EXHIBIT 99.2
Brinker International, Inc. Savings Plan II, as amended
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN II
W I T N E S S E T H:
WHEREAS, BRINKER INTERNATIONAL, INC. (the "Company") desires
to adopt a nonqualified, unfunded plan of deferred compensation
to be known as the BRINKER INTERNATIONAL, INC. SAVINGS PLAN II,
effective as of January 1, 1993, for the benefit of a select
group of its eligible officers and other highly compensated
employees.
NOW THEREFORE, the BRINKER INTERNATIONAL, INC. SAVINGS PLAN
II shall be and is hereby adopted effective as of January 1,
1993, to read as follows:
TABLE OF CONTENTS
I. DEFINITIONS AND CONSTRUCTION 1
II. ADMINISTRATION 4
III. PARTICIPATION 7
IV. DEFERRED COMPENSATION 7
V. ALLOCATIONS, ADJUSTMENTS AND WITHDRAWALS 9
VI. SEVERANCE BENEFITS 11
VII. DISABILITY BENEFITS 13
VIII. DEATH BENEFITS 14
IX. TIME AND MANNER OF PAYMENT OF BENEFITS 15
X. ADMINISTRATION OF FUNDS 15
XI. TRUST FUND AND INSURANCE CONTRACTS 16
XII. FIDUCIARY PROVISIONS 16
XIII. AMENDMENTS 17
XIV. DISCONTINUATION OF CONTRIBUTIONS AND TERMINATION 18
XV. MISCELLANEOUS 18
I.
DEFINITIONS AND CONSTRUCTION
1.01 Definitions. Where the following words and phrases appear
in this Plan, they shall have the respective meanings set forth
below, unless their context clearly indicates to the contrary:
(1) Accounts: Collectively, a Participant's Savings Account,
and Company Matching Account. These Accounts may be divided into
subaccounts as appropriate.
(2) Act: The "Employee Retirement Income Security Act of 1974,"
as amended from time to time.
(3) Authorized Leave of Absence: Any absence authorized by the
Company under the Company's standard personnel practices,
provided that all persons under similar circumstances must be
treated alike in the granting of such Authorized Leave of
Absence.
(4) Base Salary: Regular bi-weekly salary paid to all salaried
Employees for their services.
(5) Benefit Disbursement Date: With respect to each
Participant, the date the first payment is made under this Plan
to provide a benefit for such Participant or his beneficiary. In
general, this date shall be within thirty (30) days after the end
of the Plan Quarter in which the Participant's death, certified
disability or other severance from employment occurs or, in the
case of a disputed claim, within thirty (30) days after the claim
is settled.
(6) Bonuses: Bonuses payable under the Chili's Manager Deferred
Bonus Plan, bonuses payable under the Manager Deferral Plan,
monthly and quarterly cash profitability bonuses payable to
restaurant managers, and annual incentive payments to home office
employees to the extent includible in gross income. Long-term
incentive payments made to Company officers are not included in
Bonuses. The Chili's Manager Deferred Bonus Plan and manager
Deferral Plan are informal arrangements under which the Employee
is promised additional compensation in connection with his salary
review if he or she remains with the employer and performs
services. This promise relates to services to be performed in the
future and not to services that have been performed before the
promise.
(7) Code: The Internal Revenue Code of 1986, as amended.
(8) Committee: The administrative committee appointed by the
Directors to administer the Plan.
(9) Common Stock: The common stock of Brinker International,
Inc.
(10) Company: Brinker International, Inc., a Delaware
corporation.
(11) Company Matching Account: An individual Account for each
Participant to which is credited the Company Matching Credits and
to which is credited or debited such Account's allocation of net
income or net loss of the individual determined on the basis of
the performance of the fund or funds in which such account is
considered to be invested.
(12) Company Matching Credits: Amounts credited under the Plan
by the Employing Company and allocable on a Participant's behalf
pursuant to Section 4.02.
(13) Compensation: The total of all wages and other amounts paid
by the Company or any Employing Company (in the course of its
business) to or for the benefit of an Employee for services
rendered or labor performed which is required to be reported on
the Employee's Form W-2, excluding, however, amounts paid or
reimbursed by the Company or Employing Company for moving
expenses incurred by the Employee (but only to the extent it is
reasonable to believe at the time of the payment that the moving
expenses will be deductible under Section 217 of the Code), and
without regard to any rules that limit the amount to be included
in wages based on the nature or location of the service
performed. Notwithstanding the foregoing, for purposes of Section
1.01(15), 4.01 and 4.02, a Participant's Compensation shall
include amounts which he could have received in cash in lieu of a
contribution to a cafeteria plan described in Section 125 of the
Code, a Savings Deferral under this Plan and any salary deferral
or elective contributions under any Section 401(k) plan, and
shall exclude any income, whether or not reportable on Form W-2,
which is attributable to any stock options issued by the Company.
(14) Directors: The Board of Directors of the Company.
(15) Eligible Employee: Any Salaried Employee: (i) who was in
the group consisting of the highest paid one percent (1%) of all
the Employees of the Company and Employing Companies for the
immediately preceding year when ranked on the basis of
Compensation received during such preceding Plan Year, or (ii)
whose annual rate of Base Salary as determined on the date he
first performs any service for the Company or any Employing
Company placed him in the group consisting of the highest paid
one percent (1%) of all the Employees of the Company and
Employing Companies when ranked on the basis of annual rate of
Base Salary, and (iii) who is not eligible for the Plan Year, for
which the determination is made, to receive any benefit accrual
under any qualified defined benefit plan maintained by the
Company or Employing Company or to make any deferral under any
qualified cash or deferred arrangement, maintained by the Company
or Employing Company. Once an Employee becomes an Eligible
Employee he shall remain an Eligible Employee as long as he
continues to be an Employee of an Employing Company.
(16) Employee: Any individual employed by the Company, or by any
other Employing Company.
(17) Employing Company: The Company and any other corporation,
association, partnership, or proprietorship which adopts this
Plan in accordance with the consent of the Company shall be
called an "Employing Company".
(18) Enrollment Form: That form provided by the Committee
pursuant to which the Participant authorizes the Company to
reduce his future Compensation in the elected amount and in
consideration of which the Company agrees to make a Company
matching Credit on his behalf.
(19) One-Year Break-in-Service: Any period of severance (as
described in Section 6.03) of at least twelve (12) months. If a
single period of severance extends for more than twelve (12)
months, there shall be a one-Year Break-in-Service for each
consecutive twelve (12) month period contained in the period of
severance.
(20) Participant: Any Employee who has met the eligibility
requirements for participation in this Plan as set forth in
Article III herein and has elected to participate by filing a
properly executed Enrollment Form.
(21) Plan: This Brinker International, Inc. Savings Plan II,
which is a nonqualified, unfunded plan of deferred compensation
for a select group of officers and other highly compensated
employees of the Company and Employing Companies, as it may be
amended from time to time.
