<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)
BUGABOO CREEK STEAK HOUSE, INC.
1994 STOCK 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 1,406 $18.67 $ 26,250.02 $ 10
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 165,472 $21.33 $3,529,517.76 $1,218
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 1,125 $22.22 $ 24,997.50 $ 9
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 7,418 $22.67 $ 168,166.06 $ 58
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 11,250 $23.47 $ 264,037.50 $ 92
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 94,579 $17.375 $1,643,310.125 $ 567
- --------------------------------------------------------------------------------------------------------------------------
Total 281,250 $1,954
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
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(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 Bugaboo Creek Steak House, Inc.
1994 Stock Plan.
(2) Based on the average of the high and low prices reported on The Nasdaq
Stock Market's National Market on September 11, 1996 or the option
exercise price, as applicable, 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.
<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) Bugaboo Creek Steak House, Inc. 1994 Stock Plan.
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 and September 13, 1996
- ---------------------------- Director
Richard E. Rivera
Chairman and Director September 13, 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>
II-6
<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) Bugaboo Creek Steak House, Inc. 1994 Stock Plan.
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)
Bugaboo Creek Steak House, Inc. 1994 Stock Plan.
<PAGE> 2
BUGABOO CREEK STEAK HOUSE, INC.
1994 STOCK PLAN
1. PURPOSE
Bugaboo Creek Steak House, Inc. (the "Company") desires to attract and
retain the best available talent and encourage the highest level of performance
by employees and other persons who perform services for the Company in order to
serve the best interests of the Company and stockholders. By affording eligible
persons the opportunity to acquire proprietary interests in the Company and by
providing them incentives to put forth maximum efforts for the success of the
Company's business, the Bugaboo Creek Steak House, Inc. 1994 Stock Plan (the
"1994 Plan") is expected to contribute to the attainment of those objectives.
2. SCOPE AND DURATION
Awards under the 1994 Plan may be granted in the form of incentive
stock options ("incentive stock options") as provided in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), in the form of
non-qualified stock options ("non-qualified options") (unless otherwise
indicated, references in the 1994 Plan to "options" include incentive stock
options and non-qualified options), in the form of shares of the common stock,
par value $.01 per share, of the Company (the "Common Stock") that are
restricted as provided in paragraph 11 ("restricted shares"), in the form of
units to acquire shares of Common Stock that are restricted as provided in
paragraph 11 ("restricted units") or in the form of stock appreciation rights
("rights") or limited stock appreciation rights ("limited rights"). The maximum
aggregate number of shares of Common Stock as to which awards may be granted
from time to time under the 1994 Plan is 500,000 shares. The shares available
may be in whole or in part, as the Board of Directors of the Company (the
"Board of Directors") shall from time to time determine, authorized but
unissued shares or issued shares reacquired by the Company. Unless otherwise
provided by the Stock Committee, shares covered by expired or terminated
options and forfeited restricted shares or restricted units will be available
for subsequent awards under the 1994 Plan, except to the extent prohibited by
Rule 16b-3, as amended, or any successor provision thereto ("Rule 16b-3"), or
other applicable rules under Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). Any shares issued by the Company in
respect of the assumption or substitution of outstanding awards from a
corporation or other business entity by the Company shall not reduce the number
of shares available for awards under the 1994 Plan. No incentive stock option
shall be granted more than 10 years after the Effective Date.
3. ADMINISTRATION
The 1994 Plan shall be administered by the Stock Committee of the
Board of Directors, consisting of not less than two members who shall qualify
to administer the
<PAGE> 3
1994 Plan as contemplated by Rule 16b-3 (unless Rule 16b-3 shall permit fewer
than two members to so qualify); provided, however, that, with respect to
individual participants who are not subject to Section 16(b) of the Exchange
Act, the Stock Committee of the Board of Directors may delegate authority to
administer the 1994 Plan to another committee of directors (the "Employee
Committee") which committee may include directors who do not meet the standards
set forth immediately above. Unless the context otherwise requires, the term
"Committee" shall refer to both the Stock Committee and the Employee Committee.
The Committee shall have plenary authority in its discretion, subject
to and not inconsistent with the express provisions of the 1994 Plan to grant
options, to determine the purchase price of the shares of Common Stock covered
by each option, the term of each option, the persons to whom, and the time or
times at which options shall be granted, and the number of shares to be covered
by each option; to designate options as incentive stock options or
non-qualified options and to determine which options shall be accompanied by
rights and limited rights; to grant rights and to determine the terms and
conditions applicable to such rights; to grant restricted shares and restricted
units and to determine the term of the restricted period and other conditions
applicable to such shares or units, the persons to whom, and the time or times
at which, restricted shares or restricted units shall be granted and the number
of shares or units to be covered by each grant; to interpret the 1994 Plan; to
prescribe, amend and rescind rules and regulations relating to the 1994 Plan;
to determine the terms and provisions of the option and rights agreements
(which need not be identical) and the restricted share and restricted units
agreements (which need not be identical) entered into in connection with awards
under the 1994 Plan; and to make all other determinations deemed necessary or
advisable for the administration of the 1994 Plan. The Committee may delegate
to one or more of its members or to one or more agents such administrative
duties as it may deem advisable, and the Committee or any person to whom it has
delegated duties as aforesaid may employ one or more persons to render advice
with respect to any responsibility the Committee or such person may have under
the 1994 Plan.
The Committee may employ attorneys, consultants, accountants or other
persons and the Committee, the Company and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all persons who have
received awards, the Company and all other interested persons. No member or
agent of the Committee shall be personally liable for any action, determination
or interpretation taken or made in good faith with respect to the 1994 Plan or
awards made thereunder, and all members and agents of the Committee shall be
fully indemnified and protected by the Company in respect of any such action,
determination or interpretation.
