-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B2bshSjbOe4vrvNI37d45fQw7FINm6TVhhaLV/TmKaJfiJZuOhmj+vCrqKFaxOe8 /ZGlIqo3DOQ9sjwAuUqeiw== 0000950129-05-005970.txt : 20050611 0000950129-05-005970.hdr.sgml : 20050611 20050606152827 ACCESSION NUMBER: 0000950129-05-005970 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050606 DATE AS OF CHANGE: 20050606 GROUP MEMBERS: HARRIS JAMES PAPPAS SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LUBYS INC CENTRAL INDEX KEY: 0000016099 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 741335253 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-10635 FILM NUMBER: 05880451 BUSINESS ADDRESS: STREET 1: 13111 NORTHWEST FREEWAY STREET 2: SUITE 600 CITY: HOUSTON STATE: TX ZIP: 77040 BUSINESS PHONE: (713) 329 6800 MAIL ADDRESS: STREET 1: 13111 NORTHWEST FREEWAY STREET 2: SUITE 600 CITY: HOUSTON STATE: TX ZIP: 77040 FORMER COMPANY: FORMER CONFORMED NAME: LUBYS CAFETERIAS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CAFETERIAS INC DATE OF NAME CHANGE: 19810126 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PAPPAS CHRISTOPHER JAMES CENTRAL INDEX KEY: 0001130636 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 642 YALE CITY: HOUSTON STATE: TX ZIP: 77007 BUSINESS PHONE: 7138690151 SC 13D/A 1 h26076sc13dza.txt LUBY'S, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 4)* LUBY'S, INC. (Name of Issuer) COMMON STOCK, $.32 PAR VALUE PER SHARE (Title of Class of Securities) 549282101 (CUSIP Number) CHARLES H. STILL FULBRIGHT & JAWORSKI L.L.P. 1301 MCKINNEY, SUITE 5100 HOUSTON, TEXAS 77010 (713) 651-5151 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) MARCH 9, 2003 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP NO. 549282101 13 D Page 2 of 10 Pages - ---------------------------------------------- ------------------ -------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS HARRIS JAMES PAPPAS - -------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS PF - -------------------------------------------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES CITIZEN - -------------------------------------------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 3,404,803 OWNED BY EACH REPORTING PERSON WITH - -------------------------------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER 0 - -------------------------------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 3,404,803 - -------------------------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,404,803 - -------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.05% - -------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - --------------------------------------------------------------------------------------------------------------------
CUSIP NO. 549282101 13 D Page 3 of 10 Pages - ---------------------------------------------- ------------------ -------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS CHRISTOPHER JAMES PAPPAS - -------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS PF - -------------------------------------------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES CITIZEN - -------------------------------------------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 3,404,803 OWNED BY EACH REPORTING PERSON WITH - -------------------------------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER 0 - -------------------------------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 3,404,803 - -------------------------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,404,803 - -------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.05% - -------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - --------------------------------------------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (FILED BY THE GROUP PURSUANT TO GENERAL INSTRUCTION C) ITEM 1. SECURITY AND ISSUER. The principal executive offices of Luby's, Inc., a Delaware corporation (the "Company"), are located at 13111 Northwest Freeway, Suite 600, Houston, Texas 77040. Other than the foregoing, there has been no change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. ITEM 2. IDENTITY AND BACKGROUND. No change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. No change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. ITEM 4. PURPOSE OF TRANSACTION. As disclosed on Schedule 13D filed by Harris James Pappas ("H. Pappas") and Christopher James Pappas ("C. Pappas," and together with H. Pappas, the "Shareholders," and each, individually, a "Shareholder"), jointly, on December 27, 2000, with the Securities and Exchange Commission ("SEC"), the Shareholders purchased an aggregate of 1,343,800 shares of Common Stock of the Company on the New York Stock Exchange. As disclosed on the Amendments No. 1, No. 2 and No. 3 to Schedule 13D filed by the Shareholders, jointly, on March 16, 2001, July 23, 2001, and March 27, 2002, respectively, with the SEC, the Shareholders became