**Exhibit 10.9**

**Landry’s Restaurants, Inc. 2003 Equity Incentive Plan**

 

The Landry’s Restaurants, Inc. 2003 Equity Incentive Plan (the “Plan”) was adopted by the Board of Directors of Landry’s Restaurants,Inc., a Delaware corporation (the “Company”), on June 23, 2003. 

 

**ARTICLE 1**

**PURPOSE**

 

The purposes of the Plan are to foster and promote the long-term financial success of the Company and its Subsidiaries andmaterially increase the value of the Company and its Subsidiaries by (a) encouraging the long-term commitment of the Employees of the Company and its Subsidiaries, (b) motivating performance of the Employees of the Company and its Subsidiaries bymeans of long-term performance related incentives, (c) encouraging and providing Employees of the Company and its Subsidiaries with an opportunity to obtain an ownership interest in the Company, (d) attracting and retaining outstanding Employees byproviding incentive compensation opportunities, and (e) enabling participation by Employees in the long-term growth and financial success of the Company and its Subsidiaries. 

 

With respect to Reporting Participants, the Plan and all transactions under the Plan are intended to comply with allapplicable conditions of Rule 16b-3 promulgated under the Securities Exchange Act of 1934 (the “1934 Act”). To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void *abinitio*, to the extent permitted by law and deemed advisable by the Committee. 

 

**ARTICLE 2**

**DEFINITIONS**

 

For the purpose of the Plan, unless the context requires otherwise, the following terms shall have the meanings indicated:

 

2.1    “Award” means the grantof any Restricted Stock, Incentive Stock Option, or Nonqualified Stock Option, with or without a CEV feature (referred to herein sometimes as an “Incentive”). 

 

2.2    “Award Agreement” means a written agreement between a Participant and the Company whichsets out the terms of the grant of an Award. 

 

2.3    “Award Period” means the period set forth in the Award Agreement with respect to a Stock Option during which the Stock Option may be exercised, which shall commence on the Date of Grant and expire at thetime set forth in the Award Agreement. 

 

2.4    “Board” means the board of directors of the Company. 

 

2.5    “CEV” or “Cash Equivalent Value” means the feature consisting of a payment in cash equal to the excess ofthe Fair Market Value of a specified number of shares of Common Stock on the date the Stock Option is exercised over the CEV Price for such shares. 

 

2.6    “CEV Price” means the exercise price of each share of Common Stock covered by a CEV feature, determined on the Dateof Grant of the Stock Option containing the CEV. 

 

2.7    “Code” means the Internal Revenue Code of 1986, as amended. 

2.8      “Committee” means the committee appointed or designatedby the Board to administer the Plan in accordance with Article 3 of this Plan. 

 

2.9      “Common Stock” means the common stock, par value $0.01 per share, which the Company is currently authorized to issue or may in the future be authorized to issue, or anysecurities into which or for which the common stock of the Company may be converted or exchanged, as the case may be, pursuant to the terms of this Plan. 

 

2.10    “Company” means Landry’s Restaurants, Inc., a Delaware corporation, and any successor entity. 

 

2.11    “Corporation” means any entity that (i)is defined as a corporation under Code Section 7701 and (ii) is the Company or is in an unbroken chain of corporations (other than the Company) beginning with the Company, if each of the corporations other than the last corporation in the unbrokenchain owns stock possessing a majority of the total combined voting power of all classes of stock in one of the other corporations in the chain. For purposes of clause (ii) hereof, an entity shall be treated as a “corporation” if itsatisfies the definition of a corporation under Section 7701 of the Code. 

 

2.12    “Date of Grant” means the effective date on which an Award is made to a Participant as set forth in the applicable Award Agreement. 

 

2.13    “Employee” means common law employee(as defined in accordance with the Regulations and Revenue Rulings then applicable under Section 3401(c) of the Code) of the Company or any Subsidiary of the Company. 

 

2.14    “Fair Market Value” means, as of a particular date, (i) if the shares of Common Stockare listed on a national securities exchange, the closing sales price per share of Common Stock on the consolidated transaction reporting system for the principal securities exchange for the Common Stock on that date, or, if there shall have been nosuch sale so reported on that date, on the last preceding date on which such a sale was so reported, (ii) if the shares of Common Stock are not so listed but are quoted on the Nasdaq National Market System, the closing sales price per share ofCommon Stock on the Nasdaq National Market System on that date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which such a sale was so reported, (iii) if the Common Stock is not so listed orquoted, the mean between the closing bid and asked price on that date, or, if there are no quotations available for such date, on the last preceding date on which such quotations shall be available, as reported by Nasdaq, or, if not reported byNasdaq, by the National Quotation Bureau, Inc., or (iv) if none of the above is applicable, such amount as may be determined by the Board (acting on the advice of an Independent Third Party, should the Board elect in its sole discretion to utilizean Independent Third Party for this purpose), in good faith, to be the fair market value per share of Common Stock. 

 

2.15    “Independent Third Party” means an individual or entity independent of the Company having experience in providinginvestment banking or similar appraisal or valuation services and with expertise generally in the valuation of securities or other property for purposes of this Plan. The Board may utilize one or more Independent Third Parties. 

 

2.16    “Incentive Stock Option” means anincentive stock option within the meaning of Section 422 of the Code, granted pursuant to this Plan. 

 

2.17    “Nonqualified Stock Option” means a nonqualified stock option, granted pursuant to this Plan, to which Section 421of the Code does not apply. 

 

2.18    “Option Price” means the price which must be paid by a Participant upon exercise of a Stock Option to purchase a share of Common Stock. 

 

2.19    “Participant” means an Employee of the Company or a Subsidiary to whom an Award isgranted under this Plan. 

2.20    “Plan” means this Landry’s Restaurants, Inc. 2003 EquityIncentive Plan, as amended from time to time. 

 

2.21    “Reporting Participant” means a Participant who is subject to the reporting requirements of Section 16 of the 1934 Act. 

 

2.22    “Restricted Stock” means shares of Common Stock issued or transferred to a Participantpursuant to Section 6.5 of this Plan which are subject to restrictions or limitations set forth in this Plan and in the related Award Agreement. 

