AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDMENT
NO. 1 TO
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.
IN
WITNESS WHEREOF, the Parties have executed this Amendment effective as of the
Effective Date.
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/s/Xxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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XXXX’X,
INC.
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/s/Xxxxxx
Xxx, III
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Xxxxxx
Xxx, III
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Chairman
of the Board
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