As filed with the Securities and Exchange Commission on March 31, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Lone Star Steakhouse & Saloon, Inc.
Delaware 48-1109495
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
224 East Douglas
Suite 700 67202
Wichita, Kansas (Zip Code)
(Address of principal executive offices)
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Deferred Compensation Plan
Retirement (401-K) Savings Plan
(Full Title of the Plan)
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Jamie B. Coulter,
Chairman and Chief Executive Officer
224 East Douglas, Suite 700
Wichita, Kansas 67202
(Name and Address of agent for service)
(316) 264-8899
(Telephone number, including area code, of agent for service)
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With a copy to:
Steven Wolosky, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
Approximate date of proposed sales pursuant to the plan:
From time to time after the effective date of this registration statement.
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share price fee
<S> <C> <C> <C> <C>
Common Stock
$.01 par value
(1)(2) 100,000 $8 7/8 $ 887,500 $ 234.30
- ---------------------- ------------------------- --------------------- --------------------- ------------------------
Deferred
Compensation
Obligations (3) 100% $2,500,000(4) $ 660.00
====================== ========================= ===================== ===================== ========================
</TABLE>
(1) There are also registered hereby, pursuant to Rule 416 (c) under the
Securities Act of 1933, such indeterminate number of shares of Common Stock as
may become issuable by reason of the operation of the anti-dilution or certain
other provisions of the Deferred Compensation Plan and the Retirement (401-K)
Savings Plan ("401-K Plan", and together with the Deferred Compensation Plan,
the "Two Company Plans") of Lone Star Steakhouse & Saloon, Inc. (the "Company").
(2) Pursuant to Rule 457(g) and (h), the offering price for the shares which may
be issued under the Two Company Plans is estimated solely for the purpose of
determining the registration fee and is based on the average of the high and low
prices of the Company's Common Stock $8 7/8 as reported by the Nasdaq National
Market on March 29, 2000.
(3) The Deferred Compensation Obligations being registered are general unsecured
obligations of the Company to pay deferred compensation in the future to
participating members of a select group of management or other key employees in
accordance with the terms of the Deferred Compensation Plan.
(4) Estimated solely for purposes of determining the registration fee.
================================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Form S-8 (part II hereof),
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 28, 1999; and
(b) The description of the Company's securities contained in
the Company Registration Statement on Form 8-A filed March 5, 1992.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
<PAGE>
Item 4. Description of Securities underlying the Deferred
Compensation Plan.
The Deferred Compensation Plan was adopted by Lone Star Steakhouse &
Saloon, Inc. (the "Company") as of October 6, 1999 to provide additional
retirement benefits to a select group of management or certain other key
employees of the Company designated by the Committee of the Board of Directors
administering the Deferred Compensation Plan who have an annualized base salary
plus estimated cash bonuses in excess of $70,000 or whose status is at the level
of District Manager or higher (the "Key Employees") and to ensure the retention
of their services. Each calendar year, every Key Employee who wishes to
participate in the Deferred Compensation Plan (each a "Key Employee
Participant", collectively "Key Employee Participants") may irrevocably elect to
defer the receipt of up to 20% of his or her earnings for any calendar year
during the term of his employment with the Company.
The Company has established a trust (the "Trust") with The Charles
Schwab Trust Company as Trustee, pursuant to a Trust Agreement as a source of
funds to assist the Company in meeting its obligations to provide the benefits
of the Plan. For each plan year, the Company shall credit to a Key Employee
Participant an amount equal to 50 cents for each dollar of compensation that a
Key Employee Participant has elected to defer.
The obligations of the Company under the Deferred Compensation Plan
(the "Deferred Compensation Obligations") shall be general unsecured obligations
of the Company to pay deferred compensation from its general assets in the
future to Key Employee Participants. The Deferred Compensation Obligations will
be denominated and payable in United States dollars and will rank pari passu
with other unsecured and unsubordinated indebtedness of the Company which from
time to time may be outstanding.
No payment under the Deferred Compensation Plan shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, voluntary or involuntary. Any attempt to dispose of any rights to
benefits payable under the Deferred Compensation Plan shall be void.
The Deferred Compensation Obligations are not subject to redemption, in
whole or in part, prior to the individual payment dates selected by the Key
Employee Participants.
The total amount of the Deferred Compensation Obligations are not
determinable because the amount will vary depending upon the level of
participation by Key Employees and the amounts of their earnings. The duration
of the Deferred Compensation Plan is indefinite and is subject to the Company's
termination. The Deferred Compensation Obligations are not convertible into
another security of the Company. The Deferred Compensation Obligations will not
have the benefit of a negative pledge or any other affirmative or negative
covenant on the part of the Company. Each Key Employee Participant will be
responsible for acting independently with respect to, among other things, the
giving of notices, responding to any requests for consents, waivers or
amendments pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
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<PAGE>
Item 5. Interest of Named Experts and Counsel
Steven Wolosky, a member of Olshan Grundman Frome Rosenzweig & Wolosky
LLP, the Company's counsel in the preparation of this registration statement,
holds options to purchase 8,767 shares of Common Stock of the Company.
