<PAGE>
As filed with the Securities and Exchange Commission on December 21, 1999
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
LANDRY'S SEAFOOD RESTAURANTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0405386
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1400 Post Oak Boulevard, Suite 1010
Houston, Texas 77056
(713) 850-1010
(Address of principal executive offices)
LANDRY'S SEAFOOD RESTAURANTS, INC.
AMENDED AND RESTATED 1995 FLEXIBLE INCENTIVE PLAN
(Full title of the plan)
Tilman J. Fertitta
President, Chief Executive Officer and Chairman
Landry's Seafood Restaurants, Inc.
1400 Post Oak Boulevard, Suite 1010
Houston, Texas 77056
(713) 850-1010
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
Arthur S. Berner, Esq.
Winstead Sechrest & Minick P.C.
910 Travis Street, Suite 2400
Houston, Texas 77002
(713) 650-2729
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities Being Offering Price Aggregate Registration
Being Registered Registered(1) Per Share(2) Offering Price(2) Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 1,000,000 Shares $8.8125 $8,812,500 (1) $2,326.50
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers an indeterminate number of shares as may be required
to cover possible adjustments under the Plan by reason of any stock
dividend, stock split, share combination, exchange of shares,
recapitalization, merger, consolidation, separate reorganization or the
like of or by the Registrant.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) based on the average of the high and low prices for
the Common Stock of the Registrant as quoted on the New York Stock Exchange
on December 16, 1999.
<PAGE>
The contents of Form S-8, Registration No. 333-2854, as filed on March 29,
1996, are incorporated herein by reference. This registration statement on Form
S-8 (the "Registration Statement") is being filed for the purpose of increasing
the number of shares of Common Stock for which options may be granted under the
Amended and Restated 1995 Flexible Incentive Plan (the "Plan") from 1,000,000 to
2,000,000 and to refile Exhibit 4, the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents (as filed with the Securities and Exchange
Commission (the "Commission") by the Registrant) are incorporated by reference
in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and Quarterly Reports on Form 10-Q for the periods ended March
31, June 30 and September 30, 1999.
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1998.
(c) The description of the Common Stock contained in the Registrant's
Prospectus filed with the Commission on March 8, 1994 as part of the
Registrant's registration statement on Form S-1 (Registration No. 33-75440).
(d) All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S>
4 Landry's Seafood Restaurants, Inc. 1995 Amended and Restated Flexible
Incentive Plan - filed herewith.
5 Opinion of Winstead Sechrest & Minick P.C. as to the legality of the securities
being registered - filed herewith.
23.1 Consent of Arthur Andersen LLP, independent public accountants - filed herewith.
23.2 Consent of Winstead Sechrest & Minick P.C. (included in the opinion filed as
Exhibit 5 to this Registration Statement).
24 Powers of Attorney - included on pages 3-4 hereof.
</TABLE>
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on December 20, 1999.
LANDRY'S SEAFOOD RESTAURANTS, INC.
/s/ Tilman J. Fertitta
--------------------------------------
By: Tilman J. Fertitta,
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned constitutes and appoints Tilman J. Fertitta, Steven
L. Scheinthal and Paul S. West, and each of them, his true and lawful attorney-
in-fact and agent with full power of substitution and resubstitution for him and
in his name, place, and stead, in any and all capacities, to sign and file with
the Commission and/or any state securities department or any other federal or
state agency or governmental authority, any and all amendments and exhibits to
this Registration Statement and any other documents in connection therewith,
granting unto such attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
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 such attorneys-in-fact and agents, or any of them, whether substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 20th day of December, 1999.
3
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ Tilman J. Fertitta Chairman of the Board, President and
- --------------------------- Chief Executive Officer (Principal
Tilman J. Fertitta Executive Officer) December 20, 1999
/s/ Paul S. West Vice President-Finance and Chief
- --------------------------- Financial Officer (Principal Financial
Paul S. West and Accounting Officer) and Director December 20, 1999
/s/ Steven L. Scheinthal Vice President-Administration,
- --------------------------- Secretary, General Counsel, and
Steven L. Scheinthal Director December 20, 1999
/s/ James E. Masucci Director
- --------------------------- December 20, 1999
James E. Masucci
/s/ Joe Max Taylor Director
- --------------------------- December 20, 1999
Joe Max Taylor
</TABLE>
4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
- ------- ----------- --------------
<C> <S> <C>
4 Landry's Seafood Restaurants, Inc. 1995 _____
Amended and Restated Flexible Incentive Plan
- filed herewith
5 Opinion of Winstead Sechrest & Minick P.C. _____
as to the legality of the securities being
registered - filed herewith
23.1 Consent of Arthur Andersen LLP, independent _____
public accountants - filed herewith
23.2 Consent of Winstead Sechrest & Minick P.C.
(included in the opinion filed as Exhibit 5 to
this Registration Statement)
24 Powers of Attorney - included on pages 3-4
hereof.
</TABLE>
5
<PAGE>
LANDRY'S SEAFOOD RESTAURANTS, INC.
AMENDED AND RESTATED
1995 FLEXIBLE INCENTIVE PLAN
SECTION 1. PURPOSE OF THE PLAN
The purposes of Landry's Seafood Restaurants, Inc. 1995 Flexible Incentive
Plan (the "Plan") are to promote the interests of Landry's Seafood Restaurants,
Inc., and its subsidiaries (together with any successor thereto, the "Company")
and its stockholders by enabling the Company to attract, motivate and retain key
employees by offering such key employees performance-based stock incentives and
other equity interests in the Company and other incentive awards that recognize
the creation of value for the stockholders of the Company and promote the
Company's long-term growth and success. To achieve these purposes, eligible
persons may receive stock options, Stock Appreciation Rights, Restricted Stock,
Performance Awards, performance stock, Dividend Equivalent Rights and any other
Awards, or any combination thereof.
SECTION 2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set forth
below unless the content otherwise requires:
2.1 "Award" shall mean the grant of a stock option, a Stock
Appreciation Right, a Restricted Stock, a Performance Award, performance
stock, a Dividend Equivalent Right or any other award under the Plan.
2.2 "Board" shall mean the Board of Directors of the Company, as the
same may be constituted from time to time.
