FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(Mark One)
[x] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended February 28, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________________ to ______________________
Commission file number: 1-8308
LUBY'S CAFETERIAS, INC.
______________________________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 74-1335253
_______________________________ ____________________________
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
2211 Northeast Loop 410, P. O. Box 33069
San Antonio, Texas 78265-3069
______________________________________________________________________________
(Address of principal executive offices) (Zip Code)
210/654-9000
______________________________________________________________________________
(Registrant's telephone number, including area code)
______________________________________________________________________________
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days.
Yes x No
____ ____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock: 25,823,556 shares outstanding as of
February 28, 1994 (exclusive of 1,579,511
treasury shares)
<PAGE>
Part I - FINANCIAL INFORMATION
Item 1. Financial Statements.
<TABLE>
LUBY'S CAFETERIAS, INC.
STATEMENTS OF INCOME
(UNAUDITED)
<CAPTION>
Three Months Ended Six Months Ended
February 28, February 28,
1994 1993 1994 1993
____ ____ ____ ____
(Amounts in thousands except per share data)
<S> <C> <C> <C> <C>
Sales $93,719 $88,297 $187,885 $176,894
Costs and expenses:
Cost of food 23,554 22,425 47,513 44,599
Payroll and related costs 25,350 23,846 51,360 48,608
Occupancy and other operating
expenses 27,431 25,681 54,727 50,993
General and administrative expenses 3,796 3,987 7,373 8,217
_______ _______ _______ _______
80,131 75,939 160,973 152,417
_______ _______ _______ _______
Income from operations 13,588 12,358 26,912 24,477
Other income, net 155 353 613 698
Income before income taxes and
cumulative effect of change in
accounting for income taxes 13,743 12,711 27,525 25,175
Provision for income taxes (Note 2) 5,162 4,703 10,339 9,315
_______ _______ _______ _______
Income before cumulative effect
of accounting change 8,581 8,008 17,186 15,860
Cumulative effect as of August 31,
1993 of change in method of
accounting for income taxes (Note 2) --- --- 1,563 ---
_______ _______ _______ _______
Net income $ 8,581 $ 8,008 $ 18,749 $15,860
_______ _______ _______ _______
<PAGE>
Earnings per share:
Income before cumulative effect of
accounting change $.33 $.29 $.65 $.58
Cumulative effect of accounting
change --- --- .06 ---
_______ _______ _______ _______
Net income per share $.33 $.29 $.71 $.58
_______ _______ _______ _______
Cash dividends per share $.15 $.135 $.30 $.27
_______ _______ _______ _______
Average number of
shares outstanding 26,137 27,171 26,485 27,153
See accompanying notes.
</TABLE>
<PAGE>
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued).
LUBY'S CAFETERIAS, INC.
CONDENSED BALANCE SHEETS
(UNAUDITED)
<TABLE>
February 28, August 31,
1994 1993
___________ __________
(Thousands of dollars)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 8,646 $ 34,305
Trade accounts and other receivables 149 602
Inventories 3,246 3,426
Prepaid expenses 3,134 2,467
Deferred income taxes 822 3,018
________ ________
Total current assets 15,997 43,818
Investments and other assets - at cost 12,858 13,495
Property, plant and equipment - at cost, net 248,276 244,786
________ ________
$277,131 $302,099
________ ________
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings (Note 3) $ 6,000 $ -
Accounts payable - trade 11,476 9,688
Dividends payable 3,874 4,084
Accrued expenses and other liabilities 18,963 26,759
Income taxes payable 149 2,793
________ ________
Total current liabilities 40,462 43,324
Deferred income taxes and other credits 18,980 19,827
Shareholders' equity:
Common stock 8,769 8,769
Paid-in capital 26,945 27,037
Retained earnings 216,536 206,214
Less cost of treasury stock (34,561) (3,072)
________ ________
Total shareholders' equity 217,689 238,948
________ ________
$277,131 $302,099
________ ________
See accompanying notes.
</TABLE>
<PAGE>
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued).
LUBY'S CAFETERIAS, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
Six Months Ended
February 28,
1994 1993
____ ____
(Thousands of dollars)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $18,749 $15,860
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 7,776 7,550
Cumulative effect of accounting change (1,563) ---
Decrease in accrued expenses and other liabilities (7,796) (2,641)
Other 1,979 (3,004)
_______ ______
Net cash provided by operating activities 19,145 17,765
_______ ______
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from disposal of land held for future use 270 ---
Purchases of land held for future use (762) ---
Purchases of property, plant and equipment (10,094) (8,343)
_______ _______
Net cash used in investing activities (10,586) (8,343)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock under
employee benefit plans 2,505 1,696
Proceeds from short-term borrowings 6,000 ---
Principal payments of long-term debt --- (1,847)
Purchases of treasury stock (34,681) ---
Dividends paid (8,042) (7,326)
_______ _______
Net cash used in financing activities (34,218) (7,477)
_______ _______
Net increase (decrease) in cash and cash equivalents (25,659) 1,945
Cash and cash equivalents at beginning of period 34,305 12,294
_______ _______
Cash and cash equivalents at end of period $ 8,646 $14,239
_______ _______
See accompanying notes.
/TABLE
<PAGE>
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued).
LUBY'S CAFETERIAS, INC.
STATEMENTS OF SHAREHOLDERS' EQUITY
For the Six Months Ended February 28, 1994 and 1993
(UNAUDITED)
<TABLE>
Total
Common Stock Paid-in Retained Shareholders'
Issued Treasury Capital Earnings Equity
________ ________ _______ _________ __________
(Thousands of dollars)
<S> <C> <C> <C> <C> <C>
Balance at August 31, 1992 $8,769 $(4,252) $26,945 $185,789 $217,251
Net income for the period --- --- --- 15,860 15,860
Common stock issued under
employee benefit plans, net
of shares tendered in partial
payment --- 1,576 122 (2) 1,696
Cash dividends --- --- --- (7,340) (7,340)
______ _______ _______ ________ ________
Balance at February 28, 1993 $8,769 $(2,676) $27,067 $194,307 $227,467
______ _______ _______ ________ ________
Balance at August 31, 1993 $8,769 $(3,072) $27,037 $206,214 $238,948
Net income for the period --- --- --- 18,749 18,749
Common stock issued under
employee benefit plans, net
of shares tendered in
partial payment --- 3,192 (92) (595) 2,505
Cash dividends --- --- --- (7,832) (7,832)
Purchases of treasury stock --- (34,681) --- --- (34,681)
______ ________ _______ ________ ________
Balance at February 28, 1994 $8,769 $(34,561) $26,945 $216,536 $217,689
______ ________ _______ ________ ________
See accompanying notes.