- 2 -
<PAGE> 4
4. ELIGIBILITY; FACTORS TO BE CONSIDERED IN GRANTING AWARDS
Awards will be limited to officers and other key employees of the
Company and its subsidiaries, and except in the case of incentive stock
options, any other non-employees who may provide services to the Company or its
subsidiaries (all such persons being hereinafter referred to as "employees").
In determining the employees to whom awards shall be granted and the number of
shares or units to be covered by each award, the Committee shall take into
account the nature of the employees' duties, their present and potential
contributions to the success of the Company and such other factors as it shall
deem relevant in connection with accomplishing the purposes of the 1994 Plan. A
director of the Company or of a subsidiary who is not also an employee of the
Company (or deemed to be an employee of the Company as provided above) win not
be eligible to receive an award.
Awards may be granted singly, in combination or in tandem and may be
made in combination or in tandem with, in replacement of, or as alternatives
to, awards or grants under any other employee plan maintained by the Company,
its present and future subsidiaries. An employee who has been granted an award
or awards under the 1994 Plan may be granted an additional award or awards,
subject to such limitations as may be imposed by the Code on the grant of
incentive stock options. No award of incentive stock options shall result in
the aggregate fair market value of Common Stock with respect to which incentive
stock options are exercisable for the first time by any employee during any
calendar year (determined at the time the incentive stock option is granted)
exceeding $100,000. The Committee, in its sole discretion, may grant to an
employee who has been granted an award under the 1994 Plan or any other
employee plan maintained by the Company or its subsidiaries, or any
predecessors or successors thereto, in exchange for the surrender and
cancellation of such award, a new award in the same or a different form and
containing such terms, including without limitation a price which is different
(either higher or lower) than any price provided in the award so surrendered
and cancelled, as the Committee may deem appropriate.
5. OPTION PRICE
The purchase price of the Common Stock covered by each option shall be
determined by the Committee, but in the case of an incentive stock option shall
not be less than 100% of the fair market value (110% in the case of a 10%
shareholder of the Company) of the Common Stock on the date the option is
granted, which shall be deemed to equal the closing price of the Common Stock
as quoted by NASDAQ (the "Market Value") for the date on which the option is
granted, or if there are no sales on such date, on the next preceding day on
which there were sales. The Committee shall determine the date on which an
option is granted, provided that such date is consistent with the Code and any
applicable rules or regulations thereunder. In the absence of such
determination, the date on which the Committee adopts a resolution granting an
option shall be considered the date on which such option is granted, provided
the employee to whom the option is granted is promptly notified of the grant
and an option agreement is duly
- 3 -
<PAGE> 5
executed as of the date of the resolution. The purchase price of the Common
Stock covered by each option shall also be applicable in connection with the
exercise of any related right or limited right. The purchase price shall be
subject to adjustment as provided in paragraph 14.
6. TERMS OF OPTIONS
The term of each incentive stock option granted under the 1994 Plan
shall not be more than 10 years (5 years in the case of a 10% shareholder of
the Company) from the date of grant, as the Committee shall determine, subject
to earlier termination as provided in paragraphs 12 and 13. The term of each
non-qualified stock option granted under the 1994 Plan shall be such period of
time as the Committee shall determine, subject to earlier termination as
provided in paragraphs 12 and 13.
7. EXERCISE OF OPTIONS; LOANS
(a) Subject to the provisions of the 1994 Plan, an option granted
under the 1994 Plan shall become vested as determined by the Committee. The
Committee may, in its discretion, determine as a condition of any option, that
all or a stated percentage of the options shall become exercisable, in
installments or otherwise, only after completion of a specified service
requirement. The Committee may also, in its discretion, accelerate the
exercisability of any option at any time and provide, in any option agreement,
that the option shall become immediately exercisable as to all shares of Common
Stock remaining subject to the option on or following either (i) the first
purchase of shares of Common Stock pursuant to a tender offer or exchange offer
(other than an offer by the Company or any of its subsidiaries) for all, or any
part of, the Common Stock ("Offer"), (ii) a change in control of the Company
(as defined in this paragraph), (iii) approval by the Company's stockholders of
a merger in which the Company does not survive as an independent, publicly
owned corporation, a consolidation, or a sale, exchange or other disposition of
all or substantially all the Company's assets, or (iv) a change in the
composition of the Board of Directors during any period of two consecutive
years such that individuals who at the beginning of such period were members of
the Board of Directors cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period (the date upon which an event described in clause (i),
(ii), (iii) or (iv) of this paragraph 7(a) occurs shall be referred to herein
as an "acceleration date"). A "change in control" is deemed to occur at the
time of any acquisition of voting securities of the Company by any person or
group (as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
but excluding (i) the Company or any of its subsidiaries, (ii) any person who
was an officer or director of the Company on the day immediately prior to the
Effective Date hereof, or (iii) any savings, pension or other benefits plan for
the benefit of employees of the Company or any of its subsidiaries, which
theretofore did not beneficially own voting securities representing more than
30% of the voting power of all outstanding voting securities of the Company, if
such
- 4 -
<PAGE> 6
acquisition results in such entity, person or group owning beneficially
securities representing more than 30% of the voting power of all outstanding
voting securities of the Company. As used herein, "voting power" means ordinary
voting power for the election of directors of the Company.
(b) An option may be exercised at any time or from time to time
(subject, in the case of an incentive stock option, to such restrictions as may
be imposed by the Code), as to any or all full shares as to which the option
has become exercisable. Notwithstanding the foregoing provision, no option may
be exercised without the prior consent of the Committee by an employee who is
subject to Section 16(b) of the Exchange Act until the expiration of six months
from the date of the grant of the option.
