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 May 31, 1999
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, 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: 22,420,375 shares outstanding as of May 31, 1999
exclusive of 4,982,692 treasury shares)
Part I - FINANCIAL INFORMATION
Item 1. Financial Statements
LUBY'S, INC.
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
Three Months Ended Nine Months Ended
May 31, May 31,
1999 1998 1999 1998
____ ____ ____ ____
(Amounts in thousands except per share data)
Sales $127,084 $131,230 $376,563 $379,106
Costs and expenses:
Cost of food 29,720 33,151 91,742 95,897
Payroll and related costs 38,929 38,765 115,382 115,477
Occupancy and other
operating expenses 39,110 39,059 116,982 114,933
General and administrative expenses 5,351 6,658 17,105 17,164
________ ________ ________ ________
113,110 117,633 341,211 343,471
________ ________ ________ ________
Income from operations 13,974 13,597 35,352 35,635
Interest expense (1,165) (1,288) (3,611) (3,813)
Other income, net 338 342 1,238 1,245
________ ________ ________ ________
Income before income taxes 13,147 12,651 32,979 33,067
Provision for income taxes 4,371 4,504 11,312 11,772
________ ________ ________ ________
Net income $ 8,776 $ 8,147 $ 21,667 $ 21,295
________ ________ ________ ________
Net income per share - basic and
assuming dilution $.39 $.35 $.96 $.92
Cash dividends per share $.20 $.20 $.60 $.60
Average number of shares outstanding 22,420 23,271 22,680 23,270
See accompanying notes.
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued)
LUBY'S, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
May 31, August 31,
1999 1998
______ _________
(Thousands of dollars)
ASSETS
Current assets:
Cash and cash equivalents $ 696 $ 3,760
Trade accounts and other receivables 774 704
Food and supply inventories 3,993 5,072
Prepaid expenses 4,322 4,375
Deferred income taxes 958 1,201
________ ________
Total current assets 10,743 15,112
Property held for sale 12,647 17,340
Investments and other assets - at cost 9,248 7,992
Property, plant, and equipment - at cost, net 303,166 298,597
________ ________
$335,804 $339,041
________ ________
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 13,697 $ 12,482
Dividends payable 4,484 4,654
Accrued expenses and other liabilities 25,508 28,231
Income taxes payable 2,829 2,069
________ ________
Total current liabilities 46,518 47,436
Long-term debt 74,000 73,000
Deferred income taxes and other credits 14,569 13,191
Shareholders' equity:
Common stock 8,769 8,769
Paid-in capital 27,049 27,012
Retained earnings 270,703 262,540
Less cost of treasury stock (105,804) (92,907)
________ ________
Total shareholders' equity 200,717 205,414
________ ________
$335,804 $339,041
________ ________
See accompanying notes.
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued)
LUBY'S, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Nine Months Ended
May 31,
1999 1998
____ ____
(Thousands of dollars)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 21,667 $ 21,295
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 14,886 15,802
Increase (decrease) in accrued expenses
and other liabilities (2,686) 143
Other, net 5,311 (5,561)
________ ________
Net cash provided by operating activities 39,178 31,679
________ ________
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from disposal of property held for sale 5,020 3,568
Purchases of land held for future use (4,563) (948)
Purchases of property, plant, and equipment (16,636) (17,498)
________ ________
Net cash used in investing activities (16,179) (14,878)
________ ________
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock under
stock option plan --- 42
Proceeds from long-term debt 602,500 658,000
Reductions of long-term debt (601,500) (665,000)
Purchases of treasury stock (13,389) ---
Dividends paid (13,674) (13,961)
________ ________
Net cash used in financing activities $(26,063) $(20,919)
________ ________
Net decrease in cash and cash equivalents (3,064) (4,118)
Cash and cash equivalents at beginning of period 3,760 6,430
________ ________
Cash and cash equivalents at end of period $ 696 $ 2,312
________ ________
See accompanying notes.
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued)
<TABLE>
LUBY'S, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
For the Nine Months Ended May 31, 1999 and 1998
(UNAUDITED)
<CAPTION>
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, 1997 $8,769 $(93,014) $26,945 $276,140 $218,840
Net income for the period --- --- --- 21,295 21,295
Common stock issued under
employee benefit plans, net
of shares tendered in partial
payment and including
tax benefits --- 107 54 (65) 96
Cash dividends --- --- --- (13,962) (13,962)
______ ________ _______ ________ ________
Balance at May 31, 1998 $8,769 $(92,907) $26,999 $283,408 $226,269
______ ________ _______ ________ ________
Balance at August 31, 1998 $8,769 $(92,907) $27,012 $262,540 $205,414
Net income for the period --- --- --- 21,667 21,667
Common stock issued under
employee benefit plans, net
of shares tendered in partial
payment and including
tax benefits --- 21 37 --- 58
Cash dividends --- --- --- (13,504) (13,504)
Purchases of treasury stock --- (12,918) --- --- (12,918)
______ ________ _______ ________ ________
Balance at May 31, 1999 $8,769 $(105,804) $27,049 $270,703 $200,717
______ ________ _______ ________ ________
See accompanying notes.
</TABLE>
Part I - FINANCIAL INFORMATION (continued)
Item 1. Financial Statements (continued)
LUBY'S, INC.
NOTES TO FINANCIAL STATEMENTS
May 31, 1999
(UNAUDITED)
Note 1: The accompanying unaudited financial statements are presented in
accordance with the requirements of Form 10-Q and, consequently, do
not include all of the disclosures normally required by generally
accepted accounting principles. 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.
These financial statements should be read in conjunction with the
consolidated financial statements and footnotes included in Luby's
annual report on Form 10-K for the year ended August 31, 1998. The
accounting policies used in preparing these consolidated financial
statements are the same as those described in Luby's annual report on
Form 10-K.
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 $3,064,000 from the end of the preceding
fiscal year to May 31, 1999. All capital expenditures for fiscal 1999 are being
funded from cash flows from operations, cash equivalents, and long-term debt.
Capital expenditures for the nine months ended May 31, 1999, were $21,199,000.
As of May 31, 1999, the company owned six undeveloped land sites, four land
sites on which restaurants are under construction, and several properties held
for sale.
During the nine months ended May 31, 1999, the company purchased 850,300 shares
of its common stock at a cost of $12,918,000, which are being held as treasury
stock. These shares were purchased under a 1,000,000 share authorization
which expired December 31, 1998. To complete the treasury stock purchases and
fund capital expenditures, the company required external financing and borrowed
funds under a $125,000,000 line-of-credit agreement. As of May 31, 1999, the
amount outstanding under this line of credit was $74,000,000. The company
believes that additional financing from external sources can be obtained on
terms acceptable to the company in the event such financing is required.
Results of Operations
_____________________
Quarter ended May 31, 1999 compared to the quarter ended May 31, 1998
_____________________________________________________________________
Sales decreased $4,146,000, or 3.2%, primarily due to the closing of ten
restaurants since May 31, 1998. In addition, sales volumes at restaurants
opened over one year declined 1.4% during the quarter. This decline was
partially offset by the addition of one new restaurant in fiscal 1999.
Cost of food decreased $3,431,000, or 10.3%, primarily due to the savings
associated with the consolidation of our purchasing under a prime vendor
program and the decline in sales. As a percentage of sales, food costs were
lower versus the prior year due to various additional factors including
increased drink sales from new self-serve drink counters and other sales mix
changes, the impact of a new manager compensation plan which provides more of
an incentive to improve margins at all sales volumes, and certain menu price
increases. Although sales declined, payroll and related costs increased
slightly due to higher hourly wage rates related to tight labor markets for
entry-level employees. Occupancy and other operating expenses remain fairly
flat as the increase in advertising expenditures, higher food-to-go packaging
costs, and higher costs associated with the rollout of a new uniform program
for restaurant employees were offset by fewer restaurants and lower
depreciation expense associated with store closings and asset impairments.
General and administrative expenses decreased $1,307,000, or 19.6%, as the
recording of a lump sum severance agreement and professional fees associated
with the company's strategic plan were recorded in the prior year.