2.3 "Change in Control" shall mean, after the effective date of the
Plan, (i) the occurrence of an event of a nature that would be required to
be reported in response to Item 1 or Item 2 of a Form 8-K Current Report of
the Company promulgated pursuant to Sections 13 and 15(d) of the Exchange
Act; provided that, without limitation, such a Change in Control shall be
deemed to have occurred if (a) any "person," as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
trustee or other fiduciary holding securities under any employee benefit
plan of the Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing fifty percent (50%) or more of
the combined voting power of the Company's then outstanding securities or
(b) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof, unless the election by the Board or
the nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the two-year period or whose
election or nomination for election was previously so approved; (ii) the
stockholders of the Company approve a merger or consolidation of the
<PAGE>
Company with any other corporation, other than a merger or consolidation
that would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than eighty percent (80%) of the combined voting power of the
voting securities of the surviving entity outstanding immediately after
such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a reorganization or recapitalization of
the Company, or a similar transaction (collectively, a "Reorganization"),
in which no "person" acquires more than twenty percent (20%) of the
combined voting power of the Company's then outstanding securities shall
not constitute a Change in Control of the Company; or (iii) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
2.4 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
2.5 "Committee" shall mean the Compensation Committee, if such a
separate Committee is appointed by the Board, or, until such time as a
separate committee is appointed, it shall mean the Board. If a separate
committee is appointed, the Committee shall meet the applicable
requirements for "disinterested administration" within the requirements of
Rule 16b-3 promulgated under the Exchange Act and any successor thereunder
promulgated during the duration of the Plan. The Board may amend the Plan
to modify the definition of Committee within the limits of Rule 16b-3 to
assure that the Plan is administered in compliance with Rule 16b-3.
Initially, the Committee will consist of not less than two (2) members of
the Board who are appointed by, and serve at the pleasure of, the Board and
who are (i) "disinterested" within the meaning of Rule 16b-3 and (ii)
"outside directors," as required under Section 162(m) of the Code and such
Treasury Regulations as may be promulgated thereunder. The Board does not
meet the applicable requirements of Rule 16b-3.
2.6 "Common Stock" shall mean the Common Stock, $0.01 par value per
share, of the Company.
2.7 "Designated Beneficiary" shall mean the beneficiary designated by
a Participant in a manner determined by the Committee, to exercise rights
of the Participant in the event of the Participant's death. In the absence
of an effective designation by a Participant the Designated Beneficiary
shall be the Participant's estate.
2.8 "Disability" shall mean permanent and total inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than twelve (12) months, as determined in the sole and absolute
discretion of the Committee.
2
<PAGE>
2.9 "Dividend Equivalent Right" shall mean the right of the holder
thereof to receive credits based on the cash dividends that would have been
paid on the Shares specified in an Award granting Dividend Equivalent
Rights if the Shares subject to such Award were held by the person to whom
the Award is made.
2.10 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
2.11 "Fair Market Value" shall mean with respect to the Shares, as of
any date, (i) the last reported sales price on any stock exchange on which
the Common Stock is traded or, if not reported on such exchange, on the
composite tape, or, in case no such sale takes place on such day, the
average of the reported closing bid and asked quotations on such exchange;
(ii) if the Common Stock is not listed on a stock exchange or no such
quotations are available, the closing price of the Common Stock as reported
by the National Market System of the National Association of Securities
Dealers, Inc., or, if no such quotations are available, the average of the
high bid and low asked quotations in the over-the-counter market as
reported by the National Quotation Bureau Incorporated, or similar
organization; or (iii) in the event that there shall be no public market
for the Common Stock, the fair market value of the Common Stock as
determined (which determination shall be conclusive) in good faith by the
Committee, based upon the value of the Company as a going concern, as if
such Common Stock were publicly owned stock, but without any discount with
respect to minority ownership.
2.12 "Incentive Stock Option" shall mean any stock option awarded
under the Plan which qualifies as an "Incentive Stock Option" under Section
422 of the Code or any successor provision.
2.13 "Non-Tandem Stock Appreciation Right" shall mean any Stock
Appreciation Right granted alone and not in connection with an Award which
is a stock option.
2.14 "Non-Qualified Stock Option" shall mean any stock option awarded
under the Plan that does not qualify as an Incentive Stock Option.
2.15 "Optionee" shall mean any person who has been granted a stock
option under the Plan and who has executed a written stock option agreement
with the Company reflecting the terms of such grant.
2.16 "Performance Award" shall mean any Award hereunder of Shares,
units or rights based upon, payable in, or otherwise related to, Shares
(including Restricted Stock), or cash of an equivalent value, as the
Committee may determine, at the end of a specified performance period
established by the Committee.
2.17 "Plan" shall mean the Landry's Seafood Restaurants, Inc. 1995
Flexible Incentive Plan set forth herein.
3
<PAGE>
2.18 "Reload Option" shall mean a stock option as deemed in
subsection 6.6(b) herein.
2.19 "Restricted Stock" shall mean any Award of Shares under the Plan
that are subject to restrictions or risk of forfeiture.
2.20 "Retirement" shall mean termination of employment other than
discharge for cause, after age 65 or on or before age 65 if pursuant to the
terms of any retirement plan maintained by the Company or any of its
Subsidiaries in which such person participates.
2.21 "Shares" shall mean shares of the Company's Common Stock and any
shares of capital stock or other securities of the Company hereafter issued
or issuable upon, in respect of or in substitution or exchange for such
Shares.
2.22 "Stock Appreciation Right" shall mean the right of the holder
thereof to receive an amount in cash or Shares equal to the excess of the
Fair Market Value of a Share on the date of exercise over the Fair Market
Value of a Share on the date of the grant (or such other value as may be
specified in the agreement granting the Stock Appreciation Right).
2.23 "Subsidiary" shall mean a subsidiary corporation of the Company,
as defined in Section 424(f) of the Code.
2.24 "Tandem Stock Appreciation Right" shall mean a Stock
Appreciation Right granted in connection with an Award which is a stock
option.
SECTION 3. ADMINISTRATION OF THE PLAN
3.1 Committee. The Plan shall be administered and interpreted by the
Committee.