(c) The purchase price of the shares as to which an option is
exercised shall be paid in full at the time of exercise; payment may be made in
cash, which may be paid by check, or other instrument acceptable to the
Company, or, with the consent of the Committee, in shares of the Common Stock,
valued at the Market Value on the date of exercise, or if there were no sales
on such date, on the next preceding day on which there were sales or (if
permitted by the Committee and subject to such terms and conditions as it may
determine) by surrender of outstanding awards under the 1994 Plan. In addition,
any amount necessary to satisfy applicable federal, state or local tax
requirements shall be paid promptly upon notification of the amount due. The
Committee may permit such amount to be paid in shares of Common Stock
previously owned by the employee, or a portion of the shares of Common Stock
that otherwise would be distributed to such employee upon exercise of the
option, or a combination of cash and shares of such Common Stock.
(d) Except as provided in paragraphs 12 and 13, no option may be
exercised at any time unless the holder thereof is then an employee of or
performing services for the Company or one of its subsidiaries. For this
purpose, "subsidiary" shall include, as under Treasury Regulations Section
1.421-7(h)(3) and (4), Example (3), any corporation that is a subsidiary of the
Company during the entire portion of the requisite period of employment during
which it is the employer of the holder.
(e) The Committee, in its sole discretion, may elect, in lieu of
delivering all or a portion of the shares of Common Stock as to which an option
has been exercised, if the fair market value of the Common Stock exceeds the
exercise price of the option (i) to pay the employee in cash or in shares of
Common Stock, or a combination of cash and Common Stock, an amount equal to the
excess of (A) the Market Value on the exercise date of the shares of Common
Stock as to which such option has been exercised, or if there were no sales on
such date, on the next preceding day on which there were sales over (B) the
option price, or (ii) in the case of an option which is a non-qualified option,
to defer payment and to credit the amount of such excess on the Company's books
for the account of the optionee and either (a) to treat the amount in such
account as if it had been invested in the manner from time to time determined
by the Committee, with dividends or other income therein being deemed to have
been so reinvested or (b) for the
- 5 -
<PAGE> 7
Company's convenience, to contribute the amount credited to such account to a
trust, which may be revocable by the Company, for investment in the manner from
time to time determined by the Committee and set forth in the instrument
creating such trust; provided, however, that, to the extent required by Rule
16b-3 or other applicable rules under Section 16(b) of the Exchange Act, in
order to perfect the exemption provided thereunder for cash settlements of
stock appreciation rights, the Committee shall not exercise its discretion to
grant cash to any employee who is subject to the provisions of Section 16(b) of
the Exchange Act unless the exercise occurs during any period commencing on the
third business day following the date of release for publication of any annual
or quarterly summary statements of the Company's sales and earnings and ending
on the twelfth business day following such date (a "Window Period"). The
Committee's election pursuant to this subparagraph shall be made by giving
written notice of such election to the employee (or other person exercising the
option). Shares of Common Stock paid pursuant to this subparagraph will be
valued at the Market Value on the exercise date, or if there were no sales on
such date, on the next preceding day on which there were sales.
(f) Subject to any terms and conditions that the Committee may
determine in respect of the exercise of options involving the surrender of
outstanding awards, upon, but not until, the exercise of an option or portion
thereof in accordance with the 1994 Plan, the option agreement and such rules
and regulations as may be established by the Committee, the holder thereof
shall have the rights of a stockholder with respect to the shares issued as a
result of such exercise.
(g) The Company may make loans to such option holders as the
Committee, in its discretion, may determine (including a holder who is a
director or officer of the Company) in connection with the exercise of options
granted under the 1994 Plan; provided, however, that the Committee shall not
authorize the making of any loan where the possession of such discretion or the
making of such loan would result in a "modification" (as defined in Section 424
of the Code) of any incentive stock option. Such loans shall be subject to the
following terms and conditions and such other terms and conditions as the
Committee shall determine not inconsistent with the 1994 Plan. Such loans shall
bear interest at such rates as the Committee shall determine from time to time,
which rates may be below then current market rates (except in the case of
incentive stock options). In no event may any such loan exceed the fair market
value, at the date of exercise, of the shares covered by the option, or portion
thereof, exercised by the holder. No loan shall have an initial term exceeding
five years, but any such loan may be renewable at the discretion of the
Committee. When a loan shall have been made, shares of Common Stock having a
fair market value at least equal to the principal amount of the loan shall be
pledged by the holder to the Company as security for payment of the unpaid
balance of the loan. Every loan shall comply with all applicable laws,
regulations and rules of the Board of Governors of the Federal Reserve System
and any other governmental agency having jurisdiction.
8. AWARD AND EXERCISE OF RIGHTS
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<PAGE> 8
(a) A right may be awarded by the Committee in connection with any
option granted under the 1994 Plan (a "tandem right"), either at the time the
option is granted or thereafter at any time prior to the exercise, termination
or expiration of the option. A right may also be awarded separately (a
"free-standing right"). Each tandem right shall be subject to the same terms
and conditions as the related option and shall be exercisable only to the
extent the option is Exercisable.
The term of each freestanding right granted under the 1994 Plan shall
be such period of time as the Committee shall determine. Subject to the
provisions of the 1994 Plan, such right shall become vested as determined by
the Committee. Prior to becoming 100% vested, each freestanding right shall
become exercisable, in installments or otherwise, as the Committee shall
determine. The Committee may also, in its discretion, accelerate the
exercisability of any freestanding right at any time and provide, in the
agreement covering a freestanding right, that the right shall become
immediately exercisable on or following an acceleration date (as defined in
paragraph 7(a)).
