As filed with the Securities and Exchange Commission on November 25, 1996
Registration No.333- _____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
EL CHICO RESTAURANTS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-0982250
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12200 STEMMONS, SUITE 100
DALLAS, TEXAS 75234
(Address of principal executive offices) (Zip Code)
-----------------------
EL CHICO RESTAURANTS, INC. 1995 STOCK PLAN
(Full title of the plan)
-----------------------
LAWRENCE E. WHITE COPY TO:
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER RONALD J. FRAPPIER, ESQ.
EL CHICO RESTAURANTS, INC. JENKENS & GILCHRIST
12200 STEMMONS, SUITE 100 A PROFESSIONAL CORPORATION
DALLAS, TEXAS 75234 1445 ROSS AVENUE, SUITE 3200
(972)241-5500 DALLAS, TEXAS 75202
(Name, address and telephone number
including area code of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share(2)(3) price(2)(3) fee (3)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 400,000 $10.00 $3,455,200 $ 1,047
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of Common Stock issuable under the terms of the Plans
to prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the 1995 Stock Plan
(the "Plan") is based on (i) 211,200 shares of Common Stock originally allocated
for issuance under the Plan but which either have not been subject to award or
which have been issued in the form of grants of restricted stock, at a price per
share of $7.813, which is the average of the highest and lowest selling price
per share of Common Stock on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") National Market System on November 20,
1996; and (ii) the following shares of Common Stock reserved for issuance under
the Plan and subject to options granted thereunder at the following exercise
prices:
No. of Shares of Common Stock Exercise Price
Reserved for Issuance Per Share
148,250 $ 10.0000
32,000 $ 7.9375
7,775 $ 8.0000
775 $ 8.25
CORPDAL:53223.1 14047-00001
<PAGE>
EXPLANATORY NOTE
The information required by Items 1 and 2 of Part I of Form S-8 to be
contained in the Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 of the Securities Act of 1933, as amended,
and the Note to Part I of Form S-8.
Included in Part I of this Registration Statement on Form S-8 is a
reoffer prospectus concerning reoffers and resales of certain of the shares of
Common Stock registered hereby, which is filed in reliance on General
Instruction C to Form S-8.
CORPDAL:53223.1 14047-00001
<PAGE>
2,000 SHARES
EL CHICO RESTAURANTS, INC.
COMMON STOCK
This Prospectus relates to an aggregate of 2,000 shares (the "Shares")
of Common Stock, par value $.10 per share (the "Common Stock") of El Chico
Restaurants, Inc. (the "Company"), which may be offered from time to time by the
respective Selling Shareholders. See "Selling Shareholders." The Company will
receive no part of the proceeds from such sales. See "Plan of Distribution." All
expenses (other than commissions and discounts of underwriters, dealers or
agents) incurred in connection with this offering are estimated to be
approximately $3,000.
All of such expenses will be paid by the Company.
The Company has been advised by the Selling Shareholders that they may
sell all or a portion of the Shares offered by this Prospectus from time to time
(i) in the over-the-counter market or on the National Market System of the
National Association of Securities Dealers Automated Quotation System
("NASDAQ/NMS") at prices prevailing at the time of such sales or at prices
reasonably related thereto, (ii) otherwise than in the over-the-counter market
or on NASDAQ/NMS at market prices prevailing at the time of the sale or at
negotiated prices, or (iii) by a combination of the foregoing methods of sale. A
Selling Shareholder and any broker, dealer or other agent executing sell orders
on behalf of a Selling Shareholder may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), in
which event commissions received by any such broker, dealer or agent may be
deemed to be underwriting commissions under the Securities Act.
The Common Stock of the Company is traded on NASDAQ/NMS. On November
20, 1996, the last reported closing price of the Common Stock on the NASDAQ/NMS
was $7.625 per share.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
NOR HAS THE COMMISSION NOR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------
The date of this Prospectus is November 25, 1996.
CORPDAL:53223.1 14047-00001
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
periodic reports, proxy statements, and other information can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
regional offices of the Commission: New York Regional Office, Seven World Trade
Center, Thirteenth Floor, New York, NY 10048; and Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file documents electronically with
the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1995;
(2) The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended March 31, 1996, June 30, 1996, and September
30, 1996;
(3) The description of the Common Stock set forth in the Registration
Statement on Form 8-A dated August 28, 1984, including any amendment or report
filed for the purpose of updating such description;
(4) The Company's Current Report on Form 8-K dated August 30,
1996, and filed with the Commission;
(5) All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15 of the Exchange Act subsequent to the date of
this Registration Statement shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of the filing of such documents
until such time as there shall have been filed a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
the securities remaining unsold at the time of such amendment.
Any statement contained in a document incorporated by reference shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained hereby or in any other subsequently filed
document or in an accompanying prospectus supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request of such person, a
copy of all documents
CORPDAL:53223.1 14047-00001
-2-
<PAGE>
incorporated herein by reference, other than exhibits. All requests for copies
of such documents should be directed to: Susan R. Holland, El Chico Restaurants,
Inc., 12200 Stemmons, Suite 100, Dallas, Texas 75234, telephone number (972)
888-8112.
SELLING SHAREHOLDERS
This Prospectus covers resales of shares of restricted Common Stock
which were awarded to certain non-employee directors of the Company under the El
Chico Restaurants, Inc. 1995 Stock Plan (the "1995 Stock Plan") on May 2, 1996.
The participants who have been awarded the Shares pursuant to the above employee
benefit plan are collectively referred to herein as the "Selling Shareholders"
and each as a "Selling Shareholder." The Shares have been awarded to the Selling
Shareholders pursuant to the terms of the 1995 Stock Plan, and are owned
respectively by each of the Selling Shareholders in the amounts as listed in the
table below.
On May 2, 1996, the shareholders of the Company approved the 1995 Stock
Plan. The 1995 Stock Plan provides, among other things, that each non-employee
who served as a director of the Company both before and after the 1996 Annual
Meeting of Shareholders held on May 2, 1996 be awarded 500 shares of restricted
Common Stock of the Company. Such awards were made at no cost to the recipient.
Pursuant to the terms of the 1995 Stock Plan, the shares of restricted Common
Stock awarded to the non-employee directors of the Company on May 2, 1996 are
subject to forfeiture, upon the occurrence of certain events, until November 2,
1996.
The following table sets forth, as of October 31, 1996, certain
information regarding the beneficial ownership of the Common Stock of the
Company as held by the Selling Shareholders:
CORPDAL:53223.1 14047-00001
-3-
<PAGE>
<TABLE>
<CAPTION>
Common Stock Beneficially Common Stock
Owned Shares of Beneficially Owned
Prior to Offering (1) Common Stock After Offering (3)
--------------------- ----------
Number Percent (2) Offered Number Percent(2)
------ ------- ------ ----------
Name and Position
in the Company
<S> <C> <C> <C>
Joseph S. Thomson 37,000(4) * 500 36,500 *
Director
Grahame N. Clark, Jr. 12,500(4) * 500 12,000 *
Director
Jack D. Knox 22,500(4) * 500 22,000 *
Director
Joe V. Mariner, Jr. 14,296(4) * 500 13,796 *
Director
</TABLE>
* Less than one percent (1%)
(1) Unless otherwise indicated, the persons named in the table have sole
voting and investment power with respect to all shares of Common Stock
beneficially owned, subject to community property laws where
applicable.
(2) As of October 31, 1996, there were 3,716,663 shares of Common Stock
issued and outstanding.
(3) Assumes that all of the shares of Common Stock offered hereby are
actually sold.
