AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Amendment No. 1 (“Amendment”) to the Employment Agreement, dated November 9, 2005 (the
“Agreement”), between Xxxx’x, Inc., a Delaware corporation (“Luby’s” or the “Company”), and Xxxxxx
X. Xxxxxx, a resident of Houston, Texas (“Executive”), is executed as of the 29th day of October,
2007 (the “Effective Date”). For purposes of this Amendment, “Luby’s” or the “Company” shall
include the subsidiaries of Luby’s. Luby’s and Executive are sometimes referred to herein
individually as a “Party,” and collectively as the “Parties.”
RECITALS
WHEREAS, prior to this Amendment, the Term of Executive’s employment under the Agreement was
scheduled to terminate on August 31, 2008;
WHEREAS, the Company and Executive desire to extend the Term of Executive’s employment for one
year, until August 31, 2009;
WHEREAS, Executive has agreed to extend the Term of his employment without any increase in his
annual base salary;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, the Company and Executive agree as follows:
1. Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meaning as in the Agreement, as amended hereby.
2. Amendments.
(a) As of the Effective Date, Section 3 of the Agreement is hereby amended and restated as
follows:
“3. Term. Subject to the provisions for termination of employment as provided in
Section 8(a), Executive’s employment under this Agreement shall be for a period beginning on
the Effective Date and ending on August 31, 2009 (“Term”).”
(b) As of the Effective Date, Section 11(b) of the Agreement is hereby amended and restated
as follows:
“(b) Executive agrees that for so long as he is employed by Luby’s and for the Covenant
Period he will not without the prior written consent of the Company: (i) knowingly, after
due inquiry, sell any shares of Common Stock, or right to acquire Common Stock, to any
person or group (as defined in Section 13(d)(3) of the Exchange Act , as amended, and the
regulations promulgated thereunder) that would subsequent to such sale Beneficially Own in
excess of 10% of the Company’s issued and outstanding Common Stock (1% in the case of
industry competitors), (ii) solicit, or participate in a solicitation of proxies or votes or
consents to vote any voting securities of the Company or grant (except to the Company or its
representatives or representatives of the Executive)
any proxies to vote such securities or subject their shares in the Company to any
voting trust or other voting arrangement or agreement, (iii) form, join, or in any way
participate in, any group (as defined in Section 13(d)(3) of the Exchange Act, as amended,
and the regulations promulgated thereunder) with respect to voting securities of the
Company, or (iv) seek, propose, or make any public statement regarding any merger, tender or
exchange offer or other business combination involving the Company or any sale, assignment,
transfer, lease or other disposition by the Company of all or substantially all of its
assets; provided, however, that (A) the covenants contained in this
subsection (b) shall terminate and shall be of no further force or effect upon the
occurrence of a Change of Control; (B) the covenants contained in clauses (ii) and (iii) of
this subsection (b) shall not apply during any period in which there are solicitations by
any Person or 13d Group (other than the directors of the Company and other than Executive or
Xxxxxxxxxxx X. Xxxxxx or a 13d Group in which Executive or Xxxxxxxxxxx X. Xxxxxx is a
participant) of proxies or votes or consents to vote any voting securities of the Company
with respect to the election of directors at any annual or special meeting of security
holders of the Company or with respect to any other matter, including any shareholder
proposal; and (C) the covenant contained in clause (iv) of this subsection (b) shall not
apply during the period beginning on the date that any Person or 13d Group proposes a Change
of Control to the Company and ending at such time as any such Person or 13d Group shall
withdraw, terminate or otherwise definitively cease to make or pursue, and otherwise take
any action in furtherance of, any such proposal.”
3. Noncompetition. Executive hereby acknowledges and reaffirms the provisions of Section
11(a) of the Agreement.
4. CONTROLLING LAW. THIS AMENDMENT SHALL BE DETERMINED AND GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAWS
PROVISIONS.
5. Severability. If any term or other provision of this Amendment is invalid, illegal, or
incapable of being enforced by any rule of applicable law, or public policy, all other conditions
and provisions of this Amendment shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated herein are not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Amendment so as to effect the original intent of the parties as closely as possible
in a mutually acceptable manner in order that the transactions contemplated herein are consummated
as originally contemplated to the fullest extent possible.
6. Effect of Amendment. This Amendment shall be binding upon Executive and his heirs,
executors, legal representatives, successors and assigns, and Luby’s and its legal representatives,
successors and assigns. Except as provided in the preceding sentence, this Amendment, and the
rights and obligations of the Parties hereunder, are personal and neither this Amendment, nor any
right, benefit, or obligation of either Party hereto, shall be subject to voluntary or involuntary
assignment, alienation, or transfer, whether by operation of law or otherwise, without the prior
written consent of the other Party.
7. Execution. This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been signed by each of the
Parties and delivered to the other Party, it being understood that all Parties need not sign the
same counterpart.
[Signatures appear on following page]
IN WITNESS WHEREOF, the Parties have executed this Amendment effective as of the Effective
Date.
| Xxxxxx X. Xxxxxx | ||||
| XXXX’X INC. | ||||
| Xxxxxx Xxx, III | ||||
| Chairman of the Board |
[Signature Page to Amendment No. 1 to Employment Agreement]