No right shall be exercisable by an employee who is subject to the
provisions of Section 16(b) of the Exchange Act without the prior consent of
the Committee prior to the expiration of six months from the date the right is
awarded (and then, as to a tandem right, only to the extent the related option
is exercisable). Notwithstanding the foregoing, no right shall be exercisable
by an employee who is subject to the provisions of Section 16(b) of the
Exchange Act without the prior consent of the Committee prior to the expiration
of one year from the date of the initial sale of shares of Common Stock of the
Company to the public.
(b) A right shall entitle the employee upon exercise in accordance
with its terms (subject, in the case of a tandem right, to the surrender
unexercised of the related option or any portion or portions thereof which the
employee from time to time determines to surrender for this purpose) to
receive, subject to the provisions of the 1994 Plan and such rules and
regulations as from time to time may be established by the Committee, a payment
having an aggregate value equal to (A) the excess of (i) the fair market value
on the exercise date of one share over (ii) the option price per share, in the
case of a tandem right, or the price per share specified in the terms of the
right, in the case of a freestanding right, times (B) the number of shares with
respect to which the right shall have been exercised. The payment shall be made
in the form of all cash, all shares of Common Stock, or a combination thereof,
as elected by the employee, provided that, unless otherwise approved by the
Committee, the election by an employee who is subject to the provisions of
Section 16(b) of the Exchange Act to receive all or a part of a payment in
cash, as well as the exercise by the employee of the right for cash, shall be
made only during a Window Period (as defined in paragraph 7(e) hereof); and
provided further, that the Committee shall have sole discretion to consent to
or disapprove the election of an officer or director to receive all or part of
a payment in cash (which consent or disapproval may be given at any time after
the election to which it relates). The price per share specified in a
freestanding right shall be determined by the Committee but in no
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<PAGE> 9
event shall be less than the average of the daily closing prices for the Common
Stock as reported by NASDAQ during a period determined by the Committee in its
sole discretion that shall consist of any trading day or any number of
consecutive trading days, not exceeding 30, during the period of 30 trading
days ending on the trading day immediately preceding the date the right is
granted, provided that, in the absence of a different determination by the
Committee, the price per share shall be determined on the basis of a period
consisting of 30 trading days. Such price shall be subject to adjustment as
provided in paragraph 14. The Committee shall determine the date on which a
freestanding right is granted. In the absence of such determination, the date
on which the Committee adopts a resolution granting such right shall be
considered the date of grant, provided the employee is promptly notified of the
grant and an agreement is duly executed as of the date of the resolution.
If upon exercise of a right the employee is to receive a portion of
the payment in shares of Common Stock, the number of shares received shall be
determined by dividing such portion by the fair market value of a share on the
exercise date. The number of shares received may not exceed the number of
shares covered by any option or portion thereof surrendered. Cash will be paid
in lieu of any fractional share.
No payment will be required from the employee upon exercise of a
right, except that any amount necessary to satisfy applicable federal, state or
local tax requirements shall be withheld or paid promptly upon notification of
the amount due and prior to or concurrently with delivery of cash or a
certificate representing shares. The Committee may permit such amount to be
paid in shares of Common Stock previously owned by the employee, or a portion
of the shares of Common Stock that otherwise would be distributed to such
employee upon exercise of the right, or a combination of cash and shares of
such Common Stock.
(c) For purposes of this paragraph 8, the fair market value of a
share on any particular date shall mean the Market Value of such share on such
date, or if there are no sales on such date, on the next preceding day on which
there were sales; provided, however, that with respect to exercises of rights
by an employee who is subject to the provisions of Section 16(b) of the
Exchange Act during any Window Period, the Committee may prescribe, by rule of
general application, such other measure of fair market value per share as the
Committee may, in its discretion, determine but not in excess of the highest
sale price of the Common Stock during such Window Period and, in the case of
rights that relate to an incentive stock option, not in excess of the maximum
amount that would be permissible under Section 422 of the Code and the Treasury
Regulations thereunder without disqualifying such option as an incentive stock
option under Section 422.
(d) Upon exercise of a tandem right, the number of shares subject
to exercise under the related option shall automatically be reduced by the
number of shares represented by the option or portion thereof surrendered.
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<PAGE> 10
(e) A right related to an incentive stock option may only be
exercised if the fair market value of a share of Common Stock on the exercise
date exceeds the option price.
(f) Whether payments to employees upon exercise of tandem rights
related to non-qualified options or of freestanding rights are made in cash,
shares of Common Stock or a combination thereof, the Committee shall have sole
discretion as to timing of the payments, whether in one lump sum or in annual
installments or otherwise deferred, which deferred payments may in the
Committee's sole discretion (i) bear amounts equivalent to interest or cash
dividends, (ii) be treated as invested in the manner from time to time
determined by the Committee, with dividends or other income thereon being
deemed to have been so reinvested, or (iii) for the convenience of the Company,
contributed to a trust, which may be revocable by the Company or subject to the
claims of its creditors, for investment in the manner from time to time
determined by the Committee and set forth in the instrument creating such
trust, all as the Committee shall determine.
(g) If a freestanding right is not exercised, or neither a tandem
right nor the related option is exercised, before the end of the day on which
the right ceases to be exercisable and the fair market value of a share on such
date exceeds (i) the option price per share in the case of a tandem right or
(ii) the price per share specified in the terms of the right in the case of a
freestanding right, such right shall be deemed exercised and a payment in the
amount prescribed by subparagraph 8(b), less any applicable taxes, shall be
paid to the employee in cash.
