<PAGE> 1
As filed with the Securities and Exchange Commission on September 13, 1996
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
LONGHORN STEAKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1498312
(State of incorporation) (IRS Employer Identification No.)
8215 ROSWELL ROAD
BUILDING 200
ATLANTA, GEORGIA 30350
(Address of Principal Executive Offices) (Zip Code)
LONGHORN STEAKS, INC.
AMENDED AND RESTATED 1992 INCENTIVE PLAN
(Full title of the plan)
RICHARD E. RIVERA
LONGHORN STEAKS, INC.
8215 ROSWELL ROAD
BUILDING 200
ATLANTA, GEORGIA 30350
(770) 399-9595
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
WILLIAM H. AVERY
ALSTON & BIRD
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000 $17.375 $8,687,500 $2,996
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers any additional shares that may
hereafter become exercisable as a result of the adjustment and
anti-dilution provisions of the Longhorn Steaks, Inc. Amended and
Restated 1992 Incentive Plan, as amended.
(2) Based on the average of the high and low prices reported on The Nasdaq
Stock Market's National Market on September 11, 1996 pursuant to Rule
457(h).
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Longhorn Steaks, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 or either: (1)
the latest prospectus filed pursuant to Rule 424(b) under the Securities Act of
1933 that contains audited financial statements for the Company's latest fiscal
year for which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Securities Exchange
Act of 1934 containing audited financial statements for the Company's latest
fiscal year.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the document incorporated pursuant to (a) above.
(c) The description of any class of securities to be
offered which is contained in a registration statement filed under Section 12
of the Securities Exchange Act of 1934, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities
offered 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 documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the securities being registered has been
passed upon for the Company by the law firm of Alston & Bird, Atlanta, Georgia,
counsel for the Company.
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<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Company's Amended and Restated Bylaws and
indemnification agreements between the Company and each of its officers and
directors, the Company is obligated to indemnify each of its directors and
officers to the fullest extent permitted by law with respect to all liability
and loss suffered and reasonable expense incurred by such person in any action,
suit or proceeding in which such person was or is made or threatened to be made
a party or is otherwise involved by reason of the fact that such person is or
was a director or officer of the Company. The Company is also obligated to pay
the reasonable expenses of the directors and officers incurred in defending
such proceeding if the indemnified party agrees to repay all amounts advanced
if it is ultimately determined that such person is not entitled to
indemnification.
In addition, the Company's Amended and Restated Articles of
Incorporation provide that the Company's directors shall not be liable to the
Company or its shareholders for monetary damages for breach of a director's
fiduciary duty as a director to the Company and its shareholders except to the
extent such exemption from liability or limitation thereof is not permitted
under the Georgia Business Corporation Code. This provision in the Articles of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Georgia law. In addition, each
director continues to be subject to liability for monetary damages for
misappropriation of any corporate opportunity in violation of the director's
duties, for acts or omissions involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for distributions (including payment of dividends or stock
repurchases or redemptions) that are unlawful under Georgia law. The provision
does not affect a director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
The Company maintains an insurance policy covering directors and
officers under which the insurer agrees to pay, subject to certain exclusions,
for any claim made against the directors and officers of the Company for a
wrongful act that they may become legally obligated to pay or for which the
Company is required to indemnify the directors or officers. The Company
believes that its Articles of Incorporation and By-law provisions and
indemnification agreements are necessary to attract and retain qualified
persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
II-2
<PAGE> 4
ITEM 8. EXHIBITS.*
The Exhibits included as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description
<S> <C>
4(a) Amended and Restated Articles of Incorporation of the Company
(incorporated by reference from Exhibit 3(a) to Registration Statement
on Form S-1, Registration Statement No. 33-45695).
4(b) Amended and Restated Bylaws of the Company (incorporated by reference
from Exhibit 3(b) to Registration Statement on Form S-1, Registration
Statement No. 33-45695).
4(c) Amended and Restated 1992 Incentive Plan, as amended.
5 Opinion of Alston & Bird regarding the legality of the securities being
registered.
23(a) Consent of Alston & Bird (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (contained on page II-6).
</TABLE>
* Exhibits are numbered in accordance with Item 601 of Regulation S-K.
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 this 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; and
II-3
<PAGE> 5
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change in such information in this Registration
Statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(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 Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose 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.
(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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of l934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and 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 offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) 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 provisions described in Item 6 of
this Part II, 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 Act 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 controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Longhorn Steaks, Inc., 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 Atlanta, State of
Georgia, on the 13th day of September, 1996.
LONGHORN STEAKS, INC.
