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: November 1, 2006
(Date
of
earliest event reported)
NATHAN'S
FAMOUS, INC.
(Exact
Name of Registrant as Specified in its Charter)
|
Delaware
|
1-3189
|
11-3166443
|
|
(State
of Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
|
1400
Old Country Road, Westbury, New York
|
11590
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
Registrant's
telephone number including area code
|
(516)
338-8500
|
|
N/A
(Former
name or former address, if changed since last report.)
Item
5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On
November 1, 2006, Howard M. Lorber was appointed as Executive Chairman of the
Board of Nathan’s Famous, Inc. (the “Company”), effective January 1, 2007. Mr.
Lorber has served as the Company’s Chairman of the Board since 1990, Chief
Executive Officer since 1993 and a Director since 1987. He will continue to
serve as a Director. Additionally, on November 1, 2006, Eric Gatoff was
appointed as Chief Executive Officer of the Company effective January 1, 2007.
Mr. Gatoff has served as the Company’s Vice President and Corporate Counsel
since October 2003 and as a Director since 2005. Prior to joining the Company,
Mr. Gatoff was a partner at Grubman, Indursky & Schindler, P.C., a law firm
specializing in intellectual property, media and entertainment law.
In
connection with the foregoing, the Company has agreed to enter into an
employment agreement with each of Messrs. Lorber (the “Lorber Employment
Agreement”) and Gatoff (the “Gatoff Employment Agreement”). Under the terms of
the Lorber Employment Agreement as proposed, Mr. Lorber will serve as Executive
Chairman of the Board from January 1, 2007 until December 31, 2012, unless
his
employment is terminated in accordance with the terms of the Lorber Employment
Agreement. Pursuant to the Lorber Employment Agreement, Mr. Lorber will receive
a base salary of $400,000, and will not receive a contractual bonus; provided
that, for the fiscal year ending March 25, 2007, Mr. Lorber will be entitled
to
receive a pro rata portion of the bonus payable to him under his existing
agreement. The Lorber Employment Agreement will further provide for a three-year
consulting period after the termination of employment during which Mr. Lorber
will receive a consulting fee of $200,000 per year in exchange for his agreement
to provide no less than 30 days of consulting services. The Lorber Employment
Agreement will also provide Mr. Lorber the right to participate in employment
benefits offered to other Nathan’s executives. During and after the contract
term, Mr. Lorber is subject to certain confidentiality, non-solicitation and
non-competition provisions in favor of the Company.
In
the
event that Mr. Lorber’s employment is terminated without cause, he will be
entitled to receive his salary and bonus for the remainder of the contract
term.
The Lorber Employment Agreement will further provide that in the event there
is
a change in control, as defined in the agreement, Mr. Lorber will have the
option, exercisable within one year after such event, to terminate his
employment agreement. Upon such termination, will have the right to receive
a
lump sum cash payment equal to the greater of (A) his salary and annual bonuses
for the remainder of the employment term (including a prorated bonus for any
partial fiscal year), which bonus shall be equal to the average of the annual
bonuses awarded to him during the three fiscal years preceding the fiscal year
of termination; or (B) 2.99 times his salary and annual bonus for the fiscal
year immediately preceding the fiscal year of termination, as well as a lump
sum
cash payment equal to the difference between the exercise price of any
exercisable options having an exercise price of less than the then current
market price of our common stock and such then current market price. In
addition, the Company will provide Mr. Lorber with a tax gross-up payment to
cover any excise tax due. In the event of termination due to Mr. Lorber’s death
or disability, he is entitled to receive an amount equal to his salary and
annual bonuses for a three-year period, which bonus shall be equal to the
average of the annual bonuses awarded to him during the three fiscal years
preceding the fiscal year of termination. Until the effective date of the Lorber
Employment Agreement, Mr. Lorber shall continue to provide services under the
terms of his existing employment agreement.