9. AWARD AND EXERCISE OF LIMITED RIGHTS
(a) A limited right may be awarded by the Committee in connection
with any option granted under the 1994 Plan with respect to all or some of the
shares of Common Stock covered by such related option. A limited right may be
granted either at the time the option is granted or thereafter at any time
prior to the exercise, termination or expiration of the option. A limited right
may be granted to an employee irrespective of whether such employee is being
granted or has been granted a right under paragraph 8 hereof. A limited right
may be exercised only during the ninety-day period beginning on an
acceleration date (as defined in paragraph 7(a)). In addition, each limited
right shall be exercisable only if, and to the extent that, the related option
is exercisable and, in the case of a limited right granted in respect of an
incentive stock option, only when the fair market value per share of the Common
Stock exceeds the option price per share. Upon exercise of a limited right,
such related option shall cease to be exercisable to the extent of the shares
of Common Stock with respect to which such limited right is exercised. Upon the
exercise or termination of a related option, the limited right with respect to
such related option shall terminate to the extent of the shares of Common Stock
with respect to which the related option was exercised or terminated.
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<PAGE> 11
(b) Upon the exercise of limited rights, the holder thereof shall
receive in cash whichever of the following amounts is applicable:
(i) in the case of an exercise of limited rights by
reason of the occurrence of an Offer (as defined in paragraph 7(a)(i)), an
amount equal to the Offer Spread (as defined in paragraph 9(d));
(ii) in the case of an exercise of limited rights by
reason of an acquisition of Common Stock described in paragraph 7(a)(ii), an
amount equal to the Acquisition Spread (as defined in paragraph 9(h) hereof);
(iii) in the case of an exercise of limited rights by
reason of an event described in paragraph 7(a)(iii), an amount equal to the
Merger Spread (as defined in paragraph 9(f) hereof); or
(iv) in the case of an exercise of limited rights by
reason of a change in the composition of the Board of Directors as described in
paragraph 7(a)(iv), an amount equal to the Spread (as defined in paragraph 9(i)
hereof).
Notwithstanding the foregoing, in the case of a limited right granted
in respect of an incentive stock option, the holder may not receive an amount
in excess of such amount as will enable such option to qualify as an incentive
stock option.
(c) The term "Offer Price per Share" as used in this paragraph 9
shall mean, with respect to the exercise of any limited right by reason of the
occurrence of an Offer, the greater of (i) the highest price per share of
Common Stock paid in any Offer, which Offer is in effect at any time during the
ninety-day period ending on the date on which such limited right is exercised,
or (ii) the highest fair market value per share of Common Stock during such
ninety-day period. Any securities or property which are part or all of the
consideration paid for shares of Common Stock in the Offer shall be valued in
determining the Offer Price per Share at the higher of (A) the valuation placed
on such securities or property by the corporation, person or other entity
making such Offer or (B) the valuation placed on such securities or property by
the Committee.
(d) The term "Offer Spread" as used in this paragraph 9 shall mean
an amount equal to the product computed by multiplying (i) the excess of (A)
the Offer Price per Share over (B) the option price per share of Common Stock
at which the related option is exercisable, by (ii) the number of shares of
Common Stock with respect to which such limited right is being exercised.
(e) The term "Merger Price per Share" as used in this paragraph 9
shall mean, with respect to the exercise of any limited right by reason of an
event described in paragraph 7(a) (iii), the greater of (i) the fixed or
formula price for the acquisition of shares of Common Stock occurring pursuant
to such event if such fixed or formula price is determinable on the date on
which such limited right is exercised, and (ii) the highest
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<PAGE> 12
fair market value per share of Common Stock during the ninety-day period ending
on the date on which such limited right is exercised. Any securities or
property which are part or all of the consideration paid for shares of Common
Stock pursuant to such event shall be valued in determining the Merger Price
per Share at the higher of (A) the valuation placed on such securities or
property by the corporation, person or other entity which is a party with the
Company to such event or (B) the valuation placed on such securities or
property by the Committee.
(f) The term "Merger Spread" as used in this paragraph 9 shall
mean an amount equal to the product computed by multiplying (i) the excess of
(A) the Merger Price per Share over (B) the option price per share of Common
Stock at which the related option is exercisable, by (ii) the number of shares
of Common Stock with respect to which such limited right is being exercised.
(g) The term "Acquisition Price per Share" as used in this
paragraph 9 shall mean, with respect to the exercise of any limited right by
reason of an acquisition of Common Stock described in paragraph 7(a)(ii), the
greater of (i) the highest price per share stated on the Schedule 13D or any
amendment thereto filed by the holder of 30% or more of the Company's voting
power which gives rise to the exercise of such limited right, and (ii) the
highest fair market value per share of Common Stock during the ninety-day
period ending on the date the limited right is exercised.
(h) The term "Acquisition Spread" as used in this paragraph 9
shall mean an amount equal to the product computed by multiplying (i) the
excess of (A) the Acquisition Price per Share over (B) the option price per
share of Common Stock at which the related option is exercisable, by (ii) the
number of shares of Common Stock with respect to which such limited right is
being exercised.
(i) The term "Spread" as used in this paragraph 9 shall mean, with
respect to the exercise of any limited right by reason of a change in the
composition of the Board described in paragraph 7(a) (iv), an amount equal to
the product computed by multiplying (i) the excess of (A) the highest fair
market value per share of Common Stock during the ninety-day period ending on
the date the limited right is exercised over (B) the option price per share of
Common Stock at which the related option is exercisable, by (ii) the number of
shares of Common Stock with respect to which the limited right is being
exercised.
(j) Notwithstanding any other provision of the 1994 Plan, rights
granted pursuant to paragraph 8 may not be exercised to the extent that any
limited rights granted with respect to the same option are then exercisable.
(k) For purposes of this paragraph 9, "fair market value per share
of Common Stock" for any day shall mean the Market Value for such day (or if
there were no sales on such day, on the next preceding day on which there were
sales).