</TABLE>
<PAGE>
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued).
LUBY'S CAFETERIAS, INC.
NOTES TO FINANCIAL STATEMENTS
February 28, 1994
(UNAUDITED)
Note 1: All adjustments which are, in the opinion of management, necessary to
a fair statement of the results for the interim periods have been
made. All such adjustments are of a normal recurring nature. The
results for the interim period are not necessarily indicative of
the results to be expected for the full year.
Note 2: Effective September 1, 1993, the Company adopted FASB Statement No.
109, "Accounting for Income Taxes." Under Statement 109, the
liability method is used in accounting for income taxes. Under this
method, deferred tax assets and liabilities are determined based on
differences between financial reporting and tax bases of assets and
liabilities ("temporary differences") and are measured using the
enacted tax rates and laws that will be in effect when the differences
are expected to reverse. Prior to the adoption of Statement 109,
income tax expense was determined using the deferred method. Deferred
tax expense was based on items of income and expense that were
reported in different years in the financial statements and tax
returns and were measured at the tax rate in effect in the year the
difference originated.
As permitted by Statement 109, the Company has elected not to restate
the financial statements of any prior years. The effect of the change
on pretax income from continuing operations for the six month periods
ended February 28, 1994 and 1993, was not material; however, the
cumulative effect of the change increased net income by $1,563,000, or
$.06 per share.
The tax effect of temporary differences results in deferred income tax
assets and liabilities as follows:
February 28, 1994
Assets Liabilities
______ ___________
(Thousands of dollars)
Workers' compensation insurance $ 822 $ -
Amortization of capitalized interest - 518
Depreciation and amortization - 16,859
Deferred compensation 847 -
Other - 201
______ _______
$1,669 $17,578
______ _______
The above amounts aggregate to a current deferred tax asset of
$822,000 and to a noncurrent deferred tax liability of $16,731,000 at
February 28, 1994.
Note 3: During February 1994, the Company borrowed $6,000,000 under a
$30,000,000 line of credit agreement which expires in January 1995.
The current borrowings bear interest at 3.75% and mature on March 17,
1994.
<PAGE>
Part I - FINANCIAL INFORMATION (continued)
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
Liquidity and Capital Resources
________________________________
Cash and cash equivalents decreased by $25,659,000 from the end of the preceding
fiscal year to February 28, 1994. All capital expenditures for fiscal 1994 are
being funded from cash flows from operations, cash equivalents and short-term
borrowings. Capital expenditures for the six months ended February 28, 1994,
were $10,856,000. As of February 28, 1994, the Company owned 17 undeveloped
land sites.
During the six months ended February 28, 1994, the Company purchased 1,553,100
shares of its common stock at a cost of $34,681,000, which are being held as
treasury stock. To complete this purchase and fund capital expenditures, the
Company required external financing and borrowed funds under a $30,000,000 line
of credit agreement. At February 28, 1994, the amount outstanding under this
line of credit was $6,000,000.
Results of Operations
_____________________
Quarter ended February 28, 1994 compared to the quarter ended February 28, 1993.
_____________________________________________________________________________
Sales increased $5,422,000, or 6.1%, due to the addition of two new cafeterias
in fiscal 1994 and six in fiscal 1993, and due to an increase in average sales
volume at cafeterias opened over one year.
Cost of food increased $1,129,000, or 5%, due primarily to the increase in
sales. Payroll and related costs increased $1,504,000, or 6.3%, due primarily
to the increase in sales, while workers' compensation costs remained stable.
Occupancy and other operating expenses increased $1,750,000, or 6.8%, due
primarily to the increase in sales, higher advertising expenditures, and higher
managers' salaries, which are based on the profitability of the cafeterias.
General and administrative expenses decreased $191,000, or 4.8%, due to the
lower Company contribution to the profit sharing and retirement plan as
determined by the plan's provisions.
The provision for income taxes increased $459,000, or 9.8%, due primarily to the
increase in operating income. The effective income tax rate increased from 37%
to 37.6% due primarily to the increase in federal income tax rates effective
January 1, 1993.
<PAGE>
Six months ended February 28, 1994 compared to the six months ended
February 28, 1993.
______________________________________________________________________________
Sales increased $10,991,000, or 6.2%, due primarily to the addition of three new
cafeterias in fiscal 1994 and six in fiscal 1993, and due to an increase in
average sales volume at cafeterias opened over one year.
Cost of food increased $2,914,000, or 6.5%, due primarily to the increase in
sales and higher food costs for certain items such as poultry, oils and
shortening. Payroll and related costs increased $2,752,000, or 5.7%, due
primarily to the increase in sales, and were partially offset by lower costs of
workers' compensation insurance. Occupancy and other operating expenses
increased $3,734,000, or 7.3%, due primarily to the increase in sales, higher
advertising expenditures and higher managers' salaries, which are based on the
profitability of the cafeterias. General and administrative expenses decreased
$844,000, or 10.3%, due to the lower Company contribution to the profit sharing
and retirement plan as determined by the plan's provisions. In addition, the
six months ended February 28, 1993, included costs for the settlement of
litigation.
The provision for income taxes increased $1,024,000, or 11%, due primarily to
the increase in operating income. The effective income tax rate increased from
37% to 37.6% due primarily to the increase in federal income tax rates effective
January 1, 1993.
<PAGE>
Part II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders.
(a) The 1994 annual meeting of shareholders of Luby's Cafeterias, Inc. was
held on January 13, 1994.
(b) The directors elected at the meeting were John E. Curtis, Jr.,
Ralph Erben, Walter J. Salmon and Joanne Winik. The other directors
whose terms continued after the meeting are Lauro F. Cavazos, John B.
Lahourcade, George H. Wenglein, David B. Daviss, Roger R. Hemminghaus
and William E. Robson.
(c) The matters voted upon at the meeting were (i) the election of four
directors to serve until the 1997 annual meeting of shareholders, (ii)
a proposed amendment to the Certificate of Incorporation to increase
the number of authorized shares of common stock to 100,000,000, and
(iii) the approval of the appointment of Ernst & Young as auditors for
the 1994 fiscal year.
(d) With respect to the election of directors, the results of the voting
were:
Shares Voted Shares Broker
Nominee For Abstained Nonvotes
__________________________________________________________________
John E. Curtis, Jr. 22,283,729 119,912 -0-
Ralph Erben 22,277,027 126,614 -0-
Walter J. Salmon 22,200,436 203,205 -0-
Joanne Winik 22,171,785 231,856 -0-
(e) With respect to the proposed amendment to the Certificate of
Incorporation, the results of the voting were:
Shares voted "for" 18,726,631
Shares voted "against" 3,538,068
Shares abstaining 138,942
Broker nonvotes -0-
(f) With respect to approval of the appointment of auditors, the results of
the voting were:
Shares voted "for" 22,288,834
Shares voted "against" 29,444
Shares abstaining 85,363
Broker nonvotes -0-
<PAGE>
Part II - OTHER INFORMATION (continued)
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
________
2 Agreement and Plan of Merger dated November 1, 1991, between
Luby's Cafeterias, Inc., a Texas corporation, and Luby's
Cafeterias, Inc., a Delaware corporation (filed as Exhibit 2 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1991, and incorporated herein by reference).