Registrant
By: /s/ Richard E. Rivera
-----------------------------------
Richard E. Rivera
President, Chief Executive
Officer and Director
(Principal Executive Officer)
By: /s/ Anne D. Huemme
----------------------------------
Anne D. Huemme
Chief Financial Officer and Secretary
(Principal Financial and Accounting
Officer)
[Continued on Next Page]
II-5
<PAGE> 7
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints RICHARD E. RIVERA, and ANNE D. HUEMME, or either
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution, and resubstitution, for him and in his name, place and stead, 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 granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, 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 any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard E. Rivera
- -------------------------------- President, Chief Executive Officer September 13, 1996
Richard E. Rivera and Director
Chairman and Director September __, 1996
- --------------------------------
George W. McKerrow, Jr.
/s/ George W. McKerrow, Sr. Director September 13, 1996
- --------------------------------
George W. McKerrow, Sr.
/s/ Ronald W. San Martin Director September 13, 1996
- --------------------------------
Ronald W. San Martin
/s/ John C. Metz Director September 13, 1996
- --------------------------------
John C. Metz
/s/ John G. Pawly Director September 13, 1996
- --------------------------------
John G. Pawly
/s/ Don L. Chapman Director September 13, 1996
- --------------------------------
Don L. Chapman
</TABLE>
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<PAGE> 8
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
- --------------------------------------------------------------------------------
EXHIBITS FILED WITH
REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
LONGHORN STEAKS, INC.
8215 ROSWELL ROAD
BUILDING 200
ATLANTA, GEORGIA 30350
(770) 399-9595
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER* DESCRIPTION
- --------------- -----------
<S> <C>
4(c) Amended and Restated 1992 Incentive Plan, as
amended.
5 Opinion of Alston & Bird regarding the legality
of the securities being registered.
23(a) Consent of Alston & Bird (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (contained on page II-6).
</TABLE>
*Exhibits are numbered in accordance with Item 601 of Regulation S-K.
<PAGE> 1
EXHIBIT 4(C)
Amended and Restated 1992 Incentive Plan, as amended.
<PAGE> 2
LONGHORN STEAKS, INC.
AMENDED AND RESTATED
1992 INCENTIVE PLAN
ARTICLE I
GENERAL
1.1 Purpose of the Plan.
The purpose of the Longhorn Steaks, Inc. 1992 Incentive Plan (the "Plan") is to
assist Longhorn Steaks, Inc. (the "Company") in securing and retaining Key
Employees of outstanding ability by making it possible to offer them an
increased incentive to join or continue in the service of the Company and to
increase their efforts for its welfare through participation or increased
participation in the ownership and growth of the Company.
1.2 Definitions.
(a) "Acceleration Event" means any event which in the opinion of
the Board of Directors of the Company is likely to lead to changes in control
of the beneficial ownership of the equity securities of the Company, whether or
not such change in control actually occurs.
(b) "Board of Directors" or "Board" means the Board of Directors
of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee referred to in Section 1.3.
(e) "Common Stock" means the common stock of the Company.
(f) "Exchange Act" means the Securities and Exchange Act of 1934,
as amended.
(g) "Fair Market Value" means the closing price of the shares on a
national securities exchange (as such term is used in Section 6 of the Exchange
Act) on which the Common Stock is primarily traded on the day on which such
value is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National Quotation
Bureau, Inc. or other national quotation service. If the shares of Common Stock
are traded in the over-the-counter market, "fair market value" means the
closing "asked" price of the shares in the over-the-counter market on the day
on which such value is to be determined or, if such "asked" price is not
available, the last sales price on such day or, if no shares were traded on
such day, on the next preceding day on which the shares were traded, as
reported by the National Association of Securities Dealers Automatic Quotation
System (NASDAQ) or other national quotation service. Nevertheless, if the Board
of Directors determines that the fair market value of the Common Stock cannot
be accurately determined pursuant to the methodologies described above or if
shares of Common Stock are not traded on an exchange or in the over-the-counter
market, Fair Market Value shall be the value determined by the Board of
Directors or Committee administering the Plan, taking into consideration those
factors affecting or reflecting value which they deem appropriate.
(h) "Incentive Stock Option" means an option to purchase shares of
Common Stock which is intended to qualify as an incentive stock option as
defined in Section 422 of the Code.
