day
period), but in each case no later than the Expiration Date and only as to
the number of shares Employee was entitled to purchase hereunder as of the
date Employee's employment so terminates.
(d) Without Cause or With Good Reason. If Employee's employment by the
Company is terminated without Cause or Employee terminates his employment
with Good Reason, this Option shall, notwithstanding the provisions of the
first paragraph of this Section 2, be fully vested and may be exercised by
Employee (or Employee's estate or the person who acquires this Option by
will of the laws of descent and distribution), in whole or in part, at any
time prior to the Expiration Date.
This Option shall not be exercisable in any event after the Expiration
Date. No fraction of a share of Common Stock shall be issued by the Company
upon exercise of an Option or accepted by the Company in payment of the exercise
price thereof; rather, Employee or his Permitted Transferee shall provide a cash
payment for such amount as is necessary to effect the issuance and acceptance of
only whole shares of Common Stock. Unless and until a certificate or
certificates representing such shares shall have been issued by the Company to
Employee or his Permitted Transferee, Employee or his Permitted Transferee (or
the person permitted to exercise this Option in the event of Employee's death)
shall not be or have any of the rights or privileges of a shareholder of the
Company with respect to shares acquirable upon an exercise of this Option.
3. Payment for Shares. Payment for shares purchased upon exercise of this
Option shall be made in full at the time of exercise of the Option in cash or by
delivering Common Stock of the Company having a fair market value on the date of
exercise at least equal to the Option Price, or a combination of Common Stock
and cash. Such fair market value on any day shall be deemed to be the Last Sale
Price on the date on which this Option is exercised. "Last Sale Price" on any
Trading Day shall mean (i) the closing price regular way (or, if no closing
price is reported the average of the bid and asked prices) as reported on the
New York Stock Exchange Composite Tape, or (ii) if on such Trading Day the
Common Stock is not listed or admitted to trading on such exchange, the closing
price regular way (or, if no closing price is reported the average of the bid
and asked prices) on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or (iii) if not listed or
admitted to trading on any national securities exchange on such Trading Day,
then the average of the closing bid and asked prices as reported through the
National Association of Securities Dealers, Inc. on its NASDAQ National Market
or other NASDAQ market or through a similar organization if NASDAQ is no longer
reporting information, or (iv) if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market or
other NASDAQ market on such Trading Day, then the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose,
or (v) if not quoted by any such organization on such Trading Day, the fair
value of such Common Stock on such Trading Day, as reasonably determined by the
Board of Directors in good faith. "Trading Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than a day on which securities are
not traded on the New York Stock Exchange.
4. Method of Exercise. This Option may be exercised only by written
notice given to the Company, in form satisfactory to the Company, specifying the
number of Option Shares which the holder of the Option elects to purchase, the
number of Option Shares which the holder is paying for in cash and the number of
Option Shares which the holder is paying for with shares of Common Stock. Such
written notice shall be accompanied by a check payable to the order of the
Company for the cash portion, if any, of the purchase price and, if applicable,
by the delivery of certificates representing shares of Common Stock duly
endorsed and otherwise in proper form for transfer to the Company of such number
of shares of Common Stock as are required to equal the fair market value of the
Option Shares being paid for in stock. Upon each exercise of this Option, the
Company, as promptly as practicable, will mail or deliver to the person
exercising this Option a certificate or certificates representing the shares
then purchased. The Company may require any person exercising this Option to
make such representations and furnish such information as the Company may
reasonably consider appropriate in connection with the issuance of the shares in
compliance with applicable law.
5. Withholding of Tax. To the extent that the exercise of this Option or
the disposition of shares of Common Stock acquired by exercise of this Option
results in compensation income to Employee for federal or state income tax
purposes, Employee shall deliver to the Company at the time of such exercise or
disposition such amount of money or shares of Common Stock as the Company may
require to meet its obligation under applicable tax laws or regulations, and, if
Employee fails to do so, the Company is authorized to withhold from any cash or
Common Stock remuneration then or thereafter payable to Employee any tax
required to be withheld by reason of such resulting compensation income. Upon
an exercise of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or shares of Stock
distributable to Employee upon such exercise.
6. Status of Stock. The Company will register for issuance the shares of
Common Stock acquirable upon exercise of this Option on Form S-8 within sixty
(60) days of the date of grant, and will use its reasonable best efforts to
keep such registration effective throughout the period this Option is
exercisable.