(22) Plan Quarter: Any three (3) consecutive month period
commencing on January 1, April 1, July 1, or October 1 of any
Plan Year.
(23) Plan Year: Any twelve (12) consecutive month period
commencing upon January I of each year.
(24) Salaried Employee: An Employee who is listed in the
Employing Company's books and paid on a salaried basis.
(25) Savings Account: An individual account for each Participant
to which is credited the Savings Deferrals made by such
Participant and to which is credited or debited such Account's
allocation of net income or net loss determined on the basis of
the performance of the fund, or funds, in which such account is
considered to be invested.
(26) Savings Deferrals: Deferrals made under the Plan by a
Participant in accordance with the Participant's elections to
defer Compensation under the Plan's deferral arrangement as
described in Section 4.01.
(27) Taxable Year: The annual accounting period adopted by the
Company for federal income tax purposes.
(28) Trust Agreement: Any agreement entered into between the
Company and a Trustee establishing a trust to hold and invest
some or all of the contributions made under the Plan and from
which the benefits may be distributed. Any such agreement must be
a model trust agreement as approved by the Internal Revenue
Service in Rev. Proc. 92-64 or its successor.
(29) Trust Fund: Any funds and properties held pursuant to the
provisions of the Trust Agreement for the use and benefit of the
Participants and their beneficiaries, or the creditors of the
Company in the event of the Company's insolvency, together with
all income, profits and increments thereto.
(30) Trustee: The trustee or trustees qualified and acting under
the Trust Agreement that may, at any time, form part of this
Plan.
(31) Valuation Date: The last day of any calendar quarter (or
the next preceding business day if such date falls on a weekend
or holiday), and such other date(s) as the Committee may
designate from time to time.
(32) Vested Interest: That percentage of a Participant's Company
Matching Account which, pursuant to the Plan, is nonforfeitable.
(33) Vesting Service: The measure of service used in determining
a Participant's Vested Interest.
1.02 Number and Gender. Wherever appropriate herein, words used
in the singular shall be considered to include the plural and the
plural to include the singular. The masculine gender, where
appearing in this Plan, shall be deemed to include the feminine
gender.
1.03 Headings. The headings of Articles and Sections herein are
included solely for convenience and if there is any conflict
between such headings and the text of the Plan, the text shall
control.
II.
ADMINISTRATION
2.01 Appointment of Committee. The Company shall be the Plan
Administrator. However, the general administration of the Plan
shall be delegated to the Committee which shall be appointed by
the Directors and shall consist of three (3) or more persons. Any
individual, whether or not an Employee, is eligible to become a
member of the Committee. Each member of the Committee shall,
before entering upon the performance of his duties, qualify by
signing a consent to serve as a member of the Committee under and
pursuant to the Plan and by filing such consent with the records
of the Committee.
2.02 Term, Vacancies. Resignation and Removal. Each member of
the Committee shall serve for a term of one (1) year and
thereafter until his successor is appointed. The Directors may,
in their discretion, reappoint a member of the Committee for a
subsequent term or terms. If at any time and for any reason there
is a vacancy on the Committee, the Directors shall appoint a
substitute member to fill such vacancy for the remainder of the
then current one (1) year term.
At any time during his term of office, a member of the
Committee may resign by giving written notice to the Directors
and the Committee, such resignation to become effective upon
receipt by the Company. At any time during his term of office,
and for any reason, a member of the Committee may be removed by
the Directors.
2.03 Officers, Records and Procedures. The Committee may select
officers and may appoint a secretary who need not be a member of
the Committee. The Committee shall keep appropriate records of
its proceedings and the administration of the Plan and shall make
available for examination during business hours to any
Participant or beneficiary of a deceased Participant such records
as pertain to that individual's interest in the Plan. The
Committee shall designate the person or persons who shall be
authorized to sign for the Committee and, upon such designation,
the signature of such person or persons shall bind the Committee.
2.04 Meetings. The Committee shall hold meetings upon such
notice and at such time and places as it may from time to time
determine. Notice to a member shall not be required if waived in
writing by that member. A majority of the members of the
Committee duly appointed shall constitute a quorum for the
transaction of business. All resolutions or other actions taken
by the Committee at any meeting where a quorum is present shall
be by vote of a majority of those present at such meeting and
entitled to vote. Resolutions may be adopted or other action
taken without a meeting upon written consent signed by all of the
members of the Committee.
2.05 Self-Interest of Participants. No member of the Committee
shall have any right to vote or decide upon any matter relating
solely to himself under the Plan or to vote in any case in which
his individual right to claim any benefit under the Plan is
particularly involved. In any case in which a Committee member is
so disqualified to act, and the remaining members cannot agree,
the Directors shall decide the matter in which such Committee
member is disqualified.
2.06 Claims Review. Upon the retirement, death or other
severance of employment, a Participant, his beneficiary or
representative may make application to the Committee requesting
payment of benefits due him under the terms of the Plan. The
committee shall accept, reject or modify such request and shall
no later than the end of the Plan quarter in which such
retirement, death, or other severance of employment occurs,
notify the Participant, beneficiary or representative in writing,
setting forth the response of the Committee and, in the case of a
denial or modification, the Committee shall:
(a) State the specific reason or reasons for the denial or
modification;
(b) Provide specific reference to pertinent Plan provisions on
which the denial or modification is based;
(c) Provide a description of any additional material or
information necessary for the Participant, his beneficiary or
representative to perfect the claim and an explanation of why
such material or information is necessary; and
(d) Explain the Plan's claim review procedure as contained
herein.
In the event the request is denied or modified, and the
Participant, beneficiary or representative desires to have such
denial or modification reviewed, he may, before the end of the
period prescribed for making payments pursuant to Section
1.01(5), submit a written request for review by the Committee of
its initial decision. Within sixty (60) days following such
request for review (unless special circumstances, such as the
need to hold a hearing, if necessary, requires an extension of
time for processing, in which case upon notice to the claimant
before the expiration of such sixty (60) day period, such period
shall be extended to one hundred twenty (120) days) the Committee
shall, after providing a full and fair hearing, render its final
decision in writing to the Participant, beneficiary or
representative stating specific reasons for such decision.
2.07 Compensation, Bonding and Expenses of Committee Members.
The members of the Committee shall not receive compensation with
respect to their services for the Committee. To the extent
required by applicable law, or required by the Company, members
of the Committee shall furnish bond or security for the
performance of their duties hereunder. Any expenses properly
incurred by the Committee incident to the administration,
termination, or protection of the Plan and Trust, including the
cost of furnishing any bond or security, shall be paid as
provided in Section 10.01.
