SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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NATHAN'S FAMOUS, INC.
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Form S-8 Registration Statement
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E X H I B I T I N D E X
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Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
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4 1998 Stock Option Plan . . . . . . . . . 4
5 Opinion and Consent of Counsel . . . . . 13
23.1 Consent of Counsel . . . . . . . . . See Exhibit 5
23.2 Consent of Arthur Andersen LLP . . . . . 15
24 Powers of Attorney . . . . . . . . . . See signature pages
Exhibit 4
Nathan's Famous, Inc.
1998 Stock Option Plan
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SECTION 1. GENERAL PROVISIONS
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1.1. Name and General Purpose
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The name of this plan is the Nathan's Famous, Inc. 1998 Stock Option Plan
(hereinafter called the "Plan"). The purpose of the Plan is to enable Nathan's
Famous, Inc. (the "Company") and its subsidiaries and affiliates to foster and
promote the interests of the Company by attracting and retaining directors,
officers and employees of the Company, and consultants to the Company, who
contribute to the Company's success by their ability, ingenuity and industry, to
enable such directors, officers, employees and consultants to participate in the
long-term success and growth of the Company by giving them a proprietary
interest in the Company and to provide incentive compensation opportunities
competitive with those of competing corporation.
1.2 Definitions
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a. "Affiliate" means any person or entity controlled by or
under common control with the Company, by virtue of the
ownership of voting securities, by contract or otherwise.
b. "Board" means the Board of Directors of the Company.
c. "Change in Control" means a change of control of the
Company, or in any person directly or indirectly controlling
the Company, which shall mean:
(a) a change in control as such term is presently defined in
Regulation 240.12b-(f) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); or
(b) if any "person" (as such term is used in Section 13(d)
and 14(d) of the Exchange Act) other than the Company or any
"person" who on the date of this Agreement is a director or
officer of the Company, becomes the "beneficial owner" (as
defined in Rule 13(d)-3 under the Exchange Act) directly or
indirectly, of securities of the Company representing twenty
percent (20%) or more of the voting power of the Company's
then outstanding securities; or
(c) if during any period of two (2) consecutive years during
the term of this Plan, individuals who at the beginning of
such period constitute the Board of Directors, cease for any
reason to constitute at least a majority thereof.
d. "Committee" means the Committee referred to in Section 1.3
of the Plan.
e. "Common Stock" means shares of the Common Stock, par value
$.01 per share, of the Company.
f. "Company" means Nathan's Famous, Inc., a corporation
organized under the laws of the State of Delaware (or any
successor corporation).
g. "Fair Market Value" means the market price of the Common
Stock on the New York Stock Exchange consolidated reporting
system on the date of the grant or on any other date on
which the Common Stock is to be valued hereunder. If no sale
shall have been reported on the New York Stock Exchange
consolidated reporting system on such date, Fair Market
Value shall be determined by the Committee.
h. "Non-Employee Director" shall have the meaning set forth in
Rule 16(b) promulgated by the Securities and Exchange
Commission ("Commission").
i. "Option" means any option to purchase Common Stock under
Section 2 of the Plan.
j. "Option Agreement" means the option agreement described in
Section 2.4 of the Plan.
k. "Participant" means any director, officer, employee or
consultant of the Company, a Subsidiary or an Affiliate who
is selected by the Committee to participate in the Plan.
l. "Subsidiary" means any corporation in which the Company
possesses directly or indirectly 50% or more of the combined
voting power of all classes of stock of such corporation.
m. "Total Disability" means accidental bodily injury or
sickness which wholly and continuously disabled an optionee.
The Committee, whose decisions shall be final, shall make a
determination of Total Disability.
1.3 Administration of the Plan
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The Plan shall be administered by the Committee appointed by the
Board consisting of two or more members of the Board all of whom shall be
Non-Employee Directors. The Committee shall serve at the pleasure of the Board
and shall have such powers as the Board may, from time to time, confer upon it.
Subject to this Section 1.3, the Committee shall have sole and
complete authority to adopt, alter, amend or revoke such administrative rules,
guidelines and practices governing the operation of the Plan as it shall, from
time to time, deem advisable, and to interpret the terms and provisions of the
Plan.
The Committee shall keep minutes of its meetings and of action taken
by it without a meeting. A majority of the Committee shall constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present, or acts approved in writing by all of the members of the
Committee without a meeting, shall constitute the acts of the Committee.
1.4 Eligibility
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Stock Options may be granted only to directors, officers, employees
or consultants of the Company or a Subsidiary or Affiliate. Subject to Section
2.3, any person who has been granted any Option may, if he is otherwise
eligible, be granted an additional Option or Options.
1.5 Shares
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The aggregate number of shares reserved for issuance pursuant to the
Plan shall be 500,000 shares of Common Stock, or the number and kind of shares
of stock or other securities which shall be substituted for such shares or to
which such shares shall be adjusted as provided in Section 1.6.