Employee agrees that the shares of Common Stock which Employee may acquire
by exercising this Option will not be sold or otherwise disposed of in any
manner which would constitute a violation of any applicable securities laws,
whether federal or state. Employee also agrees (i) that the certificates
representing the shares of Common Stock purchased under this Option may bear
such legend or legends as the Company deems appropriate in order to assure
compliance with applicable securities laws, (ii) that the Company may refuse to
register the transfer of the shares of Common Stock purchased under this Option
on the stock transfer records of the Company if such proposed transfer would in
the opinion of counsel satisfactory to the Company constitute a violation of any
applicable securities law and (iii) that the Company may give related
instructions to its transfer agent, if any, to stop registration of the transfer
of the shares of Common Stock purchased under this Option.
7. Adjustments. The Exercise Price and the number of Option Shares
purchasable hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while this Option, or
any portion hereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in
which the Company is the surviving entity but the shares of the Company's
capital stock outstanding immediately prior to the merger are converted by
virtue of the merger into other property, whether in the form of
securities, cash, or otherwise, or (iii) a sale or transfer of the
Company's properties and assets as, or substantially as, an entirety to
any other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that
the holder of this Option shall thereafter be entitled to receive upon
exercise of this Option, during the period specified herein and upon
payment of the Option Price then in effect, the number of Option Shares or
other securities or property of the successor corporation resulting from
such reorganization, merger, consolidation, sale or transfer that a holder
of the shares deliverable upon exercise of this Option would have been
entitled to receive in such reorganization, consolidation, merger, sale or
transfer if this Option had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer, all subject to
further adjustment as provided in this Section 7. The foregoing
provisions of this section shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the
stock or securities of any other corporation that are at the time
receivable upon the exercise of this Option. If the per-share
consideration payable to the holder hereof for shares in connection with
any such transaction is in a form other than cash or marketable
securities, then the value of such consideration shall be determined in
good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board
of Directors) shall be made in the application of the provisions of this
Option with respect to the rights and interests of the holder after the
transaction, to the end that the provisions of this Option shall be
applicable after that event, as near as reasonably may be, in relation to
any shares or other property deliverable after that event upon exercise of
this Option.
(b) Reclassification, etc. If the Company, at any time while this
Option, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the
securities as to which purchase rights under this Option exist into the
same or a different number of securities of any other class or classes,
this Option shall thereafter represent the right to acquire such number
and kind of securities as would have been issuable as the result of such
change with respect to the securities that were subject to the purchase
rights under this Option immediately prior to such reclassification or
other change and the Exercise Price therefor shall be appropriately
adjusted, all subject to further adjustment as provided in this Section 7.
(c) Split, Subdivision or Combination of Shares. If the Company at any
time while this Option, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Option exist, into a different number of
securities of the same class, the Option Price for such securities shall
be proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
(d) Adjustments for Dividends in Stock or Other Securities or Property.
If while this Option, or any portion hereof, remains outstanding and
unexpired, the holders of the securities as to which purchase rights under
this Option exist at the time shall have received, or, on or after the
record date fixed for the determination of eligible stockholders, shall
have become entitled to receive, without payment therefor, other or
additional stock or other securities or property (other than cash) of the
Company by way of dividend, then and in each case, this Option shall
represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Option, and without payment of
any additional consideration therefor, the amount of such other or
additional stock or other securities or property (other than cash) of the
Company that such holder would hold on the date of such exercise had it
been the holder of record of the security receivable upon exercise of this
Option on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such event, retained such shares
and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
the provisions of this Section 7.
(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 7, the Company at its
expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the holder of this Option
a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based.
8. Registration Rights. Upon exercise of this Option, the holder shall
have and be entitled to exercise, together with all other holders of
registrable securities possessing registration rights under that certain
Purchase Agreement and related Registration Rights Agreement, of even date
herewith (together the "Purchase Agreement") , between the Company and the
parties who have executed the counterpart signature pages thereto or are
otherwise bound thereby, the rights of registration granted under the Purchase
Agreement to with respect to the shares of Common Stock issuable upon exercise
of this Option.