(i) "Key Employee" means any person, including officers and
directors in the regular employment of the Company or its subsidiaries, who is
designated a Key Employee by the Committee and is or is expected to be
primarily responsible for or to contribute significantly to the management,
growth,
<PAGE> 3
or supervision of some part or all of the business of the Company or its
subsidiaries. The power to determine who is and who is not a Key Employee is
reserved solely for the Committee. For purposes of granting Nonqualified Stock
Options (See Article III) and the granting of Stock Appreciation Rights in
conjunction with Nonqualified Stock Options (See Article IV) members of the
Board who are not in the regular employment of the Company or its Subsidiaries
may also be designated as a Key Employee under the Plan. Notwithstanding the
foregoing, members of the Board who are also on the Committee are not eligible
to participate in the Plan (See Section 1.3).
(j) "Nonqualified Stock Option" means an option to purchase shares
of Common Stock which is not intended to qualify as an incentive stock option
as defined in Section 422 of the Code.
(k) "Option" means an Incentive Stock Option or a Nonqualified
Stock Option.
(l) "Optionee" means a Key Employee to whom an Option is granted
under the Plan.
(m) "Parent" means any corporation which qualifies as a parent of
a corporation under the definition of "parent corporation" contained in Section
424(e) of the Code.
(n) "Related Option" means the Option granted in connection with a
specified Stock Appreciation Right.
(o) "Right Period" means the period during which a Stock
Appreciation Right may be exercised.
(p) "Stock Appreciation Right" shall have the meaning stated in
Article IV of the Plan.
(q) "Subsidiary" means any corporation which qualifies as a
subsidiary of a corporation under the definition of "subsidiary corporation"
contained in Section 424(f) of the Code.
(r) "Term" means the period during which a particular Option may
be exercised as determined by the Committee and as provided in the option
agreement.
1.3 Administration of the Plan.
The Plan shall be administered by the Stock Option Committee (the "Committee")
appointed by the Board of Directors consisting of at least two members from the
Board of Directors. No person serving on the Committee may have been granted or
awarded equity securities under any employee benefit plan of the Company
(including Options under this Plan) or under any employee benefit plan of any
of its affiliates during the one-year period prior to service on the Committee.
Furthermore, no member of the Committee shall be eligible to participate in the
Plan or in any other employee benefit plan of the Company or any of its
affiliates at the time they are members of the Committee. However, the
foregoing restrictions shall not prohibit any person who serves on the
Committee from participation in any employee benefit plan of the Company or any
of its affiliates which would not disqualify such director from being a
"disinterested person" under Rule 16b-3(c)(2) promulgated under Section 16(b)
of the Exchange Act. In the absence of an appointment of a Committee, the Board
shall serve as the Committee. Subject to the control of the Board, and without
limiting the control over decisions described in Section 1.7, the Committee
shall have the power to interpret and apply the Plan and to make regulations
for carrying out its purpose. More particularly, the Committee shall determine
which Key Employees shall be granted Options and the terms of such Options.
When granting Options, the Committee shall designate the Option as either an
Incentive Stock Option or a Nonqualified Stock Option. The Committee shall also
designate whether the Option is granted with Stock Appreciation Rights.
Determinations by the Committee under the Plan (including, without limitation,
determinations of the person to receive Options, the form, amount and timing of
such Options, and the terms and provisions of such Options and the agreements
evidencing same) need not be uniform and may be made by it selectively among
persons who receive, or are eligible to receive, Options
<PAGE> 4
under the Plan, whether or not such persons are similarly situated. In serving
on the Committee, members thereof shall be considered to be acting in their
capacity as members of the Board of Directors and shall be entitled to all
rights of indemnification provided by the Bylaws of the Company or otherwise to
members of the Board of Directors.
1.4 Shares Subject to the Plan.
The total number of shares that may be purchased pursuant to Options or
transferred pursuant to the exercise of Stock Appreciation Rights under the
Plan shall not exceed Five Hundred Thousand (500,000) shares of Common Stock.
Shares subject to the Options which terminate or expire prior to exercise shall
be available for future Options under the Plan without again being charged
against the limitation of Five Hundred Thousand (500,000) shares set forth
above. Shares represented by an unexercised Option surrendered upon an exercise
of Stock Appreciation Rights including, without duplication, any shares issued
in payment of any Stock Appreciation Rights, shall be deducted from the
aggregate and shall not be available for further Options hereunder. Shares
issued pursuant to the Plan may be either unissued shares of Common Stock or
reacquired shares of Common Stock held in treasury.
1.5 Terms and Conditions of Options.
All Options shall be evidenced by agreements in such form as the Committee
shall approve from time to time subject to the provisions of Article II and
Article III, as appropriate, and the following provisions:
(a) Exercise Price. Except as provided in Section 3.1, the
exercise price of the Option shall not be less than the Fair Market Value (as
determined by the Committee) of the Common Stock at the time the Option is
granted.
