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FORM 10-Q/A
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
[x] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Act of 1934 for the quarterly period ended SEPTEMBER 26, 1999.
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities Act of
1934 for the transition period from to .
------------- -----------------
Commission File Number 1-3189
NATHAN'S FAMOUS, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 11-3166443
(State or other jurisdiction of (IRS employer
incorporation or organization) identification number)
1400 OLD COUNTRY ROAD, WESTBURY, NEW YORK 11590
--------------------------------------------------------
(Address of principal executive offices including zip code)
(516) 338-8500
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No
--- ---
At September 26, 1999, an aggregate of 4,722,216 shares of the registrant's
common stock, par value of $.01, were outstanding.
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ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
(3) Certificate of Incorporation, as amended
(b) No reports on Form 8-K were filed during the quarter ended September
26, 1999.
-2-
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATHAN'S FAMOUS, INC.
Date: December 1, 1999 By: /s/ Wayne Norbitz
--------------------------------------
Wayne Norbitz
President and Chief Operating Officer
(Principal Executive Officer)
Date: December 1, 1999 By: /s/ Ronald G. DeVos
-----------------------------------------------
Ronald G. DeVos
Vice President - Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
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Exhibit 3
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "NATHAN'S FAMOUS, INC.", FILED IN THIS OFFICE ON THE THIRTIETH DAY OF
SEPTEMBER, A.D. 1999, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
-----------------------------------
[SEAL OF THE STATE OF DELAWARE] Edward J. Freel, Secretary of State
2303304 8100 AUTHENTICATION: 0004333
991415228 Date: 10-01-99
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CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
NATHAN'S FAMOUS, INC.
--------------
NATHAN'S FAMOUS, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors, Inc. of NATHAN'S
FAMOUS, INC., resolutions were adopted setting forth a proposed amendment to
the Certificate of Incorporation of said corporation, declaring said amendment
to be advisable and calling a meeting of the stockholders of the corporation
for consideration thereof.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a Special Meeting of Stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the following amendment:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing Article FOURTH of the Company's Certificate of
Incorporation, so that, as amended said Article shall be and read as
follows:
"FOURTH: The total number of shares of stock which the corporation
shall have the authority to issue is THIRTY MILLION (30,000,000). The par
value of each of such shares is One Cent ($.01). All such shares are of one
class and are shares of Common Stock."
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said NATHAN'S FAMOUS, INC. has caused this certificate
to be signed by WAYNE NORBITZ, its President and RONALD DE VOS, its Secretary,
this 30th day of September, 1999.
NATHAN'S FAMOUS, INC.
By: /s/ Wayne Norbitz
----------------------------
Wayne Norbitz, President
ATTEST:
By: /s/ Ronald DeVos
---------------------------
Ronald DeVos, Secretary
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STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-------------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "NATHAN'S FAMOUS HOLDING CORPORATION", CHANGING ITS NAME FROM
"NATHAN'S FAMOUS HOLDING CORPORATION" TO "NATHAN'S FAMOUS, INC.", FILED IN THIS
OFFICE ON THE FIFTEENTH DAY OF DECEMBER, A.D. 1992, AT 9:01 O'CLOCK A.M.
William T. Quillen
--------------------------------------
[SEAL] William T. Quillen, Secretary of State
2303304 8100 AUTHENTICATION: 7065680
944047352 DATE: 03-22-94
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#7
CERTIFICATE OF AMENDMENT
OF
NATHAN'S FAMOUS HOLDING CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
Nathan's Famous Holding Corporation.
2. The Certificate of Incorporation of the corporation is hereby amended
as follows:
A. By striking out Article First thereof and by substituting in lieu
of said Article First the following new Article First:
"FIRST: The name of the corporation is Nathan's Famous, Inc."
B. By striking out Article Eighth thereof and by substituting in lieu
of said Article Eighth the following new Article Eighth:
"EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and
of its stockholders or any class thereof, as the case may be, it is
further provided,
1. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less
than three nor more than twenty-seven directors, the exact number of
directors to be determined from time to time by resolution adopted by
affirmative vote of at least a majority of the Board of Directors. Any
vacancy on the Board of Directors from any cause whatsoever may be
filled by a majority of the remaining directors then in office, even
if less than a quorum, or by a sole remaining director.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with
the provisions of Section 108 of the General Corporation Law of the
State of Delaware, and after the corporation has received any payment
for any of its stock, the power to adopt, amend, or repeal the By-Laws
of the corporation may be exercised by the Board of Directors of the
corporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock each outstanding share shall entitle the holder thereof
to notice of, and the right to vote at, any meeting of stockholders.
