AMENDMENT TO
NON-COMPETITION, CONFIDENTIALITY AND
NON-SOLICIATION AGREEMENT
This Agreement is entered into effective as of January 1, 1999 by
and between Lone Star Steakhouse & Saloon, Inc., a corporation (the
"Corporation") and Xxxxx X. Xxxxxxx ("Director").
WHEREAS, the Corporation and Director entered into an
Non-Competition, Confidentiality and Non-Solicitation Agreement "Agreement"
dated March 12, 1992; and
WHEREAS, the parties hereto desire to enter into this Amendment
setting forth the terms and conditions of the continued employment relationship
of the Corporation and Director.
NOW THEREFORE, it is agreed as follows:
1. Section 5.1 of the Agreement shall be deleted and the following new
Section 5.1 substituted therefore:
5.1 Notices. All notices, requests, demands and other communications
hereunder, including notice of termination by the Director under Section 5.1 of
this Agreement must be in writing and shall be deemed to have been duly given
upon receipt if delivered by hand, sent by telecopier or courier, and three (3)
days after such communication is mailed within the continental United States by
first class certified mail, return receipt requested, postage prepaid, to the
other party.
2. A new section, Section 6. shall be added as follows:
SECTION 6.
6.1 Change of Control. The Director shall have the right to
terminate his employment hereunder, upon 10 days notice to the Corporation
within three (3) years of Change of Control. For the purposes of this Agreement,
a "Change of Control" means (i) the direct or indirect, sale, lease, exchange or
other transfer of all or substantially all (50% or more) of the assets of the
Corporation to any Person or Group of Persons other than an Affiliate or an
entity controlled by an Affiliate, (ii) the merger, consolidation or other
business combination of the Corporation with or into another corporation with
the effect that the shareholders of the Corporation immediately prior to the
business combination hold 50% or less of the combined voting power of the then
outstanding securities of the surviving Person of such merger ordinarily (and
apart from rights accruing under special circumstances) having the right to vote
in the election of directors, (iii) the replacement of a majority of the Board
of the
Corporation over any period of two years or less, from the directors who
constituted the Board of the Corporation at the beginning of such period, and
such replacement(s) shall not have been approved by the Board of the Corporation
as constituted at the beginning of such period, (iv) a Person or Group of
Persons other than an Affiliate or an entity controlled by an Affiliate, shall,
as a result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, have become the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") of securities of the Corporation representing 50%
or more of the combined voting power of the then outstanding securities of the
Corporation ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors. A
transaction constituting a Change of Control shall be deemed to have occurred
upon the closing of the transaction. Notwithstanding the foregoing, a
transaction shall not constitute a Change of Control under this Agreement if the
transaction is approved by (i) at least a majority of the Board of the
Corporation as constituted immediately prior to the transaction and (ii) Xxxxx
X. Xxxxxxx, the Chairman of the Board of the Corporation.
For the purposes of this Agreement, an "Affiliate" of the
Corporation shall mean any person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with the Corporation, including but not limited to the executive officer and
directors of the Corporation.
6.2 Termination of Non-Compete and Non-Solicitation. In the event
the Director elects to terminate this Agreement in connection with a Change of
Control under the terms of Section 6.1, the provisions of Section 2.
Non-Competition and Section 4. Non-Solicitation shall be deemed to have expired
and be of no further force or effect as of the date of termination of the
Director.
3. Other than as hereby amended, the Agreement is hereby ratified and
confirmed.
"CORPORATION" LONE STAR STEAKHOUSE
& SALOON, INC.
Attest
___________________________ By___________________________________
Xxxxxx X. Xxxxx, Secretary Xxxx X. Xxxxx, Executive Vice
President and CFO
Witness "DIRECTOR"
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Xxxxx X. Xxxxxxx