3.2 Awards. Subject to the provisions of the Plan and directions
from the Board, the Committee is authorized to:
(a) determine the persons to whom Awards are to be granted;
(b) determine the types and combinations of Awards to be granted,
the number of Shares to be covered by the Award, the pricing of the
Award, the time or times when the Award shall be granted and may be
exercised, the terms, performance criteria or other conditions,
vesting periods or any restrictions for an Award, any restrictions on
Shares acquired pursuant to the exercise of an Award and any other
terms and conditions of an Award;
(c) conclusively interpret the provisions of the Plan;
4
<PAGE>
(d) prescribe, amend and rescind rules and regulations relating
to the Plan or make individual decisions as questions arise, or both;
(e) determine whether, to what extent and under what
circumstances to provide loans from the Company to participants to
purchase Shares subject to Awards under the Plan, and the terms and
conditions of such loans;
(f) rely upon employees of the Company for such clerical and
recordkeeping duties as may be necessary in connection with the
administration of the Plan; and
(g) make all other determinations and take all other actions
necessary or advisable for the administration of the Plan.
3.3 Procedures. A majority of the Committee members shall constitute
a quorum. All determinations of the Committee shall be made by a majority
of the members present at a meeting in which a quorum is present. All
questions of interpretation and application of the Plan or pertaining to
any question of fact or Award granted hereunder shall be decided by the
Committee, whose decision shall be final, conclusive and binding upon the
Company and each other affected party.
SECTION 4. SHARES SUBJECT TO PLAN
4.1 Limitations. The maximum number of Shares that may be
issued with respect to Awards under the Plan shall not exceed 2,000,000
unless such maximum shall be increased or decreased by reason of changes in
capitalization of the Company as hereinafter provided. The Shares issued
pursuant to the Plan may be authorized but unissued Shares, or may be
issued Shares which have been reacquired by the Company.
4.2 Changes. To the extent that any Award under the Plan, or any
stock option or performance award granted under any prior incentive plan of
the Company, shall be forfeited, shall expire or shall be cancelled, in
whole or in part then the number of Shares covered by the Award or stock
option so forfeited, expired or cancelled may again be awarded pursuant to
the provisions of the Plan. In the event that Shares are delivered to the
Company in full or partial payment of the exercise price for the exercise
of a stock option granted under the Plan or any prior incentive plan of the
Company, the number of Shares available for future Awards under the Plan
shall be reduced only by the net number of Shares issued upon the exercise
of the option. Awards that may be satisfied either by the issuance of
Shares or by cash or other consideration shall, until the form of
consideration to be paid is finally determined, be counted against the
maximum number of Shares that may be issued under the Plan. If the Award is
ultimately satisfied by the payment of consideration other than Shares, as,
for example, a stock option granted in tandem with a Stock Appreciation
Right that is settled by a cash payment of the stock appreciation, such
Shares may again be made the subject of an Award under the Plan. Awards
will not reduce the number of Shares that may be issued pursuant to the
Plan if the settlement of the Award will not require the
5
<PAGE>
issuance of Shares, as, for example, a Stock Appreciation Right that can be
satisfied only by the payment of cash.
SECTION 5. ELIGIBILITY
Eligibility for participation in the Plan shall be confined to those
persons who are employed by the Company, and who are officers or directors of
the Company, or who are in managerial or other key positions within the Company.
In making any determination as to persons to whom Awards shall be granted, the
type of Award, and/or the number of Shares to be covered by the Award, the
Committee shall consider the position and responsibilities of the person, his or
her importance to the Company, the duties of such person, his or her past,
present and potential contributions to the growth and success of the Company,
and such other factors as the Committee shall deem relevant in connection with
accomplishing the purposes of the Plan.
SECTION 6. STOCK OPTIONS
6.1 Grants. The Committee may grant stock options alone or in
addition to other Awards granted under the Plan to any eligible officer,
director or other key employee. Each person so selected shall be offered
an option to purchase the number of Shares determined by the Committee. The
Committee shall specify whether such option is an Incentive Stock Option or
Non-Qualified Stock Option and any other terms and conditions relating to
such Award. To the extent that any stock option does not qualify as an
Incentive Stock Option (whether because of its provisions or the time or
manner of its exercise or otherwise), such stock option or the portion
thereof which does not qualify shall constitute a separate Non-Qualified
Stock Option. Each such person so selected shall have a reasonable period
of time within which to accept or reject the offered option. Failure to
accept within the period so fixed by the Committee may be treated as a
rejection. Each person who accepts an option shall enter into a written
agreement with the Company, in such form as the Committee may prescribe,
setting forth the terms and conditions of the option, consistent with the
provisions of the Plan. The Optionee and the Company shall enter into
option agreements for Incentive Stock Options and Non-Qualified Stock
Options. At any time and from time to time, the Optionee and the Company
may agree to modify an option agreement so that an incentive Stock Option
may be converted to a Non-Qualified Stock Option.
The Committee may require that an Optionee meet certain conditions
before the option or a portion thereof may vest or be exercised, as, for
example, that the Optionee remain in the employ of the Company for a stated
period or periods of time before the option, or stated portions thereof,
may vest or be exercised.
6.2 Option Price. The option exercise price of the Shares covered
by each stock option shall be determined by the Committee; provided,
however, that the option exercise price of an Incentive Stock Option shall
not be less than one hundred percent (100%) of the Fair Market Value of
Shares on the date of the grant of such Incentive Stock Option.
6
<PAGE>
6.3 Incentive Stock Options Limitations.
(a) In no event shall any person be granted Incentive Stock
Options to the extent that the Shares covered by any Incentive Stock
Options (and any incentive stock options granted under any other plans
of the Company and its Subsidiaries) that may be exercised for the
first time by such person in any calendar year have an aggregate Fair
Market Value in excess of $100,000. For this purpose, the Fair Market
Value of the Shares shall be determined as of the dates on which the
Incentive Stock Options are granted. It is intended that the
limitation on Incentive Stock Options provided in this subsection
6.3(a) be the maximum limitation on options which may be considered
Incentive Stock Options under the Code.
(b) Notwithstanding anything herein to the contrary, in no event
shall any employee owning more than ten percent (10%) of the total
combined voting power of the Company or any Subsidiary be granted an
Incentive Stock Option hereunder unless the option exercise price
shall be at least one hundred ten percent (110%) of the Fair Market
Value of the Shares subject to such Incentive Stock Option at the time
that the Incentive Stock Option is granted and the term of such
Incentive Stock Option shall not exceed five (5) years.