 

2.23    “Stock Option” means a Nonqualified Stock Option or an Incentive Stock Option. 

 

2.24    “Subsidiary” means (i) any corporationin an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing a majority of the total combined voting power of all classes of stock in one ofthe other corporations in the chain, (ii) any limited partnership, if the Company or any corporation described in item (i) above owns a majority of the general partnership interest and a majority of the limited partnership interests entitled to voteon the removal and replacement of the general partner, and (iii) any partnership or limited liability company, if the partners or members thereof are composed only of the Company, any corporation listed in item (i) above or any limited partnershiplisted in item (ii) above. “Subsidiaries” means more than one of any such corporations, limited partnerships, partnerships or limited liability companies. 

 

2.25    “Termination of Service” occurs when a Participant who is an Employee of the Companyor any Subsidiary shall cease to serve as an Employee of the Company and its Subsidiaries, for any reason; provided, however, if any Termination of Service provided for herein shall fall on a Saturday, Sunday or legal holiday, then such date ofTermination of Service shall be deemed to be the first normal business day of the Company, at its office in Houston, Texas, before such Saturday, Sunday or legal holiday. If, however, a Participant who is an Employee and who has an Incentive StockOption ceases to be an Employee but does not suffer a Termination of Service, and if that Participant does not exercise the Incentive Stock Option within the time required under Code section 422 upon ceasing to be an Employee, the Incentive StockOption shall thereafter become a Nonqualified Stock Option. 

 

2.26    “Total and Permanent Disability” means a Participant is qualified for long-term disability benefits under the Company’s or Subsidiary’s disability plan or insurance policy; or, if no such planor policy is then in existence or if the Participant is not eligible to participate in such plan or policy, that the Participant, because of a physical or mental condition resulting from bodily injury, disease, or mental disorder which prevents theParticipant from performing his or her duties of employment for a period of six (6) continuous months, as determined in good faith by the Committee, based upon medical reports or other evidence satisfactory to the Committee; providedthat, with respect to any Incentive Stock Option, Total and Permanent Disability shall have the meaning given it under the rules governing Incentive Stock Options under the Code. 

 

**ARTICLE 3**

**ADMINISTRATION**

 

Subject to the terms of thisArticle 3, the Plan shall be administered by the Board or such committee of the Board as is designated by the Board to administer the Plan (the “Committee”). The Committee shall consist of not fewer than two persons. Any member of theCommittee may be removed at any time, with or without cause, by resolution of the Board. Any vacancy occurring in the membership of the Committee may be filled by appointment by the Board. At any time there is no Committee to administer the Plan,any references in this Plan to the Committee shall be deemed to refer to the Board. If the Compensation Committee of the Board is not responsible for administering the Plan, the Compensation 

Committee shall have the right to exercise any of its responsibilities with respect to the Plan as set forth in itsCharter. 

 

If necessary to satisfy the requirements of Section162(m) of the Code and/or Rule 16b-3 promulgated under the 1934 Act, membership on the Committee shall be limited to those members of the Board who are “outside directors” under Section 162(m) of the Code and/or “non-employeedirectors” as defined in Rule 16b-3 promulgated under the 1934 Act. The Committee shall select one of its members to act as its Chairman. A majority of the Committee shall constitute a quorum, and the act of a majority of the members of theCommittee present at a meeting at which a quorum is present shall be the act of the Committee. 

 

The Committee shall determine and designate from time to time the eligible persons to whom Awards will be granted and shall set forth in each related Award Agreement, where applicable, the Award Period, the Date ofGrant, and such other terms, provisions, limitations, and performance requirements, as are approved by the Committee, but not inconsistent with the Plan (subject to the Compensation Committee of the Board’s responsibility to determine the ChiefExecutive Officer’s compensation). The Committee shall determine whether an Award shall include one type of Incentive or two or more Incentives granted in tandem (that is, a joint grant where, under the terms of the Award Agreement, exercise ofone Incentive results in cancellation of all or a portion of the other Incentive). Although the members of the Committee shall be eligible to receive Awards, no member of the Committee shall participate in any decisions regarding any Award grantedhereunder to such member. All decisions with respect to any Award, and the terms and conditions thereof, to be granted under the Plan to any member of the Committee shall be made solely and exclusively by the other members of the Committee, or ifsuch member is the only member of the Committee, by the Board. 

 

Notwithstanding the provisions of the preceding paragraph, the Board may, in its discretion and by a resolution adopted by the Board, authorize one or more officers of the Company (an “Authorized Officer”) to (i) designate one ormore Employees as eligible persons to whom Awards will be granted under the Plan and (ii) determine the number of shares of Common Stock that will be subject to such Awards; provided, however, that the resolution of the Board granting such authorityshall (x) specify the total number of shares of Common Stock that may be made subject to the Awards, (y) set forth the price or prices (or a formula by which such price or prices may be determined) to be paid for the purchase of the Common Stocksubject to such Awards, and (z) not authorize an officer to designate himself as a recipient of any Award. The Authorized Officer shall notify the Committee in writing of the persons designated to receive such Awards, the type of Award or the typeof Incentives subject to the Award, the Date of Grant, the number of shares of Common Stock that will be subject to such Awards, and the purchase price to be paid for such shares. If authorized to do so in the Board’s written resolution, theAuthorized Officer shall cause the Company to execute an Award Agreement with the Participant, subject to the Committee’s ratification of such terms of an Award as required by law. 

 

Within an administratively reasonable time after receipt of the Authorized Officer’s written notice of one or moreAwards, the Committee shall authorize or ratify the grant of such Awards and shall prescribe all other terms of such Awards pursuant to its authority set forth in the preceding paragraphs of this Article 3. 