(b) Exercise. The Committee shall determine whether the Option
shall be exercisable in full at any time during the Term or in cumulative or
noncumulative installments during the Term.
(c) Termination of Employment. An Optionee's Option shall expire
on the expiration of the Term specified in Section 2.1 or 3.1 as the case may
be, or upon the occurrence of such events as are specified in the agreement. If
the option agreement permits exercise of the Option after termination of
employment or after termination of service on the Board, the Optionee may
exercise the Option only with respect to the shares which could have been
purchased by the Optionee at the date of termination of employment or
termination of service on the Board. However, the Committee may, but is not
required to, waive any requirements made pursuant to Section 1.5(b) so that
some or all of the shares subject to the Option may be exercised within the
time limitation described in this subsection. An Optionee's employment shall be
deemed to terminate on the last date for which he receives a regular wage or
salary payment. An Optionee's service on the Board shall be deemed to terminate
immediately after the last meeting of the Board or any committee thereof in
which the Optionee participates as a director or, if later, upon the date of
his resignation, removal or the election of his successor. Whether military,
government or other service or other leave of absence shall constitute a
termination of employment shall be determined in each case by the Committee at
its discretion, and any determination by the Committee shall be final and
conclusive. A termination of employment shall not occur where the Optionee
transfers from the Company to one of its Subsidiaries or transfers from a
Subsidiary to the Company or transfers between Subsidiaries.
(d) Death or Disability. Upon termination of an Optionee's
employment or service on the Board by reason of death or disability (as
determined by the Committee consistent with the definition of Section 422(c)(6)
of the Code), the Option shall expire on the earlier of the expiration of (i)
the date specified in the option agreement which in no event shall be later
than 12 months after the date of such termination, or (ii) the Term specified
in Section 2.1 or 3.1 as the case may be. The Optionee or his successor in
interest, as the case may be, may exercise the Option only as to the shares
that could have been purchased by the Optionee at the date of his termination
of employment. However, the Committee may, but is not required to, waive any
requirements made pursuant to Section 1.5(b) so that some or all of the
<PAGE> 5
shares subject to the Option may be exercised within the time limitation
described in this subsection. In the case of Options granted to directors who
are not employees of the Company or its Subsidiary, the Committee shall
establish such provisions regarding termination as it shall determine in its
sole discretion.
(e) Payment. Payment for shares as to which an Option is exercised
shall be made in such manner and at such time or times as shall be provided in
the option agreement, including cash, Common Stock of the Company which was
previously acquired by the Optionee, or any combination thereof. The Fair
Market Value of the surrendered Common Stock as of the date of exercise shall
be determined in valuing Common Stock used in payment for Options.
(f) Nontransferability. No Option granted under the Plan shall be
transferable other than by will or the laws of descent and distribution. During
the lifetime of the Optionee, an Option shall be exercisable only by the
Optionee.
(g) Additional Provisions. Each option agreement may contain such
other terms and conditions not inconsistent with the provisions of the Plan,
including the award of cash amounts, as the Committee may deem appropriate from
time to time.
1.6 Stock Adjustments; Mergers.
(a) Generally. Notwithstanding Section 1.4, in the event that
after February 17, 1992 the outstanding shares are increased or decreased or
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of any other corporation by reason of any merger,
sale of stock, consolidation, liquidation, recapitalization, reclassification,
stock split up, combination of shares, share exchange, stock dividend, or
transaction having similar effect, the total number of shares set forth in
Section 1.4 shall be proportionately and appropriately adjusted by the
Committee.
(b) Options and Stock Appreciation Rights. Following a transaction
described in subsection (a) above occurring after February 17, 1992, if the
Company continues in existence, (i) the number and kind of shares that are
subject to any Option and the option price per share shall be proportionately
and appropriately adjusted without any change in the aggregate price to be paid
therefor upon exercise of the Option, and (ii) the Committee may make such
adjustments in the number and kind of Stock Appreciation Rights as it shall
deem appropriate in the circumstances. If the Company will not remain in
existence or substantially all of its Common Stock will be purchased by a
single purchaser or group of purchasers acting together, then the Committee may
(i) declare that all Options and Stock Appreciation Rights shall terminate 30
days after the Committee gives written notice to all Optionees of their
immediate right to exercise all Options and Stock Appreciation Rights then
outstanding (without regard to limitations on exercise otherwise contained in
the Options), or (ii) notify all Optionees that all Options and Stock
Appreciation Rights granted under the Plan shall apply with appropriate
adjustments as determined by the Committee to the securities of the successor
corporation to which holders of the numbers of shares subject to such Options
and Stock Appreciation Rights would have been entitled, or (iii) take action
that is some combination of aspects of (i) and (ii). The determination by the
Committee as to the terms of any of the foregoing adjustments shall be
conclusive and binding. Any fractional shares resulting from any of the
foregoing adjustments under this section shall be disregarded and eliminated.