Whenever the corporation shall be authorized to issue more than one
class of stock no outstanding share of any class of stock which is
denied voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right to vote at
any meeting of stockholders except as the
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provisions of paragraph (c)(2) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied
voting power shall entitle the holder thereof to vote upon the
increase or decrease in the number of authorized shares of said
class."
C. To change 4,800,000 authorized shares of common stock, par value
$.01 per share, all of which are issued and outstanding into 2,949,984
issued shares of common stock, par value $.01 per share, and in that
connection to reduce the aggregate stated capital of the corporation from
$48,000.00 to $29,499.84, the terms of the change being at the rate of
.81458 of a share of common stock, par value $.01 per share for each issued
and outstanding share of common stock, par value $.01 per share with the
number of shares to be issued to each shareholder of record to be rounded
to the nearest whole number of shares.
3. The amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Sections 228 and 242 of
the General Corporation Law of the State of Delaware. Prompt written notice of
the adoption of the amendment herein certified has been given to those
stockholders who have not consented in writing thereto, as provided in Section
228 of the General Corporation Law of the State of Delaware.
Signed and attested to on December 10, 1992.
NATHAN'S FAMOUS HOLDING CORPORATION
[SEAL]
By:/s/ Wayne Norbitz
--------------------------------
Wayne Norbitz, President
ATTEST:
Raymond DioGuardia
- -----------------------------
Raymond DioGuardia, Secretary
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State of Delaware
Office of the Secretary of State
------------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "NATHAN'S FAMOUS HOLDING CORPORATION", FILED IN THIS OFFICE ON
THE TENTH DAY OF JULY, A.D. 1992, AT 12:30 O'CLOCK P.M.
/s/ William T. Quillen
[SEAL OF --------------------------------------
DELAWARE William T. Quillen, Secretary of State
SECRETARY OF STATE]
230334 8100 AUTHENTICATION: 7065681
DATE:
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7/9/92
#7
CERTIFICATE OF INCORPORATION
OF
NATHAN'S FAMOUS HOLDING CORPORATION
-----------------------------------------------
The undersigned, being a natural person for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is Nathan's Famous Holding Corporation.
SECOND: The address, including street, number, city and county of the
registered office of the corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover, County of Kent 19901; and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the corporation are to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is twenty million (20,000,000). The par value of each
of such shares is One Cent ($.01). All such shares are of one class and are
shares of Common Stock.
No holder of any of the shares of the stock of the corporation, whether now
or hereafter authorized and issued, shall be entitled as of right to purchase
or subscribe for (1) any unissued stock of any class, or (2) any additional
shares of any class to be issued by reason of any increase of the authorized
capital stock of the corporation of any class, or (3) bonds, certificates of
indebtedness, debentures or other securities convertible into stock of the
corporation, or carrying any right to purchase stock of any class, but any such
unissued stock or such additional authorized issue of any stock or of other
securities convertible into stock, or carrying any right to purchase stock, may
be issued and disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its discretion.
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FIFTH: The name and the mailing address of the incorporator are as
follows:
Name Mailing Address
---- ---------------
George Lander Drayer and Traub
101 Park Avenue
New York, New York 10078
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholder or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three
nor more than twenty-seven directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of at
least a majority of the entire Board of Directors. The directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The initial
incumbents shall have terms expiring at the annual meetings of stockholders as
follows: Class I - 1993; Class II - 1994; and Class III - 1995. At each such
annual meeting of stockholders, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term
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that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting
for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy on the
Board of Directors from any cause whatsoever may be filled by a majority of
the remaining directors then in office, even if less than a quorum, or by a
sole remaining director. A director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining
term as that of his predecessor.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and after the corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the By-Laws of the corporation
may be exercised by the Board of Directors of the corporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (c)(2) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require; provided,
that no share of any such class which is otherwise denied voting power
shall entitle the holder thereof to vote upon the increase or decrease in
the number of authorized shares of said class.
NINTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
TENTH: (a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the
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Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
paragraph (b) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Corporation. The right to indemnification conferred in
this Section shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer (in his or her capacity as a director or officer and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
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(d) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
ELEVENTH: From time to time any of the provisions of this certificate
of incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed July 9, 1992
/s/ George Lander
---------------------------------
George Lander, Incorporator
5