executive officers and members of the Board of Directors of the Company. In such capacities they have had, and expect to continue to have, the opportunity to influence the management, and affect the performance, of the Company, subject to the supervision of the Company's Board. Each Shareholder was granted an option (each, individually, an "Option," and together, the "Options") to purchase 1,120,000 shares of common stock, $.32 par value per share, of the Company (the "Common Stock") at an exercise price of $5 per share, as compensation for his service to the Company. The Options became exercisable by the Shareholders over three years in accordance with a vesting schedule set forth in the Options, and are otherwise subject to the terms, restrictions and limitations set forth in the Options. Notwithstanding the vesting schedule set forth in the Options, the Options became exercisable for 25% of the Common Stock granted pursuant to the Options at any time after the last sale price of the Common Stock exceeded $8.475 for twenty consecutive days on which securities are traded on the New York Stock Exchange (each, a "Trading Day"). As was disclosed on Amendment No. 2 to Schedule 13D, on June 13, 2001 the Options became exercisable for 25% of the Common Stock granted pursuant to the Options. As was disclosed on Amendment No. 3 to Schedule 13D, on March 9, 2002 an additional 25% of the Common Stock granted pursuant to the Options became exercisable by the Shareholders. According to the vesting schedule, the Options became exercisable for 75% of the Common Stock granted pursuant to the Options on March 9, 2003. The vesting schedule further provided that, on March 9, 2004, the Options became exercisable for 100% of the Common Stock granted pursuant to the Options. Accordingly, each Shareholder is at present the beneficial owner of 1,120,000 shares of Common Stock by reason of the full vesting of the Options granted to him. Also as disclosed on the Amendment No. 1 to Schedule 13D filed on March 16, 2001, the Shareholders entered into a Purchase Agreement with the Company (the "Original Purchase Agreement") on March 9, 2001 setting forth the Shareholders' agreed-to investment in the Company. Pursuant to and in accordance with the terms of the Original Purchase Agreement, the Shareholders purchased promissory notes (the "Original Notes", and, individually, an "Original Note") in the aggregate principal amount of $10 million--each receiving an Original Note for $5 million. On June 7, 2004, the Shareholders entered into a basic refinancing agreement with the Company (the "Refinancing Agreement") providing that the Shareholders surrender the Original Notes for cancellation and receive amended and restated promissory notes (the "Notes", and, individually, a "Note"). The Shareholders and the Company amended the Original Purchase Agreement on June 7, 2004 to refer to the Notes instead of the Original Notes (the "Amended Purchase Agreement"). The Notes were originally issued for the aggregate principal amount of $10 million--each receiving an Original Note for $5 million. The Notes are convertible into shares of Common Stock at the Shareholders' election (the "Conversion Election"), subject to certain restrictions and limitations set forth in the Notes. Pursuant to and in accordance with the terms of the Notes, the conversion price for the Notes will drop on June 7, 2005 from $5 per share to $3.10 per share. Interest on the Notes is payable in cash. Until June 7, 2004, the Notes are convertible into an aggregate of 2,000,000 shares of Common Stock at the Shareholders' election. As of June 7, 2005, the Notes will be convertible into an aggregate of 3,225,806 shares of Common Stock at the Shareholders' election, and at such time each Shareholder will be the beneficial owner of 1,612,903 shares of Common Stock by reason of his ownership of his Note. This Amendment No. 4 reflects (a) the shares of Common Stock purchased by the Shareholders on the New York Stock Exchange, (b) the number of shares of Common Stock beneficially owned by the Shareholders arising from their right to exercise the Options to acquire 100% of the Common Stock granted pursuant to the Options, and (c) the number of shares of Common Stock beneficially owned by the Shareholders on June 7, 2005 pursuant to the Conversion Election provided in the Notes. Other than the foregoing, there has been no change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. The Original Purchase Agreement, including the form of Original Notes, and Options are attached as exhibits to the Amendment No. 1 to Schedule 13D filed on March 16, 2001. ITEM 5. INTEREST IN SECURITIES OF ISSUER. (a) AGGREGATE NUMBER AND PERCENTAGE OF SHARES OWNED. As of the date of this Amendment No. 4 to Schedule 13D, the Shareholders beneficially own an aggregate of 6,809,606 shares of Common Stock, which includes an aggregate of 2,240,000 shares