 

The Committee, in its discretion, shall (i) interpret the Plan, (ii)prescribe, amend, and rescind any rules and regulations necessary or appropriate for the administration of the Plan, (iii) establish performance goals for an Award and certify the extent of their achievement, and (iv) make such other determinationsor certifications and take such other action as it deems necessary or advisable in the administration of the Plan. Any interpretation, determination, or other action made or taken by the Committee shall be final, binding, and conclusive on allinterested parties. The Committee’s discretion set forth herein shall not be limited by any provision of the Plan, including any provision which by its terms is applicable notwithstanding any other provision of the Plan to the contrary.

The Committee may delegate to officers of the Company, pursuant to a written delegation, the authority toperform specified functions under the Plan. Any actions taken by any officers of the Company pursuant to such written delegation of authority shall be deemed to have been taken by the Committee. 

 

With respect to restrictions in the Plan that are based on the requirementsof Rule 16b-3 promulgated under the 1934 Act, the Sarbanes-Oxley Act of 2002, Section 422 of the Code, Section 162(m) of the Code, the rules of any exchange or inter-dealer quotation system upon which the Company’s securities are listed orquoted, or any other applicable law, rule or restriction (collectively, “applicable law”), to the extent that any such restrictions are no longer required by applicable law, the Committee shall have the sole discretion and authority togrant Awards that are not subject to such mandated restrictions and/or to waive any such mandated restrictions with respect to outstanding Awards. To the extent there are restrictions of applicable law that would affect the actions of the Committeeor the composition of the Committee as otherwise provided for under the terms of the Plan, then notwithstanding the terms and provisions of the Plan, those restrictions of applicable law shall apply under the Plan as if those restrictions were fullyset forth in the Plan. 

 

**ARTICLE 4**

**ELIGIBILITY**

 

Any Employee (including an Employee who is also an officer) of the Company whose judgment, initiative, and efforts contributed or may be expected tocontribute to the successful performance of the Company is eligible to participate in the Plan. The Committee, upon its own action, may grant, but shall not be required to grant, an Award to any Employee of the Company or any Subsidiary. Awards maybe granted by the Committee at any time and from time to time to new Participants, or to then Participants, or to a greater or lesser number of Participants, and may include or exclude previous Participants, as the Committee shall determine. Exceptas required by this Plan, Awards granted at different times need not contain similar provisions. The Committee’s determinations under the Plan (including without limitation determinations of which Employees are to receive Awards, the form,amount and timing of such Awards, the terms and provisions of such Awards and the agreements evidencing same) need not be uniform and may be made by the Committee selectively among Participants who receive, or are eligible to receive, Awards underthe Plan. 

 

**ARTICLE 5**

**SHARES SUBJECT TO PLAN**

 

**5.1    Number Available for Awards**. Subject to adjustment as provided in Articles 11 and 12, the maximum number of shares ofCommon Stock that may be delivered pursuant to Awards granted under the Plan is seven hundred thousand (700,000) shares. Shares to be issued shall be solely from Common Stock held by the Company in its treasury. During the term of this Plan, theCompany will at all times reserve and keep available the number of shares of Common Stock that shall be sufficient to satisfy the requirements of this Plan. 

 

**5.2    Reuse of Shares**. Subject to Section 5.2(c), if, and to the extent: 

 

(a)    A Stock Option shall expire orterminate for any reason without having been exercised in full, or in the event that a Stock Option is exercised or settled in a manner such that some or all of the shares of Common Stock relating to the Stock Option are not issued to theParticipant (or beneficiary) (including as the result of the use of shares for withholding taxes), the shares of Common Stock subject thereto which have not become outstanding shall (unless the Plan shall have sooner terminated) become available forissuance under the Plan; in addition, with respect to any share-for-share exercise or cashless exercise pursuant to Section 8.3 or otherwise, only the “net” shares issued shall be deemed to have become outstanding for purposes of the Planas a result thereof. Notwithstanding the foregoing provisions of this paragraph (a), shares which 

were not issued because they were used for withholding taxes are not available for issuance for purposesof granting Incentive Stock Options. 

 

(b)    If shares of Restricted Stock under the Plan are forfeited for any reason, such shares of Restricted Stock shall (unless the Plan shall have sooner terminated) become available for issuance under the Plan;provided, however, that if any dividends paid with respect to shares of Restricted Stock were paid to the Participant prior to the forfeiture thereof, such shares shall not be reused for grants or awards. 

 

**ARTICLE 6**

**GRANT OF AWARDS**

 

**6.1    In General.** The Company shall execute an Award Agreement with a Participant after the Committee approves the issuance of an Award. Any Award granted pursuant to this Plan must begranted within ten (10) years after the date of adoption of this Plan of, if later and so required, the date of stockholder approval for the Plan. If required by rules or regulations of the New York Stock Exchange or otherwise required by applicablelaw, or if desired by the Board, the Plan shall be submitted to the Company’s stockholders for approval; however, the Committee may grant Awards under the Plan prior to the time of any required or desired stockholder approval. Any such Awardgranted prior to such stockholder approval, if required or desired by the Board, shall be made subject to such stockholder approval. The grant of an Award to a Participant shall not be deemed either to entitle the Participant to, or to disqualifythe Participant from, receipt of any other Award under the Plan. 

 

**6.2    Stock Options.** The grant of an Award of Stock Options shall be authorized by the Committee and shall be evidenced by an Award Agreement setting forth: (i) the Incentive being granted, (ii) the total numberof shares of Common Stock subject to the Incentive(s), (iii) the Option Price, (iv) the Award Period, (v) the Date of Grant, and (vi) such other terms, provisions, limitations, and performance objectives, as are approved by the Committee, but notinconsistent with the Plan. 

 

**6.3    Option Price.** The Option Price for any share of Common Stock which may be purchased under a Nonqualified Stock Option for any share of Common Stock may be equal to, less than, or greater than the FairMarket Value of the share on the Date of Grant. The Option Price for any share of Common Stock which may be purchased under an Incentive Stock Option must be at least equal to the Fair Market Value of the share on the Date of Grant; if an IncentiveStock Option is granted to an Employee who owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than ten percent (10%) of the combined voting power of all classes of stock of the Company (or any parent orSubsidiary), the Option Price shall be at least 110% of the Fair Market Value of the Common Stock on the Date of Grant. 