Interest expense decreased $123,000, or 9.5%, due to lower average borrowings
under the line of credit agreement and a lower weighted average interest rate
during the current period as compared to the same period last year.
The provision for income taxes declined $133,000, or 3.0%, as the effective tax
rate decreased from 35.6% to 33.2% due to lower estimated state taxes as well
as higher than expected tax credits.
Nine months ended May 31, 1999 compared to the nine months ended May 31, 1998
_____________________________________________________________________________
Sales decreased $2,543,000, or 0.7%, primarily due to the closing of five
restaurants in fiscal 1998 and eight restaurants in fiscal 1999. This decline
was partially offset by the addition of one new restaurant in fiscal 1999 and
five in fiscal 1998. In addition, sales volumes at restaurants opened over one
year increased approximately 1.0%.
Cost of food decreased $4,155,000, or 4.3%, primarily due to the savings
associated with our conversion to a prime vendor program and the decline in
sales. As a percentage of sales, food costs were lower versus the prior year
due to various additional factors including increased drink sales from new
self-serve drink counters and other sales mix changes, the impact of a new
manager compensation plan which provides more of an incentive to improve
margins at all sales volumes, and certain menu price increases. Although sales
declined, payroll and related costs remained fairly flat due to higher hourly
wage rates related to tight labor markets for entry-level employees. Occupancy
and other operating expenses increased $2,049,000, or 1.8%, due to an increase
in advertising expenditures, higher food-to-go packaging costs, and higher
costs associated with the rollout of a new uniform program for all hourly
employees. These increases were partially offset by fewer restaurants and
lower depreciation expense associated with store closings and asset
impairments. General and administrative expenses declined $59,000 or 0.3%.
The recording of a lump sum severance agreement and professional fees
associated with the company's strategic plan which were recorded in the prior
year were offset by higher corporate salaries and benefits associated with the
addition of new positions to support the implementation of the company's
strategic plan and costs relating to increased recruiting and training efforts
for store management in the current year.
Interest expense decreased $202,000, or 5.3%, due to lower average borrowings
under the line-of-credit agreement and a lower weighted average interest rate
during the current period as compared to the same period last year.
The provision for income taxes decreased $460,000, or 3.9%. The effective tax
rate decreased from 35.6% to 34.3% due to lower estimated state taxes and
higher than expected tax credits.
The Year 2000
_____________
During 1998 the company, in the ordinary course of business, decided to migrate
its information technology from internally developed systems to commercially
available products. The decision was made for a variety of business reasons
and the new systems are designed to provide the infrastructure to support
corporate and restaurant-based systems. The newly implemented systems are Year
2000 compliant. The transition to the new technology was completed in January
1999. The company believes the Year 2000 will not pose significant operational
problems for its computer systems. The cost of the Year 2000 project is
estimated to be $200,000, primarily for services and costs of updating some
existing software. The company has established a committee which initiated
communications with various third parties with which it has significant
relationships to determine their readiness with respect to the Year 2000 issue.
These third parties include food and paper distributors, banks, and other
entities. Based on responses received from these third parties, it appears
that the Year 2000 issues are being addressed. The company has not been
informed of significant Year 2000 issues by third parties with which it has
material relationships. The company intends to continue communications and
monitor Year 2000 concerns that might develop.
The company has obtained assurances that our primary food and paper
distributors will have ample stock on hand should any secondary distributors
experience unanticipated Year 2000 issues. Based on our findings and
discussions with all significant vendors, the company believes the likelihood
is remote that its vendors have not fully addressed the Year 2000 issues.
However, despite the company's diligent preparation, some of its vendors may
fail to perform effectively or may fail to timely or completely deliver
products or services. In those circumstances, the company expects to be able
to conduct normal business operations and to be able to obtain necessary
products from alternative vendors, however, there would be some disruption
which would have an adverse effect on the company's consolidated financial
position, results of operations, and cash flows.
Forward-Looking Statements
__________________________
The company wishes to caution readers that various factors could cause the
actual results of the company to differ materially from those indicated by
forward-looking statements made from time to time in news releases, reports,
proxy statements, registration statements, and other written communications
(including the preceding sections of this Management's Discussion and
Analysis), as well as oral statements made from time to time by representatives
of the company. Except for historical information, matters discussed in such
oral and written communications are forward-looking statements that involve
risks and uncertainties, including but not limited to general business
conditions, the impact of competition, the success of operating initiatives,
changes in the cost and supply of food and labor, the seasonality of the
company's business, taxes, inflation, and governmental regulations.
Part II - OTHER INFORMATION (continued)
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3(a) Certificate of Incorporation of Luby's, Inc., as currently in
effect (filed as Exhibit 3(b) to the company's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1999,
and incorporated herein by reference).
3(b) Bylaws of Luby's, Inc. as currently in effect (filed as
Exhibit 3(c) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1998, and incorporated
herein by reference).
4(a) 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(b) 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(c) Amendment No. 2 dated February 7, 1995, to Rights Agreement
dated April 16, 1991 (filed as Exhibit 4(d) to the company's
Quarterly Report on Form 10-Q for the quarter ended
February 28, 1995, and incorporated herein by reference).
4(d) Amendment No. 3 dated May 29, 1995, to Rights Agreement dated
April 16, 1991 (filed as Exhibit 4(d) to the company's
Quarterly Report on Form 10-Q for the quarter ended May 31,
1995, and incorporated herein by reference).
4(e) Credit Agreement dated February 27, 1996, among Luby's
Cafeterias, Inc., Certain Lenders, and NationsBank of Texas,
N.A. (filed as Exhibit 4(e) to the company's Quarterly Report
on Form 10-Q for the quarter ended February 29, 1996, and
incorporated herein by reference).
4(f) First Amendment to Credit Agreement dated January 24, 1997,
among Luby's Cafeterias, Inc., Certain Lenders, and
NationsBank of Texas, N.A. (filed as Exhibit 4(f) to the
company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1997, and incorporated herein by reference).
4(g) ISDA Master Agreement dated June 17, 1997, between Luby's
Cafeterias, Inc. and NationsBank, N.A., with Schedule and
Confirmation dated July 7, 1997 (filed as Exhibit 4(g) to the
company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1997, and incorporated herein by reference).
4(h) ISDA Master Agreement dated July 2, 1997, between Luby's
Cafeterias, Inc. and Texas Commerce Bank National Association,
with Schedule and Confirmation dated July 2, 1997 (filed as
Exhibit 4(h) to the company's Annual Report on Form 10-K for
the fiscal year ended August 31, 1997, and incorporated herein
by reference).
4(i) Second Amendment to Credit Agreement dated July 3, 1997, among
Luby's Cafeterias, Inc., Certain Lenders, and NationsBank of
Texas, N.A. (filed as Exhibit 4(i) to the company's Annual
Report on Form 10-K for the fiscal year ended August 31, 1997,
and incorporated herein by reference).
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) Form of Amendment to Deferred Compensation Agreement between
Luby's Cafeterias, Inc. and various officers and former
officers adopted January 14, 1997 (filed as Exhibit 10(b) to
the company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1997, and incorporated herein by
reference).
10(c) Luby's Cafeterias, Inc. Incentive Bonus Plan for Fiscal 1998
adopted January 9, 1998 (filed as Exhibit 10(g) to the
company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1998, and incorporated herein by reference).
10(d) Performance Unit Plan of Luby's Cafeterias, Inc. approved by
the shareholders 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(e) Amendment to Performance Unit Plan of Luby's Cafeterias, Inc.
adopted January 14, 1997 (filed as Exhibit 10(h) to the
company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1997, and incorporated herein by reference).
10(f) 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).
10(g) Amendment to Management Incentive Stock Plan of Luby's
Cafeterias, Inc. adopted January 14, 1997 (filed as
Exhibit 10(k) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1997, and incorporated
herein by reference).
10(h) Nonemployee Director Deferred Compensation Plan of Luby's
Cafeterias, Inc. adopted October 27, 1994 (filed as
Exhibit 10(g) to the company's Quarterly Report on Form 10-Q
for the quarter ended November 30, 1994, and incorporated
herein by reference).
