Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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NATHAN'S FAMOUS, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3166443
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1400 Old Country Road, Westbury, New York 11590
(Address of principal executive offices) (Zip Code)
NATHAN'S FAMOUS, INC. 2001 STOCK OPTION PLAN
(Full Title of the Plan)
Wayne Norbitz, President
Nathan's Famous, Inc.
1400 Old Country Road
Westbury, New York 11590
(Name and address of agent for service)
(516) 338-8500
(Telephone number, including area code, of agent for service)
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copy to:
Nancy D. Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
(516) 822-4820
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CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of
To be Registered Registered Security (1) Price (1) Registration Fee
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Common Stock,
par value $.01 per 350,000 shs.(2) $3.62 $1,267,000 $302.81
share together with
the associated
common stock
purchase rights
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(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices of the Company's Common Stock on the
NASDAQ National Market System on February 6, 2002.
(2) This Registration Statement also covers an indeterminate number of
additional shares of Common Stock which may become issuable pursuant to
anti-dilution and adjustment provisions of the Plan.
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NATHAN'S FAMOUS, INC.
SUMMARY OF NATHAN'S FAMOUS, INC.
2001 STOCK OPTION PLAN
In June 2001, in order to attract and retain persons necessary for the
success of Nathan's, its board of directors adopted the Nathan's Famous, Inc.
2001 Stock Option Plan. The plan was approved by stockholders on September 14,
2001. The plan covers up to 350,000 shares of common stock, pursuant to which
directors, officers and employees of, and consultants to, Nathan's and its
subsidiaries and affiliates, are eligible to receive non-qualified stock
options. Shares of common stock issued upon the exercise of options granted
pursuant to the plan will generally be from Nathans' authorized but unissued
shares or treasury shares. The plan, which expires on June 13, 2011, will be
administered by Nathans' board of directors or a committee designated by the
board of directors consisting of two or more members of the board, all of whom
shall be "non-employee" directors, as defined under Rule 16-b of the Securities
Exchange Act of 1934, as amended. Members of the committee which administers the
plan may be removed or replaced at any time by the board of directors. The
selection of participants, allotments of shares, determination of price and
other conditions relating to options will be determined by the board of
directors, or the committee, in its sole discretion, subject to the limitations
of the plan.
The plan may be amended, suspended or terminated by the board of directors
or the committee.
Stock options granted under the plan are exercisable for a period of up to
ten years from the date of grant at an exercise price equal to the fair market
value of the Common Stock on the date of the grant.
Options granted pursuant to the plan may not be sold, pledged,
hypothecated, transferred or disposed of in any manner other than by will or by
the laws of descent or distribution, or as may be permitted by the board or the
committee.
If any optionee ceases to serve as an employee of, or consultant to,
Nathan's or any parent, subsidiary or affiliate company, he may, but only within
three (3) months after the date he ceases to be employed, exercise his option to
the extent that it was exercisable as of the date of such termination. Upon
termination of employment or provision of services due to total disability, the
optionee has a one year period to exercise his option to the extent it was
exercisable as of the date of such termination. To the extent that an optionee
was not entitled to exercise an option at the date of termination, or he does
not exercise the option (which he was entitled to exercise) within the time
specified therein, the option terminates. Notwithstanding the foregoing, in the
event of the death of an optionee (1) while an employee or providing services,
or (2) within three (3) months after termination of all employment or provision
of services (other than for total disability) or (3) within one (1) year after
termination on account of total disability of all employment or provision of
services, the optionee's estate or any person who acquires the right to exercise
the 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 two (2) year period
from the date of death. In the case of clauses (1) and (3) above, the option
shall be exercisable in full for all the remaining shares covered thereby, but
in the case of clause (2), the option shall be exercisable only to the extent it
was exercisable on the date of such termination of employment or service. In no
case is an option exercisable after its expiration date.
In the event of a change in control (as defined in the plan) of Nathan's,
at the option of the board or the committee, (a) all options outstanding on the
date of the change in control shall become immediately and fully exercisable,
and (b) an optionee will be permitted to surrender for cancellation 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 (as
defined in the plan), 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.