(4) Includes shares which may be acquired within 60 days of October 31,
1996, pursuant to the exercise of stock options as follows: Mr.Thompson
--20,000 shares; Mr. Clark--10,000 shares; Mr. Knox--20,000 shares;
Mr. Mariner--10,000 shares. Also includes the 500 shares of restricted
Common Stock awarded to each of the aforementioned non-employee
directors on May 2, 1996.
PLAN OF DISTRIBUTION
This Prospectus covers the sale by the Selling Shareholders of the
Shares. The Shares were acquired by the Selling Shareholders pursuant to the
1995 Stock Plan. See "Selling Shareholders." The Company has been advised by the
Selling Shareholders that they intend to sell all or a portion of the Shares
offered by this Prospectus from time to time (i) in the over-the-counter market
or on NASDAQ/NMS at prices prevailing at the time of such sales or at prices
reasonably related thereto, (ii) otherwise than in the over-the-counter market
on NASDAQ/NMS at market prices prevailing at the time of sale or at negotiated
prices, or (iii) by a combination or the foregoing methods of sale. The Selling
Shareholders and any broker, dealer or other agent executing sell orders on
behalf of the Selling Shareholders may be deemed to be "underwriters" within the
meaning of the Securities Act, in which event commissions received by a broker,
dealer or agent may be deemed to be underwriting commissions under the
Securities Act. Such commissions received by a broker, dealer or agent may be in
excess of customary compensation.
The Company will pay all of the costs, expenses and fees incident to
the offering and sale of the Shares to the public, other than commissions and
discounts of underwriters, brokers, dealers or agents not paid by the purchasers
of the Shares.
CORPDAL:53223.1 14047-00001
-4-
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Jenkens & Gilchrist, a Professional Corporation, 1445 Ross
Avenue, Suite 3200, Dallas, Texas 75202-2711.
EXPERTS
The consolidated financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995 (the "Form
10-K"), have been incorporated by reference in this Prospectus in reliance on
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, D.C., a Registration Statement on Form S-8 under the Securities Act
with respect to the Shares offered hereby. This Prospectus does not contain all
the information included in such Registration Statement, certain portions of
which are omitted as permitted by the rules and regulations of the Commission.
The Registration Statement, including the exhibits and schedules filed herewith,
may be inspected at the principal offices of the Commission in Washington, D.C.,
without charge, and copies of the material contained herein may be obtained from
the Commission upon payment of the applicable copying charges. For further
information with respect to the Company and the Shares offered hereby, reference
is made to the Registration Statement and such exhibits and schedules.
CORPDAL:53223.1 14047-00001
-5-
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR
MADE, SUCH INFORMATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY SECURITIES OTHER
THAN THE SHARES OFFERED HEREBY, OR IN ANY STATE OR JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
------------------------------------------
TABLE OF CONTENTS
------------------------------------------
Page
Available Information....................................................... 2
Incorporation of Certain Documents by
Reference................................................................ 2
Selling Shareholders........................................................ 3
Plan of Distribution........................................................ 4
Legal Matters............................................................... 5
Experts..................................................................... 5
Additional Information...................................................... 5
------------------------------------------
2,000 SHARES
EL CHICO RESTAURANTS, INC.
COMMON STOCK
------------------------------------------
PROSPECTUS
------------------------------------------
November 25, 1996
CORPDAL:53223.1 14047-00001
-6-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1995;
(2) the registrant's Quarterly Reports on Form 10-Q filed with
the Commission for the quarters ended March 31, 1996, June 30, 1996,
and September 30, 1996;
(3) the description of the Common Stock, par value $.10 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form 8-A dated August 28, 1984, including any
amendment or report filed for the purpose of updating such description.
(4) The registrant's Current Report on Form 8-K dated August
30, 1996, and filed with the Commission.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
CORPDAL:53223.1 14047-00001
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Articles of Incorporation, as amended, provide
that the Company may indemnify any person who is or was an officer, director,
agent or employee of the Company, or who serves or served as a director,
officer, agent, employee, partner or trustee in another corporation,
partnership, joint venture, trust or other enterprise at the request of the
Company under the following terms and conditions. If the legal proceeding in
question is on behalf of the Company, the Company shall indemnify such person
for his expenses reasonably and actually incurred in defending or settling the
suit if he is successful on the merits or otherwise or he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company, but not if the matter is one as to which he has been
adjudged liable for negligence or misconduct in the performance of his duties,
unless the court in which the suit is brought determines that he fairly and
reasonably is entitled to indemnification for certain expenses. In all other
cases, the Company shall indemnify such person for his expenses, amounts paid in
settlement, judgments and fines, provided the person is successful on the merits
or otherwise, or he acted in good faith in a manner he reasonably believed to be
in, or not opposed to, the Company's best interests. Moreover, if the action is
a criminal proceeding, the Company need indemnify such person only if he had no
reason to believe his conduct was unlawful. The Company may authorize advance
payments to such person under certain circumstances, and may purchase and
maintain insurance on behalf of any such person against any liability incurred
by him in such position, regardless of whether the Company could otherwise
indemnify him under the Restated Articles of Incorporation, as amended.
The Company's Bylaws provide that the Company shall indemnify a person
who was or is an officer or director of the Company who was, is or is threatened
to be, named a defendant in a legal proceeding by virtue of his position in the
Company if it is determined that the person (i) conducted himself in good faith,
(ii) reasonably believed, in the case of conduct in his official capacity as an
officer or director of the Company, that his conduct was in the Company's best
interests, and in all other cases, that his conduct was at least not opposed to
the Company's best interests and (iii) in the case of any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. However, a director
may not be indemnified for obligations resulting from a proceeding in which he
is found liable on the basis that personal benefit was improperly received by
him or in which he is found liable to the Company. A person may be indemnified
within the above limitations against judgments, penalties, fines, settlements
and reasonable expenses actually incurred, but if the proceeding was brought by
or on behalf of the Company, the indemnification is limited to reasonable
expenses actually incurred by the person in connection with the proceeding. The
Bylaws also permit the Company to purchase and maintain insurance on behalf of
any person who is or was an officer or director of the Company against any
liability asserted against him or incurred by him in such capacity or arising
out of his status as such a person, regardless of whether the Company would have
the power to indemnify him against that liability under the Bylaws or by
statute. Under certain circumstances, the Company may advance expenses to an
officer or director. The Bylaws also provide that the Company may indemnify,
advance expenses to and purchase and maintain insurance on behalf of agents or
employees of the Company or persons who are or were serving at the request of
the Company as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another
CORPDAL:53223.1 14047-00001
II-2
<PAGE>
corporation, partnership, joint venture, trust or other enterprise to the same
extent that it is required to indemnify and advance expenses to, and permitted
to maintain insurance on behalf of, officers and directors.
The indemnification provisions of the Company's Bylaws are in
compliance with Article 2.02-1 of the Texas Business Corporation Act (the
"TBCA"). The TBCA further provides that a corporation shall indemnify a director
or officer against reasonable expense incurred in connection with a proceeding
in which he is a party because of his corporate position, if he has been wholly
successful, on the merits or otherwise, in the defense of the proceeding.
The Company has purchased and maintains insurance on behalf of its
directors and officers against liability resulting from, or arising out of,
their status or capacity as directors and officers of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The restricted securities to be reoffered or resold pursuant to this
Registration Statement were issued without registration because such securities
were granted, without consideration, to the recipient and therefor the issuance
did not require an investment decision or involve the sale of a security.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1* 1995 Stock Plan (10)
4.2** Form of Incentive Stock Option Agreement
4.3** Form of Nonstatutory Stock Option Agreement
4.4** Form of Restricted Stock Agreement
CORPDAL:53223.1 14047-00001
II-3
<PAGE>
5.1** Opinion of Jenkens & Gilchrist, a Professional Corporation.
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1).
23.2** Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (see signature page of this
registration statement).