 

**6.4    Maximum ISO Grants.** The Committee may not grant Incentive Stock Options under the Plan to any Employee which wouldpermit the aggregate Fair Market Value (determined on the Date of Grant) of the Common Stock with respect to which Incentive Stock Options (under this and any other plan of the Company and its Subsidiaries) are exercisable for the first time by suchEmployee during any calendar year to exceed $100,000. To the extent any Stock Option granted under this Plan which is designated as an Incentive Stock Option exceeds this limit or otherwise fails to qualify as an Incentive Stock Option, such StockOption (or any such portion thereof) shall be a Nonqualified Stock Option. In such case, the Committee shall designate which stock will be treated as Incentive Stock Option stock by causing the issuance of a separate stock certificate andidentifying such stock as Incentive Stock Option stock on the Company’s stock transfer records. 

 

**6.5    Restricted Stock.** If Restricted Stock is granted to or received by a Participant under an Award (including a StockOption), the Committee shall set forth in the related Award Agreement: (i) the number of shares of Common Stock awarded, (ii) the price, if any, to be paid by the Participant for such Restricted Stock and the method of payment of the price, (iii)the time or times within which such Award may be subject to forfeiture, (iv) specified performance goals of the Company, a Subsidiary, any division thereof or any group of Employees of the Company, or other criteria, which the Committee determines

must be met in order to remove any restrictions (including vesting) on such Award, and (v) all other terms, limitations,restrictions, and conditions of the Restricted Stock, which shall be consistent with this Plan. The provisions of Restricted Stock need not be the same with respect to each Participant. If the Committee establishes a purchase price for an Award ofRestricted Stock, the Participant must accept such Award within a period of thirty (30) days (or such shorter period as the Committee may specify) after the Date of Grant by executing the applicable Award Agreement and paying such purchase price.

 

**(a)    Legend onShares.** Each Participant who is awarded or receives Restricted Stock shall be issued a stock certificate or certificates in respect of such shares of Common Stock. Such certificate(s) shall be registered in the name of the Participant, and shallbear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, substantially as provided in Section 15.9 of the Plan.****

 

**(b)    Restrictions and Conditions.** Shares of Restricted Stock shall be subjectto the following restrictions and conditions: 

 

(i)    Subject to the other provisions of this Plan and the terms of the particular Award Agreements, during such period as may be determined by the Committee commencing on the Date of Grant or the date of exercise of anAward (the “Restriction Period”), the Participant shall not be permitted to sell, transfer, pledge or assign shares of Restricted Stock. Except for these limitations, the Committee may in its sole discretion, remove any or all of therestrictions on such Restricted Stock whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the date of the Award, such action is appropriate. 

 

(ii)    Except as provided insub-paragraph (i) above or in the applicable Award Agreement, the Participant shall have, with respect to his or her Restricted Stock, all of the rights of a stockholder of the Company, including the right to vote the shares, and the right toreceive any dividends thereon. Certificates for shares of Common Stock free of restriction under this Plan shall be delivered to the Participant promptly after, and only after, the Restriction Period shall expire without forfeiture in respect ofsuch shares of Common Stock or after any other restrictions imposed in such shares of Common Stock by the applicable Award Agreement or other agreement have expired. Certificates for the shares of Common Stock forfeited under the provisions of thePlan and the applicable Award Agreement shall be promptly returned to the Company by the forfeiting Participant. Each Award Agreement shall require that each Participant, in connection with the issuance of a certificate for Restricted Stock, shallendorse such certificate in blank or execute a stock power in form satisfactory to the Company in blank and deliver such certificate and executed stock power to the Company. 

 

(iii)    The Restriction Period of Restricted Stock shall commence on the Date of Grantor the date of exercise of an Award, as specified in the Award Agreement, and, subject to Article 12 of the Plan, unless otherwise established by the Committee in the Award Agreement setting forth the terms of the Restricted Stock, shall expire uponsatisfaction of the conditions set forth in the Award Agreement; such conditions may provide for vesting based on (i) length of continuous service, (ii) achievement of specific business objectives, (iii) increases in specified indices, (iv)attainment of specified growth rates, or (v) other comparable measurements of Company performance, as may be determined by the Committee in its sole discretion. 

 

(iv)    Except as otherwise provided in the particular Award Agreement, upon Terminationof Service for any reason during the Restriction Period, the nonvested shares of Restricted Stock shall be forfeited by the Participant. In the event a Participant has paid any consideration to the Company for such forfeited Restricted Stock, theCommittee shall specify in the Award Agreement that either (i) the Company shall be obligated to, or (ii) the Company may, in its sole discretion, elect to, pay to the 

Participant, as soon as practicable after the event causing forfeiture, in cash, an amount equal to thelesser of the total consideration paid by the Participant for such forfeited shares or the Fair Market Value of such forfeited shares as of the date of Termination of Service, as the Committee, in its sole discretion shall select. Upon anyforfeiture, all rights of a Participant with respect to the forfeited shares of the Restricted Stock shall cease and terminate, without any further obligation on the part of the Company. 

 

**6.6    Maximum Individual Grants.** No Participant may receive during any fiscal year of theCompany Awards covering an aggregate of more than seven hundred thousand (700,000) shares of Common Stock. 

 

**6.7    CEV.** A CEV feature of an Award shall entitle the Participant, at the discretion of the Committee, to receive from theCompany cash in an amount equal to the excess (if any) of the Fair Market Value (as of the date of exercise by the Committee of the CEV feature) per share over the CEV Price per share specified for such CEV, multiplied by the total number of sharesof the CEV being granted by the Committee. 

 

**6.8    Tandem Awards.** The Committee may grant two or more Incentives in one Award in the form of a “tandem Award,” so that the right of the Participant to exercise one Incentive shall be canceled if, andto the extent, the other Incentive is exercised. For example, if a Stock Option and a CEV are issued in a tandem Award, and the Committee determines to exercise the CEV with respect to 100 shares of Common Stock, the right of the Participant toexercise the related Stock Option shall be canceled to the extent of 100 shares of Common Stock. 