9. Rights. Whenever the Company shall issue shares of Common Stock upon
exercise of this Option, the Company shall issue, together with each such share
of Common Stock, one right to purchase one-half of one share of Common Stock of
the Company (or other securities in lieu thereof) pursuant to the Rights
Agreement dated as of April 16, 1991 between Luby's Cafeterias, Inc. and
AmeriTrust Company, N.A., as amended, or any similar rights issued to holders of
Common Stock in addition thereto or in the replacement therefor (such rights,
together with any additional or replacement rights, being collectively referred
to as the "Rights"), whether or not such Rights shall be exercisable at such
time, but only if such Rights are issued and outstanding and held by the other
holders of Common Stock (or evidenced by outstanding share certificates
representing Common Stock) at such time and have not expired or been redeemed.
10. Employment Relationship. Although this Option may be exercised only
as provided in Section 2 hereof, it is understood that, subject to the terms of
any employment contract, employment of the Employee shall be at the pleasure of
the employer, and at such compensation as the employer shall reasonably
determine from time to time. Nothing in this Option shall confer on the
Employee any right to continue in the employment of the Company or any of its
affiliates or to interfere in any way with the right of the Company or its
affiliates to terminate his or her employment at any time. For purposes of this
Agreement, Employee shall be considered to be in the employment of the Company
as long as Employee remains an employee of, or consultant to, either the
Company, a parent or subsidiary corporation (as defined in section 424 of the
Code) of the Company, or a corporation or a parent or subsidiary of such
corporation assuming or substituting a new option for this Option.
11. Reservation of Stock. The Company covenants that during the term this
Option is exercisable, the Company will reserve from its authorized and unissued
Common Stock and/or its treasury stock a sufficient number of shares to provide
for the issuance of Common Stock upon the exercise of this Option.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to Employee:
Christopher J. Pappas
642 Yale
Houston, Texas 77007
with a copy to:
Frank Markantonis
645 Heights Blvd.
Houston, Texas 77007
and
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Charles H. Still
If to Luby's:
Luby's, Inc.
2211 Northeast Loop 410
San Antonio, Texas 78217-4673
Attention: Chairman of the Board
with a copy to:
Cauthorn Hale Hornberger Fuller
Sheehan Becker & Beiter Incorporated
700 N. St. Mary's Street, Suite 600
San Antonio, Texas 78205
Attention: Drew R. Fuller, Jr.
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, on the date of receipt, if telecopied, three Business Days
after the date of mailing, if mailed by registered or certified mail, return
receipt requested, and one Business Day after the date of sending, if sent by
Federal Express or other recognized overnight courier.
13. Successors; Governing Law. This Option shall be binding upon any
successors or assigns of the Company. THIS OPTION SHALL CONSTITUTE A CONTRACT
UNDER THE LAWS OF TEXAS AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF TEXAS WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES.
14. Entire Agreement. This Option Agreement (which term shall be deemed
to include the exhibits hereto and any other certificates, documents or
instruments delivered hereunder) the Purchase Agreement, and the other
transaction documents (as defined therein) constitute the entire agreement of
the Parties hereto and supercede all prior agreements and understandings, both
written and oral, among the parties as to the subject matter hereof. There are
no representations or warranties, agreements, or covenants other than those
expressly set forth herein, in the Purchase Agreement and in the other
Transaction Documents.
15. Counterparts. This Option may be executed and delivered (including by
facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one ore
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
16. Headings. The headings of this Option are for convenience of
reference only and are not part of the substance of this Option.
17. Severability. If any term or other provision of this Option is
invalid, illegal or incapable of being enforced by any rule of applicable law,
or public policy, all other conditions and provisions of this Option shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Option so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated herein are consummated as originally
contemplated to the fullest extent possible.
18. Modification. No provisions of this Option may be modified, waived or
discharged orally, but only by a waiver, modification or discharge in writing
signed by the Employee and such officer of the Company as may be designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Option to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the time or at any prior or subsequent
time.
IN WITNESS WHEREOF, the Company has caused this Option to be executed in
duplicate by its proper corporate officers thereunto duly authorized, and
Employee has executed this Option, all as of the Date of Grant.
ATTEST: LUBY'S, INC.
By: /s/ ROBERT T. HERRES
_______________________________ _______________________________
Secretary Name: Robert T. Herres
Title: Chairman of the Board
ACCEPTED:
/s/CHRISTOPHER J. PAPPAS
_____________________________
Christopher J. Pappas
Exhibit 10(x)
LUBY'S, INC.