2
Nathans' reports and registration statements filed with the Securities and
Exchange Commission pursuant to the provisions of the Securities Exchange Act of
1934 are incorporated by reference herein and these documents, as well as
Nathans' annual report to shareholders, its latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended, and additional
information about the plan and its administration, are available upon written or
oral request from the Treasurer of Nathan's, at its offices at 1400 Old Country
Road, Westbury, New York 11590, (516) 338- 8500. Nathan's does not intend to
furnish any reports to participants as to the amount and status of their options
under the plan.
FEDERAL INCOME TAX CONSEQUENCES
The following is a brief summary of the Federal income tax consequences as
of the date hereof with respect to options exercised with cash or common stock
or a combination of cash and common stock. This description of the Federal
income tax consequences is based upon law and Treasury interpretations in effect
on the date of this prospectus (including proposed and temporary regulations
which may be changed when finalized), and it should be understood that this
summary is not exhaustive, that the law may change, and further that special
rules may apply with respect to situations not specifically discussed herein.
Careful attention should also be given to state and local tax consequences. As
such, optionees are urged to consult with their own qualified tax advisors.
Exercise of Non-Qualified Options with Cash
No taxable income will be realized by the optionee upon the grant of a
non-qualified option. On exercise, the excess of the fair market value of the
stock at the time of exercise over the option price of such stock will be
compensation and (i) will be taxable at ordinary income tax rates in the year of
exercise, (ii) will be subject to withholding for Federal income tax purposes,
and (iii) generally will be an allowable income tax deduction to Nathan's. The
optionee's tax basis for stock acquired upon exercise of a non-qualified option
will be equal to the option price paid for the stock plus any amounts included
in income as compensation. Upon the sale of shares acquired pursuant to exercise
of a non-qualified option, the optionee will have long-term or short-term
capital gain or loss depending on the holding period.
If the optionee is subject to restrictions under Section 16(b) of the
Exchange Act at exercise, (i) he will not be taxed at the time of exercise, and
will instead be taxed when the Section 16(b) restrictions lapse (which is deemed
under Treasury regulations to be six months after the date of issuance of the
shares), based on the excess (if any) at that time or, if earlier, at the time
of the sale of such shares, of the fair market value of the shares received over
the option price, and (ii) the holding period for purposes of determining
entitlement to long-term or short-term capital gain or loss, as the case may be,
will commence on the earlier of the date of sale of such shares or the date that
the Section 16(b) restrictions lapse. However, such an optionee may elect under
Section 83(b) of the Internal Revenue Code of 1986, as amended, to be taxed at
the time of exercise of the option, based on the excess (if any) at the time of
exercise of the fair market value of the shares received over the option price,
in which event the holding period will commence on the date of transfer.
Optionees who are subject to Section 16(b) restrictions should consult a
qualified tax advisor regarding the advisability of a Section 83(b) election,
which must be made within 30 days following the exercise of the shares.
Exercise of Non-Qualified Options with Common Stock
Based on a 1980 Revenue Ruling, if shares previously acquired other than
upon exercise of an incentive stock option are surrendered in full or partial
payment of the exercise price of a non-qualified option, then no gain or loss
will be recognized by the optionee, on the date of exercise, for the shares
which have an aggregate fair market value equal to the aggregate fair market
value of the shares surrendered. These shares received are called replacement
shares. The optionee will have a basis in the replacement shares equal to the
basis of the shares surrendered, and the optionee's holding period (for purposes
of determining entitlement to short-term or long-term capital gain or loss
treatment on a subsequent disposition of the Replacement Shares) will generally
include the period during which the surrendered shares were held.
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In the event that the optionee receives any additional shares in addition
to the replacement shares on such exercise, then (i) the excess of the fair
market value of all of the shares received over the sum of the fair market value
of the shares surrendered plus any cash payments made by the optionee on the
exercise of the option will be treated as compensation taxable as ordinary
income (and subject to withholding), (ii) the optionee's basis in the additional
shares will be equal to the sum of the amount taxed as ordinary income on
exercise plus the amount of any cash payments made on exercise, and (iii) the
holding period for the additional shares (for purposes of determining
entitlement to long-term or short-term capital gain or loss treatment on a
subsequent disposition of the additional shares) will begin when such additional
shares are issued to the optionee.