of Common Stock that the Shareholders have a right to acquire pursuant to the Options and an aggregate of 3,225,806 shares of Common Stock that the Shareholders have a right to acquire pursuant to the Conversion Election provided in the Notes. The Shareholders beneficially own, or have a right to acquire pursuant to the Options, in the aggregate 30.1% of the issued and outstanding Common Stock, such percentage being calculated by dividing 6,809,606 (the number of shares of Common Stock beneficially owned, including those that the Shareholders have a right to acquire pursuant to the Options, by the Shareholders) by 22,631,858 (the number of issued and outstanding shares of Common Stock as of March 1, 2005, as reported in the Company's Form 10-Q for the quarter ended February 9, 2005). Each Shareholder owns beneficially, including through a right to acquire beneficial ownership, such number of shares of Common Stock as are set forth below: C. Pappas 3,404,803 H. Pappas 3,404,803 --------- TOTAL 6,809,606 Each Shareholder disclaims beneficial ownership of any shares of Common Stock held of record by the other Shareholder or which the other Shareholder has a right to acquire by option exercise or Note conversion. (b) NUMBER OF SHARES BENEFICIALLY OWNED BY THE SHAREHOLDERS. Harris James Pappas ------------------- H. Pappas has, or could have, sole power to vote, and to dispose of, 3,404,803 shares of Common Stock, which includes 1,120,000 shares of Common Stock that H. Pappas has a right to acquire pursuant to an Option and 1,612,903 shares of Common Stock that H. Pappas has a right to acquire pursuant to the Conversion Election provided in the Notes, such shares being beneficially owned by him. Christopher James Pappas ------------------------ C. Pappas has, or could have, sole power to vote, and to dispose of, 3,404,803 shares of Common Stock, which includes 1,120,000 shares of Common Stock that C. Pappas has a right to acquire pursuant to an Option and 1,612,903 shares of Common Stock that C. Pappas has a right to acquire pursuant to the Conversion Election provided in the Notes, such shares being beneficially owned by him. (c) There has been no change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002, other than an aggregate of 2,240,000 shares of Common Stock that are issuable to the Shareholders upon exercise of the Options for 100% of the Common Stock granted to the Shareholders thereunder and an aggregate of 3,225,806 shares of Common Stock that the Shareholders have a right to acquire pursuant to the Conversion Election provided in the Notes. The Shareholders have not yet exercised the exercisable portions of the Options, nor have the Shareholders exercised the election to convert the Notes to shares of Common Stock. (d) No change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. (e) No change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF ISSUER. No change since the Amendment No. 3 to Schedule 13D was filed on March 27, 2002, except to the extent set forth in Item 4 hereof. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Ex. A Agreement for Joint Filing Pursuant to Rule 13d-1(f)(1) Under the Securities Exchange Act of 1934, dated December 26, 2000, between Harris James Pappas and Christopher James Pappas. Ex. B Purchase Agreement, dated as of March 9, 2001, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. C Employment Agreement, dated as of March 9, 2001, between the Company and Christopher J. Pappas. Ex. D Employment Agreement, dated as of March 9, 2001, between the Company and Harris J. Pappas. Ex. E Option Agreement, dated as of March 9, 2001, between the Company and Christopher J. Pappas. Ex. F Option Agreement, dated as of March 9, 2001, between the Company and Harris J. Pappas. Ex. G Registration Rights Agreement, dated as of March 9, 2001, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. H Form of Basic Refinancing Agreement, dated as of June 7, 2004, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. I Form of First Amendment to Purchase Agreement, dated as of June 7, 2004, among the Company, Christopher J. Pappas and Harris J. Pappas. ------------------------- * All Material to be Filed as Exhibits, except Exhibit H and Exhibit I, have been filed as exhibits to the Schedule 13D filed by the Shareholders with the SEC on December 16, 2000 or the Amendment No. 1 to Schedule 13D filed by the Shareholders with the SEC on March 16, 2001. Exhibit H and Exhibit I are filed herewith. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 3, 2005 /s/ Harris James Pappas ------------------------------------ Harris James Pappas /s/ Christopher James Pappas ------------------------------------ Christopher James Pappas EXHIBIT INDEX Ex. A Agreement for Joint Filing Pursuant to Rule 13d-1(f)(1) Under the Securities Exchange Act of 1934, dated December 26, 2000, between Harris James Pappas and Christopher James Pappas. Ex. B Purchase Agreement, dated as of March 9, 2001, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. C Employment Agreement, dated as of March 9, 2001, between the Company and Christopher J. Pappas. Ex. D Employment Agreement, dated as of March 9, 2001, between the Company and Harris J. Pappas. Ex. E Option Agreement, dated as of March 9, 2001, between the Company and Christopher J. Pappas. Ex. F Option Agreement, dated as of March 9, 2001, between the Company and Harris J. Pappas. Ex. G Registration Rights Agreement, dated as of March 9, 2001, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. H Form of Basic Refinancing Agreement, dated as of June 7, 2004, among the Company, Christopher J. Pappas and Harris J. Pappas. Ex. I Form of First Amendment to Purchase Agreement, dated as of June 7, 2004, among the Company, Christopher J. Pappas and Harris J. Pappas. ------------------------- * All Material to be Filed as Exhibits, except Exhibit H and Exhibit I, have been filed as exhibits to the Schedule 13D filed by the Shareholders with the SEC on December 16, 2000 or the Amendment No. 1 to Schedule 13D filed by the Shareholders with the SEC on March 16, 2001. Exhibit H and Exhibit I are filed herewith. EX-99.H 2 h26076exv99wh.txt FORM OF BASIC REFINANCING AGREEMENT EXHIBIT H AGREEMENT This AGREEMENT (this "Agreement"), dated as of _____, 2004, by and among Luby's, Inc., a Delaware corporation (together with its subsidiaries, the "Company"), and Harris J. Pappas and Christopher J. Pappas, individuals residing in Houston, Texas (together, the "Noteholders"). In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated: "CLOSING" shall have the meaning specified in Section 6. "COMMON STOCK" means the Company's common stock, par value $.32 per share, and any capital stock for or into which such Common Stock hereafter is exchanged, converted, reclassified or recapitalized by the Company or pursuant to an agreement or business combination to which the Company is a party. "EFFECTIVE DATE" shall mean the effective date of the Senior Secured Refinancing Documents. "EMPLOYMENT AGREEMENT(s)" shall have the meaning specified in Section 3. "NOTE(s)" shall have the meaning specified in Section 2. "ORIGINAL NOTES" shall mean (i) those two certain Convertible Subordinated Promissory Notes, due 2011, dated June 29, 2001, each in the original principal amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) and (ii) those two certain Convertible Subordinated Promissory Notes, due 2011, dated July 2, 2001, each in the original principal amount of Three Million Five Hundred Thousand Dollars ($3,500,000.00). "PURCHASE AGREEMENT" shall mean that certain Purchase Agreement between the Company and the Noteholders, dated as of March 9, 2001. "SENIOR SECURED REFINANCING DOCUMENTS" shall mean senior secured loan documents contemplated by (i) that certain Credit Agreement, dated as of June 7, 2004 among the Company, as borrower, JPMorgan Chase Bank, as administrative lender, and the lenders signatory thereto, and (ii) that certain Term Loan Agreement dated as of June 7, 2004 among the Company, as borrower, Guggenheim Corporate Funding, LLC, as administrative lender, and the lenders signatory thereto including, without limitation, in each case, any intercreditor agreement or subordination agreement required to be executed and delivered by the Noteholders in connection with the execution and delivery of the Senior Secured Refinancing Documents. "STOCK OPTIONS" shall mean the two Stock Options granted to the Noteholders in connection with the employment of the Noteholders, dated March 9, 2001, to purchase an aggregate of 2,240,000 shares of common stock of the Company. - 1 - "TRANSACTION DOCUMENTS" means this Agreement, the Notes, the Employment Agreements, the Stock Options and the Purchase Agreement, each as amended pursuant hereto. 2. AMENDMENT OF NOTES. At the Closing, the Noteholders shall surrender the Original Notes to the Company for cancellation, and the Company shall execute and deliver to the Noteholders the Amended and Restated Convertible Subordinated Promissory Notes in the form attached hereto as EXHIBIT A, to be effective as of the Effective Date. Such Amended and Restated Convertible Subordinated Promissory Notes are referred to herein individually as a "Note" and collectively as the "Notes." In accordance with the terms of the Notes, on the Effective Date the Company shall pay in cash to the Noteholders the amount of unpaid interest accrued on the outstanding principal of the Original Notes up to and including the Effective Date, including accrued interest at the rate set by the Original Notes during an Event of Default (as defined in the Original Notes). 3. EMPLOYMENT AGREEMENTS. At the Closing, the Company and the Noteholders shall execute and deliver the Employment Agreements in the form attached hereto as EXHIBIT B, to be effective as of April 1, 2004. Such Employment Agreements are referred to herein individually as an "Employment Agreement" and collectively as the "Employment Agreements." 