STOCK OPTION
_____________________________
Name of Employee: Harris J. Pappas
Date of Grant: March 9, 2001
Expiration Date: March 9, 2011
Number of Option Shares: 1,120,000
Option Price per Share: $5.00
THIS OPTION is granted on the above date (the "Date of Grant") by Luby's,
Inc. (together with its subsidiaries, the "Company") to the person named above
(the "Employee"), upon the following terms and conditions:
1. Grant of Option. The Company hereby grants to the Employee an option
to purchase, on the terms and conditions stated herein, all or any part of the
aggregate number of shares specified above (the "Option Shares") of the
Company's Common Stock, par value $0.32 per share, ("Common Stock") at the
Option Price specified above.
2. Exercise of Option. Subject to the earlier expiration of this Option
as herein provided, this Option may be exercised, by written notice to the
Company at its principal executive office at any time and from time to time
after the Date of Grant hereof, but, except as otherwise provided below, this
Option shall not be exercisable for more than a cumulative percentage of the
aggregate number of Option Shares determined by the number of full years from
the date of grant hereof to the date of such exercise, in accordance with the
following schedule:
Number of Full Years Percentage of Shares
From Date of Grant That May Be Purchased
Less than 1 year 0%
1 year 50%
2 years 75%
3 years or more 100%
Notwithstanding the preceding sentence, this Option shall be exercisable
for 25% of the aggregate number of Option Shares at any time and from time to
time after the Last Sale Price of the Common Stock (as defined in Section 3) has
exceeded $8.475 for twenty consecutive Trading Days (as defined in Section 3)
This Option is not transferable by Employee otherwise than by will or the
laws of descent and distribution, and may, subject to the next sentence of this
paragraph as to Permitted Transferees, be exercised only by Employee during
Employee's lifetime. Employee may transfer this Option, subject to the terms
and conditions hereof, for no consideration to (a) a member of his Immediate
Family (as defined below), (b) a trust solely for the benefit of the Employee
and/or one or more members of his Immediate Family or (c) a partnership,
corporation or limited liability company whose only partners, shareholders or
members are the Employee and/or one or more members of his Immediate Family.
Any transferee described in the preceding two sentences is referred to herein as
a "Permitted Transferee." The term "Immediate Family" means, with respect to
the Employee, such Employee's spouse, children and grandchildren (including
adopted and step children and grandchildren). Upon any transfer to a Permitted
Transferee, the terms and conditions of this Option shall be binding upon the
Permitted Transferee who receives a transfer of the Option, except that a
Permitted Transferee may not transfer the Option other than by will or by the
laws of descent and distribution. No transfer pursuant to the terms hereof
shall be effective unless (i) the Company receives prior written notice of the
terms and conditions of any intended transfer and (ii) the Company reasonably
determines that the intended transfer complies with the requirements set forth
herein. Any purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance that does not satisfy the requirements set forth herein
shall be void and unenforceable against the Company.
This Option may be exercised only while Employee remains an employee or
consultant of the Company and will terminate and cease to be exercisable upon
Employee's termination of employment with the Company, except that:
(a) Disability. If Employee's employment by the Company terminates
by reason of disability (as defined in that certain Employment Agreement
between the Company and the Employee dated March 7, 2001), this Option may
be exercised to the extent the Option was exercisable on the date of
termination or would become exercisable within six months of the date of
termination by Employee, or Employee's attorney-in-fact, guardian or estate
or the person who acquires this Option by will or the laws of descent and
distribution, within six months following the date of such termination but
in no event later than the Expiration Date.
(b) Death. If Employee dies while in the employ of the Company,
Employee's estate, or the person who acquires this Option by will or the
laws of descent and distribution, may exercise this Option to the extent
the Option was exercisable on the date of Employee's death or would become
exercisable within six months of the date of Employee's death at any time
within six months following the date of Employee's death but in no event
later than the Expiration Date.
(c) Cause or Without Good Reason. If Employee's employment by the
Company is terminated for "Cause", or Employee terminates his employment
without "Good Reason" (as such terms are defined in that certain Employment
Agreement between the Company and the Employee dated March 7, 2001), this
Option may be exercised by Employee at any time during the period of 30
days following such termination, or by Employee's estate (or the person who
acquires this Option by will or the laws of descent and distribution during
such period if Employee dies during such 30-day period), but in each case
no later than the Expiration Date and only as to the number of shares
Employee was entitled to purchase hereunder as of the date Employee's
employment so terminates.