1.7 Acceleration Event.
If an Acceleration Event occurs in the opinion of the Committee, based on
circumstances known to it, the Committee may declare that any or all Options
and Stock Appreciation Rights granted under the Plan shall become exercisable
immediately, notwithstanding the provisions of the respective agreements
granting any such Options.
1.8 Notification of Exercise.
<PAGE> 6
Options shall be exercised by written notice directed to the Secretary of the
Company at the principal executive offices of the Company. Such written notice
shall be accompanied by any payment required pursuant to Section 1.5(e).
Exercise by an Optionee's heir or the representative of his estate shall be
accompanied by evidence of his authority to so act in form reasonably
satisfactory to the Company.
1.9 Compliance with Rule 16b-3.
It is intended that the provisions of the Plan and any Option shall comply in
all respects with the terms and conditions of Rule 16b-3 under the Exchange
Act, as in effect on the effective date of the Plan and as amended, or any
successor provisions, as it relates to persons subject to the reporting
requirements of Section 16(a) of the Exchange Act. Any agreement granting an
Option shall contain such provisions as are necessary or appropriate to assure
such compliance. To the extent that any provision hereof is found not to be in
compliance with such Rule, such provision shall be deemed to be modified so as
to be in compliance with such Rule, or if such modification is not possible,
shall be deemed to be null and void, as it relates to such Optionee.
ARTICLE II
INCENTIVE STOCK OPTIONS
2.1 Terms of Incentive Stock Options.
Each Incentive Stock Option granted under the Plan shall be exercisable only
during a Term fixed by the Committee; provided, however, that the Term shall
end no later than 10 years after the date the Incentive Stock Option is
granted.
2.2 Grantees.
Incentive Stock Options shall be granted solely to Key Employees who are in the
regular employ of the Company or its Subsidiaries and may not be granted to Key
Employees who serve the Company solely as a director.
2.3 Limitation on Options.
The aggregate Fair Market Value of Common Stock (determined at the time the
Incentive Stock Option is granted) subject to Incentive Stock Options granted
to a Key Employee under all plans of the Key Employee's employer corporation
and its Parent or Subsidiary corporations and that become exercisable for the
first time by such Key Employee during any calendar year may not exceed
$100,000.
2.4 Special Rule for Ten Percent Shareholder.
If at the time an Incentive Stock Option is granted, an employee owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of his employer corporation or of its Parent or any of its Subsidiaries,
as determined using the attribution rules of Section 424(d) of the Code, then
the terms of the Incentive Stock Option shall specify that the option price
shall be at least 110% of the Fair Market Value of the stock subject to the
Incentive Stock Option, and such Incentive Stock Option shall not be
exercisable after the expiration of five years from the date such Incentive
Stock Option is granted.
2.5 Interpretation.
In interpreting this Article II of the Plan and the provisions of individual
option agreements, the Committee shall be governed by the principles and
requirements of Sections 421, 422 and 424 of the Code, and applicable Treasury
Regulations.
<PAGE> 7
ARTICLE III
NONQUALIFIED STOCK OPTIONS
3.1 Terms and Conditions of Options.
In addition to the requirements of Section 1.5, each Nonqualified Stock Option
granted under the Plan shall be subject to the following provisions:
(a) Term. Each Nonqualified Stock Option granted under the plan
shall be exercisable only during a term fixed by the Committee.
(b) Exercise Price. The Company may elect to grant Nonqualified
Stock Options at a price less than the Fair Market Value of the Common Stock at
the time the Option is granted.
3.2 Section 83(b) Election.
The Company recognizes that certain persons who receive Nonqualified Stock
Options may be subject to restrictions regarding their right to trade Common
Stock under applicable securities laws. Such restrictions may cause Optionee's
exercising such Options not to be taxable under the provisions of Section 83(c)
of the Code. Accordingly, Optionees exercising such Nonqualified Stock Options
may consider making an election to be taxed upon exercise of the Option under
Section 83(b) of the Code and to effect such election will file such election
with the Internal Revenue Service within thirty (30) days of exercise of the
Option and otherwise in accordance with applicable Treasury Regulations.
ARTICLE IV
STOCK APPRECIATION RIGHTS
4.1 Terms and Conditions of Stock Appreciation Rights.
(a) Generally. Stock Appreciation Rights ("SAR") may be, but are
not required to be, granted by the Committee in connection with grant of an
Option. All SARs shall be in such form as the Committee may from time to time
determine and shall be subject to the terms and conditions set forth in this
Article IV.