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<PAGE>
Item 6. Indemnification of Officers and Directors
The Company was incorporated in Delaware. Article EIGHTH, Section A of
the Certificate of Incorporation of the Company provides as follows:
EIGHTH: A. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law
(the "GCL"), or (iv) for any transaction from which the director
derived an improper personal benefit. If the GCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL, as so amended. Any repeal or modification of this
Section A by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation with
respect to events occurring prior to the time of such repeal or
modification.
Article EIGHTH, Section B of the Certificate of Incorporation of the
Company provides as follows:
B. (1) Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she or a person of whom
he or she is the legal representative is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceedings is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest
extent authorized by the GCL as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that
except as provided in paragraph (2) of this Section B with respect to
proceedings seeking to enforce rights to indemnification, the
Corporation shall indemnify any such person
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<PAGE>
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section B shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that if the GCL
requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any
other capacity) in which service was or is rendered by such person
while a director or officer, including, without limitation, service to
an employee benefit plan in advance of the final disposition of a
proceeding, shall be made only under delivery to the Corporation of an
undertaking by or on behalf of such director or officer to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this
Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not
paid in full by the Corporation within thirty days after a written
claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the GCL for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
GCL, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
(3) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Section B shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, By-Laws, agreement, vote
of stockholders or disinterested directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person
against
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<PAGE>
such expense, liability or loss under the General Corporation Law of
the State of Delaware.
(5) The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and
rights to be paid by the Corporation for the expenses incurred in
defending any proceeding in advance of its final disposition, to any
agent of the Corporation to the fullest extent of the provisions of
this Section B with respect to the indemnification and advancement of
expenses of directors, officers and employees of the Corporation.
See Item 9(c) below for information regarding the position of the
Commission with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended.
Section 145 of the Delaware General Corporation Law provides as
follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and
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<PAGE>
except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion or (3) by the
stockholders.
(e) Expenses incurred by an officer or director in defending a
civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any
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<PAGE>
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participant and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
The Company maintains a directors and officers insurance and company
reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified the directors and officers. The policy contains various exclusions,
none of which relate to the offering hereunder. The Company also has agreements
with its directors and officers providing for the indemnification thereof under
certain circumstances.
Item 7. Exemption from Registration Claimed
Not applicable.
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<PAGE>
Item 8. Exhibits
4 - Form of Deferred Compensation Plan.
5 - Opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP.
23(a) - Consent of Ernst & Young LLP, independent auditors.
23(b) - Consent of Olshan Grundman Frome Rosenzweig &
Wolosky LLP (included in its opinion filed as Exhibit
5).
24 - Powers of Attorney (included on page 12).
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<PAGE>
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) 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;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement;
(2) That, for the purposes of determining any liability
under the Securities Act of 1933, 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 that 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
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the
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<PAGE>
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 of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
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 a
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such
issue.
D. The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, a copy of the
registrant's latest annual report to stockholders that is
incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of 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 Wichita, State of Kansas, on this 29th day of
March 2000.
LONE STAR STEAKHOUSE & SALOON, INC.
(Registrant)
/s/ Jamie B. Coulter
-----------------------------------
Jamie B. Coulter, Chairman
and Chief Executive Officer
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
directors of Lone Star Steakhouse & Saloon, Inc. hereby constitutes and appoints
Jamie B. Coulter and John D. White, and each of them singly, as true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him in his name in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and to prepare any and
all exhibits thereto, and other documents in connection therewith, and to make
any applicable state securities law or blue sky filings, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite or necessary to be done to enable Lone Star
Steakhouse & Saloon, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Jamie B. Coulter Chairman and Chief Executive March 29, 2000
- ------------------------- Officer
Jamie B. Coulter
/s/ John D. White Executive Vice President, March 29, 2000
- ------------------------- Treasurer and Director
John D. White
/s/ Randall H. Pierce Chief Financial Officer and March 29, 2000
- ------------------------- Principal Accounting Officer
Randall H. Pierce
/s/ Clark R. Mandigo Director March 29, 2000
- -------------------------
Clark R. Mandigo
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<PAGE>
/s/ Fred B. Chaney Director March 29, 2000
- -------------------------
Fred B. Chaney
/s/ William B. Greene Director March 29, 2000
- -------------------------
William B. Greene
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<PAGE>
The 2000 Deferred Compensation Plan and 401-K Plan. Pursuant to the
requirements of the Securities Act of 1933, the trustees have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the [City of Wichita, State of Kansas,] on March ___, 2000.