(d) Without Cause or With Good Reason. If Employee's employment by
the Company is terminated without Cause or Employee terminates his
employment with Good Reason, this Option shall, notwithstanding the
provisions of the first paragraph of this Section 2, be fully vested and
may be exercised by Employee (or Employee's estate or the person who
acquires this Option by will of the laws of descent and distribution), in
whole or in part, at any time prior to the Expiration Date.
This Option shall not be exercisable in any event after the Expiration
Date. No fraction of a share of Common Stock shall be issued by the Company
upon exercise of an Option or accepted by the Company in payment of the exercise
price thereof; rather, Employee or his Permitted Transferee shall provide a cash
payment for such amount as is necessary to effect the issuance and acceptance of
only whole shares of Common Stock. Unless and until a certificate or
certificates representing such shares shall have been issued by the Company to
Employee or his Permitted Transferee, Employee or his Permitted Transferee (or
the person permitted to exercise this Option in the event of Employee's death)
shall not be or have any of the rights or privileges of a shareholder of the
Company with respect to shares acquirable upon an exercise of this Option.
3. Payment for Shares. Payment for shares purchased upon exercise of this
Option shall be made in full at the time of exercise of the Option in cash or by
delivering Common Stock of the Company having a fair market value on the date of
exercise at least equal to the Option Price, or a combination of Common Stock
and cash. Such fair market value on any day shall be deemed to be the Last Sale
Price on the date on which this Option is exercised. "Last Sale Price" on any
Trading Day shall mean (i) the closing price regular way (or, if no closing
price is reported the average of the bid and asked prices) as reported on the
New York Stock Exchange Composite Tape, or (ii) if on such Trading Day the
Common Stock is not listed or admitted to trading on such exchange, the closing
price regular way (or, if no closing price is reported the average of the bid
and asked prices) on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or (iii) if not listed or
admitted to trading on any national securities exchange on such Trading Day,
then the average of the closing bid and asked prices as reported through the
National Association of Securities Dealers, Inc. on its NASDAQ National Market
or other NASDAQ market or through a similar organization if NASDAQ is no longer
reporting information, or (iv) if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market or
other NASDAQ market on such Trading Day, then the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose,
or (v) if not quoted by any such organization on such Trading Day, the fair
value of such Common Stock on such Trading Day, as reasonably determined by the
Board of Directors in good faith. "Trading Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than a day on which securities are
not traded on the New York Stock Exchange.
4. Method of Exercise. This Option may be exercised only by written
notice given to the Company, in form satisfactory to the Company, specifying the
number of Option Shares which the holder of the Option elects to purchase, the
number of Option Shares which the holder is paying for in cash and the number of
Option Shares which the holder is paying for with shares of Common Stock. Such
written notice shall be accompanied by a check payable to the order of the
Company for the cash portion, if any, of the purchase price and, if applicable,
by the delivery of certificates representing shares of Common Stock duly
endorsed and otherwise in proper form for transfer to the Company of such number
of shares of Common Stock as are required to equal the fair market value of the
Option Shares being paid for in stock. Upon each exercise of this Option, the
Company, as promptly as practicable, will mail or deliver to the person
exercising this Option a certificate or certificates representing the shares
then purchased. The Company may require any person exercising this Option to
make such representations and furnish such information as the Company may
reasonably consider appropriate in connection with the issuance of the shares in
compliance with applicable law.
5. Withholding of Tax. To the extent that the exercise of this Option or
the disposition of shares of Common Stock acquired by exercise of this Option
results in compensation income to Employee for federal or state income tax
purposes, Employee shall deliver to the Company at the time of such exercise or
disposition such amount of money or shares of Common Stock as the Company may
require to meet its obligation under applicable tax laws or regulations, and, if
Employee fails to do so, the Company is authorized to withhold from any cash or
Common Stock remuneration then or thereafter payable to Employee any tax
required to be withheld by reason of such resulting compensation income. Upon
an exercise of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or shares of Stock
distributable to Employee upon such exercise.