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<PAGE> 13
10. NON-TRANSFERABILITY OF OPTIONS AND RIGHTS
Options, rights and limited rights granted under the 1994 Plan shall
not be transferable otherwise than by will or the laws of descent and
distribution, or pursuant to a qualified domestic relations order as defined by
Section 414(p) of the Code. Options, rights and limited rights may be exercised
during the lifetime of the employee only by the employee or by the employee's
guardian or legal representative (unless such exercise would disqualify an
option as an incentive stock option).
11. AWARD AND DELIVERY OF RESTRICTED SHARES OR RESTRICTED UNITS
(a) At the time an award of restricted shares or restricted units
is made, the Committee shall establish a period of time (the "Restricted
Period") applicable to such award. Each award of restricted shares or
restricted units may have a different Restricted Period. The Committee may, in
its sole discretion, at the time an award is made, prescribe conditions for the
incremental lapse of restrictions during the Restricted Period, for the lapse
or termination of restrictions upon the satisfaction of other conditions in
addition to or other than the expiration of the Restricted Period with respect
to all or any portion of the restricted shares or restricted units and provide
for the lapse of all restrictions with respect to all restricted shares or
restricted units covered by the award upon the occurrence of an acceleration
date as defined in paragraph 7(a). The Committee may also, in its sole
discretion, shorten or terminate the Restricted Period or waive any conditions
for the lapse or termination of restrictions with respect to all or any portion
of the restricted shares or restricted units. Notwithstanding the foregoing,
all restrictions shall lapse or terminate with respect to all restricted shares
or restricted units upon death or total disability (as defined in paragraph
13).
(b) Upon the grant of an award of restricted shares, a stock
certificate representing a number of shares of Common Stock equal to the number
of restricted shares granted to an employee shall be registered in the
employee's name but shall be held in custody by the Company for the employee's
account. The employee shall generally have the rights and privileges of a
stockholder as to such restricted shares, including the right to vote such
restricted shares, except that, subject to the provisions of paragraph 12, the
following restrictions shall apply: (i) the employee shall not be entitled to
delivery of the certificate until the expiration or termination of the
Restricted Period and the satisfaction of any other conditions prescribed by
the Committee; (ii) none of the restricted shares may be sold, transferred,
assigned, pledged, or otherwise encumbered or disposed of during the Restricted
Period and until the satisfaction of any other conditions prescribed by the
Committee; and (iii) all of the restricted shares shall be forfeited and all
rights of the employee to such restricted shares shall terminate without
further obligation on the part of the Company unless the employee has remained
an employee of the Company or any of its subsidiaries or any combination
thereof until the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Committee applicable to
such restricted shares. At the discretion of the Committee, cash and stock
dividends with respect to the restricted shares may be either
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<PAGE> 14
currently paid or withheld by the Company for the employee's account subject to
the expiration or termination of the Restricted Period and the satisfaction of
any other conditions prescribed by the Committee, and interest may be paid on
the amount of cash dividends withheld at a rate and subject to such terms as
determined by the Committee. Upon the forfeiture of any restricted shares, such
forfeited restricted shares and any cash or stock dividends withheld for the
employee's account shall be transferred to the Company without further action
by the employee. The employee shall have the same rights and privileges, and be
subject to the same restrictions, with respect to any shares received pursuant
to paragraph 14.
(c) Upon the expiration or termination of the Restricted Period
and the satisfaction of any other conditions prescribed by the Committee or at
such earlier time as provided for in paragraph 12, the restrictions applicable
to the restricted shares shall lapse and a stock certificate for the number of
shares of Common Stock with respect to which the restrictions have lapsed shall
be delivered, free of all such restrictions, except any that may be imposed by
law, to the employee or the employee's beneficiary or estate, as the case may
be. The Company shall not be required to deliver any fractional share of Common
Stock but will pay, in lieu thereof, the fair market value (determined as of
the date the restrictions lapse) of such fractional share to the employee or
the employee's beneficiary or estate, as the case may be. No payment will be
required from the employee upon the issuance or delivery of any restricted
shares, except that any amount necessary to satisfy applicable federal, state
of local tax requirements shall be withheld or paid promptly upon notification
of the amount due and prior to or concurrently with the issuance or delivery of
a certificate representing such shares. The Committee may permit such amount to
be paid in (i) shares of Common Stock previously owned by the employee, (ii) a
portion of the shares of Common Stock that otherwise would be distributed to
such employee upon the lapse of the restrictions applicable to the restricted
shares, or (iii) a combination of cash and shares of such Common Stock;
provided, however, unless otherwise approved by the Committee, that an election
by an employee subject to Section 16(b) of the Exchange Act to use shares of
Common Stock described in clause (ii) above to satisfy any federal, state or
local tax requirement shall be made only during a Window Period (as defined in
paragraph 7(e) hereof), and provided further that the Committee shall have sole
discretion to consent to or disapprove of any such election (which consent or
disapproval may be given at any time after the election to which it relates).
(d) In the case of an award of restricted units, no shares of
Common Stock shall be issued at the time the award is made, and the Company
shall not be required to set aside a fund for the payment of any such award. At
the discretion of the Committee, cash and stock dividends with respect to the
Common Stock ("Dividend Equivalents") may be currently paid or withheld by the
Company for the employee's account subject to the expiration or termination of
the Restricted Period and the satisfaction of any other conditions prescribed
by the Committee, and interest may be paid on the amount of cash dividends
withheld at a rate and subject to such terms as determined by the Committee.