6.4 Option Term. Subject to subsection 6.3(b) hereof, the term of a
stock option shall be for such period of months or years from the date of
its grant as may be determined by the Committee; provided, however, that no
Incentive Stock Option shall be exercisable later than ten (10) years from
the date of its grant. Furthermore, no Incentive Stock Option may be
exercised unless, at the time of such exercise, the Optionee is, and has
been continuously since the date of grant of his or her Incentive Stock
Option, employed by the Company, except that:
(a) An Incentive Stock Option may, to the extent vested, be
exercised within the period of three months after the date the
Participant ceases to be an employee of the Company (or within such
lesser period as may be specified in the applicable option agreement);
provided that the option agreement may designate a longer exercise
period and that the exercise after such three-month period shall be
treated as the exercise of a Non-Qualified Stock Option under the
Plan;
(b) If the Optionee dies while in the employ of the Company, or
within three months after the Optionee ceases to be such an employee,
the Incentive Stock Option may, to the extent vested, be exercised by
the Optionee's Designated Beneficiary within the period of one year
after the date of death (or within such lesser period as may be
specified in the applicable option agreement); and
(c) If the Optionee ceases to be an employee of the Company by
reason of the Optionee's Disability, to the extent vested the
Incentive Stock Option may be exercised within the period of one year
after the date of Disability (or within such lesser period as may be
specified in the applicable option agreement).
7
<PAGE>
6.5 Vesting of Stock Options.
(a) Each stock option granted hereunder may only be exercised to
the extent that the Optionee is vested in such option. Each stock
option shall vest separately in accordance with the option vesting
schedule, if any, determined by the Committee in its sole discretion,
which will be incorporated in the stock option agreement entered into
between the Company and each Optionee. The option vesting schedule
will be accelerated if, in the sole discretion of the Committee, the
Committee determines that acceleration of the option vesting schedule
would be desirable for the Company.
(b) In the event of the dissolution or liquidation of the
Company, each stock option granted under the Plan shall terminate as
of a date to be fixed by the Board; provided, however, that not less
than thirty (30) days' written notice of the date so fixed shall be
given to each Optionee and each such Optionee shall be fully vested in
and shall have the right during such period to exercise the option,
even though such option would not otherwise be exercisable under the
option vesting schedule. At the end of such period, any unexercised
option shall terminate and be of no other effect.
(c) In the event of a Reorganization (as defined in Section 2.3
hereof):
(1) If there is no plan or agreement respecting the
Reorganization, or if such plan or agreement does not
specifically provide for the change, conversion or exchange of
the Shares under outstanding and unexercised stock options for
other securities then the provisions of subsection 6.5(b) shall
apply as if the Company had dissolved or been liquidated on the
effective date of the Reorganization; or
(2) If there is a plan or agreement respecting the
Reorganization, and if such plan or agreement specifically
provides for the change, conversion or exchange of the Shares
under outstanding and unexercised stock options for securities of
another corporation, then the Board shall adjust the Shares under
such outstanding and unexercised stock options (and shall adjust
the Shares remaining under the Plan which are then available to
be awarded under the Plan, if such plan or agreement makes no
specific provision therefor) in a manner not inconsistent with
the provisions of such plan or agreement for the adjustment
change, conversion or exchange of such Shares and such options.
(d) In the event of a Change in Control of the Company, all stock
options and any associated Stock Appreciation Rights shall become
fully vested and immediately exercisable and the vesting of all
performance-based stock options shall be determined as if the
performance period or cycle applicable to such stock options had ended
immediately upon such Change in Control; provided, however, that if in
8
<PAGE>
the opinion of counsel to the Company the immediate exercisability of
options when taken into consideration with all other "parachute
payments" as defined in Section 280G of the Code, as amended, would
result in an "excess parachute payment" as defined in such section as
well as an exercise tax imposed by Section 4999 of the Code, such
options and any associated Stock Appreciation Rights shall become
fully vested and immediately exercisable, except as and to the extent
the Committee, in its sole discretion, shall otherwise determine, and
which determination by the Committee shall be based solely upon
maximizing the after-tax benefits to be received by any such Optionee.
6.6 Exercise of Stock Options.
(a) Stock options may be exercised as to Shares only in amounts
and at intervals of time specified in the written option agreement
between the Company and the Optionee. Each exercise of a stock
option, or any part thereof, shall be evidenced by a notice in writing
to the Company. The purchase price of the Shares as to which an
option shall be exercised shall be paid in full at the time of
exercise, and may be paid to the Company either:
(1) in cash (including check, bank draft or money order); or
(2) by the delivery of Shares having a Fair Market Value
equal to the aggregate option rate;
(3) by a combination of cash and Shares; or
(4) by other consideration deemed acceptable by the
Committee in its sole discretion.
(b) If an Optionee delivers Shares (including Shares of
Restricted Stock) already owned by him or her in full or partial
payment of the exercise price for any stock option granted under the
Plan or any prior incentive plan of the Company, or if the Optionee
elects to have the Company reflect that number of Shares out of the
Shares being acquired through the exercise of the option having a Fair
Market Value equal to the exercise price of the stock option being
exercised, the Committee may authorize the automatic grant of a new
option (a "Reload Option") for that number of Shares as shall equal
the number of already owned Shares surrendered (including Shares of
Restricted Stock) or newly acquired Shares being retained in payment
of the option exercise price of the underlying stock option being
exercised. The grant of a Reload Option will become effective upon
the exercise of the underlying stock option. The option exercise
price of the Reload Option shall be the Fair Market Value of a Share
on the effective date of the grant of the Reload Option. Each Reload
Option shall be exercisable no earlier than six (6) months from the
date of its grant and no later than the time when the underlying stock
option being exercised could be last exercised. The Committee may
also specify additional terms,
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conditions and restrictions for the Reload Option and the Shares to be
acquired upon the exercise thereof.
(c) The amount, as determined by the Committee, of any federal,
state or local tax required to be withheld by the Company due to the
exercise of a stock option shall be satisfied by payment by the
Optionee to the Company of the amount of such withholding obligation
in cash or other consideration acceptable to the Committee in its sole
discretion.
(d) An Optionee shall not have any of the rights of a stockholder
of the Company with respect to the Shares covered by a stock option
except to the extent that one or more certificates representing such
Shares shall have been delivered to the Optionee, or the Optionee has
been determined to be a stockholder of record by the Company's
transfer agent, upon due exercise of the option.
SECTION 7. STOCK APPRECIATION RIGHTS
7.1 Grants. The Committee may grant to any eligible employee either
Non-Tandem Stock Appreciation Rights or Tandem Stock Appreciation Rights.