Under
the
terms of the Gatoff Employment Agreement as proposed, Mr. Gatoff has agreed
to
serve as Chief Executive Officer effective from January 1, 2007 until December
31, 2008, which period shall extend for additional one-year periods unless
either party delivers notice of non-renewal no less than 180 days prior to
the
end of the term then in effect. Pursuant to the agreement, Mr. Gatoff will
receive a base salary of $225,000 and an annual bonus equal in an amount of
up
to 100% of his base salary, depending upon the Company’s achievement of
performance goals established and agreed to by the Compensation Committee and
Mr. Gatoff for each fiscal year during the employment term, provided that the
bonus payable to Mr. Gatoff for the fiscal year ending March 25, 2007 is to
be
determined by the Compensation Committee in its discretion, based on Mr.
Gatoff’s status as Vice President and Corporate Counsel through December 31,
2006 and provided, further, that Mr. Gatoff will be entitled to a minimum bonus
of 50% of his base salary for the first two years of the Gatoff Employment
Agreement. The agreement will further provide for an automobile allowance in
the
amount provided to other executive officers, currently $1,250 per month, and
the
right of Mr. Gatoff to participate in employment benefits offered to other
Nathan’s executives. During and after the contract term, Mr. Gatoff is subject
to certain confidentiality, non-solicitation and non-competition provisions
in
favor of the Company.
In
the
event that Mr. Gatoff’s employment is terminated without cause, he will be
entitled to receive his salary for the remainder of the contract term. The
Gatoff Employment Agreement will further provide that in the event there is
a
change in control, as defined in the agreement, Mr. Gatoff will have the option,
exercisable within one year after such event, to terminate his employment
agreement. Upon such termination, he will have the right to receive a lump
sum
cash payment equal to his salary and annual bonus for a one-year period in
an
amount equal to the bonus paid or payable to Mr. Gatoff for the for
the
most recently completed fiscal year.
In the
event of termination due to Mr. Gatoff’s death or disability, he will be
entitled to receive an amount equal to his salary and annual bonus for the
balance of the contract term, which bonus shall be equal to the minimum bonus
of
50% of his base compensation in the event of such a termination during the
initial two-year term and the amount of the bonus paid or payable to the
Executive for the preceding fiscal year in the event of such termination during
any renewal term.
In
connection with the foregoing appointment, the Company issued a press release
which is filed as Exhibit 99.1 hereto.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In
connection with appointments described in Item 5.02, the Board of Directors
amended the Company’s By-laws to establish the office of Executive Chairman of
the Board and to separate the offices of Chairman of the Board and Chief
Executive Officer.
Item
9.01 Financial
Statements and Exhibits.
(c)
3.1
By-laws of the Company
99.1
Press Release
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
Ronald
DeVos
Vice-President
Finance
and
Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
|
Dated:
November 6, 2006
Exhibit
3.1
As
amended November 1, 2006
BY-LAWS
OF
NATHAN’S
FAMOUS, INC.
(A
Delaware Corporation
originally
organized under the name
Nathan’s
Famous Holding Corporation)
ARTICLE
1
STOCKHOLDERS
|
1.
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CERTIFICATES
REPRESENTING STOCK.
|
Every
holder of stock in the corporation shall be entitled to have a certificate
signed by, or in the name of, the corporation by the Chief Executive Officer,
if
any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation certifying the number of shares owned by him in the corporation.
Any
and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it
may
be issued by the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Whenever
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class of stock, and whenever the corporation shall
issue any shares of its stock as partly paid stock, the certificates
representing shares of any such class or series or of any such partly paid
stock
shall set forth thereon the statements prescribed by the General Corporation
Law. Any restrictions on the transfer or registration of transfer of any shares
of stock of any class or series shall be noted conspicuously on the certificate
representing such shares.
The
corporation may issue a new certificate of stock in place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Board of Directors may require the owner of any lost, stolen or destroyed
certificate, or his legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate.
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2.
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FRACTIONAL
SHARE INTEREST.
|
The
corporation may, but shall not be required to, issue fractions of a share.
If
the corporation does not issue fractions of a share, it shall (i) arrange for
the disposition of fractional interest by those entitled thereto, (ii) pay
in
cash the fair value of fractions of a share as of the time when those entitled
to receive such fractions are determined, or (iii) issue scrip or warrants
in
registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share shall, but scrip
or warrants shall not unless otherwise provided therein, entitle the holder
to
exercise voting rights, to receive dividends thereon, and to participate in
any
of the assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for certificates representing
full
shares before a specified date, or subject to the conditions that the shares
for
which scrip or warrants are exchangeable may be sold by the corporation and
the
proceeds thereof distributed to the holders of scrip or warrants, or subject
to
any other conditions which the Board of Directors may impose.
|
3.