----------------------------
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LONE STAR STEAKHOUSE & SALOON, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
Lone Star Steakhouse & Saloon, Inc., a Delaware corporation (the
"Company"), hereby adopts as of the date set forth below the Lone Star
Steakhouse & Saloon, Inc. Nonqualified Deferred Compensation Plan (the "Plan")
for the purpose of providing certain select management employees of the Company
and its affiliates unfunded deferred compensation benefits payable upon
retirement, death, or other termination of employment.
ARTICLE 1
DEFINITIONS
1.1 "Account Balance" means the balance standing to the credit of the
Participant under his Participant Account and Employer Account as of the most
recent Valuation Date, reduced by the amount of all actual distributions, if
any, made therefrom since the immediately preceding Valuation Date.
1.2 "Adopting Employer" means (a) each of those business entities
listed on Attachment A hereto, (b) any domestic business entity in which the
Company or an Adopting Employer acquires a majority ownership interest at any
time following the Effective Date, and (c) any other business entity, domestic
or foreign, which, following the Effective Date, is authorized by the Board to
adopt the Plan.
1.3 "Anniversary Date" shall mean December 31, 1999 and each
anniversary thereof while the Plan remains in effect.
1.4 "Board" means the Board of Directors of the Company.
<PAGE>
1.5 "Committee" means the committee appointed by the Board pursuant to
Section 8.1 of the Plan.
1.6 "Company" means Lone Star Steakhouse & Saloon, Inc.
1.7 "Compensation" shall mean either or both of a Participant's base
salary or cash bonuses payable to the Participant by the Company or by an
Adopting Employer within a Plan Year, which the Participant would be entitled to
receive but for any deferral under this Plan.
1.8 "Deferral Election" means the election made by a Participant
pursuant to Article 4 of the Plan to elect to defer Compensation that would
otherwise be payable to him during the Deferral Period.
1.9 "Deferral Period" means that Plan Year or portion thereof for which
the Deferral Election of a Participant is in effect.
1.10 "Disability" means a physical or mental condition of a Participant
resulting from bodily injury, disease, or mental disorder which renders him
incapable of continuing any gainful occupation and which condition constitutes
total disability under the Federal Social Security Act.
1.11 "Effective Date" of the Plan means October 6, 1999.
1.12 "Employee" means an employee of an Employer.
1.13 "Employer" means the Company and any Adopting Employer that
employs a Participant during all or any part of a Deferral Period.
1.14 "Employer Account" means the account maintained on the books of
the Company or an Adopting Employer for each Participant pursuant to Section
5.1(b) hereof.
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1.15 "Forfeiture Account" means the sum of the accounts maintained on
the books of the Company and the Adopting Employer pursuant to Section 6.3
hereof reflecting the net amount of forfeitures, and any gains or losses
realized thereon, arising within a Plan Year.
1.16 "Fund" means the fund established under the Trust Fund Agreement.
1.17 "Participant" means an employee of the Company or an Adopting
Employer who qualifies for eligibility to participate in the Plan as provided in
Article 3 of the Plan and who files a Deferral Election with the Committee in
accordance with Article 4 of the Plan to evidence his election to participate in
the Plan.
1.18 "Participant Account" means the account maintained on the books of
the Company or an Adopting Employer for each Participant pursuant to Section
5.1(a) hereof.
1.19 "Payment Triggering Event" means any of the Termination of
Employment, death or Disability of a Participant.
1.20 "Plan" means the Lone Star Steakhouse & Saloon, Inc. Nonqualified
Deferred Compensation Plan, as set forth herein and as may be amended from time
to time.
1.21 "Plan Year" means the period commencing October 6, 1999 and ending
December 31, 1999 and thereafter each 12-month period commencing January 1 and
ending the following December 31 while the Plan is in effect.
1.22 "Service" means the period of continuous employment of the
Participant, commencing with the Participant's most recent date of hire by the
Company or an Adopting Employer, including for this purpose the period of
continuous employment of the Participant by any business entity whose operations
have been assumed or acquired in whole or in part by the
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Company or by any Adopting Employer immediately prior to the Participant's
above-described period of employment by the Employer or an Adopting Employer.
1.23 "Stated Deferral" means the percentage of the Participant's
Compensation that the Participant agrees to defer in accordance with his
Deferral Election for the applicable Deferral Period.
1.24 "Termination of Employment" means the Participant's cessation of
employment with the Company or any Adopting Employer for any reason whatsoever,
voluntarily or involuntarily, other than by reasons of death or Disability.
1.25 "Trust" means the trust established under the Trust Fund
Agreement.
1.26 "Trust Fund Agreement" means the Trust Agreement dated
contemporaneously herewith by and between the Company, as grantor, and The
Charles Schwab Trust Company, as trustee, for the purpose of holding the Fund.