Stock Appreciation Rights shall be subject to such terms and conditions as
the Committee shall impose. The grant of the Stock Appreciation Right may
provide that the holder may be paid for the value of the Stock Appreciation
Right either in cash or in Shares, or a combination thereof, at the
discretion of the Committee. In the event of the exercise of a Stock
Appreciation Right payable in Shares, the holder of the Stock Appreciation
Right shall receive that number of whole Shares of stock of the Company
having an aggregate Fair Market Value on the date of exercise equal to the
value obtained by multiplying (i) either (a) in the case of a Tandem Stock
Appreciation Right, the difference between the Fair Market Value of a Share
on the date of exercise over the per share exercise price of the related
option, or (b) in the case of a Non-Tandem Stock Appreciation Right the
difference between the Fair Market Value of a Share on the date of exercise
over the Fair Market Value on the date of the grant by (ii) the number of
Shares as to which the Stock Appreciation Right is exercised. However,
notwithstanding the foregoing, the Committee, in its sole discretion, may
place a ceiling on the amount payable upon exercise of a Stock Appreciation
Right but any such limitation shall be specified at the time that the Stock
Appreciation Right is granted.
7.2 Exercisability. A Tandem Stock Appreciation Right may be
granted at the time of the grant of the related stock option or, if the
related stock option is a Non-Qualified Stock Option, at any time
thereafter during the term of the stock option. A Tandem Stock
Appreciation Right granted in connection with an Incentive Stock Option (i)
may be exercised at, and only at, the times and to the extent the related
Incentive Plan Stock Option is exercisable, (ii) expires upon the
termination of the related Incentive Stock Option, (iii) may not exceed
100% of the difference between the exercise price of the related Incentive
Stock Option and the market price of the Shares subject to the related
Incentive Stock Option at the time the Tandem Stock Appreciation Right is
exercised and (iv) may be
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exercised at, and only at, such times as the market price of the Shares
subject to the related Incentive Stock Option exceeds the exercise price of
the related Incentive Stock Option. The Tandem Stock Appreciation Right may
be transferred at, and only at, the times and to the extent the related
stock option is transferable. If a Tandem Stock Appreciation Right is
granted, there shall be surrendered and cancelled from the related option
at the time of exercise of the Tandem Stock Appreciation Right, in lieu of
exercise under the related option, that number of Shares as shall equal the
number of Shares as to which the Tandem Stock Appreciation Right shall have
been exercised.
7.3 Certain Limitations on Non-Tandem Stock Appreciation Rights. A
Non-Tandem Stock Appreciation Right will be exercisable as provided by the
Committee and will have such other terms and conditions as the Committee
may determine. A Non-Tandem Stock Appreciation Right is subject to
acceleration of vesting or immediate termination in certain circumstances
in the same manner as stock options pursuant to subsections 6.4 and 6.5 of
the Plan.
7.4 Limited Stock Appreciation Rights. The Committee is also
authorized to grant "limited stock appreciation rights," either as Tandem
Stock Appreciation Rights or Non-Tandem Stock Appreciation Rights. Limited
stock appreciation rights would become exercisable only upon the occurrence
of a Change in Control or such other event as the Committee may designate
at the time of grant or thereafter.
SECTION 8. RESTRICTED STOCK
8.1 Grants. The Committee may grant Awards of Restricted Stock for
no cash consideration, for such minimum consideration as may be required by
applicable law, or for such other consideration as may be specified by the
grant. The terms and conditions of the Restricted Stock shall be specified
by the grant agreement. The Committee, in its sole discretion, may specify
any particular rights which the person to whom an Award of Restricted Stock
is made shall have in the Restricted Stock during the restriction period
and the restrictions applicable to the particular Award, the vesting
schedule (which may be based on service, performance or other factors) and
rights to acceleration of vesting (including, without limitation, whether
non-vested Shares are forfeited or vested upon termination of employment).
Further, the Committee may award performance-based Restricted Stock by
conditioning the grant, or vesting or such other factors, such as the
release, expiration or lapse of restrictions upon any such Award (including
the acceleration of any such conditions or terms) of such Restricted Stock
upon the attainment of specified performance goals or such other factors as
the Committee may determine. The Committee shall also determine when the
restrictions shall lapse or expire and the conditions, if any, under which
the Restricted Stock will be forfeited or sold back to the Company. Each
Award of Restricted Stock may have different restrictions and conditions.
The Committee, in its discretion, may prospectively change the restriction
period and the restrictions applicable to any particular Award of
Restricted Stock previously granted. Unless otherwise set forth in the
Plan, Restricted Stock may not be disposed of by the recipient until the
restrictions specified in the Award expire.
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8.2 Awards and Certificates. Any Restricted Stock issued hereunder
may be evidenced such manner as the Committee, in its sole discretion,
shall deem appropriate including, without limitation, book-entry
registration or issuance of a stock certificate or certificates. In the
event any stock certificate is issued in respect of Shares of Restricted
Stock awarded hereunder, such certificate shall bear an appropriate legend
with respect to the restrictions applicable to such Award. The Company may
retain, at its option, the physical custody of any stock certificate
representing any awards of Restricted Stock during the restriction period
or require that the Restricted Stock be placed in escrow or trust, along
with a stock power endorsed in blank, until all restrictions are removed or
expire.
SECTION 9. PERFORMANCE AWARDS
9.1 Grants. A Performance Award may consist of either or both, as
the Committee may determine, of (i) "Performance Shares" or the right to
receive Shares, Restricted Stock or cash of an equivalent value, or any
combination thereof as the Committee may determine, or (ii) "Performance
Units," or the right to receive a fixed dollar amount payable in cash,
Common Stock, Restricted Stock or any combination thereof, as the Committee
may determine. The Committee may grant Performance Awards to any eligible
employee, for no cash consideration, for such minimum consideration as may
be required by applicable law or for such other consideration as may be
specified at the time of the grant. The terms and conditions of Performance
Awards shall be specified at the time of the grant and may include
provisions establishing the performance period, the performance criteria to
be achieved during a performance period, the criteria used to determine
vesting (including the acceleration thereof), whether Performance Awards
are forfeited or vest upon termination of employment during a performance
period and the maximum or minimum settlement values. Each Performance
Award shall have its own terms and conditions, which shall be determined in
the discretion of the Committee. If the Committee determines, in its sole
discretion, that the established performance measures or objectives are no
longer suitable because of a change in the Company's business, operations,
corporate structure or for other reasons that the Committee deems
satisfactory, the Committee may modify the performance measures or
objectives and/or the performance period.
