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 (Date of earliest event reported): September 12, 2007
NATHAN'S
FAMOUS, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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1-3189
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11-3166443
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(State
of Incorporation)
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(Commission
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(IRS
Employer
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|
|
File
Number)
|
Identification
No.)
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1400
Old Country Road, Westbury, New
York
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11590
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(Address
of Principal Executive
Offices)
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(Zip
Code)
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Registrant's
telephone number including area code (516)
338-8500
N/A
(Former
name or former address, if changed since last report.)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see
General
Instruction A.2. below):
o
Written
communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting
material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant
to Rule 13e-14(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 1.01. |
Entry
into a Material Definitive
Agreement.
|
At
the
2007 Annual Meeting of Stockholders held on September 12, 2007, the stockholders
of the Registrant approved the proposed amendment to the Registrant’s 2001 Stock
Option Plan, as amended (the “2001 Plan”) to increase by 275,000 the number of
shares available under the 2001 Plan.
The
principal features of the 2001 Plan are summarized below but the summary is
qualified in its entirety by the full text of the 2001 Plan.
Stock
Subject to the 2001 Plan
The
2001
Plan provides for the grant of options to purchase up to 625,000 shares of
common stock under the 2001 Plan; however, after giving effect to previous
grants under the 2001 Plan and the amendment, as of the date of this filing
up
to 278,500 shares were available for grant. If an option under the 2001 Plan
expires or terminates without being exercised in full, such shares will again
be
available for future issuance under the plan. The number of shares issuable
is
subject to adjustment upon the occurrence of certain events, including stock
dividends, stock splits, mergers, consolidations, reorganizations,
recapitalizations, or other capital adjustments.
Administration
of the 2001 Plan
The
2001
Plan is administered by the Registrant’s Compensation Committee, which is
comprised of no fewer than two “non-employee directors,” as defined in the
Securities Exchange Act of 1934.
Subject
to the terms of the 2001 Plan, the Compensation Committee may determine and
designate the individuals who are to be granted stock options under the 2001
Plan, the number of shares to be subject to options and the nature and terms
of
the options to be granted. The Board or the Compensation Committee may, at
any
time, amend or terminate the 2001 Plan consistent with its terms. The
Compensation Committee also has authority to interpret the 2001 Plan. The
Compensation Committee does not have the right to reprice any outstanding
options without the affirmative vote of a majority of the stockholders voting
on
the repricing proposal.
Participants
The
Registrant’s officers, directors, employees and consultants, as well as those of
its subsidiaries or affiliates, are eligible to participate in the 2001
Plan.
Terms
of Awards
The
options granted under the 2001 Plan are non-qualified stock options. The
exercise price for the options is the fair market value of the common stock
on
the date of grant of the stock option. The exercise price of outstanding options
is subject to adjustment upon the occurrence of certain events, including stock
dividends, stock splits, mergers, consolidations, reorganizations,
recapitalizations, or other capital adjustments. The 2001 Plan permits the
grant
of stock options having a term of up to five years.
Stock
options granted under the 2001 Plan may become exercisable in one or more
installments in the manner and at the time or times specified by the
Compensation Committee. Unless otherwise provided by the Compensation Committee
at the time of grant, and except in the manner described below upon the death
or
total disability of the optionee, a stock 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, and up to all of the subject shares
on
and after the second anniversary of the date of the grant of such option, but
in
no event later than the expiration of the term of the option.
Upon
the
exercise of a stock option, optionees may pay the exercise price in cash, by
certified or bank cashiers check, in shares of common stock valued at fair
market value on the day of exercise, with a combination of cash and stock,
or
under any cashless exercise program implemented by the Registrant, as determined
by the Compensation Committee. At the discretion of the Compensation Committee,
an optionee may elect to pay the exercise price by selling shares acquired
upon
exercise of an option, under which arrangement the optionee would remit to
the
Registrant a sufficient portion of the sale proceeds to pay the exercise price
and any tax withholding resulting from such exercise.