- -------------------------
* Incorporated by reference from the exhibit number listed in
parentheses of the registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996.
** Filed herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore,
CORPDAL:53223.1 14047-00001
II-4
<PAGE>
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
CORPDAL:53223.1 14047-00001
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Dallas, Texas, on November 22, 1996:
EL CHICO RESTAURANTS, INC.
By: /s/Wallace A. Jones
--------------------------
Wallace A. Jones
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Wallace A. Jones and Lawrence E.
White, and each of them, each with full power to act without the other, his true
and lawful attorneys-in-fact and agents, each with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that each of said attorneys-in-fact and agents or his substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates included:
SIGNATURE CAPACITY DATE
/s/Wallace A. Jones
- ------------------- Chief Executive Officer November 22, 1996
Wallace A. Jones (Principal Executive Officer)
and Director
/s/Lawrence E. White
- -------------------- Executive Vice President November 22, 1996
Lawrence E. White and Chief Financial
Officer (Principal Financial
and Accounting Officer)
/s/Grahame N. Clark, Jr.
- --------------------- Director November 18, 1996
Grahame N. Clark, Jr.
CORPDAL:53223.1 14047-00001
II-6
<PAGE>
/s/Jack D. Knox
- --------------- Director November 19, 1996
Jack D. Knox
/s/Joseph V. Mariner
- --------------------- Director November 22, 1996
Joseph V. Mariner, Jr.
/s/Joseph S. Thomson
- -------------------- Chairman of the Board November 22, 1996
Joseph S. Thomson of Directors
CORPDAL:53223.1 14047-00001
II-7
EXHIBIT 4.2
CORPDAL:53223.1 14047-00001
<PAGE>
EL CHICO RESTAURANTS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into this ______ day of __________,
19_______, between El Chico Restaurants, Inc., a Texas corporation (the
"Company") and ________________ (the "Holder") in connection with the grant of
an Incentive Option (hereinafter defined) under the El Chico Restaurants, Inc.
1995 Stock Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Holder is employed by the Company or one of its Affiliates
(hereinafter defined) in a key position and the Company desires to encourage him
to own Stock (hereinafter defined) and to give him added incentive to advance
the interests of the Company through the Plan and desires to grant the Holder an
Incentive Option to purchase shares of Stock of the Company under terms and
conditions established by the Committee (hereinafter defined) and/or the Plan.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the Agreement between the Company and the
Holder:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings specified below:
1.1 "AFFILIATES" shall mean (a) any corporation, other than
the Company, in an unbroken chain of corporations ending with the
Company if each of the corporations, other than the Company, owns stock
possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain; and (b) any corporation, other than the Company, in an unbroken
chain of corporations beginning with the Company if each of the
corporations, other than the last corporation in the unbroken chain,
owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
1.2 "BOARD OF DIRECTORS" shall mean the board of directors of
the Company.
1.3 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
1.4 "COMMITTEE" shall mean the committee appointed pursuant to
appointed pursuant to Section 3 of the Plan by the Board of Directors
to administer the Plan.
1.5 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
1.6 "FAIR MARKET VALUE" shall mean:
CORPDAL:53223.1 14047-00001
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<PAGE>
(a) If shares of Stock of the same class are listed
or admitted to unlisted trading privileges on any national or
regional securities exchange at the date of determining the
Fair Market Value, the last reported sale price on such
exchange on the last business day prior to the date in
question; or
(b) If shares of Stock of the same class shall not be
listed or admitted to unlisted trading privileges as provided
in subparagraph 1.6(a) and sales prices therefor in the
over-the-counter market shall be reported by the National
Association of Securities Dealers, Inc. Automated Quotations,
Inc. ("NASDAQ") National Market System at the date of
determining the Fair Market Value, the last reported sale
price so reported on the last business day prior to the date
in question; or
(c) If shares of Stock of the same class shall not be
listed or admitted to unlisted trading privileges as provided
in subparagraph 1.6(a) and sales prices therefor shall not be
reported by the NASDAQ National Market System as provided in
subparagraph 1.6(b), and bid and asked prices therefor in the
over-the-counter market shall be reported by NASDAQ (or, if
not so reported, by the National Quotation Bureau
Incorporated) at the date of determining the Fair Market
Value, the average of the closing bid and asked prices on the
last business day prior to the date in question; and
(d) If shares of Stock of the same class shall not be
listed or admitted to unlisted trading privileges as provided
in subparagraph 1.6(a) and sales prices or bid and asked
prices therefor shall not be reported by NASDAQ (or the
National Quotation Bureau Incorporated) as provided in
subparagraph 1.6(b) or subparagraph 1.6(c) at the date of
determining the Fair Market Value, the value determined in
good faith by the Board of Directors.
For purposes of valuing Incentive Options, the Fair Market Value of
Stock shall be determined without regard to any restriction other than
one which, by its terms, will never lapse.
1.7 "INCENTIVE OPTION" shall mean a stock option that is
intended to satisfy the requirements of Section 422 of the Code.
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended.
1.9 "STOCK" shall mean the Company' s authorized $.10 par
value common stock together with any other securities with respect to
which Options granted hereunder may become exercisable.
2. GRANT OF INCENTIVE OPTION. Subject to the terms and conditions
set forth herein, the Company grants to the Holder an Incentive Option (Grant
Number _____) to purchase from the Company, during the period ending ________
(___) years from the date of this Agreement,
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<PAGE>
______ shares of Stock at a price of $_____ per share, subject to adjustment as
provided in Paragraph 8 hereof. This Incentive Option is exercisable with
respect to the shares of Stock indicated as follows, except as provided in
Paragraphs 7 and 8:
ON OR AFTER NUMBER OF SHARES
_____shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
3. NOTICE OF EXERCISE. This Incentive Option may be exercised in
whole or in part, from time to time, in accordance with Paragraph 2, by written
notice to the Company at the address provided in Paragraph 13, which notice
shall:
(a) Specify the Grant Number, the number of shares of Stock to
be purchased and the exercise price to be paid therefor;
(b) If the person exercising this Incentive Option is not the
Holder himself, contain or be accompanied by evidence satisfactory to
the Committee of such person's right to exercise this Incentive Option;
and
(c) Be accompanied by (i) payment in full of the exercise
price in the form of cash or a check payable to the order of the
Company; (ii) payment in the form of shares of Stock owned by the
Holder for at least six months and at least equal in value to the
aggregate exercise price payable in connection with such exercise; or
(iii) a combination of (i) and (ii).
4. TRANSFER AND EXERCISE OF INCENTIVE OPTION. This Incentive Option
shall not be transferable except by will or by the laws of descent and
distribution. During the Holder's lifetime, this Incentive Option may be
exercised only by him. The Holder may not make any disposition of this Incentive
Option or any interest therein. As used in this Incentive Option, "disposition"
means any sale, transfer, encumbrance, gift, donation, assignment, pledge,
hypothecation, or other disposition, whether similar or dissimilar to those
previously enumerated, whether voluntary or involuntary, and whether during the
Holder's lifetime or upon or after the Holder's death, including, but not
limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy, or attachment, except a transfer by will or by
the laws of descent or distribution. Any attempted disposition in violation of
this Paragraph 4 shall be void and ineffective for all purposes.
CORPDAL:53223.1 14047-00001
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<PAGE>
5. STATUS OF HOLDER. The Holder shall not be deemed a shareholder of
the Company with respect to any of the shares of Stock subject to this Incentive
Option, except to the extent that such shares shall have been purchased and
transferred to him. The Company shall not be required to issue or transfer any
certificates for shares of Stock purchased upon exercise of this Incentive
Option until all applicable requirements of law have been complied with and such
shares shall have been duly listed on any securities exchange on which the Stock
may then be listed.