3(a) Certificate of Incorporation of Luby's Cafeterias, Inc., a
Delaware corporation, as in effect February 28, 1994.
3(b) Certificate of Amendment to Certificate of Incorporation of
Luby's Cafeterias, Inc. filed in the Office of the Secretary of
State of Delaware on January 18, 1994.
4(a) Form of certificate representing shares of common stock of
Luby's Cafeterias, Inc. (filed as Exhibit 4(a) to the Company's
Quarterly Report on Form 10-Q for the quarter ended November 30,
1991, and incorporated herein by reference).
4(b) Description of Common Stock Purchase Rights of Luby's
Cafeterias, Inc., in Form 8-A (filed April 17, 1991, effective
April 26, 1991, File No. 1-8308, and incorporated herein by
reference).
4(c) Amendment No. 1 dated December 19, 1991, to Rights Agreement
dated April 16, 1991 (filed as Exhibit 4(b) to the Company's
Quarterly Report on Form 10-Q for the quarter ended November 30,
1991, and incorporated herein by reference).
4(d) Promissory Note (Loan Agreement) dated January 31, 1994, in
favor of NationsBank of Texas, N.A., in the maximum amount of
$30,000,000.
10(a) Form of Deferred Compensation Agreement entered into between
Luby's Cafeterias, Inc. and various officers (filed as Exhibit
10(b) to the Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1981, and incorporated herein by
reference).
10(b) Annual Incentive Plan for Area Vice Presidents of Luby's
Cafeterias, Inc. adopted October 19, 1983 (filed as Exhibit
10(d) to the Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1983, and incorporated herein by
reference).
10(c) Incentive Bonus Plan of Luby's Cafeterias, Inc. adopted
October 19, 1983 (filed as Exhibit 10(e) to the Company's Annual
Report on Form 10-K for the fiscal year ended August 31, 1983,
and incorporated herein by reference).
10(d) Employee Stock Option Plan of Luby's Cafeterias, Inc. approved
by the shareholders on January 12, 1984 (filed as Exhibit 10(e)
to the Company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1984, and incorporated herein by reference).
10(e) Performance Unit Plan of Luby's Cafeterias, Inc. approved by the
shareholders on January 12, 1984 (filed as Exhibit 10(f) to the
Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1984, and incorporated herein by reference).
10(f) Employment Contract dated January 8, 1988, between Luby's
Cafeterias, Inc. and George H. Wenglein (filed as Exhibit 10(h)
to the Company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1988, and incorporated herein by reference).
10(g) Management Incentive Stock Plan of Luby's Cafeterias, Inc.
(filed as Exhibit 10(i) to the Company's Annual Report on Form
10-K for the fiscal year ended August 31, 1989, and incorporated
herein by reference).
11 Statement re computation of per share earnings.
(b) Reports on Form 8-K
___________________
No reports on Form 8-K have been filed during the quarter for which this
report is filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LUBY'S CAFETERIAS, INC.
(Registrant)
By: RALPH ERBEN
____________________________
Ralph Erben
President
Chief Executive Officer
By: JOHN E. CURTIS, JR.
____________________________
John E. Curtis, Jr.
Senior Vice President
Chief Financial Officer
Dated: April 11, 1994<PAGE>
EXHIBIT INDEX
Number Document
______ ________
2 Agreement and Plan of Merger dated November 1, 1991, between
Luby's Cafeterias, Inc., a Texas corporation, and Luby's
Cafeterias, Inc., a Delaware corporation (filed as Exhibit 2
to the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1991, and incorporated herein by reference).
3(a) Certificate of Incorporation of Luby's Cafeterias, Inc., a
Delaware corporation, as in effect February 28, 1994.
3(b) Certificate of Amendment to Certificate of Incorporation of
Luby's Cafeterias, Inc. filed in the Office of the Secretary
of State of Delaware on January 18, 1994.
4(a) Form of certificate representing shares of common stock of
Luby's Cafeterias, Inc. (filed as Exhibit 4(a) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1991, and incorporated herein by
reference).
4(b) Description of Common Stock Purchase Rights of Luby's
Cafeterias, Inc. in Form 8-A (filed April 17, 1991, effective
April 26, 1991, File No. 1-8308, and incorporated herein by
reference).
4(c) Amendment No. 1 dated December 19, 1991, to Rights Agreement
dated April 16, 1991 (filed as Exhibit 4(b) to the Company's
Quarterly Report on Form 10-Q for the quarter ended
November 30, 1991, and incorporated herein by reference).
4(d) Promissory Note (Loan Agreement) dated January 31, 1994, in
favor of NationsBank of Texas, N.A., in the maximum amount of
$30,000,000.
10(a) Form of Deferred Compensation Agreement entered into between
Luby's Cafeterias, Inc. and various officers (filed as Exhibit
10(b) to the Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1981, and incorporated herein by reference).
10(b) Annual Incentive Plan for Area Vice Presidents of Luby's
Cafeterias, Inc. adopted October 19, 1983 (filed as Exhibit
10(d) to the Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1983, and incorporated herein by reference).
10(c) Incentive Bonus Plan of Luby's Cafeterias, Inc. adopted October 19,
1983 (filed as Exhibit 10(e) to the Company's Annual Report on Form
10-K for the fiscal year ended August 31, 1983, and incorporated
herein by reference).
10(d) Employee Stock Option Plan of Luby's Cafeterias, Inc. approved by
the shareholders on January 12, 1984 (filed as Exhibit 10(e) to the
Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1984, and incorporated herein by reference).
10(e) Performance Unit Plan of Luby's Cafeterias, Inc. approved by the
shareholders on January 12, 1984 (filed as Exhibit 10(f) to the
Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1984, and incorporated herein by reference).
10(f) Employment Contract dated January 8, 1988, between Luby's Cafeterias,
Inc. and George H. Wenglein (filed as Exhibit 10(h) to the Company's
Annual Report on Form 10-K for the fiscal year ended August 31, 1988,
and incorporated herein by reference).
10(g) Management Incentive Stock Plan of Luby's Cafeterias, Inc. (filed as
Exhibit 10(i) to the Company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1989, and incorporated herein by
reference).