1.27 "Trust Fund Return" means the gain in value or diminution in value
of the assets comprising the Fund and any incremental return (such as dividends
or interest) derived therefrom from one Valuation Date to the next.
1.28 "Trustee" means The Charles Schwab Trust Company or any successor
trustee under the terms of the Trust Fund Agreement.
1.29 "Valuation Date" shall mean each Anniversary Date, or such other
date or dates deemed necessary or appropriate in the view of the Committee to
determine the net worth of the assets comprising the Account Balance of a
Participant hereunder.
1.30 "Vested" means the nonforfeitable portion of the Participant
Account or Employer Account of a Participant, computed in accordance with
Article 6 hereof.
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1.31 "Year of Service" means 12 consecutive months of Service rendered
by a Participant, whether rendered prior to or following the Effective Date.
ARTICLE 2
PLAN SPONSOR
2.1 Plan Sponsor. The Company shall be the sponsor and named fiduciary
of the Plan, which the Company and the Adopting Employers have adopted for the
benefit of certain designated highly compensated and key management Employees.
ARTICLE 3
ELIGIBILITY
3.1 Eligible Employees. An Employee shall be eligible to participate in
the Plan if his annualized base salary plus estimated cash bonuses, if any, in
any Plan Year is in excess of $70,000 or his employment status is at the level
of District Manager or higher, and the Employee is designated by the Committee
as eligible to participate in the Plan.
ARTICLE 4
EMPLOYEE DEFERRALS AND EMPLOYER ADDITIONS
4.1 Procedure for Deferral. An Employee who is eligible to participate
in the Plan shall, prior to the commencement of each Plan Year for which he is
so eligible, file with the Committee a completed Deferral Election form provided
to him by the Committee, setting forth the Participant's Stated Deferral during
the forthcoming Deferral Period, and he shall thereupon become a Participant.
The Participant's Deferral Election shall take effect as of the start of the
Plan Year immediately following the filing of his completed Deferral Election
form with the Committee and shall apply to the Stated Deferral of his
Compensation that would otherwise be
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payable during the Deferral Period; provided, however, that any prospective
Employee who is designated by the Committee as eligible to participate in the
Plan upon his commencement of employment may elect prior to his commencement of
employment to defer that portion of his Compensation that he would otherwise be
entitled to receive during the remainder of the Plan Year in which his Service
commences.
4.2 Manner of Deferral. Unless otherwise modified under Section 4.4
hereof, the Participant's Compensation shall be correspondingly reduced as
follows:
(a) The percentage of Compensation shall be subtracted from
the amount of Compensation otherwise payable to the
Participant during the Deferral Period. (b) The amount of any
salary deferred shall be subtracted in equal installments from
the Participant's paychecks for the Deferral Period, and the
amount of any bonus deferred shall be subtracted as a lump sum
from the amount of any bonus otherwise payable to the
Participant during the Deferral Period.
4.3 Minimum and Maximum Deferrals. The following minimum and maximum
deferrals shall be applicable to all Participants under the Plan; provided,
however, that the Committee may, from time to time, in its sole discretion,
adjust the minimum and maximum deferrals permitted hereunder.
(a) Minimum Annual Deferral. The minimum amount that a
Participant may defer for any Plan Year shall be not less than
2 percent of a Participant's annualized base salary for such
Plan Year or 2 percent of a Participant's cash bonuses payable
to the Participant within such Plan Year.
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(b) Maximum Annual Deferral. The maximum amount that a
Participant may defer for any Plan Year shall not exceed 20
percent of a Participant's base salary and 20 percent of any
cash bonuses payable to the Participant within such Plan Year.
4.4 Election to Defer Irrevocable; Exception. Except as otherwise
provided herein, a Participant's Deferral Election for a Deferral Period shall
be irrevocable. The Committee, in its sole discretion, upon demonstration of
substantial hardship by a Participant, may permit prospective modification
within a Deferral Period of a Participant's Deferral Election. A request to
modify the amount of Compensation deferred shall be submitted by a Participant
in writing to the Committee at least one month prior to the date such
modification is to take effect and shall set forth in detail the reasons for the
requested modification. If a modification of the Deferral Election is granted by
the Committee, such modification shall be effective for the balance of the
Deferral Period. The Participant shall have no right to make up deferrals missed
by reason of such modification.
4.5 Employer Additions. For each Plan Year, the Participant's Employer
shall credit to the Participant, concurrent with the deferral set forth in
Section 4.2(b) hereof, an amount equal to 50 cents for each dollar of
Compensation that the Participant has elected to defer pursuant to his Deferral
Election. The Board may, in its discretion, elect to authorize the Participant's
Employer to credit, as of the date it so determines, an additional dollar amount
on behalf of such Participant with respect to such Plan Year, which additional
credit shall not be subject to any of the percentage limitations otherwise set
forth in this Article 4.