6. NO EFFECT ON CAPITAL STRUCTURE. This Incentive Option shall not
affect the right of the Company or any Affiliate thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup, or
otherwise reorganize.
7. PREMATURE EXPIRATION OF INCENTIVE OPTION.
(a) TERMINATION AS AN EMPLOYEE OR DIRECTOR - GENERAL.
(1) If the Holder ceases to be employed by
at least one of the employers in the group of
employers consisting of the Company and its
Affiliates because the Holder voluntarily terminates
employment with such group of employers and the
Holder does not remain or thereupon become a director
of the Company or one or more of its Affiliates, or
if a Holder voluntarily ceases to be a director of at
least one of the corporations in the group of
corporations consisting of the Company and its
Affiliates and the Holder does not remain or
thereupon become an employee of the Company or one or
more of its Affiliates, the Holder shall have the
right for thirty (30) days after such termination of
employment or cessation of directorship, whichever
event occurs latest, to exercise this Incentive
Option with respect to that portion hereof that has
become exercisable pursuant to this Agreement as of
the date of the Holder's termination or cessation,
and thereafter this Incentive Option shall terminate
and cease to be exercisable.
(2) If a Holder ceases to be employed by at
least one of the employers in the group of employers
consisting of the Company and its Affiliates because
any of such entities terminates the Holder's
employment for misconduct, the portion, if any, of
this Incentive Option that remains unexercised,
including that portion, if any, that pursuant to this
Agreement is not yet exercisable, at the time of the
Holder's termination of employment, shall terminate
and cease to be exercisable as of such time.
"Misconduct" shall be as defined in the Company's
Personnel Policy and Procedures Manual.
(3) If a Holder ceases to be employed by at
least one of the employers in the group of employers
consisting of the Company and its Affiliates because
one or more of such entities terminates the
employment of the Holder but not for misconduct, and
the Holder does not remain or
CORPDAL:53223.1 14047-00001
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<PAGE>
thereupon become a director of the Company or one or
more of its Affiliates, or if the Holder is only a
director and ceases to be a director of at least one
of the corporations in the group of corporations
consisting of the Company and its Affiliates, the
Holder shall have the right for ninety (90) days
after such termination of employment or cessation of
directorship to exercise this Incentive Option with
respect to that portion hereof that has become
exercisable pursuant to this Agreement as of the date
of the Holder's termination or cessation, and
thereafter this Incentive Option shall terminate and
cease to be exercisable.
(b) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DISABILITY. If
the Holder ceases to be employed by at least one of the employers in
the group of employers consisting of the Company and its Affiliates by
reason of disability (as defined in Section 22(c)(3) of the Code) and
does not remain or thereupon become a director of the Company or one or
more of its Affiliates, or if the Holder is only a director and ceases
by reason of such disability to be a director of at least one of the
corporations in the group of corporations consisting of the Company and
its Affiliates, the Holder shall have the right for twelve (12) months
after the date of termination of employment with or cessation of
directorship of such group of employers by reason of disability,
whichever occurs latest, to exercise this Incentive Option to the
extent this Incentive Option is exercisable on the date of such
termination of employment or cessation of directorship, and thereafter
this Incentive Option shall terminate and cease to be exercisable.
(c) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DEATH. If the
Holder dies while in the employ of the Company or an Affiliate or dies
while a director of the Company or an Affiliate, this Incentive Option
shall be exercisable by the Holder's legal representatives, heirs,
legatees, or distributees for twelve (12) months following the date of
the Holder's death to the extent such Option is exercisable on the
Holder's date of death, and thereafter this Incentive Option shall
terminate and cease to be exercisable.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC.
Notwithstanding any other provision hereof, in the event of any change in the
number of outstanding shares of Stock:
(a) Effected without receipt of consideration therefor by the
Company, by reason of a stock dividend, or split, combination, exchange
of shares or other recapitalization, merger, or otherwise, in which the
Company is the surviving corporation;
(b) By reason of a spin-off to the shareholders of a part
of the Company into a separate entity; or
(c) By reason of assumptions and conversions of
outstanding grants due to an acquisition by the Company of a separate
entity;
CORPDAL:53223.1 14047-00001
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<PAGE>
then: (1) The number and class of shares subject to this Incentive Option and
(2) the exercise price of this Incentive Option shall be automatically adjusted
to accurately and equitably reflect the effect thereon of such change; provided,
however, that any fractional share resulting from such adjustment may be
eliminated. In the event of a dispute concerning such adjustment, the decision
of the Committee shall be conclusive. The number of shares subject to this
Incentive Option shall be automatically reduced by any fraction included therein
which results from any adjustment made pursuant to this Paragraph 8.
The occurrence of:
(a) A dissolution or liquidation of the Company;
(b) A merger or consolidation (other than a merger effecting a
reincorporation of the Company in another state or any other merger or
a consolidation in which the shareholders of the surviving corporation
and their proportionate interests therein immediately after the merger
or consolidation are substantially identical to the shareholders of the
Company and their proportionate interests therein immediately prior to
the merger or consolidation) in which the Company is not the surviving
corporation (or survives only as a subsidiary of another corporation in
a transaction in which the shareholders of the parent of the Company
and their proportionate interests therein immediately after the
transaction are not substantially identical to the shareholders of the
Company and their proportionate interests therein immediately prior to
the transaction);
(c) A transaction in which any person becomes the owner
of 50% or more of the total combined voting power of all classes of
stock of the Company; or
(d) A sale of all or substantially all of the assets of the
Company where it is contemplated that within a reasonable period of
time thereafter the Company will either be liquidated or converted into
a nonoperating company or an extraordinary dividend will be declared
resulting in a partial liquidation of the Company (but in all cases
only with respect to those employees whom it is anticipated will lose
their employment with the Company and its Affiliates as a result of
such sale of assets)
shall cause this Incentive Option to terminate, but the Holder shall, in any
event, have the right, immediately prior to such dissolution, liquidation,
merger, consolidation, or transaction, to exercise this Incentive Option, to the
extent not theretofore exercised, without regard to the determination as to the
periods and installments of exercisability made pursuant to Paragraph 2 if (and
only if) this Incentive Option has not at that time expired or been terminated.
9. COMMITTEE AUTHORITY. Any question concerning the interpretation
of this Agreement, any adjustments required to be made under Paragraph 8 of this
Agreement, and any controversy which may arise under this Agreement shall be
determined by the Committee in its sole discretion. Such decision by the
Committee shall be final and binding.
CORPDAL:53223.1 14047-00001
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<PAGE>
10. NOTICE OF DISQUALIFYING DISPOSITION. In order to enable the Company
to avail itself of any income tax deduction to which it may be entitled, the
Holder shall notify the Company of his intent to dispose of any of the shares of
Stock purchased pursuant to this Incentive Option within two (2) years from the
date of the grant of the Incentive Option and one (1) year from the date of
exercise of the Incentive Option, and promptly after such disposition the Holder
shall notify the Company of the number of shares of Stock disposed of, the dates
of acquisition and disposition of such shares, and the consideration, if any,
received on such disposition. Nothing in this Paragraph 10, however, shall give
the Holder any right to dispose of shares that is inconsistent with any
provision of the Plan or any Paragraph of this Agreement. If in connection with
any such disposition the Company becomes liable for withholding taxes and has no
amounts owing the Holder with which to discharge its withholding obligation, the
Holder shall provide the Company with the amount needed to discharge the
Company's withholding obligation and shall indemnify the Company against any
penalties it may incur through its inability to apply amounts owing the Holder
in discharge of its withholding obligation. Nothing in this Paragraph shall give
the Holder any right to dispose of shares of Stock in a manner that is
inconsistent with any provision of this Agreement, the Plan, or any stock
transfer restriction agreement entered into by the Holder.