(b) Exercise. A Stock Appreciation Right may be exercised in whole
or in part as provided in an agreement evidencing the Stock Appreciation Right
and, subject to the provisions of the agreement, entitles its Optionee to
receive, without any payment to the Company (other than required tax
withholding amounts), either cash or that number of shares of Common Stock
(equal to the highest whole number of shares), or a combination thereof, in an
amount having a Fair Market Value as of the date of exercise not to exceed the
amount determined by multiplying (i) the number of shares of Common Stock
subject to the portion of the Stock Appreciation Right being exercised, by (ii)
an amount equal to the excess of (A) the Fair Market Value per share as of the
date of exercise of the Stock Appreciation Right over (B) the option price of
the Common Stock subject to the Related Option.
(c) Term. The Right Period shall be determined by the Committee
and specifically set forth in the agreement; provided, however,
(i) a Stock Appreciation Right will expire no later than
the date the Related Option expires;
(ii) a Stock Appreciation Right may be exercised only when
the Fair Market Value of a share of Common Stock exceeds the option price as
provided in the Related Option; and
<PAGE> 8
(iii) a Stock Appreciation Right may be exercised only when
and to the extent the Related Option is exercisable.
4.2 Effect Upon Related Option.
The exercise, in whole or in part, of a Stock Appreciation Right shall cause a
reduction in the number of shares of Common Stock subject to the Related Option
equal to the number of shares with respect to which the Stock Appreciation
Right is exercised. Similarly, the exercise, in whole or in part, of a Related
Option shall cause a reduction in the number of shares of Common Stock subject
to the Stock Appreciation Right equal to the number of shares of Common Stock
with respect to which the Related Option is exercised.
4.3 Payment Restrictions.
(a) Approval of Payment Election. To the extent required to
satisfy the conditions of Rule 16b-3(e) under the Exchange Act, or any
successor provision, or conditions otherwise provided in the agreement, the
Committee shall have the sole discretion to consent to or disapprove the
election by any Optionee to receive cash in full or partial settlement of a
Stock Appreciation Right. In cases in which an election of settlement in cash
has been made, the Committee may consent to, or disapprove, such election at
any time after such election, or within such period for taking action as is
specified in the election, and failure to give consent shall constitute
disapproval. Consent may be given in whole or as to a portion of the Stock
Appreciation Right surrendered by the Optionee. To the extent that the election
to receive cash is disapproved, the Stock Appreciation Right shall be deemed to
have been exercised for shares of Common Stock, or, if so specified in the
notice of exercise and election, not to have been exercised to the extent the
election to receive cash is disapproved.
(b) Timing of Election to Receive Cash. To the extent required to
satisfy the conditions of Rule 16b-3(e) under the Exchange Act, or any
successor provision, or conditions otherwise provided in the agreement, any
election by a Optionee to receive cash in full or partial settlement of a Stock
Appreciation Right, as well as any exercise by him of the Stock Appreciation
Right for such cash, shall be made only during the period beginning on the
third (3rd) business day following the date of release by the Company of
quarterly or annual statements of sales and earnings and ending on the twelfth
(12th) business day following such date.
4.4 Notification of Exercise.
Stock Appreciation Rights shall be exercised by written notice directed to the
office or person designated by the Committee. Such written notice shall state
the manner of payment elected by the Optionee.
4.5 Nontransferable.
A Stock Appreciation Right is transferable only when and to the extend the
Related Option is transferable.
4.6 Other Terms and Conditions.
Agreements reflecting Stock Appreciation Rights may contain such other terms
and conditions not inconsistent with the provisions of the Plan as the
Committee may deem appropriate from time to time, including a requirement that
a Stock Appreciation Right shall only be exercisable when approved by the
Committee.
ARTICLE V
ADDITIONAL PROVISIONS
<PAGE> 9
5.1 Stockholder Approval.
The Plan shall be submitted for the approval of the stockholders of the Company
at the first meeting of stockholders held subsequent to the adoption of the
Plan or by unanimous written consent and in all events within one year of its
approval by the Board of Directors. If at said meeting, or by such consent, the
holders of a majority of the securities of the Company present, or represented,
and entitled to vote do not approve the Plan, the Plan shall terminate.
5.2 Compliance with Other Laws and Regulations.
The Plan, the grant and exercise of Options hereunder, and the obligation of
the Company to sell and deliver shares under such Options, shall be subject to
all applicable Federal and state laws, rules, and regulations and to such
approvals by any government or regulatory agency as may be required. The
Company shall not be required to issue or deliver any certificates for shares
of Common Stock prior to (a) the listing of such shares on any stock exchange
on which the Common Stock may then be listed and (b) the completion of any
registration or qualification of such shares under any Federal or state law, or
any ruling or regulation of any government body which the Company shall, in its
sole discretion, determine to be necessary or advisable.