4. AMENDMENT OF PURCHASE AGREEMENT. At the Closing, the Company and the Noteholders shall execute and deliver a First Amendment to the Purchase Agreement in the form attached hereto as EXHIBIT C, to be effective as of the Effective Date. 5. EXERCISE OF STOCK OPTIONS. (a) If the Closing occurs, then from and after the Effective Date, the Noteholders shall jointly and severally limit their exercise of the Stock Options such that the number of shares of Common Stock issued upon any exercise(s) of the Stock Options does not exceed, in the aggregate, the Net Treasury Shares Available (as hereinafter defined) unless and until sufficient additional shares are listed with the New York Stock Exchange for issuance upon exercise of the Stock Options. "Net Treasury Shares Available" means (x) the number of shares of Common Stock then held by the Company in treasury, minus (y) the number of shares of Common Stock issuable or issued after the Effective Date under the Nonemployee Director Phantom Stock Plan, and minus (z) the number of shares of Common Stock issuable or issued upon conversion of the Notes, calculated assuming the lowest conversion price stated in the Notes. (b) If the Closing occurs, then from and after the Effective Date, the Company shall (i) use its commercially reasonable best efforts, including the solicitation of shareholder approval, if necessary in the opinion of its counsel, to list, within twelve (12) months after the Effective Date, on the New York Stock Exchange additional shares of Common Stock equal to the number of shares by which the aggregate number of shares of Common Stock acquirable by the Noteholders under the Stock Options exceeds the Net Treasury Shares Available; and (ii) reserve all shares of Common Stock held by the Company in treasury solely for issuance pursuant to (x) the Nonemployee Director Phantom Stock Plan, (y) the Notes, upon exercise by the Noteholders of their conversion rights thereunder, assuming the lowest conversion price stated in the Notes, and (z) the Stock Options, except to the extent the Company lists with the New York Stock Exchange additional shares of Common Stock to permit full conversion of the Notes into Common Stock, assuming the lowest conversion price stated in the Notes, and full exercise of the Stock Options. If the Closing occurs, then from and after the Effective Date, the Company shall not cancel, sell or otherwise dispose of any shares of Common Stock held by the Company in treasury except to the extent - 2 - the Company lists with the New York Stock Exchange a number of additional shares of Common Stock sufficient to permit full conversion of the Notes into Common Stock, assuming the lowest conversion price stated in the Notes, and full exercise of the Stock Options. 6. CLOSING. The execution and delivery of the Notes, the Employment Agreements and the First Amendment to the Purchase Agreement, as contemplated herein (the "Closing") will take place at the offices of the Company at 2211 N.E. Loop 410, San Antonio, Texas, at 10:00 a.m., local time, on the Effective Date, or on such other date as mutually agreed to by the parties hereto. 7. CONDITIONS TO EFFECTIVENESS. (a) All obligations of the Company under this Agreement shall be subject to (i) the full execution and delivery by the Company and all other parties thereto of Senior Secured Refinancing Documents satisfactory, in form and substance, to the Company; and (ii) the Noteholders shall have performed and complied with all covenants and obligations that this Agreement requires the Noteholders to perform or comply with at or prior to Closing. (b) All obligations of the Noteholders under this Agreement shall be subject to (i) the full execution and delivery by the Company and all other parties thereto of Senior Secured Refinancing Documents satisfactory, in form and substance, to the Noteholders; and (ii) the Company shall have performed and complied with all covenants and obligations that this Agreement requires the Company to perform or comply with at or prior to Closing. 8. TERMINATION. By notice given prior to or at the Closing, this Agreement may be terminated (i) by the Company if any condition in Section 7(a) has not been satisfied as of the Effective Date; (ii) by the Noteholders if any condition in Section 7(b) has not been satisfied as of the Effective Date; or (iii) by mutual written consent of the Company and the Noteholders. Each party's right of termination under this Section is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of such right of termination will not be an election of remedies. If this Agreement is terminated pursuant to this Section, all obligations of the parties under this Agreement will terminate. 