 

**6.9    CEV Price.** The CEV Price for any share of Common Stock subject to a CEV shall be equal to the Fair Market Value of theshare on the Date of Grant of the grant which contains the CEV. 

 

**ARTICLE 7**

**AWARD PERIOD; VESTING**

 

**7.1    Award Period.**

 

(a)    Subject to the other provisions of this Plan, the Committee shall specify in theAward Agreement the Award Period. No Stock Option granted under the Plan may be exercised at any time after the end of its Award Period. The Award Period for any Stock Option shall be no more than ten (10) years from the Date of Grant of the StockOption. However, if an Employee owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than ten percent (10%) of the combined voting power of all classes of stock of the Company (or any parent or Subsidiary)and an Incentive Stock Option is granted to such Employee, the Award Period of such Incentive Stock Option (to the extent required by the Code at the time of grant) shall be no more than five (5) years from the Date of Grant. 

 

(b)    In the event of a Termination ofService of a Participant, the Award Period for a Stock Option shall be reduced or terminated in accordance with the Award Agreement. 

 

**7.2    Vesting.** The Committee, in its sole discretion, may determine that an Incentive will be immediately vested in whole orin part, or that all or any portion may not be vested until a date, or dates, subsequent to its Date of Grant, or until the occurrence of one or more specified events, subject in any case to the terms of the Plan. If the Committee imposes conditionsupon vesting, then, subsequent to the Date of Grant, the Committee may, in its sole discretion, accelerate the date on which all or any portion of the Incentive may be vested. 

**ARTICLE 8**

**EXERCISE OF INCENTIVE**

 

**8.1    In General.** The Committee, in its sole discretion, may determine that a Stock Option will be immediately exercisable, in whole or in part, or that all or any portion may not be exercised until a date, ordates, subsequent to its Date of Grant, or until the occurrence of one or more specified events, subject in any case to the terms of the Plan. If a Stock Option is exercisable prior to the time it is vested, the Common Stock obtained on the exerciseof the Stock Option shall be Restricted Stock which is subject to the applicable provisions of the Plan and the Award Agreement. If the Committee imposes conditions upon exercise, then subsequent to the Date of Grant, the Committee may, in its solediscretion, accelerate the date on which all or any portion of the Stock Option may be exercised. No Stock Option may be exercised for a fractional share of Common Stock. The granting of a Stock Option shall impose no obligation upon the Participantto exercise that Stock Option. 

 

**8.2    Securities Law and Exchange Restrictions.** In no event may an Incentive be exercised or shares of Common Stock be issued pursuant to an Award if a necessary listing or quotation of the shares of Common Stockon a stock exchange or inter-dealer quotation system or any registration under state or federal securities laws required under the circumstances has not been accomplished. 

 

**8.3    Exercise of Stock Option.**

 

**(a)    Notice and Payment.** Subject to such administrative regulations as theCommittee may from time to time adopt, a Stock Option may be exercised by the delivery of written notice to the Committee or other designated person setting forth the number of shares of Common Stock with respect to which the Stock Option is to beexercised and the date of exercise thereof (the “Exercise Date”). Unless otherwise provided in the Award Agreement, on the Exercise Date, the Participant shall deliver to the Company consideration with a value equal to the total OptionPrice of the shares to be purchased, payable as provided in the Award Agreement, which may provide for payment in any one or more of the following ways: (a) cash or check, bank draft, or money order payable to the order of the Company, (b) CommonStock (including Restricted Stock) owned by the Participant on the Exercise Date, valued at its Fair Market Value on the Exercise Date, and which the Participant has not acquired from the Company within six (6) months prior to the Exercise Date, (c)to the extent otherwise permitted by applicable law, by delivery (including by FAX) to the Company or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions from the Participant to a broker ordealer, reasonably acceptable to the Company, to sell certain of the shares of Common Stock purchased upon exercise of the Stock Option or to pledge such shares as collateral for a loan and promptly deliver to the Company the amount of sale or loanproceeds necessary to pay such purchase price, and/or (d) in any other form of valid consideration that is permitted by applicable law and acceptable to the Committee in its sole discretion. In the event that shares of Restricted Stock are tenderedas consideration for the exercise of a Stock Option, a number of shares of Common Stock issued upon the exercise of the Stock Option with an Option Price equal to the value of Restricted Stock used as consideration therefor shall be subject to thesame restrictions and provisions as the Restricted Stock so tendered. 

 

**(b)    Issuance of Certificate.** Except as otherwise provided in Section 6.5 hereof (with respect to shares of Restricted Stock) or in the applicable Award Agreement, upon payment of allamounts due from the Participant, the Company shall cause certificates for the Common Stock then being purchased to be delivered as directed by the Participant (or the person exercising the Participant’s Stock Option in the event of his death)at its principal business office promptly after the Exercise Date; provided that if the Participant has exercised an Incentive Stock Option, the Company may at its option retain physical possession of the certificate evidencing the shares acquiredupon exercise until the expiration of the holding periods described in Section 422(a)(1) of the Code. The obligation of the Company to deliver shares of Common Stock shall, however, be subject to the condition that, if at any time the Committeeshall determine in its discretion that the listing or registration of the Stock Option or the Common Stock upon any securities exchange or 

inter-dealer quotation system or under any state or federal law, or the consent or approval of anygovernmental regulatory body, is necessary as a condition of, or in connection with, the Stock Option or the issuance or purchase of shares of Common Stock thereunder, the Stock Option may not be exercised in whole or in part unless such listing,registration, consent, or approval shall have been effected or obtained free of any conditions not reasonably acceptable to the Committee. 

 

**(c)    Failure to Pay.** If the Participant fails to pay for any of the Common Stock specified in such notice orfails to accept delivery thereof, that portion of the Participant’s Stock Option and right to purchase such Common Stock may be forfeited by the Company. 