In the absence of new published rulings to the contrary, it would appear
that rules similar to those that apply under the 1980 Revenue Ruling would apply
to the exercise of a non-qualified option using shares previously acquired by
exercising an incentive stock option. Based on the 1980 Revenue Ruling, the
exercise of a non-qualified option using shares previously acquired by
exercising an incentive stock option would not result in a "disqualifying
disposition" of such shares.
Information Reporting
Pursuant to applicable tax regulations, Nathan's will provide to each
optionee and to the appropriate tax authorities information regarding the
exercises of non-qualified options on Form W-2 or 1099.
RESTRICTION ON REOFFERS OR RESALES OF COMMON STOCK
ACQUIRED PURSUANT TO THE PLAN
Participants in the plan who receive shares of common stock pursuant to the
exercise of options may from time to time sell all or a part of such common
stock. In some instances, there may be restrictions on the amount and manner of
such sales by reason of pertinent provisions of the securities laws and the
rules thereunder. Optionees should consult with legal counsel about the
securities law implications of the exercise of options and the acquisition or
disposition of shares of common stock under the plan.
Pursuant to Section 16(b) of the Exchange Act, if an optionee, while an
officer, director or ten percent (10%) stockholder of Nathan's, (i) acquires any
equity security of Nathan's (other than shares of common stock acquired under
the plan or another stock option plan of Nathan's if the exercise price of the
option pursuant to which such shares of common stock were acquired does not
exceed the fair market value thereof at the time of exercise), and (ii) within
six months before or after such acquisition sells any equity security of
Nathan's, including common stock acquired under the plan, then such optionee
will be required to repay to Nathan's any profit attributable to the two
transactions.
In the event of any inconsistency between this summary and the plan, the
terms of the plan shall govern.
This document constitutes part of a prospectus covering securities that
have been registered under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) and (b) below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 25, 2001;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarters
ended June 24, 2001, September 23, 2001 and December 23, 2001; and
(c) The description of the class of securities to be offered which is
contained in a registration statement filed under Section 12 of the
Securities Exchange Act of 1934 (File No. 0-3189) including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which indicates that all securities offered have been sold or
which deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under the provisions of the Certificate of Incorporation and By-Laws of
Registrant, each person who is or was a director or officer of Registrant shall
be indemnified by Registrant as of right to the full extent permitted or
authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the merits
of defense of a suit or proceeding brought against him by reason of the fact
that he is a director or officer of Registrant, he shall be indemnified against
expenses (including attorneys' fees) reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or a criminal suit
is settled, such a person shall be indemnified under such law against both (1)
expenses (including attorneys' fees) and (2) judgments, fines and amounts paid
in settlement if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of Registrant, and with respect
to any criminal action, had no reasonable cause to believe his conduct was
unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
II-1
reasonably believed to be in, or not opposed to, the best interests of
Registrant except that if such a person is adjudicated to be liable in such suit
for negligence or misconduct in the performance of his duty to Registrant, he
cannot be made whole even for expenses unless the court determines that he is
fairly and reasonably entitled to be indemnified for such expenses.
The officers and directors of the Company are covered by officers' and
directors' liability insurance. The policy coverage is $7,500,000 which includes
reimbursement for costs and fees. There is a maximum aggregate deductible for
each loss under the policy of $250,000. The Company has entered into
Indemnification Agreements with certain of its officers and directors. The
Agreements provide for reimbursement for all direct and indirect costs of any
type or nature whatsoever (including attorneys' fees and related disbursements)
actually and reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts paid in
settlement by or on behalf of an indemnitee.
Item 8. Exhibits.
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4.1 2001 Stock Option Plan
5 Option and consent of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. - included in
their opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney - included in signature page hereof.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westbury, New York on the 14th day of February, 2002.
NATHAN'S FAMOUS, INC.