9.2 Terms and Conditions. Performance Awards may be valued by
reference to the Fair Market Value of a Share or according to any formula
or method deemed appropriate by the Committee, in its sole discretion,
including, but not limited to, achievement of specific financial,
production, sales, cost or earnings performance objectives that the
Committee believes to be relevant to the Company's business and for
remaining in the employ of the Company for a specified period of time, or
the Company's performance or the performance of its Common Stock measured
against the performance of the market of the Company's industry segment or
its direct competitors. Performance Awards may be paid in cash, Shares
(including Restricted Stock) or other consideration, or any combination
thereof. If payable in Shares, the consideration for the issuance of the
Shares may be the achievement of the performance objective established at
the time of the grant of the Performance Award. Performance Awards may be
payable in a single payment or in installments and may be payable at a
specified date or dates or upon attaining the performance objective, all at
the
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Committee's discretion. The extent to which any applicable performance
objective has been achieved shall be conclusively determined by the
Committee.
SECTION 10. DIVIDEND EQUIVALENT RIGHTS
The Committee may grant a Dividend Equivalent Right either as a component
of another Award or as a separate Award, and, in general, each such holder of a
Dividend Equivalent Right that is outstanding on a dividend record date for the
Company's Common Stock shall be credited with an amount equal to the cash or
stock dividends or other distributions that would have been received had the
Shares covered by the Award been issued and outstanding on the dividend record
date. The terms and conditions of the Dividend Equivalent Right shall be
specified by the grant. Dividend equivalents credited to the holder of a
Dividend Equivalent Right may be paid currently or may be deemed to be
reinvested in additional Shares (which may thereafter accrue additional Dividend
Equivalent Rights). Any such reinvestment shall be at the Fair Market Value at
the time thereof. Dividend Equivalent Rights may be settled in cash or Shares,
or a combination thereof, in a single payment or in installments. A Dividend
Equivalent Right granted as a component of another Award may provide that such
Dividend Equivalent Right shall be settled upon exercise, settlement or payment
for or lapse of restrictions on such other Award, and that such Dividend
Equivalent Right shall expire or be forfeited or annulled under the same
conditions as such other Award. A Dividend Equivalent Right granted as a
component of another Award may also contain terms and conditions different from
such other Award.
SECTION 11. OTHER AWARDS
The Committee may grant to any eligible employee other forms of Awards
based upon, payable in or otherwise related to, in whole or in part, Shares if
the Committee, in its sole discretion, determines that such other form of Award
is consistent with the purposes and restrictions of the Plan. The terms and
conditions of such other form of Award shall be specified by the grant
including, but not limited to, the price, if any, and the vesting schedule, if
any. Such Awards may be granted for no cash consideration, for such minimum
consideration as may be required by applicable law or for such other
consideration as may be specified by the grant.
SECTION 12. COMPLIANCE WITH SECURITIES AND OTHER LAWS
In no event shall the Company be required to sell or issue Shares under any
Award if the sale or issuance thereof would constitute a violation of applicable
federal or state securities laws or regulations or a violation of any other law
or regulation of any governmental or regulatory agency or authority or any
national securities exchange. As a condition to any sale or issuance of Shares,
the Company may place legends on Shares, issue stop transfer orders and require
such agreements or undertakings as the Company may deem necessary or advisable
to assure compliance with any such laws or regulations, including, if the
Company or its counsel deems it appropriate, representations from the person to
whom an Award is granted that he or she is acquiring the Shares solely for
investment and not with a view to distribution and that no distribution of the
Shares will be made unless registered pursuant to applicable federal and state
securities laws, or in the opinion of counsel of the Company, such registration
is unnecessary.
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SECTION 13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR REORGANIZATION
The value of an Award in Shares shall be adjusted from time to time as
follows:
(a) Subject to any required action by stockholders, the number of
Shares covered by each outstanding Award, and the exercise price,
shall be proportionately adjusted for any increase or decrease in the
number of issued Shares of the Company resulting from a subdivision or
consolidation of Shares or the payment of a stock dividend (but only
in Shares) or any other increase or decrease in the number of Shares
affected without receipt of consideration by the Company.
(b) Subject to any required action by stockholders, if the
Company shall be the surviving corporation in any Reorganization,
merger or consolidation, each outstanding Award shall pertain to and
apply to the securities to which a holder of the number of Shares
subject to the Award would have been entitled, and if a plan or
agreement reflecting any such event is in effect that specifically
provides for the change, conversion or exchange of Shares, then any
adjustment to Shares relating to an Award hereunder shall not be
inconsistent with the terms of any such plan or agreement.
(c) In the event of a change in the Shares of the Company as
presently constituted, which is limited to a change of par value into
the same number of Shares with a different par value or without par
value, the Shares resulting from any such change shall be deemed to be
the Shares within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Board, whose determination shall be final, binding and conclusive.
Except as hereinbefore expressly provided in the Plan, any person
to whom an Award is granted shall have no rights by reason of any
subdivision or consolidation of stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of
shares of stock of any class or by reason of any dissolution,
liquidation, reorganization, merger or consolidation or spinoff of
assets or stock of another corporation, and any issue by the Company
of shares of stock of any class, or securities convertible into shares
of stock of any class, shall not affect and no adjustment by reason
thereof shall be made with respect to, the number or exercise price of
Shares subject to an Award.
The grant of an Award pursuant to the Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, Reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or
assets.
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SECTION 14. AMENDMENT OR TERMINATION OF THE PLAN
14.1 Amendment of the Plan. Notwithstanding anything contained in
the Plan to the contrary, all provisions of the Plan may at any time or
from time to time be modified or amended by the Board; provided, however,
that no Award at any time outstanding under the Plan may be modified,
unpaired or cancelled adversely to the holder of the Award without the
consent of such holder; and provided, further, that the Plan may not be
amended without approval by the holders of a majority of the Shares of the
Company represented and voted at a meeting of the stockholders (a) to
increase the maximum number of Shares subject to the Plan, (b) to
materially modify the requirements as to eligibility for participation in
the Plan, (c) to decrease the minimum exercise price for options, (d) to
otherwise materially increase the benefits accruing to persons to whom
Awards may be made under the Plan, as amended, or (e) if such approval is
otherwise necessary, to comply with Rule 16b-3 promulgated under the
Exchange Act as amended, or to comply with any other applicable laws,
regulations or listing requirements, or to qualify for an exemption or
characterization that is deemed desirable by the Board.