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<PAGE> 15
Upon the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Committee or at such
earlier time as provided for in paragraph 12, the Company shall deliver to the
employee or the employee's beneficiary or estate, as the case may be, one share
of Common Stock for each restricted unit with respect to which the restrictions
have lapsed ("vested unit"), and cash equal to any Dividend Equivalents
credited with respect to each such vested unit and any interest thereon;
provided, however, that the Committee may, in its sole discretion, elect to pay
cash or part cash and part Common Stock in lieu of delivering only Common Stock
for vested units. If a cash payment is made in lieu of delivering Common Stock,
the amount of such cash payment shall be equal to the Market Value for the date
on which the Restricted Period lapsed with respect to such vested unit, or if
there are no sales on such date, on the next preceding day on which there were
sales. No payment will be required from the employee upon the award of any
restricted units, the crediting or payment of any Dividend Equivalents, or the
delivery of Common Stock or the payment of cash in respect of vested units,
except that any amount necessary to satisfy applicable federal, state or local
tax requirements shall be withheld or paid promptly upon notification of the
amount due. The Committee may permit such amount to be paid in (i) shares of
Common Stock previously owned by the employee, (ii) a portion of the shares of
Common Stock that otherwise would be distributed to such employee in respect of
vested units, or (iii) a combination of cash and shares of such Common Stock;
provided, however, unless otherwise approved by the Committee, that an election
by an employee subject to Section 16(b) of the Exchange Act to use the shares
of Common Stock described in clause (ii) above to satisfy any federal, state or
local tax requirement shall be made only during a Window Period (as defined in
paragraph 7(e) hereof); and provided further that the Committee shall have sole
discretion to consent to or disapprove of any such election (which consent or
disapproval may be given at any time after the election to which it relates).
Upon the occurrence of an acceleration date (as defined in paragraph
7(a)), aft outstanding vested units (including any restricted units whose
restrictions have lapsed as a result of the occurrence of such acceleration
date) and credited Dividend Equivalents shall be payable as soon as practicable
but in no event later than 90 days after such acceleration date in cash, in
shares of Common Stock, or part in cash and part in Common Stock, as the
Committee, in its sole discretion, shall determine. To the extent that an
employee receives cash in payment for his vested units, such employee shall
receive an amount equal to the product of (i) the number of vested units
credited to such employee's account for which such employee is receiving
payment in cash times (ii) the Multiplication Factor (as defined below). To the
extent that an employee receives Common Stock in payment for his vested units,
such employee shall receive the number of shares of Common Stock determined by
dividing (i) the product of (x) the number of vested units credited to such
employee's account for which such employee is receiving payment in Common Stock
times (z) the Multiplication Factor, by (ii) the fair market value per share of
the Common Stock as of the day preceding the payment date. "Multiplication
Factor" shall mean (i) in the event of the occurrence of an Offer as defined in
paragraph 7(a)(i), the Offer Price per Share as modified below, (ii) in the
case
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<PAGE> 16
of an acquisition of Common Stock described in paragraph 7(a) (ii), the
Acquisition Price per Share as modified below, (iii) in the case of an event
described in paragraph 7(a)(iii), the Merger Price per Share as modified below,
or (iv) in the case of a change in the composition of the Board of Directors as
described in paragraph 7(a)(iv), the highest fair market value per share of the
Common Stock for any day during the applicable ninety-day period described
below. For purposes of the preceding sentence, (i) the applicable ninety-day
period described in paragraphs 9(c), (e) and (g) and in clause (iv) above shall
mean the ninety-day period ending on or within 89 days following an
acceleration date which the Committee, in its sole discretion, shall select and
(ii) fair market value per share of the Common Stock shall mean the Market
Value.
(e) The restricted unit award agreement may permit an employee to
request that the payment of vested units (and Dividend Equivalents and the
interest thereon with respect to such vested units) be deferred beyond the
payment date specified in the agreement. The Committee shall, in its sole
discretion, determine whether to permit such deferment and to specify the terms
and conditions, which are not inconsistent with the 1994 Plan, to be contained
in the agreement. In the event of such deferment, the Committee may determine
that interest shall be credited annually on the Dividend Equivalents, at a rate
to be determined by the Committee. The Committee may also determine to compound
such interest.
12. TERMINATION OF EMPLOYMENT
Unless otherwise determined by the Committee, and subject to such
restrictions as may be imposed by the Code in the case of any incentive stock
options, in the event that the employment of an employee to whom an option,
right or limited right has been granted under the 1994 Plan shall be terminated
(except as set forth in paragraph 13), such option, right or limited right may,
subject to the provisions of the 1994 Plan, be exercised (to the extent that
the employee was entitled to do so at the termination of his employment) at any
time within three months after such termination, or, in the case of an employee
whose termination results from retirement from active employment at or after
age 55 within one year after such termination, but in no case later than the
date on which the option, right or limited right terminates; provided, however,
that any option, right or limited right held by an employee whose employment is
terminated for cause shall forthwith terminate, to the extent not theretofore
exercised.
Unless otherwise determined by the Committee, if an employee to whom
restricted shares or restricted units have been granted ceases to be an
employee of the Company or of a subsidiary prior to the end of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee
for any reason other than death or total disability (as defined in paragraph
13), the employee shall immediately forfeit all restricted shares and
restricted units. Awards granted under the 1994 Plan shall not be affected by
any change of duties or position so long as the holder continues to be an
employee of the Company or any of its subsidiaries. Any option, right, limited
right, restricted share or restricted unit agreement, or any rules and
regulations relating to the
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<PAGE> 17
1994 Plan, may contain such provisions as the Committee shall approve with
reference to the determination of the date employment terminates and the effect
of leaves of absence. Any such rules and regulations with reference to any
option agreement shall be consistent with the provisions of the Code and any
applicable rules and regulations thereunder. Nothing in the 1994 Plan or in
any award granted pursuant to the 1994 Plan shall confer upon any employee any
right to continue in the employ of the Company or any of its subsidiaries or
interfere in any way with the right of the Company or any such subsidiary to
terminate such employment at any time.