2.08 Committee Powers and Duties. The Committee shall supervise
the administration and enforcement of the Plan according to the
terms and provisions hereof and shall have all powers necessary
to accomplish these purposes, including, but not by way of
limitation, the right, power, authority and duty:
(a) To make rules, regulations and bylaws for the administration
of the Plan which are not inconsistent with the terms and
provisions hereof, provided such rules, regulations and bylaws
are evidenced in writing and copies thereof are delivered to the
Trustee and to the Company;
(b) To construe all terms, provisions, conditions and
limitations of the Plan, and in all such cases, the construction
necessary for the Plan to constitute a nonqualified, unfunded
plan of deferred compensation under the applicable provisions of
the Code and meet the requirements for exemption from Parts 2, 3
and 4 of Title I of the Act shall control;
(c) To correct any defect or supply any omission or reconcile
any inconsistency that may appear in the Plan, in such manner and
to such extent as it shall deem expedient to carry the Plan into
effect for the greatest benefit of all interested parties;
(d) To employ and compensate such accountants, attorneys,
investment advisors and other agents and employees as the
Committee may deem necessary or advisable in the proper and
efficient administration of the Plan;
(e) To determine all questions relating to eligibility;
(f) To determine the amount of any benefits due under the terms
of the Plan and to prescribe procedures to be followed by
distributees in obtaining benefits;
(g) To prepare, file and distribute, in such manner as the
Committee determines to be appropriate, such action of
shareholders or disinterested directors or otherwise, to the
extent permitted by law. Payments of any indemnity, expenses or
fees under this Section shall be made solely from assets of the
Company and not, directly or indirectly, from trust funds.
III.
PARTICIPATION
3.01 Eligibility. Any Employee who is an Eligible Employee on
the date he commences employment shall be entitled to become a
Participant commencing with the first pay period beginning on or
after the first day of the month coincident with or immediately
following the date on which he first performs any service for the
Company or any Employing Company. Any other Eligible Employee
shall be entitled to become a Participant commencing with the
first pay period beginning on or after the first day of the Plan
Year in which he becomes an Eligible Employee.
Any Eligible Employee who was a Participant prior to a
termination of his employment shall be eligible to become a
Participant immediately upon his re-employment as an Eligible
Employee.
Participation in the Plan is voluntary. Any Eligible
Employee entitled to become a Participant may do so upon the date
on which he first becomes so entitled by executing and filing
with the Committee, prior to such date, the Enrollment Form
prescribed by the Committee. Any Eligible Employee who does not
become a Participant upon the date on which he first becomes
entitled may become a Participant the first day of any subsequent
Plan Year by executing and filing such Enrollment Form prior to
the first day of such Plan Year.
3.02 Effect of Change in Compensation. Even though a
Participant's Compensation in a subsequent year is below the
dollar limitation referred to in Section 1.01(15)(i), such
Participant shall be entitled to remain a Participant despite the
change in Compensation.
IV.
DEFERRED COMPENSATION
4.01 Savings Deferrals.
(a) A Participant shall elect to defer an amount not in excess
of an integral percentage of from one percent (1%) to twenty
percent (20%) of his Base Pay plus an integral percentage of from
one percent (1%) to one hundred percent (100%) of the Bonus
payments he would otherwise have received in cash (the Savings
Deferral) for a Plan Year by having the Company retain the amount
so deferred as a credit to his Savings Account under the Plan.
Compensation for a Plan Year not so deferred by such
election or by any other applicable deferral election [e.g.,
Section 125 of the Code] shall be received by such Participant in
cash. A Participant's initial election to defer an amount of his
Compensation pursuant to this Section 4.01 shall be made by
properly executing an Enrollment Form. The reduction in a
Participant's Compensation for a Plan Year pursuant to his
election under an Enrollment Form shall be effected by
Compensation reductions in each payroll check and/or bonus
payment as appropriate, within such Plan Year; provided, however,
that no reductions may be made in any payments to which a
Participant is entitled under the Chili's Manager Deferred Bonus
Plan or the Manager Deferral Plan. Thus, although the amounts
that may become payable under these practices may be considered
in determining a Participant's maximum deferral under this Plan,
all such amounts shall be paid at the same time and in the same
amount and manner as if the Participant were not participating in
this Plan.
(b) A Participant's Enrollment Form shall be effective as to
Compensation earned for services performed on or after the first
pay period commencing on or after the first day of the first Plan
Year after it is executed, except that for a Participant who
becomes an Eligible Employee on a date within the Plan Year, the
Participant may execute an Enrollment Form within thirty (30)
days of becoming an Eligible Employee and the Enrollment Form
shall be effective as to Compensation earned for Services
performed starting with the first pay period commencing on or
after the first day of the first month after it is executed (with
regard to bonuses, this will require prorating if the effective
date of the Participant's enrollment does not coincide with the
beginning of the period during which the services giving rise to
the bonus are performed.
(c) A Participant may cancel his Enrollment Form, effective as
of the first pay period commencing on or after the first day of
any future Plan Year, by executing the form prescribed by the
Committee for such purpose prior to the beginning of such future
Plan Year. A Participant who so cancels his Enrollment Form may
resume active participation in the Plan, effective as of the
first pay period commencing on or after the first day of any Plan
Year beginning after the Plan Year in which the cancellation
applied, by executing a new Enrollment Form prior to the first
day of such subsequent Plan Year.
4.02 Company Matching Credits. As soon as administratively
feasible after the end of each Plan Quarter, the Employing
Company shall credit to the Company Matching Account of each
Participant who is not an officer of the Employing Company or a
participant in the Chili's manager Deferred Bonus Plan, an amount
which as of the date of the credit when added to the Section 6.04
forfeitures, if any, then available for allocation to the
Participant's Company Matching Account, equals twenty-five
percent (25%) of the Savings Deferral made pursuant to Section
4.01 by the Participant up to a maximum of twenty-five percent
(25%) of the first five percent (5%) of such Participant's
Compensation. This Company Matching Credit made on behalf of
Participants who are not officers of the Employing Company shall
be expressed in shares and fractions of shares of Common Stock at
the fair market value of such Common Stock on the date credited.
The fair market value for this purpose shall be the average of
the daily closing prices of the Common Stock on the New York
Stock Exchange over each of the immediately preceding twenty (20)
trading days. Company Matching Credits on behalf of Participants
who are officers of an Employing Company shall be treated as
though made in cash and invested by the Participant in one or
more of the five (5) funds described in Section 5.03(a).
4.03 Payments to Trustee. Credits to the Plan may be contributed
directly to the Trustee at any time. On or about the date of any
such contribution, the Committee shall be informed as to the
amount of such contribution.
V.
ALLOCATIONS, ADJUSTMENTS AND WITHDRAWALS
IN ACCOUNT VALUES OF FUNDS
5.01 Allocation of Deferrals, Matching Allocations and
Forfeitures.
(a) Savings Deferrals made by a Participant pursuant to Section
4.01 shall be credited to such Participant's Savings Account as
soon as administratively feasible after the last day of the pay
period in which they are deferred.
(b) The Company Matching Credits (and forfeitures available for
allocation) for each Plan Quarter shall be credited as of the end
of each such Plan Quarter to the Company Matching Accounts of the
Participants in the amount determined under Section 4.02 of the
Plan.