11. INCENTIVE OPTION QUALIFICATION. This Incentive Option is intended
to qualify as an "incentive stock option" with the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended, and shall be so construed; provided,
however, that nothing in this Agreement shall be interpreted as a
representation, guarantee or other undertaking on the part of the Company that
this Incentive Option is or will be determined to be an "incentive stock option"
within such section or any other section of the Internal Revenue Code.
12. PLAN CONTROLS. The terms of this Agreement are governed by the
terms of the Plan, a copy of which is attached hereto as Exhibit A and made a
part hereof as if fully set forth herein, and in the case of any inconsistency
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall control.
13. NOTICE. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to be
delivered on the date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the address which such person has theretofore specified
by written notice delivered in accordance herewith. The Company or Holder may
change, at any time and from time to time, by written notice to the other, the
address previously specified for receiving notices. Until changed in accordance
herewith, the Company and the Holder specify their respective addresses as set
forth below:
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<PAGE>
Company: El Chico Restaurants, Inc.
12200 Stemmons Freeway
Suite 100
Dallas, TX 75234
Attn: Legal Dept.
Holder: _____________________
=====================
14. INFORMATION CONFIDENTIAL. As partial consideration for the granting
of this Incentive Option, the Holder agrees that he will keep confidential all
information and knowledge that he has relating to the manner and amount of his
participation in the Plan; provided, however, that such information may be
disclosed as required by law and may be given in confidence to the Holder's
spouse, tax and financial advisors, or to a financial institution to the extent
that such information is necessary to secure a loan.
15. GOVERNING LAW. Except as is otherwise provided in Paragraph
11.18 of the Plan, where applicable the provisions of this Agreement shall be
governed by the contract law of the State of Texas.
CORPDAL:53223.1 14047-00001
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Holder has hereunto set his hand on the day and year first
above written.
EL CHICO RESTAURANTS, INC.
By:
Title:
HOLDER:
Print Name:
CORPDAL:53223.1 14047-00001
9
EXHIBIT 4.3
CORPDAL:53223.1 14047-00001
<PAGE>
EL CHICO RESTAURANTS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of
_____________, 19___, between El Chico Restaurants, Inc., a Texas corporation
(the "Company"), and __________________ (the "Holder") in connection with the
grant of a Nonstatutory Option (hereinafter defined) under the El Chico
Restaurants, Inc. 1995 Stock Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Holder is either an employee of the Company or one of its
Affiliates (hereinafter defined) in a key position or a director of the Company
or one of its Affiliates and the Company desires to encourage him to own Stock
(hereinafter defined) and to give him added incentive to advance the interests
of the Company through the Plan and desires to grant the Holder a Nonstatutory
Option to purchase shares of Stock of the Company under terms and conditions
established by the Committee (hereinafter defined) and/or the Plan.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the Agreement between the Company and the
Holder:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below:
1.1 "AFFILIATES" shall mean (a) any corporation, other than
the Company, in an unbroken chain of corporations ending with the Company if
each of the corporations, other than the Company, owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain and (b) any corporation, other
than the Company, in an unbroken chain of corporations beginning with the
Company if each of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
1.2 "BOARD OF DIRECTORS" shall mean the board of directors
of the Company.
1.3 "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
1.4 "COMMITTEE" shall mean the committee appointed pursuant to
Paragraph 3 of the Plan by the Board of Directors to administer the Plan.
1.5 "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
CORPDAL:53223.1 14047-00001
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<PAGE>
1.6 "FAIR MARKET VALUE" shall mean:
(a) If shares of Stock of the same class are listed or admitted to
unlisted trading privileges on any national or regional securities exchange at
the date of determining the Fair market Value, the last reported sale price on
such exchange on the last business day prior to the date in question; or
(b) If shares of Stock of the same class shall not be listed or
admitted to unlisted trading privileges as provided in subparagraph 1.6(a) and
sales prices therefor in the over-the-counter market shall be reported by the
National Association of Securities Dealers, Inc. Automated Quotations, Inc.
("NASDAQ") National Market System at the date of determining the Fair market
Value, the last reported sale price so reported on the last business day prior
to the date in question; or
(c) If shares of Stock of the same class shall not be listed or
admitted to unlisted trading privileges as provided in subparagraph 1.6(a) and
sales prices therefor shall not be reported by the NASDAQ National Market System
as provided in subparagraph 1.6(b), and bid and asked prices therefor in the
over-the-counter market shall be reported by NASDAQ (or, if not so reported, by
the National Quotation Bureau Incorporated) at the date of determining the Fair
market Value, the average of the closing bid and asked prices on the last
business day prior to the date in question; and
(d) If shares of Stock of the same class shall not be listed or
admitted to unlisted trading privileges as provided in subparagraph 1.6(a) and
sales prices or bid and asked prices therefor shall not be reported by NASDAQ
(or the National quotation Bureau Incorporated) as provided in subparagraph
1.6(b) or subparagraph 1.6(c) at the date of determining the Fair market Value,
the value determined in good faith by the Board of Directors.
1.7 "NONSTATUTORY OPTION" shall mean a stock option that does not
satisfy the requirements of Section 422 of the Code.
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
1.9 "STOCK" shall mean the Company's authorized $0.10 par value common
stock, together with any other securities with respect to which Options granted
hereunder may become exercisable.
2. GRANT OF NONSTATUTORY OPTION. Subject to the terms and conditions
set forth herein, the Company grants to the Holder a Nonstatutory Option (Grant
Number ____) to purchase from the Company during the period ending ______ (___)
years from the date of this Agreement, _______ shares of Stock at a price of
$______ per share, subject to adjustment as provided in Paragraph 8 hereof. This
Nonstatutory Option is exercisable with respect to the shares of Stock indicated
as following, except as provided in Paragraphs 7 and 8:
CORPDAL:53223.1 14047-00001
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ON OR AFTER NUMBER OF SHARES
_____shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
3. NOTICE OF EXERCISE. This Nonstatutory Option may be exercised
in whole or in part, from time to time, in accordance with Paragraph 2, by
written notice to the Company at the address provided in Paragraph 11, which
notice shall:
(a) specify the Grant Number, the number of shares of Stock to
be purchased and the exercise price to be paid therefor;
(b) if the person exercising this Nonstatutory Option is not
the Holder himself, contain or be accompanied by evidence satisfactory to the
Committee of such person's right to exercise this Nonstatutory Option; and
(c) be accompanied by (i) payment in full of the exercise
price in the form of cash or a check payable to the order of the Company, (ii)
payment in the form of shares of Stock owned by the Holder for at least six
months and at least equal in value to the aggregate exercise price payable in
connection with such exercise, or (iii) a combination of (i) and (ii).
4. TRANSFER AND EXERCISE OF NONSTATUTORY OPTION. This Nonstatutory
Option shall not be transferable except by will or by the laws of descent and
distribution. During the Holder's lifetime, this Nonstatutory Option may be
exercised only by him. The Holder may not make any disposition of this
Nonstatutory Option, "disposition" means any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation, or other disposition, whether
similar or dissimilar to those previously enumerated, whether voluntary or
involuntary, and whether during the Holder's lifetime or upon or after the
Holder's death, including, but not limited to, any disposition by operation of
law, by court order, by judicial process, or by foreclosure, levy, or
attachment, except a transfer by will or by the laws of descent or distribution.
Any attempted disposition in violation of this Paragraph 4 shall be void and
ineffective for all purposes.