5.3 Amendments.
The Board of Directors may discontinue the Plan at any time, and may amend it
from time to time. However, except as permitted under Section 1.6, no
amendment, without approval by stockholders, may (a) increase the total number
of shares which may be issued under the Plan or to any individual under the
Plan, (b) reduce the Option price for shares which may be purchased pursuant to
Options under Articles II or III of the Plan, (c) extend the period during
which Options may be granted, or (d) change the class of employees to whom
Options may be granted. Other than as expressly permitted under the Plan, no
outstanding Option may be revoked or altered in a manner unfavorable to the
Optionee without the consent of the Optionee.
5.4 No Rights As Shareholder.
No Optionee shall have any rights as a shareholder with respect to any share
subject to his or her Option prior to the date of issuance to him or her of a
certificate or certificates for such shares.
5.5 Withholding.
Whenever the Company proposes or is required to issue or transfer shares of
Common Stock under the Plan, the Company shall have the right to require the
Optionee to remit to the Company an amount sufficient to satisfy any Federal,
state or local withholding tax liability in such form as the Company may
determine or accept in its sole discretion, including payment by surrender or
retention of shares of Common Stock prior to the delivery of any certificate or
certificates for such shares. Whenever under the Plan payments are to be made
in cash, such payments shall be made net of an amount sufficient to satisfy any
Federal, state, or local withholding tax liability.
5.6 Continued Employment Not Presumed.
This Plan and any document describing this Plan and the grant of any Option
hereunder shall not give any Optionee or other employee or Director a right to
continued employment or directorship by the Company or its Subsidiaries or
affect the right of the Company or its Subsidiaries to terminate the employment
or directorship of any such person with or without cause.
5.7 Effective Date; Duration.
<PAGE> 10
The Plan shall become effective as of February 13, 1992, subject to stockholder
approval pursuant to Section 5.1 and shall expire on February 1, 2002. No
Options may be granted under the Plan after February 1, 2002, but Options
granted on or before that date may be exercised according to the terms of the
related agreements and shall continue to be governed by and interpreted
consistent with the terms hereof.
* * *
<PAGE> 11
AMENDMENT NO. 1 TO THE
LONGHORN STEAKS, INC. AMENDED AND
RESTATED 1992 INCENTIVE PLAN
THIS AMENDMENT NO. 1 (this "Amendment") to the Longhorn Steaks, Inc.
Amended and Restated 1992 Incentive Plan (the "Plan") is made this 28th day of
March, 1995, to be conditioned upon the approval by the shareholders of the
Company within one year from the date of adoption of this Amendment by the
Board of Directors.
The Board of Directors of Longhorn Steaks, Inc. (the "Company") has
determined that it is in the best interests of the Company and its shareholders
to increase the number of shares of the Company's common stocks subject to the
Plan to a total of 1,000,000 shares.
The Board of Directors intends that the amendment to the Plan provided
in this Amendment No. 1 shall be expressly conditioned upon the approval of
this Amendment No. 1 by the shareholders of the Company within one year from
the date of adoption of this Amendment by the Board of Directors.
1.
A. Section 1.4 of the Plan is hereby amended by deleting Section
1.4 in its entirety and substituting in lieu thereof a new Section 1.4 to read
as follows:
"1.4 Shares Subject to the Plan.
The total number of shares that may be purchased pursuant to
Options or transferred pursuant to the exercise of Stock
Appreciation Rights under the Plan shall not exceed One
Million (1,000,000) shares of Common Stock. Shares subject to
the Options which terminate or expire prior to exercise shall
be available for future Options under the Plan without again
being charged against the limitation of One Million
(1,000,000) shares set forth above. Shares represented by an
unexercised Option surrendered upon an exercise of Stock
Appreciation Rights including, without duplication, any shares
issued in payment of any Stock Appreciation Rights, shall be
deducted from the aggregate and shall not be available for
further Options hereunder. Shares issued pursuant to the Plan
may be either unissued shares of Common Stock or reacquired
shares of Common Stock held in treasury."
2.
If this Amendment is not approved by the shareholders of the Company
within one year from the date of adoption of this Amendment by the Board of
Directors of the Company, then this Amendment shall be null and void and of no
force or effect.
3.
Except as expressly amended hereby, the terms of the Plan shall be and
remain unamended and the Plan as amended shall remain in full force and effect.