With
regard to employees, a stock option is exercisable during the optionee’s
lifetime only by him and cannot be exercised by him unless, at all times since
the date of grant and at the time of exercise, he is employed by the Registrant,
any parent corporation or any of the Registrant’s subsidiaries or affiliates,
except that, upon termination of his employment (other than (1) by death, (2)
by
total disability followed by death in the circumstances provided below, or
(3)
by total disability), he may exercise an option for a period of three months
after his termination but only to the extent such option is exercisable on
the
date of such termination.
Upon
termination of all employment by total disability, the optionee may exercise
such options at any time within one year after his or her termination, but
only
to the extent such option is exercisable on the date of such
termination.
In
the
event of the death of an optionee (1) while an employee, or an employee of
any
parent corporation or any subsidiary or affiliate, (2) within three months
after
termination of all employment with the Registrant, any parent corporation or
any
subsidiary or affiliate (other than for total disability), or (3) within one
year after termination on account of total disability of all employment with
the
Registrant, any parent corporation or any subsidiary or affiliate, the
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
the optionee’s option at any time within the period of two years 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 by it, 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.
With
regard to non-employees, the vesting of the optionee’s right to exercise shall
be determined by the Compensation Committee in the Option Agreement with the
optionee.
Change
in Control
In
the
event of a “change in control,” at the option of the Board or the Compensation
Committee, all options outstanding on the date of the change in control may
become immediately and fully exercisable; an optionee will be permitted to
surrender for cancellation any option granted more than six months prior to
the
date of surrender and receive a cash payment of the amount, if any, by which
the
fair market value of the option shares surrendered exceeds the option exercise
price.
For
the
purposes of the 2001 Plan, a change in control is defined as
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·
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a
change in control as such term is presently defined in Regulation
240.12b-(f) under the Securities Exchange Act of 1934;
or
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·
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if
any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) other than Nathan’s, or any “person” who on the date of the
adoption of the 2001 Plan is a director or officer of Nathan’s, becomes
the “beneficial owner” (as defined in Rule 13(d)-3 under the Exchange Act)
directly or indirectly, of securities representing twenty percent
(20%) or
more of the voting power of the Registrant’s then outstanding securities;
or
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|
·
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if
during any period of two (2) consecutive years during the term of
the 2001
Plan, individuals who at the beginning of such period constitute
the Board
of Directors, cease for any reason to constitute at least a majority
of
the board.
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Tax
Withholding
The
Compensation Committee may condition the delivery of any shares of stock or
other amounts under the 2001 Plan on satisfaction of the applicable withholding
obligations. The Compensation Committee, in its discretion, may permit such
satisfaction through cash payment or the surrender by the participant of a
sufficient number of shares of common stock.
Transferability
Any
options granted under the 2001 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 Compensation
Committee.
A
copy of
the 2001 Stock Option Plan, as modified, is filed as Exhibit 10.1
hereto.
Item
9.01. Financial
Statements and Exhibits.
(d)
Exhibits.
10.1 2001
Stock Option Plan, as amended
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. | ||
| |
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| By: /s/ Ronald DeVos | ||
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Ronald DeVos |
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Vice-President
Finance
and
Chief Financial Officer
(Principal
Financial and Accounting Officer)
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||
Dated:
September 12, 2007
Exhibit
10.1
Nathan’s
Famous, Inc.
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.
| 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 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. |
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; provided,
that the foregoing shall not be construed to permit the Committee to amend
the
restriction on Option repricing contained in Section 1.10(b)
hereof.
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.
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.
The
aggregate number of shares reserved for issuance pursuant to the Plan shall
be
625,000 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.
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.
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
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
| 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; provide further,
that
the foregoing shall not be construed to permit the Committee to amend
the
restriction on Option repricing contained in Section 1.10(b)
hereof.
|
| 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. |
| 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. |
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.
The
Plan
was adopted by the Board on June 14, 2001, subject to stockholder approval.
The Plan shall terminate on June 13, 2011.
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.
The
exercise price set forth in the Option Agreement at the time of grant shall
not
be less than 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.
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 five 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, 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.