5. STATUS OF HOLDER. The Holder shall not be deemed a shareholder of
the Company with respect to any of the shares of Stock subject to this
Nonstatutory Option, except to the extent that such shares shall have been
purchased and transferred to him. The Company shall not be required to issue or
transfer any certificates for shares of Stock purchased upon exercise of this
Nonstatutory Option until all applicable requirements of law have been complied
with and such
CORPDAL:53223.1 14047-00001
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<PAGE>
shares shall have been duly listed on any securities exchange on which the Stock
may then be listed.
6. NO EFFECT ON CAPITAL STRUCTURE. This Nonstatutory Option shall not
affect the right of the Company or any Affiliate thereof to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, windup, or
otherwise reorganize.
7. PREMATURE EXPIRATION OF NONSTATUTORY OPTION.
(a) TERMINATION AS AN EMPLOYEE OR DIRECTOR - GENERAL. If the Holder
ceases to be employed by at least one of the employers in the group of employers
consisting of the Company and its Affiliates because the Holder voluntarily
terminates employment with such group of employers and the Holder does not
remain or thereupon become a director of the Company or one or more of its
Affiliates, or if a Holder voluntarily ceases to be a director of at least one
of the corporations in the group of corporations consisting of the Company and
its Affiliates and the Holder does not remain or thereupon become an employee of
the Company or one or more of its Affiliates, the Holder shall have the right
for thirty (30) days after such termination of employment or cessation of
directorship, whichever event occurs latest, to exercise this Nonstatutory
Option with respect to that portion hereof that has become exercisable pursuant
to this Agreement as of the date of the Holder's termination or cessation, and
thereafter this Nonstatutory Option shall terminate and cease to be exercisable.
If a Holder ceases to be employed by at least one of the employers in
the group of employers consisting of the Company and its Affiliates because any
of such entities terminates the Holder's employment for misconduct, the portion,
if any, of this Nonstatutory Option that remains unexercised, including that
portion, if any, that pursuant to this Agreement is not yet exercisable, at the
time of the Holder's termination of employment, shall terminate and cease to be
exercisable as of such time. "Misconduct" shall be as defined in the Company's
Personnel Policy and Procedures Manual.
If a Holder ceases to be employed by at least one of the employers in
the group of employers consisting of the Company and its Affiliates because one
or more of such entities terminates the employment of the Holder but not for
misconduct, and the Holder does not remain or thereupon become a director of the
Company or one or more of its Affiliates, or if the Holder is only a director
and ceases to be a director of at least one of the corporations in the group of
corporations consisting of the Company and its Affiliates, the Holder shall have
the right for ninety (90) days after such termination of employment or cessation
of directorship to exercise this Nonstatutory Option with respect to that
portion hereof that has become exercisable pursuant to this Agreement as of the
date of the Holder's termination or cessation, and thereafter this Nonstatutory
Option shall terminate and cease to be exercisable.
(b) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DISABILITY. If the
Holder ceases to be employed by at least one of the employers in the group of
employers consisting of the Company and its Affiliates by reason of disability
(as defined in section 22(e)(3) of the Code) and
CORPDAL:53223.1 14047-00001
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<PAGE>
does not remain or thereupon become a director of the Company or one or more of
its Affiliates, or if the Holder is only a director and ceases by reason of such
disability to be a director of at least one of the corporations in the group of
corporations consisting of the Company and its Affiliates, the Holder shall be
given an additional twelve (12) months after the date of termination of
employment with or cessation of directorship of such group of employers by
reason of disability, whichever occurs latest, to exercise this Nonstatutory
Option to the extent this Nonstatutory Option is exercisable on the date of such
termination of employment or cessation of directorship, and thereafter this
Nonstatutory Option shall terminate and cease to be exercisable.
(c) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DEATH. If the Holder dies
while in the employ of the Company or an Affiliate or dies while a director of
the Company or an Affiliate, this Nonstatutory Option shall be exercisable by
the Holder's legal representatives, heirs, legatees, or distributees for twelve
(12) months following the date of the Holder's death to the extent this
Nonstatutory Option is exercisable on the Holder's date of death, and thereafter
this Nonstatutory Option shall terminate and cease to be exercisable.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC.
Notwithstanding any other provision hereof, in the event of any change in the
number of outstanding shares of Stock
(a) effected without receipt of consideration therefor by the
Company, by reason of a stock dividend, or split, combination, exchange of
shares or other recapitalization, merger, or otherwise, in which the Company is
the surviving corporation,
(b) by reason of a spin-off to the shareholders of a part
of the Company into a separate entity, or
(c) by reason of assumptions and conversions of
outstanding grants due to an acquisition by the Company of a separate entity;
then: (1) the number and class of shares subject to this Nonstatutory Option and
(2) the exercise price of this Nonstatutory Option shall be automatically
adjusted to accurately and equitably reflect the effect thereon of such change;
provided, however, that any fractional share resulting from such adjustment may
be eliminated. In the event of a dispute concerning such adjustment, the
decision of the Committee shall be conclusive. The number of shares subject to
this Nonstatutory Option shall be automatically reduced by any fraction included
therein which results from any adjustment made pursuant to this Paragraph 8.
The occurrence of:
(a) a dissolution or liquidation of the Company,
(b) a merger or consolidation (other than a merger effecting a
reincorporation of the Company in another state or any other merger or a
consolidation in which the shareholders of the surviving corporation and their
proportionate interests therein immediately after the merger
CORPDAL:53223.1 14047-00001
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<PAGE>
or consolidation are substantially identical to the shareholders of the Company
and their proportionate interests therein immediately prior to the merger or
consolidation) in which the Company is not the surviving corporation (or
survives only as a subsidiary of another corporation in a transaction in which
the shareholders of the parent of the Company and their proportionate interests
therein immediately after the transaction are not substantially identical to the
shareholders of the Company and their proportionate interests therein
immediately prior to the transaction),
(c) a transaction in which any person becomes the owner
of 50% or more of the total combined voting power of all classes of stock of the
Company, or
(d) a sale of all or substantially all of the assets of the
Company where it is contemplated that within a reasonable period of time
thereafter the Company will either be liquidated or converted into a
nonoperating company or an extraordinary dividend will be declared resulting in
a partial liquidation of the Company (but in all cases only with respect to
those employees whom it is anticipated will lose their employment with the
Company and its Affiliates as a result of such sale of assets)
shall cause this Nonstatutory Option to terminate, but the Holder shall, in any
event, have the right, immediately prior to such dissolution, liquidation,
merger, consolidation, or transaction, to exercise this Nonstatutory Option, to
the extent not theretofore exercised, without regard to the determination as to
the periods and installments of exercisability made pursuant to Paragraph 2 if
(and only if) this Nonstatutory Option has not at that time expired or been
terminated.
9. COMMITTEE AUTHORITY. Any question concerning the
interpretation of this Agreement, any adjustments required to be made under
Paragraph 8 of this Agreement, and any controversy which may arise under this
Agreement shall be determined by the Committee in its sole and absolute
discretion. Such decision of the Committee shall be final and binding.
10. PLAN CONTROLS. The terms of this Agreement are governed by the
terms of the Plan, a copy of which is attached hereto as Exhibit A and made a
part hereof as if fully set forth herein, and in the case of any inconsistency
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall control.
11. NOTICE. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to
delivered on the date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the address which such person has theretofore specified
by written notice delivered in accordance herewith. The Company or Holder may
change, at any time and from time to time, by written notice to the other, the
address previously specified for receiving notices. Until changed in accordance
herewith, the Company and the Holder specify their respective addresses as set
forth below:
CORPDAL:53223.1 14047-00001
6
<PAGE>
Company: El Chico Restaurants, Inc.
12200 Stemmons Freeway
Suite 100
Dallas, Texas 75234
Attn: Legal Dept.