Such number of shares may be set aside out of the authorized but
unissued shares of Common Stock or out of issued shares of Common Stock acquired
for and held in the Treasury of the Company, not reserved for any other purpose.
Shares subject to, but not sold or issued under, any Option terminating or
expiring for any reason prior to its exercise in full will again be available
for Options thereafter granted during the balance of the term of the Plan.
1.6 Adjustments Due to Stock Splits,
Mergers, Consolidation, Etc.
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If, at any time, the Company shall take any action, whether by stock
dividend, stock split, combination of shares or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, the number of shares which are reserved for
issuance under the Plan and the number of shares which, at such time, are
subject to Options shall, to the extent deemed appropriate by the Committee, be
increased or decreased in the same proportion, provided, however, that the
Company shall not be obligated to issue fractional shares.
Likewise, in the event of any change in the outstanding shares of
Common Stock by reason of any recapitalization, merger, consolidation,
reorganization, combination or exchange of shares or other corporate change, the
Committee shall make such substitution or adjustments, if any, as it deems to be
appropriate, as to the number or kind of shares of Common Stock or other
securities which are reserved for issuance under the Plan and the number of
shares or other securities which, at such time are subject to Options.
In the event of a Change in Control, at the option of the Board or
Committee, (a) all Options outstanding on the date of such Change in Control
shall, for a period of sixty (60) days following such Change in Control, become
immediately and fully exercisable, and (b) an optionee will be permitted to
surrender for cancellation within sixty (60) days after such Change in Control
any Option or portion of an Option which was granted more than six (6) months
prior to the date of such surrender, to the extent not yet exercised, and to
receive a cash payment in an amount equal to the excess, if any, of the Fair
Market Value (on the date of surrender) of the shares of Common Stock subject to
the Option or portion thereof surrendered, over the aggregate purchase price for
such Shares under the Option.
1.7 Non-Alienation of Benefits
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Except as herein specifically provided, no right or unpaid benefit
under the Plan shall be subject to alienation, assignment, pledge or charge and
any attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or other person entitled to benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease.
1.8 Withholding or Deduction for Taxes
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If, at any time, the Company or any Subsidiary or Affiliate is
required, under applicable laws and regulations, to withhold, or to make any
deduction for any taxes, or take any other action in connection with any Option
exercise, the Participant shall be required to pay to the Company or such
Subsidiary or Affiliate, the amount of any taxes required to be withheld, or, in
lieu thereof, at the option of the Company, the Company or such Subsidiary or
Affiliate may accept a sufficient number of shares of Common Stock to cover the
amount required to be withheld.
1.9 Administrative Expenses
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The entire expense of administering the Plan shall be borne by the
Company.
1.10 General Conditions
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a. The Board or the Committee may, from time to time, amend, suspend
or terminate any or all of the provisions of the Plan, provided
that, without the Participant's approval, no change may be made
which would alter or impair any right theretofore granted to any
Participant.
b. With the consent of the Participant affected thereby, the
Committee may amend or modify any outstanding Option in any
manner not inconsistent with the terms of the Plan, including,
without limitation, and irrespective of the provisions of Section
2.3(c) below, to accelerate the date or dates as of which an
installment of an Option becomes exercisable.
c. Nothing contained in the Plan shall prohibit the Company or any
Subsidiary or Affiliate from establishing other additional
incentive compensation arrangements for employees of the Company
or such Subsidiary or Affiliate.
d. Nothing in the Plan shall be deemed to limit, in any way, the
right of the Company or any Subsidiary or Affiliate to terminate
a Participant's employment with the Company (or such Subsidiary
or Affiliate) at any time.
e. Any decision or action taken by the Board or the Committee
arising out of or in connection with the construction,
administration, interpretation and effect of the Plan shall be
conclusive and binding upon all Participants and any person
claiming under or through any Participant.
f. No member of the Board or of the Committee shall be liable for
any act or action, whether of commission or omission, (i) by such
member except in circumstances involving actual bad faith, nor
(ii) by any other member or by any officer, agent or employee.
1.11 Compliance with Applicable Law
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Notwithstanding any other provision of the Plan, the Company shall
not be obligated to issue any shares of Common Stock, or grant any Option with
respect thereto, unless it is advised by counsel of its selection that it may do
so without violation of the applicable Federal and State laws pertaining to the
issuance of securities and the Company may require any stock certificate so
issued to bear a legend, may give its transfer agent instructions limiting the
transfer thereof, and may take such other steps, as in its judgment are
reasonably required to prevent any such violation.
1.12 Effective Dates
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The Plan was adopted by the Board on April 6, 1998. The Plan shall
terminate on April 5, 2008.
Section 2. OPTION GRANTS
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2.1 Authority of Committee
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Subject to the provisions of the Plan, the Committee shall have the
sole and complete authority to determine (i) the Participants to whom Options
shall be granted; (ii) the number of shares to be covered by each Option; and
(iii) the conditions and limitations, if any, in addition to those set forth in
Sections 2 and 3 hereof, applicable to the exercise of an Option, including
without limitation, the nature and duration of the restrictions, if any, to be
imposed upon the sale or other disposition of shares acquired upon exercise of
an Option.