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ARTICLE 5
ACCOUNTS
5.1 Establishment of Accounts. The Company and each Adopting Employer
of a Participant shall establish accounts on its books for such Participant, and
shall credit (or debit, in the event of a loss) to such accounts the following
amounts at the times specified.
(a) Participant Account.
(i) An amount equal to that percentage of
Compensation that the Participant has elected to
defer in his Deferral Election credited as of the
date or dates the Participant would otherwise have
received such Compensation, reduced by any amounts
actually distributed to the Participant or that are
required to be withheld under any state, federal, or
local law for taxes or other charges from the
Participant's deferred compensation; and (ii) As of
each Valuation Date, an amount equal to the earnings
or loss attributable to the Participant Account since
the preceding Valuation Date as determined in
accordance with this Article 5.
(b) Employer Account.
(i) An amount equal to the Employer additions
described in Section 4.5 hereof, credited as of the
date or dates set forth therein, reduced by any
amounts actually distributed to the Participant or
that are required to be withheld under any state,
federal, or local law for taxes or other charges from
the Participant's deferred compensation; and
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(ii) As of each Valuation Date, an amount equal to
the earnings or loss attributable to the Employer
Account of the Participant since the preceding
Valuation Date as determined in accordance with this
Article 5; and (iii) As of each Anniversary Date, an
amount, if any, equal to the share of the net
Forfeiture Account arising under Article 6 of the
Plan since the immediately preceding Anniversary Date
allocable to the Employer Account of the Participant
pursuant to the terms of Section 5.5 hereof.
5.2 Contribution to Fund. For each Plan Year, the Company and each
Adopting Employer shall contribute to the Fund amounts equal to the net deferred
Compensation described in Section 5.1(a)(i) and the net Employer additions
described in Section 5.1(b)(i). To the extent feasible, such contributions shall
be made within a reasonable time following the credit to the accounts of a
Participant on the books of the Company and each Adopting Employer of the
amounts set forth in the immediately preceding sentence of this Section 5.2.
5.3 Determination of Account Balance. As of each Valuation Date, the
Committee shall determine (i) the net amount of the assets comprising the sum of
all Participant Accounts prior to taking into account any Employee deferrals for
that Plan Year and (ii) the net amount of the assets comprising the sum of all
Employer Accounts prior to taking into account any Employer additions for that
Plan Year and after deducting any expenses of the Fund that are unreimbursed by
the Company or an Adopting Employer as of such Valuation Date. Thereafter, the
Trust Fund Return as of such Valuation Date, if any, arising with respect to the
amounts described in (i) and (ii) of the immediately preceding sentence shall be
credited or debited, as the
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case may be, pro rata to the Participant Account and the Employer Account,
respectively, of each Participant.
5.4 Self-Directed Accounts. As an alternative to the method of
determination set forth in Section 5.3, the Committee may select a group of
investments for which a generally available market exists and in its sole
discretion may authorize a Participant, prior to the beginning of each Plan
Year, to request that his Account Balance be determined as if it had been
invested for the forthcoming Plan Year among the investments within such group
that the Committee permits him to select for such purpose. Such selection may be
altered by a Participant, provided that any such alteration is requested of the
Committee by the Participant prior to the commencement of a calendar quarter
within the Plan Year in which the Participant has requested such self-direction
of his Account Balance. Anything herein to the contrary notwithstanding, the
Committee, in its sole discretion, may at any time disapprove, veto, reject or
alter any investment request or selection of a Participant, as described in the
preceding portion of this Section 5.4, and instead may select as a mechanism for
the computation of a Participant's Trust Fund Return and the resulting valuation
of his Account Balance under this Section 5.4 any methodology that it selects.
5.5 Allocation of Forfeitures. As of the end of each Plan Year, the
Committee shall determine the aggregate amount credited to the Forfeiture
Account since the first day of such Plan Year and shall credit to the Employer
Account of each Participant who is employed by an Employer on the last day of
such Plan Year his pro rata share thereof, based on the respective Account
Balances of the Participants on the last day of such Plan Year.
5.6 Statement of Accounts. The Committee shall provide to each
Participant, no less frequently than quarterly, a statement in such form as the
Committee deems desirable setting
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forth the Account Balance standing to the credit of such Participant as of the
most recent Valuation Date.
5.7 No Funding. At all times while the Plan is in effect, the Account
Balance of a Participant shall be understood to reflect only a means for the
measurement and determination of the amounts to be paid to the Participant
pursuant to the terms of the Plan, and a Participant's Account Balance shall not
constitute or be treated as a trust fund of any kind, nor shall any assets held
under the Trust be deemed to represent security for the performance of any
obligation of an Employer hereunder but shall at all times be, and remain, the
general, unpledged and unrestricted assets of such Employer.
ARTICLE 6
VESTING
6.1 Participant Account. A Participant shall at all times be considered
100 percent Vested in the Participant Account established on the books of the
Company or the Adopting Employer for his benefit.