 

**8.4    CEVs.** Subject to the conditions of Section 6.4, this Section 8.4, the Award Agreement and such administrativeregulations as the Committee may from time to time adopt, a CEV may be exercised by the delivery (including by FAX) to the Participant of written notice by the Committee or other designated person setting forth the number of shares of Common Stockwith respect to which the CEV is to be exercised and the date of exercise thereof (the “Exercise Date”). On the Exercise Date, the Participant shall receive from the Company cash in an amount equal to the excess (if any) of the Fair MarketValue (as of the date of the Participant’s exercise of the Stock Option) per share of Common Stock over the CEV Price per share specified in such CEV, multiplied by the total number of shares of Common Stock covered by the exercised CEV.

 

**8.5    Disqualifying Disposition ofIncentive Stock Option.** If shares of Common Stock acquired upon exercise of an Incentive Stock Option are disposed of by a Participant prior to the expiration of either two (2) years from the Date of Grant of such Stock Option or one (1) yearfrom the transfer of shares of Common Stock to the Participant pursuant to the exercise of such Stock Option, or in any other disqualifying disposition within the meaning of Section 422 of the Code, such Participant shall notify the Company inwriting of the date and terms of such disposition. A disqualifying disposition by a Participant shall not affect the status of any other Stock Option granted under the Plan as an Incentive Stock Option within the meaning of Section 422 of the Code.

 

**ARTICLE 9**

**AMENDMENT OR DISCONTINUANCE**

 

Subject to the limitations set forth in this Article 9, the Board may at any time and from time to time, without the consent of the Participants, alter,amend, revise, suspend, or discontinue the Plan in whole or in part; provided, however, that no amendment which requires stockholder approval in order for the Plan and Incentives awarded under the Plan to comply with applicable law, includingSection 162(m), 421 and 422 of the Code, to the extent the Board intends for those provisions to apply, shall be effective unless such amendment shall be approved by the requisite vote of the stockholders of the Company entitled to vote thereon. Anysuch amendment shall, to the extent deemed necessary or advisable by the Committee, be applicable to any outstanding Incentives theretofore granted under the Plan, notwithstanding any contrary provisions contained in any Award Agreement. In theevent of any such amendment to the Plan, the holder of any Incentive outstanding under the Plan shall, upon request of the Committee and as a condition to the exercisability thereof, execute a conforming amendment in the form prescribed by theCommittee to any Award Agreement relating thereto. Notwithstanding anything contained in this Plan to the contrary, unless required by applicable law, no action contemplated or permitted by this Article 9 shall adversely affect any rights ofParticipants or obligations of the Company to Participants with respect to any Incentive theretofore granted under the Plan without the consent of the affected Participant. 

 

**ARTICLE 10**

**TERM**

 

The Plan shall be effective from thedate that this Plan is approved by the Board. Unless sooner terminated by action of the Board, the Plan will terminate on June 23, 2013, but Incentives granted before that date will continue to be effective in accordance with their terms andconditions. 

**ARTICLE 11**

**CAPITAL ADJUSTMENTS**

 

Inthe event that the Committee shall determine that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), recapitalization, stock split, reverse stock split, rights offering,reorganization, merger, consolidation, split-up, spin-off, split-off, combination, subdivision, repurchase, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or othersecurities of the Company, or other similar corporate transaction or event affects the Common Stock such that an adjustment is determined by the Committee to be appropriate to prevent the dilution or enlargement of the benefits or potential benefitsintended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of the (i) the number of shares and type of Common Stock (or the securities or property) which thereafter may be madethe subject of Awards, (ii) the number of shares and type of Common Stock (or other securities or property) subject to outstanding Awards, (iii) the number of shares and type of Common Stock (or other securities or property) specified as the annualper-participant limitation under Section 6.6 of the Plan, (iv) the Option Price of each outstanding Award, (v) the amount, if any, the Company pays for forfeited shares of Common Stock in accordance with Section 6.5, and (vi) the number of or CEVPrice of shares of Common Stock then subject to outstanding CEV’s previously granted and unexercised under the Plan to the end that the same proportion of the Company’s issued and outstanding shares of Common Stock in each instance shallremain subject to exercise at the same aggregate CEV Price; provided however, that the number of shares of Common Stock (or other securities or property) subject to any Award shall always be a whole number. In lieu of the foregoing, if deemedappropriate, the Committee may make provision for a cash payment to the holder of an outstanding Award. Notwithstanding the foregoing, no such adjustment or cash payment shall be made or authorized to the extent that such adjustment or cash paymentwould cause the Plan or any Stock Option to violate Code Section 422. Such adjustments shall be made in accordance with applicable law and the rules of any securities exchange, stock market, or stock quotation system to which the Company is subject.

 

Upon the occurrence of any such adjustment or cash payment,the Company shall provide notice to each affected Participant of its computation of such adjustment or cash payment which shall be conclusive and shall be binding upon each such Participant. 

 

**ARTICLE 12**

**RECAPITALIZATION, MERGER AND CONSOLIDATION**

 

**12.1    No Effect on Company’s Authority.** The existence of this Plan and Incentives granted hereunder shall not affect inany way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure and its business, or any merger or consolidationof the Company, or any issuance of bonds, debentures, preferred or preference stocks ranking prior to or otherwise affecting the Common Stock or the rights thereof (or any rights, options, or warrants to purchase same), or the dissolution orliquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 

 

**12.2    Conversion of Incentives Where Company Survives.** Subject to any required action by thestockholders, if the Company shall be the surviving or resulting corporation in any merger, consolidation or share exchange, any Incentive granted hereunder shall pertain to and apply to the securities or rights (including cash, property, or assets)to which a holder of the number of shares of Common Stock subject to the Incentive would have been entitled. 

 

**12.3    Exchange or Cancellation of Incentives Where Company Does Not Survive.** In the event of any merger, consolidation orshare exchange pursuant to which the Company is not the surviving or resulting corporation, there shall be substituted for each share of Common Stock subject to the 

unexercised portions of outstanding Stock Options or CEVs, that number of shares of each class of stock or othersecurities or that amount of cash, property, or assets of the surviving, resulting or consolidated company which were distributed or distributable to the stockholders of the Company in respect to each share of Common Stock held by them, suchoutstanding Stock Options or CEVs to be thereafter exercisable for such stock, securities, cash, or property in accordance with their terms. 