(c) Each Participant's Accounts shall be divided into
subaccounts to reflect such Participant's investment designation
in a particular fund option(s) pursuant to Section 5.03, his
distribution designation made on the Enrollment Form or Forms, or
for any other good administrative purpose.
5.02 Valuation of Accounts and Adjustment for Earnings and
Losses.
(a) A Participant's Accounts shall be adjusted as of each
applicable Valuation Date to reflect the earnings and/or losses
that would have resulted if those Accounts had actually been
invested in accordance with the Participant's selection in the
Common Stock and mutual fund options described in Section 5.03.
All Accounts and Subaccounts shall be valued at fair market value
as of the Valuation Date, that they would have had if actually
invested in accordance with the elections made by the Participant
in accordance with Section 5.03. The fair market value of Common
Stock reflected in the Participant's Company Matching Account
shall be considered to be the average of the daily closing prices
of such Common Stock on the New York Stock Exchange over each of
the twenty (20) trading days immediately preceding the Valuation
Date. An amount equal to any dividends that would have been paid
on the Common Stock considered to be held since the preceding
Valuation Date (had the actual stock been held) shall also be
credited to such Accounts.
(b) If a Participant's employment is terminated for any reason
or he is no longer eligible to participate in this Savings Plan,
such Participant's Savings Account and Company Matching Account
under this Plan, shall continue to receive periodic adjustments
pursuant to this Section; provided, however, that the value of
such Accounts as of the date of the preceding valuation date
shall be reduced by the amount of any payments made therefrom
since the date of such preceding valuation.
5.03 Investment Options.
(a) Except as provided in Subsection (c) below, the company
Matching Account of a Participant who is not an officer of the
Company shall be treated as though it were invested in Company
Stock. The Company shall also designate from time to time,
certain mutual funds in which Participants' Savings Accounts
shall be considered to be invested. The options available for
selection by the Participant shall always include at least five
(5) mutual funds designed to permit a diversified selection of
risks. Each Participant may select any one option or any
combination of options so long as the percentage of his Savings
Deferrals elected for any one option is a specified whole
percentage of his savings Deferrals. In his Enrollment Form, each
Participant shall designate the manner in which his current
Savings Deferrals and/or Savings Account shall be considered to
be invested, choosing from among the options provided by the
Committee, for purposes of determining increases or decreases in
the value of such Savings Account. A Participant who is an
officer of the Company shall be entitled to designate the manner
in which his Company Matching Credits and/or Company Matching
Account shall be considered invested, choosing from among the
same mutual funds in the same manner as in the case of his
Savings Account. No other type of designation will be permitted.
(b) A Participant may designate how much of his Savings
Deferrals and Savings Account shall be considered to be invested
in each fund option. Subject to Subsection (c) below, a
Participant may designate all of his Savings Deferrals to any one
fund option or any combination of fund options so long as the
percentage designated to any one fund option is a specified whole
percentage of his Savings Deferrals or Savings Account. No other
type of designation will be permitted.
(c) A Participant may change his option designation for his
future Savings Deferrals, at any time, effective as of the first
day of the first pay period beginning in the next Plan Quarter
and/or his designation for his existing Savings Account balances,
effective as of the first day of the next Plan Quarter, by
instruction through a telephone access system made before the
beginning of such Plan Quarter. Any and all changes in options
shall be in whole percentages of his Savings Deferrals or his
Savings Account balance. A Participant who is not an officer of
the Company and who has attained age fifty-five (55) shall also
have the same right to change his option designation for the
future Company Matching Credit to which he may become entitled
and his existing Company Matching Account at the same time and in
the same manner as his Savings Deferrals and Savings Account.
Again, any and all such changes will be in whole percentages of
the Participant's Company Matching Credits and/or Company
Matching Account.
(d) The options described in Subsections (a), (b) and (c) above
are solely for purposes of enabling the Participant to determine
the method for measuring the change in value of his accounts. The
Company is not required to actually acquire or provide any of the
investment options designated by a Participant. The actual
investment of any assets that may be transferred to a grantor
trust forming part of the Plan shall be made by the Trustee
subject to such direction as may be provided by the Committee and
shall be held in the name of the Company or the Trustee.
5.04 Withdrawals. A Participant who has an unforeseeable
emergency, as determined by the Committee, may withdraw from his
Savings Account or from the vested portion of his Company
Matching Account, an amount not to exceed the lesser of:
(a) The then value of his Savings Account and the vested portion
of his Matching Account, as of the Valuation Date coincident with
or immediately preceding the withdrawal, or
(b) The lesser amount determined by the Committee under the
standards set forth herein, as being available for withdrawal
pursuant to this section.
For purposes of this Section, "unforeseeable emergency"
means an unanticipated emergency that is caused by an event
beyond the control of the Participant and that would result in
severe financial hardship to the Participant if early withdrawal
were not permitted. A withdrawal based upon unforeseeable
emergency pursuant to this Section shall not exceed the amount
required to meet the immediate financial need created by the
unforeseeable emergency (including the amount required to pay
taxes due on the withdrawal) and not reasonably available from
other resources of the Participant. The determination of the
existence of a Participant's unforeseeable emergency and the
amount required to be distributed to meet the need created by the
unforeseeable emergency shall be made by the Committee.
VI.
SEVERANCE BENEFITS
6.01 No Benefits Unless Herein Set Forth. Except as set forth in
this Article, upon termination of employment of a Participant for
any reason other than total and permanent disability or death,
such Participant shall acquire no right to any benefit from the
Plan or the Trust Fund.
6.02 Severance Benefit. Each Participant whose employment is
terminated for any reason other than certified disability or
death shall be entitled to a benefit equal in value to the sum
of:
(a) The value of his Savings Account (inclusive of any Savings
deferrals made after a Valuation Date), as of the Valuation Date
coincident with or next preceding his Benefit Disbursement Date;
and
(b) His Vested Interest, if any, in the balance in his Company
Matching Account as of the Valuation Date coincident with or next
preceding his Benefit Disbursement Date.
For purposes of this Section, a Participant's Vested
Interest shall be determined by such Participant's full years of
"Vesting Service" in accordance with the following schedule:
Full Years of Vesting Service Vested Interest
Less than two (2) years 0%
Two (2) years but less than 3 years 25%
Three (3) years but less than 4 years 50%
Four (4) years but less than 5 years 75%
Five (5) years or more 100%
Notwithstanding the foregoing, a Participant shall be one
hundred percent (100%) vested in the balances in his Company
Matching Account no later than the fifth (5th) anniversary of the
date he first became a Participant if he is still employed by the
Company on such fifth (5th) anniversary.
A Participant shall at all times have a 100% fully vested
nonforfeitable interest in his Savings Account.
6.03 Vesting Service. Vesting Service shall begin to be counted
from January 1, 1993 forward.