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STOCK
TRANSFERS.
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Upon
compliance with provisions restricting the transfer or registration of transfer
of shares of stock, if any, transfers or registration of transfers of shares
of
stock of the corporation shall be made only on the stock ledger of the
corporation by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary
of
the corporation or with a transfer agent or a registrar, if any, and on
surrender of the certificate or certificates for such shares of stock properly
endorsed and the payment of all taxes due thereon.
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4.
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RECORD
DATE FOR STOCKHOLDERS.
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For
the
purpose of determining the stockholders entitled to notice of or to vote
at any
meeting of stockholders or any adjournment thereof, or to express consent
to
corporate action in writing without a meeting, or entitled to receive payment
of
any dividend or other distribution or the allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock
or for the purpose of any other lawful action, the directors may fix, in
advance, a record date, which shall not be more than sixty days nor less
than
ten days before the date of such meeting, nor more than sixty days prior
to any
other action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall
be at the close of business on the day next preceding the day on which notice
is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the Board of Directors is necessary, shall
be
the day on which the first written consent is expressed; and the record date
for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of
or to
vote at any meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
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5.
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MEANING
OF CERTAIN TERMS.
|
As
used
herein in respect of the right to notice of a meeting of stockholders or a
waiver thereof or to participate or vote thereat or to consent or dissent in
writing in lieu of a meeting, as the case may be, the term Ashare@
or
Ashares@
or
Ashare
of
stock@
or
Ashares
of
stock@
or
stockholder@
or
Astockholders@
refers
to an outstanding share or shares of stock and to a holder or holders of record
of outstanding shares of stock when the corporation is authorized to issue
only
one class of shares of stock, and said reference is also intended to include
any
outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the certificate
of incorporation confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the General Corporation
Law
confers such rights notwithstanding that the certificate of incorporation may
provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that
no
such right shall vest in the event of an increase or a decrease in the
authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of incorporation,
except as any provision of law may otherwise require.
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6.
|
STOCKHOLDER
MEETINGS.
|
TIME.
The
annual meeting shall be held on the date and at the time fixed, from time to
time, by the directors, provided, that the first annual meeting and each
successive annual meeting thereafter shall be held on a date within 10 months
after the close of the preceding fiscal year. A special meeting shall be held
on
the date and at the time fixed by the directors.
PLACE.
Annual
meetings and special meetings shall be held at such place, within or without
the
State of Delaware, as the directors may, from time to time, fix. Whenever the
directors shall fail to fix such place, the meeting shall be held at the
registered office of the corporation in the State of Delaware.
CALL.
Annual
meetings and special meetings may be called by the directors or by any officer
instructed by the directors to call the meeting.
NOTICE
OR WAIVER OF NOTICE.
Written
notice of all meetings shall be given, stating the place, date and hour of
the
meeting and stating the place within the city or other municipality or community
at which the list of stockholders of the corporation may be examined. The notice
of an annual meeting shall state that the meeting is called for the election
of
directors and for the transaction of other business which may properly come
before the meeting, and shall, (if any other action which could be taken at
a
special meeting is to be taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose of purposes for which the meeting is called. The notice of any meeting
shall also include, or be accompanied by, any additional statements, information
or documents prescribed by the General Corporation Law. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not let than 10 days nor more than 60
days before the date of the meeting, unless the lapse of the prescribed period
of time shall have been waived, and directed to each stockholder at his record
address or at such other address which may have furnished by request in writing
to the Secretary of the Corporation. Notice by mail shall be deemed to be given
when deposited, with postage thereon prepaid, in the United States mail. If
a
meeting is adjourned to another time, not more than 30 days hence, and/or to
another place, and if an announcement of the adjourned time and/or place is
made
at the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the directors, after adjournment, fix a new record date for
the
adjourned meeting. Notice need not be given to any stockholder who submits
a
written waiver of notice signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends the
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or
convened. Neither the business to be transacted at, not the purpose of, any
regular or special meeting of the stockholders need to be specified in any
written waiver of notice.