 

Notwithstanding the foregoing, however, all Stock Options or CEVs may be canceled by the Company, in its sole discretion, as of the effective date of anysuch reorganization, merger, consolidation, or share exchange, or of any proposed sale of all or substantially all of the assets of the Company, or of any dissolution or liquidation of the Company, by either: 

 

(a)    giving notice to each holderthereof or his personal representative of its intention to cancel such Stock Options or CEVs and permitting the purchase during the thirty (30) day period next preceding such effective date of any or all of the shares subject to such outstandingStock Options or CEVs, including in the Board’s discretion some or all of the shares as to which such Stock Options or CEVs would not otherwise be vested and exercisable; or 

 

(b)    paying the holder thereof an amount equal to a reasonable estimate of thedifference between the net amount per share payable in such transaction or as a result of such transaction, and the exercise price per share of such Stock Option (hereinafter the “Spread”), multiplied by the number of shares subject to theStock Option. In cases where the shares constitute, or would after exercise, constitute Restricted Stock, the Company, in its discretion may include some or all of those shares in the calculation of the amount payable hereunder. In estimating theSpread, appropriate adjustments to give effect to the existence of the Stock Options shall be made, such as deeming the Stock Options to have been exercised, with the Company receiving the exercise price payable thereunder, and treating the sharesreceivable upon exercise of the Options as being outstanding in determining the net amount per share. In cases where the proposed transaction consists of the acquisition of assets of the Company, the net amount per share shall be calculated on thebasis of the net amount receivable with respect to shares of Common Stock upon a distribution and liquidation by the Company after giving effect to expenses and charges, including but not limited to taxes, payable by the Company before suchliquidation could be completed. 

 

(c)    An Award that by its terms would be fully vested or exercisable upon such a reorganization, merger, consolidation, share exchange, proposed sale of all or substantially all of the assets of the Company ordissolution or liquidation of the Company will be considered vested or exercisable for purposes of Section 12.3(a) hereof. 

 

**ARTICLE 13**

**LIQUIDATION ORDISSOLUTION**

 

Subject to Section 12.3 hereof, in case theCompany shall, at any time while any Incentive under this Plan shall be in force and remain unexpired, (i) sell all or substantially all of its property, or (ii) dissolve, liquidate, or wind up its affairs, then each Participant shall be entitled toreceive, in lieu of each share of Common Stock of the Company which such Participant would have been entitled to receive under the Incentive, the same kind and amount of any securities or assets as may be issuable, distributable, or payable upon anysuch sale, dissolution, liquidation, or winding up with respect to each share of Common Stock of the Company. If the Company shall, at any time prior to the expiration of any Incentive, make any partial distribution of its assets, in the nature of apartial liquidation, whether payable in cash or in kind (but excluding the distribution of a cash dividend payable out of earned surplus and designated as such) then in such event the Option Prices or CEV Prices then in effect with respect to eachStock Option or CEV shall be reduced, on the payment date of such distribution, in proportion to the percentage reduction in the tangible book value of the shares of the Company’s Common Stock (determined in accordance with generally acceptedaccounting principles) resulting by reason of such distribution. 

**ARTICLE 14**

**INCENTIVES IN SUBSTITUTION FOR**

**INCENTIVES GRANTED BY OTHER ENTITIES**

 

Incentives may be granted under the Plan from time to time in substitutionfor similar instruments held by employees or directors of a corporation, partnership, or limited liability company who become or are about to become Employees of the Company or any Subsidiary as a result of a merger or consolidation of the employingcorporation with the Company, the acquisition by the Company of equity of the employing entity, or any other similar transaction pursuant to which the Company becomes the successor employer. The terms and conditions of the substitute Incentives sogranted may vary from the terms and conditions set forth in this Plan to such extent as the Committee at the time of grant may deem appropriate to conform, in whole or in part, to the provisions of the Incentives in substitution for which they aregranted. 

 

**ARTICLE 15**

**MISCELLANEOUS PROVISIONS**

 

**15.1****    Investment Intent.** The Company may require that there be presented to and filed with it by any Participant underthe Plan, such evidence as it may deem necessary to establish that the Incentives granted or the shares of Common Stock to be purchased or transferred are being acquired for investment and not with a view to their distribution. 

 

**15.2****    No Right to Continued Employment.**Neither the Plan nor any Incentive granted under the Plan shall confer upon any Participant any right with respect to continuance of employment by the Company or any Subsidiary. 

 

**15.3****    Indemnification of Board and Committee.** No member of the Board or the Committee,nor any officer or Employee of the Company acting on behalf of the Board or the Committee, shall be personally liable for any action, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Boardand the Committee, each officer of the Company, and each Employee of the Company acting on behalf of the Board or the Committee shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action,determination, or interpretation. 

 

**15.4    Effect of the Plan.** Neither the adoption of this Plan nor any action of the Board or the Committee shall be deemed to give any person any right to be granted an Award or any other rights except as may beevidenced by an Award Agreement, or any amendment thereto, duly authorized by the Committee and executed on behalf of the Company, and then only to the extent and upon the terms and conditions expressly set forth therein. 

 

**15.5****    Governing Law and Compliance With OtherLaws and Regulations.** The validity, construction and effect of the Plan, any Award Agreement and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware. Notwithstanding anythingcontained herein to the contrary, the Company shall not be required to sell or issue shares of Common Stock under any Incentive if the issuance thereof would constitute a violation by the Participant or the Company of any provisions of any law(including without limitation Section 16 of the 1934 Act, Section 162(m) of the Code and the Sarbanes-Oxley Act of 2002) or regulation of any governmental authority or any national securities exchange or inter-dealer quotation system or other forumin which shares of Common Stock are quoted or traded; and, as a condition of any sale or issuance of shares of Common Stock under an Incentive, the Committee may require such agreements or undertakings, if any, as the Committee may deem necessary oradvisable to assure compliance with any such law or regulation. The Plan, the grant and exercise of Incentives hereunder, and the obligation of the Company to sell and deliver shares of Common Stock, shall be subject to all applicable laws, rulesand regulations and to such approvals by any government or regulatory agency as may be required. 