(a) Subject to the provisions of Subsection (b), except as
otherwise provided below, in determining the number of full years
of Vesting Service, non-successive periods of service shall be
aggregated, and less than whole year periods of service (whether
or not consecutive) shall be aggregated on the basis that 365
days of service equal a whole year of Vesting Service. For this
purpose a period of service commences on the later of (i) the
first day the Employee performs an Hour of Service for an
Employing Company or a Controlled Company or (ii) January 1, 1993
and ends on the earlier of (i) the date of the Employee's
subsequent separation from service due to quit, discharge,
retirement or death, or (ii) twelve (12) months from the date on
which the Employee was first absent from service for any reason
other than those listed in (i). If an Employee severs from
service by reason of a quit, discharge, or retirement, and the
Employee then performs any service for the Company or any
Employing Company within twelve (12) months of the severance from
service date, such Employee's period of severance shall be deemed
to have been a period of service. If an Employee severs from
service by reason of a quit, discharge, or retirement during any
absence from service for any reason other than a quit, discharge,
or retirement and then performs any service within twelve (12)
months of the date on which the Employee was first absent from
service, such Employee's period of severance shall be deemed to
have been a period of service. Any period of severance of twelve
(12) months or more shall constitute a One-Year-Break-in-Service
for each twelve (12) month period of severance. An Authorized
Leave of Absence and any absence from service due to maternity
leave, paternity leave or military leave shall be treated as a
period of service or a period of severance in accordance with the
law and the applicable Company policies in effect during the
period of such absence.
(b) In the case of a Participant who terminates employment at a
time when he does not have any Vested Interest in his Company
Matching Account and who then incurs a period of severance of
consecutive One-Year-Breaks-in-Service which equals or exceeds
the greater of: (i) five (5) years, or (ii) his years of Vesting
Service prior to such period of severance, such Participant's
years of Vesting Service completed before such period of
severance shall be disregarded in determining his years of
Vesting Service.
6.04 Forfeitures. The forfeitable portion (if any) of a
terminated Participant's Company Matching Account shall become a
forfeiture as of his date of termination of employment and shall
be available for allocation as a part of the Company Matching
Contribution next coming due to the Accounts of the eligible
Participants as set forth in Section 4.02. Notwithstanding the
foregoing, if a Participant who incurred a forfeiture is re
employed before he incurs five (5) consecutive One-Year-Breaks-in
-Service, the forfeited amount shall be restored to such
Participant's Company Matching Account unadjusted for any gains
or losses that would have occurred during the period of the
forfeiture. Any such restoration shall be made as of the
valuation Date next succeeding the date of re-employment.
Notwithstanding anything to the contrary in this Plan, any
restoration shall be made first from current forfeitures
otherwise available to reduce Company Matching Credits.
6.05 Termination of Employment. The following shall not
constitute a termination of employment for purposes of
distribution of benefits under the Plan:
(a) An Authorized Leave of Absence, provided, however, that
failure to return to the employ of an Employing Company upon the
expiration of such Authorized Leave of Absence shall constitute a
termination as of the date of such expiration; or
(b) Transfer to employment with any Employing Company.
6.06 Sale of Assets. Notwithstanding any other provision of the
Plan to the contrary, in the event that either the Company or
other Employing Company sells substantially all of its assets
used by it in its trade or business, an Employee whose employment
is terminated because he becomes employed by the entity acquiring
such assets shall receive a distribution in an amount equal to
his Vested Interest in his Accounts determined as of the
Valuation Date coincident with or next preceding his Benefit
Disbursement Date.
VII.
DISABILITY BENEFITS
7.01 Disability Determined. Upon written request by the
Participant or upon the Committee's own initiative, the Committee
shall determine whether a Participant has become unable to
perform the duties of his position due to a physical or mental
disability and shall so notify such Participant within sixty (60)
days thereafter. A Participant shall be considered disabled if
such disability is so certified by the Committee and, unless
waived by the Committee as unnecessary, supported by a written
medical opinion that such Participant will be incapable of
performing his job for physical or mental reasons and the
Participant has terminated his employment.
7.02 Disability Benefits. In the event of the disability of a
Participant, as of the Committee's certification thereof, such
Participant shall be vested in one hundred percent (100%) of his
Company Matching Account and shall be entitled to a benefit equal
in value to the sum of the balances in his Accounts as of the
Valuation Date immediately preceding his Benefit Disbursement
Date.
VIII.
DEATH BENEFITS
8.01 Death Benefits. Upon the death of a Participant, the
Participant's Company Matching Account shall be one hundred
percent (100%) vested and the Participant's beneficiary shall be
entitled to a benefit equal in value to the sum of the balance in
his Accounts as of the Valuation Date immediately preceding his
Benefit Disbursement Date.
8.02 Designation of Beneficiaries.
(a) Each Participant shall have the unrestricted right to
designate the beneficiary or beneficiaries to receive payment of
his benefit. Each such designation shall be made by executing a
"Beneficiary Designation Form" and filing same with the
Committee. Any such designation may be changed at any time by
execution of a new designation in accordance with this Section.
Notwithstanding the foregoing, if a Participant who is married on
the date of his death designates other than his surviving spouse
as his beneficiary, such designation shall not be effective
unless: (i) such spouse has consented thereto in writing, and
such consent acknowledges the effect of such designation and is
witnessed by a Plan representative (other than the Participant)
or a notary public; or (ii) such consent may not be obtained
because such spouse cannot be located or because of other
circumstances described by applicable Treasury regulations.
(b) If no such designation is on file with the Committee at the
time of the death of the Participant or such designation is not
effective for any reason as determined by the Committee, then the
designated beneficiary or beneficiaries to receive such benefit
shall be as follows:
(1) If a Participant leaves a surviving spouse, his benefit
shall be paid to such surviving spouse;
(2) If a Participant leaves no surviving spouse, his benefit
shall be paid to such Participant's executor or administrator.
8.03 Benefits Payable to Minors or Other Persons with Limited
Financial Responsibility. If any amount is payable under this
Plan either to a minor or to any beneficiary who appears to have
limited or restricted financial responsibility, the Committee
shall have the sole and absolute right to either pay such
benefits to such person or to pay such benefits to a custodial
parent or guardian or guardian ad litem of such minor or other
person or to the trustee of a medicare support trust for such
person, or to such other person or persons as the Committee shall
determine.
IX.
TIME AND MANNER OF PAYMENT OF BENEFITS
9.01 Time of Payment. Subject to the provisions of Section 5.04
relating to withdrawals, and Section 14.02 relating to
termination of the Plan, a Participant's Savings Account and
Company Matching Account shall be distributed on his Benefit
Disbursement Date.
9.02 Form of Benefits for Participants. For purposes of Article
VI or VII, Plan benefits shall be paid in cash; except for any
portion of such benefits which was treated as invested in Company
Common Stock at the time the Participant became entitled thereto,
which portion shall be distributed in Common Stock, with the
value of any fractional shares to be paid in cash, provided,
however, that the Participant may elect to receive the portion of
his benefit which was considered to be invested in Common Stock
in cash in lieu of Common Stock in accordance with applicable
procedures established by the Committee. Notwithstanding the
foregoing, any distributions made after the adoption of any
resolution to terminate the Plan in accordance with Section 14.02
shall be made solely in cash to the extent possible.