STOCKHOLDER
LIST.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten days before every meeting of stockholders, a complete list
of
the stockholders, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
or
other municipality of community where the meeting is to be held, which place
shall be specified in the notice of the meeting, or it not so specified, at
the
place where the meeting is to be held. The list shall also be produced and
kept
at the time and place of the meeting during the whole time thereof, and may
be
inspected by any stockholder who is present. The stock ledger shall be the
only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote
at
any meeting of stockholders.
CONDUCT
OF MEETING.
Meetings
of the stockholders shall be presided over by one of the following officers
in
the order of seniority and if present and acting - the Chief Executive Officer,
if any, if any, the President, a Vice-President, or, if none of the foregoing
is
in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the Chairman of the meeting shall appoint
a secretary of the meeting.
PROXY
REPRESENTATION.
Every
stockholder may authorize another person or persons to act for him by proxy
in
all matters in which a stockholder is entitled to participate, whether by
waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent without a meeting. Every proxy must be signed
by
the stockholder or by his attorney-in-fact. No proxy shall be voted or acted
upon after three years from its date unless such proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation
generally.
INSPECTORS.
The
directors, in advance of any meeting, may, but need not, appoint one or more
inspectors of election to act at the meeting or any adjournment thereof. If
an
inspector or inspectors are not appointed, the person presiding at the meeting
may, but need not, appoint one or more inspectors. In case any person who may
be
appointed as an inspector fails to appear or act, the vacancy may be filled
by
appointment made by the directors in advance of the meeting or at the meeting
by
the person presiding thereat. Each inspector, if any, before entering upon
the
discharge of his duties, shall take and sign an oath faithfully to execute
the
duties of inspector at such meeting with strict impartiality and according
to
the best of his ability. The inspectors, any, shall determine the number of
shares of stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine
all
challenges and questions arising in connection with the right to vote, count
and
tabulate all votes, ballots or consents, determine the result, and do such
acts
as are Proper to conduct the election or vote with fairness to all stockholders.
On request of the person presiding at the meeting, the inspector or inspectors,
if any, shall make a report in writing of any challenge, question or matter
determined by him or them and execute a certificate of any fact found by him
or
them.
QUORUM.
The
holders of a majority of the outstanding shares of stock shall constitute a
quorum at a meeting of stockholders for the transaction of any business. The
stockholders present may adjourn the meeting despite the absence of a
quorum.
VOTING.
Each
share of stock shall entitle the holder thereof to one vote. In the action
of
directors, a plurality of the votes cast shall elect. Any other action shall
be
authorized by a majority of the votes cast except where the General Corporation
Law prescribes a different percentage of votes and/or a different exercise
of
voting power, and except as may be otherwise prescribed by the provisions of
the
certificate of corporation and these By-Laws. In the election of directors,
and
for any other action, voting need not be by ballot.
STOCKHOLDER
PROPOSALS
(A)
(1) Nominations
of persons for election to the board of directors of the corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the corporation's notice of
meeting, (b) by or at the direction of the board of directors or (c) by any
stockholder of the corporation who was a stockholder of record at the time
of
giving of notice provided for in this By-law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
By-law.
(2) For
nominations or other business to be properly brought before an annual meeting
by
a stockholder pursuant to clause (c) of paragraph (A) (1) of this By-law the
stockholder must have given timely notice thereof in writing to the Secretary
of
the corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be delivered
to
the Secretary at the principal executive offices of the corporation not later
than the close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the 90th day prior to such annual meeting and
not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement
of
the date of such meeting is first made by the corporation. In no event shall
the
public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice
and
the beneficial owner, if any, on whose behalf the nomination or proposal is
made
(i) the name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the corporation which are owned beneficially and of record by
such
stockholder and such beneficial owner.
(3) Notwithstanding
anything in the second sentence of paragraph (A) (2) of this By-law to the
contrary, in the event that the number of directors to be elected to the board
of directors of the corporation is increased and there is no public announcement
by the corporation naming all of the nominees for director or specifying the
size of the increased board of directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this By-law shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the corporation.