10(i) Amendment to Nonemployee Director Deferred Compensation Plan
of Luby's Cafeterias, Inc. adopted January 14, 1997 (filed as
Exhibit 10(m) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1997, and incorporated
herein by reference).
10(j) Amendment to Nonemployee Director Deferred Compensation Plan
of Luby's Cafeterias, Inc. adopted March 19, 1998 (filed as
Exhibit 10(o) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1998, and incorporated
herein by reference).
10(k) Nonemployee Director Stock Option Plan of Luby's Cafeterias,
Inc. approved by the shareholders on January 13, 1995 (filed
as Exhibit 10(h) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1995, and
incorporated herein by reference).
10(l) Amendment to Nonemployee Director Stock Option Plan of Luby's
Cafeterias, Inc. adopted January 14, 1997 (filed as
Exhibit 10(o) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1997, and incorporated
herein by reference).
10(m) Employment Contract dated January 12, 1996, between Luby's
Cafeterias, Inc. and John B. Lahourcade (filed as
Exhibit 10(i) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 29, 1996, and incorporated
herein by reference).
10(n) Luby's Cafeterias, Inc. Supplemental Executive Retirement Plan
dated May 30, 1996 (filed as Exhibit 10(j) to the company's
Annual Report on Form 10-K for the fiscal year ended
August 31, 1996, and incorporated herein by reference).
10(o) Amendment to Luby's Cafeterias, Inc. Supplemental Executive
Retirement Plan adopted January 14, 1997 (filed as
Exhibit 10(r) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1997, and incorporated
herein by reference).
10(p) Amendment to Luby's Cafeterias, Inc. Supplemental Executive
Retirement Plan adopted January 9, 1998 (filed as
Exhibit 10(u) to the company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1998, and incorporated
herein by reference).
10(q) Amendment to Luby's Cafeterias, Inc. Supplemental Executive
Retirement Plan adopted May 21, 1999.
10(r) Employment Agreement dated September 15, 1997, between Luby's
Cafeterias, Inc. and Barry J.C. Parker (filed as Exhibit 10(u)
to the company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1997, and incorporated herein by
reference).
10(s) Amendment dated January 8, 1999, to Employment Agreement
between Luby's Cafeterias, Inc. and Barry J.C. Parker (filed
as Exhibit 10(r) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1999, and
incorporated herein by reference).
10(t) Term Promissory Note of Barry J.C. Parker in favor of Luby's
Cafeterias, Inc., dated November 10, 1997, in the original
principal sum of $199,999.00 (filed as Exhibit 10(v) to the
company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1997, and incorporated herein by reference).
10(u) Stock Agreement dated November 10, 1997, between Barry J.C.
Parker and Luby's Cafeterias, Inc. (filed as Exhibit 10(w) to
the company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1997, and incorporated herein by reference).
10(v) Luby's Cafeterias, Inc. Nonemployee Director Phantom Stock
Plan adopted March 19, 1998 (filed as Exhibit 10(aa) to the
company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1998, and incorporated herein by reference).
10(w) Salary Continuation Agreement dated May 14, 1998, between
Luby's Cafeterias, Inc. and Sue Elliott (filed as
Exhibit 10(cc) to the company's Quarterly Report on Form 10-Q
for the quarter ended May 31, 1998, and incorporated herein by
reference).
10(x) Salary Continuation Agreement dated June 1, 1998, between
Luby's Cafeterias, Inc. and Alan M. Davis (filed as
Exhibit 10(dd) to the company's Quarterly Report on Form 10-Q
for the quarter ended May 31, 1998, and incorporated herein by
reference).
10(y) Luby's Incentive Stock Plan adopted October 16, 1998 (filed as
Exhibit 10(cc) to the company's Annual Report on Form 10-K for
the fiscal year ended August 31, 1998, and incorporated herein
by reference).
10(z) Incentive Bonus Plan for Fiscal 1999 adopted October 16, 1998
(filed as Exhibit 10(dd) to the company's Annual Report on
Form 10-K for the fiscal year ended August 31, 1998, and
incorporated herein by reference).
10(aa) Form of Change in Control Agreement entered into between
Luby's, Inc. and Barry J.C. Parker, President and Chief
Executive Officer, as of January 8, 1999 (filed as
Exhibit 10(z) to the company's Quarterly report on Form 10-Q
for the quarter ended February 28, 1999, and incorporated
herein by reference).
10(bb) Form of Change in Control Agreement entered into between
Luby's, Inc. and each of its Senior Vice Presidents as of
January 8, 1999 (filed as Exhibit 10(aa) to the company's
Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999, and incorporated herein by reference).
10(cc) Luby's, Inc. Deferred Compensation Plan effective June 1, 1999.
11 Statement re computation of per share earnings.
99(a) Corporate Governance Guidelines of Luby's Cafeterias, Inc. as
amended January 7, 1999 (filed as Exhibit 99(a) to the
company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999, and incorporated herein by reference).
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter for
which this report is filed.
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, INC.
(Registrant)
BARRY J.C. PARKER
By: _____________________________
Barry J. C. Parker
President and
Chief Executive Officer
LAURA M. BISHOP
By: _____________________________
Laura M. Bishop
Senior Vice President and
Chief Financial Officer
Dated: July 14, 1999
EXHIBIT INDEX
Number Document Pages
3(a) Certificate of Incorporation of Luby's, Inc., as
currently in effect (filed as Exhibit 3(b) to the
company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1999, and incorporated
herein by reference).
3(b) Bylaws of Luby's, Inc. as currently in effect (filed
as Exhibit 3(c) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1998,
and incorporated herein by reference).
4(a) 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(b) 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(c) Amendment No. 2 dated February 7, 1995, to Rights
Agreement dated April 16, 1991 (filed as Exhibit 4(d)
to the company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1995, and incorporated
herein by reference).
4(d) Amendment No. 3 dated May 29, 1995, to Rights Agreement
dated April 16, 1991 (filed as Exhibit 4(d) to the
company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1995, and incorporated herein by reference).
4(e) Credit Agreement dated February 27, 1996, among Luby's
Cafeterias, Inc., Certain Lenders, and NationsBank
of Texas, N.A. (filed as Exhibit 4(e) to the company's
Quarterly Report on Form 10-Q for the quarter ended
February 29, 1996, and incorporated herein by reference).
4(f) First Amendment to Credit Agreement dated January 24,
1997, among Luby's Cafeterias, Inc., Certain Lenders,
and NationsBank of Texas, N.A. (filed as Exhibit 4(f)
to the company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1997, and incorporated
herein by reference).
4(g) ISDA Master Agreement dated June 17, 1997, between
Luby's Cafeterias, Inc. and NationsBank, N.A., with
Schedule and Confirmation dated July 7, 1997 (filed as
Exhibit 4(g) to the company's Annual Report on Form 10-K
for the fiscal year ended August 31, 1997, and
incorporated herein by reference).
4(h) ISDA Master Agreement dated July 2, 1997, between Luby's
Cafeterias, Inc. and Texas Commerce Bank National
Association, with Schedule and Confirmation dated July 2,
1997 (filed as Exhibit 4(h) to the company's Annual Report
on Form 10-K for the fiscal year ended August 31, 1997,
and incorporated herein by reference).
4(i) Second Amendment to Credit Agreement dated July 3, 1997,
among Luby's Cafeterias, Inc., Certain Lenders, and
NationsBank of Texas, N.A. (filed as Exhibit 4(i) to
the company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1997, and incorporated herein
by reference).
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) Form of Amendment to Deferred Compensation Agreement
between Luby's Cafeterias, Inc. and various officers
and former officers adopted January 14, 1997 (filed as
Exhibit 10(b) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1997,
and incorporated herein by reference).
10(c) Luby's Cafeterias, Inc. Incentive Bonus Plan for
Fiscal 1998 adopted January 9, 1998 (filed as
Exhibit 10(g) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1998,
and incorporated herein by reference).
10(d) Performance Unit Plan of Luby's Cafeterias, Inc. approved
by the shareholders 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(e) Amendment to Performance Unit Plan of Luby's
Cafeterias, Inc. adopted January 14, 1997 (filed as
Exhibit 10(h) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1997,
and incorporated herein by reference).
10(f) 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).