9.03 Death Benefits. For purposes of Article VIII, the death
benefit for a deceased Participant shall be paid to his
designated beneficiary in a lump sum in cash; provided, however,
that the beneficiary may elect to receive the portion of the
benefit which was considered to be invested in Common Stock as of
the date of the Participant's death in shares of Common Stock
(with the value of any fractional shares being paid in cash) but
only if such distribution becomes payable before the adoption of
any resolution to terminate the Plan in accordance with Section
14.02.
X.
ADMINISTRATION OF FUNDS
10.01 Payment of Expenses. All expenses incident to the
administration of the Plan and any related Trust may be paid by
the Company or Employing Company and, if not paid by the Company
or any Employing Company, shall be paid by the Trustee from the
Trust Fund and, until paid, shall constitute a claim against the
Trust Fund which is paramount to the claims of Participants,
beneficiaries and creditors.
10.02 Participants' Accounts. The Committee shall maintain
accounts in the name of each Participant, but the maintenance of
an account designated as the account of a Participant shall not
mean that such Participant shall have a greater or lesser
interest than that due him by operation of the Plan and shall not
be considered as segregating any funds or property from any other
funds or property contained in the commingled funds. In the case
of any Participant who works for more than one (1) Employing
Company, the Accounts shall be maintained in such a manner as to
enable the Committee to determine that portion of the Accounts
attributable to Contributions and Savings Deferrals from each
such Employing Company.
10.03 Distributions from Participants' Accounts.
Distributions from a Participant's Accounts shall be made only
if, when, and in the amount and manner directed in writing by the
Committee. Any distribution made to a Participant or for his
benefit shall be debited to such Participant's Accounts.
XI.
TRUST FUND AND INSURANCE CONTRACTS
11.01 Trust Must Be Grantor Trust. As a means of
administering the amounts credited to Participants and
anticipating the liability each Employing Company will incur
under the terms of this Plan, the Company may enter into one or
more Trust Agreements with one or more Trustees and the Employing
Companies may contribute to the Trust(s) assets that shall be
held therein subject to the claims of each Employing Company's
creditors in the event of the Employing Company's insolvency
until paid to Participants and their Beneficiaries in such manner
and at such times as specified in this Plan; provided, however,
that any such Trust Agreement and any assets held by the Trustee
to assist it in meeting its obligations shall conform to the
terms of the Internal Revenue Service model grantor trust
agreement as set forth in Revenue Procedure 92-64 or its
successor. The Trust Agreement may be amended from time to time
as the Company deems advisable, and as the Internal Revenue
Service may require or permit, in order to effectuate the purpose
of the Plan. In the event of the merger, acquisition, or
reorganization of the Trustee, the surviving entity, if still
empowered with trust powers, shall continue as Trustee unless and
until removed as otherwise provided in the Trust Agreement.
11.02 Insurance Contracts. As a means of administering the
amounts credited to Participants and anticipating the liability
each Employing Company will incur under the terms of this Plan,
the Company or the Trustee may purchase insurance contracts,
including life insurance contracts on the lives of some or all of
the Plan Participants; provided, however, that in any case in
which the owner and/or beneficiary of any such insurance contract
is a person other than an Employing Company and/or the Trustee,
the Company shall prepare, or cause to be prepared, appropriate
Federal tax reports.
XII.
FIDUCIARY PROVISIONS
12.01 Article Controls. This Article shall control over any
contrary, inconsistent or ambiguous provisions contained in the
Plan.
12.02 General Allocation of Duties. Each fiduciary with
respect to the Plan shall have only those specific powers,
duties, responsibilities and obligations as are specifically
given him under the Plan. The Directors shall have the sole
responsibility for authorizing contributions under the Plan and
shall have the sole authority to appoint and remove members of
the Committee and to amend or terminate this Plan in whole or in
part. The Directors shall also have the authority to appoint and
remove the Trustee and to override the authority of the Committee
in this regard. Except as otherwise specifically provided, the
Committee shall have the sole responsibility for the
administration of the Plan, which responsibility is specifically
described herein. Except as otherwise specifically provided, the
Trustee shall have the sole responsibility for holding and
administering the assets under the Trust. It is intended under
the Plan that each fiduciary shall be responsible for the proper
exercise of his own powers, duties, responsibilities and
obligations hereunder and shall not be responsible for any act or
failure to act of another fiduciary except to the extent provided
by law or as specifically provided herein.
12.03 Fiduciary Liability. A fiduciary shall not be liable
in any way for any acts or omissions constituting a breach of
fiduciary responsibility and occurring prior to the date he
becomes a fiduciary or after the date he ceases to be a
fiduciary.
12.04 Delegation and Allocation. The Committee may appoint
subcommittees, individuals or any other agents as it deems
advisable and may delegate to any of such appointees any or all
of the powers and duties of the Committee. Such appointment and
delegation must be in writing, specifying the powers or duties
being delegated, and must be accepted in writing by the
delegatee. Upon such appointment, delegation and acceptance, the
delegating Committee members shall have no liability for the acts
or omissions of any such delegatee, as long as the delegating
Committee members do not violate their fiduciary responsibility
in making or continuing such delegation.
XIII.
AMENDMENTS
No amendment of the Plan may be made which would reduce any
then nonforfeitable interest of a Participant. Subject to these
limitations, the Directors may make any amendment to the Plan
including, but not limited to, an increase or decrease of
deferrals or contributions, a change or modification of the
method of allocation of contributions or forfeitures, or a change
of the provisions relating to the administration of the Plan.
If the Plan's vesting schedule is amended, or if the Plan is
amended in any way that directly or indirectly affects the
computation of the Participant's nonforfeitable percentage each
Participant with at least three (3) years of Vesting Service, as
described in Section 6.02, with the Company and/or any other
Employing Companies may elect, within a reasonable period after
the adoption of the amendment or change, to have the
nonforfeitable percentage computed under the Plan without regard
to such amendment or change. The period during which the election
may be made shall begin no later than the date upon which the
amendment is adopted or deemed to be made and shall end no later
than the latest of the following dates: (i) the date which is
sixty (60) days after the day the amendment is adopted or deemed
to be made; (ii) the date which is sixty (60) days after the day
the amendment becomes effective; or (iii) the date which is sixty
(60) days after the day the Participant is issued written notice
of the amendment by the Company.
In the event of an amendment, each Employing Company will be
deemed to have consented to and adopted the amendment unless the
Employing Company notifies Brinker International, Inc., the
Committee and the Trustee to the contrary in writing within
thirty (30) days after receipt of a copy of the amendment, in
which case the rejection will constitute a withdrawal from this
Plan and Trust by that Employing Company.
XIV.