14.2 Termination of the Plan. The Board may suspend or terminate the
Plan at any time, and such suspension or termination may be retroactive or
prospective. However, no Award may be granted on or after the tenth
anniversary of the adoption of the Plan. Termination of the Plan shall not
impair or affect any Award previously granted hereunder and the rights of
the holder of the Award shall remain in effect until the Award has been
exercised in its entirety or has expired or otherwise has been terminated
by the terms of such Award .
SECTION 15. AMENDMENTS AND ADJUSTMENTS TO AWARDS
The Committee may amend, modify or terminate any outstanding Award with
the Participant's consent at any time prior to payment or exercise in any manner
not inconsistent with the terms of the Plan, including, without limitation, (i)
to change the date or dates as of which (A) an option becomes exercisable or (B)
a performance-based Award is deemed earned, (ii) to amend the terms of any
outstanding Award to provide an exercise price per share which is higher or
lower than the then current exercise price per share of such outstanding Award
or (iii) to cancel an Award and grant a new Award in substitution therefor under
such different terms and conditions as it determines in its sole and complete
discretion to be appropriate including, but not limited to, having an exercise
price per share which may be higher or lower than the exercise price per share
of the cancelled Award. The Committee is also authorized to make adjustments in
the terms and conditions of, and the criteria included in, Awards in recognition
of unusual or nonrecurring events (including, without limitation, the events
described in Section 13 hereof affecting the Company, or the financial
statements of the Company or any Affiliate, or of changes in applicable laws,
regulations or accounting principles, whenever the Committee determines that
such adjustments are appropriate in order to prevent reduction or enlargement of
the benefits or potential benefits intended to be made available under the Plan.
Any provision of the Plan or any agreement regarding an Award to the contrary
notwithstanding, the Committee may cause any Award granted to be cancelled in
consideration of a cash payment or alternative Award made to the holder of such
cancelled Award
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equal in value to the Fair Market Value of such cancelled Award. The
determinations of value under this Section 15 shall be made by the Committee in
its sole discretion.
SECTION 16. GENERAL PROVISIONS
16.1 No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent the Company from adopting or continuing in effect
other compensation arrangements, and such arrangements may be either
generally applicable or applicable only in specific cases.
16.2 No Right to Employment. Nothing in the Plan or in any Award,
nor the grant of any Award, shall confer upon or be construed as giving any
recipient of an Award any right to remain in the employ of the Company.
Further, the Company may at any time dismiss a participant in the Plan from
employment, free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award agreement. No
employee, participant or other person shall have any claim to be granted
any Award, and there is no obligation for uniformity or treatment of
employees, participants or holders or beneficiaries of Awards.
16.3 GOVERNING LAW. THE VALIDITY, CONSTRUCTION AND EFFECT OF THE
PLAN AND ANY RULES AND REGULATIONS RELATING TO THE PLAN SHALL BE DETERMINED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
16.4 Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or as to any person or Award, or would disqualify the Plan or
any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to applicable laws, or if
it cannot be construed or deemed amended without in the sole determination
of the Committee, materially altering the intent of the Plan or the Award,
such provision shall be stricken as to such jurisdiction, person or Award
and the remainder of the Plan and any such Award shall remain in full force
and effect.
16.5 No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash, other securities or other property shall be paid or
transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be cancelled, terminated or otherwise
eliminated.
16.6 Headings. Headings are given to the subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not
be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
16.7 Effective Date. The Plan shall be effective as of the date of
its approval by the holders of a majority of the Shares of the Company
represented and voting at the next
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Annual Meeting of Stockholders. If the Plan is not approved by the
stockholders at the 1995 Annual Meeting, after such date, the Plan and all
Awards granted hereunder, if any, shall be void.
16.8 Non-Transferability of Awards. Awards shall not be transferable
otherwise than by will or the laws of descent and distribution, and Awards
may be exercised, during the lifetime of the holder, only by the holder;
provided, however, that with the approval of the Committee, Awards other
than Incentive Stock Options may be transferred as directed under a
qualified domestic relations order. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of an Award contrary to the
provisions hereof, or the levy of any execution, attachment or similar
process upon an Award shall be null and void and without effect.
16.9 Date of a Grant. The granting of any option, right, award, etc.
under this Plan shall take place only upon the execution and delivery by
the Company and an employee of an appropriate agreement. Neither any action
taken by the Board nor anything contained in the Plan or in any resolution
adopted or to be adopted by the Board or the stockholders of the Company
shall constitute the granting of any award under the Plan.
SECTION 17. NAMED EXECUTIVE OFFICERS
17.1 Applicability of Section 17. The provisions of this Section 17
shall apply only to those executive officers (i) whose compensation is
required to be reported in the Company's proxy statement pursuant to Item
402(a)(3)(i) and (ii) of Regulation S-K under the general rules and
regulations under the Exchange Act, as amended, and (ii) whose total
compensation, including estimated Awards, is determined by the Committee to
possibly be subject to the limitations on deductions imposed by Section
162(m) of the Code ("Named Executive Officers"). In the event of any
inconsistencies between this Section 17 and the other Plan provisions as
they pertain to Named Executive Officers, the provisions of this Section 17
shall control.
17.2 Establishment of Performance Goals. Awards for Named Executive
Officers, other than stock options and Stock Appreciation Rights, shall be
based on the attainment of certain performance goals. No later than the
earlier of (i) ninety (90) days after the commencement of the applicable
fiscal year or such other award period as may be established by the
Committee ("Award Period") and (ii) the completion of twenty-five percent
(25%) of such Award Period, the Committee shall establish, in writing, the
performance goals applicable to each such Award for Named Executive
Officers. At the time the performance goals are established by the
Committee, their outcome must be substantially uncertain. In addition, the
performance goal must state, in terms of an objective formula or standard,
the method for computing the amount of compensation payable to the Named
Executive Officer if the goal is obtained. Such formula or standard shall
be sufficiently objective so that a third party with knowledge of the
relevant performance results could calculate the amount to be paid to the
subject Named Executive Officer. The material terms of the performance
goals for Named Executive Officers and the compensation payable
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thereunder shall be submitted to the shareholders of the Company for their
review and approval. Shareholder approval shall be obtained for such
performance goals prior to any Award being paid to such Named Executive
Officer. If the shareholders do not approve such performance goals, no
amount shall be paid to such Named Executive Officer for such applicable
Award Period under the Plan. The disclosure of the "material terms" of a
performance goal and the compensation payable thereunder shall be
determined under the guidelines set forth under Section 162(m) of the Code,
and the Treasury Regulations thereunder.