(B) Only
such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of directors may be made at
a
special meeting of stockholders at which directors are to be elected pursuant
to
the corporation's notice of meeting (a) by or at the direction of the board
of
directors or (b) provided that the board of directors has determined that
directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this By-law who shall be entitled to vote at the meeting and
who
complies with the notice procedures set forth in this By-law. In the event
the
corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the board of directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (A) (2) of this By-law shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the board of directors to be elected at such meeting.
In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) (1)
Only
such persons who are nominated in accordance with the procedures set forth
in
this By-law shall be eligible to serve as directors and only such business
shall
be conducted at a meeting of stockholders as shall have been brought before
the
meeting in accordance with the procedures set forth in this By-law. Except
as
otherwise provided by law, the certificate of incorporation or these By-laws,
the Chairman of the meeting shall have the power and duty to determine whether
a
nomination or any business proposed to be brought before the meeting was made
or
proposed, as the case may be, in accordance with the procedures set forth in
this By-law and, if any proposed nomination or business is not in compliance
with this By-law, to declare that such defective proposal or nomination shall
be
disregarded.
(2)
For
purposes of this By-law, "public announcement" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of
the Exchange Act.
(3)
Notwithstanding the foregoing provisions of this By-law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-law.
Nothing in this By-law shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposals in the corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
7. STOCKHOLDER
ACTION WITHOUT MEETINGS
Any
action required by the General Corporation Law to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not
less than the minimum number of votes that would be necessary to authorize
or
take such action at a meeting at which all shares entitled to vote thereon
were
present and voted. Prompt notice of the taking of the corporate action without
a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE
II
DIRECTORS
1. FUNCTIONS
AND DEFINITION.
The
business and affairs of the corporation shall be managed by or under the
direction of the Board of Directors of the corporation. The Board of Directors
shall have the authority to fix the compensation of the members thereof. The
use
of the phrase "whole board" herein refers to the total number of directors
which
the corporation would have if there were no vacancies.
2. QUALIFICATIONS
AND NUMBER.
A
director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist
of three persons. Thereafter the number of directors constituting the whole
board shall be fixed from time to time by action of the stockholders or of
the
directors, but shall be not less than five nor more than nine. The number of
directors may be increased or decreased by action of the stockholders or of
the
directors.
3. ELECTION
AND TERM.
The
first Board of Directors, unless the members thereof shall have been named
in
the certificate of incorporation, shall be elected by the incorporator or
incorporators and shall hold office until the first annual meeting of
stockholders and until their successors are elected and qualified or until
their
earlier resignation or removal. Any director may resign at any time upon written
notice to the corporation. Thereafter, directors who are elected at an annual
meeting of stockholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including unfilled
vacancies resulting from the removal of directors for cause or without cause
may
be filled by the vote of a majority of the remaining directors then in office,
although less than a quorum, or by the sole remaining director.
4. MEETINGS.
TIME.
Meetings
shall be held at such time as the Board shall fix, except that the first meeting
of a newly elected Board shall be held as soon after its election as the
directors may conveniently assemble.
PLACE.
Meetings
shall be held at such place within or without the State of Delaware as shall
be
fixed by the Board.
CALL.
No call
shall be required for regular meetings for which the time and place have been
fixed. Special meetings may be called by or at the direction of the Chairman
of
the Board, if any, the Vice-Chairman of the Board, if any, of the President,
or
of a majority of the directors in office.
NOTICE
OR ACTUAL OR CONSTRUCTIVE WAIVER.
No
notice shall be required for regular meetings for which the time and place
have
been fixed. At least two days written, oral, or any other mode of notice of
the
time and place shall be given for special meetings. Notice need not be given
to
any director or to any member of a committee of directors who submits a written
waiver of notice signed by him before or after the time stated therein.
Attendance of any such person at a meeting shall constitute a waiver of notice
of such meeting, except when he attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to
be transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any notice or written waiver of
notice.
QUORUM
AND ACTION.