6. Status of Stock. The Company will register for issuance the shares of
Common Stock acquirable upon exercise of this Option on Form S-8 within sixty
(60) days of the date of grant, and will use its reasonable best efforts to
keep such registration effective throughout the period this Option is
exercisable.
Employee agrees that the shares of Common Stock which Employee may acquire
by exercising this Option will not be sold or otherwise disposed of in any
manner which would constitute a violation of any applicable securities laws,
whether federal or state. Employee also agrees (i) that the certificates
representing the shares of Common Stock purchased under this Option may bear
such legend or legends as the Company deems appropriate in order to assure
compliance with applicable securities laws, (ii) that the Company may refuse to
register the transfer of the shares of Common Stock purchased under this Option
on the stock transfer records of the Company if such proposed transfer would in
the opinion of counsel satisfactory to the Company constitute a violation of any
applicable securities law and (iii) that the Company may give related
instructions to its transfer agent, if any, to stop registration of the transfer
of the shares of Common Stock purchased under this Option.
7. Adjustments. The Exercise Price and the number of Option Shares
purchasable hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while this Option,
or any portion hereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in
which the Company is the surviving entity but the shares of the Company's
capital stock outstanding immediately prior to the merger are converted by
virtue of the merger into other property, whether in the form of
securities, cash, or otherwise, or (iii) a sale or transfer of the
Company's properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
holder of this Option shall thereafter be entitled to receive upon exercise
of this Option, during the period specified herein and upon payment of the
Option Price then in effect, the number of Option Shares or other
securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of
the shares deliverable upon exercise of this Option would have been
entitled to receive in such reorganization, consolidation, merger, sale or
transfer if this Option had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer, all subject to
further adjustment as provided in this Section 7. The foregoing provisions
of this section shall similarly apply to successive reorganizations,
consolidations, mergers, sales and transfers and to the stock or securities
of any other corporation that are at the time receivable upon the exercise
of this Option. If the per-share consideration payable to the holder
hereof for shares in connection with any such transaction is in a form
other than cash or marketable securities, then the value of such
consideration shall be determined in good faith by the Company's Board of
Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Option with respect to the rights and interests
of the holder after the transaction, to the end that the provisions of this
Option shall be applicable after that event, as near as reasonably may be,
in relation to any shares or other property deliverable after that event
upon exercise of this Option.
(b) Reclassification, etc. If the Company, at any time while this
Option, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the
securities as to which purchase rights under this Option exist into the
same or a different number of securities of any other class or classes,
this Option shall thereafter represent the right to acquire such number and
kind of securities as would have been issuable as the result of such change
with respect to the securities that were subject to the purchase rights
under this Option immediately prior to such reclassification or other
change and the Exercise Price therefor shall be appropriately adjusted, all
subject to further adjustment as provided in this Section 7.
(c) Split, Subdivision or Combination of Shares. If the Company at
any time while this Option, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which
purchase rights under this Option exist, into a different number of
securities of the same class, the Option Price for such securities shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
(d) Adjustments for Dividends in Stock or Other Securities or
Property. If while this Option, or any portion hereof, remains outstanding
and unexpired, the holders of the securities as to which purchase rights
under this Option exist at the time shall have received, or, on or after
the record date fixed for the determination of eligible stockholders, shall
have become entitled to receive, without payment therefor, other or
additional stock or other securities or property (other than cash) of the
Company by way of dividend, then and in each case, this Option shall
represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Option, and without payment of
any additional consideration therefor, the amount of such other or
additional stock or other securities or property (other than cash) of the
Company that such holder would hold on the date of such exercise had it
been the holder of record of the security receivable upon exercise of this
Option on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such event, retained such shares
and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
the provisions of this Section 7.
(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 7, the Company at its
expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the holder of this Option a
certificate setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based.
8. Registration Rights. Upon exercise of this Option, the holder shall
have and be entitled to exercise, together with all other holders of
registrable securities possessing registration rights under that certain
Purchase Agreement and related Registration Rights Agreement, of even date
herewith (together the "Purchase Agreement") , between the Company and the
parties who have executed the counterpart signature pages thereto or are
otherwise bound thereby, the rights of registration granted under the Purchase
Agreement to with respect to the shares of Common Stock issuable upon exercise
of this Option.