6.2 Employer Account. A participant shall be considered Vested in that
percentage of the Employer Account established on the books of the Company or
the Adopting Employer for his benefit determined under the following schedule
based upon the Participant's completed Years of Service:
Completed
Years of Service Percentage
---------------- ----------
1 25 percent
2 50 percent
3 75 percent
4 100 percent
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6.3 Forfeiture Account. Upon a Participant's Payment Triggering Event,
any amounts within his Employer Account in which he has not Vested shall be
forfeited. The Company and each Adopting Employer shall maintain on their books
a Forfeiture Account to which shall be credited all forfeitures arising under
this Article 6 within a Plan Year and all gains or losses realized with respect
to such forfeitures within such Plan Year, and as of the last day of such Plan
Year, the amount then within the Forfeiture Account shall be allocated to the
Employer Accounts of the Participants in accordance with Section 5.5 hereof.
ARTICLE 7
PAYMENT OF BENEFITS
7.1 Payment Triggering Event. Upon a Participant's Payment Triggering
Event, the Participant shall be entitled to be paid, as compensation for
services rendered prior to such date, a benefit equal to the amount determined
in accordance with Section 7.2 below.
7.2 Form and Timing of Payment of Benefits. The Committee may in its
sole discretion elect to pay benefits to a Participant in the form of cash or in
the form of an in-kind distribution of property having a fair market value equal
to the cash value it would otherwise distribute, or a combination thereof, in
the manner and under the circumstances set forth below:
(a) Death. If the Payment Triggering Event is the
Participant's death, then, except as provided in Section 7.3,
the Participant's beneficiary shall be paid his Account
Balance, determined as of the end of the month preceding
payment, no later than 90 days following notification in
writing to the Committee of the appointment of the legal
representative of the Participant's estate.
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(b) Disability. If the Payment Triggering Event is the
Participant's Disability, the Participant shall be paid his
Account Balance, determined as of the end of the month
preceding payment, no later than 90 days following the
determination by the Committee of the Participant's
Disability. (c) Other Events. If the Payment Triggering Event
is the Participant's Termination of Employment, the
Participant shall be paid his Account Balance, determined as
of the end of the month preceding the payment or commencement
of payments described in this Section 7.2, in the manner set
forth below:
(i) Account Balance less than $30,000. The entire
Account Balance shall be paid to the Participant no
later than 60 days following the Anniversary Date
within which there occurred the Participant's
Termination of Employment.
(ii) Account Balance equal to or in excess of
$30,000. The entire Account Balance shall be paid to
the Participant no later than 60 days following the
Anniversary Date within which there occurred the
Participant's Termination of Employment, unless the
Participant has elected prior to the commencement of
his first Deferral Period under the Plan and with the
approval of the Committee to be paid his Account
Balance in quarterly installments over five years,
with the first such installment commencing no later
than 60 days following the Anniversary Date within
which there occurred the Participant's Termination of
Employment. The amount of the quarterly installments
to be paid under
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such alternative method of payment during a
particular calendar year shall be recalculated
annually each Anniversary Date and shall be equal to
the Participant's Account Balance as so recalculated
on such Anniversary Date, divided by the number of
remaining installment payments to be made, and the
final installment shall consist of the remaining
balance of the Participant's Account Balance. Any
such election of a Participant to be paid under such
alternative method shall only be revocable by the
Participant by his filing an application for such
revocation, so long as such application for
revocation is filed at least two years prior to his
Termination of Employment and is approved by the
Committee.
7.3 Death After Commencement of Benefits. If a Participant dies after
payments have commenced hereunder, but prior to receiving all of the scheduled
payments, the installment payments as scheduled for the Plan Year in which the
death occurred shall continue, but be made payable instead to the Participant's
beneficiary, and then any remaining benefits shall be paid to the Participant's
beneficiary in a single lump sum payment no later than 90 days following the
notification in writing to the Committee of the appointment of the legal
representative of the Participant's estate.
7.4 Constructive Receipt. In the event that a final determination shall
be made by the Internal Revenue Service or any court of competent jurisdiction
that by reason of elections made or actions taken hereunder a Participant has
recognized gross income for federal, state or local income tax purposes prior to
the actual payment of benefits to such Participant to which such gross income is
attributable, the Committee may, in its sole discretion, authorize the payment
to
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the Participant in one lump sum, within 90 days following such final
determination of an amount equal to such recognized income. Thereafter, the
Participant may be paid any remaining benefits available to the Participant
under the normal terms and conditions hereof, provided, however, that a
Participant who receives a distribution pursuant to the immediately preceding
sentence of this Section 7.4 shall have his future benefits reduced in an amount
equal to such distribution in such manner and at such time as the Committee may
determine.
