form10-k_a.htm



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.  20549

  FORM 10-K/A

              [ X ]
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the Fiscal Year Ended December 28, 2008
OR
 
[    ]
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number:  0-28234

MEXICAN RESTAURANTS, INC.
(Exact name of registrant as specified in its charter)

Texas
76-0493269
(State or other jurisdiction of
incorporation or organization)
(IRS Employer Identification Number)

1135 Edgebrook, Houston, Texas
77034-1899
(Address of Principal Executive Offices)
(Zip Code)

Registrant’s telephone number, including area code:  713-943-7574

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class
Name of Each Exchange on Which Registered
Common Stock
Nasdaq Stock Market LLC

Securities registered pursuant to Section 12(g) of the Act:  None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes           ¨           No þ

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes¨No þ

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes  þ   No  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [  ]

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See the definitions of "large accelerated filer”, “accelerated filer" and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):
 
Large accelerated filer ¨                                                          Accelerated filer ¨                                           Non-accelerated filer ý          Smaller reporting company ¨
 
Indicate by check mark whether the Registrant is a shell company (as defined by Rule 12b-2 of the Act).Yes ¨ No ý
 

 
 
 

The aggregate market value of the Registrant’s Common Stock held by non-affiliates of the Registrant, based on the sale trade price of the Common Stock as reported by the Nasdaq Small Cap Market on June 27, 2008, the last business day of the Registrant’s most recently completed second quarter, was $4,310,469. For purposes of this computation, all officers, directors and 10% beneficial owners of the registrant are deemed to be affiliates.  Such determination should not be deemed an admission that such officers, directors or 10% beneficial owners are, in fact, affiliates of the Registrant.
 

Number of shares outstanding of the Registrant’s Common Stock, as of December 28, 2008: 3,251,641 shares of Common Stock, par value $.01.

Documents Incorporated By Reference

Specified portions of the Registrant’s definitive proxy statement in connection with the 2009 Annual Meeting of Shareholders to be held May 27, 2009, to be filed with the Securities and Exchange Commission pursuant to Regulation 14A, are incorporated by reference into Part III of this report.

 
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EXPLANATORY NOTE

Mexican Restaurants, Inc. (the “Company”) is filing Amendment No. 1 (this “Amendment”) to the Company’s Annual Report on Form 10-K for the year ended December 28, 2008 (the “2008 Form 10-K”), which was originally filed on March 26, 2009 (the “Original Report”), to include an exhibit (Exhibit 10.16.1) omitted from the Original Report.

No other revisions or amendments have been made to Part IV, Item 15 or to any other portion of the Company’s 2008 Form 10-K.  This Amendment does not reflect events occurring after March 26, 2009, the date of the filing of the Original Report, or modify or update those disclosures that may have been affected by subsequent events.  Currently-dated certifications from the Mexican Restaurants, Inc.’s Chief Executive Officer and Chief Financial Officer have been included as exhibits to this Amendment.

PART IV

ITEM 15.
EXHIBITS AND CONSOLIDATED FINANCIAL STATEMENT SCHEDULES

(a)  
The following documents are filed as part of this Report:

1.  
Consolidated Financial Statements:

The Consolidated Financial Statements are listed in the index to Consolidated Financial Statements on page F-1 of this Report.
 
           2.   Consolidated Financial Statement Schedules are omitted because they are either not applicable or not material.

 
   3.
The following exhibits are filed, furnished or incorporated by reference as exhibits to this Report as required by Item 601 of Regulation S-K. The exhibits designated with a cross are management contracts and compensatory plans and arrangements required to be filed as exhibits to this report.

               Exhibits:

3.1
  Articles of Incorporation of the Company, as amended (incorporated by reference to the corresponding Exhibit number of the Company’s Form 8-K filed on May 25, 1999 with the Securities and Exchange   
  Commission).
 
‡3.2
  Bylaws of the Company.
 
‡4.1
  Specimen of Certificate of Common Stock of the Company.
 
4.2
  Articles of Incorporation of the Company (see 3.1 above).
 
‡4.3
  Bylaws of the Company (see 3.2 above).
 
±†10.1
  Employment Agreement by and between the Company and Louis P. Neeb dated April 2, 2001.