**15.6****    Tax Requirements.** The Company shall have the right to deductfrom all amounts hereunder paid in cash or other form, any Federal, state, or local taxes required by law to be withheld with respect to such payments. The Participant receiving shares of Common Stock issued under the Plan, unless otherwise providedin the Award Agreement, shall be required to pay the Company the amount of any taxes which the Company is required to withhold with respect to such shares of Common Stock. Notwithstanding the foregoing, in the event of an assignment of aNonqualified Stock Option pursuant to Section 15.7, the Participant who assigns the Nonqualified Stock Option shall remain subject to withholding taxes upon exercise of the Nonqualified Stock Option by the transferee to the extent required by theCode or the rules and regulations promulgated thereunder. Such payments shall be required to be made prior to the delivery of any certificate representing such shares of Common Stock. Such payment may be made, unless otherwise provided in the AwardAgreement, (i) by the delivery of cash to the Company in an amount that equals or exceeds (to avoid the issuance of fractional shares under (iii) below) the required tax withholding obligation of the Company; (ii) if the Company, in its solediscretion, so consents in writing, the actual delivery by the exercising Participant to the Company of shares of Common Stock that the Participant has not acquired from the Company within six months prior to the date of exercise, which shares sodelivered have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares under (iii) below) the required tax withholding payment; (iii) if the Company, in its sole discretion, so consents in writing, theCompany’s withholding of a number of shares to be delivered upon the exercise of the Stock Option, which shares so withheld have an aggregate fair market value that equals (but does not exceed) the required tax withholding payment; or (iv) anycombination of (i), (ii), or (iii). The Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise paid by the Company to the Participant. The Committee may in the Award Agreement impose any additionaltax requirements or provisions that the Committee deems necessary or desirable. 

 

**15.7    Stock Option Assignability.** Incentive Stock Options may not be transferred, assigned, pledged, hypothecated or otherwise conveyed or encumbered other than by will or the laws ofdescent and distribution and may be exercised during the lifetime of the Participant only by the Participant or the Participant’s legally authorized representative, and each Award Agreement in respect of an Incentive Stock Option shall soprovide. The designation by a Participant of a beneficiary will not constitute a transfer of the Stock Option. The Committee may waive or modify any limitation contained in the preceding sentences of this Section 15.9 that is not required forcompliance with Section 422 of the Code. 

 

Except as otherwiseprovided herein, Nonqualified Stock Options may not be transferred, assigned, pledged, hypothecated or otherwise conveyed or encumbered other than by will or the laws of descent and distribution. The Committee may, in its discretion, authorize allor a portion of a Nonqualified Stock Option granted to a Participant to be on terms which permit transfer by such Participant, or by a Permitted Transferee, to (i) the Company, (ii) the spouse (or former spouse), children or grandchildren of theParticipant (“Immediate Family Members”), (iii) a trust or trusts for the exclusive benefit of such Immediate Family Members, or (iv) a partnership in which the only partners are (1) such Immediate Family Members and/or (2) entities whichare controlled by Immediate Family Members (“Permitted Transferees”), provided that (x) there shall be no consideration for any such transfer, (y) the Award Agreement pursuant to which such Nonqualified Stock Option is granted mustbe approved by the Committee and must expressly provide for transferability in a manner consistent with this Section, and (z) except for transfers between Permitted Transferees, subsequent transfers of transferred Nonqualified Stock Options shall beprohibited except those by will or the laws of descent and distribution. 

 

Following any transfer, any such Nonqualified Stock Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Articles 8, 9,11, 13 and 15 hereof the term “Participant” shall be deemed to include the transferee. The events of Termination of Service shall continue to be applied with respect to the original Participant, following which the Nonqualified StockOptions shall be exercisable by the transferee only to the extent and for the periods specified in the Award Agreement. The Committee and the Company shall have no obligation to inform any transferee of a Nonqualified Stock Option of any expiration,termination, lapse or acceleration of such Stock Option. Except as otherwise provided in the Award Agreement, the Company 

shall have no obligation to register with any federal or state securities commission or agency any Common Stock issuableor issued under a Nonqualified Stock Option that has been transferred by a Participant under this Section 15.7. 

 

**15.8    Use of Proceeds.** Proceeds from the sale of shares of Common Stock pursuant to Incentives granted under this Plan shallconstitute general funds of the Company. 

 

**15.9    Legend.** Each certificate representing shares of Restricted Stock issued to a Participant shall bear the following legend, or a similar legend deemed by the Company to constitute an appropriate notice ofthe provisions hereof (any such certificate not having such legend shall be surrendered upon demand by the Company and so endorsed): 

 

On the face of the certificate: 

 

“Transfer of this stock is restricted in accordance with conditions printed on the reverse of this certificate.” 

 

On the reverse: 

 

“The shares of stock evidenced by this certificate are subject to andtransferable only in accordance with that certain Landry’s Restaurants, Inc 2003 Equity Incentive Plan, a copy of which is on file at the principal office of the Company in Houston, Texas. No transfer or pledge of the shares evidenced herebymay be made except in accordance with and subject to the provisions of said Plan. By acceptance of this certificate, any holder, transferee or pledgee hereof agrees to be bound by all of the provisions of said Plan.” 

 

The following legend shall be inserted on a certificate evidencing CommonStock issued under the Plan if the shares were not issued in a transaction registered under the applicable federal and state securities laws: 

 

“Shares of stock represented by this certificate have been acquired by the holder for investment and not for resale, transfer or distribution, havebeen issued pursuant to exemptions from the registration requirements of applicable state and federal securities laws, and may not be offered for sale, sold or transferred other than pursuant to effective registration under such laws, or intransactions otherwise in compliance with such laws, and upon evidence satisfactory to the Company of compliance with such laws, as to which the Company may rely upon an opinion of counsel satisfactory to the Company.” 

 

A copy of this Plan shall be kept on file in the principal office of theCompany in Houston, Texas. 

 

***************