9. ATTORNEY FEES. The Company shall pay reasonable attorney's fees charged to the Noteholders by Fulbright & Jaworski, L.L.P. in connection with the negotiation, execution and performance of this Agreement, up to, but not exceeding Fifty Thousand Dollars ($50,000.00). 10. NO WAIVER; MODIFICATION IN WRITING. No failure or delay on the part of the Company or a Noteholder in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the written consent of the Company, on the one hand, and Noteholders or their permitted assigns, on the other hand, provided that notice of any such waiver shall be given to each party hereto as set forth below. Any amendment, supplement or modification of or to any provision of this Agreement, or any waiver of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on any party hereto in any case shall entitle the other party to any other or further notice or demand in similar or other circumstances. - 3 - 11. SPECIFIC PERFORMANCE. The parties recognize that in the event the Company or Noteholders should refuse to perform under the provisions of this Agreement or any other Transaction Document, monetary damages alone will not be adequate. Noteholders or the Company, as the case may be, shall therefore be entitled, in addition to any other remedies which may be available, including money damages, to obtain specific performance of the terms of this Agreement. In the event of any action to enforce this Agreement or any other Transaction Document specifically, the Company and Noteholders hereby waive the defense that there is an adequate remedy at law. 12. SEVERABILITY. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Agreement 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 Agreement 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. 13. PARTIES IN INTEREST. This Agreement shall be binding upon and, except as provided below, inure solely to the benefit of each party hereto and their successors and assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. 14. Notices. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN IF DELIVERED PERSONALLY, TELECOPIED OR MAILED BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED), OR SENT BY FEDERAL EXPRESS OR OTHER RECOGNIZED OVERNIGHT COURIER, TO THE PARTIES AT THE FOLLOWING ADDRESSES (OR AT SUCH OTHER ADDRESS FOR A PARTY AS SHALL BE SPECIFIED BY LIKE NOTICE): If to Noteholders: Harris J. Pappas and Christopher J. Pappas 642 Yale Houston, Texas 77007 with a copy to: Frank Markantonis 645 Heights Blvd. Houston, Texas 77007 and Fulbright & Jaworski, L.L.P. 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Attention: Charles H. Still If to the Company: Luby's, Inc. 2211 Northeast Loop 410 San Antonio, Texas 78217-4673 Attention: Chairman of the Board with a copy to: Hornberger Sheehan Fuller & Beiter Inc. 700 N. St. Mary's Street, Suite 600 San Antonio, Texas 78205 Attention: Drew R. Fuller, Jr. - 4 - Any of the above addresses may be changed at any time by notice given as provided above; provided, however, that any such notice of change of address shall be effective only upon receipt. All notices, requests or instructions given in accordance herewith shall be deemed received on the date of delivery, if hand delivered, on the date of receipt, if telecopied, three Business Days after the date of mailing, if mailed by registered or certified mail, return receipt requested, and one Business Day after the date of sending, if sent by Federal Express or other recognized overnight courier. 15. COUNTERPARTS. This Agreement 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 parties, it being understood that all parties need not sign the same counterpart. 16. ENTIRE AGREEMENT. This Agreement (which term shall be deemed to include the Exhibits hereto and the other certificates, documents and instruments delivered hereunder) and the other Transaction Documents constitute the entire agreement of the parties hereto and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. There are no representations or warranties, agreements, or covenants other than those expressly set forth in this Agreement and the other Transaction Documents. 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PROVISIONS. 18. PUBLIC ANNOUNCEMENTS. The Company, on the one hand, and Noteholders, on the other, shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement or the transactions contemplated hereby, except for statements required by Law or by any listing agreements with or rules of any national securities exchange or the National Association of Securities Dealers, Inc., or made in disclosures reasonably determined as required to be filed pursuant to the Securities Act or the Exchange Act. 19. HEADINGS. The headings of this Agreement are for convenience of reference only and are not part of the substance of this Agreement. - 5 - IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement or has caused this Agreement to be executed by its duly authorized officer as of the