10.2
  Indemnity Agreement by and between the Company and Louis P. Neeb dated as of April 10, 1996 (incorporated by reference to Exhibit 10.4 of the Company’s Form S-1 Registration Statement filed under the 
  Securities Act of 1933, dated April 24, 1996, with the Securities and Exchange Commission (Registration Number 333-1678) (the “1996 Form S-1”)).

10.3
  Indemnity Agreement by and between the Company and Larry N. Forehand dated as of April 10, 1996 (incorporated by reference to Exhibit 10.5 of the 1996 Form S-1).
 
10.4
  Indemnity Agreement by and between the Company and Michael D. Domec dated as of April 10, 1996 (incorporated by reference to Exhibit 10.8 of the 1996 Form S-1).
   
10.5
  Indemnity Agreement by and between the Company and J. J. Fitzsimmons dated as of April 10, 1996 (incorporated by reference to Exhibit 10.10 of the 1996 Form S-1).
 
10.6
  Form of the Company's Multi-Unit Development Agreement (incorporated by reference to Exhibit 10.14 of the 1996 Form S-1).
 
10.7
  Form of the Company's Franchise Agreement (incorporated by reference to Exhibit 10.15 of the 1996 Form S-1).
 
†10.8
 
  1996 Long Term Incentive Plan (incorporated by reference to Exhibit 10.16 of the 1996 Form  S-1).
 
†10.9
  Mexican Restaurants, Inc. 2005 Long Term Incentive Plan (incorporated by reference to Exhibit 99.1 of the Company’s Form S-8 filed December 1, 2005 with the Securities and Exchange Commission).
 
†10.10
  Stock Option Plan for Non-Employee Directors (incorporated by reference to Exhibit 10.17 of the 1996 Form S-1).
 
10.11
  Indemnification letter agreement by Larry N. Forehand dated April 10, 1996 (incorporated by reference to Exhibit 10.35 of the 1996 Form S-1).
 
†10.12
  1996 Manager’s Stock Option Plan (incorporated by reference to Exhibit 99.2 of the Company’s Form S-8 Registration Statement filed on February 24, 1997 with the Securities and Exchange Commission).

†10.13
  Employment Agreement by and between the Company and Andrew J. Dennard dated May 20, 1997 (incorporated by reference to Exhibit 10.45 of the Company’s Form 10-K Annual Report filed on March 30,  
  1998 with the Securities and Exchange Commission).
   
 †10.14
  Performance Unit Agreement by and between Mexican Restaurants, Inc. and Andrew Dennard dated August 16, 2005 (incorporated by reference to Exhibit 10.25 to the Company’s Form 10-K Annual Report
  filed on March 30, 2006 with the Securities and Exchange Commission).
 
†10.15
  Performance Unit Agreement by and between Mexican Restaurants, Inc. and Louis P. Neeb dated August 16, 2005 (incorporated by reference to Exhibit 10.27 to the Company’s Form 10-K Annual Report filed
  on March 30, 2006 with the Securities and Exchange Commission).
 
10.16
  Credit Agreement between Mexican Restaurants, Inc. and Wells Fargo Bank, N.A. dated June 29, 2007 (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on July 6, 2007 with the
  Securities and Exchange Commission).
 
 
10.17
  Stock Purchase Agreement between Mexican Restaurants, Inc. and Forehand Family Partnership, Ltd. dated June 13, 2007 (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed on
  August 14, 2007 with the Securities and Exchange Commission).
 
±21.1
  List of subsidiaries of the Company.
 
±23.1
  Consent of UHY LLP, Independent Registered Public Accounting Firm.
 
±24.1
  Power of Attorney (included on the signature page to this Form 10-K).
 
 
 
 
_____
  
   
   
*
Filed herewith.
‡
Incorporated by reference to corresponding exhibit number of the Company’s Form S-1 Registration Statement under the Securities Act of 1933, dated April 24, 1996, with the Securities and Exchange Commission (Registration Number 333-1678) (the “1996 Form S-1”).
†
Management contract or compensatory plan or arrangement.
#
Furnished herewith.
±
Filed with the Original Report on March 26, 2009.


 
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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on April 8, 2009.

MEXICAN RESTAURANTS, INC.
 
By:  /s/  Curt Glowacki
Curt Glowacki,
President and Chief Executive Officer