SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: July 12, 2005
(Date of earliest event reported)
NATHAN'S FAMOUS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 1-3189 11-3166443
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(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
1400 Old Country Road, Westbury, New York 11590
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number including area code (516) 338-8500
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N/A
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(Former name or former address, if changed since last report.)
Item 1.01. Entry into a Material Definitive Agreement.
On July 12, 2005, Miami Subs Corporation ("MSC"), a wholly-owned subsidiary
of Nathan's Famous, Inc. (the "Registrant") and Donald Perlyn, entered into an
amendment (the "Amendment") to Mr. Perlyn's employment agreement with MSC dated
as of January 15, 1999 ("Employment Agreement"). Mr. Perlyn is employed as
President of MSC and is also an Executive Vice President of the Registrant. The
Registrant is a guarantor of MSC's obligations under the Employment Agreement.
Pursuant to the Amendment, (1) the definition of a competing business has been
expanded so that Mr. Perlyn is prohibited from competing in the business of
selling food products to the foodservice industry and (2) the definition of a
change in control has been changed. The effect of the change in the definition
of change in control is that Mr. Perlyn will be entitled to receive a payment
upon a change in control of Registrant, rather than upon a change in control of
Registrant or MSC. In connection with the execution and delivery of the
Amendment, the Registrant entered into a letter agreement with Mr. Perlyn of
even date pursuant to which the Registrant agreed that upon a sale by it of the
stock of MSC and any termination of the Employment Agreement upon the
consummation of such sale, the Registrant will enter into an employment
agreement with Mr. Perlyn on substantially the same terms and conditions as
those currently contained in the Employment Agreement.
A copy of the Amendment is filed as Exhibit 10.1 hereto and a copy of the
letter agreement is filed as Exhibit 10.2 hereto.
Item 9.01 Financial Statements and Exhibits.
(c) 10.1 Amendment No. 1 to Employment Agreement between Miami Subs
Corporation and Donald Perlyn dated July 12, 2005
10.2 Letter Agreement between Nathan's Famous, Inc. and Donald Perlyn
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunder duly authorized.
NATHAN'S FAMOUS, INC.
By: /s/Ronald DeVos
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Ronald DeVos
Vice-President Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: July 13, 2005
EXHIBIT INDEX
10.1 Amendment No. 1 to Employment Agreement between Miami Subs
Corporation and Donald Perlyn dated July 12, 2005
10.2 Letter Agreement between Nathan's Famous, Inc. and Donald Perlyn
AMENDMENT. No. 1 TO EMPLOYMENT AGREEMENT
This amendment to employment agreement is made this 28th day of March, 2005
by and between MIAMI SUBS CORPORATION, a Florida corporation, with its principal
place of business at 6300 Northwest 31st Avenue, Fort Lauderdale, Florida 33309
(the "Company"), and Donald L. Perlyn, residing at 2798 N.W. 27th Terrace, Boca
Raton, Fl. 33434 (the "Executive").
W I T N E S S E T H
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated as of January 15, 1999 (the "Employment Agreement");
WHEREAS, Nathan's Famous, Inc., a Delaware corporation ("Parent"), the
owner of the Company, is a signatory to the Employment Agreement; and
WHEREAS, the Company, Parent and the Employee desire to amend the
Employment Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Section 9(b)(i) of the Employment Agreement is hereby amended and
restated to read as follows:
"(i) participating, directly or indirectly, as an individual
proprietor, partner, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant or in any capacity
whatsoever (A) in the State of Florida or New York, in a business
in competition with the quick-service restaurant business or (B)
in the United States, in a business in competition with the
business of selling food products to the foodservice industry, in
each case as conducted by the Company, its affiliated entities or
its licensees during the Employment Term; provided, however, that
such prohibited participation shall not include: (x) the mere
ownership of not more than one percent (1%) of the total
outstanding stock of a publicly held company; (y) the performance
of services for any enterprise to the extent such services are
not performed, directly or indirectly, for a business in the
aforesaid Competition; or (z) any activity engaged in with the
prior written approval of the Board."
2. Section 13 of the Employment Agreement is hereby amended and restated to
read as follows:
"1. Change of Control.
Upon a "Change of Control" (as defined below) of the Parent, the
Company shall pay Executive, within thirty (30) days of such
event, a lump sum equal to three (3) times the amount of his Base
Salary in effect at the time of such event, together with a pro
rata portion of the bonus accrued through the date of such Change
of Control. As used herein "Change of Control" means (a) a change
in control as such term is presently defined in Regulation
240.12b-2 under the Securities Exchange Act of 1934 ("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 any "person" who
on the date of this Agreement is a director or officer of the
Parent), becomes the "beneficial owner" (as defined in Rule
13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Parent representing twenty (20%) percent of the
voting power of the Parent's then outstanding securities; or (c)
if during any period of two (2) consecutive years during the term
of Executive's employment, individuals who at the beginning of
such period constitute the Board of Directors of the Parent cease
for any reason to constitute at least a majority thereof."
3. Except as specifically amended by this Amendment, the Employment
Agreement shall remain in full force and effect in all respects as originally
executed.
4. This Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument. This Amendment shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York,
applicable to contracts made and to be performed entirely in New York.
IN WITNESS WHEREOF, the Company and Parent have each caused this Amendment
to be duly executed by an authorized officer and Executive has hereunto set his
hand as of the date first set forth above.
MIAMI SUBS CORPORATION
By: /s/Jerry Woda
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Name: Jerry Woda
Title: Vice President
/s/Donald L. Perlyn
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Donald L. Perlyn
NATHAN'S FAMOUS, INC.
By: /s/Wayne Norbitz
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Name: Wayne Norbitz
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Title: Presidnet
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NATHAN'S FAMOUS, INC.
1400 Old Country Road
Westbury, New York 11590
July 12, 2005
Donald L. Perlyn
2798 N.W. 27th Terrace
Boca Raton, Fl. 33434
Re: Employment Agreement with Miami Subs Corporation dated as of
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January 15, 2005 ("Employment Agreement")
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Dear Mr. Perlyn,
This letter will confirm our agreement that, in consideration of your
execution and delivery of Amendment No. 1 to Employment Agreement between Miami
Subs Corporation and you, upon any sale by Nathan's Famous, Inc. of the stock of
Miami Subs Corporation and any termination of the Employment Agreement upon the
consummation of such sale, the undersigned will enter into an employment
agreement with you on substantially the same terms and conditions as those
currently contained in such Employment Agreement.
Very truly yours,
NATHAN'S FAMOUS, INC.
By: /s/Wayne Norbitz
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Title:President
ACCEPTED AND AGREED
By: /s/Donald Perlyn
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Donald Perlyn