A
majority of the whole Board shall constitute a quorum except when a vacancy
or
vacancies prevents such majority, whereupon a majority of the directors in
office shall constitute a quorum, provided, that such majority shall constitute
at least one-third of the whole Board. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting to another time and
place. Except as herein otherwise provided, and except as otherwise provided
by
the General Corporation Law, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board. The
quorum and voting provisions herein stated shall not be construed as conflicting
with any provisions of the General Corporation Law and these By-Laws which
govern a meeting of directors held to fill vacancies and newly created
directorships in the Board or action of disinterested directors.
Any
member or members of the Board of Directors or of any committee designated
by
the Board, may participate in a meeting of the Board, or any such committee,
as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
CHAIRMAN
OF THE MEETING.
The
Board of Directors may elect a Chairman of the Board who, if present and acting,
shall preside at all meetings, Otherwise, the Vice-Chairman of the Board, if
any
and if present and acting, or the President, if present and acting, or any
other
director chosen by the Board, shall preside. If a Chairman of the Board has
been
named, he shall not be an officer of the Corporation unless he has also been
designated as the Chief Executive Officer.
REMOVAL
OF DIRECTORS.
Except
as may otherwise be provided by the General Corporation Law, any director or
the
entire Board of Directors may be removed, with or without cause, by the holders
of a majority of the shares then entitled to vote at election of
directors.
6. COMMITTEES.
The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more
of
the directors of the corporation. The Board may designated one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such
absent or disqualified member. Any such committee, to the extent provided in
the
resolution of the Board, shall have and may exercise the powers and authority
of
the Board of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of which is
prohibited by Section 141 of the General Corporation Law, and may authorize the
seal of the corporation to be affixed to all papers which may require
it.
7. WRITTEN
ACTION.
Any
action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in writing,
and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
ARTICLE
III
OFFICERS
The
officers of the corporation shall consist of a President, a Secretary, a
Treasurer, and, if deemed necessary, expedient, or desirable by the Board of
Directors, a Chairman of the Board (who may be designated Executive Chairman
of
the Board if serving as an employee of the Corporation), a Chief Executive
Officer, a Chief Operating Officer, one or more Vice-Chairmen of the Board,
a
President, one or more Executive Vice-Presidents, one or more other Senior
Vice-Presidents, Vice-Presidents, or Assistant Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
with such titles as the resolution of the Board of Directors choosing them
shall
designate. Except as may otherwise be provided in the resolution of the Board
of
Directors choosing him, no officer other than the Chairman of the Board, or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person, as the directors may determine.
Unless
otherwise provided in the resolution choosing him, each officer shall be chosen
for a term which shall continue until the meeting of the Board of Directors
following the next annual meeting of stockholders and until his successor shall
have been chosen and qualified.
All
officers of the corporation shall have such authority and perform such duties
in
the management and operation of the corporation as shall be prescribed in the
resolutions of the Board of Directors designating and choosing such officers
and
prescribing their authority and duties, and shall have such additional authority
and duties as are incident to their office except to the extent that such
resolutions may be inconsistent therewith. The Secretary or an Assistant
Secretary of the corporation shall record all of the proceedings of all meetings
and actions in writing of stockholders, directors, and committees of directors,
and shall exercise such additional authority and perform such additional duties
as the Board shall assign to him. Any officer may be removed, with or without
cause, by the Board of Directors. Any vacancy in any office may be filled by
the
Board of Directors.
ARTICLE
IV
CORPORATE
SEAL
The
corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE
V
FISCAL
YEAR
The
fiscal year of the corporation shall be fixed, and shall be subject to change,
by the Board of Directors.
ARTICLE
VI
CONTROL
OVER BY- LAWS
Subject
to the provisions of the certificate of incorporation and the provisions of
the
General Corporation Law, the power to amend, alter or repeal these By-Laws
and
to adopt new By-Laws may be exercised by the Board of Directors or by the
stockholders.
| FOR: |
NATHAN'S
FAMOUS, INC.
|
| COMPANY |
Ronald
G. DeVos, Vice President - Finance and
CFO
|
| CONTACT: |
(516)
338-8500 ext. 229
|
FOR
IMMEDIATE RELEASE
NATHAN'S
FAMOUS, INC.