Holder:
12. INFORMATION CONFIDENTIAL. As partial consideration for the granting
of this Nonstatutory Option, the Holder agrees that he will keep confidential
all information and knowledge that he has relating to the manner and amount of
his participation in the Plan; provided, however, that such information may be
disclosed as required by law and may be given in confidence to the Holder's
spouse, tax and financial advisors, or to a financial institution to the extent
that such information is necessary to secure a loan.
13. GOVERNING LAW. Except as is otherwise provided in Paragraph
11.18 of the Plan, where applicable, the provisions of this Agreement shall be
governed by the contract law of the State of Texas.
CORPDAL:53223.1 14047-00001
7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Holder has hereunto set his hand on the day and year first
above written.
EL CHICO RESTAURANTS, INC.
By:
Its:
HOLDER:
Print Name:
CORPDAL:53223.1 14047-00001
8
EXHIBIT 4.4
CORPDAL:53223.1 14047-00001
<PAGE>
EL CHICO RESTAURANTS, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of
________________, 19___, between El Chico Restaurants, Inc., a Texas corporation
(the "Company"), and __________________ (the "Holder") in connection with the
award of Restricted Stock (hereinafter defined) under the El Chico Restaurants,
Inc. 1995 Stock Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Holder is either an employee of the Company or one of its
Affiliates (hereinafter defined) in a key position or a director of the Company
or one of its Affiliates and the Company desires to encourage him to own Stock
(hereinafter defined) and to give him added incentive to advance the interests
of the Company through the Plan and desires to grant the Holder shares of
Restricted Stock of the Company under terms and conditions established by the
Committee (hereinafter defined) and/or the Plan.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the Agreement between the Company and the
Holder:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below:
1.1 "AFFILIATES" shall mean (a) any corporation, other than
the Company, in an unbroken chain of corporations ending with the Company if
each of the corporations, other than the Company, owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain and (b) any corporation, other
than the Company, in an unbroken chain of corporations beginning with the
Company if each of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
1.2 "AWARD" shall mean an award of Restricted Stock pursuant
to this Agreement which shall be subject to the terms of this Agreement.
1.3 "BOARD OF DIRECTORS" shall mean the board of
directors of the Company.
1.4 "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
1.5 "COMMITTEE" shall mean the committee appointed pursuant to
Section 3 of the Plan by the Board of Directors to administer the Plan.
CORPDAL:53223.1 14047-00001
1
<PAGE>
1.6 "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
1.7 "RESTRICTED STOCK" shall mean Stock which is subject to
restrictions and has not become Unrestricted Stock according to Paragraph 2
hereof.
1.8 "RESTRICTED STOCK AGREEMENT" shall mean this agreement
which is entered into in connection with the 1995 Stock Plan.
1.9 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
1.10 "STOCK" shall mean the Company's authorized $0.10 par
value common stock, together with any other securities with respect to which
Awards granted hereunder may become unrestricted.
1.11 "UNRESTRICTED STOCK" shall mean shares of Stock that are
vested according to the schedule in Paragraph 2 hereof.
2. AWARD OF STOCK. Subject to the terms and conditions set forth
herein, the Company awards to the Holder _____________ shares of Restricted
Stock. Restrictions on such Restricted Stock shall lapse, and it shall become
Unrestricted Stock according to the following schedule, except as otherwise
provided in Paragraphs 7 and 8:
ON OR AFTER NUMBER OF SHARES
_____shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
On and after the final date stated above, all of the Stock shall be and remain
Unrestricted Stock, except as otherwise provided in Paragraphs 7 and 8.
3. CONSIDERATION FOR AWARD OF STOCK. This Award is made to the
Holder in consideration of services rendered to the Company.
4. TRANSFER OF RESTRICTED STOCK. Stock which is Restricted Stock
shall not be transferable except by will or by the laws of descent and
distribution. The Holder may not make any disposition of Restricted Stock or
any interest therein. As used in this agreement,
CORPDAL:53223.1 14047-00001
2
<PAGE>
"disposition" means any sale, transfer, encumbrance, gift, donation, assignment,
pledge, hypothecation, or other disposition, whether similar or dissimilar to
those previously enumerated, whether voluntary or involuntary, and whether
during the Holder's lifetime or upon or after the Holder's death, including, but
not limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy, or attachment, except a transfer by will or by
the laws of descent or distribution. Any attempted disposition in violation of
this Paragraph 4 shall be void and ineffective for all purposes.
5. STATUS OF HOLDER. The Holder shall not be deemed a stockholder of
the Company with respect to any of the shares of Stock which are Restricted
Stock, until and only to the extent that such shares shall have become
Unrestricted Stock according to the schedule in Paragraph 2. The Company shall
not be required to issue or transfer any certificates for shares of Restricted
Stock until all applicable requirements of law have been complied with and such
shares shall have been duly listed on any securities exchange on which the Stock
may then be listed.
6. NO EFFECT ON CAPITAL STRUCTURE. This Restricted Stock Agreement
shall not affect the right of the Company or any Affiliate thereof to
reclassify, recapitalize or otherwise change its capital or debt structure or to
merge, consolidate, convey any or all of its assets, dissolve, liquidate,
windup, or otherwise reorganize.
7. EARLY TERMINATION OF STOCK VESTING SCHEDULE.
(a) TERMINATION AS AN EMPLOYEE OR DIRECTOR - GENERAL. If the
Holder ceases to be employed by at least one of the employers in the group of
employers consisting of the Company and its Affiliates because the Holder
voluntarily terminates employment with such group of employers and the Holder
does not remain or thereupon become a director of the Company or one or more of
its Affiliates, or if a Holder voluntarily ceases to be a director of at least
one of the corporations in the group of corporations consisting of the Company
and its Affiliates and the Holder does not remain or thereupon become an
employee of the Company or one or more of its Affiliates, the Holder shall be
given an additional thirty (30) days after such termination of employment or
cessation of directorship for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
If a Holder ceases to be employed by at least one of the
employers in the group of employers consisting of the Company and its Affiliates
because any of such entities terminates the Holder's employment for misconduct,
the portion, if any, of the Holder's Stock that remains Restricted Stock at the
time of such termination of employment shall revert to the Company. "Misconduct"
shall be as defined in the Company's Personnel Policy and Procedures Manual.
If a Holder ceases to be employed by at least one of the
employers in the group of employers consisting of the Company and its Affiliates
because one or more of such entities terminates the employment of the Holder,
but not for misconduct, and the Holder does not remain or thereupon become a
director of the Company or one or more of its Affiliates, or if the Holder is
only a director and ceases to be a director of at least one of the corporations
in the group of
CORPDAL:53223.1 14047-00001
3
<PAGE>
corporations consisting of the Company and its Affiliates, the Holder shall be
given an additional ninety (90) days after such termination of employment or
cessation of directorship for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
(b) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DISABILITY. If
the Holder ceases to be employed by at least one of the employers in the group
of employers consisting of the Company and its Affiliates by reason of
disability (as defined in section 22(e)(3) of the Code) and does not remain or
thereupon become a director of the Company or one or more of its Affiliates, or
if the Holder is only a director and ceases by reason of such disability to be a
director of at least one of the corporations in the group of corporations
consisting of the Company and its Affiliates, the Holder shall be given an
additional twelve (12) months after the date of termination of employment with
or cessation of directorship of such group of employers by reason of disability,
whichever occurs latest, for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
(c) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DEATH. If the
Holder dies while in the employ of the Company or an Affiliate or dies while a
director of the Company or an Affiliate, the Holder's legal representatives,
heirs, legatees, or distributees shall be given an additional twelve (12) months
following the date of the Holder's death for Restricted Stock hereunder to
become Unrestricted Stock according to the provisions of Paragraph 2, and
thereafter all remaining Restricted Stock shall revert to the Company.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC.