date first written above. LUBY'S, INC. ------------------------------------- Gasper Mir, III Chairman of the Board NOTEHOLDERS: ------------------------------------- Christopher J. Pappas ------------------------------------- Harris J. Pappas - 6 - EX-99.I 3 h26076exv99wi.txt FORM OF FIRST AMENDMENT TO PURCHASE AGREEMENT EXHIBIT I FIRST AMENDMENT TO PURCHASE AGREEMENT This FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Amendment"), dated as of __________ ___, 2004, by and among Luby's, Inc., a Delaware corporation (together with its subsidiaries, the "Company"), and Harris J. Pappas and Christopher J. Pappas, individuals residing in Houston, Texas (together, the "Noteholders"). In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree to amend that certain Purchase Agreement, dated March 9, 2001, by and between the Company and the Noteholders (the "Purchase Agreement"), as follows: 1. DEFINITIONS. The following definitions in Section 1.1, of the Purchase Agreement are hereby amended and restated in their entirety, to read as follows: "NOTES" means those certain Amended and Restated Convertible Subordinated Promissory Notes in substantially the form of EXHIBIT "A" hereto, pursuant to which the Company is the borrower and the Purchasers are the Holders, and each, individually, a "Note". 2. BOARD OF DIRECTORS. Section 5.3(b) of the Purchase Agreement is amended and restated in its entirety to read as follows: "(b) For so long as (i) both of the Purchasers are executive officers of the Company or (ii) any principal or interest remains outstanding under any of the Notes and the Purchasers remain the holders of the Notes, at any meeting of the shareholders of the Company held for the purpose of electing directors of the Company, the Purchasers shall be entitled to nominate a number of directors for election to the Board which, if such nominees are elected, would result in the Purchaser's having nominated three of the then serving directors and the Company shall use its reasonable best efforts to cause such nominees to be nominated for election to the Board." 3. STANDSTILL. Section 5.4 of the Purchase Agreement is amended and restated in its entirety to read as follows: "(a) The Purchasers agree that they, together with their Affiliates and Associates and any 13d Group of which they are a part, shall not Beneficially Own any Voting Stock or Common Stock of the Company in excess of the Maximum Percentage Ownership until such time as neither of the Purchasers is a director, officer, employee or consultant of the Company, at which time this covenant shall be of no further force or effect whatsoever. (b) The Purchasers may elect to surrender all or part of their rights under the Options in order to reduce the number of shares of Voting Stock or Common Stock of the Company Beneficially Owned by the Purchasers so as to permit the Purchasers to purchase additional shares of Voting Stock or Common Stock of the Company in the open market without violating this Section 5.4. (c) The covenant contained in Section 5.4(a) above shall terminate and shall be of no further force or effect upon the occurrence of a Change of Control (as such term is defined in the Notes. 4. COUNTERPARTS. 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 parties, it being understood that all parties need not sign the same counterpart. 5. ENTIRE AGREEMENT. This Amendment (which term shall be deemed to include the Exhibits hereto and the other certificates, documents and instruments delivered hereunder) together with the Purchase Agreement constitutes the entire agreement of the parties hereto and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. There are no representations or warranties, agreements, or covenants with respect to the subject matter hereof other than those expressly set forth in this Amendment and the Purchase Agreement. 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PROVISIONS. 7. PUBLIC ANNOUNCEMENTS. The Company, on the one hand, and Noteholders, on the other, shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Amendment or the transactions contemplated hereby, except for statements required by Law or by any listing agreements with or rules of any national securities exchange or the National Association of Securities Dealers, Inc., or made in disclosures reasonably determined as required to be filed pursuant to the Securities Act or the Exchange Act. 8. HEADINGS. The headings of this Amendment are for convenience of reference only and are not part of the substance of this Amendment. IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed by its duly authorized officer as of the date first written above. LUBY'S, INC. By ----------------------------------- Gasper Mir, III Chairman of the Board PURCHASERS: ----------------------------------- Harris J. Pappas ----------------------------------- Christopher J. Pappas 2 -----END PRIVACY-ENHANCED MESSAGE-----