10(g) Amendment to Management Incentive Stock Plan of
Luby's Cafeterias, Inc. adopted January 14, 1997
(filed as Exhibit 10(k) to the company's Quarterly Report
on Form 10-Q for the quarter ended February 28, 1997,
and incorporated herein by reference).
10(h) Nonemployee Director Deferred Compensation Plan of
Luby's Cafeterias, Inc. adopted October 27, 1994 (filed
as Exhibit 10(g) to the company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1994,
and incorporated herein by reference).
10(i) Amendment to Nonemployee Director Deferred Compensation
Plan of Luby's Cafeterias, Inc. adopted January 14, 1997
(filed as Exhibit 10(m) to the company's Quarterly Report
on Form 10-Q for the quarter ended February 28, 1997,
and incorporated herein by reference).
10(j) Amendment to Nonemployee Director Deferred Compensation
Plan of Luby's Cafeterias, Inc. adopted March 19, 1998
(filed as Exhibit 10(o) to the company's Quarterly Report
on Form 10-Q for the quarter ended February 28, 1998,
and incorporated herein by reference).
10(k) Nonemployee Director Stock Option Plan of Luby's
Cafeterias, Inc. approved by the shareholders on
January 13, 1995 (filed as Exhibit 10(h) to the
company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1995, and incorporated herein by
reference).
10(l) Amendment to Nonemployee Director Stock Option Plan
of Luby's Cafeterias, Inc. adopted January 14, 1997
(filed as Exhibit 10(o) to the company's Quarterly
Report on Form 10-Q for the quarter ended February 28,
1997, and incorporated herein by reference).
10(m) Employment Contract dated January 12, 1996, between
Luby's Cafeterias, Inc. and John B. Lahourcade
(filed as Exhibit 10(i) to the company's Quarterly
Report on Form 10-Q for the quarter ended February 29,
1996, and incorporated herein by reference).
10(n) Luby's Cafeterias, Inc. Supplemental Executive
Retirement Plan dated May 30, 1996 (filed as Exhibit 10(j)
to the company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1996, and incorporated
herein by reference).
10(o) Amendment to Luby's Cafeterias, Inc. Supplemental
Executive Retirement Plan adopted January 14, 1997 (filed
as Exhibit 10(r) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1997,
and incorporated herein by reference).
10(p) Amendment to Luby's Cafeterias, Inc. Supplemental
Executive Retirement Plan adopted January 9, 1998
(filed as Exhibit 10(u) to the company's Quarterly
Report on Form 10-Q for the quarter ended February 28,
1998, and incorporated herein by reference).
10(q) Amendment to Luby's Cafeterias, Inc. Supplemental
Executive Retirement Plan adopted May 21, 1999.
10(r) Employment Agreement dated September 15, 1997, between
Luby's Cafeterias, Inc. and Barry J.C. Parker (filed as
Exhibit 10(u) to the company's Annual Report on Form 10-K
for the fiscal year ended August 31, 1997, and
incorporated herein by reference).
10(s) Amendment dated January 8, 1999, to Employment Agreement
between Luby's Cafeterias, Inc. and Barry J.C. Parker
(filed as Exhibit 10(r) to the company's Quarterly Report
on Form 10-Q for the quarter ended February 28, 1999,
and incorporated herein by reference).
10(t) Term Promissory Note of Barry J.C. Parker in favor of
Luby's Cafeterias, Inc., dated November 10, 1997, in the
original principal sum of $199,999.00 (filed as
Exhibit 10(v) to the company's Annual Report on Form 10-K
for the fiscal year ended August 31, 1997, and
incorporated herein by reference).
10(u) Stock Agreement dated November 10, 1997, between
Barry J.C. Parker and Luby's Cafeterias, Inc. (filed
as Exhibit 10(w) to the company's Annual Report on
Form 10-K for the fiscal year ended August 31, 1997,
and incorporated herein by reference).
10(v) Luby's Cafeterias, Inc. Nonemployee Director Phantom
Stock Plan adopted March 19, 1998 (filed as Exhibit 10(aa)
to the company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1998, and incorporated
herein by reference).
10(w) Salary Continuation Agreement dated May 14, 1998, between
Luby's Cafeterias, Inc. and Sue Elliott (filed as
Exhibit 10(cc) to the company's Quarterly Report on
Form 10-Q for the quarter ended May 31, 1998, and
incorporated herein by reference).
10(x) Salary Continuation Agreement dated June 1, 1998, between
Luby's Cafeterias, Inc. and Alan M. Davis (filed as
Exhibit 10(dd) to the company's Quarterly Report on
Form 10-Q for the quarter ended May 31, 1998, and
incorporated herein by reference).
10(y) Luby's Incentive Stock Plan adopted October 16, 1998
(filed as Exhibit 10(cc) to the company's Annual Report
on Form 10-K for the fiscal year ended August 31, 1998,
and incorporated herein by reference).
10(z) Incentive Bonus Plan for Fiscal 1999 adopted October 16,
1998 (filed as Exhibit 10(dd) to the company's Annual
Report on Form 10-K for the fiscal year ended August 31,
1998, and incorporated herein by reference).
10(aa) Form of Change in Control Agreement entered into
between Luby's, Inc. and Barry J.C. Parker, President
and Chief Executive Officer, as of January 8, 1999 (filed
as Exhibit 10(z) to the company's Quarterly report on
Form 10-Q for the quarter ended February 28, 1999,
and incorporated herein by reference).
10(bb) Form of Change in Control Agreement entered into
between Luby's, Inc. and each of its Senior Vice
Presidents as of January 8, 1999 (filed as
Exhibit 10(aa) to the company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1999,
and incorporated herein by reference).
10(cc) Luby's, Inc. Deferred Compensation Plan effective
June 1, 1999.
11 Statement re computation of per share earnings.
99(a) Corporate Governance Guidelines of Luby's Cafeterias,
Inc. as amended January 7, 1999 (filed as Exhibit 99(a)
to the company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1999, and incorporated
herein by reference).
Exhibit 10(q)
LUBY'S, INC.
RESOLUTIONS OF BOARD OF DIRECTORS
May 21, 1999
SERP
WHEREAS, the Company currently maintains the Luby's Cafeterias, Inc.
Supplemental Executive Retirement Plan (the "SERP") for certain of its key
executives; and
WHEREAS, the Company is establishing a Luby's, Inc. Deferred Compensation Plan
(the "Deferred Compensation Plan") for the benefit of all of its highly
compensated employees (some of which are covered as Participants under the
SERP); and
WHEREAS, under the Deferred Compensation Plan eligible highly compensated
employees will be electing to defer the receipt of compensation they otherwise
would be entitled to receive for services performed for the Company; and
WHEREAS, such deferral of compensation would serve to reduce benefits
Participants in the SERP would otherwise be entitled to receive; and
WHEREAS, the Company desires that SERP benefits payable to highly compensated
employees deferring compensation under the Deferred Compensation Plan should not
be reduced;
NOW, THEREFORE, BE IT RESOLVED: The Board of Directors of the Company
authorizes and directs the appropriate officers of the Company to amend the SERP
by amending the definition of "Accrued Benefit" contained in Section 1.1 of the
SERP by inserting the following sentence at the end thereof:
Notwithstanding the preceding provisions of this Section 1.1
to the contrary, the offset described above for the Annualized
Value of any Deferred Compensation Agreement shall not include
any offset for benefits accrued under the Luby's, Inc.
Deferred Compensation Plan established effective June 1, 1999,
as it may be amended from time to time.
Exhibit 10(cc)
LUBY'S, INC.