DISCONTINUATION OF CONTRIBUTIONS AND TERMINATION
14.01 Declaration of Intent. The Company has established the
Plan with the bona fide intention and expectation that from year
to year it will be able to, and will deem it advisable to,
maintain the Plan as herein provided. However, the Company
realizes that circumstances not now foreseen, or circumstances
beyond its control, may make it either impossible or inadvisable
to continue the Plan. Therefore, the Company shall have the
power, through resolution duly adopted by the Directors, to
discontinue credits under the Plan, terminate the Plan or
partially terminate the Plan at any time hereafter. Each member
of the Committee and the Trustee shall be notified of such
discontinuance, termination or partial termination.
14.02 Administration of Plan in Case of Discontinuance of
Contributions or Termination.
(a) If the Plan is amended so as to permanently discontinue
Company contributions, or if Company contributions are in fact
permanently discontinued, the Vested Interest of each Participant
shall be one hundred percent (100%), effective as of the date of
discontinuance. In case of discontinuance, the Committee shall
remain in existence and all other provisions of the Plan which
are necessary, in the opinion of the Committee, for equitable
operation of the Plan shall remain in force.
(b) If the Plan is terminated or partially terminated, the
amounts credited to the Accounts of each affected Participant as
of the time of such termination or partial termination shall be
one hundred percent (100%) vested. Unless the Plan is otherwise
amended prior to dissolution of the Company, the Plan shall
terminate as of the date of dissolution of the Company.
(c) Upon discontinuance or termination, any previously
unallocated contributions, forfeitures, credits and net increment
(or net decrement) shall be allocated among the accounts of the
Participants on such date of discontinuance or termination
according to the provisions of Article V, as if such date of
discontinuance or termination were a Valuation Date. In the event
of termination, distribution of all Participants' Accounts shall
be made within thirty (30) days after the end of the Plan Quarter
in which the termination occurs, and the date of the final
distribution shall be treated as a Valuation Date.
XV.
MISCELLANEOUS
15.01 Not Contract of Employment. The adoption and
maintenance of this Plan shall not be deemed to be a contract
between any Employing Company and any person or to be
consideration for the employment of any person. Nothing herein
contained shall be deemed to give any person the right to be
retained in the employ of any Employing Company or to restrict
the right of any Employing Company to discharge any person at any
time nor shall the Plan be deemed to give any Employing Company
the right to require any person to remain in the employ of the
Employing Company or to restrict any person's right to terminate
his employment at any time.
15.02 Rights to Payments of a Claim Against General Assets of
the Company. This Plan is intended to be an unfunded plan for
purposes of the Code and Title I of the Act. A Participant's
status to enforce his rights under the Plan is that of a general
unsecured creditor of his Employing Company and the Plan
constitutes a mere promise by the Company or other Employing
Company to make benefit payments in the future.
15.03 Alienation of Interest Forbidden. No right or interest
of any kind in any benefit shall be transferable or assignable by
any Participant or any beneficiary or be subject to anticipation,
adjustment, alienation, sale, pledge, encumbrance, garnishment,
attachment, execution or levy or any other legal or equitable
process.
15.04 Severability. If any provision of this Plan shall be
held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions hereof;
instead, each provision shall be fully severable and the Plan
shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
15.05 Jurisdiction. The situs of the Plan hereby created is
Dallas County, Texas. All provisions of the Plan shall be
construed in accordance with the laws of Texas except to the
extent pre-empted by federal law.
IN WITNESS WHEREOF, Brinker International, Inc. has caused
this Plan to be executed this 12th day of October , 1993.
BRINKER INTERNATIONAL, INC.
ATTEST: By:/S/ Ronald A. McDougall
Name: Ronald A. McDougall
/S/ J. L. Tobin Title: President
Asst. Secretary
CERTIFICATE OF THE SECRETARY
I, ROGER F. THOMSON, Secretary of Brinker International,
Inc., a Delaware corporation (the "Company"), hereby certify that
attached hereto is a true, correct, and complete copy of the
currently effective Unanimous Written Consent of the Executive
Committee of the Board of Directors of the Company, dated
September 9, 1994, which resolutions relate to the amendment of
the Savings Plan II of the Company.
IN WITNESS WHEREOF, I have hereunto affixed my signature and
seal of the corporation this 12th day of September, 1994.
[S E A L]
/S/ Roger F. Thomson
Roger F. Thomson, Secretary
SUBSCRIBED AND SWORN to before me, a Notary Public, this
12th day of September, 1994.
[S E A L]
/S/ Rebecca E. Keck
Notary Public, State of Texas
My Commission Expires: Printed or Stamped Name:
July 27, 1997 Rebecca E. Keck
UNANIMOUS WRITTEN CONSENT OF THE
EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS OF
BRINKER INTERNATIONAL, INC., A DELAWARE CORPORATION
September 9, 1994
Pursuant to the provisions of the Bylaws of Brinker
International, Inc., a Delaware corporation (the "Company"), the
undersigned, being all the members of the Executive Committee of
the Board of Directors of the Company hereby declare that, when
all of us have signed this Consent or a counterpart hereof, the
following resolutions shall have been consented to, approved of,
and adopted to the same extent and to have the same force and
effect as if adopted at a meeting of the Executive Committee of
the Board of Directors duly called and held for the purpose of
acting upon proposals to adopt such resolutions:
WHEREAS, the Company established and adopted a Savings Plan
II for the exclusive benefit of employees of the company who
become participants, effective January 1, 1993 (the "Plan II");
WHEREAS, Plan II may be amended further pursuant to the
terms and provision of Article XIII thereof;
NOW THEREFORE BE IT RESOLVED, that Amendment Number One to
Plan II, a copy of which has been circulated with this Consent,
be and hereby is, approved and adopted and the proper officers of
the Company be, and hereby are, authorized and directed to
execute and attest Amendment Number One to Plan II for and on
behalf of the Company;
FURTHER RESOLVED, that the Company and any of its officers
hereby are, jointly and severally, authorized to take, or cause
to be taken, any and all actions deemed, in their judgment,
necessary, desirable or appropriate in connection therewith, to
execute, acknowledge, verify, deliver, file, certify or record
any and all instruments and documents which may be required to
effect the foregoing resolutions; and
FURTHER RESOLVED, that all acts of the officers of the
Company which are consistent with the intent of these resolutions
shall be and hereby are, in all respects, approved, confirmed and
adopted as acts of the Company.
Executed as of the date first above written.
/S/ Norman E. Brinker
NORMAN E. BRINKER
/S/ Ronald A McDougall
RONALD A. McDOUGALL
/S/ Creed L. Ford, III
CREED L. FORD, III
/S/ Debra L. Smithart
DEBRA L. SMITHART
/S/ F. Lane Cardwell, Jr.
F. LANE CARDWELL, JR.
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN IX
Amendment Number One
Brinker International Inc. (the "Company"), a corporation
duly organized and existing under the laws of the State of
Delaware, having established the Brinker International, Inc.