11 Statement re computation of per share earnings.
Exhibit 3(a)
CERTIFICATE OF INCORPORATION
OF
LUBY'S CAFETERIAS, INC.
(as in effect February 28, 1994)
FIRST. The name of the Corporation is LUBY'S CAFETERIAS, INC.
SECOND. The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent of
the Corporation at such address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is one hundred million (100,000,000)
shares of Common Stock of the par value of thirty-two cents ($.32) per share.
FIFTH. The period of the Corporation's duration is perpetual.
SIXTH. (a) Number, Election and Terms of Directors. The business
and affairs of the Corporation shall be managed by a Board of Directors which
shall consist of not less than nine nor more than fifteen persons, who need
not be residents of the State of Delaware or stockholders of the Corporation.
The exact number of directors within the minimum and maximum limitations
specified in the preceding sentence shall be fixed from time to time by the
Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors. The directors shall be divided into three classes,
as nearly equal in number as possible, with the term of office of the first
class to expire at the 1992 Annual Meeting of Stockholders, the term of office
of the second class to expire at the 1993 Annual Meeting of Stockholders and
the term of office of the third class to expire at the 1994 Annual Meeting of
Stockholders. At each Annual Meeting of Stockholders following such initial
classification and election, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the
third succeeding Annual Meeting of Stockholders after their election.
(b) Newly Created Directorships. A directorship to be filled by
reason of an increase in the number of directors may be filled (i) by election
at an Annual or Special Meeting of Stockholders called for that purpose or
(ii) by the Board of Directors for a term of office continuing only until the
next election of one or more directors by the stockholders; provided that the
Board of Directors may not fill more than two such directorships during the
period between any two successive Annual Meetings of Stockholders.
(c) Vacancies in the Board of Directors. Any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled by a
majority vote of the directors then in office, and directors so chosen shall
hold office for a term expiring at the Annual Meeting of Stockholders at which
the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
(d) Removal of Directors. Any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
(e) Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-laws of the
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Certificate of Incorporation or the By-laws of the
Corporation), the affirmative vote of the holders of 80% or more of the voting
power of the shares of the Corporation then outstanding, voting together as a
single class, shall be required to alter, amend, repeal or adopt any provision
inconsistent with this Article Sixth.
SEVENTH. In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly
authorized to make, alter, adopt, amend, change or repeal the By-laws of the
Corporation.
EIGHTH. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by the laws of the State of Delaware. All
rights herein conferred are granted subject to this reservation.
NINTH. The Corporation shall have the power to indemnify to the
fullest extent permitted by, and in the manner permissible under, the laws of
the State of Delaware any person made, or threatened to be made, a party to
any action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a director, advisory
director or officer of the Corporation, or served another corporation,
partnership, joint venture, trust or other enterprise as a director, advisory
director, officer, employee or agent at the request of the Corporation,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding. The Board of Directors in
its discretion shall have the power on behalf of the Corporation to indemnify
similarly any person, other than a director, advisory director or officer,
made a party to any action, suit or proceeding by reason of the fact that he
is or was an employee or agent of the Corporation. The provisions of this
Article Ninth shall be applicable to persons who have ceased to be directors,
advisory directors, officers, employees or agents of the Corporation and shall
inure to the benefit of their heirs, executors and administrators.
TENTH. Pursuant to section 102(b)(7) (or any successor statute) of
the General Corporation Law of the State of Delaware, the personal liability
of a director to the Corporation or the stockholders of the Corporation for
monetary damages for breach of fiduciary duty is hereby eliminated. The terms
of the preceding sentence, however, shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or the stockholders of the Corporation, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 (or a successor statute) of the
General Corporation Law of the State of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit.
ELEVENTH. Section l. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in Section 2 of this Article:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value of $10,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. Definition of "Business Combination." The term "Business
Combination" as used in this Article shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of paragraph A of
this Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section
I of this Article shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs A and B are met:
A. Approval by Continuing Directors. The Business Combination shall
have been approved by a majority of the Continuing Directors (as hereinafter
defined).
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder for any shares of Common Stock acquired by it
(1) within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the "Announcement
Date") or (2) in the transaction in which it became an Interested Stockholder,
whichever is higher; and
b) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (such latter date being referred to in this Article as
the "Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of shares of
any other class of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph B(ii) shall be required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder for any shares of such class of Voting Stock
acquired by it (1) within the two year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation; and
(c) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date, whichever is
higher.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in cash or
in the same form as the Interested Stockholder has previously paid for shares
of such class of Voting Stock. If the Interested Stockholder has paid for
shares of any class of Voting Stock with varying forms of consideration, the
form of consideration for such class of Voting Stock shall be either cash or
the form used to acquire the largest number of shares of such class of Voting
Stock previously acquired by it. In the determination of amounts per share
pursuant to subparagraphs (i) and (ii) of this paragraph B, appropriate
adjustment shall be made to reflect any stock dividend, stock split,
combination of shares or similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) there shall have been (1) no reduction in the annual rate of dividends paid
on the Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Continuing Directors,
and (2) an increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the Continuing
Directors; and (b) such Interested Stockholder shall have not become the
beneficial owner of any additional shares of Voting Stock except as part of
the transaction which results in such Interested Stockholder becoming an
Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
Section 3. Certain Definitions. For the purposes of this Article:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than
10% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power
of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 3, but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on October 1, 1985.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of Directors
of the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of
a Continuing Director who is unaffiliated with the Interested Stockholder and
is recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
H. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in good faith; and (ii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in
paragraphs B(i) and B(ii) of Section 2 of this Article shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
Section 4. Powers of the Board of Directors. A majority of the directors of
the Corporation shall have the power and duty to determine for the purposes of
this Article, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Stockholder, (B) the number of
shares of Voting Stock beneficially owned by any person, (C) whether a person
is an Affiliate or Associate of another and (D) whether the assets which are
the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the By-laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law,
this Certificate of Incorporation or the By-laws of the Corporation), the
affirmative vote of the holders of 80% or more of the voting power of the
shares of the then outstanding Voting Stock, voting together as a single
class, shall be required to alter, amend, repeal or adopt any provision
inconsistent with this Article Eleventh.
TWELFTH. Special meetings of the stockholders of the Corporation may
be called (1) by the President, the Board of Directors, or such other person
or persons as may be authorized in the Corporation's By-laws or (2) by the
holders of at least fifty percent of all the shares of the Corporation
entitled to vote at the proposed special meeting.
THIRTEENTH. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
FOURTEENTH. The name and post office address of the incorporator signing
this Certificate of Incorporation is James R. Hale, 112 East Pecan, Suite
2000, San Antonio, Texas 78205.