DEFERRED COMPENSATION PLAN
Section
LUBY'S, INC.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
ARTICLE I -- DEFINITIONS
Account 1.1
Affiliate 1.2
Beneficiary 1.3
Board of Directors 1.4
Bonus 1.5
Change of Control 1.6
Code 1.7
Committee 1.8
Company 1.9
Compensation 1.10
Deferred Compensation Ledger 1.11
Disability 1.12
Elective Deferral 1.13
Elective Deferral Agreement 1.14
Employer 1.15
401(k) Plan 1.16
Fund 1.17
Highly Compensated Employee 1.18
Participant 1.19
Plan 1.20
Plan Year 1.21
Retirement 1.22
Trust 1.23
Trustee 1.24
ARTICLE II - ELIGIBILITY
ARTICLE III - DEFERRAL
Deferral Election 3.1
Deferral Amount 3.2
ARTICLE IV - ACCOUNT
Establishing a Participant's Account 4.1
Credit of the Participant's Deferral 4.2
Gauge for Determining Benefits 4.3
ARTICLE V - VESTING
ARTICLE VI - DISTRIBUTIONS
Death/Beneficiary Designation 6.1
Disability 6.2
Retirement 6.3
Termination Prior to Death, Disability or Retirement 6.4
Hardship Withdrawals 6.5
Payment on Specified Event 6.6
Responsibility for Distributions and Withholding of Taxes 6.7
ARTICLE VII - ADMINISTRATION
Committee Appointment 7.1
Committee Organization and Voting 7.2
Powers of the Committee 7.3
Committee Discretion 7.4
Annual Statements 7.5
Reimbursement of Expenses 7.6
ARTICLE VIII - AMENDMENT AND/OR TERMINATION AND CHANGE OF CONTROL
Amendment or Termination of the Plan 8.1
No Retroactive Effect on Account 8.2
Effect of Change of Control 8.3
Effect of Termination 8.4
ARTICLE IX - FUNDING
Payments Under This Agreement are the Obligation
of the Company 9.1
Agreement May Be Funded Through Rabbi Trust 9.2
Participants Must Rely Only on General
Credit of the Company 9.3
ARTICLE X - MISCELLANEOUS
Limitation of Rights 10.1
Distributions to Incompetents or Minors 10.2
Nonalienation of Benefits 10.3
Reliance Upon Information 10.4
Severability 10.5
Notice 10.6
Gender and Number 10.7
Governing Law 10.8
Effective Date 10.9
LUBY'S, INC.
DEFERRED COMPENSATION PLAN
WHEREAS, Luby's, Inc. (the "Company") desires to establish a deferred
compensation plan for all of its highly compensated employees (as that term is
defined in Section 4.14(q) of the Internal Revenue Code) (the "Participants"),
all of whom constitute a select group of management or highly compensated
employees of the Company for purposes of Title I of the Employee Retirement
Income Security Act of 1974 ("ERISA");
NOW, THEREFORE, the Company adopts the Deferred Compensation Plan as set
forth in the following Luby's, Inc. Deferred Compensation Plan as follows:
ARTICLE I
DEFINITIONS
1.1 Account. "Account" means a Participant's Account in the Deferred
Compensation Ledger maintained by the Committee which reflects the benefits a
Participant is entitled to under this Plan as a result of his deferral of
Compensation under the Plan.
1.2 Affiliate. "Affiliate" means any subsidiary corporation of the
Company. The term "subsidiary corporation" means any corporation in an unbroken
chain of corporations beginning with the Company if, at the time of the action
or transaction, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50 percent or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
1.3 Beneficiary. "Beneficiary" means a person or entity designated by the
Participant under the terms of this Plan to receive any amounts distributed
under the Plan upon the death of the Participant.
1.4 Board of Directors. "Board of Directors" means the Board of Directors
of Luby's, Inc., or any committee designated by the Board of Directors to assume
its duties or responsibilities with respect to the Plan.
1.5 Bonus. "Bonus" means the annual bonus, if any, paid to certain
Participants from year to year at the discretion of the Board of Directors. The
term "Bonus" shall not include any regular and recurring monthly bonuses paid to
certain Participants.
1.6 Change of Control. "Change of Control" mean the occurrence of any of
the events described in subsections (a) through (d) below:
(a) Either (A) receipt by the Company of a report on Schedule 13D, or
an amendment to such a report, filed with the Securities and Exchange
Commission (the "SEC") pursuant to Section 13(d) of the Securities Exchange
Act of 1934 (the "1934 Act") disclosing that any person (as such term is
used in Section 13(d) of the 1934 Act) ("Person"), is the beneficial owner,
directly or indirectly, of twenty percent or more of the combined voting
power of the outstanding stock of the Company, or (B) actual knowledge by
the Board of Directors of facts on the basis of which any person is
required to file such a report on Schedule 13D, or to make an amendment to
such a report, with the SEC (or would be required to file such a report or
amendment upon the lapse of the applicable period of time specified in
Section 13(d) of the 1934 Act) disclosing that such Person is the
beneficial owner, directly or indirectly, of twenty percent or more of the
combined voting power of the outstanding stock of Luby's, Inc.
(b) Purchase by any Person other than the Company or a wholly-owned
subsidiary of the Company, of shares pursuant to a tender or exchange offer
to acquire any stock of the Company (or securities convertible into stock)
for cash, securities or any other consideration provided that, after
consummation of the offer, such Person is the beneficial owner (as defined
in Rule 13d-e under the 1934 Act), directly or indirectly, of twenty
percent or more of the combined voting power of the outstanding stock of
the Company (calculated as provided in paragraph (d) of Rule 13d-3 under
the 1934 Act in the case of rights to acquire stock).
(c) Approval by the shareholders of the Company of a transaction
described in any of the following paragraphs:
(i) Any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to
which shares of stock of the Company would be converted into cash,
securities or other property, other than a consolidation or merger of
the Company in which holders of its stock immediately prior to the
consolidation or merger own at least a majority of the combined voting
power of the outstanding stock of the surviving corporation
immediately after the consolidation or merger (or at least a majority
of the combined voting power of the outstanding stock of a corporation
which owns directly or indirectly all of the voting stock of the
surviving corporation).
(ii) Any consolidation or merger in which the Company is the
continuing or surviving corporation but in which the shareholders of
the Company immediately prior to the consolidation or merger do not
hold at least a majority of the combined voting power of the
outstanding stock of the continuing or surviving corporation (except
where such holders of stock hold at least a majority of the combined
voting power of the outstanding stock of the corporation which owns
directly or indirectly all of the voting stock of the Company).
(iii) Any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all the assets of the Company (except such a transfer to
a corporation which is wholly owned, directly or indirectly, by the
Company), or any complete liquidation of the Company.
(iv) Any merger or consolidation of the Company where, after
the merger or consolidation, one Person owns 100% of the shares of
stock of the Company (except where the holders of the Company voting
stock immediately prior to such merger or consolidation own at least a
majority of the combined voting power of the outstanding stock of such
Person immediately after such merger or consolidation).
(d) A change in the majority of the members of the Board of Directors
within a 24-month period unless the election or nomination for election by
the Company shareholders of each new director was approved by the vote of
at least two-thirds of the directors then still in office who were in
office at the beginning of the 24-month period.
A Change In Control occurs on the date that an event described in
subsection (a), (b), or (d) occurs. In the case of a transaction described in
subsection (c) which is subject to approval by the shareholders, the Change In
Control occurs on the date the transaction is complete.
1.7 Code. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.8 Committee. "Committee" means the persons who are from time to time
designated by the Board of Directors to serve as the Committee administering the
Plan. These persons shall constitute the members of the Committee administering
this Plan.
1.9 Company. "Company" means Luby's, Inc., the sponsor of the Plan.
1.10 Compensation. "Compensation" means the same as the definition of
compensation used under the 401(k) Plan for purposes of determining actual
deferral percentages under the 401(k) Plan; provided, however, that Bonuses
shall not be included as Compensation and Compensation shall be determined
without regard to the limitations imposed under the 401(k) Plan on maximum
recognizable compensation that may be taken into account thereunder.
1.11 Deferred Compensation Ledger. "Deferred Compensation Ledger" means
the ledger maintained by the Committee for each Participant which reflects the
amount of Compensation and/or Bonus deferred by the Participant under this Plan
pursuant to his Elective Deferral Agreement and the amount of earnings credited
to his Account.
1.12 Disability. "Disability" means a physical or mental condition that
meets the eligibility requirements for the receipt of disability income under
the Company's long term disability benefit plan then in effect; provided,
however, that should the Company not maintain a long term disability benefit
plan, then, Disability shall mean that determined under the federal Social
Security Act.