REPORTS
SECOND QUARTER RESULTS
NAMES
HOWARD M. LORBER EXECUTIVE CHAIRMAN
AND
ERIC GATOFF CHIEF EXECUTIVE OFFICER
WESTBURY,
N.Y., November 06, 2006 -- Nathan's Famous, Inc. (NASDAQ:NATH) today reported
results for its second quarter of its 2007 fiscal year that ended September
24,
2006.
Net
income for the twenty-six weeks ended September 24, 2006 was $3,240,000 or
$0.56
per basic share and $0.52 per diluted share as compared to $4,277,000 or $0.77
per basic share and $0.66 per diluted share for the twenty-six weeks ended
September 25, 2005.
Nathan’s
realized gains of $400,000 and $2,819,000, during the 2006 and 2005 periods,
respectively, from the sale of a previously owned vacant parcel of land and
adjacent leasehold interest. The effect of these gains, net of tax, were
$239,000 or $0.04 per basic and diluted share, during the twenty-six weeks
ended
September 24, 2006 and $1,724,000 or $0.31 and $0.27 per basic and diluted
share, respectively, during the twenty-six weeks ended September 25,
2005.
Earnings
from continuing operations increased by 15.5% to $2,978,000 or $0.52 per basic
share and $0.48 per diluted share for the twenty-six weeks ended September
24,
2006 as compared to $2,578,000 or $0.46 per basic share and $0.40 per diluted
share for the twenty-six weeks ended September 25, 2005. Total revenue from
continuing operations increased by 10.1% to $25,368,000 during the twenty-six
weeks ended September 24, 2006 as compared to $23,035,000 during the twenty-six
weeks ended September 25, 2005.
Net
income for the thirteen weeks ended September 24, 2006 was $1,844,000 or $0.32
per basic share and $0.30 per diluted share as compared to $3,108,000 or $0.56
per basic share and $0.48 per diluted share for the thirteen weeks ended
September 25, 2005.
Earnings
from continuing operations increased by 14.1% to $1,582,000 or $0.27 per basic
share and $0.26 per diluted share for the thirteen weeks ended September 24,
2006 as compared to $1,387,000 or $0.25 per basic share and $0.21 per diluted
share for the thirteen weeks ended September 25, 2005. Total revenue from
continuing operations increased by 12.6% to $13,124,000 during the thirteen
weeks ended September 24, 2006 as compared to $11,653,000 during the thirteen
weeks ended September 25, 2005.
NATHAN’S
REPORTS/2
Wayne
Norbitz, President and Chief Operating Officer said, “Management
is extremely pleased that this is the fourteenth consecutive quarter in which
quarterly profits from continuing operations have increased as compared to
the
same period of the prior year.”
Nathan’s
also announced that Howard M. Lorber was appointed as Executive Chairman of
the
Board of the Company. Mr. Lorber has served as the Company’s Chairman of the
Board since 1990, Chief Executive Officer since 1993 and a Director since 1987.
He will continue to serve as a Director.
Eric
Gatoff has been named Chief Executive Officer. Mr. Gatoff has served as the
Company’s Vice President and Corporate Counsel since 2003 and a Director since
2005. He will continue to serve as a Director.
Both
new
appointments are effective January 1, 2007.
Wayne
Norbitz, the Company’s President and Chief Operating Officer and a Director,
will continue in those capacities as he has since 1989.
The
Company also reported the following:
|
·
|
The
Branded Product Program, featuring the sale of Nathan’s hot dogs to the
foodservice industry, has continued its growth. Sales increased by
16.0%
to $9,937,000 during the twenty-six weeks ended September 24, 2006
as
compared to sales of $8,563,000 during the twenty-six weeks ended
September 25, 2005.
|
|
·
|
Revenues
from Nathan’s other operating profit centers, including company-owned
restaurants, restaurant franchising, retail licensing, and sales
to its
television marketer, increased by $1,000,000 or 7.2% compared to
the
twenty-six weeks ended September 25,
2005.
|
|
·
|
Nathan’s
incurred new administrative expenses during the twenty-six weeks
ended
September 24, 2006 of $122,000 in connection with the adoption of
a new
accounting standard requiring that the fair value of options granted
be
charged against earnings, $92,000 in connection with professional
services
associated with its preparations to comply with the Sarbanes-Oxley
Section
404 requirements and severance expense of
$73,000.