The undersigned, being the incorporator herein before named, for the
purposes of organizing a corporation pursuant to the General Corporation Law
of the State of Delaware, does make this certificate, hereby declaring and
certifying that this is his act and deed and the facts herein stated are true,
and accordingly has hereunto set his hand this 28th day of October, 1991.
James R. Hale
___________________________
James R. Hale: Incorporator
<PAGE>
Exhibit 3(b)
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
LUBY'S CAFETERIAS, INC.
LUBY'S CAFETERIAS, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Luby's Cafeterias,
Inc., resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to
be advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is
as follows:
RESOLVED: That the Board of Directors of Luby's Cafeterias, Inc., a
Delaware corporation, proposes and declares advisable that Article Fourth
of the Certificate of Incorporation of Luby's Cafeterias, Inc. be amended
so as to read in its entirety as follows:
"FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is one
hundred million (100,000,000) shares of Common Stock of the
par value of thirty two cents ($.32) per share."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was
duly called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware, at which meeting the
necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said LUBY'S CAFETERIAS, INC. has caused this
certificate to be signed by Ralph Erben, its President, and attested by James R.
Hale, its Secretary, this 13th day of January, 1994.
LUBY'S CAFETERIAS, INC.
Ralph Erben
_______________________
By: Ralph Erben, President
James R. Hale
________________________
ATTEST: James R. Hale, Secretary<PAGE>
Exhibit 4(d)
PROMISSORY NOTE
Dallas, Texas January 31, 1994
Borrower: LUBY'S CAFETERIAS, INC.
Maximum Amount: $30,000,000.00
Interest Rate Options (check options available):
x Agreed Rate
__
x Prime Rate (-) .50%
__ _______
x CD Rate + .50%
__ _______
x Eurodollar Rate + .375%
__ _______
Loan Type (Check only one option):
This Note evidences Loans made by Lender to Borrower pursuant
______ to a line of credit in the Maximum Amount. From the date
hereof to _________, 19__ (the "Commitment Termination Date")
Borrower, subject to the terms and conditions of this Note and
provided that no Event of Default is then existing, may
borrow, repay and reborrow up to the Maximum Amount
("Committed Loans").
X This Note evidences Loans made by Lender to Borrower,
______ which in the aggregate principal amount outstanding sall not
exceed the Maximum Amount. Each Loan evidenced hereby shall
mature within one year from the date hereof. Borrower
acknowledges and agrees that (i) Lender has no obligation to
make any Loans and (ii) each Loan shall be in the sole
discretion of Lender ("Uncommitted Loans").
Borrower, for the value received, promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. ("Lender"), at its banking house in Dallas, Texas,
or at any other place designated to Borrower in writing by Lender, in lawful
money of the United States of America and in immediately available funds prior
to 11:00 a.m. Dallas time on the date due, the principal amount of each Loan,
on the earlier of (i) declaration by Lender pursuant to Section 1.7 hereof, or
(ii) the last day of the Interest Period of such Loan, together with interest
on the unpaid principal balance of such Loan at the applicable rates herein set
forth.
This Note is issued upon the following terms and conditions:
ARTICLE I.
THE LOANS
1.1. Definitions. Defined terms used herein shall have the meanings
given to them above and in Article III hereof.
1.2. Making the Loans. Each Fixed Rate Loan shall be in an aggregate
amount which is an integral multiple of $100,000.00. Each Loan shall be made by
notice to Lender (stating the Type Loan, the amount of the Loan, the date of
the Loan and the Interest Period for the Loan) not later than 11:30 a.m.,
Dallas time, given by Borrower to Lender (i) as to any Eurodollar Rate Loan, at
least two (2) Business Days prior to the date of such Type Loan, (ii) as to any
CD Rate Loan, at least one (1) Business Day prior to the date of such Type
Loan, and (iii) as to any Agreed Rate Loan and any Prime Rate Loan, on the day
of such Type Loan. Lender shall on the date of each Loan not later than 1:00
p.m., Dallas time, in immediately available funds, deposit the proceeds of such
Loan in the general deposit account of Borrower with Lender.
1.3. Repayment. Borrower shall repay the principal amount of each Loan
on the earlier of (i) declaration by Lender pursuant to Section 1.7 hereof, or
(ii) the last day of the Interest Period for such Loan.
1.4. Prepayments. Borrower may prepay any Prime Rate Loan, without
penalty or premium. No prepayment of any Fixed Rate Loan shall be permitted
without the prior written consent of Lender. Notwithstanding such prohibition,
if there is a prepayment of any Fixed Rate Loan, whether by consent of Lender
or because of acceleration or otherwise, Borrower shall, within fifteen (15)
days of any request by Lender, pay to Lender any loss or expense which Lender
may incur or sustain as a result of any such prepayment.
A statement as to the amount of such loss or expense, prepared in good
faith and in reasonable detail by Lender and submitted by Lender to Borrower
shall be conclusive and binding for all purposes absent manifest error in
computation. Calculation of all amounts payable to Lender under this Section
1.4 shall be made as though Lender shall have actually funded or committed to
fund the relevant Fixed Rate Loan through the purchase of an underlying deposit
in an amount equal to the amount of such Loan and having a maturity comparable
to the related Interest Period; provided, however, that Lender may fund any
Fixed Rate Loan in any manner it sees fit and the foregoing assumption shall be
utilized only for the purpose of calculation of amounts payable under this
Section 1.4.
1.5. Yield Protection and Indemnity. If at any time after the date
hereof, and from time to time, Lender determines that the adoption or
modification of any applicable law, rule or regulation regarding taxation,
Lender's required levels of reserves, deposits, insurance or capital (including
any allocation of capital requirements or conditions), or similar requirements,
or any interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation,
administration or compliance of Lender with any of such requirements, has or
would have the effect of (i) increasing Lender's costs relating to the
Obligation hereunder, or (ii) reducing the yield or rate of return of Lender on
the Obligation hereunder to a level below that which Lender could have achieved
but for the adoption or modification of any such requirements, Borrower shall,
within fifteen (15) days of any request by Lender, pay to Lender such
additional amounts as (in Lender's sole judgment, after good faith and
reasonable computation) will compensate Lender for such increase in costs or
reduction in yield or rate of return of Lender. No failure by Lender to
immediately demand payment of any additional amounts payable hereunder shall
constitute a waiver of Lender's right to demand payment of such amounts at any
subsequent time. Nothing herein contained shall be construed or so operate as
to require Borrower to pay any interest, fees, costs or charges at a rate or in
an amount greater than is permitted by Applicable Law.