Savings Plan II (the "Plan") pursuant to an instrument effective
January l, 1993, and having reserved the power in Article XIII of
the Plan to amend the Plan further from time to time, hereby
amends the Plan as set forth below, effective as of January l,
1994.
*****
1. Section 1.01(18) Enrollment Form: shall be deleted in
its entirety and replaced with the following in lieu thereof:
(18) Salary Deferral Agreement: That
agreement provided by the Committee
pursuant to which the Participant
authorizes the Company to reduce his
future compensation in the elected
amount and in consideration of which the
Company agrees to stake a Company
Matching Credit on his behalf.
2. The Plan shall be amended throughout by deleting the
word "form" and or "enrollment form" and inserting in lieu
thereof the word "agreement" and or "salary deferral agreement",
respectively, unless the purpose is specifically intended
otherwise.
3. Section 1.01 Definitions. shall be amended by adding at
the conclusion thereof the following Subsection:
(34) Summary Plan Description (SPD): A
written booklet, folder or binder
describing the Plan in a manner
calculated to be understood by the
average Plan Participant and shall be
sufficiently accurate and comprehensive
to inform, the Plan's Participants and
beneficiaries of their rights and
obligations under the Plan.
The SPD shall be given to new Employees
within 90 days after an Employee becomes
a Participant or first receives benefits
as a beneficiary.
4. Section 4.02 Company Matching Credits. is amended by
deleting the following phrase from the first sentence of such
Section:
"...or a participant in the Chili's Managers Deferred Bonus
Plan,.".
5. Section 4.02 Company Matching Credits. is amended
further by deleting in its entirety the last sentence of this
Section and inserting in lieu thereof the following:
Company Matching Credits on behalf of
Participants who are officers of an
Employing Company shall be treated as
though made in cash and invested by the
Participant in one or more of the mutual
funds previously designated by the
Participant and described in Section
5.03(a).
6. Section 5.03(a) Investment Options. is amended by
deleting in its entirety the third sentence of this Subsection
and inserting in lieu thereof the following:
The options available for selection by
the Participant shall always include one
or more mutual funds designed to permit
a diversified selection of risks.
* * * * *
7. Except as hereinabove amended, the provisions of the
Plan, as previously established, shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this Amendment
Number One to the Plan to be executed on this 12th day of
September, 1994.
BRINKER INTERNATIONAL, INC.
By:/S/ Roger F. Thomson
CERTIFICATE OF THE SECRETARY
I, ROGER F. THOMSON, Secretary of Brinker International,
Inc., a Delaware corporation (the "Company"), hereby certify that
attached hereto is a true, correct, and complete copy of the
currently effective Unanimous Written Consent of the Executive
Committee of the Board of Directors of the Company, dated June
14, 1995, which resolutions relate to the amendment of the
Savings Plan II of the Company.
IN WITNESS WHEREOF, I have hereunto affixed my signature and
seal of the corporation this 26th day of June, 1995.
[S E A L]
/S/ Roger F. Thomson
Roger F. Thomson, Secretary
SUBSCRIBED AND SWORN to before me, a Notary Public, this
26th day of June, 1995.
[S E A L]
/S/ Rebecca E. Keck
Notary Pub1ic, State of Texas
My Commission Expires: Printed or Stamped Name:
July 27, 1997 Rebecca E. Keck
UNANIMOUS WRITTEN CONSENT OF THE
EXECUTIVE COMMITTTEE OF THE BOARD OF DIRECTORS
OF BRINKER INTERNATIONAL, INC., A DELAWARE CORPORATION
June 14, 1995
Pursuant to the provisions of the Bylaws of Brinker
International, Inc., a Delaware corporation (the "Company"), the
undersigned, being all the members of the Executive Committee of
the Board of Directors of the Company hereby declare that, when
all of us have signed this Consent or a counterpart hereof, the
following resolutions shall have been consented to, approved of,
and adopted to the same extent and to have the same force and
effect as if adopted at a meeting of the Executive Committee of
the Board of Directors duly called and held for the purpose of
acting upon proposals to adopt such resolutions:
WHEREAS, the Company established and adopted a
Savings Plan II for the exclusive benefit of employees
of the Company who become participants, effective
January 1, 1993 (the "Plan II");
WHEREAS, Plan II may be amended further pursuant
to the terms and provision of Article XIII thereof
NOW THEREFORE BE IT RESOLVED, that Amendment
Number Two to Plan II, a copy of which has been
circulated with this Consent, be and hereby is,
approved and adopted and the proper officers of the
Company be, and hereby are, authorized and directed to
execute and attest Amendment Number Two to Plan II for
and on behalf of the Company;
FURTHER RESOLVED, that the Company and any of its
officers hereby are, jointly and severally, authorized
to take, or cause to be taken, any and all actions
deemed, in their judgment, necessary, desirable or
appropriate in connection therewith, to execute,
acknowledge, verify, deliver, file, certify or record
any and all instruments and documents which may be
required to effect the foregoing resolutions; and
FURTHER RESOLVED, that all acts of the officers of
the Company which are consistent with the intent of
these resolutions shall be and hereby are, in all
respects, approved, confirmed and adopted as acts of
the Company.
Executed as of the date first above written.
/S/ Norman E. Brinker
NORMAN E. BRINKER
/S/ Ronald A. McDougall
RONALD A. McDOUGALL
/S/ Creed L. Ford, III
CREED L. FORD, III
/S/ Debra L. Smithart
DEBRA L. SMITHART
/S/ F. Lane Cardwell, Jr.
F. LANE CARDWELL, JR.
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN II
Amendment Number Two
Brinker International, Inc. (the "Company"), a corporation
duly organized and existing under the laws of the State of
Delaware, having established the Brinker International, Inc.
Savings Plan II (the "Plan") pursuant to an instrument effective
January 1, 1993, and having reserved the power in Article XIII of
the Plan to amend the Plan further from time to time, hereby
amends the Plan as set forth below, effective as of January 1,
1995.
*****
1. Section 1.01 (15) Eligible Employee: shall be deleted
in its entirety and replaced with the following in lieu thereof:
"(15) Eligible Employee: Any individual on the payroll
of an Employing Company (i) whose wages from the
Employing Company are subject to withholding for
Federal income tax and FICA purposes; (ii) who is
included within a 'select group of management or highly
compensated employees,' within the meaning of ERISA,
and (iii) who is designated by the Committee as
eligible to participate in the Plan."
2. Section 11.02 Insurance Contracts: is amended by
deleting the following phrase therefrom:
"; provided, however, that in any case in which the
owner and/or beneficiary of any such insurance contract
is a person other than an Employing Company and/or the
Trustee, the Company shall prepare, or cause to be
prepared, appropriate Federal tax reports."
3. Except as hereinabove amended, the provisions of the
Plan, as previously established, shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this Amendment
Number Two to the Plan to be executed on this 14th day of June,
1995.
BRINKER INTERNATIONAL, INC.
By:/S/ Roger F. Thomson