|
At
September 24, 2006, Nathan’s products were distributed in 49 states, the
District of Columbia and 13 foreign countries through its restaurant system,
Branded Product Program and retail licensing activities. At September 24, 2006,
Nathan’s restaurant system consisted of 360 franchised or licensed units and six
company-owned units (including one seasonal unit) featuring the Nathan’s, Miami
Subs and Kenny Rogers Roasters brands. For additional information about
Nathan’s, Kenny Rogers Roasters or Miami Subs please visit our website at
www.nathansfamous.com
NATHAN’S
REPORTS/3
Except
for historical information contained in this news release, the matters discussed
are forward looking statements that involve risks and uncertainties. Words
such
as “anticipate”, “believe”, “estimate”, “expect”, “intend”, and similar
expressions identify forward-looking statements, which are based on the current
belief of the Company’s management, as well as assumptions made by and
information currently available to the Company’s management. Among the factors
that could cause actual results to differ materially are the following: the
effect of business and economic conditions; the impact of competitive products
and pricing; capacity; the regulatory and trade environment; and the risk
factors reported from time to time in the Company’s SEC reports. The Company
does not undertake any obligation to update such forward-looking
statements.
NATHAN’S
REPORTS/4
Nathan's
Famous, Inc.
Financial
Highlights
|
Thirteen
weeks Ended
|
|||||||
|
|
(unaudited)
|
||||||
|
|
Sept.
24, 2006
|
Sept.
25, 2005
|
|||||
|
Total
revenues from continuing operations
|
$
|
13,124,000
|
$
|
11,653,000
|
|||
|
Income
from continuing operations
|
$
|
1,582,000
|
$
|
1,387,000
|
|||
|
Income
from discontinued operations
|
$
|
262,000
|
$
|
1,721,000
|
|||
|
Net
income
|
$
|
1,844,000
|
$
|
3,108,000
|
|||
|
Basic
income per share
|
|||||||
|
Income
from continuing operations
|
$
|
0.27
|
$
|
0.25
|
|||
|
Income
from discontinued operations
|
0.05
|
0.31
|
|||||
|
Net
income
|
$
|
0.32
|
$
|
0.56
|
|||
|
Diluted
income per share
|
|||||||
|
Income
from continuing operations
|
$
|
0.26
|
$
|
0.21
|
|||
|
Income
from discontinued operations
|
0.04
|
0.27
|
|||||
| Net income |
$
|
0.30
|
$
|
0.48
|
|||
|
Weighted-average
shares used in computing
|
|||||||
|
income
per share
|
|||||||
|
Basic
|
5,773,000
|
5,566,000
|
|||||
|
Diluted
|
6,227,000
|
6,527,000
|
|||||
NATHAN’S
REPORTS/5
Nathan's
Famous, Inc.
Financial
Highlights
|
Twenty-six
weeks Ended
|
|||||||
|
|
(unaudited)
|
||||||
|
|
Sept.
24, 2006
|
Sept.
25, 2005
|
|||||
|
Total
revenues from continuing operations
|
$
|
25,368,000
|
$
|
23,035,000
|
|||
|
Income
from continuing operations
|
$
|
2,978,000
|
$
|
2,578,000
|
|||
|
Income
from discontinued operations
|
$
|
262,000
|
$
|
1,699,000
|
|||
|
Net
income
|
$
|
3,240,000
|
$
|
4,277,000
|
|||
|
Basic
income per share
|
|||||||
|
Income
from continuing operations
|
$
|
0.52
|
$
|
0.46
|
|||
|
Income
from discontinued operations
|
0.04
|
0.31
|
|||||
|
Net
income
|
$
|
0.56
|
$
|
0.77
|
|||
|
Diluted
income per share
|
|||||||
|
Income
from continuing operations
|
$
|
0.48
|
$
|
0.40
|
|||
|
Income
from discontinued operations
|
0.04
|
0.26
|
|||||
| Net income |
$
|
0.52
|
$ | 0.66 | |||
|
Weighted-average
shares used in computing
|
|||||||
|
income
per share
|
|||||||
|
Basic
|
5,753,000
|
5,560,000
|
|||||
|
Diluted
|
6,266,000
|
6,501,000
|
|||||