1.6. Interest.
(a) Prime Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a Prime Rate Loan shall bear interest during
each Interest Period at the Prime Rate plus the percentage, if any, set forth
in the "Interest Rate Options" section of this Note, which interest rate shall
change without notice with each change in such Prime Rate as of the date of any
such change; provided that, if at any time the Prime Rate plus the percentage,
if any, set forth in the "Interest Rate Options" section of this Note exceeds
the Highest Lawful Rate, the rate of interest which each Prime Rate Loan bears
shall be limited to the Highest Lawful Rate, but any subsequent reductions in
the Prime Rate shall not reduce the rate of interest which each Prime Rate Loan
bears below the Highest Lawful Rate until the amount of interest accrued on
each Prime Rate Loan equals the amount of interest which would have accrued if
the Prime Rate plus the percentage, if any, set forth in the "Interest Rate
Options" section of this Note had at all times been in effect. Interest on each
Prime Rate Loan for each Interest Period shall be payable on the last day
thereof.
(b) CD Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a CD Rate Loan shall bear interest during each
Interest Period at the CD Rate for such CD Rate Loan plus the percentage, if
any, set forth in the "Interest Rate Options" section of this Note. Interest on
each CD Rate Loan for each Interest Period shall be payable on the last day
thereof.
(c) Eurodollar Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a Eurodollar Rate Loan shall bear interest
during each Interest Period at the Eurodollar Rate for such Eurodollar Rate
Loan plus the percentage, if any, set forth in the "Interest Rate Options"
section of this Note. Interest on each Eurodollar Rate Loan for each Interest
Period shall be payable on the last day thereof.
(d) Agreed Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as an Agreed Rate Loan shall bear interest during
each Interest Period at the Agreed Rate for such Agreed Rate Loan. Interest on
each Agreed Rate Loan for each Interest Period shall be payable on the last day
thereof.
(e) Computations. Subject to the provisions of Section 2.5 of this
Note, interest on each Loan and any commitment fee shall be calculated on the
basis of actual days elapsed, but computed as if each year consisted of 360
days. The books and records of Lender shall be Prima facie evidence of all sums
due Lender.
(f) Past Due Principal and Interest. All past due principal of and, to
the extent permitted by Applicable Law, all past due interest on any Loan and
any other past due amount owing on this Note, shall bear interest from the date
due until paid at the Default Rate.
1.7. Events of Default. It shall be an event of default ("Event of
Default") under this Note and each of any other documents executed in
connection herewith if any one of the following shall occur: (i) Borrower shall
fail to make any payment of principal, interest or other amounts under this
Note when due; (ii) Borrower or any guarantor of this Note shall fail to make
any payment when due on any debt for borrowed money, purchase money debt or
contingent debt which Borrower or any guarantor of this Note is obligated to
pay as borrower, guarantor or in any other capacity or any default or event of
default shall occur under any agreement evidencing or providing for the
creation of such debt or under any other document executed in connection with
this Note; (iii) any voluntary or involuntary bankruptcy proceeding or any
similar action is commenced with respect to Borrower or any guarantor of this
Note or any of its assets; (iv) Lender shall in good faith believe that the
prospect of payment of amounts due with respect to this Note has been impaired;
or (v) any representation or warranty made by Borrower or any guarantor of this
Note in connection with this Note shall be false or incorrect in any material
respect when made or deemed made.
If one or more of the foregoing Events of Default shall occur, all or any
part of the outstanding principal of this Note plus accrued unpaid interest on
this Note and any other accrued unpaid amount owing under this Note shall at
the option of Lender become due and payable immediately without notice to
Borrower, which is hereby waived by Borrower, and Lender shall have no further
obligation (if any) to make Loans under this Note, and Lender may exercise any
and all available rights and remedies under any document or instrument executed
in connection with this Note or under Applicable Law.
ARTICLE II.
MISCELLANEOUS
2.1. Waivers and Consents. Borrower and all endorsers, sureties and
guarantors of this Note hereby severally waive demand and notice of demand,
presentment for payment, protest, notice of protest, notice of acceleration of
the maturity of this Note, notice of intention to accelerate the maturity of
this Note, diligence in collecting, the bringing of any suit against any
Person, and any notice of or defense on account of any extensions, renewals,
partial payments or changes in this Note or in any of its terms, provisions and
covenants, or any releases or substitutions of any security for this Note, or
any delay, indulgence or other act of any holder hereof, whether before or
after maturity.
2.2 Fees. Borrower agrees to pay to Lender, on the date or dates set
forth below, the following fee or fees (check applicable provisions):
______ On the date hereof, a facility fee in the amount of
_________________ Dollars ($_________________).
______ On the last day of each Interest Period for Prime Rate Loans and
on the Commitment Termination Date, a commitment fee at the rate of
___________ percent (__________%) per annum on the average daily
unborrowed portion of the Maximum Amount.
2.3. Expenses. If this Note is placed in the hands of an attorney for
collection after the occurrence of an Event of Default, or if all or any part
of the indebtedness evidenced hereby is proved, established or collected in any
court or in any bankruptcy, receivership, debtor relief, probate or other court
proceedings, Borrower and all endorsers, sureties and guarantors of this Note
jointly and severally agree to pay reasonable attorneys' fees and collection
costs to the holder hereof in addition to the principal and interest and other
amounts payable hereunder. In addition, Borrower agrees to pay Lender all
reasonable costs and expenses, including reasonable attorneys' fees, incurred
by Lender in connection with the preparation of this Note and any documents or
instruments executed in connection herewith, making the Loans hereunder, and
all amendments, consents and waivers related to the Loans and requests therefor
by Borrower.
2.4. Governing Law. This Note is payable and performable in Dallas
County, Texas, and shall be construed and enforced in accordance with and
governed by the Laws of the State of Texas and the Federal Laws of the United
States of America. Tex. Rev. Civ. Stat. Ann. art. 5069 Ch. 15 (which regulates
certain revolving credit loan accounts and revolving tri-party accounts) shall
not apply to the Loans evidenced by this Note. Without excluding any other
jurisdiction, Borrower agrees that the courts of the State of Texas sitting in
Dallas, Dallas County, Texas, and the federal courts sitting in Dallas, Dallas
County, Texas, will have jurisdiction over proceedings in connection herewith.
2.5. Controlling Agreement. Interest paid or agreed to be paid in this
Note or in any other documents executed in connection herewith shall not exceed
the Highest Lawful Rate, and, in any contingency whatsoever, if Lender shall
receive anything of value deemed interest under Applicable Law which would
exceed the Highest Lawful Rate, the excessive interest shall be applied to the
reduction of unpaid principal or refunded to Borrower, if it exceeds unpaid
principal. It is further agreed that, without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged, or received by
Lender or any holder of this Note that are made for the purpose of determining
whether such rate exceeds the Highest Lawful Rate shall be made, to the extent
permitted by usury laws applicable to Lender (now or hereafter enacted), by
amortizing, prorating, and spreading during the period of the full stated term
of the Loans evidenced by this Note all interest at any time contracted for,
charged, or received by Lender in connection therewith.