7.5 Hardship Distribution. Upon a finding by the Committee that a
Participant has suffered an unforseen financial emergency, the Committee, in its
sole discretion, may first modify the Participant's Deferral Election, as
provided in Section 4.4 hereof, and then may distribute to the Participant the
portion of the balance of the Participant's Account Balance necessary to
alleviate the hardship.
7.6 Recipients of Payments: Designation of Beneficiary. All payments
payable to a Participant shall be made to such Participant, if living. In the
event of a Participant's death prior to the receipt of all benefit payments, all
subsequent payments to be made under the Plan shall be made to the beneficiary
or beneficiaries of the Participant. In the event a beneficiary dies before
receiving all of the payments due to such beneficiary pursuant to this Plan, the
then remaining payments shall be paid to the legal representative of the
beneficiary's estate. Each Participant shall designate a beneficiary by filing a
written notice of such designation with the Committee in such form as the
Committee may prescribe. The Participant may revoke or modify said designation
at any time by a further written designation. The Participant's beneficiary
designation shall be deemed automatically revoked in the event of the death of
the beneficiary, or if the beneficiary is the Participant's spouse, in the event
of dissolution of the marriage. If the
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participant's Compensation constitutes community property, then any beneficiary
designation made by the Participant other than a designation of such
Participant's spouse shall not be effective if any such beneficiary or
beneficiaries are to receive more than 50 percent of the aggregate benefits
payable hereunder unless such spouse shall approve such designation in writing.
If no beneficiary designation shall be in effect at the time when any benefits
payable under this Plan shall become due, the beneficiary shall be the legal
representative of the Participant's estate.
7.7 Payment to Minor or Incompetent. In the event a benefit is payable
to a minor or person declared incompetent or to a person incapable of handling
the disposition of his property, the Committee may authorize the payment of such
benefit to the guardian, legal representative, or person having the care or
custody of such minor or incompetent, as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Committee and the Company and each Adopting Employer from all liability with
respect to such benefit.
7.8 Withholding, etc.. The Committee shall deduct from each payment
under the Plan any Federal, state or local withholding or other taxes or charges
which the Employer may be required to deduct under applicable law, and any
amounts so deducted shall be treated as a payment hereunder to the Participant
or his beneficiary.
ARTICLE 8
ADMINISTRATION AND INTERPRETATION OF THE PLAN
8.1 Committee. The Board shall appoint the members of the Committee and
shall also possess the authority to remove a member of the Committee when the
Board deems such action appropriate in its discretion. Members of the Committee
may be Participants in the Plan.
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The Committee may adopt such rules and regulations relating to the Plan as it
may deem necessary or advisable for the administration of the Plan.
8.2 Interpretation of Plan. The Committee shall interpret the Plan and
any such interpretation by the Committee shall be final and binding upon a
Participant, his spouse (if any), and beneficiary.
8.3 Plan Administration's Appointment of Advisers. The general
administration of the Plan shall be the responsibility of the Committee, which,
with the consent of the Board, may appoint counsel, specialists, advisers,
agents and other persons as may be necessary or desirable to assist the
Committee in the administration and management of the Plan, including, but not
limited to, assistance in maintaining Plan records and providing information to
the Participants.
ARTICLE 9
CLAIMS PROCEDURES
9.1 Initial Claim. If the Participant or the Participant's beneficiary
(hereinafter referred to as a "Claimant") is denied all or any portion of an
expected benefit under this Plan for any reason, the Claimant may file a claim
with the Committee. The Committee shall notify the Claimant within 60 days of
allowance or denial of the claim, unless the Claimant receives written notice
from the Committee prior to the end of the 60 day period stating that special
circumstances require an extension of the time for decision for an additional
period not to exceed an additional 60 days. The notice of the Committee's
decision shall be in writing, sent by mail to the Claimant's last known address,
and, if a denial of the claim, must contain the following information.
(a) The specific reasons for denial;
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(b) Specific reference to pertinent provisions of the Plan on
which the denial is based; and
(c) If applicable, a description of any additional information
or material necessary to perfect the claim, an explanation of
why such information or material is necessary, and an
explanation of the claims review procedure.
9.2 Review. A Claimant may request a review of any denial of his claim
by the Committee by submitting in writing such a request within 60 days of
mailing of notice of the denial. The Claimant or his representative shall be
entitled to review all pertinent documents, and to submit issues and comments in
writing. Absent a request for review within such 60 day period, the claim shall
be deemed to be conclusively denied.
ARTICLE 10
MISCELLANEOUS
10.1 Unsecured Creditor Status. The rights of the Participant, or his
beneficiary, or estate, to benefits under the Plan shall be solely those of an
unsecured general creditor of the Company or an Adopting Employer.