Notwithstanding anything else in the 1994 Plan to the contrary, if the
corporation employing an individual to whom an option, right, limited right,
restricted unit or restricted share has been granted under the 1994 Plan ceases
to be a subsidiary of the Company, then the Committee may provide that service
with such employer or its direct or indirect or subsidiaries in any capacity
shall be considered employment with the Company for purposes of the 1994 Plan.
13. DEATH OR TOTAL DISABILITY OF EMPLOYEE
If an employee to whom an option, right or limited right has been
granted under the 1994 Plan shall die or suffer a "total disability" while
employed by the Company or its subsidiaries or within three months (or, in the
case of an employee whose termination results from retirement from active
employment at or after age 55, within one year) after the termination of such
employment (other than termination for cause), such option, right or limited
right may be exercised, to the extent that the employee was entitled to do so
at the termination of employment (including by reason of death or total
disability), as set forth herein (subject to the restrictions set forth in
paragraphs 8 and 9 with respect to persons subject to Section 16(b) of the
Exchange Act) by the employee, the legal guardian of the employee (unless such
exercise would disqualify an option as an incentive stock option), a legatee or
legatees of the employee under the employee's last will, or by the employee's
personal representatives or distributees, whichever is applicable, at any time
within one year after the date of the employee's death or total disability, but
in no case later than the date on which the option, right or limited right
terminates. For purposes hereof, "total disability" is defined as the permanent
inability of an employee, as a result of accident or sickness, to perform any
and every duty pertaining to such employee's occupation or employment for which
the employee is suited by reason of the employee's previous training, education
and experience.
14. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
Notwithstanding any other provision of the 1994 Plan, the Committee
may at any time, in its sole discretion, make or provide for such adjustments
to the 1994 Plan, to the number and class of shares available thereunder or to
any outstanding options, rights, restricted shares or restricted units as it
may deem appropriate to prevent dilution or enlargement of rights, including
adjustments in the event of distributions to holders of Common Stock other than
a normal cash dividend, changes in the outstanding Common
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<PAGE> 18
Stock by reason of stock dividends, split-ups, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, separations,
reorganizations, liquidations and the like. In the event of any offer to
holders of Common Stock generally relating to the acquisition of their shares,
the Committee may, in its sole discretion, make any adjustment as it deems
equitable in respect of outstanding options, rights, limited rights and
restricted units, including in the Committee's discretion revision of
outstanding options, rights, limited rights and restricted units so that they
may be exercisable for or payable in the consideration payable in the
acquisition transaction. Any such determination by the Committee shall be
conclusive. No adjustment shall be made in respect of an incentive stock option
if such adjustment would disqualify such option as an incentive stock option
under Section 422 of the Code and the Treasury Regulations thereunder. No
adjustment shall be made in the minimum number of shares with respect to which
an option may be exercised at any time. Any fractional shares resulting from
such adjustments to options, rights, limited rights or restricted units shall
be eliminated.
15. EFFECTIVE DATE
The 1994 Plan shall be effective as of January 20, 1994 (the
"Effective Date"), provided that the adoption of the 1994 Plan shall have been
approved by the stockholders of the Company. The Committee thereafter may, in
its discretion, grant awards under the 1994 Plan, the grant, exercise or
payment of which shall be expressly subject to the conditions that, to the
extent required at the time of grant, exercise or payment, (i) if the Company
deems it necessary or desirable, a Registration Statement under the Securities
Act of 1933 with respect to such shares shall be effective, and (ii) any
requisite approval or consent of any governmental authority of any kind having
jurisdiction over awards granted under the 1994 Plan shall be obtained.
16. TERMINATION AND AMENDMENT
The Board of Directors of the Company may suspend, terminate, modify
or amend the 1994 Plan, provided that any amendment that would increase the
aggregate number of shares that may be issued under the 1994 Plan, materially
increase the benefits accruing to participants under the 1994 Plan, or
materially modify the requirements as to eligibility for participation in the
1994 Plan shall be subject to the approval of the Company's stockholders to the
extent required by Rule 16b-3, applicable law or any other governing rules or
regulations, except that any such increase or modification that may result from
adjustments authorized by paragraph 14 does not require such approval. If the
1994 Plan is terminated, the terms of the 1994 Plan shall, notwithstanding such
termination, continue to apply to awards granted prior to such termination. In
addition, no suspension, termination, modification or amendment of the 1994
Plan may, without the consent of the employee to whom an award shall
theretofore have been granted, adversely affect the rights of such employee
under such award.
17. WRITTEN AGREEMENTS
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<PAGE> 19
Each award of options, rights, limited rights, restricted shares or
restricted units shall be evidenced by a written agreement, executed by the
employee and the Company, which shall contain such restrictions, terms and
conditions as the Committee may require.
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<PAGE> 20
18. EFFECT ON OTHER STOCK PLANS
The adoption of the 1994 Plan shall have no effect on awards made or
to be made pursuant to other stock plans covering employees of the Company or
its subsidiaries, or any predecessors or successors thereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Plan as of the 20th day of January, 1994.
BUGABOO CREEK STEAK HOUSE, INC.
By:
----------------------------------
Title:
----------------------------
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<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 281,250 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 and Bugaboo Creek Steak
House, Inc., a wholly-owned subsidiary of the Company, pursuant to the Bugaboo
Creek Steak House, Inc. 1994 Stock Plan (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.
For purposes of this opinion, we assume that all options, stock
appreciation rights and restricted shares or units 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 under the Plan, upon receipt in full by the Company of the purchase
price, if any, prescribed for each Share, 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 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
<PAGE> 1
EXHIBIT 23(A)
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