2.6. Binding Effect. This Note shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower shall not have the right to assign its rights or
obligations hereunder or any interest herein without the prior written consent
of Lender. Lender may assign to one or more banks, all or any part of, or may
grant participations to one or more banks in or to all or part of, any Loan or
Loans and this Note, and to the extent of any such assignment or participation
(except where otherwise stated) the assignee or participant of such assignment
or participation shall have the rights and benefits with respect to each Loan
or Loans and this Note, including Section 1.5 hereof, as it would have if it
was Lender hereunder.
2.7. Titles. The titles to paragraphs in this Note are inserted for
convenience only and do not constitute a part of the text hereof.
2.8. Notices. Notices hereunder must be given in writing to be
effective and shall be effective upon receipt by Borrower or Lender at the
address set forth below its signature below or at such other address as
Borrower or Lender may notify the other.
ARTICLE III
DEFINITIONS
As used in and for all purposes of this Note, the terms defined in this
Article III shall have the following meanings, and the singular shall include
the plural, and vice versa, unless otherwise specifically required by the
context:
"Agreed Rate" shall mean a fixed rate per annum mutually agreed upon by
Borrower and Lender, to be confirmed in writing by Borrower.
"Agreed Rate Loan" shall mean each Loan which bears interest at the
Agreed Rate.
"Applicable Law" shall mean the Laws of the United States of America
applicable to contracts made or performed or to be performed in the State of
Texas, including, without limitation, 12 U.S.C. SS 85 and 86(a), as heretofore
or hereafter amended, and any other statute of the United States of America now
or at any time hereafter prescribing maximum rates of interest on loans,
advances and extensions of credit, and the Laws of the State of Texas,
including, without limitation, Articles 5069-1.04 and 5069-1.07(a), Title 79,
Revised Civil Statutes of Texas, 1925, as heretofore or hereafter amended
("Art. 1.04").
"Art. 1.04" has the meaning given to such term in the definition of
Applicable Law in this Article III.
"Assessment Rate" shall mean, with respect to any CD Rate Loan, the
actual (if known) or the estimated (if the actual rate is not known) net annual
assessment rate (rounded upwards, if necessary, to the next higher 1/100 of 1%)
charged by the Federal Deposit Insurance Corporation (or any successor) for
such corporation's (or such successor's) insuring liability for time deposits
of Lender, as in effect from time to time. The Assessment Rate shall be a fixed
percentage calculated as of and effective with the first day of each Interest
Period, taking into consideration changes scheduled to occur during such
Interest Period.
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Dallas, Texas, and, if the applicable
Business Day relates to any Eurodollar Rate Loans, a day of the year on which
dealings are carried on in the London interbank market.
"CD Rate" shall mean an interest rate per annum equal to a rate
determined pursuant to the following formula:
Derivation CD Rate
________________________ + Assessment Rate
100% - CD Reserve Percentage
"CD Rate Loan" shall mean each Loan which bears interest based on the CD
Rate.
"CD Reserve Percentage" shall mean, for the applicable Interest Period,
the then applicable maximum reserve requirement (including, without limitation,
any basic, supplemental, marginal and emergency reserves) (expressed as a
percentage) under Regulation D of the Board of Governors of the Federal Reserve
System, or such additional, substituted or amended reserve requirement,
applicable to member banks of the Federal Reserve System, in respect of
non-personal time deposits in Dollars in the City of Dallas, Texas, having a
maturity comparable to such Interest Period and in an amount of $100,000.00 or
more. The CD Reserve Percentage shall be a fixed percentage calculated as of
and effective with the first day of such Interest Period, taking into
consideration changes scheduled to occur during such Interest Period.
"Default Rate" shall mean (i) from the date that any payment is due until
ten (10) days thereafter, an interest rate per annum equal to the lesser of (y)
two (2) percent above the interest rate otherwise applicable to such payment
or, if there is no otherwise applicable interest rate, two (2) percent above
the Prime Rate or (z) the Highest Lawful Rate and thereafter (ii) the Highest
Lawful Rate.
"Derivation CD Rate" shall mean, for the applicable Interest Period, the
rate per annum determined by Lender, in accordance with its customary general
practice from time to time, to be the rate that is or would be offered or
quoted to Lender at its request by one or more primary dealers who make markets
in certificates of deposit for the purchase at face value from Lender of
certificates of deposit issued by Lender in the amount of Five Million Dollars
($5,000,000.00), having a term comparable to such Interest Period, as of
approximately 8:00 a.m. Dallas, Texas time (or as soon thereafter as
practicable) on the first day of such Interest Period. If no such offers or
quotes are generally available for such amount, then Lender shall be entitled
to determine the Derivation CD Rate by estimating in its reasonable judgment
the per annum rate (as described above) that would be applicable if such quotes
or offers were generally available.
"Dollars" and the sign "$" shall mean lawful money of the United States of
America.
"Eurodollar Rate" shall mean an interest rate per annum equal to a rate
determined pursuant to the following formula:
London Interbank Rate
___________________________________
100% - Eurodollar Reserve Percentage
"Eurodollar Rate Loan" shall mean each Loan which bears interest based on
the Eurodollar Rate.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
requirement (including, without limitation, any basic, supplemental, marginal
and emergency reserves) (expressed as a percentage) applicable to member banks
of the Federal Reserve System in respect of "Eurocurrency Liabilities" under
Regulation D of the Board of Governors of the Federal Reserve System, or such
additional, substituted or amended reserve requirement as may be hereafter
applicable to member banks of the Federal Reserve System.
"Fixed Rate Loan" shall mean an Agreed Rate Loan, CD Rate Loan, or
Eurodollar Rate Loan, as the context requires.
"hereof," "hereto," "hereunder" and similar terms shall refer to this
Note and not to any particular section or provision of this Note.
"Highest Lawful Rate" shall mean at the particular time in
question the maximum rate of interest per annum which, under Applicable Law,
Lender is then permitted to charge Borrower on the Obligation. If the Highest
Lawful Rate shall change after the date hereof, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, from time to time
as of the effective time of each change in the Highest Lawful Rate without
notice to Borrower; provided, however, the Highest Lawful Rate shall decrease
with respect to the Note only if required by Applicable Law. For purposes of
determining the Highest Lawful Rate under the Applicable Law of the State of
Texas, the applicable rate ceiling shall be the indicated rate ceiling
described in and computed in accordance with the provisions of Section (a)(1)
of Art. 1.04, provided, that at any time such indicated rate ceiling shall be
less than 18% per annum or more than 24% per annum, the provisions of Section
(b)(1) and (2) of Art. 1.04 shall control for purposes of such determination,
as applicable.