9. Rights. Whenever the Company shall issue shares of Common Stock upon
exercise of this Option, the Company shall issue, together with each such share
of Common Stock, one right to purchase one-half of one share of Common Stock of
the Company (or other securities in lieu thereof) pursuant to the Rights
Agreement dated as of April 16, 1991 between Luby's Cafeterias, Inc. and
AmeriTrust Company, N.A., as amended, or any similar rights issued to holders of
Common Stock in addition thereto or in the replacement therefor (such rights,
together with any additional or replacement rights, being collectively referred
to as the "Rights"), whether or not such Rights shall be exercisable at such
time, but only if such Rights are issued and outstanding and held by the other
holders of Common Stock (or evidenced by outstanding share certificates
representing Common Stock) at such time and have not expired or been redeemed.
10. Employment Relationship. Although this Option may be exercised only
as provided in Section 2 hereof, it is understood that, subject to the terms of
any employment contract, employment of the Employee shall be at the pleasure of
the employer, and at such compensation as the employer shall reasonably
determine from time to time. Nothing in this Option shall confer on the
Employee any right to continue in the employment of the Company or any of its
affiliates or to interfere in any way with the right of the Company or its
affiliates to terminate his or her employment at any time. For purposes of this
Agreement, Employee shall be considered to be in the employment of the Company
as long as Employee remains an employee of, or consultant to, either the
Company, a parent or subsidiary corporation (as defined in section 424 of the
Code) of the Company, or a corporation or a parent or subsidiary of such
corporation assuming or substituting a new option for this Option.
11. Reservation of Stock. The Company covenants that during the term this
Option is exercisable, the Company will reserve from its authorized and unissued
Common Stock and/or its treasury stock a sufficient number of shares to provide
for the issuance of Common Stock upon the exercise of this Option.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to Employee:
Harris J. Pappas
642 Yale
Houston, Texas 77007
with a copy to:
Frank Markantonis
645 Heights Blvd.
Houston, Texas 77007
and
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Charles H. Still
If to Luby's:
Luby's, Inc.
2211 Northeast Loop 410
San Antonio, Texas 78217-4673
Attention: Chairman of the Board
with a copy to:
Cauthorn Hale Hornberger Fuller
Sheehan Becker & Beiter Incorporated
700 N. St. Mary's Street, Suite 600
San Antonio, Texas 78205
Attention: Drew R. Fuller, Jr.
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, on the date of receipt, if telecopied, three Business Days
after the date of mailing, if mailed by registered or certified mail, return
receipt requested, and one Business Day after the date of sending, if sent by
Federal Express or other recognized overnight courier.
13. Successors; Governing Law. This Option shall be binding upon any
successors or assigns of the Company. THIS OPTION SHALL CONSTITUTE A CONTRACT
UNDER THE LAWS OF TEXAS AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF TEXAS WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES.
14. Entire Agreement. This Option Agreement (which term shall be deemed
to include the exhibits hereto and any other certificates, documents or
instruments delivered hereunder) the Purchase Agreement, and the other
transaction documents (as defined therein) constitute the entire agreement of
the Parties hereto and supercede all prior agreements and understandings, both
written and oral, among the parties as to the subject matter hereof. There are
no representations or warranties, agreements, or covenants other than those
expressly set forth herein, in the Purchase Agreement and in the other
Transaction Documents.
15. Counterparts. This Option may be executed and delivered (including by
facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
16. Headings. The headings of this Option are for convenience of
reference only and are not part of the substance of this Option.
17. Severability. If any term or other provision of this Option is
invalid, illegal or incapable of being enforced by any rule of applicable law,
or public policy, all other conditions and provisions of this Option shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Option so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated herein are consummated as originally
contemplated to the fullest extent possible.
18. Modification. No provisions of this Option may be modified, waived or
discharged orally, but only by a waiver, modification or discharge in writing
signed by the Employee and such officer of the Company as may be designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Option to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the time or at any prior or subsequent
time.
IN WITNESS WHEREOF, the Company has caused this Option to be executed in
duplicate by its proper corporate officers thereunto duly authorized, and
Employee has executed this Option, all as of the Date of Grant.
ATTEST: LUBY'S, INC.
By: /s/ROBERT T. HERRES
_____________________________ ____________________________
Secretary Name: Robert T. Herres
Title: Chairman of the Board
ACCEPTED:
/S/HARRIS J. PAPPAS
__________________________
Harris J. Pappas