Stock Options granted under the Plan shall be non-qualified stock
options.
The Committee shall have the authority to grant Options.
2.2 Option Exercise Price
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The price of stock purchased upon the exercise of Options granted
pursuant to the Plan shall be the Fair Market Value thereof at the time that the
Option is granted.
The purchase price is to be paid in full in cash, certified or bank
cashier's check or, at the option of the Company, Common Stock valued at its
Fair Market Value on the date of exercise, or a combination thereof, when the
Option is exercised and stock certificates will be delivered only against such
payment.
2.3 Option Grants
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Each Option will be subject to the following provisions:
a. Term of Option
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An Option will be for a term of not more than ten years from the
date of grant.
b. Exercise
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(i) By an Employee:
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Subject to the power of the Committee under Section 1.10(b) above
and except in the manner described below upon the death of the
optionee, an Option may be exercised only in installments as
follows: up to one-half of the subject shares on and after the
first anniversary of the date of grant, up to all of the subject
shares on and after the second such anniversary of the date of
the grant of such Option but in no event later than the
expiration of the term of the Option.
An Option shall be exercisable during the optionee's lifetime
only by the optionee and shall not be exercisable by the optionee
unless, at all times since the date of grant and at the time of
exercise, such optionee is an employee of or providing services
to the Company, any parent corporation of the Company or any
Subsidiary or Affiliate, except that, upon termination of all
such employment or provision of services (other than by death,
Total Disability, or by Total Disability followed by death in the
circumstances provided below), the optionee may exercise an
Option at any time within three months thereafter but only to the
extent such Option is exercisable on the date of such
termination.
Upon termination of all such employment by Total Disability, the
optionee may exercise such Options at any time within three years
thereafter, but only to the extent such Option is exercisable on
the date of such termination.
In the event of the death of an optionee (i) while an employee of
or providing services to the Company, any parent corporation of
the Company or any Subsidiary or Affiliate, or (ii) within three
months after termination of all such employment or provision of
services (other than for Total Disability) or (iii) within three
years after termination on account of Total Disability of all
such employment or provision of services, such optionee's estate
or any person who acquires the right to exercise such option by
bequest or inheritance or by reason of the death of the optionee
may exercise such optionee's Option at any time within the period
of three years from the date of death. In the case of clauses (i)
and (iii) above, such Option shall be exercisable in full for all
the remaining shares covered thereby, but in the case of clause
(ii) such Option shall be exercisable only to the extent it was
exercisable on the date of such termination.
(ii) By Persons other than Employees:
If the optionee is not an employee of the Company or the parent
corporation of the Company or any Subsidiary or Affiliate,
expiration of such optionee's right to exercise his Options shall
be established and determined by the Committee in the Option
Agreement covering the Options granted to such optionee.
Notwithstanding the foregoing provisions regarding the exercise
of an Option in the event of death, Total Disability, other
termination of employment or provision of services or otherwise,
in no event shall an Option be exercisable in whole or in part
after the termination date provided in the Option Agreement.
c. Transferability
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An Option granted under the Plan shall not be transferable
otherwise than by will or by the laws of descent and
distribution, except as may be permitted by the Board or the
Committee.
2.4 Agreements
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In consideration of any Options granted to a Participant under the
Plan, each such Participant shall enter into an Option Agreement with the
Company providing, consistent with the Plan, such terms as the Committee may
deem advisable.
Exhibit 5
August 25, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Nathan's Famous, Inc.
Registration Statement on Form S-8
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Gentlemen:
Reference is made to the filing by Nathan's Famous, Inc. (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933, as
amended, covering the registration of 500,000 shares of the Corporation's Common
Stock, $.01 par value per share, in connection with the Corporation's 1998 Stock
Option Plan (the "Plan").
As counsel for the Corporation, we have examined its corporate
records, including its Certificate of Incorporation, as amended, By-Laws, its
corporate minutes, the form of its Common Stock certificate, the Plan, related
documents under the Plan and such other documents as we have deemed necessary or
relevant under the circumstances.
Based upon our examination, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the laws
of the State of Delaware.
2. There have been reserved for issuance by the Board of Directors of the
Corporation 500,000 shares of its Common Stock, $.01 par value per share. The
shares of the Corporation's Common Stock, when issued pursuant to the Plan, will
be validly authorized, legally issued, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement and in
the Prospectus which constitutes a part thereof as counsel of the Corporation,
and we hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Blau, Kramer, Wactlar & Lieberman, P.C.
BLAU, KRAMER, WACTLAR &
LIEBERMAN, P.C.
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated June 15,
1999 included in the Nathan's Famous, Inc. and Subsidiaries Form 10-K for the
year ended March 28, 1999 and to all references to our Firm included in this
Form S-8 registration statement.
/s/ Arthur Andersen LLP
Roseland, New Jersey
August 27, 1999