By: /s/Wayne Norbitz
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Wayne Norbitz
President and Chief Operating Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on February 14, 2002 by the
following persons in the capacities indicated. Each person whose signature
appears below constitutes and appoints Wayne Norbitz and Ronald G. DeVos, and
each of them acting individually, with full power of substitution, our true and
lawful attorneys-in-fact and agents to do any and all acts and things in our
name and on our behalf in our capacities indicated below which they or either of
them may deem necessary or advisable to enable Nathan's Famous, Inc. to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement including specifically, but not limited to, power and
authority to sign for us or any of us in our names in the capacities stated
below, any and all amendments (including post- effective amendments) thereto,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
such connection, as fully to all intents and purposes as we might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
Signature Title
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/s/ Howard M. Lorber Chairman of the Board and
Howard M. Lorber Chief Executive Officer
/s/ Wayne Norbitz President, Chief Operating Officer and
Wayne Norbitz Director (Principal Executive Officer)
/s/ Ronald G. DeVos Vice President - Finance
Ronald G. DeVos Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
/s/ Robert J. Eide Director
Robert J. Eide
/s/ Brian S. Genson Director
Brian S. Genson
/s/ Donald Perlyn Director
Donald Perlyn
/s/ A. F. Petrocelli Director
Attilio F. Petrocelli
/s/ Barry Leistner Director
Barry Leistner
II-3
Exhibit 4.1
Nathan's Famous, Inc.
2001 Stock Option Plan
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SECTION 1. GENERAL PROVISIONS
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1.2 Name and General Purpose
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The name of this plan is the Nathan's Famous, Inc. 2001 Stock Option Plan
(hereinafter called the "Plan"). The Plan is intended to be a broadly-based
incentive plan which enables Nathan's Famous, Inc. (the "Company") and its
subsidiaries and affiliates to foster and promote the interests of the Company
by attracting and retaining officers, directors and employees of, and
consultants to, the Company who contribute to the Company's success by their
ability, ingenuity and industry, to enable such officers, directors, 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
corporations.
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-(2) 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
Nasdaq Stock Market on the 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 Nasdaq Stock Market 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"),
or any successor provision.
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 officer, director, 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
--------------------------
The Plan shall be administered by the Board or 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 officers, directors, employees or
consultants of the Company or a Subsidiary or Affiliate. All employees are
eligible to receive Stock Options under the Plan. 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 350,000 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. No individual may be
granted options to purchase more than an aggregate of 125,000 shares of Common
Stock pursuant to the Plan.
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.
2
1.6 Adjustments Due to Stock Splits, Mergers, Consolidation, Etc.
-------------------------------------------------------------
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 become immediately and fully exercisable, and (b) an optionee will be
permitted to surrender for cancellation 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
--------------------------
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
-----------------------
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; provided, that the Committee shall not
have the right to reprice any outstanding Options.
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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 or service 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
------------------------------
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
---------------
The Plan was adopted by the Board on June 14, 2001, subject to stockholder
approval. The Plan shall terminate on June 13, 2011.
Section 2. OPTION GRANTS
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2.1 Authority of Committee
----------------------
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
---------------------
The exercise price set forth in the Option Agreement at the time of grant
shall not be less than 85%, nor more than 100%, of the Fair Market Value of the
Common Stock at the time that the Option is granted.
The consideration to be paid for the Shares to be issued upon exercise of
an Option may consist of (i) cash, (ii) check, (iii) other shares of the
Company's Common Stock which have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares as to which said Option
shall be exercised, or (iv) consideration received by the Company under any
cashless exercise program implemented by the Company in connection with the
Plan. Stock certificates will be delivered only against such payment.
4
2.3 Option Grants
-------------
Each Option will be subject to the following provisions:
a. Term of Option
--------------
An Option will be for a term of not more than ten years from the date
of grant.
b. Exercise
--------
(i) By an Employee:
--------------
Unless otherwise provided by the Committee 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 one year
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 one
year 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 two 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 of employment or
service.
(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, the
vesting 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,
5
in no event shall an Option be exercisable in whole or in part
after the termination date provided in the Option Agreement.
c. Transferability
---------------
An Option granted under the Plan shall not be transferable
otherwise than by will or by the laws of descent and
distribution, or as may be permitted by the Board or the
Committee.
2.4 Agreements
----------
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.
6
Exhibit 5
February 14, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Nathan's Famous, Inc.
Registration Statement on Form S-8
----------------------------------
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 350,000 shares of the Corporation's Common
Stock, $.01 par value per share, in connection with the Corporation's 2001 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 350,000 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.
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated June 14, 2001
included in Nathan's Famous, Inc. and Subsidiaries Form 10-K for the year ended
March 25, 2001 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Melville, New York
February 13, 2002