10.2 No Assignment of Benefits. Neither the Participant nor any
beneficiary under the Plan shall have any right to assign, transfer, sell, or
pledge the right to receive any benefits hereunder, and any attempted
assignment, transfer, sale, or pledge shall be void and not binding on the
Company and any Adopting Employer.
10.3 No Guarantee of Employment. Neither this Plan nor any action taken
hereunder shall be construed as giving a Participant the right to be retained as
an employee of the Company or any Adopting Employer.
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10.4 Unfunded Plan. In adopting the Plan and entering into the Trust
Fund Agreement, it is the intention of the Company that any benefits to be
provided under the Plan shall be deemed unfunded for tax and pension law
purposes and that any assets acquired by or held within the Trust shall not be
deemed to constitute funding for the benefit of the Participant, his
beneficiary, or his estate.
10.5 Amendment and Termination. The Board may, at any time, amend,
suspend, or terminate the Plan, provided that the Board may not reduce or modify
any benefit payable to a Participant based on deferrals and Employer additions
already made, without the prior consent of the Participant. If the Plan is
terminated, any remaining deferrals under a Deferral Election shall not be made
and all Employer additions shall cease as of the effective date thereof, but the
amount represented by the Account Balance of each Participant shall continue to
be held by the Trustee under the Trust and shall remain payable to the
Participant in accordance with the terms and conditions of the Plan.
10.6 Construction. The Plan shall be construed according to the laws of
the state of Delaware.
10.7 Communications. Any election, application, claim, notice, or other
communication required or permitted to be made by a Participant pursuant to the
Plan shall be made in writing and in such form as the Committee shall prescribe.
Such communication or notice shall be effective upon receipt, if sent by first
class mail, postage prepaid, and addressed to the Committee, c/o the Company's
offices at 224 East Douglas, Wichita, Kansas 67202.
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10.8 Approval of Plan Terms. A Participant's completion and filing of a
Deferral Election under this Plan shall constitute the Participant's acceptance
of all the terms of the Plan and his understanding that he shall become bound
thereby.
10.9 Captions. The captions at the head of an article, section or a
paragraph of the Plan are designed for convenience of reference only and are not
to be resorted to for the purposes of interpreting any provision of the Plan.
10.10 Severability. The invalidity of any portion of the Plan shall not
invalidate the remainder thereof, and said remainder shall continue in full
force and effect.
10.11 Binding Agreement. The provisions of the Plan shall be binding
upon the Participant, his heirs, personal representatives, and beneficiaries and
upon the Company and the Adopting Employers and their successors and assigns.
10.12 Gender. Any references in the Plan in the masculine gender shall
be interpreted to also reference the feminine gender and any references in the
feminine gender shall be interpreted to also reference the masculine gender.
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ADOPTED pursuant to resolution of the Board of directors of the Company
as of the 6th day of October, 1999.
LONE STAR STEAKHOUSE & SALOON, INC.
By:_____________________________________
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OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
March 31, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Lone Star Steakhouse & Saloon, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
dated the date hereof (the "Registration Statement"), filed with the Securities
and Exchange Commission by Lone Star Steakhouse & Saloon, Inc., a Delaware
corporation (the "Company"). The Registration Statement relates to an aggregate
of 100,000 shares (the "Shares") of common stock, par value $.01 per share (the
"Common Stock") and the deferred compensation obligations (the "Obligations") of
the Company to be offered to employees of the Company under the Company's
Deferred Compensation Plan (the "Deferred Compensation Plan"). The Shares will
be issued and sold by the Company in accordance with the Deferred Compensation
Plan and the Retirement (401-K) Savings Plan (the "401-k Plan" and together with
the Deferred Compensation Plan, the "Plans").
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation and Bylaws of the Company,
<PAGE>
Securities and Exchange Commission
March 31, 2000
Page -2-
minutes of meetings of the Board of Directors and stockholders of the Company,
the Plans, the documents to be sent or given to participants in the Plans and
such other documents, instruments and certificates of officers and
representatives of the Company and public officials, and we have made such
examination of the law, as we have deemed appropriate as the basis for the
opinion hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to original documents of documents submitted to
us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the terms and conditions
described in the relevant Plan, will be duly and validly issued, fully paid and
non-assessable. In addition, it is our opinion that the Obligations, when
established pursuant to the terms of the Deferred Compensation Plan, will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms and the terms of the Deferred Compensation Plan,
except as enforceability (1) may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or similar laws affecting creditors'
rights generally, and (2) is subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
Very truly yours,
/s/ Olshan Grundman Frome Rosenzweig & Wolosky LLP
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Deferred Compensation Plan and Retirement (401-k) Savings
Plan of Lone Star Steakhouse & Salon, Inc. of our report dated February 3, 2000,
with respect to the consolidated financial statements of Lone Star Steakhouse &
Saloon, Inc. included in its Annual Report (Form 10-K) for the year ended
December 28, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
March 24, 2000
Kansas City, Missouri