1.13 Elective Deferral. "Elective Deferral" means the amount of
Compensation and/or Bonus the Participant elects to defer under the terms of
this Plan.
1.14 Elective Deferral Agreement. "Elective Deferral Agreement" means the
agreement entered into by the Participant from time to time setting forth his
Elective Deferrals under the Plan.
1.15 Employer. "Employer" means the Company or any Affiliate which adopts
this Plan.
1.16 401(k) Plan. "401(k) Plan" means the Luby's Savings and Investment
Plan, incorporating 401(k) features, as it may be amended from time to time.
1.17 Fund. "Fund" means the investment fund or funds, or portfolio or
portfolios selected by the Committee and attached to and incorporated in this
Plan, which shall be used to measure the benefits to be provided by this Plan.
1.18 Highly Compensated Employee. "Highly Compensated Employee" means all
employees of the Employer constituting highly compensated employees of the
Employer as defined in Section 414(q) of the Code as determined under the 401(k)
Plan from time to time. Provided, however, with respect to a newly-hired
employee of an Employer who would constitute a Highly Compensated Employee of
the Employer but for his employment during the preceding Plan Year, such an
employee shall be considered a Highly Compensated Employee for purposes of
determining his or her eligibility to participate under the Plan.
1.19 Participant. "Participant" means all Highly Compensated Employees of
the Employer, all of whom constitute a member of a select group of management or
other highly compensated employees of the Employer.
1.20 Plan. "Plan" means Luby's, Inc. Deferred Compensation Plan set forth
in this document, as amended from time to time.
1.21 Plan Year. "Plan Year" means the calendar year.
1.22 Retirement. "Retirement" means the retirement of a Participant from
the Employer, in accordance with the Employer's then prevailing retirement
policies.
1.23 Trust. "Trust" means any grantor's trust established by the Company
and the Trustee, if any, pursuant to Revenue Procedure 92-64, which would intend
to constitute a model "rabbi trust" for the purpose of establishing a funding
vehicle for the payment of benefits under the Plan.
1.24 Trustee. "Trustee" means any trustee that may be appointed by the
Company from time to time under the Trust.
ARTICLE II
ELIGIBILITY
All Highly Compensated Employees of any Employer are eligible to
participate in this Plan in any Plan Year in which such person is a Highly
Compensated Employee. The Committee shall notify all Highly Compensated
Employees of their eligibility to participate in the Plan. In order to commence
participation in the Plan, such an eligible Participant shall execute an
Elective Deferral Agreement (which may or may not provide for Elective Deferrals
by the Participant) in a form satisfactory to the Committee, together with any
other documents as may be required from time to time by the Committee.
ARTICLE III
DEFERRAL
3.1 Deferral Election. A Participant may elect within 30 days after
notification of being eligible to participate in the Plan, or not less than 30
days prior to the beginning of any future Plan Year by properly completing an
Elective Deferral Agreement what, if any, percentage of his Compensation and/or
Bonus earned during the ensuing Plan Year is to be deferred under this Plan.
Once an election has been made under the Elective Deferral Agreement as to the
percentage of Compensation and/or Bonus to be deferred, it becomes irrevocable
for that Plan Year. The election to participate in the Plan for a given Plan
Year will be effective only upon receipt by the Committee of the Participant's
Elective Deferral Agreement on such form and at such time as will be determined
by the Committee from time to time. If the Committee fails to receive a
Participant's Elective Deferral Agreement prior to the beginning of a Plan Year,
that Participant will be deemed to have elected to continue in effect his
current election to defer (or not defer) any part of his Compensation and/or
Bonus for that Plan Year, as well as subsequent Plan Years, until he has revoked
or modified his election.
3.2 Deferral Amount. A Participant may elect to defer a percentage of his
Compensation for the ensuing Plan Year under this Plan in such percentage of his
Compensation as the Committee may announce prior to the commencement of the Plan
Year. Notwithstanding the preceding provision of this Section 3.2, with respect
to an eligible Participant who has not met the eligibility conditions to
participate in the 401(k) Plan, such a Participant shall be entitled to elect to
defer an additional amount or percentage of his or her Compensation as the
Committee may announce prior to the commencement of the Plan Year; provided,
however, at such point in time that the eligible Participant becomes eligible to
participate in the 401(k) Plan, he or she shall only be entitled to elect to
defer a percentage of his or her Compensation for the remainder of the Plan Year
as is made available to all other Plan Participants. Finally, a Participant may
also elect to defer all or a percentage of his or her Bonus, if any, to be paid
during the ensuing Plan Year. The amount of any Bonus to be deferred may be any
amount or percentage elected by the Participant prior to the commencement of the
Plan Year during which the Bonus is to be earned.
ARTICLE IV
ACCOUNT
4.1 Establishing a Participant's Account. The Committee will establish an
Account for each Participant in a special Deferred Compensation Ledger which
will be maintained by the Company. The Account will reflect the amount of the
Company's obligation to the Participant at any given time.
4.2 Credit of the Participant's Deferral. The Committee will credit the
amount of a Participant's deferral to the Participant's Account in the Deferred
Compensation Ledger as it would have been paid during the Plan Year but for the
deferral which was elected.
4.3 Gauge for Determining Benefits. The Compensation and/or Bonus
deferred pursuant to the Elective Deferral Agreement, if any, when allocated to
the Account of the Participant, shall be treated as if it were invested in the
Fund as of the date of allocation. The amounts entered in the Account shall
then begin accruing gains and losses and income at the rate set forth under the
Fund as if those amounts were actually invested in the Fund, and shall continue
to accrue such gains and losses and income at the rate set forth under the Fund
until the valuation date established by the Committee that precedes the date
such amounts are distributed from the Account to the Participant pursuant to
Article VI of the Plan.
ARTICLE V
VESTING
All deferrals of Compensation and/or Bonus, pursuant to the Elective
Deferral Agreement will be 100% vested at all times. The gains, losses and
earnings allocated on those deferrals will be 100% vested.
ARTICLE VI
DISTRIBUTIONS
6.1 Death/Beneficiary Designation. Upon the death of a Participant, the
Participant's Beneficiary or Beneficiaries will receive the balance then
credited to the Participant's Account in the Deferred Compensation Ledger in the
form of a lump sum distribution. The payment will be made or commence to be
paid within 90 days after the Participant's death.
Each Participant, at the time of entering into his initial Elective
Deferral Agreement, must file with the Committee a designation of one or more
Beneficiaries to whom distributions otherwise due the Participant will be made
in the event of his death prior to the complete distribution of the amount
credited to his Account in the Deferred Compensation Ledger. The designation
will be effective upon receipt by the Committee of a properly executed form
which the Committee has approved for that purpose. The Participant may from
time to time revoke or change any designation of Beneficiary by filing another
approved Beneficiary designation form with the Committee. If there is no valid
designation of Beneficiary on file with the Committee at the time of the
Participant's death, or if all of the Beneficiaries designated in the last
Beneficiary designation have predeceased the Participant or otherwise ceased to
exist, the Beneficiary will be the Participant's spouse, if the spouse survives
the Participant, or otherwise the Participant's estate. A Beneficiary must
survive the Participant by 60 days in order to be considered to be living on the
date of the Participant's death. If any Beneficiary survives the Participant
but dies or otherwise ceases to exist before receiving all amounts due the
Beneficiary from the Participant's Account, the balance of the amount which
would have been paid to that Beneficiary will, unless the Participant's
designation provides otherwise, be distributed to the individual deceased
Beneficiary's estate or to the Participant's estate in the case of a Beneficiary
which is not an individual. Any Beneficiary designation which designates any
person or entity other than the Participant's spouse must be consented to in
writing in a form acceptable to the Committee in order to be effective.
6.2 Disability. Upon the Disability of the Participant, the Participant
shall receive or commence to receive the value of the amounts credited to his
Account as soon as administratively practicable following determination of said
Participant's Disability, in the form of a lump sum distribution if the balance
then credited to the Participant's Account does not exceed $50,000. In the
event the balance then credited to the Participant's Account is in excess of
$50,000 but less than $200,000, then the amount shall be distributed in the form
of five annual installments. If the balance then credited to the Participant's
Account exceeds $200,000, then it shall be distributed in ten annual
installments. Any such Accounts distributed in installment payments shall
continue to accrue earning to the Account as set forth in section 4.3 of the
Plan until such Account has been fully distributed.