<PAGE> 12
AMENDMENT NO. 2 TO THE
LONGHORN STEAKS, INC. AMENDED AND
RESTATED 1992 INCENTIVE PLAN
THIS AMENDMENT NO. 2 (this "Amendment") to the Longhorn Steaks, Inc.
Amended and Restated 1992 Incentive Plan (the "Plan") is made this 26th day of
February, 1996, to be conditioned upon the approval by the shareholders of the
Company within one year from the date of adoption of this Amendment by the
Board of Directors.
The Board of Directors of Longhorn Steaks, Inc. (the "Company") has
determined that it is in the best interests of the Company and its shareholders
to increase the number of shares of the Company's common stocks subject to the
Plan to a total of 1,500,000 shares.
The Board of Directors intends that the amendment to the Plan provided
in this Amendment No. 2 shall be expressly conditioned upon the approval of
this Amendment No. 2 by the shareholders of the Company within one year from
the date of adoption of this Amendment by the Board of Directors.
1.
A. Section 1.4 of the Plan is hereby amended by deleting Section
1.4 in its entirety and substituting in lieu thereof a new Section 1.4 to read
as follows:
"1.4 Shares Subject to the Plan.
The total number of shares that may be purchased pursuant to
Options or transferred pursuant to the exercise of Stock
Appreciation Rights under the Plan shall not exceed One
Million Five Hundred Thousand (1,500,000) shares of Common
Stock. Shares subject to the Options which terminate or expire
prior to exercise shall be available for future Options under
the Plan without again being charged against the limitation of
One Million Five Hundred Thousand (1,500,000) shares set forth
above. Shares represented by an unexercised Option surrendered
upon an exercise of Stock Appreciation Rights including,
without duplication, any shares issued in payment of any Stock
Appreciation Rights, shall be deducted from the aggregate and
shall not be available for further Options hereunder. Shares
issued pursuant to the Plan may be either unissued shares of
Common Stock or reacquired shares of Common Stock held in
treasury."
2.
If this Amendment is not approved by the shareholders of the Company
within one year from the date of adoption of this Amendment by the Board of
Directors of the Company, then this Amendment shall be null and void and of no
force or effect.
3.
Except as expressly amended hereby, the terms of the Plan shall be and
remain unamended and the Plan as amended shall remain in full force and effect.
<PAGE> 1
EXHIBIT 5
Opinion of Alston & Bird regarding the legality of
the securities being registered.
<PAGE> 2
ALSTON&BIRD
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777 Telex: 54-2996
September 13, 1996
Longhorn Steaks, Inc.
8215 Roswell Road
Building 200
Atlanta, Georgia 30350
Gentlemen:
This opinion is given in connection with the filing by Longhorn
Steaks, Inc. (the "Company") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") with respect to up to 500,000 shares (the
"Shares") of the no par value Common Stock of the Company (the "Common Stock")
to be issued to employees and directors of the Company pursuant to the Longhorn
Steaks, Inc. Amended and Restated 1992 Incentive Plan, as amended (the "Plan").
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including the Articles of Incorporation and Bylaws of the Company, as amended,
and resolutions of the Board of Directors of the Company authorizing the Plan
and authorizing amendments to the Plan.
For purposes of this opinion, we assume that all options and stock
appreciation rights have been or will be granted in accordance with the Plan.
Based upon the foregoing, we are of the opinion that the Shares to be
issued upon the exercise of options or stock appreciation rights granted under
the Plan, upon receipt in full by the Company of the purchase price prescribed
for each Share subject to each option, will be duly authorized, legally issued,
and fully paid and non-assessable under the Georgia Business Corporation Code
as in effect on this date.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
Sincerely yours,
ALSTON & BIRD
By: /s/ William H. Avery
-------------------------------
William H. Avery
601 Pennsylvania Avenue, N.W.
North Building, Suite 250
Washington, D.C. 20004-2601
<PAGE> 1
EXHIBIT 23(A)
Consent of Alston & Bird.
(Included in Exhibit 5)
<PAGE> 1
EXHIBIT 23(B)
Consent of KPMG Peat Marwick LLP
<PAGE> 2
The Board of Directors
Longhorn Steaks, Inc.
We consent to incorporation by reference in this Registration
Statement on Form S-8 of Longhorn Steaks, Inc. of our report dated February 2,
1996, relating to the consolidated balance sheets of Longhorn Steaks, Inc. and
subsidiaries as of December 31, 1995 and 1994 and the related consolidated
statements of earnings, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1995, which report appears in
the December 31, 1995 Annual Report on Form 10-K of Longhorn Steaks, Inc.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
September 11, 1996