"Interest Period" means, for each Loan, the period commencing on the date
of such Loan and ending on the last day of such period as selected by Borrower
pursuant to the provisions hereof. The duration of each such Interest Period
for (i) each Eurodollar Rate Loan shall be 1, 2 or 3 months, (ii) each CD Rate
Loan shall be 30, 60 or 90 days, (iii) each Prime Rate Loan shall be from the
date of such Prime Rate Loan to the next succeeding April 1, July 1, October 1
or January 1, and (iv) each Agreed Rate Loan shall be up to 30 days as agreed
to by Borrower and Lender and confirmed in writing by Borrower, subject to the
other provisions hereof, as Borrower may select: provided however, that:
(i) Whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
in the case of any Interest Period for a Eurodollar Rate Loan, that if
such extension would cause the last day of such Interest Period to occur
in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(ii) No Interest Period with respect to any Committed Loan may extend
beyond the Commitment Termination Date.
"Laws" shall mean all constitutions, treaties, statutes, laws,
ordinances, regulations, orders, writs, injunctions, or decrees of the United
States, any state or commonwealth, any municipality, any foreign country, any
territory or possession or any Tribunal.
"Loan" shall mean any Prime Rate Loan, Agreed Rate Loan, CD Rate Loan or
Eurodollar Rate Loan, as the context requires.
"London Interbank Rate" shall mean, for the applicable Interest Period,
the rate of interest per annum (rounded upward, if necessary, to the next
higher 1/16 of 1%) determined by Lender, in accordance with its customary
general practice from time to time, to be the rate at which deposits in
immediately available funds in Dollars are or would be offered or quoted by
Lender to major banks in the London interbank market, as of approximately 11:00
a.m. London time, or as soon thereafter as practicable, on the second Business
Day immediately preceding the first day of such Interest Period, for a term
comparable to such Interest Period and in the amount of Five Million Dollars
($5,000,000.00). If no such offers or quotes are generally available for such
amount, then Lender shall be entitled to determine the London Interbank Rate by
estimating in its reasonable judgment the per annum rate (as described above)
that would be applicable if such quotes or offers were generally available.
"Obligation" shall mean (without duplication) the aggregate principal
amount of and any interest, fees, and other charges payable by Borrower in
respect of the Loans.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department, agency or political subdivision thereof.
"Prime Rate" shall mean the prime interest rate charged by Lender as
announced or published by Lender from time to time. It is understood that the
Prime Rate is set by Lender as a general reference rate of interest and is not
necessarily the lowest or best rate actually charged to any customer or a
favored rate.
"Prime Rate Loan" shall mean each Loan which bears interest based on the
Prime Rate.
"Taxes" shall mean all taxes, assessments, fees or other charges from
time to time or at any time imposed by any Laws or by any Tribunal.
"Tribunal" shall mean any state, commonwealth, federal foreign,
territorial, or other court or governmental department, commission, board,
bureau, district, agency or instrumentality.
"Type Loan" shall mean with respect to the Loan, a Prime Rate Loan,
Agreed Rate Loan, CD Rate Loan, or a Eurodollar Rate Loan.
NOTICE OF FINAL AGREEMENT, THIS WRITTEN PROMISSORY NOTE AND ANY
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES, THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
BORROWER: BORROWER:
LUBY'S CAFETERIAS, INC. LUBY'S CAFETERIAS, INC.
By: Ralph Erben By: John E. Curtis, Jr.
__________________ ___________________
Name: Ralph Erben Name: John E. Curtis, Jr.
Title: President and CEO Title: Senior vice President, CFO and Treasurer
Executed by Lender for the purpose of the Notice of Final
Agreement set forth above.
LENDER:
NATIONSBANK OF TEXAS, N.A.
By: Doug Hutt
______________
Name: Doug Hutt
Title: Senior Vice President
Exhibit 11
COMPUTATION OF PER SHARE EARNINGS
The following is a computation of the weighted average number of shares
outstanding which is used in the computation of per share earnings for Luby's
Cafeterias, Inc. for the three and six months ended February 28, 1994 and 1993.
Three months ended February 28, 1994:
26,388,690 x shares outstanding for 2 days 52,777,380
26,389,190 x shares outstanding for 10 days 263,891,900
26,314,582 x shares outstanding for 19 days 499,977,058
26,077,694 x shares outstanding for 16 days 417,243,104
26,066,151 x shares outstanding for 15 days 390,992,265
26,054,664 x shares outstanding for 14 days 364,765,296
25,907,814 x shares outstanding for 14 days 362,709,396
_____________
2,352,356,399
90
_____________
26,137,293
Six months ended February 28, 1994:
27,227,108 x shares outstanding for 1 day 27,227,108
27,214,570 x shares outstanding for 15 days 408,218,550
27,145,448 x shares outstanding for 14 days 380,036,272
27,022,276 x shares outstanding for 12 days 324,267,312
26,820,618 x shares outstanding for 19 days 509,591,742
26,420,208 x shares outstanding for 11 days 290,622,288
26,388,690 x shares outstanding for 21 days 554,162,490
26,389,190 x shares outstanding for 10 days 263,891,900
26,314,582 x shares outstanding for 19 days 499,977,058
26,077,694 x shares outstanding for 16 days 417,243,104
26,066,151 x shares outstanding for 15 days 390,992,265
26,054,664 x shares outstanding for 14 days 364,765,296
25,907,814 x shares outstanding for 14 days 362,709,396
_____________
4,793,704,781
181
_____________
26,484,557
<PAGE>
Three months ended February 28, 1993:
27,134,265 x shares outstanding for 3 days 81,402,795
27,134,512 x shares outstanding for 14 days 379,883,168
27,141,134 x shares outstanding for 17 days 461,399,278
27,149,905 x shares outstanding for 25 days 678,747,625
27,179,067 x shares outstanding for 4 days 108,716,268
27,227,626 x shares outstanding for 15 days 408,414,390
27,238,292 x shares outstanding for 12 days 326,859,504
_____________
2,445,423,028
90
_____________
27,171,367
Six months ended February 28, 1993:
27,133,567 x shares outstanding for 28 days 759,739,876
27,133,663 x shares outstanding for 23 days 624,074,249
27,134,265 x shares outstanding for 43 days 1,166,773,395
27,134,512 x shares outstanding for 14 days 379,883,168
27,141,134 x shares outstanding for 17 days 461,399,278
27,149,905 x shares outstanding for 25 days 678,747,625
27,179,067 x shares outstanding for 4 days 108,716,268
27,227,626 x shares outstanding for 15 days 408,414,390
27,238,292 x shares outstanding for 12 days 326,859,504
_____________
4,914,607,753
181
_____________
27,152,529