6.3 Retirement. Upon the Retirement of the Participant, the Participant
shall receive or commence to receive the value of the amounts credited to his
Account as soon as administratively practicable following said Participant's
Retirement, in the manner set forth in Section 6.2 as if the Participant had
become Disabled; provided, however, that a Participant may, upon giving at least
one year's notice prior to his or her actual Retirement, elect to receive a
distribution exceeding $200,000 in five annual installments or, in the
alternative, a distribution exceeding $50,000 but less than $200,000 in ten
annual installments if said election is provided to the Committee at least one
year prior to the Participant's Retirement.
6.4 Termination Prior to Death, Disability or Retirement. Upon the
Participant's termination from the employ of the Employer, prior to death,
Disability or Retirement, the Participant shall receive the value of the amounts
credited his Account as soon as administratively practicable following said
Participant's termination in the manner set forth in Section 6.1 as if the
Participant had died.
6.5 Hardship Withdrawals. Any Participant may request a hardship
withdrawal. No hardship withdrawal can exceed the lesser of the amount credited
to the Participant's Account or the amount reasonably needed to satisfy the
emergency need taking into account all other resources reasonably available to
meet this Participant's emergency need. Whether a hardship exists and the
amount reasonably needed to satisfy the emergency need (taking into account the
Participant's other means) will be determined by the Committee based upon the
evidence presented by the Participant and the rules established in this Section;
but shall include but not be limited to unforeseeable emergencies arising from
unexpected illness or accident involving the Participant or his dependents, loss
of property due to casualty or other extraordinary circumstances such as
impending bankruptcy, a long and serious illness of the Participant or his
dependents. If a hardship withdrawal is approved by the Committee it will be
paid within 10 days of the Committee's determination. The circumstances that
will constitute a hardship will depend upon the facts of each case. It is the
intent of the Company that this section 6.5 be interpreted in a manner
consistent with Internal Revenue Service Revenue Procedure 92-65 as it may be
amended or superceded from time to time.
6.6 Payment on Specified Event. The Participant shall have the right to
make one election at his or her commencement of participation in the Plan to
receive in one lump-sum that portion or those portions of his Account on a
specific date specified by the Participant in his Elective Deferral Agreement
(or any other agreement provided by the Committee for this purpose) or the
balance of his Account, if less, so long as the date specified is at least five
(5) years after the date of the election. In addition to the Participant's right
to make an election at his or her commencement of participation, the Participant
shall also have the right to request a lump sum distribution of all or a portion
of his Account on any future date specified by the Participant. However, in the
event of such a subsequent distribution, the Participant must either (i) suffer
a 10% forfeiture of the amount that would otherwise be distributed or
(ii) refrain from future participation in the Plan for a period of at least five
years from the date of the distribution. The same forfeiture or hold out
requirement shall apply in the event the Participant elects to modify or revoke
his or her election made at commencement of participation in the Plan but prior
to distribution pursuant to that initial election. Any amounts distributed
under his Elective Deferral Agreement pursuant to this Section 6.6 shall
immediately reduce the Participant's Account for purposes of any further income
accrual and for distributions on or after that date.
6.7 Responsibility for Distributions and Withholding of Taxes. The
Committee will furnish information to the Company concerning the amount and form
of distribution to any Participant entitled to a distribution so that the
Company may make or cause the Trust (if one is established) to make the
distribution required. The Committee will also calculate the deductions from
the amount of the benefit paid under the Plan for any taxes required to be
withheld by federal, state or local government and will cause them to be
withheld.
ARTICLE VII
ADMINISTRATION
7.1 Committee Appointment. The Committee will be comprised of those
persons designated from time to time by its Board of Directors. The Board of
Directors will have the sole discretion to remove any one or more Committee
members and appoint one or more replacement or additional Committee members from
time to time.
7.2 Committee Organization and Voting. The Board of Directors will select
from among the members of the Committee a chairman who will preside at all of
its meetings and who will likewise select a secretary without regard to whether
that person is a member of the Committee. The secretary will keep all records,
documents and data pertaining to the Committee's supervision and administration
of the Plan. A majority of the members of the Committee will constitute a
quorum for the transaction of business and the vote of a majority of the members
present at any meeting will decide any question brought before the meeting. In
addition, the Committee may decide any question by vote, taken without a
meeting, of a majority of its members. A member of the Committee who is also a
Participant will not vote or act on any matter relating solely to himself.
7.3 Powers of the Committee. The Committee will have the exclusive
responsibility for the general administration of the Plan according to the terms
and provisions of the Plan and will have all powers necessary to accomplish
those purposes, including but not by way of limitation the right, power and
authority:
(a) to determine the amount or percentage of Compensation that
Participants may elect to defer in a given Plan Year;
(b) to make rules and regulations for the administration of the Plan;
(c) to construe all terms, provisions, conditions and limitations of
the Plan;
(d) to determine whether a Change of Control has occurred;
(e) to correct any defect, supply any omission or reconcile any
inconsistency that may appear in the Plan in the manner and to the extent
it deems expedient to carry the Plan into effect for the greatest benefit
of all parties at interest;
(f) to designate the persons eligible to become Participants;
(g) to determine all controversies relating to the administration of
the Plan, including but not limited to:
(1) differences of opinion arising between the Company and a
Participant, except when the difference of opinion relates to the
entitlement to, or the amount of, or the method or timing of payment
of a benefit affected by a Change of Control, in which event it shall
be decided by judicial action; and
(2) any question it deems advisable to determine in order to
promote the uniform administration of the Plan for the benefit of all
parties at interest; and
(h) to delegate by written notice those clerical and recordation
duties of the Committee, as it deems necessary or advisable for the proper
and efficient administration of the Plan.
7.4 Committee Discretion. The Committee in exercising any power or
authority granted under this Plan or in making any determination under this Plan
shall perform or refrain from performing those acts using its sole discretion
and judgment. Any decision made by the Committee or any refraining to act or
any act taken by the Committee in good faith shall be final and binding on all
parties. The Committee's decision shall never be subject to de novo review.
7.5 Annual Statements. The Committee will cause each Participant to
receive an annual (or more frequent, as determined by the Committee) statement
as soon as administratively practicable after the conclusion of each Plan Year
(or other more frequent reporting period, as applicable) containing the amounts
deferred through that Plan Year (or other more frequent reporting period, as
applicable) and the interest or earnings applicable to the deferred amounts.
7.6 Reimbursement of Expenses. The Committee will serve without
compensation for their services but will be reimbursed by the Company for all
expenses properly and actually incurred in the performance of their duties under
the Plan.
ARTICLE VIII
AMENDMENT AND/OR TERMINATION
AND CHANGE OF CONTROL
8.1 Amendment or Termination of the Plan. The Board of Directors may
amend or terminate this Plan at any time by an instrument in writing.
8.2 No Retroactive Effect on Account. No amendment will affect the rights
of any Participant to the amounts then standing to his credit in his Account in
the Deferred Compensation Ledger, to change the method of calculating the rate
of earnings under the Fund already accrued on amounts deferred by him prior to
the date of the amendment. However, the Committee shall retain the right at any
time to change in any manner the method of calculating the rate of earnings
under the Fund on all amounts deferred by a Participant after the date of the
amendment if it has been announced to the Participants.
8.3 Effect of Change of Control. In the event a Change of Control of the
Company, this Plan shall automatically terminate effective as of the Change of
Control. The Accounts of each Participant shall be paid in accordance with the
provisions of Section 8.4, as soon as administratively practicable following the
Change of Control.
8.4 Effect of Termination. If the Plan is terminated, all amounts
deferred by Participants and credited to a Participant's Account remain vested
under Article V, and earnings under the Fund will be applied to the Account in
accordance with Section 4.3 as if the Participant were entitled to and did die
on the date the Plan terminated. Distribution will be made to the Participant
in accordance with Section 6.1 as if the Participant had died, as soon as
administratively practicable in one lump sum payment to the Participant.