Notwithstanding any other provision hereof, in the event of any change in the
number of outstanding shares of Stock
(a) effected without receipt of consideration therefor by the
Company, by reason of a stock dividend, or split, combination, exchange of
shares or other recapitalization, merger, or otherwise, in which the Company is
the surviving corporation,
(b) by reason of a spin-off to the shareholders of a part
of the Company into a separate entity, or
(c) by reason of assumptions and conversions of
outstanding grants due to an acquisition by the Company of a separate entity,
then, the number and class of shares subject to this Restricted Stock Agreement
shall be automatically adjusted to accurately and equitably reflect the effect
thereon of such change; provided, however, that any fractional share resulting
from such adjustment may be eliminated. In the event of a dispute concerning
such adjustment, the decision of the Committee shall be conclusive. The number
of shares subject to this Restricted Stock Agreement shall be automatically
reduced by any fraction included therein which results from any adjustment made
pursuant to this Paragraph 8.
CORPDAL:53223.1 14047-00001
4
<PAGE>
The occurrence of:
(a) a dissolution or liquidation of the Company,
(b) a merger or consolidation (other than a merger effecting a
reincorporation of the Company in another state or any other merger or a
consolidation in which the shareholders of the surviving corporation and their
proportionate interests therein immediately after the merger or consolidation
are substantially identical to the shareholders of the Company and their
proportionate interests therein immediately prior to the merger or
consolidation) in which the Company is not the surviving corporation (or
survives only as a subsidiary of another corporation in a transaction in which
the shareholders of the parent of the Company and their proportionate interests
therein immediately after the transaction are not substantially identical to the
shareholders of the Company and their proportionate interests therein
immediately prior to the transaction),
(c) a transaction in which any person becomes the owner
of 50% or more of the total combined voting power of all classes of stock of the
Company, or
(d) a sale of all or substantially all of the assets of the
Company where it is contemplated that within a reasonable period of time
thereafter the Company will either be liquidated or converted into a
nonoperating company or an extraordinary dividend will be declared resulting in
a partial liquidation of the Company (but in all cases only with respect to
those employees whom it is anticipated will lose their employment with the
Company and its Affiliates as a result of such sale of assets)
shall cause this Restricted Stock Agreement to terminate, except that all
Restricted Stock hereunder shall become Unrestricted Stock immediately prior to
such dissolution, liquidation, merger, consolidation, or transaction, without
regard to the determination as to the periods and installments of vesting
specified in Paragraph 2, if (and only if) such Restricted Stock has not at that
time been forfeited to the Company.
9. COMMITTEE AUTHORITY. Any question concerning the
interpretation of this Agreement, any adjustments required to be made
under Paragraph 8 of this Agreement, and any controversy which may
arise under this Agreement shall be determined by the Committee in its
sole and absolute discretion. Such decision of the Committee shall be
final and binding.
10. PLAN CONTROLS. The terms of this Agreement are governed by the
terms of the Plan, a copy of which is attached hereto as EXHIBIT A and made a
part hereof as if fully set forth herein, and in the case of any inconsistency
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall control.
11. NOTICE. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to
delivered on the date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the
CORPDAL:53223.1 14047-00001
5
<PAGE>
address which such person has theretofore specified by written notice delivered
in accordance herewith. The Company or Holder may change, at any time and from
time to time, by written notice to the other, the address previously specified
for receiving notices. Until changed in accordance herewith, the Company and the
Holder specify their respective addresses as set forth below:
Company: El Chico Restaurants, Inc.
12200 Stemmons Freeway
Suite 100
Dallas, Texas 75234
Attn: Legal Dept.
Holder:
12. INFORMATION CONFIDENTIAL. As partial consideration for the granting
of an Award pursuant to this Restricted Stock Agreement, the Holder agrees that
he will keep confidential all information and knowledge that he has relating to
the manner and amount of his participation in the Plan; provided, however, that
such information may be disclosed as required by law and may be given in
confidence to the Holder's spouse, tax and financial advisors, or to a financial
institution to the extent that such information is necessary to secure a loan.
13. GOVERNING LAW. Except as is otherwise provided in Paragraph
11.18 of the Plan, where applicable, the provisions of this Agreement shall be
governed by the contract law of the State of Texas.
CORPDAL:53223.1 14047-00001
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Holder has hereunto set his hand on the day and year first
above written.
EL CHICO RESTAURANTS, INC.
By:
Its:
HOLDER:
Print Name:
CORPDAL:53223.1 14047-00001
7
EXHIBIT 5.1
CORPDAL:53223.1 14047-00001
<PAGE>
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
FOUNTAIN PLACE
1445 ROSS AVENUE, SUITE 3200 AUSTIN, TEXAS
DALLAS, TX 75202 (512) 499-3800
HOUSTON, TEXAS
(214) 855-4500 (713) 951-3300
TELECOPIER (214) 855-4300
SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
(202) 326-1500
WRITER'S DIRECT DIAL NUMBER
Ronald J. Frappier
(214) 855-4743
November 25, 1996
El Chico Restaurants, Inc.
12200 Stemmons, Suite 100
Dallas, Texas 75234
Re: El Chico Restaurants, Inc.
Registration Statement
Gentlemen:
We have acted as counsel to El Chico Restaurants, Inc., a Texas
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about November 25, 1996, under
the Securities Act of 1933, as amended (the "Securities Act"), relating to
400,000 shares (the "Shares") of the $.10 par value common stock (the "Common
Stock") of the Company that have been or may be issued by the Company under the
1995 Stock Plan for El Chico Restaurants, Inc. (the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Restated Articles of Incorporation and the bylaws of the Company, as
amended; (2) minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan, the issuance of shares of Common
Stock pursuant to the Plan and related matters; (3) the Registration Statement
and exhibits thereto, including the Plan; and (4) such other documents and
instruments as we have deemed necessary for the expression of opinions herein
contained. In making the foregoing examinations, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various questions of fact
material to this opinion, and as to the content and form of the Restated
Articles of Incorporation, the bylaws, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent we
CORPDAL:55357.1 14047-00001
<PAGE>
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
El Chico Restaurants
November 25, 1996
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
Based upon this firm's examination, consideration of, and reliance on
the documents and other matters described above, and subject to the assumptions
noted below, this firm is of the opinion that the Company presently has
available at least 400,000 shares of authorized but unissued and/or treasury
shares of Common Stock from which may be issued the 400,000 shares of Common
Stock issued or proposed to be isled pursuant to the exercise of options granted
under the Plan (the "Options") and/or awards of restricted stock under the Plan
("Restricted Stock" and together with the Options, the "Awards"). Assuming that
(1) the outstanding Awards are duly granted, and the Awards to
be granted in the future will be duly granted in accordance with the terms of
the Plan;
(2) the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares of Common Stock available for
issuance pursuant to the Awards; and
(3) the consideration for Common Stock issued pursuant to the
Awards is actually received by the Company as provided in the Plan
(and/or the Award agreement executed in connection with such Plan) and
exceeds the par value of such shares;
then the 400,000 shares of Common Sock that may be issued in accordance with the
terns of the Plan pursuant to the Awards will be, when and if issued, duly and
validly issued, fully paid and nonassessable.
CORPDAL:55357.1 14047-00001
<PAGE>
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
El Chico Restaurants
November 25, 1996
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By:/s/Ronald J. Frappier
-----------------------
Ronald J. Frappier, Esq.
RJF:TAM:jv
cc: T. Allen McConnell, Esq.
Jason Villalba, Esq.
CORPDAL:55357.1 14047-00001
EXHIBIT 23.2
CORPDAL:55357.1 14047-00001
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
El Chico Restaurants, Inc.
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG Peat Marwick LLP
Dallas, Texas
November 20, 1996
CORPDAL:55357.1 14047-00001