17.3 Components of Awards. Each Award of a Named Executive Officer,
other than stock options and Stock Appreciation Rights, shall be based on
performance goals which are sufficiently objective so that a third party
having knowledge of the relevant facts could determine whether the goal was
met. Except as provided in subsection 17.8 herein, performance measures
which may serve as determinants of Named Executive Officers Awards shall be
limited to the following measures: earnings per share; return on assets;
return on equity; return on capital; net profit after taxes; net profit
before taxes; economic value added; operating profits; stock price; market
share; and sales or expenses. Within ninety (90) days following the end of
each Award Period, the Committee shall certify in writing that the
performance goals, and any other material terms were satisfied. Thereafter,
Awards shall be made for each named Executive Officer as determined by the
Committee. The Awards may not vary from the preestablished amount based on
the level of achievement.
17.4 No Mid-Year Change in Awards. Except as provided in subsections
17.8 and 17.9 herein, each Named Executive Officers Awards shall be based
exclusively on the performance measures established by the Committee
pursuant to subsection 17.2.
17.5 No Partial Award Period Participation. A Named Executive
Officer who becomes eligible to participate in the Plan after performance
goals have been established in an Award Period pursuant to subsection 17.2
may not participate in the Plan prior to the next succeeding Award Period,
except with respect to Awards which are stock options or Stock Appreciation
Rights.
17.6 Performance Goals. Except as provided in subsection 17.8
herein, performance goals shall not be changed following their
establishment, and Named Executive Officers shall not receive any payout,
except with respect to Awards which are stock options or Stock Appreciation
Rights, when the minimum performance goals are not met or exceeded.
17.7 Individual Performance and Discretionary Adjustments. Except as
provided in subsection 17.8 herein, subjective evaluations of individual
performance of Named Executive Officers shall not be reflected in their
Awards, other than Awards which are stock options or Stock Appreciation
Rights. The payment of such Awards shall be entirely dependent upon the
attainment of the preestablished performance goals.
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17.8 Amendments. No amendment of the Plan with respect to any Named
Executive Officer may be made which would (i) increase the maximum amount
that can be paid to any one Participant under the Plan, (ii) change the
specified performance goal for payment of Awards, or (iii) modify the
requirements as to eligibility for participation in the Plan, unless the
Company's shareholders have first approved such amendment in a manner which
would permit the deduction under Section 162(m) of the Code of such payment
in the fiscal year it is paid. The Committee shall amend this Section 17
and such other provisions as it deems appropriate, to cause amounts payable
to Named Executive Officers to satisfy the requirements of Section 162(m)
and the Treasury Regulations promulgated thereunder.
17.9 Stock Options and Stock Appreciation Rights. Notwithstanding
any provision of the Plan (including the provisions of this Section 17) to
the contrary, the amount of compensation which a Named Executive Officer
may receive with respect to stock options and Stock Appreciation Rights
which are granted hereunder is based solely on an increase in the value of
the applicable Shares after the date of grant of such Award. Thus, no
stock option may be granted hereunder to a Named Executive Officer with an
exercise price less than the Fair Market Value of Shares on the date of
grant. Furthermore, the maximum number of Shares (or cash equivalent
value) with respect to which stock options or Stock Appreciation Rights may
be granted hereunder to any Named Executive Officer during any calendar
year may not exceed 150,000 Shares, subject to adjustment as provided in
Section 13 hereunder.
17.10 Maximum Amount of Compensation. The maximum amount of
compensation payable as an Award (other than an Award which is a stock
option or Stock Appreciation Right) to any Named Executive Officer during
any calendar year may not exceed $1,000,000.
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EXHIBIT 5
WINSTEAD SECHREST & MINICK P.C. LETTERHEAD
(713) 650-2729
[email protected]
December 20, 1999
Landry's Seafood Restaurants, Inc.
1400 Post Oak Blvd., Suite 1010
Houston, Texas 77056
Gentlemen:
You have requested our opinion as to the legality of the securities of
Landry's Seafood Restaurants, Inc. (the "Company") being registered on Form S-8
(the "Registration Statement") to be filed by the Company with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended, in
connection with the Landry's Seafood Restaurants, Inc. Amended and Restated 1995
Flexible Incentive Plan (the "Plan"). You have also requested our opinion as to
whether such securities will, when sold, be legally issued, fully paid, and
nonassessable. The securities to be registered pursuant to the Registration
Statement and issued pursuant to the Plan will be up to 2,000,000 shares (the
"Shares") of common stock of the Company ("Common Stock"), which may be treasury
shares or authorized but unissued shares.
We have examined copies of the Certificate of Incorporation and Bylaws
of the Company and of the resolutions adopted by the Board of Directors and
stockholders of the Company in connection with the adoption of the Plan. We have
also examined such other cororate records and documents, certificates of
corporate officers, and statutes as we have deemed necessary for purposes of
this opinion.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all corporate records, documents and instruments submitted
to us as originals, the conformity to original documents of all documents
submitted to us as conformed, certified or photostatic copies thereof, and the
authenticity of the originals of such photostatic, certified or conformed
copies. We have assumed compliance both in the past and in the futre with the
terms of the Plan by the Company and its employees, officers, and Board of
Directors, and by the Stock Option and Compensation Committee of the Board of
Directors, and that all statements in all certificates of officers of the
Company submitted are true and correct .
<PAGE>
Landry's Seafood Restaurants, Inc.
December 10, 1999
Page 2
Based upon the foregoing and in reliance thereon, we are of the opinion
that the Shares when issued or sold pursuant to and in accordance with the terms
of the Plan will be validly issued, fully paid and nonassessable shares of
Common Stock.
We know that we are named in the Registration Statement, and we hereby
consent to the use of our name in the Registration Statement and to the filing
of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By: /s/ Arthur S. Berner
-------------------------------
Arthur S. Berner, for the Firm
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 11,
1999 (except with respect to the matter discussed in Note 11, as to which the
date is March 29, 1999) included in Landry's Seafood Restaurants, Inc.'s
Form 10-K, for the year ended December 31, 1998 and to all references to our
Firm included in this registration statement.
/s/ Arthur Andersen LLP
Houston, Texas
December 17, 1999