ARTICLE IX
FUNDING
9.1 Payments Under This Agreement are the Obligation of the Company. The
Company will pay the benefits due the Participants under this Plan; however
should it fail to do so when a benefit is due, the benefit will be paid by the
trustee of the Trust entered by and between the Company and the Trustee, should
such a Trust be established. In any event, if the Trust, should such a Trust be
established, fails to pay for any reason, the Company remains liable for the
payment of all benefits provided by this Plan.
9.2 Agreement May Be Funded Through Rabbi Trust. It is specifically
recognized by both the Company and the Participants that the Company may, but is
not required to, contribute any amount it finds desirable to a so-called "Rabbi
Trust," established to accumulate assets sufficient to fund the obligations of
the Company under this Plan. However, under all circumstances, the rights of
the Participants to the assets held in the Trust will be no greater than the
rights expressed in this agreement. Nothing contained in any trust agreement
which creates any funding trust or trusts will constitute a guarantee by the
Company that assets of the Company transferred to that trust or those trusts
will be sufficient to pay any benefits under this Plan or would place the
Participant in a secured position ahead of general creditors should the Company
become insolvent or bankrupt. Any trust agreement prepared to fund the
Company's obligations under this agreement must specifically set out these
principles so it is clear in that trust agreement that the Participants in this
Plan are only unsecured general creditors of the Company in relation to their
benefits under this Plan.
9.3 Participants Must Rely Only on General Credit of the Company. It is
also specifically recognized by both the Company and the Participants that this
Plan is only a general corporate commitment and that each Participant must rely
upon the general credit of the Company for the fulfillment of its obligations
hereunder. Under all circumstances the rights of Participants to any asset held
by the Company will be no greater than the rights expressed in this agreement.
Nothing contained in this agreement will constitute a guarantee by the Company
that the assets of the Company will be sufficient to pay any benefits under this
Plan or would place the Participant in a secured position ahead of general
creditors of the Company. Though the Company may establish and may fund a Rabbi
Trust, as indicated in Section 9.2, to accumulate assets to fulfill its
obligations, the Plan and any such trust will not create any lien, claim,
encumbrance, right, title or other interest of any kind whatsoever in any
Participant in any asset held by the Company, contributed to any such trust or
otherwise designated to be used for payment of any of its obligations created in
this agreement. No specific assets of the Company have been or will be set
aside, or will in any way be transferred to any trust or will be pledged in any
way for the performance of the Company's obligations under this Plan which would
remove such assets from being subject to the general creditors of the Company.
ARTICLE X
MISCELLANEOUS
10.1 Limitation of Rights. Nothing in this Plan will be construed:
(a) to give any non-employee member of the Board of Directors any
right to be designated a Participant in the Plan;
(b) to give a Participant any right with respect to the compensation
deferred or the interest credited in the Deferred Compensation Ledger,
except in accordance with the terms of this Plan; or
(c) to give a Participant or any other person claiming through him
any interest or right under this Plan other than that of any unsecured
general creditor of the Company.
10.2 Distributions to Incompetents or Minors. Should a Participant become
incompetent or should a Participant designate a Beneficiary who is a minor or
incompetent, the Committee is authorized to pay the funds due to the parent of
the minor or to the guardian of the minor or incompetent or directly to the
minor or to apply those funds for the benefit of the minor or incompetent in any
manner the Committee determines in its sole discretion.
10.3 Nonalienation of Benefits. No right or benefit provided in this Plan
will be transferable by the Participant except, upon his death, to a named
Beneficiary as provided in this Plan. No right or benefit under this Plan will
be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
or charge the same will be void. No right or benefit under this Plan will in
any manner be liable for or subject to any debts, contracts, liabilities or
torts of the person entitled to such benefits. If any Participant or any
Beneficiary becomes bankrupt or attempts to anticipate, alienate, sell, assign,
pledge, encumber or charge any right or benefit under this Plan, that right or
benefit will, in the discretion of the Committee, cease. In that event, the
Committee may have the Company hold or apply the right or benefit or any part of
it to the benefit of the Participant or Beneficiary, his or her spouse, children
or other dependents or any of them in any manner and in any proportion the
Committee believes to be proper in its sole and absolute discretion, but is not
required to do so.
10.4 Reliance Upon Information. The Committee will not be liable for any
decision or action taken in good faith in connection with the administration of
this Plan. Without limiting the generality of the foregoing, any decision or
action taken by the Committee when it relies upon information supplied it by any
officer of the Company, the Company's legal counsel, the Company's independent
accountants or other advisors in connection with the administration of this Plan
will be deemed to have been taken in good faith.
10.5 Severability. If any term, provision, covenant or condition of the
Plan is held to be invalid, void or otherwise unenforceable, the rest of the
Plan will remain in full force and effect and will in no way be affected,
impaired or invalidated.
10.6 Notice. Any notice or filing required or permitted to be given to
the Committee or a Participant will be sufficient if in writing and hand
delivered or sent by U.S. mail to the principal office of the Company or to the
residential mailing address of the Participant. Notice will be deemed to be
given as of the date of hand delivery or if delivery is by mail, as of the date
shown on the postmark.
10.7 Gender and Number. Words used in this Plan of one gender are to be
construed as though they were also used in another gender in all cases where
they would so apply and likewise words in the singular or plural are to be
construed as though they also included the other in all cases where they would
so apply.
10.8 Governing Law. The Plan will be construed, administered and governed
in all respects by the laws of the State of Texas.
10.9 Effective Date. This amendment and restatement of the Plan will be
operative and effective on June 1, 1999.
IN WITNESS WHEREOF, the Company has executed this document on this 20th
day of April, 1999, as authorized by the Board of Directors of the Company on
the 8th day of January, 1999.
LUBY'S, INC.
LAURA M. BISHOP
By ____________________________
Senior Vice President and Chief Financial Officer
Title __________________________________________________
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, Inc. for the three and nine months ended May 31,
1999 and 1998.
Three months ended May 31, 1999:
22,420,375 x shares outstanding for 92 days 2,062,674,500
Divided by number of days in the period 92
_____________
22,420,375
Nine months ended May 31, 1999:
23,270,675 x shares outstanding for 52 days 1,210,075,100
23,163,097 x shares outstanding for 9 days 208,467,873
22,870,798 x shares outstanding for 30 days 686,123,940
22,626,065 x shares outstanding for 31 days 701,408,015
22,420,375 x shares outstanding for 151 days 3,385,476,625
_____________
6,191,551,553
Divided by number of days in the period 273
_____________
22,679,676
Three months ended May 31, 1998:
23,270,675 x shares outstanding for 92 days 2,140,902,100
Divided by number of days in the period 92
_____________
23,270,675
Nine months ended May 31, 1998:
23,266,374 x shares outstanding for 18 days 418,794,732
23,266,921 x shares outstanding for 17 days 395,537,657
23,268,328 x shares outstanding for 9 days 209,414,952
23,270,675 x shares outstanding for 229 days 5,328,984,575
_____________
6,352,731,916
Divided by number of days in the period 273
_____________
23,270,080
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> AUG-31-1999
<PERIOD-END> MAY-31-1999
<CASH> 696
<SECURITIES> 0
<RECEIVABLES> 774
<ALLOWANCES> 0
<INVENTORY> 3,993
<CURRENT-ASSETS> 10,743
<PP&E> 471,842
<DEPRECIATION> 168,676
<TOTAL-ASSETS> 335,804
<CURRENT-LIABILITIES> 46,518
<BONDS> 0
0
0
<COMMON> 8,769
<OTHER-SE> 191,948<F1>
<TOTAL-LIABILITY-AND-EQUITY> 335,804
<SALES> 376,563
<TOTAL-REVENUES> 376,563
<CGS> 207,124
<TOTAL-COSTS> 207,124
<OTHER-EXPENSES> 116,982
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,611
<INCOME-PRETAX> 32,979
<INCOME-TAX> 11,312
<INCOME-CONTINUING> 21,667
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 21,667
<EPS-BASIC> 0.96
<EPS-DILUTED> 0.96
<FN>
<F1>Other stockholders' equity amount is less cost of treasury stock of
$105,804.
</FN>
</TABLE>
